Approved by the Energy, Environment, and Water Policy Committee on December 20, 2022
Approved by the Public Policy and Practice Committee on June 9, 2023
Adopted by the Board of Direction on July 22, 2023

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.
  • Continuation of the Superfund Excise Taxes to provide a dedicated federal funding source, to support the investigation and cleanup of 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.
  • Establishment of a comprehensive inventory and Preliminary Assessment program of abandoned mine sites.
  • Targeted actions to address the disproportionate pollution burden that minority, low-income, and Indigenous communities carry; and
  • Increased focus to ensure waste sites are resilient to sea level rise, coastal flooding, and storms.

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. 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 June 2023, there were 1,336 waste sites on the National Priorities List (NPL) and another 40 sites proposed for NPL.

CERCLA originally 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 1995, and the funds were depleted by the end of Fiscal Year 2003. In 2022, the Infrastructure Investment and Jobs Act revived some of these taxes on chemicals until December 2031.

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 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 57,586 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, nor does an assessment of human health and environmental risks posed by those sites, but funding has been allocated through the Infrastructure Investment and Jobs Act.

EPA reports that minority populations and households below the poverty line are more likely to live near a Superfund site, and research has shown an elevated risk of negative health impacts for those who live in close proximity to these sites. Additionally, a 2019 Government Accountability Office report found that 60 percent of all nonfederal NPL sites are located in areas that may be impacted by flooding, storm surge, wildfires, or sea-level rise related to climate change effects.

Rationale

Over more than 40 years since the enactment of CERCLA, 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 equitably, and more effectively within the limitations of existing legislation. Although a new funding stream was established in 2022, insufficient funding for the program has slowed progress. CERCLA has other detrimental issues such as the threat of liability for third-party efforts to clean up abandoned hazardous waste sites, and the lack of a comprehensive inventory and Preliminary Assessment program for abandoned mine sites which may pose serious public safety and environmental hazards. Funding and focus of CERCLA efforts should intentionally consider social equity to ensure that health and environmental impacts are not disproportionately borne by disadvantaged populations.

Civil engineers are responsible for the planning, design, and implementation of remedial designs to prevent the release of, or exposure to hazardous and toxic substances from Superfund sites. These remediation systems are exposed to and often are vulnerable to the effects of extreme climate and weather events. Engineering practices and standards should be examined and updated to require the consideration of climate change to ensure they are resilient and continue to provide protection of human health and the environment. Moreover, previously closed sites should be reexamined to consider these factors.

ASCE Policy Statement 305
First Approved in 1985