chevron-down Created with Sketch Beta.


Winter 2024: Environmental Health & Safety

Signs of Life at Superfund Sites

Michael Plumb


  • Tax revenues from renewed petroleum and chemical taxes and the legislative amendment that allows EPA to spend from the Superfund without congressional appropriation gives EPA the freedom to substantially expand and accelerate cleanups.
  • The 2021 Infrastructure Investment and Jobs Act has breathed new life into the long-dormant national priority list (NPL) sites nationwide. 
  • The Superfund chemical tax and petroleum taxes are projected to restore CERCLA program revenue to meet or exceed, in current-year dollars, the funding levels from the program’s heyday.
Signs of Life at Superfund Sites
Thana Prasongsin via Getty Images

Jump to:

Activity is picking up at long-dormant national priority list (NPL) sites nationwide as a result of the 2021 Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (Nov. 15, 2021) (Infrastructure Law), and the 2022 Inflation Reduction Act, Pub. L. No. 117-169, 136 Stat. 1818 (Aug. 16, 2022) (IRA).

The Infrastructure Law provided $3.5 billion in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) program appropriations (135 Stat. 1398) and reinstated the Hazardous Substance Superfund Trust Fund (Superfund) chemical taxes (section 80201, 135 Stat. 1328). The IRA reinstated the Superfund petroleum taxes (section 13601, 136 Stat. 1981). The Congressional Budget Office has estimated that through 2031, the Superfund chemical tax will generate $14.45 billion in revenue and the Superfund petroleum tax will generate an additional $11.72 billion in revenue, all of which must be dedicated to the Superfund and will vastly expand cleanup funds available to EPA.

The Infrastructure Law’s $3.5 billion in new funding, which EPA is obligating at a rate of $1 billion per year, eliminated the prior backlog of over 40 unfunded construction-ready projects, started cleanups at new construction-ready sites, and expedited ongoing cleanups. In 2022, using the initial $1 billion, EPA started 81 new EPA-led nonfederal cleanups. EPA Press Release (Feb. 10, 2023). By way of comparison, EPA averaged just under 30 nonfederal EPA-led cleanups starts per year from 2000–2021. See EPA Superfund Remedial Annual Accomplishments Reports; see also Katherine Probst, Superfund 2017: Cleanup Accomplishments and the Challenges Ahead (2017). In 2023, EPA used the second $1 billion obligation to start new cleanups on another 22 superfund sites, as well as expediting cleanups at another 100 sites. EPA Press Release, supra.

A perk included in the Infrastructure Law waived state cost-share requirements relating to the $3.5 billion appropriation. Generally, 10% of EPA-led cleanup costs are required to be paid by the host state, with the cost-share rising to 50% for cleanups at facilities operated by the state at the time of disposal. 42 U.S.C. § 9604(c)(3). New Jersey, which has the nation’s highest density of NPL sites and the highest amount of federal cleanup spending, was the big winner for state cost-share waivers in 2022, when EPA obligated more than $206 million in funds for remediation at 17 sites in New Jersey. Florida came in second, with $115 million at five sites, followed by New York with $80 million at eight sites. EPA, Fiscal Year 2022 Report to Congress: Superfund Sites with Projects Funded with [Infrastructure Law] Funds (Apr. 11, 2023).

EPA uses the Superfund, which was created with the enactment of CERCLA in 1980, to pay for removals and remediations at orphaned NPL sites, i.e., those sites where there are no responsible parties available to fund remediation. From 1980 through 1995, EPA’s CERCLA program was primarily funded with dedicated Superfund taxes on domestic and imported oil, petroleum products, petrochemicals, and inorganic chemicals. Other sources of Superfund revenue included general fund appropriations, interest, fines, penalties, and recoveries. Initially, most Superfund revenue came from the Superfund taxes. However, in 1995 the Superfund taxes expired. After the remaining $4.7 billion balance in the Superfund Trust Fund was spent, Congress continued funding EPA’s CERCLA program with annual appropriations from general revenue.

Historically, EPA could not spend from the Superfund without congressional appropriations. As a result, the increases in revenue from Superfund taxes in the early 1990s, which far exceeded prior annual appropriations, did not lead to additional annual cleanup spending. Rather, since the late 1980s, Congress has consistently appropriated approximately $1.2–$1.5 billion per year to the EPA’s CERCLA program, though generally trending down through that range for the last 20 years. Of that amount, approximately $500–$600 million has been made available for the remedial program, with most of the balance being dedicated to removal actions and enforcement. (The only notable exception to the remarkably steady annual remedial program funding was an additional $600 million for cleanups spent from 2009–2011 as authorized by the 2009 Reinvestment and Recovery Act.)

Despite the consistent funding levels, EPA has long bemoaned decreases in CERCLA program authorizations. Those claims are based on analysis of historic annual appropriations using current-year dollars. Remediations are complex, and there are many reasons why cleanups today could be more efficient or more expensive than they were in the 1980s. However, simply using the consumer price index, $1.2 billion in 1987 is equivalent to about $2.68 billion today. Or, in other words, by maintaining approximately the same appropriation for 35 years, the annual congressional appropriation has lost more than 50% of its buying power.

Now, pursuant to the Infrastructure Law, EPA no longer needs Congress to approve spending from the Superfund. Rather, the Superfund is now available to EPA “without further appropriation” to be used to carry out CERCLA. Revenue projections state that the Superfund chemical tax will collect $1.2 billion in 2023, increasing annually to $1.7 billion in 2031. In addition, the Superfund petroleum tax will collect $900 million in 2023 and $1.23 billion in 2024, then increasing annually to $1.47 billion in 2031. Together, these taxes will restore CERCLA program revenue to meet or exceed, in current-year dollars, the funding levels from the program’s heyday. The Infrastructure Law’s elimination of the need for additional congressional appropriations will also help avoid the potential for the CERCLA program being used as a bargaining chip in annual budget negotiations.

However, it is not yet clear how EPA will choose to wield its new spending power. Nearly half of the CERCLA program is outside the remedial program and includes enforcement and removals. With so much Superfund cash on hand, will EPA maintain its initial focus on EPA-led cleanups, driven by the initial $3.5 billion cash infusion, or expand enforcement efforts?

The answer is still to be determined. EPA’s proposed budget for 2024 congressional appropriations does not indicate how Superfund tax revenue will be spent. The proposed budget appropriations for remedial actions, removals, and enforcement have all been zeroed out since EPA will be relying entirely on Superfund taxes. However, EPA’s appropriations budget states that Superfund tax revenue to be collected in 2023 and available in 2024 is now anticipated to be $2.54 billion, significantly more than originally projected. If these projections prove true, EPA will be able to maintain its current frenzied pace of EPA-led cleanup activity, currently only possible because of the $3.5 billion appropriation, and also expand enforcement and removal efforts.

Those additional funds will also strengthen EPA’s position in dealing with remedial actions undertaken by responsible parties. EPA may soon have sufficient resources to speed up the seemingly interminable negotiations regarding cleanups at sites to be remediated by responsible parties. In addition, with excess remedial program funds, EPA may become more willing to end negotiations that it deems nonproductive and instead move forward with an EPA-led cleanup.

Regardless of how EPA ultimately decides to move forward, practitioners need to be aware that the CERCLA program is undergoing significant changes. For now, EPA’s CERCLA program funding shortfalls are over. The program is flush with cash and EPA is free of congressional restraints on spending. In addition to EPA starting more new cleanups and expediting existing cleanups, practitioners also should anticipate eventual changes in the tempo of responsible-party negotiations and an expansion of the enforcement program.