Republicans in Congress attack Superfund cleanup tax

By Benjamin J. Hulac
Washington Correspondent For the NJ Spotlight News

WASHINGTON — Republicans in Congress, with control of the White House and backing from chemical companies, are trying to eliminate a federal tax on chemicals that funds the cleanup of toxic waste sites nationwide.

As part of a 2021 federal infrastructure law, lawmakers revived a tax that expired in the 1990s. The tax pays to clean toxic sites where the company that polluted the location cannot be found or no longer exists. Often, the responsible company or companies went bankrupt years prior.

Now, the tax that has provided funding to clean up these places — what are known as “orphaned” sites — is at risk.

Senate Republicans, including Ted Cruz of Texas, home to a significant chemical manufacturing industry, introduced legislation last week to repeal the tax. Republicans in the House who represent industrial districts filed a similar bill in late January.

The elimination of the tax would slow cleanup efforts at orphaned sites in New Jersey and other states a few years after money had begun to flow to pay to remedy dangerous sites, often former chemical plants, military depots, lumber mills or steel-making companies.

NJ’s ‘ignoble’ record

The tax is part of the broader Superfund program, which Congress, led by then-representative and later New Jersey governor Jim Florio, created in 1980 and is housed within the Environmental Protection Agency.

The Superfund law is based on a “polluter pays” concept — the idea that companies that release toxins into the environment pay for the damage they cause.

New Jersey contains 114 of these Superfund sites, more than any state in the country, though many of those are not orphaned sites.

“It’s kind of an ignoble designation that we continue to hold,” Doug O’Malley, director of Environment New Jersey, an environmental advocacy group, said in an interview with NJ Spotlight News. “They are open scars.”

For comparison: California, the most populous state, has 97 Superfund sites.

Depleted fund

Congress let the Superfund tax expire in 1995, and it ran out of money in the early 2000s, forcing EPA to pull from the federal government’s general fund to pay for abandoned site remediation.

The specific fund for cleanup costs had run out, said Jonathan Kalmuss-Katz, an attorney with Earthjustice, an environmental law group, who focuses on the regulation of toxic substances and pesticides.

“It was completely depleted,” Kalmuss-Katz said in an interview with NJ Spotlight News, “which meant in many cases that there were dangerously polluted sites that were just going completely unaddressed.”

After Congress passed the infrastructure law, which every member of New Jersey’s congressional delegation voted for, the Biden administration allocated funding to sites across the state.

The law also set aside $3.5 billion for Superfund cleanup across the country.

One NJ site undergoing cleanup since 1991

One of the sites that received money is the Roebling Steel location in Florence Township, which has been a Superfund site since 1983.

“The cleanup’s been going on since 1991,” O’Malley said of Roebling. “A lot of these sites have languished.”

The chemical industry lobbied against the tax when it was first reinstated, spending heavily when Congress was considering the tax and after.

Last year, the American Chemistry Council, the top trade group for the chemical industry, spent $22.33 million on federal lobbying, the most it ever has, according to records from OpenSecrets, a nonpartisan research group that tracks money in U.S. politics.

Chemical industry’s push on Capitol Hill

The group’s activity included lobbying on both House and Senate bills to repeal the Superfund tax, records show.

Companies the ACC represents before Congress and federal agencies include large firms like 3M, Dow, DuPont, Honeywell and Exxon Mobil’s chemical arm, plus medium-sized and smaller companies.

Jennifer Scott, an ACC spokeswoman, said a number of factors triggered the lobbying spike, including how EPA is carrying out federal law on toxic chemicals, legislation on plastics and climate and energy policies.

“Chemical excise taxes target all chemical manufacturers — and some other industries — regardless of whether there is a connection to a Superfund site. ACC member company facilities make up a very small percentage of Superfund sites, and these facilities are paying for cleanup,” Scott said in an emailed statement.

“We would note that the Superfund program has operated for the past 25 years without the tax, based upon general revenues and fund reimbursements — so it did not require new taxes to do the job of emergency removals and NPL site cleanup,” Scott said, using the shorthand for the National Priorities List, a group of sites eligible for Superfund work. “Adding money to the program will not necessarily make it work more quickly or more effectively.”

Passing the Republican legislation to rescind the Superfund tax would likely require 60 votes in the Senate, to overcome the filibuster, but such an outcome is possible with unified Republican control in Washington.

One in six Americans live within three miles of a Superfund site, according to the advocacy group Environment America, and Black and brown New Jersey residents are more likely to live near a toxic site than white people.

After the tax for orphaned sites ran out decades ago, cleanup languished. Cleanup delays are particularly noteworthy in New Jersey, where the legacy of industrial pollution stretches back centuries, said Kalmuss-Katz.

“You have contamination that extends back to the 1800s,” he said. “These aren’t abstract concerns.”

Benjamin J. Hulac is the Washington correspondent for NJ Spotlight News. He covers energy, environment and water.