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Superfund Financial Responsibility

Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) gives EPA the authority to require that classes of facilities establish and maintain evidence of financial responsibility to cover the costs associated with releases or threatened releases of hazardous substances from their facilities.

In July 2009, EPA identified certain hardrock mining facilities as the first group of facilities for which EPA would consider development of financial responsibility requirements under CERCLA section 108(b).

In a 2010 Advance Notice of Proposed Rulemaking published in the Federal Register, EPA identified three additional  classes of facilities for possible development of CERCLA Section 108(b) financial responsibility requirements: those in the Electric Power Generation, Transmission, and Distribution industry; the Petroleum and Coal Products Manufacturing industry; and the Chemical Manufacturing industry.

In January 2017, EPA published a notice describing its plan to consider financial responsibility requirements under CERCLA for these three industries.

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The Hardrock Mining Industry

On December 1, 2017, EPA announced a final rule reflecting the decision not to issue final regulations for financial responsibility requirements for hardrock mining facilities. After careful analysis of public comments, the statutory authority, and the record for this rulemaking, EPA concluded the degree and duration of risk associated with the modern production, transportation, treatment, storage or disposal of hazardous substances by the Hardrock Mining industry does not present a level of risk of taxpayer funded response actions that warrant imposition of financial responsibility requirements under CERCLA for this sector. This final rule reflects EPA’s interpretation of the statute, EPA’s evaluation of the record for the proposed rule, and the approximately 11,000 public comments received by EPA on this rulemaking.

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Financial Responsibility Requirements Under CERCLA Section 108(b) for the  Electric Power Generation, Transmission, and Distribution Industry; the Petroleum and Coal Products Manufacturing Industry; and the Chemical Manufacturing Industry

On November 24, 2020, the EPA Administrator signed a consolidated notice which presents EPA’s final rules to not impose financial responsibility requirements for facilities in the following classes:

  • Electric Power Generation, Transmission, and Distribution industry.
  • Petroleum and Coal Products Manufacturing industry.
  • Chemical Manufacturing industry.

EPA has found that the degree and duration of risk to the Superfund posed by the electric power generation, transmission and distribution industry; petroleum and coal products manufacturing industry; and chemical manufacturing industry does not warrant financial responsibility requirements, based on EPA’s interpretation of the statute and its analysis of the record developed for the proposed rulemakings for all three of these industries, which are described in the Federal Register notice.

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