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Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, establishes certain authorities concerning financial responsibility requirements. On January 6, 2010, the Agency identified classes of facilities within the chemical manufacturing industry; the petroleum and coal products manufacturing industry, which primarily includes refineries and not coal mines; and the electric power generation, transmission, and distribution industry as those for which EPA could develop, as necessary, financial responsibility requirements under CERCLA 108(b). On January 11, 2017, the Agency made a determination to proceed with rulemakings that will either develop proposed financial responsibility requirements under CERCLA 108(b), or determine such requirements are not warranted. This entry covers the Electric Power Generation, Transmission, and Distribution Industry. In July 2019, EPA proposed to not impose financial responsibility requirements for facilities in the Electric Power Generation, Transmission, and Distribution industry under CERCLA Section 108(b).

Statement of Need:

Section 108(b) of CERCLA directs the EPA to develop requirements that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances at their sites. Section 108(b)(1) required the EPA to publish a Priority Notice identifying a class of industry for which it would first develop requirements.

Summary of the Legal Basis:

On March 11, 2008, Sierra Club, Great Basin Resource Watch, Amigos Bravos, and Idaho Conservation League filed a suit in federal district court against the EPA Administrator for failure to take timely action and develop regulations under CERCLA 108(b) in federal district court. In response, the EPA published a Priority Notice on July 28, 2009 identifying the hardrock mining industry as the first industry to develop requirements under CERCLA 108(b). Furthermore, on January 6, 2010, the EPA published an Advanced Notice of Proposed Rulemaking, which identified three additional classes of industries for possible CERCLA 108(b) requirements. The three so-called additional classes include the Electric Power Generation, Transmission, and Distribution Industry; the Petroleum and Coal Products Manufacturing Industry; and the Chemical Manufacturing Industry.

In August 2014, dissatisfied with the pace of EPA’s progress in developing the proposed CERCLA section 108(b) rule for hardrock mining, the same groups, joined by Earthworks and Communities for a Better Environment, filed a new lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit, petitioning for a writ of mandamus requiring issuance of CERCLA section 108(b) financial assurance rules. After oral argument, the petitioners and the EPA entered into discussions on a rulemaking schedule and reached an agreement. The agreement included, among other requirements, that the EPA sign by December 1, 2016, a determination on whether the EPA will proceed with rulemakings for classes of facilities in any or all of the other industries. On January 11, 2017, the EPA published a Notice of Intent to Proceed with Rulemakings for all three industries. The Joint Motion for an Order on Consent, granted by the court on January 29, 2016, included an agreed to schedule for the three rulemakings.

Alternatives:

Based on the statutory interpretation described above, the EPA developed an analytical approach to determine whether the current risk within the Electric Power Generation, Transmission and Distribution Industry (the first of the three additional classes) rises to a level which warrants imposition of financial responsibility requirements under CERCLA section 108(b).

As a result of these analyses, the EPA has reached the conclusion that the degree and duration of risk posed by the Electric Power Generation, Transmission and Distribution industry does not warrant financial responsibility requirements under CERCLA section 108(b), and thus proposed to not issue such requirements.

Anticipated Costs and Benefits:

Since the proposed action establishes no new regulatory requirements, it neither imposes incremental costs nor provides incremental environmental protection benefits.

Risks:

The proposed action establishes no new regulatory requirements, therefore, EPA anticipates no changes in risk as a result of this action.