Federal Register, Volume 85 Issue 232 (Wednesday, December 2, 2020)

[Federal Register Volume 85, Number 232 (Wednesday, December 2, 2020)]
[Rules and Regulations]
[Pages 77384-77404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26379]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 320

[EPA-HQ-OLEM-2019-0085, EPA-HQ-OLEM-2019-0086, EPA-HQ-OLEM-2019-0087,
FRL-10017-87-OLEM]
RIN 2050-AH03

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final actions.

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SUMMARY: EPA (or the Agency) is finalizing its proposed decisions to
not impose financial responsibility requirements under section 108(b)
of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) for facilities in three industry sectors: The
electric power generation, transmission, and distribution industry,
pursuant to EPA's proposal of July 29, 2019; the petroleum and coal
products manufacturing industry, pursuant to EPA's proposal of December
23, 2019; and the chemical manufacturing industry, pursuant to EPA's
proposal of February 21, 2020. Today's final rulemakings are based on
the individual administrative records for each of the three proposed
rulemakings, supported by additional analysis conducted in
consideration of comments received in the public comment period for
each proposed rule. In particular, after examining the existing
environmental protections and regulations in place today and analyzing
the Superfund program's experience cleaning up sites in each industry,
the Agency concluded that facilities in these three industries
operating under a modern regulatory framework do not present a level of
risk that warrants financial responsibility requirements under CERCLA
section 108(b). Today's final rulemakings are based on the record for
these rulemakings, and do not affect EPA's authority to take a response
or enforcement action under CERCLA with respect to any particular
facility or industry, and do not affect the Agency's authorities that
may apply to particular facilities under other environmental statutes.
This combined final rulemaking comprises the Agency's final actions on
each of the three proposed rules.

DATES: These final actions are effective on January 4, 2021.

ADDRESSES: EPA has established a docket for these actions under Docket
ID No. EPA-HQ-OLEM-2019-0085, EPA-HQ-OLEM-2019-0086, and EPA-HQ-OLEM-
2019-0087. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available
electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For more information on this document,
contact Charlotte Mooney, U.S. Environmental Protection Agency, Office
of Resource Conservation and Recovery, Mail Code 5303P, 1200
Pennsylvania Ave. NW, Washington, DC 20460; telephone (703) 308-7025 or
(email) mooney.charlotte@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
A. Overview
B. Purpose of This Action
II. Authority
III. Background Information
A. Overview of Section 108(b) and Other CERCLA Provisions
B. History of Section 108(b) Rulemakings
1. 2009 Identification of Priority Classes of Facilities for
Development of CERCLA section 108(b) Financial Responsibility
Requirements
2. Additional Classes 2010 Advance Notice of Proposed Rulemaking
3. 2014 Petition for Writ of Mandamus
4. Additional Classes 2017 Notice of Intent To Proceed With
Rulemakings
5. The Hardrock Mining Proposal and Final Rulemaking
a. Proposed Rule
b. Decision to Not Impose Requirements
c. Litigation and D.C. Circuit Decision
IV. Statutory Interpretation
V. Electric Power Generation, Transmission and Distribution Industry
A. Proposed Rule
B. Summary of Key Comments Received and Agency Response
1. Comments in Support of the Proposal
2. Comments Opposed to the Proposal

[[Page 77385]]

C. Decision to Not Impose Requirements
VI. Petroleum and Coal Products Manufacturing Industry
A. Proposed Rule
B. Summary of Key Comments Received and Agency Response
1. Comments in Support of the Proposal
2. Comments Opposed to the Proposal
C. Decision to Not Impose Requirements
VII. Chemical Manufacturing Industry
A. Proposed Rule
B. Summary of Key Comments Received and Agency Response
1. Comments in Support of the Proposal
2. Comments Opposed to the Proposal
C. Decision to Not Impose Requirements
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act

I. Executive Summary

A. Overview

Section 108(b) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) directs EPA to develop
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. The statute further requires that the level of financial
responsibility be established to protect against the level of risk that
the President, in his/her discretion, believes is appropriate, based on
factors including the payment experience of the Hazardous Substance
Superfund (Fund). The President's authority under this section for non-
transportation-related facilities has been delegated to the EPA
Administrator.
On January 6, 2010, EPA published an Advance Notice of Proposed
Rulemaking (ANPRM),\1\ in which the Agency identified three industrial
sectors, to follow the hardrock mining industry, for the development,
as necessary, of proposed section 108(b) regulations. Those industries
identified were the electric power generation, transmission, and
distribution; petroleum and coal products manufacturing; and chemical
manufacturing industries. In August 2014, the Idaho Conservation
League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource
Watch, and Communities for a Better Environment filed a lawsuit in the
U.S. Court of Appeals for the District of Columbia Circuit, seeking a
writ of mandamus requiring issuance of CERCLA section 108(b) financial
responsibility rules for the hardrock mining industry, and for the
three additional industries identified in the 2010 ANPRM. Following
oral arguments, EPA and the petitioners submitted a joint motion for an
order on consent, filed on August 31, 2015, which included a schedule
for further administrative proceedings under CERCLA section 108(b). The
court order granting the motion was issued on January 29, 2016.
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\1\ 75 FR 816 (Jan. 6, 2010).
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In addition to requiring EPA to publish a proposed rule on hardrock
mining financial responsibility requirements by December 1, 2016, the
January 2016 order required EPA to sign for publication in the Federal
Register a determination whether EPA will issue a notice of proposed
rulemaking on financial responsibility requirements under section
108(b) in the electric power generation, transmission, and distribution
industry; the petroleum and coal products manufacturing industry; and
the chemical manufacturing industry by December 1, 2016. EPA signed the
required determination on December 1, 2016; the document was published
on January 11, 2017 \2\ and announced EPA's intent to proceed with
rulemakings for all three of the additional classes.
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\2\ 82 FR 3512 (Jan. 11, 2017).
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B. Purpose of This Action

The purpose of today's action, containing three final rulemakings,
is to finalize the Agency's proposed rulemaking decisions that
financial responsibility requirements under CERCLA section 108(b) are
not warranted for facilities in the electric power generation,
transmission, and distribution industry; the petroleum and coal
products manufacturing industry; and the chemical manufacturing
industry. EPA has reached these conclusions based on the analyses
described in the proposed rules for (1) the electric power generation,
transmission, and distribution industry proposal (84 FR 36535), (2) the
petroleum and coal products manufacturing industry proposal (84 FR
74067), and (3) the chemical manufacturing industry proposal (85 FR
10128); consideration of comments on those proposed rules; and
additional analyses based on those comments. The evidence examined in
each of these analyses has led EPA to the finding that the degree and
duration of risk posed by each of these three industries does not
warrant financial responsibility requirements under CERCLA section
108(b).
EPA is publishing this document, containing three final
rulemakings, to comply with its obligations under CERCLA section 108(b)
to determine whether requirements that classes of facilities establish
and maintain evidence of financial responsibility are appropriate, and
to satisfy the Agency's obligations under the Mandamus Order issued on
January 29, 2016. See In re: Idaho Conservation League, et al., No. 14-
1149. A copy of the Mandamus Order can be found in the docket for this
document.
These final rulemakings are not applicable to and do not affect,
limit, or restrict EPA's authority to take a response action or
enforcement action under CERCLA at any facility in the electric power
generation, transmission, and distribution industry; the petroleum and
coal products manufacturing industry; or the chemical manufacturing
industry, including any requirements for financial responsibility as
part of such response action. The set of facts in the rulemaking record
related to the individual facilities discussed in the proposed and
final rulemakings support the Agency's decision not to issue financial
responsibility requirements under section 108(b) for these industries
as a class. At the same time, a different set of facts could
demonstrate a need for a CERCLA response action at an individual site.
These rulemakings do not affect the Agency's authority under other
authorities that may apply to individual facilities, such as the Clean
Air Act (CAA), the Clean Water Act (CWA), the Resource Conservation and
Recovery Act (RCRA), and the Toxic Substances Control Act (TSCA).
This document is structured to present the Agency's final
rulemakings for the electric power generation, transmission, and
distribution industry; the petroleum and coal products manufacturing
industry; and the chemical manufacturing industry. As

[[Page 77386]]

the three rulemakings contained in this document share common features,
such as statutory authority and regulatory history, background
information which is consistent across the three industries and
intended to be applied to all industries is presented first in a
unified manner. Additionally, certain executive orders that relate or
may relate to these rules are discussed in unison in the last section
of this document. Discussion of public comments received on the
proposed rules for each industry and industry specific analyses, which
were relied upon to reach unique final rulemaking decisions, is
presented separately. The Agency's conclusions for each industry were
reached based on the specific consideration of risk for each industry.

II. Authority

EPA is issuing this document, containing three final rulemakings,
under the authority of sections 101, 104, 108 and 115 of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. sections 9601, 9604, 9608 and 9615, and
Executive Order 12580 (52 FR 2923, January 29, 1987).

III. Background Information

A. Overview of Section 108(b) and Other CERCLA Provisions

CERCLA, as amended by the Superfund Amendments and Reauthorization
Act of 1986 (SARA), establishes a comprehensive environmental response
and cleanup program. Generally, CERCLA authorizes EPA \3\ to undertake
removal or remedial actions in response to any release or threatened
release into the environment of ``hazardous substances'' or, in some
circumstances, any other ``pollutant or contaminant.'' As defined in
CERCLA section 101, removal actions include actions to ``prevent,
minimize, or mitigate damage to the public health or welfare or to the
environment,'' and remedial actions are ``actions consistent with [a]
permanent remedy[.]'' Remedial and removal actions are jointly referred
to as ``response actions.'' CERCLA section 111 authorizes the use of
the Hazardous Substance Superfund (Fund) established under title 26,
United States Code, to finance response actions undertaken by EPA. In
addition, CERCLA section 106 gives EPA \4\ authority to compel action
by liable parties in response to a release or threatened release of a
hazardous substance that may pose an ``imminent and substantial
endangerment'' to public health or welfare or the environment.
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\3\ Although Congress conferred the authority for administering
CERCLA on the President, most of that authority has since been
delegated to EPA. See Exec. Order No. 12580, 52 FR 2923 (Jan. 23,
1987). The executive order also delegates to other Federal agencies
specified CERCLA response authorities at certain facilities under
those agencies' ``jurisdiction, custody or control.''
\4\ CERCLA section 106 authority is also delegated to other
Federal agencies in certain circumstances. See Exec. Order No.
13016, 61 FR 45871 (Aug. 28, 1996).
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The authorities established by CERCLA work alongside other EPA
statutes which created programs designed to control releases of
contaminants, such as the CAA, the CWA, RCRA, and TSCA. Features of the
RCRA program, in particular, complement objectives of CERCLA and help
to prevent the types of releases that might become CERCLA sites.
Pursuant to RCRA, as amended by HSWA (Hazardous and Solid Waste
Amendments), statutory and regulatory requirements, RCRA established a
system of cradle-to-grave management of hazardous wastes. Implemented
by EPA and authorized state RCRA programs, RCRA permitting requirements
for hazardous waste treatment, storage, and disposal (TSD) facilities
detail technical standards, set reporting requirements, and include a
requirement to establish financial assurance. Where releases do occur,
the corrective action program established by RCRA provides a mechanism
to clean up contamination as well as authority to require financial
assurance. Under RCRA's corrective action program, EPA requires owners
and operators of TSDs to investigate and clean up releases of hazardous
waste and hazardous constituents from any solid waste management units,
thus reducing the likelihood that these facilities would require
cleanup under Superfund. RCRA's role was considered so relevant that
financial assurance requirements established under RCRA Subtitle C
(RCRA Sec. Sec. 3001-3023) were referenced in Senate Report on
legislation that was later enacted as CERCLA section 108(b). That
language stated ``[I]t is not the intention of the Committee that
operators of facilities covered by section 3004(6) of that Act be
subject to two financial responsibility requirements for the same
dangers.'' \5\
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\5\ S. Rept. 96-848 (2d Sess, 96th Cong.), at 92.
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CERCLA section 107 imposes liability for response costs on a
variety of parties, including certain past owners and operators,
current owners and operators, and certain generators, arrangers, and
transporters of hazardous substances. Such parties are liable for
certain costs and damages, including all costs of removal or remedial
action incurred by the Federal Government, so long as the costs
incurred are ``not inconsistent with the national contingency plan''
(the National Oil and Hazardous Substances Pollution Contingency Plan
or NCP).\6\ Section 107 also imposes liability for natural resource
damages and health assessment costs.\7\
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\6\ CERCLA section 107(a)(4)(A).
\7\ CERCLA section 107(a)(4)(C)-(D).
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Section 108(b) establishes authority to require owners and
operators of classes of facilities to establish and maintain evidence
of financial responsibility. Section 108(b)(1) directs EPA to develop
regulations requiring owners and operators of facilities to establish
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 turn,
section 108(b)(2) directs that the level of financial responsibility
shall be initially established, and, when necessary, adjusted to
protect against the level of risk that EPA in its discretion believes
is appropriate based on the payment experience of the Fund, commercial
insurers, court settlements and judgments, and voluntary claims
satisfaction. Section 108(b)(2) does not, however, preclude EPA from
considering other factors in addition to those specifically listed. The
statute prohibited promulgation of such regulations before December
1985.
In addition, Section 108(b)(1) provides for publication within
three years of the date of enactment of CERCLA a ``priority notice''
identifying the classes of facilities for which EPA would first develop
financial responsibility requirements. It also directs that priority in
the development of requirements shall be accorded to those classes of
facilities, owners, and operators that present the highest level of
risk of injury.

B. History of Section 108(b) Rulemakings

1. 2009 Identification of Priority Classes of Facilities for
Development of CERCLA Section 108(b) Financial Responsibility
Requirements
On March 11, 2008, Sierra Club, Great Basin Resource Watch, Amigos
Bravos, and Idaho Conservation League filed suit in the U.S. District
Court for the Northern District of California against then EPA
Administrator Stephen Johnson and then Secretary of the U.S. Department
of Transportation Mary E.

[[Page 77387]]

Peters. Sierra Club, et al. v. Johnson, No. 08-01409 (N. D. Cal.). On
February 25, 2009, that court ordered EPA to publish the Priority
Notice required by CERCLA section 108(b)(1) later that year. The 2009
Priority Notice and supporting documentation presented the Agency's
conclusion that hardrock mining facilities would be the first class of
facilities for which EPA would issue CERCLA section 108(b)
requirements.\8\ Additionally, the 2009 Priority Notice stated EPA's
view that classes of facilities outside of the hardrock mining industry
may warrant the development of financial responsibility
requirements.\9\ The Agency committed to gather and analyze data on
additional classes of facilities and to consider them for possible
regulation. The court later dismissed the remaining claims.
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\8\ 74 FR 37214 (July 28, 2009).
\9\ Id. at 37218.
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2. Additional Classes 2010 Advance Notice of Proposed Rulemaking
On January 6, 2010, EPA published an ANPRM,\10\ in which the Agency
identified three additional industrial sectors for the development, as
necessary, of proposed section 108(b) regulations. To develop the list
of additional classes for the 2010 ANPRM, EPA used information from the
CERCLA National Priorities List (NPL) and analyzed data from the
Resource Conservation and Recovery Act (RCRA) Biennial Report and the
Toxics Release Inventory created under the Emergency Planning and
Community Right-to-Know Act (EPCRA).
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\10\ 75 FR 816 (Jan. 6, 2010).
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3. 2014 Petition for Writ of Mandamus
In August 2014, the Idaho Conservation League, Earthworks, Sierra
Club, Amigos Bravos, Great Basin Resource Watch, and Communities for a
Better Environment filed a new lawsuit in the U.S. Court of Appeals for
the District of Columbia Circuit, seeking a writ of mandamus requiring
issuance of CERCLA section 108(b) financial assurance rules for the
hardrock mining industry and for three other industries: Electric power
generation, transmission, and distribution; petroleum and coal products
manufacturing; and chemical manufacturing. Thirteen companies and
organizations representing business interests in the hardrock mining
and other sectors sought to intervene in the case.
Following oral argument, the court issued an order in May 2015
requiring the parties to submit, among other things, supplemental
submissions addressing a schedule for further administrative
proceedings under CERCLA section 108(b). Petitioners and EPA requested
an order from the court with a schedule calling for the Agency to sign
a proposed rule for the hardrock mining industry by December 1, 2016,
and a final rulemaking by December 1, 2017. The joint motion also
included a requested schedule for the additional industry classes,
which called for EPA to sign by December 1, 2016, a determination on
whether EPA would issue a notice of proposed rulemaking for classes of
facilities in any or all of the other industries, and a schedule for
proposed and final rulemakings for the additional industry classes as
follows:

EPA will sign for publication in the Federal Register a notice
of proposed rulemaking in the first additional industry by July 2,
2019, and sign for publication in the Federal Register a notice of
its final action by December 2, 2020.
EPA will sign for publication in the Federal Register a notice
of proposed rulemaking in the second additional industry by December
4, 2019, and sign for publication in the Federal Register a notice
of its final action by December 1, 2021.
EPA will sign for publication in the Federal Register a notice
of proposed rulemaking in the third additional industry by December
1, 2022, and sign for publication in the Federal Register a notice
of its final action by December 4, 2024.\11\
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\11\ In re Idaho Conservation League, No. 14-1149 (D.C. Cir.
Jan. 29, 2016) (order granting joint motion).

While the joint motion identified the three additional industries
as the chemical manufacturing industry, the petroleum and coal products
manufacturing industry, and the electric power generation, transmission
and distribution industry, and set a rulemaking schedule, the motion
did not indicate which industry would be the first, second or third.
The joint motion specified that it did not alter the Agency's
discretion as provided by CERCLA and administrative law.\12\
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\12\ See Joint Motion at 6 (``Nothing in this Joint Motion
should be construed to limit or modify the discretion accorded EPA
by CERCLA or the general principles of administrative law.'').
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On January 29, 2016, the court granted the joint motion and issued
an order that mirrored the submitted schedule in substance. The order
did not mandate any specific outcome of the rulemakings.\13\ The Agency
has met the deadlines for all three proposed rulemakings, and today's
document meets the requirement for announcing final actions on all
three additional industry classes.
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\13\ In granting the Joint Motion, the court expressly stated
that its order ``merely requires that EPA conduct a rulemaking and
then decide whether to promulgate a new rule--the content of which
is not in any way dictated by the [order].'' In re Idaho
Conservation League, at 17 (quoting Defenders of Wildlife v.
Perciasepe, 714 F.3d 1317, 1324 (D.C. Cir. 2013)).
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4. Additional Classes 2017 Notice of Intent To Proceed With Rulemakings
Consistent with the January 2016 court order, EPA signed on
December 1, 2016, a determination regarding rulemakings for the
additional classes--a Notice of Intent to Proceed with Rulemakings for
all three of the additional industry classes. The document was
published in the Federal Register on January 11, 2017.\14\
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\14\ 82 FR 3512 (Jan. 11, 2017).
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The document formally announced EPA's intention to move forward
with the regulatory process and to publish a notice of proposed
rulemaking for classes of facilities within the three industries
identified in the 2010 ANPRM. The announcement in the document was not
a determination that requirements were necessary for any or all of the
classes of facilities within the three industries, or that EPA would
propose such requirements. In addition, the document gave an overview
of some of the comments received on the 2010 ANPRM and initial
responses to those comments. The comments on the ANPRM which
specifically addressed the need for CERCLA section 108(b) requirements
for the three additional classes fell into four categories: (1) Other
laws with which the industry complies that obviate the need for CERCLA
section 108(b) regulation; (2) the sources of data that EPA used to
select the industries; (3) past versus current practices within each
industry; and (4) the overall need for financial responsibility for
each industry. In discussing the ANPRM comments in the 2017 document,
the Agency stated its intent to use other, more industry-specific and
more current sources of data to identify risk; to consider site factors
that reduce risks, including those that result from compliance with
other regulatory requirements; and to develop a regulatory proposal for
each rulemaking.
At the time of the 2017 document, EPA had not identified sufficient
evidence to determine that the rulemaking was not warranted, nor had
EPA identified sufficient evidence to establish CERCLA section 108(b)
requirements. The document described a process to gather and analyze
additional information to support the Agency's ultimate decision,
including further evaluation of the classes of facilities within the
three industry sectors. The document stated that EPA would decide
whether proposing

[[Page 77388]]

requirements was necessary and, accordingly, that EPA would propose
appropriate requirements or would propose not to impose requirements.
5. The Hardrock Mining Proposal and Final Rulemaking
a. Proposed Rule
On January 11, 2017, EPA proposed requirements in a new 40 CFR part
320 that owners and operators of hardrock mining facilities subject to
the rule demonstrate and maintain financial responsibility as specified
in the proposed rule. The proposed rule identified two goals for
section 108(b) regulations--the goal of providing funds to address
CERCLA liabilities at sites, and the goal of creating incentives for
sound practices that will minimize the likelihood of need for a future
CERCLA response. The proposed rule explained that first, when releases
of hazardous substances occur, or when a threat of release of hazardous
substances must be averted, a Superfund response action may be
necessary. Therefore, the costs of such response actions can fall to
the taxpayer if parties responsible for the release or potential
release of hazardous substances are unable to assume the costs. Second,
the likelihood of a CERCLA response action being needed, as well as the
costs of such a response action, are likely to be higher where
protective management practices were not utilized during facility
operations. The proposed rule discussed information assembled by EPA in
the record for the action, which included information on legacy
practices and legacy contamination, as well as information not related
to risk. Based on that record, EPA had proposed to presume that
hardrock mining facilities as a class present the type of risks that
section 108(b) addresses. The proposed rule then proceeded to establish
a methodology to determine a level of financial responsibility in
accordance with a proposed formula. The formula then allowed
adjustments to the level of those requirements if a facility could
demonstrate site specific conditions that rebut the presumption that
the hardrock mining facilities that would be regulated under the rule
pose a risk. EPA proposed limiting the applicability of the rule to
owners and operators of facilities that are authorized to operate or
should be authorized to operate on the effective date of the rule
(hereinafter referred to as ``current hardrock mining operations'').
The proposed rule relied, in part, on the grounds that these owners and
operators are more likely to further the regulatory goals of section
108(b) requirements than are owners and operators of facilities that
are closed or abandoned. EPA also proposed limiting the applicability
of the rule to current hardrock mining operations because those
facilities are readily identifiable and, since they are ongoing
concerns, they are more likely to be able to obtain the kind of
financial responsibility necessary under the regulation.\15\
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\15\ 82 FR 3388-3512 (January 11, 2017).
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b. Decision To Not Impose Requirements
On February 21, 2018, EPA issued its final section 108(b) rule for
the hardrock mining industry, concluding that it was not appropriate to
establish financial responsibility requirements on this class of
facilities. The Agency stated that despite its focus on currently
operating facilities, the proposed rule relied on a record of releases
of hazardous substances from facilities and payments to respond to such
releases that did not present the same risk profile as the facilities
operating under modern conditions to which the rule would apply. These
modern conditions, the Agency stated, include state and federal
regulatory requirements and financial responsibility requirements that
currently apply to operating facilities. As a result, EPA determined
that the analysis of risk presented in the proposed rule was
inconsistent with the scope of the proposed rule and EPA's intended
approach under the statute. The final rulemaking did not seek to rely
on historical practices, many of which would be illegal under current
environmental laws and regulations, to identify the degree and duration
of risk posed by the facilities that would be subject to financial
responsibility requirements. Instead, in the final rulemaking EPA
considered modern federal and state regulation of hazardous substance
production, transportation, treatment, storage, or disposal at hardrock
mining facilities. EPA concluded the record did not document
significant risks associated with such facilities. Further, the final
rulemaking did not rely on the cost of responding to historic mining
activities and instead reflected the reduction in the risk of federally
financed response actions at modern hardrock mining facilities that
result from modern practices and modern regulation. EPA concluded that
the record demonstrated that, with a few exceptions, EPA had made
minimal Fund expenditures for modern hardrock mining operations. EPA
also engaged in significant discussions with, and received significant
comments from, commercial insurers and other financial instrument
providers. These providers suggested that the availability of financial
responsibility instruments in the form and amount proposed by EPA may
be limited for regulated entities, should EPA require companies to
obtain them. Thus, to the extent that risks remain at current hardrock
mining operations, the information provided by commenters further
convinced EPA that it was not appropriate to establish financial
responsibility requirements on this class of facilities. EPA also
concluded that issuing final financial responsibility requirements was
not necessary to achieve the stated goals of the proposed section
108(b) rules for hardrock mining, namely, the goal to increase the
likelihood that regulated entities will provide funds necessary to
address CERCLA liabilities if and when they arise, and the goal to
create an incentive for sound practices. EPA's economic analysis
showing that the proposed rule would avoid governmental costs of only
$15-$15.5 million a year supported that conclusion. Based on these
estimates, commenters objected that the projected annualized costs to
industry ($111-$171 million) were an order of magnitude higher than the
avoided costs to the government ($15-15.5 million) sought by the
proposed rule. Further, given the fact that federal and state laws,
including potential liability under CERCLA, already created incentives
for sound practices, promulgating additional financial responsibility
regulations for hardrock mining facilities under Section 108(b) also
was not necessary to advance that goal.
c. Litigation and D.C. Circuit Decision
After publication of the final section 108(b) rule for hardrock
mining facilities, Environmental groups timely filed a petition for
review challenging the final rulemaking, asserting that: (1) EPA's
statutory interpretation was incorrect, (2) EPA's decision was
arbitrary and capricious, and (3) the promulgated final action was not
a logical outgrowth of the proposal.\16\ On July 19, 2019, the D.C.
Circuit upheld EPA's regulatory action and denied the petition for
review.\17\
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\16\ Idaho Conservation League, et al. v. EPA, No. 18-1141 (D.C.
Cir., filed May 16, 2018).
\17\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
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With respect to EPA's statutory interpretation of section 108(b),
the court rejected the Petitioners' argument that EPA had
misinterpreted ``risk'' in 108(b) as limited to financial risk. The
court explained that, typically, a word repeated in different parts of
a single

[[Page 77389]]

provision has the same meaning throughout that provision, but it can
have different meanings if the relevant subject-matter or conditions
are different. See, Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1437
(D.C. Cir. 1996). The court noted that while the prioritization clause
of Section 108(b)(1) refers to risk to human health and the
environment, the scope of ``risk'' is ambiguous in the general mandate
of section 108(b)(1) and the amount clause of section 108(b)(2). In
light of the differences among the three clauses, the court held that
EPA reasonably interpreted ``risk'' in the latter two clauses to relate
only to financial risks.\18\
---------------------------------------------------------------------------

\18\ Id. at 502-504.
---------------------------------------------------------------------------

The court also disagreed with the Petitioners' argument that the
mandatory language of section 108(b) required EPA to set financial
responsibility requirements for the hardrock mining industry. While the
court acknowledged that section 108(b) says that EPA ``shall'' set
requirements for certain classes of facilities, the statute gives EPA
discretion to determine which classes of facilities to regulate.\19\
---------------------------------------------------------------------------

\19\ Id. at 504-505.
---------------------------------------------------------------------------

Lastly, the court rejected the Petitioners' argument that EPA had
failed to account adequately for risks to health and the environment.
The court dispensed with this claim, having decided earlier that EPA
had reasonably interpreted ``risk'' in the two relevant clauses of
section 108(b) to relate only to financial risk of Fund
expenditures.\20\
---------------------------------------------------------------------------

\20\ Id. at 505.
---------------------------------------------------------------------------

The court also rejected Petitioners' argument that EPA ignored some
financial risks and relied on faulty economic analysis. The court
concluded that EPA had analyzed the appropriate financial
considerations, and the court found no ``serious flaw'' in EPA's
economic analysis.\21\
---------------------------------------------------------------------------

\21\ Id. at 505-508.
---------------------------------------------------------------------------

IV. Statutory Interpretation

EPA's statutory interpretation, upheld by the D.C. Circuit as
described above, provided the basis for the analytic approach followed
in the hardrock mining final rule and subsequently used in the
proposals being finalized in this document. EPA is reiterating the
statutory interpretation presented in the CERCLA section 108(b)
Hardrock Mining Final Rule, and does not intend to reopen this
interpretation. The analyses relied upon in the rulemakings that are
the subject of today's document were consistent with this statutory
interpretation.
CERCLA section 108(b) provides general instructions on how to
determine what financial responsibility requirements to impose for a
particular class of facility. Section 108(b)(1) directs EPA to develop
regulations requiring owners and operators of facilities to establish
evidence of financial responsibility ``consistent with the degree and
duration of risk associated with the production, transportation,
treatment, storage, or disposal of hazardous substances.'' Section
108(b)(2) directs that the ``level of financial responsibility shall be
initially established and, when necessary, adjusted to protect against
the level of risk'' that EPA ``believes is appropriate based on the
payment experience of the Fund, commercial insurers, courts settlements
and judgments, and voluntary claims satisfaction.'' EPA interprets the
risk to be addressed by financial responsibility under section 108(b)
as the risk of the need for taxpayer-financed response actions. Read
together, the statutory language on determining the degree and duration
of risk and on setting the level of financial responsibility confers a
significant amount of discretion on EPA.
Section 108(b)(1) directs EPA to evaluate risk from a selected
class of facilities, but it does not suggest that a precise calculation
of risk is either necessary or feasible. Although the cost of response
associated with a particular site can be ascertained only once a
response action is required, any financial responsibility requirements
imposed under section 108(b) would be imposed before any such response
action was identified. The statute thus necessarily confers on EPA wide
latitude to determine, in a section 108(b) rulemaking proceeding, what
degree and duration of risk are presented by the identified class.
Section 108(b)(2) directs EPA to establish the level of financial
responsibility that EPA in its discretion believes is appropriate to
protect against the risk. This statutory direction does not specify a
methodology for the evaluation. Rather, this decision is committed to
the discretion of the EPA Administrator. While the statute provides a
list of information sources on which EPA is to base its decision--the
payment experience of the Superfund, commercial insurers, courts
settlements and judgments, and voluntary claims satisfaction--the
statute does not indicate that this list of factors is exclusive, nor
does it specify how the information from these sources is to be used,
such as by indicating how these categories are to be weighted relative
to one another.
EPA believes that sections 108(b)(1) and (b)(2) are sufficiently
interrelated that it is appropriate to evaluate the degree and duration
of risk under subsection (b)(1) by considering the factors enumerated
in subsection (b)(2). EPA therefore concludes that Congress intended
the risk associated with a particular class of facilities to mean the
risk of future Fund-financed cleanup actions in that industry. This
reading is supported by the structure of the statute, as section 108(b)
appears between two provisions, Sections 108(a) and 108(c), related to
cost recovery. Section 108(a), concerning financial assurance
requirements for certain vessels, refers specifically to cleanup costs.
And section 108(c), concerning recovery of costs from guarantors who
provide the financial responsibility instruments, refers specifically
to liability for cleanup costs. EPA thus reads ``risk'' in the general
mandate of section 108(b)(1) and in the amount clause of section
108(b)(2) consistent with its meaning in sections 108(a) and (c); that
is, the risk of Fund-financed cleanup. EPA adopted this interpretation
in assessing the need for financial responsibility requirements under
CERCLA section 108(b) for facilities in the first class of facilities
it evaluated: the hardrock mining industry.\22\ In its opinion deciding
the challenge to the final action for the hardrock mining industry, the
U.S. Court of Appeals for the District of Columbia Circuit held that
EPA's interpretation that the provisions of section 108(b) ``relate
only to ensuring against financial risks associated with cleanup
costs,'' is reasonable and entitled to deference.\23\
---------------------------------------------------------------------------

\22\ 83 FR 7556, 7561-62 (Feb. 21, 2018).
\23\ Idaho Conservation League v. Wheeler, 930 F.3d 494, 504
(D.C. Cir. July 19, 2019).
---------------------------------------------------------------------------

For the additional industry classes, EPA has investigated the
payment history of the Fund, and enforcement settlements and judgments,
to evaluate, in the context of these CERCLA section 108(b) rulemakings,
the risk of a Fund-financed response action at facilities that would be
subject to CERCLA financial responsibility requirements. The statute
also authorizes EPA to consider the existence of federal and state
regulatory requirements, including any financial responsibility
requirements. Section 108(b)(1) directs EPA to promulgate financial
responsibility requirements ``in addition to those under subtitle C of
the Solid Waste Disposal Act and other Federal law.'' According to the
1980 Senate Report on legislation that was later enacted as CERCLA,
Congress considered it appropriate for EPA to

[[Page 77390]]

examine those additional requirements when evaluating the degree and
duration of risk under the language that was later enacted as CERCLA
---------------------------------------------------------------------------
section 108(b):

The bill requires also that facilities maintain evidence of
financial responsibility consistent with the degree and duration of
risks associated with the production, transportation, treatment,
storage, and disposal of hazardous substances. These requirements
are in addition to the financial responsibility requirements
promulgated under the authority of Section 3004(6) of the Solid
Waste Disposal Act. It is not the intention of the Committee that
operators of facilities covered by Section 3004(6) of that Act be
subject to two financial responsibility requirements for the same
dangers.\24\
---------------------------------------------------------------------------

\24\ S. Rept. 96-848 (2d Sess, 96th Cong.), at 92.

While the Senate Report mentions RCRA Section 3004(6) specifically,
it is consistent with congressional intent for EPA to consider other
potentially duplicative federal financial responsibility requirements
when examining the ``degree and duration of risk'' in the context of
CERCLA Section 108(b) to determine whether and what financial
responsibility requirements are appropriate. It is also consistent with
congressional intent for EPA to consider state laws before imposing
additional federal financial responsibility requirements.
Consideration of state laws before developing financial
responsibility regulations is consistent with CERCLA Section 114(d),
which prevents states from imposing financial responsibility
requirements for liability for releases of the same hazardous
substances after a facility is regulated under Section 108 of CERCLA.
Just as Congress intended to prevent states from imposing duplicative
financial assurance requirements after EPA had acted to impose such
requirements under Section 108, it is reasonable to also conclude that
Congress did not mean for EPA to disrupt existing state programs that
are successfully regulating industrial operations to minimize risk,
including the risk of taxpayer liability for response actions under
CERCLA, and that specifically include appropriate financial assurance
requirements under state law. Reviews of both state programs and other
federal programs help to identify whether and at what level there is
current risk that is appropriate to address under CERCLA Section 108.
EPA also believes that, when evaluating whether and at what level
it is appropriate to require evidence of financial responsibility, EPA
should examine information on facilities in the subject universes
operating under modern conditions. In other words, EPA should assess
the types of facilities to which any new financial responsibility
regulations would apply. Financial responsibility requirements under
Section 108(b) would not apply to legacy operations that are no longer
operating. Rather, any requirements would apply to facilities that
follow current industry practices and are subject to the modern
regulatory framework (i.e., the regulations currently in place that
apply to the industry). These modern conditions include federal and
state regulatory requirements and financial responsibility requirements
that currently apply to operating facilities. This reading of Section
108(b) is consistent with statements in the legislative history of the
statute. The 1980 Senate Report states that the legislative language
that became Section 108(b) ``requires those engaged in businesses
involving hazardous substances to maintain evidence of financial
responsibility commensurate with the risk which they present.'' \25\
This approach is also consistent with the analysis that EPA undertook,
in developing its Final Action on Financial Responsibility Requirements
Under CERCLA Section 108(b) for Classes of Facilities in the Hardrock
Mining Industry.\26\ As described above in section III.B.5.c, EPA's
approach was upheld by the U.S. Court of Appeals for the District of
Columbia Circuit.\27\
---------------------------------------------------------------------------

\25\ S. Rept. 96-848 (2d Sess, 96th Cong.), at 92.
\26\ 83 FR 7556 (Feb. 21, 2018).
\27\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
---------------------------------------------------------------------------

This statutory interpretation is also reflected in today's final
actions. Any financial responsibility requirements imposed under
Section 108(b) would apply to currently operating facilities. EPA thus
sought to examine the extent to which hazardous substance management at
currently operating facilities, as three individual classes, continues
to present risk. Moreover, the statutory direction to identify
requirements consistent with identified risks guides EPA's
interpretation that imposition of financial responsibility requirements
under Section 108(b) would not be necessary for currently operating
facilities that present minimal current risk of a Fund-financed
response action. The interpretation in this proposal does not extend to
any site-specific determinations of risk made in the context of
individual CERCLA site responses. Those decisions will continue to be
made in accordance with preexisting procedures.
As the basis for EPA's proposed and final rulemakings, EPA has
examined records of releases of hazardous substances from facilities
operating under a modern regulatory framework and data on the actions
taken and expenditures incurred in response to such releases. The data
collected do not reflect historical practices, many of which would be
illegal under current environmental laws and regulations. Instead, EPA
has considered current federal and state regulation of hazardous
substance production, transportation, treatment, storage, or disposal
applicable to facilities in the electric power generation, transmission
and distribution industry; the petroleum and coal products
manufacturing industry; and the chemical manufacturing industry.

V. Electric Power Generation, Transmission and Distribution Industry

A. Proposed Rule

On July 29, 2019, EPA published a notice of proposed rulemaking
(NPRM) on the first of the three additional industries.\28\ In that
document, the Agency proposed to not impose financial responsibility
requirements for the electric power generation, transmission, and
distribution industry and described the analyses and results that were
used to reach that decision.\29\ The Agency received 27 comments on
this proposed rulemaking. Comments received on the proposal and the
Agency's responses are laid out in the Response to Comments document
found in the docket to this final rulemaking.\30\
---------------------------------------------------------------------------

\28\ 84 FR 36535 (Jul. 29, 2019).
\29\ 84 FR 36535 (July 29, 2019).
\30\ Response to Comments Document: Financial Responsibility
Requirement Under CERCLA 108(b) for Classes of Facilities in the
Electric Power Generation, Transmission, and Generation Industry,
November, 2020.
---------------------------------------------------------------------------

B. Summary of Key Comments Received and Agency Response

Of the 27 comments received on the July 19, 2019 NPRM, 12 were in
support of the Agency's proposal to not impose financial responsibility
requirements for the electric power generation, transmission, and
distribution industry and 15 were opposed.
1. Comments in Support of the Proposal
Seven of the comments the Agency received that supported the
proposed rule were from companies in the electric utility industry. In
addition, supporting comments were received from the Utility Solid
Waste Activities Group, the Superfund Settlements Project, the American
Coal Council, the National Mining Association, and a multi-

[[Page 77391]]

industry comment from the U.S. Chamber of Commerce.
Commenters commended EPA for its consistency in the application of
its analysis and methodology from the hardrock mining final action to
the electric power generation, transmission and distribution industry.
Commenters expressed that EPA had appropriately evaluated the risk of
the industry and agreed that modern voluntary industry practices and
existing federal and state regulations provide an effective framework
for risk minimization. Thus, they found the conclusion that additional
financial responsibility requirements were not warranted to be
reasonable and encouraged the Agency to finalize the decision.
2. Comments Opposed to the Proposal
Twelve of the comments the Agency received that were opposed to the
proposed rule were from private citizens. The commenters were concerned
that the electric power generation, transmission, and distribution
industry should be held accountable for environmental damages that
resulted from their actions. Several commenters mentioned wildfires
that occurred in California in 2018. It should be noted that the
Agency's decision to not impose financial responsibility requirements
under Section 108(b) does not diminish liability under CERCLA, and the
cost of cleanups will continue to be the responsibility of the PRPs,
not the Fund. In addition, comments opposing the proposed rule were
received from Earthjustice, the Human Rights Watch, and the Chickaloon
Village Traditional Council. Earthjustice submitted comments on behalf
of Sierra Club, Earthworks, Environmental Integrity Project, and
Western Organization of Resource Councils.
Many of the comments received on the electric power generation,
transmission and distribution industry proposal were critical of the
Agency's interpretation of the statute and the analyses EPA conducted
to conclude that no CERCLA Section 108(b) financial responsibility
rules are appropriate. The statutory interpretation presented in the
CERCLA Section 108(b) Hardrock Mining Final Rule (described in
Statutory Interpretation section above) continues to be the view of the
Agency, and that interpretation is not reopened here. After
consideration of the critical comments, EPA still concludes that the
analyses conducted and information considered were appropriate,
consistent with CERCLA, and show that risk posed by the electric power
generation, transmission and distribution industry does not warrant
financial responsibility requirements under CERCLA Section 108(b).
As part of its electric power generation, transmission and
distribution industry proposal, EPA systematically evaluated CERCLA
NPL, Superfund Alternative Approach (SAA), and removal sites and Coal
Combustion Residuals (CCR) damage cases in the industry where cleanup
actions and releases occurred. Specifically, EPA developed an analytic
approach that considered cleanup cases to identify risk at currently
operating facilities and where taxpayer funds were expended for
response action. See discussion in the proposed rule \31\ for a
detailed description of the analysis conducted. EPA's review of the
Superfund NPL, SAA, and removal sites associated with the industry, and
CCR damage cases identified as part of the 2015 CCR rule, found that,
overwhelmingly, the industry was operating responsibly within the
current modern regulatory framework. In fact, EPA's analysis determined
that only two facilities in the industry had releases under the modern
regulatory framework that required a Fund-financed response action. As
a matter of due diligence, EPA conducted additional research into
instances of releases or accidents at facilities in the industry cited
in comments on the proposal. This additional research did not identify
any new examples of the Superfund program bearing the costs of a
cleanup. In fact, most of the issues were legacy matters from the 1970s
and 80s, which the owner or operator of the facility addressed. EPA
believes that the small set of federally funded cleanup cases due to
recent contamination does not warrant the imposition of financial
responsibility requirements on the entire electric power generation,
transmission and distribution industry under CERCLA Section 108(b).
---------------------------------------------------------------------------

\31\ 84 FR 36535, 36543-36550 (July 29, 2019).
---------------------------------------------------------------------------

Additionally, as part of its proposal, to understand the modern
regulatory framework applicable to currently operating facilities
within the electric power generation, transmission and distribution
industry, EPA compiled applicable federal and state regulations.\32\
Specifically, EPA looked to regulations that address the types of
releases identified in the cleanup cases. This review also considered
industry voluntary programs that could reduce risk of releases.
Finally, EPA also identified financial responsibility regulations that
apply to facilities in the electric power generation, transmission and
distribution industry,\33\ and compliance and enforcement history for
the relevant regulations.\34\ Based on this review, and after reviewing
the comments received, EPA maintains its preliminary conclusion that
the network of federal and state regulations applicable to the electric
power generation, transmission, and distribution industry creates a
comprehensive framework that applies to prevent releases that could
result in a need for a Fund-financed response action.
---------------------------------------------------------------------------

\32\ Summary Report: Federal and State Environmental Regulations
and Industry Voluntary Programs in Place to Address CERCLA Hazardous
Substances at Facilities in the Electric Power Generation,
Transmission and Distribution Industry, June 2019.
\33\ Review of Existing Financial Responsibility Laws
Potentially Applicable to Classes of Facilities in the Electric
Power Generation, Transmission, and Distribution Industry, June
2019.
\34\ Enforcement, Court Settlements and Judgments in the
Electric Power Generation, Transmission and Distribution Industry,
June 2019.
---------------------------------------------------------------------------

As discussed in the July 29, 2019 proposed rule, EPA had developed
an analytic approach to determine whether the current risk under a
modern regulatory framework within the electric power generation,
transmission and distribution industry rose to a level that warrants
imposition of financial responsibility requirements under CERCLA
Section 108(b).\35\ Earthjustice commented that the term ``modern'' is
not an objective standard, and that it ``will change any time any new
federal or state law is adopted. In effect, under this approach, if a
new law is adopted tomorrow, EPA can use that law as a basis for
ignoring all relevant evidence, without regard to whether the new law
meaningfully addresses the risk of contamination.'' \36\ While the
Agency agrees the term modern can be subjective, it is used in this
case to distinguish the current regulatory landscape versus the one
that existed at the time of the passage of the CERCLA statute.
Acknowledgment of current federal and state laws that specifically
address risks posed by this industry is appropriate to consider in
determining whether there is risk of future Fund expenditures. In
particular, in the proposal, EPA identified the prevalent sources of
risk that were identified in the cleanup cases reviewed. EPA then
evaluated the extent to which activities that contributed to the risk
associated with the production, transportation, treatment, storage, or
disposal of hazardous substances are now regulated. EPA recognized that
substantial advances had been made in the development of manufacturing,
pollution control, and waste

[[Page 77392]]

management practices, as well as the implementation of federal and
state regulatory programs to both prevent and address such releases at
facilities in the electric power generation, transmission, and
distribution industry. This analysis is consistent with the approach
utilized in the Final Action for Facilities in the Hardrock Mining
Industry and upheld by the D.C. Circuit.\37\
---------------------------------------------------------------------------

\35\ 84 FR 36535, 36540 (Jul. 29, 2019).
\36\ EPA-HQ-OLEM-2019-0085-0412.
\37\ Idaho Conservation League v. Wheeler, 930 F.3d 494, (D.C.
Cir. 2019).
---------------------------------------------------------------------------

Earthjustice also raised the point that the existence of federal
and state regulations does not ensure prevention of releases, and that
legacy contamination exists at currently operating facilities. EPA
notes that financial responsibility requirements under Section 108(b)
would not apply to legacy operations that are no longer operating.
Rather, any Section 108(b) requirements would apply to facilities that
follow current industry practices and are subject to the modern
regulatory framework (i.e., the regulations currently in place that
apply to the industry). These modern conditions include federal and
state regulatory requirements and financial responsibility requirements
that currently apply to operating facilities. In contrast to
Earthjustice's point, EPA's analysis found that the efficacy of current
regulations, as well as voluntary industry practices, while difficult
to quantify, have had a demonstrably positive effect in reducing the
number of cleanups that require taxpayer expenditures. This was borne
out in the analyses conducted in the proposed rule, the results of
which indicated that there was no need for further financial
responsibility requirements on this industry. An example of an
important risk reducing requirement, which targets both legacy and
future releases, is the requirement for groundwater monitoring and for
corrective action in the 2015 Coal Combustion Residuals rule, for which
implementation is ongoing.\38\ EPA's 2015 CCR Rule established a first-
ever comprehensive set of minimum requirements for the management and
disposal of coal ash in landfills and surface impoundments. Among the
key requirements included in the rule were structural integrity
criteria for CCR surface impoundments, such as periodic hazard
potential classification assessments, development of an Emergency
Action Plan, periodic structural stability assessments that must
document whether the design, construction, operation and maintenance of
the unit meets certain stability criteria; periodic safety factor
assessments (that must be met or closure will be required); and routine
inspections. The rule also required the installation of groundwater
monitoring wells and an ongoing groundwater monitoring program designed
to detect releases of critical constituents, as well as requirements to
clean up any releases. The combination of these requirements and others
in the rule have substantially mitigated the risks from these
facilities.
---------------------------------------------------------------------------

\38\ Hazardous and Solid Waste Management System; Disposal of
Coal Combustion Residuals From Electric Utilities, 80 FR 21302, Apr.
17, 2015 (``2015 CCR Rule'').
---------------------------------------------------------------------------

The 2015 CCR Rule also established timelines and standards for
closure and post-closure care. Specifically, the rule requires all CCR
units to close in accordance with specified standards and to monitor
and maintain the units for a period of time after closure, including
the groundwater monitoring and corrective action programs. These
criteria help ensure the long-term safety of closed CCR units.
Earthjustice and Human Rights Watch opposed the Agency's reliance
on the Disposal of Coal Combustion Residuals from Electric Utilities
Final Rule to evaluate risk posed by this industry for two reasons--
first, commenters argued, because it has no proven track record, and
secondly, the Agency has had to reconsider, on remand, portions of the
2015 rule as a result of the decision in Utility Solid Waste Activities
Group (USWAG) et al. v. EPA.\39\ In fact, the USWAG decision
invalidated only a limited portion of the 2015 rule. Furthermore, the
Water Infrastructure Improvements for the Nation Act (WIIN Act) of 2016
has enhanced the program by providing EPA additional authorities.
Section 2301 of the WIIN Act amends Section 4005 of RCRA to provide for
state CCR permit programs. As a consequence of the D.C. Circuit's
decision in USWAG, unlined, including clay lined, surface impoundments
must cease receipt of waste and initiate closure, which will further
reduce risks to human health and the environment. To implement this
decision, EPA recently promulgated regulations requiring that unlined
surface impoundments and CCR units that fail the aquifer location
restriction cease receiving waste and initiate closure by April 11,
2021, unless a facility qualifies for one of two narrow extensions.
Further, EPA is working on developing a permit program that will
increase the oversight of these facilities. Finally, EPA is diligently
working with many states to aid in the development of state CCR
permitting programs that are at least as protective as the federal CCR
regulations. Before the 2015 CCR Rule was promulgated, states were not
required to adopt or implement the regulations or to develop a permit
program. It also did not provide a mechanism for EPA to approve a state
permit program to operate ``in lieu of'' the federal regulations. The
WIIN Act provides EPA the authority to review and approve state CCR
permit programs. The Act also allows EPA to develop permits for those
units located on tribal lands and, if given specific appropriations,
EPA will develop a permitting program for those units located in non-
participating states. In addition, EPA must review State permit
programs at least once every 12 years and in certain specific
situations. The WIIN Act also expands the enforcement authorities
available to EPA. EPA may use its information gathering and enforcement
authorities under RCRA Sections 3007 and 3008 to enforce the 2015 CCR
Rule or permit provisions. All of these actions will further ensure
that CCR units are properly regulated to protect human health and the
environment. Moreover, EPA notes that the Electric Power sector has
generated very few Superfund sites even prior to the 2015 CCR rule.
---------------------------------------------------------------------------

\39\ Utility Solid Waste Activities Group (USWAG) et al. v. EPA,
No. 15-1219 (D.C. Cir. Aug. 21, 2018).
---------------------------------------------------------------------------

Earthjustice disagreed with EPA's screening out from its analyses
sites where the response actions were funded by private parties as
opposed to the government. Earthjustice suggested that it is contrary
to CERCLA to focus only on financial risk. In addition, Earthjustice
raised concerns about the magnitude and potential long duration of
cleanups in the industry, in particular at coal ash facilities.
As a primary matter, EPA's approach and the factors the Agency
considered to determine whether or not financial responsibility
requirement were appropriate for the electric power generation,
transmission, and distribution industry is consistent with CERCLA (see
Statutory Interpretation section above). A chief factor was the results
of EPA's cleanup case analysis which involved a systematic examination
of Superfund sites (NPL, removal, SAA) and CCR damage cases. EPA's
analysis, described in detail in section VII of the proposed rule,\40\
showed that facilities in the sector have not historically burdened the
Fund. First, the Agency identified very few NPL sites with pollution
associated with the electric power generation, transmission, and
distribution industry. Of the only five NPL sites associated with the
Electric Power industry

[[Page 77393]]

identified, all were either the product of legacy contamination or had
PRP leads conducting the cleanup. The Agency also reviewed 27 CCR
damage cases and 24 Superfund removal sites associated with the
industry and identified only two removal sites where addressing
pollution from a modern operation required Superfund expenditures. This
minimal historical fund burden is, in part, due to the fact that the
potentially responsible parties (PRPs) led many of the cleanups
identified. For example, all of the NPL sites associated with the
industry were PRP-led as were all of the CCR damage cases for which
cleanup lead information was available. Further supporting this finding
is the fact that when a cleanup is required under Superfund or
corrective action, financial assurance is typically required. Moreover,
as discussed below, EPA conducted additional research into examples of
releases at facilities in the electric power generation, transmission,
and distribution industry identified by commenters. That additional
research did not identify any new examples of the Superfund program
bearing the costs of a cleanup. The limited number of actions within
the sector, combined with its track record of funding cleanups weighs
against the need for regulation under CERCLA Section 108(b).
---------------------------------------------------------------------------

\40\ 84 FR 36535, 36543 (July 29, 2019).
---------------------------------------------------------------------------

The comment also intended to suggest that CERCLA Section 108(b)
financial responsibility could promote rapid cleanup in instances of
pollution. As a primary matter, this is not necessarily the case. EPA
believes any CERCLA Section 108(b) financial responsibility required
for any industry would complement existing Superfund processes by
offering a financial backstop for CERCLA costs and damages (see the
relevant language at 84 FR 3400 included in the hardrock mining
proposal). The financial responsibility would not modify the existing
Superfund enforcement authorities, including those to gather
information, identify responsible parties, effect cleanup (especially
through EPA's enforcement first policy), assess penalties, or provide
for citizen suits. In instances where releases occurred that required a
Superfund cleanup the same Superfund process would occur as does today.
Of note is that the Superfund program protects human health and the
environment regardless of whether or not financial responsibility is in
place. EPA can invoke its enforcement authorities to protect human
health and the environment. For example, EPA can issue a Unilateral
Administrative Order or conduct a removal action to mitigate potential
risks posed by the site conditions. If the Agency has to use fund
resources to conduct a cleanup, EPA can take an enforcement action to
recover its CERCLA costs and replenish government resources. It is thus
not accurate to suggest a lack of CERCLA Section 108(b) financial
responsibility would result in delays of cleanup and therefore an
increased risk to human health and the environment.
Earthjustice took issue with EPA's interpretation of the statute,
stating that EPA's ``interpretation of the statute to focus solely on
the risk of a taxpayer bailout of insolvent companies is contrary to
law, because this is not the purpose of CERCLA.'' \41\ Earthjustice
contends that EPA ignored significant risks to human health and the
environment. The primary example offered by the commenters was risk to
human health and drinking water sources from coal ash. EPA believes
that the site analysis for this rulemaking effectively considered human
health and environmental risk in multiple steps. First, EPA examined
through the Agency's industry practices and environmental
characterization analysis the operational practices and environmental
profile of the electric power generation, transmission, and
distribution industry. This analysis included an examination of the
potentially hazardous materials used in the industry, hazardous wastes
generated by industry processes, the units used to manage wastes at
these sites, how on-site management of these materials can potentially
contribute to releases, and what contaminants might be released by the
industry that could impact human health and the environment. Next, EPA
investigated in what ways the industry is subject to a wide range of
modern federal and state regulatory requirements and enforcement
oversight imposed to address this potential human health and
environment risk. In these analyses, EPA outlined the framework of
modern federal and state regulatory programs to which the industry is
subject,\42\ and also examined compliance and enforcement for the
industry,\43\ which collectively demonstrate how these components work
to address potential risk for modern industry operations. Overall,
EPA's full analytic approach developed for the proposed rule examined
sites with a variety of contaminants and contaminated media. In effect,
the analysis considered the types of human health and environmental
risk the Superfund program was designed to address, and that would be
addressed by any CERCLA Section 108(b) financial responsibility. This
analysis employed by the Agency is consistent with EPA's interpretation
of the statutory language and was upheld by the D.C. Circuit,\44\ which
found that EPA's focus on risk of taxpayer-funded response actions was
reasonable. Specifically, the Court stated in its decision, ``we defer
to the EPA's interpretation that it should set financial responsibility
regulations based on financial risks, not risks to health and the
environment.'' \45\ EPA's analysis based on this interpretation showed
that there is little evidence of the facilities operating under a
modern regulatory framework burdening the Fund.
---------------------------------------------------------------------------

\41\ EPA-HQ-OLEM-2019-0085-0412.
\42\ Summary Report: Federal and State Environmental Regulations
and Industry Voluntary Programs in Place to Address CERCLA Hazardous
Substances at Facilities in the Electric Power Generation,
Transmission and Distribution Sector, June 2019.
\43\ Enforcement, Court Settlements and Judgments in the
Electric Power Generation, Transmission and Distribution Industry,
June 2019.
\44\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
\45\ Id. at 504.
---------------------------------------------------------------------------

An additional related concern of Earthjustice was that EPA's
analysis of the economics of the industry identified risks in certain
subsectors of the electric power generation, transmission, and
distribution industry and thus, the commenter argues, those subsectors
merit regulation under Section 108(b). To further assess these concerns
related to the financial risks posed by the industry, EPA updated its
analysis supporting the Economic Sector Profile originally conducted in
support of the proposed rulemaking. This updated analysis finds the
financial stability of the industry relatively unchanged from the
original report, further suggesting that the economic conditions of the
industry as a whole are not at undue risk.\46\ Numerous commenters also
provided further evidence in response to information presented in the
proposed rule regarding the positive economic standing of the electric
power generation, transmission, and distribution industry. Commenters
attributed the positive economic standing to attributes such as the
industry's critical monopolistic commodity, inherent governmental
nature and oversight, transparent corporate structures, public service
goals, broad adherence to strict accounting standards set forth by the
Governmental Accounting Standards

[[Page 77394]]

Board (GASB), and lower relative costs of securing capital.
---------------------------------------------------------------------------

\46\ Addendum Update to CERCLA 108(b) Economic Sector Profile:
Electric Power Generation, Transmission, and Distribution Industry,
May 2020.
---------------------------------------------------------------------------

Some commenters also pointed more specifically to the market
decline in coal-fired power generation as a source of particular
concern. In both the original Economic Sector Profile and Updated
Addendum, EPA acknowledges that this subsector is in a period of
transition and on weaker standing compared to the industry overall.
However, analyses by the U.S. Energy Information Agency (EIA) forecast
that by 2025, the rate of coal plant retirements will stabilize, with
steady coal-based generation thereafter over the longer term.\47\
Furthermore, characteristics of diversity in terms of organizational
structure, ownership type, and energy portfolios are expected to help
further stabilize this subsector. Thus, while the subsector may
experience a continued decline in capacity and generation levels in the
near term, it is forecasted to stabilize and continue to play a
material role in electricity generation for decades, even as renewable
generation capacity increases significantly. As such, EPA believes
that, as with the industry as a whole, the financial stability of this
subsector similarly negates the need for regulation under CERCLA
Section 108(b).
---------------------------------------------------------------------------

\47\ Annual Energy Outlook 2020 (AEO 2020).
---------------------------------------------------------------------------

Also included in the comments were examples of recent accidents and
releases at facilities in the electric power generation, transmission,
and distribution industry, in particular facilities that manage CCRs.
EPA appreciated the comments and undertook additional due diligence to
examine some of these releases and accidents referenced by the
commenter. While most accidents and releases do not lead to Superfund
responses, Fund expenditures, or CERCLA liability claims, and the
commenters provided no indication a Superfund response resulted from
the incidents in question, EPA acknowledged the possibility that some
of these releases and accidents may have required Superfund actions,
which the Agency may have missed in the analysis conducted as part of
the proposal. As such, EPA examined a selection of the cases referenced
by the commenter to better understand the consequences of these
incidents, to the extent possible.
In the case of the electric power generation, transmission, and
distribution industry proposal, many of the referenced releases were
legacy issues which the 2015 CCR rule was designed to address. EPA did
not conduct further research into these examples. Likewise, EPA did not
conduct further research into accidents and releases referenced by
commenters that were already accounted for in the proposed rule. Only a
small number of facilities with releases identified by commenters may
have represented instances of pollution occurring under a modern
regulatory framework resulting in a taxpayer funded Superfund action
that were not already accounted for by the EPA proposal. EPA examined
these few facilities in greater detail. In all cases, EPA determined
that the contamination was a legacy issue stemming from the 1970s and
1980s. Moreover, the pollution was abated, and the owner or operator
has or is addressing the issue in all of the cases. As such, EPA does
not believe the incidents cited by commenters merit a change in
direction from the original proposal. More information on the incidents
cited by commenters and researched by EPA is provided in the docket in
the spreadsheet titled NAICS 2211 Incident research containing the
information gathered, information sources considered and summary
findings.\48\
---------------------------------------------------------------------------

\48\ See spreadsheet, in docket for this action, titled ``NAICS
2211_Incident research.xlsx''.
---------------------------------------------------------------------------

C. Decision To Not Impose Requirements

Based on the analyses conducted for the July 29, 2019 proposed
rule, described in detail in the background documents for that
document, as well as additional analyses conducted in response to
comments received on that document, the Agency is finalizing the
decision 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). As such, this rulemaking will not impose CERCLA Section 108(b)
financial responsibility requirements for facilities in the electric
power generation, transmission, and distribution industry. EPA did not
receive evidence from any commenter that changed the Agency's
determination from that proposed previously.
Central to this final rulemaking decision is EPA's position that
the analyses conducted for the proposal are consistent with the
statutory language of CERCLA Section 108(b), described in Section IV
above (Statutory Interpretation). EPA is further assured of this
position following the decision by the D.C. Circuit that upheld EPA's
interpretation of the statutory language of CERCLA Section 108(b).\49\
The analyses consistent with this interpretation showed that under the
modern regulatory framework that applies to the electric power
generation, transmission, and distribution industry, little evidence of
burden to the Fund by facilities in this industry exists.
---------------------------------------------------------------------------

\49\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
---------------------------------------------------------------------------

EPA believes that the evaluation of the electric power generation,
transmission and distribution industry conclusively demonstrates, by
the low occurrence of cleanup sites that significantly impact the Fund,
low risk of a Fund-financed response action at current electric power
generation, transmission and distribution operations. The reduction in
risks, relative to when CERCLA was first established, attributable to
the requirements of existing regulatory programs and voluntary
practices combined with reduced costs to the taxpayer--demonstrated by
EPA's cleanup case analysis, existing financial responsibility
requirements, and enforcement actions--has reduced the need for
federally-financed response action at facilities in the electric power
generation, transmission and distribution industry.

VI. Petroleum and Coal Products Manufacturing Industry

A. Proposed Rule

On December 23, 2019, EPA published a notice of proposed rulemaking
(NPRM) on the second of the three additional industries.\50\ In that
document, the Agency proposed to not impose financial responsibility
requirements for the petroleum and coal products manufacturing industry
and described the analyses and results that were used to reach that
decision. The Agency received 10,381 comments on this proposed
rulemaking, of which 10,216 were from a mass mail campaign and 165
comments were unique. Comments received on the proposal and the
Agency's responses are laid out in the Response to Comments document
found in the docket to this final rulemaking.\51\
---------------------------------------------------------------------------

\50\ 84 FR 70467 (Dec. 23, 2019).
\51\ Response to Comments Document: Financial Responsibility
Requirement Under CERCLA 108(b) for Classes of Facilities in the
Petroleum and Coal Products Manufacturing Industry, November, 2020.
---------------------------------------------------------------------------

B. Summary of Key Comments Received and Agency Response

Of the 165 unique comments received on the December 23, 2019 NPRM,
6 were in support of the Agency's proposal to not impose financial

[[Page 77395]]

responsibility requirements for the petroleum and coal products
manufacturing industry and 159 were opposed, which includes 142
comments that were associated with the mass mail campaign and 17 other
unique comments.
1. Comments in Support of the Proposal
The Agency received comments from the American Coke and Coal
Chemicals Institute, the American Fuel and Petrochemical Manufacturers,
the American Petroleum Institute (API), Sun Coke Energy, the Superfund
Settlements Project, and a multi-industry comment from the U.S. Chamber
of Commerce in support of the proposed rule.
Commenters in support of the proposal said that petroleum
refineries are owned by very large and stable companies with superior
economic resources, and that modern regulations adequately mitigate
risks posed by the industry. One commenter stated that ``of all the
petroleum refineries that have closed since 1990, not a single facility
has been added to the NPL that required the expenditure of public
funds.'' Further, they added that ``legacy sites that have been
addressed through Superfund largely operated prior to the
implementation of the modern regulatory system and are not
representative of today's petroleum refinery operations.'' \52\
---------------------------------------------------------------------------

\52\ EPA-HQ-OLEM-2019-0087-0468.
---------------------------------------------------------------------------

In addition, commenters on the petroleum and coal products
manufacturing industry proposal positively cited the July 19, 2019
opinion from the D.C. Circuit, as support for the Agency's final action
to not impose CERCLA Section 108(b) financial responsibility
requirements for facilities in the petroleum and coal products
manufacturing industry.\53\
---------------------------------------------------------------------------

\53\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
---------------------------------------------------------------------------

2. Comments Opposed to the Proposal
Of the 159 comments received that were opposed to the proposed
rule, 158 were from private citizens, including 142 comments that were
associated with the mass mail campaign and 16 other unique comments,
and one was from Earthjustice. The comments from private citizens
concerned holding petroleum and coal products manufacturers accountable
for environmental damages as a result of their actions. Many commenters
were under the belief that the Agency was ``rolling back'' existing
regulations requiring industry accountability. In fact, this rulemaking
does not revoke or reverse any existing regulations. As with the other
industries, the Agency's decision to not impose financial
responsibility requirements under Section 108(b) does not diminish
liability under CERCLA, and the cost of cleanups will continue to be
the responsibility of the PRPs, not the Fund. Earthjustice submitted
comments on behalf of Communities for a Better Environment, Center for
Biological Diversity, Earthworks, Sierra Club, Idaho Conservation
League, Amigos Bravos, Great Basin Resource Watch, and Public Citizen.
Many of the comments received on the petroleum and coal products
manufacturing industry proposal were critical of the Agency's
interpretation of the statute and the analyses EPA conducted to
conclude that no CERCLA Section 108(b) financial responsibility rules
are necessary. The statutory interpretation presented in the CERCLA
Section 108(b) Hardrock Mining Final Rule (described in Statutory
Interpretation section above) continues to be the view of the Agency,
and that interpretation is not reopened here. After consideration of
the critical comments, EPA still concludes that the analyses conducted
and information considered were appropriate, consistent with CERCLA,
and show that risk posed by the petroleum and coal products
manufacturing industry does not warrant financial responsibility
requirements under CERCLA Section 108(b).
As part of its petroleum and coal products manufacturing industry
proposal, EPA systematically evaluated CERCLA NPL, Superfund
Alternative Approach (SAA), and removal sites in the industry where
releases and cleanup actions occurred. Specifically, EPA developed an
analytic approach that considered cleanup cases to identify risk at
currently operating facilities and where taxpayer funds were expended
for response action. See discussion in the proposed rule \54\ for a
detailed description of the analysis conducted. EPA's review of the
Superfund NPL, SAA, and removal sites associated with the industry
found that, overwhelmingly, the industry was practicing responsibly
within the current regulatory framework, with just one site indicating
a significant impact to the Fund while operating under the modern
regulatory framework. EPA described this site in detail in the Removals
Site Analysis background document to the proposal.\55\ EPA believes
that the small set of federally funded cleanup cases due to recent
contamination does not warrant the imposition of costly financial
responsibility requirements on the entire petroleum and coal products
manufacturing industry under CERCLA Section 108(b).
---------------------------------------------------------------------------

\54\ 84 FR 70475-70482.
\55\ Identification and Evaluation of CERCLA 108(b) Petroleum
and Coal Products Manufacturing non-National Priorities List (NPL)
Removal Sites.
---------------------------------------------------------------------------

Additionally, as part of its proposal, to understand the modern
regulatory framework applicable to currently operating facilities
within the petroleum and coal products manufacturing industry, EPA
compiled applicable federal and state regulations.\56\ Specifically,
EPA looked to regulations that address the types of releases identified
in the cleanup cases. This review also considered industry voluntary
programs that could reduce risk of releases. Finally, EPA also
identified financial responsibility regulations that apply to
facilities in the petroleum and coal products manufacturing
industry,\57\ and compliance and enforcement history for the relevant
regulations.\58\ Based on this review, and after reviewing the comments
received, EPA maintains its preliminary conclusion that the network of
federal and state regulations applicable to the petroleum and coal
products manufacturing industry creates a comprehensive framework that
applies to prevent releases that could result in a need for a Fund-
financed response action.
---------------------------------------------------------------------------

\56\ Summary Report: Federal and State Environmental Regulations
and Industry Voluntary Programs in Place to Address CERCLA Hazardous
Substances at Petroleum Refineries and Other Petroleum and Coal
Products Manufacturing Facilities.
\57\ Review of Existing Financial Responsibility Laws
Potentially Applicable to Classes of Facilities in the Petroleum and
Coal Products Manufacturing Industry.
\58\ Enforcement, Court Settlements and Judgments in the
Petroleum and Coal Products Manufacturing Industry.
---------------------------------------------------------------------------

As discussed in the December 23, 2019 proposed rule, EPA had
developed an analytic approach to determine whether the current risk
under a modern regulatory framework within the petroleum and coal
products manufacturing industry rose to a level that warrants
imposition of financial responsibility requirements under CERCLA
Section 108(b).\59\ Earthjustice commented that relying on the term
``modern'' is EPA's ``basis for ignoring significant evidence of
risk.'' \60\ The Agency uses the term modern in this case to
distinguish the current regulatory landscape versus the one that
existed at the time of the passage of the CERCLA statute.
Acknowledgment of

[[Page 77396]]

current federal and state laws that specifically address risks posed by
this industry is appropriate to consider in determining whether there
is risk of future Fund expenditures. In particular, in the proposal,
EPA identified the prevalent sources of risk that were identified in
the cleanup cases reviewed. EPA then evaluated the extent to which
activities that contributed to the risk associated with the production,
transportation, treatment, storage, or disposal of hazardous substances
are now regulated. EPA recognized that substantial advances had been
made in the development of manufacturing, pollution control, and waste
management practices, as well as the implementation of federal and
state regulatory programs to both prevent and address such releases at
facilities in the petroleum and coal products manufacturing industry.
This analysis is consistent with the approach utilized in the Final
Action for Facilities in the Hardrock Mining Industry and upheld by the
D.C. Circuit.\61\
---------------------------------------------------------------------------

\59\ 84 FR 36540 (Jul. 29, 2019).
\60\ EPA-HQ-OLEM-2019-0087-0474.
\61\ Idaho Conservation League v. Wheeler, 930 F.3d 494, (D.C.
Cir. 2019).
---------------------------------------------------------------------------

Earthjustice also raised the point that the existence of federal
and state regulations does not ensure prevention of releases, and that
legacy contamination exists at currently operating facilities. EPA
notes that financial responsibility requirements under Section 108(b)
would not apply to legacy operations that are no longer operating.
Rather, any Section 108(b) requirements would apply to facilities that
follow current industry practices and are subject to the modern
regulatory framework (i.e., the regulations currently in place that
apply to the industry). These modern conditions include federal and
state regulatory requirements and financial responsibility requirements
that currently apply to operating facilities. In contrast to
Earthjustice's point, EPA's analysis found that the efficacy of current
regulations, as well as voluntary industry practices, while difficult
to quantify, have had a demonstrably positive effect in reducing the
number of cleanups that require taxpayer expenditures. This was borne
out in the analyses conducted in the proposed rule, the results of
which indicated that there was no need for further financial
responsibility requirements on this industry.
Earthjustice disagreed with EPA's screening out from its analyses
sites where the response actions were funded by private parties as
opposed to the government. Earthjustice suggested that it is contrary
to CERCLA to focus only on financial risk. In addition, Earthjustice
raised concerns about the magnitude and potential long duration of
cleanups in the industry.
As a primary matter, EPA's approach and the factors the Agency
considered to determine whether or not financial responsibility
requirements were appropriate for the petroleum and coal products
manufacturing industry is consistent with CERCLA (see Statutory
Interpretation section above). A chief factor was the results of EPA's
cleanup case analysis which involved a systematic examination of
Superfund sites (NPL, removal, and SAA). EPA's analysis, described in
detail in section VII of the proposed rule,\62\ showed that facilities
in the sector have not historically burdened the Fund in that the
Agency identified only one site where pollution from a modern operation
required significant Superfund expenditures to address. None of the NPL
sites burdened the Fund with pollution that occurred while operating
under a modern regulatory framework. This is, in part, due to the fact
that the potentially responsible parties (PRPs) led many of the
cleanups identified. For example, 19 of the 34 NPL sites associated
with the industry were PRP led. Further supporting this finding is the
fact that when a cleanup is required under Superfund or corrective
action or RCRA, financial assurance is typically required. Moreover, as
discussed below, EPA conducted additional research into examples of
releases at facilities in the petroleum and coal products manufacturing
industry by commenters. That additional research identified only four
new examples of the Superfund program bearing the costs of a cleanup.
The limited number of actions within the sector, combined with its
track record of funding cleanups weighs against the need for regulation
under CERCLA Section 108(b).
---------------------------------------------------------------------------

\62\ 84 FR 70467, 70475 (Dec. 23, 2019).
---------------------------------------------------------------------------

[[Page 77397]]

human health and environment risk. In these analyses, EPA outlined the
framework of modern federal and state regulatory programs to which the
industry is subject,\64\ and also examined compliance and enforcement
for the industry,\65\ which collectively demonstrate how these
components work to address potential risk for modern industry
operations. Overall, EPA's full analytic approach developed for the
proposed rule examined sites with a variety of contaminants and
contaminated media. In effect, the analysis considered the types of
human health and environmental risk the Superfund program was designed
to address, and that would be addressed by any CERCLA Section 108(b)
financial responsibility. This analysis employed by the Agency is
consistent with EPA's interpretation of the statutory language and was
upheld by the D.C. Circuit,\66\ which found that EPA's focus on risk of
taxpayer-funded response actions was reasonable. Specifically, the
Court stated in its decision, ``we defer to the EPA's interpretation
that it should set financial responsibility regulations based on
financial risks, not risks to health and the environment.'' EPA's
analysis based on this interpretation showed that there is little
evidence of the facilities operating under a modern regulatory
framework burdening the Fund.
---------------------------------------------------------------------------

\63\ Id.
\64\ Summary Report: Federal and State Environmental Regulations
and Industry Voluntary Programs in Place to Address CERCLA Hazardous
Substances at Petroleum Refineries and Other Petroleum and Coal
Products Manufacturing Facilities.
\65\ Enforcement, Court Settlements and Judgments in the
Petroleum and Coal Products Manufacturing Industry.
\66\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
---------------------------------------------------------------------------

Many of the commenters asserted that, too often, companies file for
bankruptcy and avoid financial responsibility for cleaning up harmful
pollution. To further assess these concerns, EPA updated its analysis
supporting the Economic Sector Profile originally conducted in support
of the proposed rulemaking. This update was conducted with data
available concurrent with the close of comment period for the proposed
rule. This updated analysis finds the financial stability of the
industry relatively unchanged from the original report, further
suggesting that the economic conditions of the industry as a whole are
not at undue risk.\67\ In addition, no evidence was identified or
provided by commenters that EPA could use to determine that companies
in this industry were found to have avoided responsibility for cleanup
costs that resulted in CERCLA funds being expended.
---------------------------------------------------------------------------

\67\ Addendum Update to CERCLA 108(b) Economic Sector Profile:
NAICS 324--Petroleum and Coal Products Manufacturing; May 2020.
---------------------------------------------------------------------------

Also included in comments from Earthjustice were examples of recent
accidents and releases at petroleum refineries.\68\ EPA appreciated the
comments and undertook additional due diligence to examine and analyze
some of these releases and accidents referenced by the commenter. While
most accidents and releases do not lead to Superfund responses, Fund
expenditures, or CERCLA liability claims, and the commenters provided
no indication a Superfund response resulted from the incidents in
question, EPA acknowledged that it is possible some of these releases
and accidents may have required Superfund actions which the Agency may
have missed in the analysis conducted as part of the proposal. As such,
EPA examined a selection of the cases referenced by Earthjustice to
better understand the consequences of these incidents, to the extent
possible.
---------------------------------------------------------------------------

\68\ EPA-HQ-OLEM-2019-0087-0474.
---------------------------------------------------------------------------

In the case of the petroleum and coal products manufacturing
industry proposal, the selection criteria were based on whether or not
releases to land or water were indicated, whether or not data were
available, and whether or not the facility was already in the Agency's
record. Many of the referenced releases were in the form of data sets
of compiled releases. In some cases, there was insufficient information
for EPA to identify the underlying data sources or names of specific
facilities and thus EPA was unable to conduct further research into
those incidents. One specific site referenced, the Oklahoma Refining
Company site, was already included in the NPL sites reviewed as part of
the proposal and thus was not investigated further. In that case, the
contamination at the site was the result of legacy practices that pre-
dated RCRA and many other environmental protections. Finally, EPA did
not conduct additional investigation into specific incidents of flaring
identified by the commenter at refineries, as the practice is actually
a common safety practice and highly unlikely to require a response
action.
In addition to the facilities selected for research using the above
criteria, EPA was able to conduct additional research on a sample of 20
sites provided in a data set from the California Office of Emergency
Services referenced by the commenter. In total, EPA conducted research
into 43 petroleum and coal products manufacturing facilities with
releases or accidents identified by commenters that may have
represented instances of pollution occurring under a modern regulatory
framework resulting in a taxpayer funded Superfund action.
Generally, the incidents EPA researched fell into three categories:
(1) Catastrophic fires, explosions, or environmental releases that
endangered worker and community safety and/or caused environmental
harm; (2) Clean Water Act, Clean Air Act, and RCRA violations records;
and (3) flaring and other minor refinery incidents that were reported
to the California Office of Emergency Services. The majority of the
information collected about those incidents as part of the
supplementary research effort indicated that other primary responders
and enforcing agencies (such as the Occupational Safety and Health
Administration (OSHA), or state and county agencies) managed the
situation, or that it was unclear or unlikely that environmental
contamination had occurred as a result of the incident. In total, five
of the incidents resulted in EPA response action and/or expenditure.
Four of these were removal actions and one an enforcement action. Of
these five, the information collected suggests that EPA was able to
recover its response costs from the potentially responsible parties
(PRPs) at one of the sites. In the remaining four, the EPA Superfund
expenditures to date have been minimal. The sites (or incidents,
identified by site) and the associated expenditures (listed in
parentheses) are the Philadelphia Energy Solutions site in
Philadelphia, PA ($85,000), the Husky Refinery in Superior, WI
($200,000), the Chevron Refinery Fire in Richmond, CA ($16,250), and
the Caribbean Petroleum Refining Tank Explosion and Fire in Bayamon, PR
($178,295). Recovery of these minimal costs is possible in light of the
viable owners and operators at the sites that plan to either redevelop
the site or rebuild the facility. For example, at the Philadelphia
Energy Solutions site, the current owner operator plans to permanently
close the refinery and redevelop the property. A former owner operator
is already conducting cleanup of pollution at the site that existed as
of 2012 under a 2012 RCRA/CERCLA settlement that includes a financial
assurance requirement.\69\ Additionally,

[[Page 77398]]

at two of the sites the owner or operator have agreed to conduct
significant environmental work as part of settlements with EPA and
other parties. Accordingly, EPA does not believe the incidents cited by
commenters merit a change in direction from the proposal.
---------------------------------------------------------------------------

\69\ In the matter of Philadelphia Energy Solutions LLC and
Philadelphia Energy Solutions Refining and Marketing LLC: Settlement
Agreement and Covenant not to Sue. Docket number CERC/RCRA-03-2012-
0224DC (August 17. 2012). Available in docket as PDF titled ``Sunoco
PPA Executed 8 17 12.pdf.''
---------------------------------------------------------------------------

Moreover, these examples of releases indicated that the modern
regulatory framework has robust response and coordination mechanisms in
place to respond to such incidents. The major releases triggered
responses from a variety of parties including state and federal
environmental regulators and state and federal occupational safety
responses that undertook appropriate actions (e.g., fines, orders). For
example, at the 2007 Valero refinery fire in Sunray, TX, both EPA and
the Texas Commission on Environmental Quality (TCEQ) responded to the
incident. TCEQ conducted some initial air monitoring and sampling at
the site. Valero conducted all other response activities: Fire
suppression, asbestos air sampling, wet removal of asbestos debris, air
monitoring, neutralization of acid spill, assessment of leaking propane
line, and assessment of all units for damage. EPA and TCEQ monitored
progress at the facility, but departed the site three days after the
fire on account of the situation being stable. More information on the
incidents cited by commenters and researched by EPA is provided in the
docket in the spreadsheet titled NAICS 324 Incident research containing
the information gathered, information sources considered and summary
findings.\70\
---------------------------------------------------------------------------

\70\ See spreadsheet, in docket for this action, titled ``NAICS
324_Incident research.xlsx''.
---------------------------------------------------------------------------

In addition to completing examination of the incidents cited in
comments, EPA is also aware of some recent incidents of releases from
refinery facilities, for example the ExxonMobil Fire in Baton Rouge,
LA. This example exhibits coordinated response of local and federal
services that demonstrate the expected performance of the modern
regulatory framework. At the ExxonMobil refinery fire, which occurred
on Feb. 11, 2020, the Louisiana Department of Environmental Quality
(LDEQ) and the Baton Rouge Fire Department (BRFD) Hazmat team responded
to the incident and conducted offsite air monitoring. EPA also
mobilized a Superfund Technical Assessment & Response Team contractor
to the site.\71\ ExxonMobil conducted multiple rounds of air monitoring
of the facility, and readings were found to be below the state's
ambient air standards.\72\ At this site, the local authorities were
able to respond quickly and in cooperation with the company to ensure
that risk was promptly assessed and addressed.
---------------------------------------------------------------------------

\71\ US EPA Emergency Operations Center Spot Report: Region 6,
ExxonMobil Refinery Fire Baton Rouge, LA, NRC#1271029, February 12,
2020.
\72\ See ExxonMobil Baton Rouge Refinery Fire Response--February
2020 https://corporate.exxonmobil.com/-/media/Global/Files/locations/United-States-operations/Baton-Rouge/021120-Baton-Rouge-Refinery-information.pdf.
---------------------------------------------------------------------------

Although this incident was not cited by commenters, and though
releases to air as occurred in this example have not been identified as
prevalent causes of inclusion of a site on the NPL, EPA offers that the
prompt response that took place following this incident illustrates the
protective function of the modern regulatory framework. Coordinated
responses at petroleum and coal products manufacturing facilities when
incidents do occur lessen the likelihood of these facilities becoming
Superfund sites, which further weighs against the need for financial
responsibility requirements for the petroleum and coal products
manufacturing industry under CERCLA Section 108(b). Furthermore, this
response demonstrates that authorities already in place to respond to
incidents provide state and local entities the tools to take actions
that address many of the risks that might result in a Superfund site.

C. Decision To Not Impose Requirements

Based on the analyses conducted for the December 23, 2019 proposed
rule, described in detail in the background documents for that
document, as well as additional analyses conducted in response to
comments received on that document, the Agency is finalizing the
decision that the degree and duration of risk posed by the petroleum
and coal products manufacturing industry does not warrant financial
responsibility requirements under CERCLA Section 108(b). As such, this
rulemaking will not impose CERCLA Section 108(b) financial
responsibility requirements for facilities in the petroleum and coal
products manufacturing industry. EPA did not receive evidence from any
commenter that changed the Agency's determination from that proposed
previously.
Central to this final rulemaking decision is EPA's position that
the analyses conducted for the proposal are consistent with the
statutory language of CERCLA Section 108(b), described in Section IV
above (Statutory Interpretation). EPA is further assured of this
position following the decision by the D.C. Circuit that upheld EPA's
interpretation of the statutory language of CERCLA Section 108(b).\73\
The analyses consistent with this interpretation showed that under the
modern regulatory framework that applies to the petroleum and coal
products manufacturing industry, little evidence of burden to the Fund
by facilities in this industry exists.
---------------------------------------------------------------------------

\73\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
---------------------------------------------------------------------------

EPA believes that the evaluation of the petroleum and coal products
manufacturing industry conclusively demonstrates, by the low occurrence
of cleanup sites that significantly impact the Fund, low risk of a
Fund-financed response action at current petroleum and coal products
manufacturing operations. The reduction in risks, relative to when
CERCLA was first established, attributable to the requirements of
existing federal and state regulatory programs and voluntary practices,
combined with reduced costs to the taxpayer--demonstrated by EPA's
cleanup case analysis, existing financial responsibility requirements,
and enforcement actions--has reduced the need for federally-financed
response action at facilities in the petroleum and coal products
manufacturing industry.

VII. Chemical Manufacturing Industry

A. Proposed Rule

On February 21, 2020, EPA published a notice of proposed rulemaking
(NPRM) on the third of the three additional industries.\74\ In that
document, the Agency proposed to not impose financial responsibility
requirements for the chemical manufacturing industry and described the
analyses and results that were used to reach that decision. Due to the
COVID-19 pandemic, several commenters requested an extension to the
comment period. EPA extended the comment period by two weeks in
response to these requests.\75\ The Agency received 16 comments on this
proposed rulemaking. Comments received on the proposal and the Agency's
responses are laid out in the Response to Comments document found in
the docket to this final rulemaking.\76\
---------------------------------------------------------------------------

\74\ 85 FR 10128 (Feb. 21, 2020).
\75\ 85 FR 21366 (Apr. 17, 2020).
\76\ Response to Comments Document: Financial Responsibility
Requirement Under CERCLA 108(b) for Classes of Facilities in the
Chemical Manufacturing Industry, November, 2020.
---------------------------------------------------------------------------

B. Summary of Key Comments Received and Agency Response

Of the 16 comments received on the February 21, 2020 NPRM, 6 were
in support of the Agency's proposal to not impose financial
responsibility

[[Page 77399]]

requirements for the chemical manufacturing industry and 10 were
opposed.
1. Comments in Support of the Proposal
Of the six comments in support of the proposed rule, three were
from the fertilizer industry; one comment from three associations (the
American Fuel and Petrochemical Manufacturers, the American Chemistry
Council, and the Society of Chemical Manufacturers and Affiliates
(SOCMA)); one comment from the Superfund Settlements Project; and one
multi-industry comment from the U.S. Chamber of Commerce.
Commenters supporting the proposed rule cited the extensive federal
and state requirements that are already in place and agreed that no
additional requirements under CERCLA Section 108(b) are warranted for
the chemical manufacturing industry. Commenters felt the February 21,
2020 proposal was fully consistent with EPA's final determination on
the hardrock mining industry, which was upheld by the D.C. Circuit.\77\
---------------------------------------------------------------------------

\77\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
---------------------------------------------------------------------------

In addition, SOCMA, along with its sister associations, submitted a
technical report which reviewed EPA's analysis. The report's
conclusions validate EPA's findings, and concluded that ``taxpayer-
funded cleanups at chemical manufacturing facilities are even less
likely than EPA estimated.'' \78\
---------------------------------------------------------------------------

\78\ EPA-HQ-OLEM-2019-0086-1036.
---------------------------------------------------------------------------

2. Comments Opposed to the Proposal
Six comments received were from private citizens opposed to the
proposed rule. Most private citizen commenters opposed to the proposal
stated a general belief that companies should be liable for their
pollution, not taxpayers. It should be noted that the Agency's decision
to not impose financial responsibility requirements under Section
108(b) does not diminish liability under CERCLA, and the cost of
cleanups will continue to be the responsibility of the PRPs, not the
Fund. The Agency also received comments from the Confederated Tribes of
the Grand Ronde Community of Oregon, the Little Traverse Bay Bands of
Odawa Indians, and Earthjustice. Earthjustice submitted comments on
behalf of Communities for a Better Environment, Center for
International Environmental Law, Public Citizen, Earthworks, Sierra
Club, Idaho Conservation League, Center for Biological Diversity, Ohio
Valley Environmental Coalition, and Great Basin Resource Watch.
Many of the comments received on the chemical manufacturing
industry proposal were critical of the Agency's interpretation of the
statute and the analyses EPA conducted to conclude that no CERCLA
Section 108(b) financial responsibility rules are necessary. The
statutory interpretation presented in the CERCLA Section 108(b)
Hardrock Mining Final Rule (described in Statutory Interpretation
section above) continues to be the view of the Agency, and that
interpretation is not reopened here. After consideration of the
critical comments, EPA still concludes that the analyses conducted and
information considered were appropriate, consistent with CERCLA, and
show that risk posed by the chemical manufacturing industry does not
warrant financial responsibility requirements under CERCLA Section
108(b).
As part of the chemical manufacturing industry proposal, EPA
systematically evaluated CERCLA NPL, Superfund Alternative Approach
(SAA), and removal sites in the industry where releases and cleanup
actions occurred. Specifically, EPA developed an analytic approach that
considered cleanup cases to identify instances of releases at currently
operating facilities where taxpayer funds were expended for response
action. See discussion in the proposed rule \79\ for a detailed
description of the analysis conducted. EPA's review of the Superfund
NPL, SAA, and removal sites associated with the industry found that 34
sites indicated a potential for a significant impact to the Fund while
operating under the modern regulatory framework. This is a relatively
small number of cases in comparison to the approximately 13,480
establishments currently operating in the industry. As noted above,
EPA's additional research into facilities referenced by a commenter in
opposition to the proposal did not identify any additional Superfund
sites in the industry that had burdened the Fund. EPA believes that the
small set of federally funded cleanup cases due to recent
contamination, in view of the size of the industry, does not warrant
the imposition of costly financial responsibility requirements on the
entire chemical manufacturing industry under CERCLA Section 108(b).
---------------------------------------------------------------------------

\79\ 85 FR 10128, 10135-10144 (Feb. 21, 2020).
---------------------------------------------------------------------------

Additionally, as part of its proposal, to understand the modern
regulatory framework applicable to currently operating facilities
within the chemical manufacturing industry, EPA compiled applicable
federal and state regulations.\80\ Specifically, EPA looked to
regulations that address the types of releases identified in the
cleanup cases. This review also considered industry voluntary programs
that could reduce risk of releases. Finally, EPA also identified
financial responsibility regulations that apply to facilities in the
chemical manufacturing industry, \81\ and compliance and enforcement
history for the relevant regulations.\82\ Regarding concerns expressed
in the comments, EPA notes that RCRA corrective action is an example of
a control that could apply broadly in the chemical manufacturing
industry to facilities that operate as permitted or interim status RCRA
treatment, storage, and disposal (TSD) facilities. Both current and
former chemical manufacturing facilities are included in the universe
of RCRA corrective action facilities. The corrective action program
achieves risk reduction through two avenues, by providing a mechanism
to clean up contamination as well as authority to require financial
assurance. Pursuant to RCRA, as amended by HSWA (Hazardous and Solid
Waste Amendments), statutory and regulatory requirements, EPA requires
owners and operators of facilities that treat, store or dispose of
hazardous waste to investigate and clean up releases of hazardous waste
and hazardous constituents from any solid waste management units, thus
reducing the likelihood that these facilities would require cleanup
under Superfund. RCRA permits issued to TSD facilities must include
provisions for both corrective action and financial assurance to cover
the costs of implementing those cleanup measures. EPA also possesses
additional authorities to order corrective action through enforcement
orders, which are not contingent upon a facility's permit. EPA asserts
that these features reduce the likelihood of burden to the Fund. Based
on this review, and after reviewing the comments received, EPA
maintains its preliminary conclusion that the network of federal and
state regulations applicable to the chemical manufacturing industry
creates a comprehensive framework that applies to prevent releases that
could result in

[[Page 77400]]

a need for a Fund-financed response action.
---------------------------------------------------------------------------

\80\ Summary Report: Federal and State Environmental Regulations
and Industry Voluntary Programs in Place to Address CERCLA Hazardous
Substances at Chemical Manufacturing Facilities.
\81\ Review of Existing Financial Responsibility Laws
Potentially Applicable to Classes of Facilities in the Chemical
Manufacturing Industry.
\82\ Enforcement, Court Settlements and Judgments in the
Chemical Manufacturing Industry.
---------------------------------------------------------------------------

As discussed in the February 21, 2020 proposed rule, EPA had
developed an analytic approach to determine whether the current risk
under a modern regulatory framework within the chemical manufacturing
industry rose to a level that warrants imposition of financial
responsibility requirements under CERCLA Section 108(b).\83\
Earthjustice commented that relying on the term ``modern'' is EPA's
``basis for ignoring releases that occurred at facilities before
1980.'' \84\ The Agency uses the term modern in this case to
distinguish the current regulatory landscape versus the one that
existed at the time of the passage of the CERCLA statute.
Acknowledgment of current federal and state laws that specifically
address risks posed by this industry is appropriate to consider in
determining whether there is risk of future Fund expenditures. In
particular, in the proposal, EPA identified the prevalent sources of
risk that were identified in the cleanup cases reviewed. EPA then
evaluated the extent to which activities that contributed to the risk
associated with the production, transportation, treatment, storage, or
disposal of hazardous substances are now regulated. EPA recognized that
substantial advances had been made in the development of manufacturing,
pollution control, and waste management practices, as well as the
implementation of federal and state regulatory programs to both prevent
and address such releases at facilities in the chemical manufacturing
industry. This analysis is consistent with the approach utilized in the
Final Action for Facilities in the Hardrock Mining Industry and upheld
by the D.C. Circuit.\85\
---------------------------------------------------------------------------

\83\ 84 FR 36540 (Jul. 29, 2019).
\84\ EPA-HQ-OLEM-2019-0086-1036.
\85\ Idaho Conservation League v. Wheeler, 930 F.3d 494, (D.C.
Cir. 2019).
---------------------------------------------------------------------------

Earthjustice also raised the point that the existence of federal
and state regulations does not ensure prevention of releases, and that
legacy contamination exists at currently operating facilities. EPA
notes that financial responsibility requirements under Section 108(b)
would not apply to legacy operations that are no longer operating.
Rather, any Section 108(b) requirements would apply to facilities that
follow current industry practices and are subject to the modern
regulatory framework (i.e., the regulations currently in place that
apply to the industry). These modern conditions include federal and
state regulatory requirements and financial responsibility requirements
that currently apply to operating facilities. In contrast to
Earthjustice's point, EPA's analysis found that the efficacy of current
regulations, as well as voluntary industry practices, while difficult
to quantify, have had a demonstrably positive effect in reducing the
number of cleanups that require taxpayer expenditures. This was borne
out in the analyses conducted in the proposed rule, the results of
which indicated that there was no need for further financial
responsibility requirements on this industry.
Earthjustice disagreed with EPA's screening out from its analyses
sites where the response actions were funded by private parties as
opposed to the government. Earthjustice suggested that it is contrary
to CERCLA to focus only on financial risk. In addition, Earthjustice
raised concerns about the magnitude and potential long duration of
cleanups in the industry.
As a primary matter, EPA's approach and the factors the Agency
considered to determine whether or not financial responsibility
requirement were appropriate for the chemical manufacturing industry is
consistent with CERCLA (see Statutory Interpretation section above). A
chief factor of the Agency's determination was the results of EPA's
cleanup case analysis which involved a systematic examination of
Superfund sites (NPL, removal, and SAA). EPA's analysis, described in
detail in section VII of the proposed rule,\86\ showed that few
facilities operating under modern conditions, in light of the size of
the industry, have historically burdened the Fund. Specifically, there
are relatively few NPL and removal sites with pollution that occurred
under a modern regulatory framework associated with the chemical
manufacturing industry that required significant Fund expenditures to
address. This is, in part, due to the fact that the potentially
responsible parties (PRPs) led approximately half of the cleanups
identified. Further supporting this finding is the fact that when a
cleanup is required under Superfund or corrective action or RCRA,
financial assurance is typically required. Moreover, as discussed
below, EPA conducted additional research into examples of releases at
facilities in the chemical manufacturing industry identified by
commenters. That additional research identified only one new example of
the Superfund program bearing the costs of a cleanup associated with
releases occurring under a modern regulatory framework. The limited
number of actions within the sector, combined with its track record of
funding cleanups weighs against the need for regulation under CERCLA
Section 108(b).
---------------------------------------------------------------------------

\86\ 85 FR 10128, 10135 (Feb. 21, 2020).
---------------------------------------------------------------------------

This comment also intended to suggest that CERCLA Section 108(b)
financial responsibility could promote rapid cleanup in instances of
pollution. As a primary matter, this is not necessarily the case. EPA
believes any CERCLA Section 108(b) financial responsibility required
for any industry would complement existing Superfund processes by
offering a financial backstop for CERCLA costs and damages (see the
relevant language at 84 FR 3400 included in the hardrock mining
proposal). The financial responsibility would not modify the existing
Superfund enforcement authorities, including those to gather
information, identify responsible parties, effect cleanup (especially
through EPA's enforcement first policy), assess penalties, or provide
for citizen suits. In instances where releases occurred that required a
Superfund cleanup, the same Superfund process would occur as does
today.
Of note is that the Superfund program protects human health and the
environment regardless of whether or not financial responsibility is in
place. EPA can invoke its enforcement authorities to protect human
health and the environment. For example, EPA can issue a Unilateral
Administrative Order or conduct a removal action to mitigate potential
risks posed by the site conditions. If the Agency has to use fund
resources to conduct a cleanup, EPA can take an enforcement action to
recover its CERCLA costs and replenish government resources. It is thus
not accurate to suggest a lack of CERCLA Section 108(b) financial
responsibility would result in delays of cleanup and therefore an
increased risk to human health and the environment.
Earthjustice took issue with EPA's interpretation of the statute,
stating that EPA's ``interpretation of the statute to focus solely on
the risk of a taxpayer bailout of insolvent companies is contrary to
law, because this is not the purpose of CERCLA.'' \87\ Earthjustice
contends that EPA ignored significant risks to human health and the
environment. Earthjustice commented on the long and well-established
history of contamination of the Nation's soil and water due to the
chemical manufacturing industry, and cited examples of recent cleanups.
Nevertheless, EPA believes that the site

[[Page 77401]]

analysis for this rulemaking effectively considered human health and
environmental risk in multiple steps. First, EPA examined through the
Agency's industry practices and environmental characterization analysis
the operational practices and environmental profile of the chemical
manufacturing industry. This analysis included an examination of the
potentially hazardous materials used in the industry, hazardous wastes
generated by industry processes, the units used to manage wastes at
these sites, how on-site management of these materials can potentially
contribute to releases, and what contaminants might be released by the
industry that could impact human health and the environment. Next, EPA
investigated in what ways the industry is subject to a wide range of
modern federal and state regulatory requirements and enforcement
oversight imposed to address this potential human health and
environment risk. In these analyses, EPA outlined the framework of
modern federal and state regulatory programs to which the industry is
subject \88\ and also examined compliance and enforcement for the
industry,\89\ which collectively demonstrate how these components work
to address potential risk for modern industry operations. Overall,
EPA's full analytic approach developed for the proposed rule examined
sites with a variety of contaminants and contaminated media. In effect,
the analysis considered the types of human health and environmental
risk the Superfund program was designed to address, and that would be
addressed by any CERCLA Section 108(b) financial responsibility. This
analysis employed by the Agency is consistent with EPA's interpretation
of the statutory language and was upheld by the D.C. Circuit,\90\ which
found that EPA's focus on risk of taxpayer-funded response actions was
reasonable. Specifically, the Court stated in its decision, ``we defer
to the EPA's interpretation that it should set financial responsibility
regulations based on financial risks, not risks to health and the
environment.'' EPA's analysis based on this interpretation showed that
there is little evidence of the facilities operating under a modern
regulatory framework burdening the Fund.
---------------------------------------------------------------------------

\87\ Id.
\88\ Summary Report: Federal and State Environmental Regulations
and Industry Voluntary Programs in Place to Address CERCLA Hazardous
Substances at Chemical Manufacturing Facilities.
\89\ Enforcement, Court Settlements and Judgments in the
Chemical Manufacturing Industry.
\90\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
---------------------------------------------------------------------------

Commenters asserted that, too often, companies file for bankruptcy
and avoid financial responsibility for cleaning up harmful pollution.
To further assess these concerns, EPA updated its analysis supporting
the Economic Sector Profile originally conducted in support of the
proposed rulemaking. These analyses rely on industry-wide ratio
measures of economic stability that are widely used as standard market
metrics for such industry by industry comparisons. This update was
conducted with the most recent prior year's worth of data available at
the close of comment period for the proposed rule. This updated
analysis finds the financial stability of the industry relatively
unchanged from the original report, further suggesting that the
economic conditions of the industry as a whole are not at undue
risk.\91\ Added factors such as increased transparency from the
application of generally accepted accounting practices, and added
levels of bankruptcy protection against defaults on environmental
liabilities, while not a guarantee, can reduce potential risks to the
Fund even further.
---------------------------------------------------------------------------

\91\ Addendum Update to CERCLA 108(b) Economic Sector Profile:
NAICS 325--Chemicals Manufacturing; May 2020.
---------------------------------------------------------------------------

EPA disagrees with Earthjustice's comment suggesting that
enforcement activities are halted when there are disruptions caused by
unforeseen circumstances, or that enforcement in general is a weakness
of the modern regulatory framework structure. The commenter
specifically referenced a global pandemic, presumably implying that the
coronavirus (COVID-19) pandemic has halted enforcement at the federal
and state level. While EPA made certain adjustments that were necessary
to maintain public safety, EPA disagrees with the commenter's implicit
claim that enforcement has halted, or that the level of enforcement
undercuts existing environmental protections or EPA's analysis that
considered the existing regulations in evaluating the need for CERCLA
Section 108(b) financial responsibility.
In fact, EPA's enforcement program remained very active during the
public health emergency. For example, from March 16-August 31, 2020,
EPA opened 128 criminal enforcement cases, charged 36 defendants,
initiated 603 civil enforcement actions, concluded 629 civil
enforcement actions, secured $80.4 million in Superfund response
commitments, and obtained commitments from parties to clean up
1,032,832 cubic yards of contaminated soil and water. The COVID-19
pandemic has not meaningfully reduced the protectiveness of existing
environmental laws and regulations.
Commenters also questioned the performance of the modern regulatory
framework under the potential increased risk of release posed by
climate change, seismic hazards and other natural disasters. While most
accidents and releases do not lead to Superfund responses, Fund
expenditures, or CERCLA liability claims, and the commenters provided
no indication a Superfund response resulted from a natural disaster,
EPA's analysis has shown that existing regulations in the modern
regulatory framework address these concerns.
Several environmental laws authorize regulations requiring the
development of response plans for a variety of emergencies, including
various natural disasters, in order to reduce the effects of a release,
and to notify local emergency response personnel and facilitate
cooperation. For example, under 40 CFR part 264, subpart B, facility
standards for owner and operators of hazardous waste treatment, storage
and disposal facilities must meet location standards, including
consideration of seismic environment, floodplains, and salt dome
formations. Under 40 CFR part 264, subpart D, owners and operators of
hazardous waste facilities must have a contingency plan designed to
minimize hazards to human health or the environment from fires,
explosions, or the release of hazardous waste or hazardous waste
constituents. The contingency plans establish the actions personnel
must take in response to fires, explosions, or the release of hazardous
waste or hazardous waste constituents. Owners and operators may fulfill
the requirements of this subpart by amending existing emergency
contingency plans, including Spill Prevention, Control and
Countermeasure plans.
In 1989, OSHA promulgated the Hazardous Waste Operations and
Emergency Response standards (HAZWOPER). HAZWOPER addresses the health
and safety risks to workers of unexpected releases or the threat of
releases of hazardous substances that may accompany operational
failures, natural disasters, or waste dumped in the environment. OSHA
promulgated the standards to ensure the safe and effective management
and cleanup of unexpected releases of hazardous substances. The
regulations require employers to develop a written program for their
employees to address hazards and provide for emergency response
actions, including an organizational

[[Page 77402]]

structure, comprehensive work plan, training programs, and medical
surveillance program. In 2002, OSHA expanded its emergency response
regulations through the implementation of Emergency Action Plans
(EAPs). The regulations require that employers prepare a written EAP to
create practices to follow during workplace emergencies at a given
facility.
In addition, EPA implements the Chemical Accident Prevention
Provisions of Section 112(r) of the Clean Air Act Amendments, which
require certain facilities to generate Risk Management Plans to
mitigate the effects of a chemical accident and to coordinate with
local response personnel. EPA implements regulations under EPCRA that
impose emergency planning, reporting, and notification requirements for
hazardous and toxic chemicals.
EPA appreciated the comments offering examples of sites of concern
and undertook additional due diligence to examine some of these
releases and accidents referenced by the commenter. While most
accidents and releases do not lead to Superfund responses, Fund
expenditures, or CERCLA liability claims, EPA acknowledged that it is
possible some of the releases and accidents may have required Superfund
actions, which the Agency may have missed in the analysis conducted as
part of the proposal. As such, EPA examined a selection of the cases
referenced by Earthjustice to better understand the consequences of
these incidents, to the extent possible. In the case of the chemicals
manufacturing industry, most of the facilities referenced by the
commenters were referenced by facility name. With the exception of two
facilities already included in the Agency's analysis of NPL cleanup
sites, EPA conducted additional research into all of the facilities
referenced.
The examination of these facilities did not identify any new
instances of a facility in the chemicals manufacturing industry
burdening the Superfund, and only one example of a previously
unidentified CERCLA action. In that one case, a CERCLA enforcement
action related to the DuPont (now Chemours) plant in Belle, WV, DuPont
paid a penalty and agreed to corrective actions designed to reduce the
likelihood of release going forward. Notably, many of the incidents
were addressed by existing state or federal authorities.
EPA also examined a couple of geographical areas where the
commenter alleged cumulative risks from many chemical manufacturing
facilities presents some additional and unique risk. EPA conducted
research into the Houston Ship Channel and an 85-mile stretch along the
banks of the Mississippi River in Louisiana, nicknamed ``Cancer
Alley'', to identify instances of releases and responses in those areas
associated with chemical manufacturing facilities. EPA identified 18
facilities in those geographical areas that appeared to have releases
or responses worthy of investigation. However, many of the facilities
had already been considered in the cleanup case analyses done in
support of the proposal. Additionally, many either did not require
CERCLA involvement or were addressed and/or funded by the PRP. In
total, EPA only identified one additional site in those two areas with
pollution that appeared to occur under a modern regulatory framework
and where the Fund appeared to have been burdened. This site, the Cusol
Company, Inc. site in Houston, TX, required an EPA removal action after
the facility was abandoned in 2005. However, the cleanup activities
were relatively minor at the site with the removal assessment work
conducted within three months and the cleanup itself completed within a
month. The identification of one additional site alone does not change
EPA's conclusion from the proposal that CERCLA Section 108(b) financial
responsibility is not necessary for the industry. More information on
the incidents cited by commenters and researched by EPA is provided in
the spreadsheet titled NAICS 325 Incident research containing the
information gathered, information sources considered and summary
findings.\92\
---------------------------------------------------------------------------

\92\ See spreadsheet, in docket for this action, titled ``NAICS
325_Incident research.xlsx''.
---------------------------------------------------------------------------

In addition to completing examination of the incidents cited in
comments, EPA is also aware of some recent incidents of releases from
chemical manufacturing facilities, for example, the Alchemix Chemical
Fire in College Park, GA and Poly-America Fire in Grand Prairie, TX.
Both examples exhibit coordinated response of local and federal
services that demonstrate the expected performance of the modern
regulatory framework. In the Alchemix Chemical Fire that occurred on
July 17, 2020, the Fulton County Emergency Management Director and
Georgia Environmental Protection Division (GAEPD) requested EPA's
assistance with air monitoring and response efforts. EPA mobilized an
On-Scene Coordinator (OSC) and Superfund Technical Assessment &
Response Team (START) resources in response to the fire. The OSC
arrived on site and worked with the fire chief, GAEPD and a
representative of the responsible party. After the fire was
extinguished by the local fire department and the responsible party
hired an environmental contractor, EPA demobilized, and oversight of
environmental clean-up was conducted by GAEPD under its state
authorities.\93\
---------------------------------------------------------------------------

\93\ US EPA. Emergency Operations Center Spot Report: Region 4,
Alchemix Chemical Fire, College Park, GA, NRC#1282206, July 18,
2020.
---------------------------------------------------------------------------

The Poly-America Fire that occurred on August 18, 2020, was
responded to by local fire departments as part of an Incident
Management Team under unified command with the City of Grand Prairie
and the Texas Commission on Environmental Quality (TCEQ). In addition,
EPA lent specialized expertise in deploying support from EPA
Consequence Management Advisory Division and START contractors to
assist in air monitoring in the local area. EPA resources were
demobilized after no detections at or near screening levels were
found.\94\
---------------------------------------------------------------------------

\94\ US EPA. Emergency Operations Center Spot Report: Region 6,
Poly-America Fire, Grand Prairie, TX, NRC#1284921, August 19, 2020.
---------------------------------------------------------------------------

Although these incidents were not cited by commenters, and though
releases to air as occurred in these examples have not been identified
as prevalent causes of inclusion of a site on the NPL, EPA offers that
the prompt responses that took place following these incidents
illustrate the protective function of the modern regulatory framework.
Coordinated responses at chemical manufacturing facilities when
incidents do occur lessen the likelihood of these facilities becoming
Superfund sites, which further weighs against the need for financial
responsibility requirements for the chemical manufacturing industry
under CERCLA Section 108(b). Furthermore, these example responses
demonstrate that authorities already in place to respond to incidents
provide state and local entities the tools to take actions that address
many of the risks that might result in a Superfund site.

C. Decision To Not Impose Requirements

Based on the analyses conducted for the February 21, 2020 proposed
rule, described in detail in the background documents for that
document, as well as additional analyses conducted in response to
comments received on that document, the Agency is finalizing the
decision that the degree and duration of risk posed by the chemical
manufacturing industry does not warrant financial responsibility
requirements under CERCLA Section

[[Page 77403]]

108(b). As such, this rulemaking will not impose CERCLA Section 108(b)
financial responsibility requirements for facilities in the chemical
manufacturing industry. EPA did not receive evidence from any commenter
that changed the Agency's determination from that proposed previously.
Central to this final rulemaking decision is EPA's position that
the analyses conducted for the proposal are consistent with the
statutory language of CERCLA Section 108(b), described in Section IV
above (Statutory Interpretation). EPA is further assured of this
position following the decision by the D.C. Circuit that upheld EPA's
interpretation of the statutory language of CERCLA Section 108(b).\95\
The analyses consistent with this interpretation showed that under the
modern regulatory framework that applies to the chemical manufacturing
industry, little evidence of burden to the Fund by facilities in this
industry exists.
---------------------------------------------------------------------------

\95\ Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C.
Cir. 2019).
---------------------------------------------------------------------------

EPA believes that the evaluation of the chemical manufacturing
industry conclusively demonstrates, by the low occurrence of cleanup
sites that significantly impact the Fund, low risk of a Fund-financed
response action at current chemical manufacturing operations. The
reduction in risks, relative to when CERCLA was first established,
attributable to the requirements of existing federal and state
regulatory programs and voluntary practices combined with reduced costs
to the taxpayer--demonstrated by EPA's cleanup case analysis, existing
financial responsibility requirements, and enforcement actions--has
reduced the need for federally-financed response action at facilities
in the chemical manufacturing industry.

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

These actions are significant regulatory actions that were
submitted to the Office of Management and Budget (OMB) for review,
because they may raise novel legal or policy issues [3(f)(4)]. Any
changes made in response to OMB recommendations have been documented in
the docket. EPA did not prepare an economic analysis for these final
rulemakings because no regulatory provisions are being finalized.

B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs

This final rule is not subject to the requirements of E.O. 13771
(82 FR 9339, February 3, 2017) because this final rule does not alter
any regulatory requirements.

C. Paperwork Reduction Act (PRA)

These actions do not impose an information collection burden under
the PRA, because they do not impose any regulatory requirements.

D. Regulatory Flexibility Act (RFA)

I certify that these actions will not have a significant economic
impact on a substantial number of small entities under the RFA. These
actions will not impose any requirements on small entities.

E. Unfunded Mandates Reform Act (UMRA)

These actions do not contain any unfunded mandates as described in
UMRA, 2 U.S.C. 1531-1538, and do not significantly or uniquely affect
small governments, because they do not impose any regulatory
requirements.

F. Executive Order 13132: Federalism

These actions do not have federalism implications. They will not
have substantial direct effects on the states, on the relationship
between the Federal Government and the states, or on the distribution
of power and responsibilities among the various levels of government,
since they impose no regulatory requirements.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

These actions do not have tribal implications as specified in
Executive Order 13175, because they impose no regulatory requirements.
Thus, Executive Order 13175 does not apply to these actions. However,
EPA offered consultation and coordination with federally recognized
tribes as well as with Alaska Native Claims Settlement Act Corporations
during the rulemaking process. EPA sent notification letters to all 574
federally recognized tribes and to the 12 Alaska Native Claims
Settlement Act Regional Corporation Executive Directors for each of the
three separate proposals. EPA also held public informational webinars
for each of the proposed rules and tribes participated in all three
webinars. EPA received one comment from a tribe on the Electric Power
Generation, Transmission and Distribution industry proposal and two
comments on the Chemical Manufacturing industry proposal. All three
comments opposed the proposal to not impose financial responsibility
requirements. These comments and EPA's responses are included in the
Response to Comments documents, which are part of the dockets for these
final actions.\96\ For more information on the consultation and
coordination for these rules, see the consultation summaries in the
docket.
---------------------------------------------------------------------------

\96\ Response to Comments Document: Financial Responsibility
Requirement Under CERCLA 108(b) for Classes of Facilities in the
Electric Power Generation, Transmission, and Generation Industry,
November, 2020.; Response to Comments Document: Financial
Responsibility Requirement Under CERCLA 108(b) for Classes of
Facilities in the Petroleum and Coal Products Manufacturing
Industry, November, 2020.; Response to Comments Document: Financial
Responsibility Requirement Under CERCLA 108(b) for Classes of
Facilities in the Chemical Manufacturing Industry, November, 2020.
---------------------------------------------------------------------------

H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

These actions are not subject to Executive Order 13045 because they
are not economically significant as defined in Executive Order 12866
and they do not establish any new environmental health or safety
standard.

I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

These actions are not a ``significant energy action'' because they
are not likely to have a significant adverse effect on the supply,
distribution, or use of energy, since they impose no regulatory
requirements; in addition, these actions have not otherwise been
designated by the Administrator of the Office of Information and
Regulatory Affairs as a significant energy action.

J. National Technology Transfer and Advancement Act

These rulemakings do not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

EPA believes that these actions are not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because these actions establish
that no federal CERCLA Section 108(b) financial responsibility
requirements are necessary and do not establish any new environmental
health or safety standard. Thus, no review of these final actions under
Executive Order 12898 is necessary.

[[Page 77404]]

L. Congressional Review Act (CRA)

This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 320

Environmental protection, Financial responsibility, Hazardous
substances.

Andrew Wheeler,
Administrator.
[FR Doc. 2020-26379 Filed 12-1-20; 8:45 am]
BILLING CODE 6560-50-P