In a recent Coeur d’Alene Press editorial, and many times throughout the long history of the Coeur d’Alene basin cleanup plan, the question has been raised; “who is really going to end up paying for all this?” While a complete response to that question can get very complicated, the underlying law provides us with a fairly straightforward answer: those responsible for causing or contributing to the problem, i.e the mining companies, are supposed to pay. For any amount that is not recoverable, the federal Superfund program does.
In 1980 Congress enacted the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), commonly known as Superfund. Under CERCLA, Congress put into practice the “Polluter Pays” principle, an environmental policy that requires that the costs of pollution be borne by those who cause it. In other words, the companies or people responsible for the contamination are the parties liable for the cost of its clean up. Moreover, CERCLA is a strict liability statute, so an entity becomes legally obligated to cover the cost of clean upon being found as a contributor, regardless of negligence or fault. For the Coeur d’Alene basin Superfund site, a federal court has already found several companies responsible for the environmental degradation of the area, and therefore, clean up costs.
The list of companies causing or contributing to our mess includes Hecla Mining Company, ASARCO, the Coeur d’Alene Mines Corporation, and the Sunshine Mining and Refining Company. All but Hecla Mining Company, found by the court to be 31% liable, have reached settlement agreements with the EPA. This includes a recent $482 million payout by ASARCO, which was apportioned with 22% of the cost. Hecla remains the sole financially-solvent company yet to settle its liability.
For any costs of the cleanup not recoverable from a polluter, CERCLA utilizes a cost-sharing mechanism. Generally, the federal Superfund program is responsible for paying for the initial cleanup, leaving post-cleanup operation and maintenance to the states. The federal government is not required to do a perfect job but must ensure that human health and the environment are protected. The post -cleanup operation and maintenance of sites is crucial to ensure that the cleanup efforts provide for meaningful long term protection of human health and the environment.
Unfortunately maintaining the Superfund program has become an unfunded mandate for the federal government. Until 1995, Superfund cleanups were funded through both the “polluter pays” principle discussed earlier and by taxing the chemical and petroleum industries that manufacture hazardous materials that create Superfund sites. The idea was that the Superfund tax would ensure that the polluting industries, not the general taxpayer, would be responsible for the problems they collectively create. (The problem with relying solely upon the “polluter pays” principle is that 30% of the companies that create Superfund sites are unable to pay for their cleanup.) However, the tax on the chemical industry expired in 1995 and has not been renewed. Now, our federal tax dollars are used to clean up their messes. Due to these funding issues, the Obama administration has proposed reinstating the Superfund tax on polluting industry, but there has been a decided lack of progress on this front.