On December 26, 2016, EPA announced its intention to publish a notice of proposed rulemaking to establish financial responsibility requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for facilities in the chemical manufacturing (NAICS 325), petroleum and coal products manufacturing (NAICS 324), and electric power generation, transmission, and distribution (NAICS 2211) industries. CERCLA Section 108(b) regulations require regulated classes of facilities to demonstrate to EPA that they have obtained a financial responsibility instrument such as a letter of credit, insurance, trust fund, or surety bond sufficient to cover response costs, health assessment costs, and natural resource damages associated with releases of hazardous substances from their facilities.
In a prior Advance Notice of Proposed Rulemaking (ANPRM) published on January 6, 2010, EPA requested comment on whether financial responsibility requirements for these classes would be appropriate. In response, EPA received comments arguing that existing laws ensured that there are no occurrences of non-permitted releases of hazardous substances; that Toxic Release Inventory and Biennial Report data represent permitted releases; that past National Priority List sites were not valid indicators of current and future risk; and that the economic health of the industries made financial responsibilities requirements unnecessary. Only two of the over 60 comments EPA received on the ANPRM supported the need for CERCLA Section 108(b) regulations for these additional classes.
In the latest notice, EPA noted it “has not, at this time, identified sufficient evidence to determine that initiating the rulemaking process is not warranted, nor has EPA identified sufficient evidence to establish the necessary CERCLA § 108(b) requirements, if any”; as a result, additional information and further evaluation is needed for EPA to make a final decision regarding the need for financial responsibility requirements in these additional industry sectors.