ARTICLE
16 April 2024

Superfund Is Short Of Money. Can It Be Fixed By Tinkering Around The Edges?

FH
Foley Hoag LLP

Contributor

Foley Hoag provides innovative, strategic legal services to public, private and government clients. We have premier capabilities in the life sciences, healthcare, technology, energy, professional services and private funds fields, and in cross-border disputes. The diverse experiences of our lawyers contribute to the exceptional senior-level service we deliver to clients.
This week, Inside EPA (subscription required) ran a story indicating that EPA is trying to figure out how to juggle some increasingly expensive cleanups with shortfalls...
United States Environment
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This week, Inside EPA (subscription required) ran a story indicating that EPA is trying to figure out how to juggle some increasingly expensive cleanups with shortfalls in Superfund tax revenue. The story notes that EPA is adding expensive new sites to the National Priorities List, while also anticipating new costs resulting from PFAS regulation and more stringent lead cleanup levels.

Can we just face facts and acknowledge that Superfund as presently constituted simply doesn't work? It wouldn't even be fair to say that Superfund is broken, because it's never worked; there was nothing to break. While the issues mentioned in Inside EPA may be the straw that breaks the camel's back, they are not the cause of Superfund's woes.

Superfund has always suffered from two core weaknesses. The first is a grossly unfair liability system that pretends to make the polluter pay, but has in fact simply been a grab for the deepest available pocket. The second is an almost complete failure to tie Superfund cleanups in any meaningful way to the risks actually posed by any given Superfund site. I could go on, but I will only note that programs such as Superfund contribute to a loss of faith in government, which helps explain the current mess we call our national political scene today.

The problems faced by the Massachusetts Superfund program more than 30 years ago were slightly different, but the solution adopted then may still offer promise to the federal system. And by that, I mean implementation of a privatized approach to Superfund cleanups. Government sets risk-based standards and then pretty much gets out of the way. Such an approach would test whether Democrats really want cleanups to happen or whether they prefer that Superfund provide a handy platform to pontificate about the evils of large corporations. And it would test whether the GOP really believes in regulatory reform or whether they just want to burn down the house.

And, yes, I know it's not going to happen. But can we at least stop pretending that Superfund can be fixed? It's built on a dysfunctional foundation. Tweaks around the edges are never going to make Superfund work.

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ARTICLE
16 April 2024

Superfund Is Short Of Money. Can It Be Fixed By Tinkering Around The Edges?

United States Environment

Contributor

Foley Hoag provides innovative, strategic legal services to public, private and government clients. We have premier capabilities in the life sciences, healthcare, technology, energy, professional services and private funds fields, and in cross-border disputes. The diverse experiences of our lawyers contribute to the exceptional senior-level service we deliver to clients.
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