President Biden’s Made in America Tax Plan may revive long-expired Superfund taxes to bolster the Hazardous Substance Superfund Trust Fund and hasten cleanups at hazardous waste sites across the country. While the Superfund program primarily targets the cleanup of hazardous substances at sites nationwide, the Biden Tax Plan proposes to renew the Superfund taxes not only for their original purpose, but now also for broader Administration policy purposes – to disincentivize fossil fuel and chemical production and to improve the health of communities overburdened by pollution and suffering from low-socioeconomic conditions.

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) was enacted in 1980 to hold parties financially responsible for contamination from their operations and clean up hazardous waste sites. While responsible parties typically conduct and fund the work, EPA may conduct and finance the cleanups with the Superfund Trust Fund in some circumstances – such as when responsible parties cannot be identified. Three dedicated taxes – on petroleum, chemical feedstocks, and corporate income – provided most of the Superfund Trust Fund’s original revenue; however, this taxing authority expired over 25 years ago. Congress introduced legislation to reinstate the “polluter pays” taxes several times, but the bills were never enacted.

That may change under the Biden Administration. The Superfund Trust Fund, once worth several billion dollars, has shrunk since the taxes expired. The Treasury’s general fund taxpayer dollars are now the Trust Fund’s largest source of revenue. The National Priorities List of hazardous waste sites eligible for cleanup currently has 1,327 sites listed, many of which were listed over 20 years ago. In 2019, only 27 sites were partially or fully deleted from the list. Limited funding, according to EPA, has delayed or slowed the pace of cleanups.

The Made in America Tax Plan aims to address this situation by calling to restore the Superfund taxes to “penalize polluters through tax disincentives” and pay for cleanup costs. In line with recent executive orders on clean energy and environmental equity, reviving the tax, according to the Tax Plan, is intended to disincentivize fossil fuel and chemical production and to address the disparate impact of Superfund sites.

The Biden Administration has not released details of what the revived taxes may look like. The taxes as they existed in 1995 immediately prior to expiration can provide insight into what companies might expect going forward. Companies should consider the potential impact of the return of three dedicated taxes – on crude oil, chemicals, and corporate income.

Excise Tax on Crude Oil

The Hazardous Substance Superfund financing rate was an excise tax of 9.7 cents per barrel of crude oil that applied from 1987 through 1995. Click here and here to view the expired statute. It was collected from refiners, importers, users, and exporters in the same manner as the current 9.0 cents Oil Spill Liability Trust Fund financing rate (recently extended through 2025). The Tax Plan could reinstate the Hazardous Substance Superfund financing rate at the historic 9.7 cents per barrel level or a new, inflation-adjusted level. A bill introduced in 2020 by Senator Cory Booker, for example, proposed to raise the rate to 15.8 cents per barrel and adjust for inflation. Revenues raised from the resurrected tax would presumably be deposited in the Superfund Trust Fund in the same manner as before 1996.

Excise Tax on Select Chemicals

From 1987 through 1995, an excise tax also applied to the sale by the manufacturer, producer or importer of 42 specified chemicals. Click here and here to view the expired statute. The tax rate ranged from 22 cents to $4.87 per ton. The highest ($4.87 per ton) rate applied to certain petrochemicals to the extent they were not put to a “qualified fuel use”: acetylene, benzene, butane, butylene, butadiene, ethylene, naphthalene, propylene, toluene and xylene. A rate of $3.44 per ton applied to methane not used as fuel, used in fuel, or put to a “qualified fertilizer use.”

A similar tax applied to the importation of other chemicals sold or used by an importer, to the extent the 42 specified chemicals constituted more than 50% of the weight or value of the chemical, including 50 chemicals specifically identified in the statute as satisfying this requirement. Click here and here to view the expired statute.

As with the crude oil tax, the Tax Plan could reinstate these chemical taxes at their historic rates or inflation-adjusted rates and require deposit of the revenues raised into the Superfund Trust Fund in the same manner as before 1996.

Environment Tax on C Corporations at 0.12% Rate

From 1986 through 1995, an Environment Tax applied to income of a C corporation at a rate of 0.12% of the “modified alternative minimum taxable income” of the corporation in excess of $2 million. Click here to view the expired statute. This tax was the largest source of tax revenue for the Superfund Trust Fund before 1996, so it is possible that the Tax Plan could reinstate it at its historic rates or inflation-adjusted rates and require deposit of the revenues raised into the Trust Fund in the same manner as before 1996. However, since the corporate alternative minimum tax was repealed in 2017 and would be restored in a substantially modified form by the Tax Plan, it is not clear how the income to which the tax would apply would be determined.

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Because the Tax Plan aims not just to revitalize the Superfund Trust Fund but also to disincentivize fossil fuel activities and address disparate environmental impacts, the taxes could also be revised and tailored based on this Administration’s specific goals. The details may not be clear yet, but companies should consider the possibility that old environmental taxes may see new life under the Biden Administration. 

For additional information, a copy of the full Made in America Tax Plan and the Biden Administration’s fact sheet are available here and here.

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