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Superfund

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 and mineral processing 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 other classes of facilities for possible development of CERCLA Section 108(b) financial responsibility requirements: those in the Electric Power Generation, Transmission, and Distribution industry (electric power industry); the Petroleum and Coal Products Manufacturing industry; and the Chemical Manufacturing industry.

In December 2016, EPA described its plan to consider financial requirements under CERCLA for these three industries.

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The Hardrock Mining and Mineral Processing Industry

On December 1, 2017 EPA announced its decision not to issue final regulations for financial responsibility requirements for the hardrock mining and mineral processing 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 determination 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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The Electric Power Industry

On July 2, 2019, EPA Administrator Andrew Wheeler signed a proposed rule to not impose financial responsibility requirements for facilities in the electric power industry. EPA has found that the degree and duration of risk to the Superfund posed by the electric power industry does not warrant financial responsibility requirements, as modern industry practices and existing federal and state regulations are effective at preventing risk.

The comment period is closed. EPA accepted comments on the proposal in a 60-day public comment period, which was open through September 27, 2019. EPA is under a court-ordered deadline to issue the final rule by December 2, 2020.


The Petroleum and Coal Products Manufacturing Industry

On December 4, 2019, EPA Administrator Andrew Wheeler signed a proposed rule to not impose financial responsibility requirements for facilities in the petroleum and coal products manufacturing industry. EPA has found that the degree and duration of risk to the Superfund posed by this industry does not warrant financial responsibility requirements, as modern industry practices and existing federal and state regulations are effective at preventing risk.

The comment period is closed. EPA accepted comments on the proposal in a 60-day public comment period, which was open through February 21, 2020. EPA is under a court-ordered deadline to issue the final rule by December 1, 2021.


The Chemical Manufacturing Industry

On February 10, 2020, EPA Administrator Andrew Wheeler signed a proposed rule to not impose financial responsibility requirements for facilities in the chemical manufacturing industry. EPA has found that the degree and duration of risk to the Superfund posed by this industry does not warrant financial responsibility requirements, as modern industry practices and existing federal and state regulations are effective at preventing risk.

 Comment Period Extended

EPA is extending the comment period on the proposal to not impose financial responsibility requirements for facilities in the chemical manufacturing industry. The notice announcing this proposal was published on February 21, 2020, and the public comment period was scheduled to end on April 21, 2020. However, EPA received requests for additional time to develop and submit comments on the proposal. In response to the request for additional time, EPA is extending the comment period through May 6, 2020.

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