Will the Regulated Community Feel the Influx of Superfund Funding in 2023?

January 18, 2023
Garrett D. Trego, Esq.
MGKF Special Alert - Federal Forecast 2023

Across the first two years of the Biden Administration and Congress’ passage of the Infrastructure Investment and Jobs Act and the Inflation Reduction Act, the Superfund tax has been reinstated and billions of new or additional funding has been allocated to the federal Superfund program.  The focus of the new funding is to bolster cleanups in environmental justice communities and to kickstart remedial projects where no solvent potentially responsible party has been identified. 

Despite the new sources of funding secured in 2021 and 2022, many regulated entities have yet to see significant changes in the Superfund program during these years, even as compared against the prior federal administration.  That could change in 2023.  Of the Biden EPA’s stated priorities from its 2023 budget — “advancing environmental justice, tackling climate change, protecting public health, improving infrastructure, and rebuilding the EPA workforce”—it is perhaps the expanded workforce and the availability of funds to enable EPA to do work itself at sites that will lead to the most significant, practical impacts on the large caseload of the Superfund program.  In 2023 and beyond, it is possible that the new sources of funding trickle down to more tangible results, including efforts by EPA to (1) begin work at sites for which remedies have been selected but at which no solvent parties exist to do the work, (2) seek to speed up remediations at sites where cooperating parties have been slow (In EPA’s opinion) to proceed by having EPA take over (or threaten to take over) the work, (3) threaten to initiate work at sites for which Unilateral Orders are issued but parties either will not or are otherwise slow to proceed with remediation, (4) push for the more rapid completion of phased work and to initiate work at new operable units within existing sites, and (6) be more ambitious about adding sites to the National Priorities List.