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Policy Statement 305 - Superfund Reauthorization

 

Approved by the Energy, Environment, and Water Policy Committee on January 30, 2017 
Approved by the Public Policy Committee on June 5, 2017
Adopted by the Board of Direction on July 29, 2017 

Policy

The American Society of Civil Engineers (ASCE) supports reauthorization of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and an amendment to provide "Good Samaritan" liability protection. 

ASCE 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;
  • Establish a dedicated federal funding source, such as reinstatement of the expired Superfund taxes, to adequately investigate and clean up sites where responsible parties cannot be identified.
  • Defined, clear, and appropriate hierarchy of federal and state responsibilities;
  • Identification of responsibility pertaining to owners of private sites;  
  • Use of professionals with appropriate levels of education, experience, and certification to perform site investigation and cleanup work;
  • Protect engineers and contractors from liability for site cleanup work conducted in accordance with the standards of care and professional practice at the time the work was performed; 
  • Use of innovative technology and presumptive remedies;
  • Establish cleanup criteria that take into account future uses of sites; and 
  • Establish 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 2016, there were 1,337 waste sites on the National Priorities List (NPL).

CERCLA established federal excise taxes on chemical feedstocks and petroleum and a tax on all corporate income, the Corporate Environmental Income Tax, to raise funds for a trust fund, the Hazardous Substance Superfund. Congress allowed the taxes to expire in December 1995, and the limited cleanup program that exists is now financed from general Treasury appropriations, private-party contributions and cost recoveries. As of 2010, EPA estimated that between $335 million to $681 million is needed annually to conduct remedial construction in the most efficient manner at non-federal NPL sites.  

Even as needs have grown, annual congressional appropriations for Superfund have steadily declined in recent years after topping $2 billion in FY 1998. The appropriation for FY 2016 was $1.09 billion. 

Rationale

Over the 33 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 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.

One significant category of Superfund sites is abandoned mines. ASCE recognizes that inactive or abandoned mine sites may pose serious public safety and environmental hazards. There are an estimated 500,000 sites on the Bureau of Land Management's abandoned mine land (AML) data base. However, a comprehensive inventory of abandoned mines does not currently exist.

The threat of liability under CERCLA often deters third-party efforts to clean up the abandoned hazardous waste sites.

See: ASCE Policy Statement 485, Revitalization of Brownfields

ASCE Policy Statement 305
First Approved in 1985


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