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Superfund

Proposed Action: Financial Responsibility Requirements Under CERCLA Section 108(b) For Classes of Facilities in the Electric Power Industry

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Rule Summary

On July 2, 2019, EPA Administrator Andrew Wheeler signed a proposed rule to not impose financial responsibility requirements for Electric Power Generation, Transmission, and Distribution facilities (electric power industry).

EPA has found that the degree and duration of risk posed by the electric power industry does not warrant financial responsibility requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund), as modern industry practices and existing federal and state regulations are effective at preventing risk. The proposal is based on EPA’s interpretation of the statute and its analysis of the record developed for the proposed rulemaking, both of which are described in the Federal Register notice.

As required by CERCLA Section 108(b), the proposal assesses the need for financial responsibility requirements for the electric power industry consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.

EPA is seeking input on these proposed changes in a 60-day public comment period, which is open through September 27, 2019.

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Rule History

Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund, provides EPA certain regulatory authorities concerning financial responsibility requirements. It addresses the promulgation of regulations that require classes of facilities to 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.

In a 2010 Advance Notice of Proposed Rulemaking published in the Federal Register, EPA identified classes of facilities in the electric power generation, transmission, and distribution industry (electric power industry); the chemical manufacturing industry; and the petroleum and coal products manufacturing industry for the possible development of CERCLA Section 108(b) financial responsibility requirements.

In December 2016, EPA published a notice describing its plan to consider financial requirements under CERCLA for the electric power industry; the chemical manufacturing industry; and the petroleum and coal products manufacturing industry. The notice explains that EPA intends to move forward with the regulatory process, which will determine, what, if any, financial responsibility requirements are necessary for these industries.

EPA is under a court-ordered deadline to take final action on the first proposal, which is for the electric power industry, by December 2, 2020. The Agency is also working toward court-ordered deadlines for rulemakings addressing CERCLA 108(b) financial responsibility for two additional industries: Chemical Manufacturing and Petroleum and Coal Products Manufacturing.

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Additional Resources

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