“The Hill,” a nonpartisan news outlet that focuses on the inner workings of Congress and the nexus of politics and business, contains a story today about a U.S. Government Accountability Office report that at least 60 percent of Superfund sites are vulnerable to climate change impacts.
The flooding and other natural catastrophes caused by or associated with climate change we may anticipate in the near future should shake our confidence in the continuing safety and reliability of Superfund cleanups across the land.
Over the course of my career practicing environmental law, I have worked on the remediation of dozens of hazardous waste sites, governed by both federal and state laws (as well as by private arms-length agreements). All those efforts included strict regulatory controls, based on the best then-current scientific and engineering opinion. In none, however, other than building in accommodation for concepts such as flood-plain planning and guards to avoid adverse effects of 25, 50, and 100 year floods, did the remediations take into consideration the potential effects of climate change. To be fair, none of the projects on which I worked were completed since our recently acquired sensitivity to the effects of climate change. This does not reduce the importance of reviewing all hazardous waste remediations for their adequacy in the face of what we now anticipate climate change may do to their efficacy.
Regrettably, EPA does not now appear up to the task. On the other hand, state governments have both the incentive and the independent review and enforcement authority to take appropriate action. Further, the potential draconian consequences private parties face that arise from the retroactive, strict, and joint-and-several liability scheme under federal and state laws should result in efforts to include review of climate change as a factor in the continuing efficacy of cleanup efforts.
Don’t be surprised to see both state and federal legislative efforts to address this concern.