What Will EPA Do with Its New Superfund Money?

Snell & Wilmer

Snell & Wilmer

The Senate’s bipartisan infrastructure bill, which passed Aug. 10, contains a provision that would bring back an excise tax that expired in 1995 on a lengthy list of raw chemicals. House Democrats also want it to cover crude oil.

In addition to this new tax stream, the House has already approved $1.5 billion in appropriations for the Superfund program in its 2022 fiscal year budget.

While the EPA has been aggressive for many years and throughout various administrations in pursuing viable entities legally responsible for contamination, this new “found money” is not coming from any particular responsible party to be used at a particular site, it is a general tax and/or appropriation.

While it is unclear how much money, or from where, the EPA will be getting new funding, it appears the EPA will be getting a huge boost in funding for its superfund program. The question is, what do they intend to do with all that money?

There are several likely possibilities. First and foremost, the most obvious place should be where it is needed to make up for the lack of any viable responsible parties. These so-called orphan sites are significantly contaminated areas where none of the entities responsible for the problem exist any longer, or are simply unable to pay for it. If these sites represent a threat to the environment or local populace, the EPA should devote its new resources to addressing them as soon as possible. It is hard to find anyone who would disagree with that.

So the question becomes, what else can this money be used for to address the overall goals of cleanup and protection from historical contamination? The EPA has generally posited that it wants to conduct additional investigations and collect more data on newer sites. That is all well and good, but what about speeding up the process at known sites?

Many of the most significant and dangerous superfund sites across the nation have been tied up in disputes for years, as the EPA fights with companies over liability, or with minor contributors who feel it is unfair to have to bear the financial burden merely because they have deep pockets.

Even when liability has been established or some form of contribution agreed to, many of these sites still sit moribund for years as the EPA seeks more and more data before ever proposing a remedy, or the remedy proposed is viewed by the responsible parties as needlessly expensive or unnecessary, and fought over. Perhaps the EPA could use much of this found money to short cut these issues, and get remedies in place much faster. By contributing funding to sites where there are disputes – for example, by chipping in money to make up for the orphan shares, or for shares the Federal government should be paying for, or for setting off the long term costs of remedies that the EPA wants but the responsible parties believe to be an unnecessary burden – these long delayed sites could be jump-started and moved to a conclusion.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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