EPA Lists Major Industries As Targets For First-Time Cleanup Guarantees
[February 16, 2010]

EPA has added chemical manufacturers, petroleum and coal producers, and electric power generators to its list of industries that will likely be subjected to decades-delayed financial assurance requirements under the Superfund law, while also indicating that it plans to study whether several additional industry sectors may be subject to the requirements in the future.

The agency is extending its Dec. 30 advance notice of proposed rulemaking identifying the three industries, for which EPA “will begin the regulatory development process” for developing appropriate assurance requirements. EPA is extending public comment until April 6th. The Dec. 30 notice also highlights additional industries that EPA intends to study in consideration for proposing regulations. The sectors being weighed include waste management and remediation services, wood product manufacturing, fabricated metal product manufacturing, electronics and electrical equipment manufacturing, and facilities engaged in the recycling of materials containing hazardous substances. Chemical, electrical and petroleum industry sectors have stated that the regulations are not warranted.

This notice is the next step in the agency's process of compiling a list of industries that may be required to abide by financial insurance rules, which require companies to maintain adequate financial resources to cover environmental cleanup costs at its operations in the event of bankruptcy.

While the Superfund law, enacted in 1980, required EPA to determine classes of facilities that are subject to financial assurance rules, the agency's thirty-year failure to act eventually spawned litigation from environmentalists, who argued that the lack of assurance rules were allowing companies to sap the taxpayer-funded Superfund Trust Fund. A federal district court agreed and in March of 2009, the U.S. District Court for the District of Northern California ruled in Sierra Club et al. v. Johnson et al. that EPA must publish the list as part of its statutory obligations under Section 108(b) of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The Sierra Club representatives and other environmental organizations have been pushing for the rules stating that such rulemaking would guarantee environmental cleanup as the downtrodden economy sends more companies into bankruptcy.

The notice follows a July 2009 proposed EPA rulemaking that identified hard rock mining as the first class of facilities for which the agency intends to develop financial assurance rules under CERCLA, which it plans to propose by the spring of 2011.