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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, primarily includes and not coal mines; and electric power generation, transmission, and distribution industries as those for which 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 rulemaking will focus on the petroleum and coal products manufacturing industry.

Statement of Need:

Section 108(b) of CERCLA directs 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 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 section 108(b) in federal district court. In response, EPA published a priority notice on July 28, 2009 identifying the hardrock mining industry as the first industry to develop requirements under CERCLA section 108(b). Furthermore, on January 6, 2010, EPA published an Advanced Notice of Proposed Rulemaking, which identified three additional classes of industries for possible CERCLA section 108(b) requirements. The three additional classes include the Electric Power Generation, Transmission, and Distribution; Petroleum and Coal Products Manufacturing Industry; and the Chemical Manufacturing Industries. 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 EPA entered into discussions on a rulemaking schedule and reached an agreement. The agreement included, among other requirements, that EPA sign by December 1, 2016, a determination on whether EPA will proceed with rulemakings for classes of facilities in any or all of the other industries. On January 11, 2017, 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 upon schedule for the three rulemakings.

Alternatives:

Unknown at this time.

Anticipated Costs and Benefits:

The EPA will provide estimates of costs and benefits resulting from this proposed rule, as appropriate, once they are fully developed and have received Agency clearance.

Risks:

Unknown at this time.