After years of operating at a site, many companies, when faced with the resultant environmental pollution, are unable to pay for remediation because the costs are often too high. Some may even file for bankruptcy and leave polluted sites behind. In fact, the Government Accountability Office alerted U.S. EPA to the problem with its 2005 report, titled Environmental Liabilities: EPA Should Do More to Ensure That Liable Parties Meet Their Cleanup Obligations. These costs can be anticipated and managed ahead of time. In fact, since 1980, CERCLA section 108(b) has required that the U.S. EPA write rules which require facilities to establish and maintain evidence of financial responsibility. Section 108(b) contemplated that the required financial responsibility would be parallel to the degree and duration of risk associated with a specific industry, and that industries with high risks for injury would be regulated first.

No such rules have been written to date, but a recent decision, Sierra Club v. Johnson, No. C-08-01409-WHA, 2009 WL 482248, 2009 U.S. Dist. LEXIS 14819 (N.D. Cal. Feb. 25, 2009), may change the way U.S. EPA operates. The decision ordered U.S. EPA to publish a notice of classes of facilities that may be subject to the financial assurance regulations. In response, EPA's first notice in July 2009 listed the hardrock mining industry as a possible candidate for such rules.

In January 2010, U.S. EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) that lists three additional industry groups. They chose the additional groups after reviewing industries represented on the National Priorities List (NPL), data on hazardous waste generation from the 2007 RCRA Biennial Report and data from the Toxics Release Inventory and finding that three industry groups represented the majority of the NPL sites, generated the majority of hazardous waste, or reported the largest quantity of onsite releases of hazardous substances. The three industry groups are chemical manufacturers, electric power generators and distributors, and petroleum and coal product manufacturers. The ANPRM summarizes these findings and invites comments on U.S. EPA's proposal to require financial assurance regulations from these groups. Comments can be made until the extended deadline of April 6, 2010.