Approved by the Energy, Environment, and Water Policy Committee on December 18, 2019
Approved by the Public Policy Committee on April 6, 2020
Adopted by the Board of Direction on July 11, 2020
Policy
The American Society of Civil Engineers (ASCE) supports reauthorization and increased funding of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
ASCE specifically supports the following to enhance actions conducted under CERCLA:
- Increased funding to support all stages of site cleanup for both non-Federal Superfund sites and Federal Superfund sites.
- Establishment of a dedicated federal funding source, such as reinstatement of the expired Superfund taxes, to adequately investigate and cleanup sites where responsible parties cannot be identified.
- Protection from liability for engineers and contractors for activities performed during site cleanup work conducted in accordance with the standards of care and professional practice at the time the work was performed; and
- Establishment of a comprehensive inventory of abandoned mine sites.
Issue
Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) in December 1980 in response to situations such as Love Canal, where a housing development and elementary school were constructed over an old industrial waste disposal site. The program was initially intended to clean up about 400 high-priority hazardous waste sites nationwide. According to the Environmental Protection Agency (EPA) one in four Americans live within three miles of a contaminated site posing serious risks to human health and the environment. As of November 2019, there were 1,335 waste sites on the National Priorities List (NPL) and another 51 sites proposed for NPL.
CERCLA established dedicated taxes on petroleum, chemical feedstocks, and corporate income to raise funds for the Superfund Trust Funds. However, Congress allowed the taxes to expire in December 1995, and the funds were depleted by the end of Fiscal Year 2003. Since that time, the General Fund of the U.S. Treasury has been the main source of funds.
Even as needs have grown, annual congressional appropriations to the Superfund Trust Fund have steadily declined in recent years after topping $2 billion in FY 1998. The appropriation for FY 2019 was $1.16 billion.
CERCLA identifies four broad criteria for determination of Potentially Responsible Parties (PRPs). These criteria include owners/operators, past owners/operators, arrangers, and transporters. Based on the language of the law, courts have held that engineers and contractors can be held as a PRPs for actions performed during cleanup operations.
One significant category of Superfund sites is abandoned mines. The Bureau of Land Management (BLM) estimates that there are 500,000 of these sites in the United States. However, BLM's Abandoned Mine Land (AML) inventory, which considers only BLM owned property, only contains 52,000 abandoned mines and, of those, only 20% have been remediated or determined to require no further action. A comprehensive inventory of abandoned mines does not currently exist.
Rationale
Over the 40 years since the enactment of CERLA, scientists and engineers have developed more sophisticated approaches to identifying and remediating contaminated sites, and the EPA has tried to make the program work faster, more equitable, and more effective within the limitations of existing legislation. Additional sites continue to be identified even as fewer current sites move towards construction completion and long-term monitoring due to insufficient funds. With limited resources, EPA must work with states and responsible parties to prioritize investigation and cleanup efforts, applying the best available technology and addressing the needs of local stakeholders.
Funding for cleanup of Superfund sites is significantly declining as a result of the corporate income and feedstock taxes which expired in 1995 and the continuing reduction in annual federal appropriations. Without adequate funding to remediate abandoned and inactive sites, the environment will continue to be polluted and impaired at considerable risk to the public. While ASCE agrees some changes are needed to improve efficiencies in CERCLA, ASCE recognizes the importance CERCLA serves in the restoration and enhancement of abandoned and inactive contaminated sites. However, the threat of liability under CERCLA often deters third-party efforts to clean up the abandoned hazardous waste sites. Therefore, ASCE encourages enhanced protections for engineers and contractors performing site cleanup work.
Finally, ASCE recognizes that inactive or abandoned mine sites may pose serious public safety and environmental hazards and encourages a focused effort to address these hazards. The first step in addressing this would be development of a comprehensive abandoned mine site inventory.
ASCE Policy Statement 305
First Approved in 1985