Superfund liability law impedes work of engineers

SEVEN years ago, heavy rainfall popped leaking drums of hazardous chemicals long buried at Love Canal in Niagara Falls, N.Y. The homes along Love Canal are now empty. Six years earlier, in 1972, the town of Times Beach, Mo., hired a salvage-oil dealer to spray unpaved city roads to dampen their dust. What the dealer sprayed turned to dioxin, the most deadly substance ever produced in a laboratory. Today, but for one, the homes of Times Beach are boarded up and empty.

Two isolated incidents? Hardly. In America today there are more than 20,000 uncontrolled hazardous waste sites already inventoried by the Environmental Protection Agency (EPA).

Petroleum, motor oil, plastics, drugs, dyes, detergents, nail polish, antifreeze, insect sprays, materials for varnish and carpets, chrome and nickel from metal-plating shops, dry-cleaner solvents, and oven cleaners have all enhanced the quality of life or at least the ease of living in the United States.

But once disposed -- and until the late 1970s, most often legally so -- in thousands of sites they pose a health menace the likes of Love Canal and Times Beach.

Site decontamination is the work of engineering consultants, engaged by the EPA or Corps of Engineers to design purification solutions, and cleanup contractors hired to execute the containment and disposal plans. There are some 600 experienced engineering firms employing about 50,000 engineers, scientists, technical and support staff that are designing solutions to these health hazards.

Unless Congress acts this year to modify the liability requirements of the Superfund -- the law enacted to clean up the Love Canals and Times Beaches -- the cleanup movement is paralyzed.

In attempting to build a replenishable fund to finance purification of abandoned toxic-waste sites, the 1980 law mandated strict liability applying to any party having any contact at any time with a site.

This meant that engineering firms designing the decontamination plans could be sued as readily as if they had originally generated or dumped the wastes. If the consulting engineer was the only firm left solvent after a multicontributor site was abandoned, his or her firm could be forced to bear the full burden of liability, even though the firm did nothing to contribute to the contamination.

Strict liability, which states such as California, New Jersey, and Minnesota have emulated in adopting state toxic site control laws, is a major roadblock to restoring these toxic sites. It could prolong what is estimated, as a technological problem, to be up to a 50-year battle.

Because of the Superfund's liability strictures (and those of state mini-Superfunds) major insurers have announced they will no longer insure toxic site engineering by the end of this year.

In addition, engineers' professional liability insurance premiums have risen astronomically -- even for those with unblemished claims records -- in a year doubling and in some instances tripling, with increases in deductibles of 500 percent, topping $1 million.

Thus, many engineering firms working in the toxic field have declared their intention to leave it. Or, because they could be held liable in the year 2005 for a cleanup technology considered state of the art in 1985, they describe the necessity of adopting ``safer'' cap-and-monitor approaches to site control until a sound liability environment allows them to effect the riskier but more necessary restoration solutions.

A solution lies in the hands of Congress, which, as of this writing, is grappling with reenactment of the Superfund law that expires Sept. 30. That solution is removal of consulting engineers from the chain of strict Superfund liability, holding them instead to the normal liability level to which they are held on other projects affecting public health and safety such as highways, bridges, and air- and water-pollution control facilities: the quality of their professional judgment.

The House Energy and Commerce Committee, chaired by Rep. John D. Dingell (D) of Michigan, has recognized the inequity and danger of the broad application of strict liability and has recommended this change.

The committee also recommended a needed uniform negligence standard for all federal, state, and private cleanup activities. This would cut through the present patchwork of legal responsibilities for legal work which complicates and further delays the restoration process.

The proposed five-year, $10 billion reauthorization of the Superfund is facing an arduous legislative road. Resolution of the strict liability chain around consulting engineers must be a key congressional step. America's ability to straighten out our toxic-waste mess depends on it.

Arnold L. Windman is the president of the American Consulting Engineers Council.

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