6560-50 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 320 

[EPA-HQ-SFUND-2009-0265; FRL --] 

RIN 2050-AG56 

Identification of Additional Classes of Facilities for Development of Financial Responsibility 

Requirements under CERCLA Section 108(b) 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Advanced Notice of Proposed Rulemaking (ANPRM)

SUMMARY: Section 108(b) of the Comprehensive Environmental Response, Compensation, and 

Liability Act (CERCLA) of 1980, as amended, establishes certain regulatory authorities concerning 

financial responsibility requirements. Specifically, the statutory language addresses the 

promulgation of 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. In a July 28, 

2009, Federal Register notice, the Environmental Protection Agency (EPA or the Agency) 

identified classes of facilities within the Hardrock Mining industry as those for which the Agency 

will first develop financial responsibility requirements under CERCLA Section 108(b). In that 

notice, EPA also stated its belief that additional classes of facilities – that is, other than those in the 

Hardrock Mining industry, also may warrant the development of financial responsibility 

requirements under CERCLA Section 108(b), and stated that EPA would publish a Federal
Register notice, by December 2009, identifying additional classes of facilities it plans to evaluate 

regarding the development of financial responsibility requirements. As a result of examining 

available data and information, the Agency is identifying the classes of facilities within three 

industries -- that is, the Chemical Manufacturing industry (NAICS 325), the Petroleum and Coal 

Products Manufacturing industry (NAICS 324), and the Electric Power Generation, Transmission, 

and Distribution industry (NAICS 2211), as those for which the Agency plans to develop a 

proposed regulation under CERCLA Section 108(b). In addition, this Federal Register notice 

identifies the Waste Management and Remediation Services industry (NAICS 562), the Wood 

Product Manufacturing industry (NAICS 321), the Fabricated Metal Product Manufacturing 

(NAICS 332) industry, and the Electronics and Electrical Equipment Manufacturing industry 

(NAICS 334 and 335), as well as facilities engaged in the recycling of materials containing 

CERCLA hazardous substances – as requiring further study before EPA begins development of a 

proposed regulation under CERCLA Section 108(b). In identifying classes of facilities within 

these industries in this notice, the Agency does not intend to indicate that other classes in other 

industry sectors are no longer being considered. 

DATES: Submit comments on or before [insert 30 days following publication in the FEDERAL 

REGISTER]. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-2009-

0834, by one of the following methods: 

• Electronic docket at: www.regulations.gov: Follow the on-line instructions for submitting 

comments. 

• Email: Comments may be sent by electronic mail (e-mail) to superfund.docket@epa.gov, 

Attention Docket ID No. EPA-HQ-SFUND-2009-0834. In contrast to EPA’s electronic 

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public docket, EPA’s e-mail system is not an ‘‘anonymous access’’ system. If you send an 

e-mail comment directly to the Docket without going through EPA’s electronic public 

docket, EPA’s e-mail system automatically captures your e-mail address. E-mail addresses 

that are automatically captured by EPA’s e-mail system are included as part of the comment 

that is placed in the official public docket, and made available in EPA’s electronic public 

docket. 

• Fax: Comments may be faxed to 202–566–0272; Attention Docket ID No. EPA-HQSFUND-2009-0834.

• Mail: Send your comments to the Identification of Additional Classes of Facilities for 

Development of Financial Responsibility Requirements under CERCLA Section 108(b) 

Docket, Attention Docket ID No., EPA-HQ-SFUND-2009-0834, Environmental Protection 

Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW, Washington, DC 20460. Please 

include a total of two copies. 

• Hand Delivery: Deliver two copies of your comments to the Identification of Additional 

Classes of Facilities for Development of Financial Responsibility Requirements under 

CERCLA Section 108(b) Docket, Attention Docket ID No., EPA-HQ-SFUND-2009-0834, 

EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC 20460. 

Such deliveries are only accepted during the Docket’s normal hours of operation, and 

special arrangements should be made for deliveries of boxed information. 

Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-2009-0834. EPA's policy 

is that all comments received will be included in the public docket without change and may be 

made available online at www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be CBI or other information whose disclosure 

3
is restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. The www.regulations.gov website is an 

“anonymous access” system, which means EPA will not know your identity or contact information 

unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA 

without going through www.regulations.gov, your e-mail address will be automatically captured 

and included as part of the comment that is placed in the public docket and made available on the 

Internet. If you submit an electronic comment, EPA recommends that you include your name and 

other contact information in the body of your comment and with any disk or CD-ROM you submit. 

If EPA cannot read your comment due to technical difficulties and cannot contact you for 

clarification, EPA may not be able to consider your comment. Electronic files should avoid the use 

of special characters, any form of encryption, and be free of any defects or viruses. For additional 

information about EPA’s public docket, visit the EPA Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go 

to the SUPPLEMENTARY INFORMATION section of this document. 

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed 

in the index, some information is not publicly available, e.g., CBI or other information whose 

disclosure is restricted by statute. Certain other material, such as copyrighted material, will be 

publicly available only in hard copy. Publicly available docket materials are available either 

electronically in www.regulations.gov or in hard copy at the Identification of Additional Classes of 

Facilities for Development of Financial Responsibility Requirements under CERCLA Section 

108(b) Docket, Docket ID No. EPA-HQ-SFUND-2009-0834, EPA/DC, EPA West, Room 3334, 

1301 Constitution Ave., NW., Washington, DC 20460. This Docket Facility is open from 8:30 

a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone 

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number is (202) 566–0276. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal holidays. The telephone number for the Public Reading 

Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: For more information on this notice, contact 

Ben Lesser, U.S. Environmental Protection Agency, Office of Resource Conservation and 

Recovery, Mail Code 5302P, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 

(703) 308-0314; or (email) Lesser.Ben@epa.gov; or Barbara Foster, U.S. Environmental Protection 

Agency, Office of Resource Conservation and Recovery, Mail Code 5303P, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460; telephone (703) 308-7057; or (email) 

Foster.Barbara@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. How Can I Get Copies of This Document and Other Related Information? 

This Federal Register notice and supporting documentation are available in a docket EPA 

has established for this action under Docket ID No. EPA-HQ-SFUND-2009-0834. All documents 

in the docket are listed on the http://www.regulations.gov web site. Although listed in the index, 

some information may not be publicly available, because for example, it may be CBI or other 

information, the disclosure of which is restricted by statute. Certain 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 either electronically through 

http://www.regulations.gov or in hard copy at the Identification of Additional Classes of Facilities 

for Development of Financial Responsibility Requirements under CERCLA Section 108(b) 

Docket, Docket ID No. EPA-HQ-SFUND-2009-0834, EPA/DC, EPA West, Room 3334, 1301 

Constitution Avenue, NW, Washington, DC. The Docket Facility is open from 8:30 a.m. to 4:30 

5
p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public 

Reading Room is (202) 566-1744, and the telephone number for the Superfund Docket is (202) 

566-0270. A reasonable fee may be charged for copying docket materials. 

B. Table of Contents 

 I. Introduction 

 II. EPA's Approach for Identifying Additional Classes of Facilities 

A. Analysis of National Priority List Information 

B. Analysis of RCRA Biennial Report and Toxics Release Inventory Data 

C. Conclusions from the NPL/BR/TRI Analyses 

 D. Additional Information Regarding the Classes of Facilities for Which EPA Plans to 

Develop a Proposed Regulation 

1. Chemical Manufacturing (NAICS 325) 

2. Petroleum and Coal Products Manufacturing (NAICS 324) 

3. Electric Power Generation, Transmission, and Distribution (NAICS 2211) 

E. Additional Classes of Facilities Requiring Further Study 

1. Waste Management and Remediation Services (NAICS 562) and Facilities Engaged in 

the Recycling of Materials Containing CERCLA Hazardous Substances 

2. Wood Product Manufacturing (NAICS 321), Fabricated Metal Product Manufacturing 

(NAICS 332), and Electronics and Electrical Equipment Manufacturing (NAICS 334 and 

335) 

III. Request for Public Comment 

IV. Conclusion 

I. Introduction 

Section 108(b), 42 U.S.C. 9608 of the Comprehensive Environmental Response, 

Compensation and Liability Act (CERCLA), as amended, requires in specified circumstances that 

owners and operators of facilities establish evidence of financial responsibility. Specifically, it 

requires the promulgation of 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 section 

also instructs that the President:1

 

 

1

 Executive Order 12580 delegates this responsibility to the Administrator of the U.S. Environmental 

Protection Agency ("EPA" or "the Agency") for non-transportation related facilities. (See 52 FR 2923, 

January 29, 1987). 

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...identify those classes for which requirements will be first developed and publish 

notice of such identification in the Federal Register. 

On July 28, 2009, EPA published that notice (see 74 FR 37213). In that notice, EPA 

identified classes of facilities within the Hardrock Mining industry as its priority for the 

development of financial responsibility requirements under CERCLA Section 108(b). For 

purposes of that notice, “hardrock mining” was defined as the extraction, beneficiation, or 

processing of metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and 

zinc) and non-metallic, non-fuel minerals (e.g., asbestos, phosphate rock, and sulfur). 

The notice also stated the Agency’s belief that classes of facilities, in addition to those 

within the Hardrock Mining industry, may warrant the development of financial responsibility 

requirements under CERCLA Section 108(b), that the Agency would continue to gather and 

analyze data on additional classes of facilities, and would consider them for possible development 

of CERCLA Section 108(b) financial responsibility requirements. The Agency indicated its plans 

to publish a Federal Register notice addressing these additional classes of facilities by December 

2009. 

This Federal Register notice identifies additional classes of facilities – the classes within 

three industry sectors -- for which the Agency plans to develop proposed regulations. This notice 

also identifies classes of facilities within four additional industry sectors, as well as the classes of 

facilities engaged in recycling activities associated with materials containing CERCLA hazardous 

substances, which do not fit within a particular industry sector, as those classes for which the 

Agency plans to conduct further in-depth study before deciding whether to begin the development 

of a proposed regulation.2

 

 

2 Today’s notice, its identification of classes, and its announcement of further study of other classes 

is not itself a rule, and does not create any binding duties or obligations on any party. Additional 

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II. EPA's Approach for Identifying Additional Classes of Facilities 

EPA has worked to determine which classes of facilities it should identify in this notice for 

evaluation regarding financial responsibility requirements. In contrast to the statutory mandate 

under CERCLA Section 108(b)(1) to publish the priority notice (that EPA satisfied in July 2009), 

there is no statutory requirement for EPA to publish today’s notice. However, EPA is doing so as 

announced in the July 2009 notice.3

 As was the case with the July 2009 notice, EPA looked to the 

text of CERCLA Section 108(b) to inform its identification of facility classes. To begin with, the 

last sentence of Section 108(b)(1) states that “[p]riority in the development of such requirements 

shall be accorded to those classes of facilities...which the President determines present the highest 

level of risk of injury.” 

Examination of CERCLA Section 108(b) as a whole also reveals repeated references to the 

concept of “risk.” The first sentence of paragraph (b)(1) refers to “requirements ... that classes of 

facilities establish and maintain evidence of financial responsibility consistent with the degree and 

duration of risk” and paragraph (b)(2) states that “[t]he level of financial responsibility shall be 

initially established, and, when necessary, adjusted to protect against the level of risk which the 

President in his discretion believes is appropriate ....” (emphasis added). Accordingly, EPA chose 

to look for indicators of risk and related effects to inform the selection of classes of facilities for 

developing requirements under CERCLA Section 108(b). 

The Agency indicated in the July 2009 notice that it “may take into account factors such as: 

(1) the amounts of hazardous substances released to the environment; (2) the toxicity of these 

substances; (3) the existence and proximity of potential receptors; (4) contamination historically 

 

research, outreach to stakeholders, proposed regulations, review of public comments, and 

finalization of those regulations are needed before any facilities are subject to any financial 

responsibility requirements. 

3 See 74 FR 37213 at 37219.

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found from facilities; (5) whether the causes of this contamination still exist; (6) experiences from 

Federal cleanup programs; (7) projected costs of Federal clean-up programs; and (8) corporate 

structures and bankruptcy potential.” EPA also indicated that it would “...consider whether 

financial responsibility requirements under CERCLA Section 108(b) will effectively reduce these 

risks.” While some of the factors reflect the basic elements of risk evaluation (i.e., the probability 

of release, exposure, and toxicity4), others more closely relate to the severity of consequences that 

result when risks are realized, such as the releases’ duration and the exposures that can result if 

releases are not prevented or quickly controlled (e.g., as a result of economic constraints).5 Finally, 

the Agency identified the following specific classes of facilities for examination:6 hazardous waste 

generators,7 hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical 

manufacturers8 (see 74 FR 37213 at 37219, July 28, 2009). 

 

4

 See Risk Assessment in the Federal Government: Managing the Process. National Research 

Council. National Academy Press, Washington, DC. 1983.

5 These eight factors are similar to the eight factors the Agency considered when it evaluated the 

Hardrock Mining industry (see 74 FR 37213 at 37214), and serve the same general purpose – by 

considering such factors, the Agency can evaluate the risks posed, and thereby determine whether 

the development of a proposed rule for financial responsibility for classes within these industry 

sectors is appropriate. 

6

 The Agency indicated that the list of additional classes of facilities “may be revised as the 

Agency’s evaluation proceeds.” (See 74 FR 37213 at 37219). 

7 In the July 2009 notice, EPA identified hazardous waste generators, a diverse group of facilities, 

defined by the RCRA regulations, as a class of facilities it would consider as part of its analysis 

leading up to this Federal Register notice. However, to conduct its analysis for purposes of this 

notice, the Agency relied primarily on NAICS codes to define groups of facilities for purposes of 

comparison. The Agency believes those classes of facilities within NAICS codes 325 and 324 

(identified for the development of financial responsibility requirements in this notice), and those 

within the Hardrock Mining industry (identified for financial responsibility requirements in the July 

2009 notice), effectively cover the vast majority of hazardous waste generated (see Table 2). The 

Agency, therefore, believes that this is a more workable approach to addressing this diverse group 

of facilities. 

8 In a letter from Lisa Evans, Senior Administrative Counsel, Earth Justice, to Jim Berlow, 

Director, Program Implementation and Information Division, US EPA, dated September 1, 2009, 

Earth Justice recommended several categories of facilities for financial responsibility requirements 

under CERCLA Section 108(b) – coal mining, lumber products and wood preserving facilities, 

9
To develop the list of classes of facilities discussed in this notice, EPA’s analysis used 

information related to sites listed on the National Priorities List (NPL), data on hazardous waste 

generation from the 2007 Resource Conservation and Recovery Act (RCRA) Biennial Report (BR),

 and data from the Toxics Release Inventory (TRI).9 These information sources will be explained 

below. EPA chose these sources because they are well-established, reliable sources of information 

on facilities associated with hazardous substances, and were readily available to the Agency. 

Moreover, these data sources generally address all of the factors noted in the July 2009 notice and 

cited above, either directly or indirectly. More specifically, 

• The NPL information addresses the following factors (either directly or indirectly): (1) the 

amounts of hazardous substances released to the environment; (2) the toxicity of these 

substances; (3) the existence and proximity of potential receptors; (4) contamination 

historically found from facilities; (5) whether the causes of this contamination still exist; (6) 

experiences from Federal cleanup programs; (7) projected costs of Federal cleanup programs; 

and (8) corporate structures and bankruptcy potential.10

 

hazardous waste recycling facilities, chemical manufacturers, oil and gas refineries, coal-fired 

power plants, electronic and electric equipment manufacturers, dry cleaners, fabric manufacturers 

and tanneries, coke production facilities, radioactive products facilities, and agricultural operations. 

This letter can be found in the docket for this Federal Register notice, along with other 

correspondence related to this notice, received from: the Association of State and Territorial Solid 

Waste Management Officials; Treated Wood Council; Southern Pressure Treaters’ Association; 

Superfund Settlements Project and RCRA Corrective Action Project, and American Chemistry 

Council, American Petroleum Institute, and the Society of Chemical Manufactures and Affiliates,. 

9

 TRI estimates include all on-site releases of CERCLA hazardous substances to the land, air and 

surface water, including those disposed of in RCRA Subtitle C hazardous waste land disposal units 

and Safe Drinking Water Act (SDWA) permitted underground injection (UIC) wells. 

10 While CERCLIS, the Superfund program’s data base, and NPL site files do not account for 

corporate structures or bankruptcy potential, EPA notes that, as a practical matter and consistent 

with EPA’s “enforcement first” policies, the lack of a viable party at a site is often a consideration 

that goes into the decision to list a particular site on the NPL. 

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• The BR information addresses (either directly or indirectly) (1) the amounts of RCRA 

hazardous wastes11 generated or managed. 

• The TRI information addresses the following factors (either directly or indirectly): (1) the 

amounts of hazardous substances released to the environment; (2) the toxicity of these 

substances; and (5) whether the causes of this contamination still exist. 

The following sections describe EPA’s evaluation and its results. However, EPA notes that while, 

in general, the Agency chose to identify those classes of facilities comprising a relatively large 

percentage or amounts of hazardous substances, it should not be assumed that other industry 

classes are no longer being considered and will not be identified for future rulemakings.

A. Analysis of National Priority List Information 

The NPL is a list of national priorities for cleanups among the known or threatened releases 

of hazardous substances, pollutants, or contaminants throughout the U. S. (In addition to the list of 

sites on the NPL, file information about individual sites was also considered in developing today’s 

notice.) The Hazard Ranking System, the scoring system EPA uses to assess the relative threat 

associated with releases or potential releases from a site, is the primary method used to determine 

whether a site should be placed on the NPL.12 The HRS takes into account the three elements of 

environmental and human health risk: (1) probability of release; (2) exposure; and (3) toxicity. 

EPA generally will list on the NPL sites with scores of 28.50 or above. The HRS is a proven and 

accepted tool for evaluating and prioritizing the releases that may pose threats to human health and 

the environment throughout the nation. As of October, 2009, there were 1,495 non-Federal, 

proposed, final, and deleted NPL sites. For purposes of this analysis, the Agency assigned each of 

 

11 RCRA hazardous wastes are, under CERCLA Section 101(14), defined as CERCLA hazardous 

substances. 

12 EPA 2007 Introduction to the Hazard Ranking System (HRS). Accessed at: 

http://www.epa.gov/superfund/programs/npl_hrs/hrsint.htm

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the NPL sites the three-digit NAICS code13 that best identified the activities at the site, using 

available data and best professional judgment. The analysis thus identified the relative prevalence 

of industry sectors on the NPL.14 

Based on this analysis, the Agency identified six industry sectors, and one group of 

facilities, on which to focus further: (1) the Waste Management and Remediation Services industry 

(NAICS 562) (including municipal and industrial landfills), with 465 sites; (2) the Chemical 

Manufacturing industry (NAICS 325), with 181 sites; (3) facilities engaged in the recycling of 

materials containing CERCLA hazardous substances, with 138 sites;15 (4) the Wood Product 

Manufacturing industry (NAICS 321), with 94 sites; (5) the Fabricated Metal Product 

Manufacturing industry (NAICS 332), with 91sites; (6) the Electronics and Electrical Equipment 

Manufacturing industry (NAICS 334 and 335) with 71 sites16; and (7) the Petroleum and Coal 

Products Manufacturing industry (NAICS 324) with 30 sites. EPA focused on these seven 

industry categories because they comprise 1073 sites, or approximately 70 percent of all non-

 

13 North American Industry Classification System (NAICS) - the standard used by federal 

statistical agencies in classifying business establishments for the purpose of collecting, analyzing, 

and publishing statistical data related to the U.S. business economy. NAICS codes are available at 

www.census.gov

14 In this analysis, EPA excluded sites identified within those classes of Hardrock Mining already 

discussed in the July 2009 notice. 

15 In the Agency’s Superfund program database, some facilities were simply classified in categories 

that do not directly correspond with NAICS. Recyclers (REC), Transportation-related facilities 

(TS) and Product Storage facilities (PS) are included in these categories. 

16 In CERCLIS, the Superfund program’s data base, NPL sites are not categorized by NAICS 

codes. Rather, CERCLIS uses “site types” to describe each of the NPL sites. These site types 

include the fields: manufacturing/processing/maintenance, recycling, waste management, and 

other. Within each site type, there are various “subtypes.” Manufacturing/processing/maintenance 

contains the following subtypes: chemicals and allied products, electronic/electrical equipment, 

lumber and wood products, oil and gas refining, and other. When assigning NAICS codes to 

facilities within the subtype “electronic/electrical equipment,” the Agency could not, based on 

information from the data base, distinguish between facilities within NAICS 334 and NAICS 335, 

so conducted its analysis treating them as one industry sector. An analysis more detailed than that 

performed by the Agency for purposes of this notice will be necessary to further delineate the 

prevalence of each of these two industry sectors on the NPL. 

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Federal, proposed, finalized, and deleted sites on the NPL. The findings of the NPL analysis are 

shown in Table 1. 

TABLE 1 

Top Industries Listed on the CERCLA National Priorities List from 1981-2009 

Category or NAICS Code Includes NPL Sites Identified as: Total 

Number 

of Sites 

Percentage 

of Total 

Number of 

Sites 

562 Waste Management and 

Remediation Services 

Industrial waste facility (non-generator), municipal solid 

waste landfill; co-disposal landfills (municipal and 

industrial) 

468 30.7% 

325 Chemical Manufacturing Chemicals/chemical waste recovery 181 11.9% 

REC Recycling of materials 

containing CERCLA hazardous 

substances 

Recycled oil/reclaimed copper; solvent 

recovery/reclamation; reprocessed solvent; recovered 

metals; used oil recycling, drums/tanks recycling 

138 9.1% 

321 Wood Products 

Manufacturing 

Lumber, wood and paper bag products; wood preservers 94 6.2% 

332 Fabricated Metal Product 

Manufacturing 

Metal fabrication/finishing/coating and allied industries 91 6.0% 

334 Computer and electronic 

Product Manufacturing 

335 Electrical Equipment, 

Appliance, and Component 

Manufacturing* 

Electronic/electrical equipment 71 4.7% 

324 Petroleum and Coal 

Products Manufacturing 

Oil and gas refining, coke production 30 1.9% 

TS Transportation-related 

facilities 

Trucks/ships/trains related components 25 1.6% 

PS Product Storage Product storage/distribution 20 1.3% 

812 Personal and Laundry 

Services 

Dry cleaners 19 1.3% 

 * The Agency’s CERCLA database does not differentiate facilities in NAICS 334 from those in NAICS 335 (see

footnote 17). 

 The Agency next considered BR and TRI data. Those analyses are explained below. 

B. Analysis of RCRA Biennial Report and Toxics Release Inventory Data 

EPA, in partnership with the States, biennially collects information from large quantity 

hazardous waste generators, transporters, and treatment, storage, and disposal facilities regarding 

the generation, management, and final disposition of hazardous waste regulated under RCRA. The 

BR data, which includes the reporting facilities’ NAICS codes, shows that in 2007 there are two 

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industry sectors that generate the majority of hazardous waste17 – the Chemical Manufacturing 

industry (NAICS 325) (approximately 16.5 million tons), and the Petroleum and Coal Products 

Manufacturing industry (NAICS 324) (approximately 4.2 million tons). These two industry 

categories comprise more than 20 million tons, or approximately 65 percent of the total amount of 

hazardous waste generated annually (see Table 2), and with the Hardrock Mining industry, 

represent approximately 73 percent of all RCRA hazardous waste generated by large quantity 

generators. While the next three industry sectors – Waste Management and Remediation Services, 

Electronic and Electric Equipment Manufacturing, and Fabricated Metals Product Manufacturing – 

would include an additional 4.4 million tons (or approximately 14 percent) of additional hazardous 

waste, as is discussed later in this notice, the Agency believes, for the reasons discussed later in this 

notice, that it needs to conduct further investigation of these three industry sectors before it makes 

the decision to develop financial responsibility requirements for these classes of facilities. 

 

17 It should be noted that CERCLA hazardous substances include RCRA hazardous wastes. 

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TABLE 2 

 RCRA 2007 Biennial Reporting Data on Waste Generation of NPL-Identified 

 Industrial Sectors 

NAICS 

Code 

Description Generated 

Tons 

Percentage of Total Amount 

of Hazardous Waste 

Generated 

325 Chemical Manufacturing 16,459,890 52.7% 

324 Petroleum and Coal Products Manufacturing 4,189,468 13.4% 

562 Waste Management and Remediation Services 2,690,809 8.6% 

334-

335 

Electronic and Electric Equipment Manufacturing 1,155,014 3.7% 

332 Fabricated Metals Product Manufacturing 621,739 2.0% 

321 Wood Products Manufacturing 48,923 0.16% 

2211 Electric Power Generation, Transmission and Distribution 15,703 0.05% 

Total Amount of Hazardous Waste Generated 31,212,874 

TRI is a database that contains detailed information on nearly 650 chemicals and chemical 

categories, many of which are hazardous substances under CERCLA, that over 23,000 industrial 

and other facilities manage through disposal or other releases, recycling, energy recovery, or 

treatment. The TRI data, which includes the reporting facilities’ NAICS codes, shows that in 2007 

two industry sectors identified in the NPL analysis were also among those reporting the largest 

quantities of on-site releases (not including the Hardrock Mining industry) – i.e., the Chemical 

Manufacturing industry (NAICS 325) (reporting the largest quantity); and the Waste Management 

and Remediation Services industry (NAICS 562). In addition, another sector emerged from the 

TRI analysis -- the Electric Power Generation, Transmission and Distribution industry (NAICS 

2211) was the sector reporting the second-largest quantity of on-site releases. 18 (See Table 3.) 

These three industry sectors comprise approximately 530 million pounds, or approximately 25 

percent, of the total amount of on-site releases of CERCLA hazardous substances, and with the 

 

18 Primarily due to reporting of coal ash/combustion residue, i.e., on-site land releases of CERCLA 

hazardous substances from NAICS 221112. 

15
Hardrock Mining industry represent over 75 percent of the total amount of on-site releases of 

CERCLA hazardous substances. 

TABLE 3 

2007 TRI On-Site Releases of CERCLA Hazardous Substances for NPL-Identified 

Industrial Sectors 

NAICS 

Code 

Description On-Site 

Releases 

(1,000 lbs) 

Percentage of Total 

On-Site Releases 

325 Chemicals Manufacturing 220,246 10.2% 

2211 Electric Power Generation, Transmission and Distribution 161,053 7.5% 

562 Waste Management and Remediation Services 152,397 7.1% 

324 Petroleum and Coal Products Manufacturing 46,052 2.1% 

332 Fabricated Metals Product Manufacturing 10,292 0.5% 

321 Wood Products Manufacturing 6,479 0.3% 

334-335 Electronic and Electric Equipment Manufacturing 5,900 0.3% 

C. Conclusions from the NPL/BR/TRI analyses. 

 The analysis described above provided the Agency with seven industry sectors and one 

additional category of facilities (recyclers of materials containing CERCLA hazardous substances) 

to consider for financial responsibility requirements under CERCLA Section 108)(b) in this notice. 

EPA looked at the commonalities across the top-ranked categories, using NAICS code as the 

common identifier. EPA weighed the results of its analysis for each facility category, and then 

considered additional factors, which will be discussed below, to determine whether to develop a 

proposed rulemaking at this time. 

The classes of facilities within two industry sectors emerged as clearly appropriate for 

development of a proposed rule based on the results of the analysis -- the Chemical Manufacturing 

industry (NAICS 325) and the Petroleum and Coal Products Manufacturing industry (NAICS 324). 

Specifically, the Chemical Manufacturing industry (NAICS 325) was ranked second on the NPL 

analysis (representing approximately 12 percent of the NPL sites), ranked first on the BR analysis 

(representing approximately 53 percent of the total amount of hazardous waste generated), and 

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ranked first on the TRI analyses (representing approximately 10 percent of the total on-site 

releases). With respect to the Petroleum and Coal Products Manufacturing industry (NAICS 324), 

it ranked second on the BR analysis (representing approximately 13 percent of the total amount of 

hazardous waste generated), and fourth on the TRI analysis (representing approximately 2 percent 

of the total on-site releases). While this industry sector did rank lower on the NPL analysis, we 

would note that many petroleum refineries, as part of their operations, have released and are likely 

continuing to release hazardous substances to the environment, and thus, the actual number of 

facilities in this industry sector that have created environmental damage is much larger than as 

measured by the NPL. Based on these data, the Agency believes it is appropriate to identify the 

classes within these two industry sectors as among those for which it will develop a proposed 

rulemaking regarding financial responsibility under CERCLA Section 108(b). 

In addition, the Agency believes it is appropriate to also identify classes of facilities within 

the Electric Power Generation, Transmission, and Distribution industry (NAICS 2211) as among 

those for which it will develop a proposed rulemaking regarding financial responsibility under 

CERCLA Section 108(b). Our basis for this is several-fold. First, this industry sector ranked 

second in the TRI analysis, representing approximately 7.5 percent of the total on-site releases. 

Further, although it did not rank high in the BR analyses, it would not be expected to produce these 

results since coal combustion residuals (CCRs) are “Bevill exempt”19 wastes, and thus not subject 

to BR reporting requirements. In addition, while this industry sector was not identified in the NPL 

analysis, the Agency has documented evidence of proven damages to groundwater or surface water 

in 27 damage cases involving these wastes - 17 cases of damage to groundwater, and ten cases of 

 

19 The “Bevill” exemption is codified at 40 CFR 261.4(b)(7). 

17
damage to surface water, including ecological damages in seven of the ten. 20 Finally, a recent 

catastrophic release in Tennessee of about one billion gallons of coal ash from the Tennessee 

Valley Authority’s Kingston Plant has demonstrated the significant cleanup costs that can be 

generated by this industry sector. (This is so even though this industry sector was not identified as 

a relatively common presence on the NPL in the analysis above.) This additional information, 

which is discussed more fully in section II.C.3 of this notice, supplements the NPL, BR, and TRI 

analyses to confirm that development of proposed financial responsibility requirements for this 

industry sector is appropriate. 

 As a result of evaluating this information, the Agency is today identifying classes of 

facilities within three industries -- the Chemical Manufacturing industry (NAICS 325), the 

Petroleum and Coal Products Manufacturing industry (NAICS 324), and the Electric Power 

Generation, Transmission, and Distribution industry (NAICS 2211) as those for which the Agency 

plans to develop a proposed regulation identifying appropriate financial responsibility requirements 

under CERCLA Section 108(b). In identifying classes of facilities within these industries in this 

notice, the Agency does not intend to indicate that other classes in other industry sectors are no 

longer being considered. (See Section E for discussion of additional classes of facilities that EPA 

plans to study further before deciding whether to initiate the development of a proposed 

regulation.) 

D. Additional Information Regarding the Classes of Facilities for Which EPA Plans to Develop a 

Proposed Regulation 

 

20 The 24 cases identified in EPA’s Coal Combustion Waste Damage Case Assessments, July 9, 

2007, available at: www.regulations.gov/fdmspublic/component/main?main=Document 

Detail&d=EPA-HQ-RCRA-2006-0796-0015; with the addition of Martin Creek, Pennsylvania, 

where in August, 2005, a dam confining a 40-acre CCR surface impoundment failed, resulting in 

the discharge of 100 million gallons of coal ash and contaminant water; Gambrills, MD; and 

Kingston/TVA, TN. 

18
 As was discussed above, the Agency is identifying in this Federal Register notice the 

classes of facilities within the Chemical Manufacturing (NAICS 325), Petroleum and Coal 

Products Manufacturing (NAICS 324), and Electric Power Generation, Transmission, and 

Distribution (NAICS 2211) industries as those for which EPA will begin the development of a 

proposed rule regarding financial responsibility requirements under CERCLA Section 108(b). 

EPA identified the classes within these industry sectors on the analyses and information described 

above. 

As was also discussed above, the Agency identified, in the July 2009 notice, eight factors it 

would take into consideration when evaluating any additional classes of facilities. To take these 

factors into account in its analysis, the Agency relied on readily available, reliable sources of 

information that reflected the factors -- i.e., the NPL, BR, and TRI (see discussion in section II of 

this notice). 

After identifying the classes of facilities in the Chemical Manufacturing, Petroleum and Coal 

Products Manufacturing, and Electric Power Generation, Transmission, and Distribution industries, 

the Agency further evaluated those industry sectors by gathering additional information related to 

the eight factors, to the extent it was practicable to do so. The results verified the Agency’s 

analysis. The following discussion describes the results for each of the industry sectors, in turn. 

1. Chemical Manufacturing (NAICS 325) 

 For purposes of this Federal Register notice, EPA has included the following classes of 

facilities, which are encompassed by the NAICS code 325 definition of the “Chemical 

Manufacturing” industry: facilities involved in the transformation of organic and inorganic raw 

19
materials by a chemical process and in the formulation of products.21 As is explained below, 

chemical manufacturing facilities share common characteristics, and are thus being identified as a 

group. At the same time, those facilities included in the definition above differ such that “chemical 

manufacturing facilities” are properly considered to encompass multiple “classes” of facilities. The 

various classes in this Federal Register notice’s definition of chemical manufacturing are primarily 

involved in one or more of three general activities: (1) preparation of raw material inputs, (2) 

chemical reactions and synthesis, and (3) recovery of reaction products through purification, 

isolation, separation, drying, and a variety of other methods, to create a good that can be either sold 

as a finished material or as an intermediate for further processing by other manufacturers. 

The chemical industry is an integral part of the United States’ (U.S.) economy, converting 

various raw materials into more than 70,000 diverse products. These raw material inputs are 

generally either organic (oil, natural gas) or inorganic raw materials (ores or natural elements taken 

from the earth).22 In many instances, these raw material inputs need to undergo chemical or 

physical processes before they are introduced in the chemical reaction, and these processes tend to 

be a large source of hazardous substances. For example, in the production of chlorine, raw brine 

requires the removal of impurities, such as calcium, magnesium, and other trace metals, to obtain 

the process input sodium chloride.23 The removal of impurities leads to the formation of brine 

 

21 Within NAICS 325 belong the following: Basic Chemical Manufacturing (NAICS 3251); Resin, 

Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing (NAICS 3252); 

Pesticides, Fertilizer, and Other Agricultural Chemical Manufacturing (NAICS 3253); 

Pharmaceutical and Medicine Manufacturing (NAICS 3254); Paint, Coating, and Adhesive 

Manufacturing (NAICS 3255); Soap, Cleaning Compound, and Toilet Preparation Manufacturing 

(NAICS 3256); and Other Chemical Product and Preparation Manufacturing (NAICS 3259). 

22 Department of Energy. Office of Industrial Technologies. (2000). Energy and Environmental 

Profile of the U.S. Chemical Industry. Columbia, MD: ENERGETICS Inc. Available: 

http://www1.eere.energy.gov/industry/chemicals/tools_profile.html 

23 EPA (U.S. Environmental Protection Agency). 1995. U.S. EPA Office of Compliance Sector 

Notebook: Profile of the Inorganic Chemical Industry. EPA/310-R-95-004 SIC Code: 281. 

20
muds, a large waste stream containing the hazardous substances sulfate, chloride, and carbon 

tetrachloride.24

The next step in the chemical and allied products manufacturing process, chemical reaction 

and/or synthesis, exhibits variety both across and within sectors in the chemical manufacturing 

industry, although with the common characteristic of using a chemical process to formulate a 

product. Some examples of chemical reactions include oxidation in the formation of 

formaldehyde, and polymerization in the formation of plastic resins. Inputs will often go through 

more than one reaction. In many sectors, a reactor vessel acts as a host to the reaction, as well as 

sometimes acting as a crystallizer, heater, mixer, or evaporator.25 Chemical synthesis can be 

responsible for significant emissions of hazardous substances, including ammonia, ethylene, 

aromatics, alcohols, oxides, acids, and chlorine.26 In organic chemical manufacturing, inputs are 

generally added by either a batch process, in which all reactant chemicals are added to a reaction 

vessel at the same time and the products are emptied completely when the reaction is finished, or 

by a continuous process, in which reactants are added and products are removed at a constant rate. 

Chemicals may be emitted more at the beginning and end of the reaction during operations, such as 

vessel loading and product transfer.27,28 

 

Available on-line at: 

http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/inorganic.html 

24 International Finance Corporation, World Bank Group 2007. “Environment, Health, and Safety 

Guidelines: Large Volume Inorganic Compounds Manufacturing and Coal Tar Distillation.” 

Available at http://www.ifc.org/ifcext/sustainability.nsf/Content/EnvironmentalGuidelines

25EPA 1997. Office of Compliance Sector Notebook: Profile of the Pharmaceutical Industry. 

EPA/310-R-97-005: 283. Available on-line at: 

http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/pharmaceutica

l.html

26 EPA 2002. Office of Compliance Sector Notebook: Profile of the Organic Chemical Industry. 

EPA/310-R-02-001 SIC Code: 281. 

http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/organic.html

27 Ibid 

21
The desired end products are rarely obtained in pure form out of the reaction or synthesis 

process, and by-products and unreacted inputs must be removed. Once the reaction occurs, the 

targeted product or products must be isolated and purified, and this purification process will vary 

based on inputs, processes, and the targeted product. For example, common separation methods 

used by the organic chemical manufacturing industry include filtration, extraction, or distillation, 

the latter a method used to separate or purify volatile components from less volatile components. 

Some environmental concerns associated with distillation include releases to the air from condenser 

vents, waste streams, and wastes from cleaning. Pharmaceutical manufacturers typically utilize a 

series of separation, crystallization, purification, and drying stages in formulating a product.29 

These steps can lead to the emission of hazardous substances from uncontained filtering systems 

and dryers, and wastewaters may be formed from equipment cleaning, spills, leaks, and spent 

purification solvents. In the production of chlorine and caustic soda, classified under the inorganic 

chemical manufacturing industry, recovered chlorine gas is processed with sulfuric acid, which 

may then be released to water or disposed on the land.30 Other wastes from the production of 

chlorine and caustic soda include chlorine gas emissions (both fugitive and point sources); spent 

acids; Freon (both fugitive and point source); and pollutants originating from electrolytic cell 

materials and other system parts.31

 28 EPA 1997. Office of Compliance Sector Notebook: Profile of the Pharmaceutical Industry. 

EPA/310-R-97-005: 283. Available on-line at: 

http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/pharmaceutica

l.html

29 Ibid. 

30 EPA 1995. Office of Compliance Sector Notebook: Profile of the Pharmaceutical Industry. 

EPA/310-R-95-004: 281. Available on-line at: 

http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/inorganic.html 

31 EPA 1995. Office of Compliance Sector Notebook: Profile of the Pharmaceutical Industry. 

EPA/310-R-97-005: 283. Available on-line at: 

22
Both because of the way that the facilities covered by this Federal Register notice fit 

together, and because of the range of activities that they cover, EPA believes chemical 

manufacturing is properly identified as a group and considered to include multiple classes of 

facilities. 

a. Releases and Exposure to Hazardous Substances 

The Chemical Manufacturing industry typically operates on a large scale, with releases to the 

environment and, in some situations, subsequent exposure of humans, organisms, and ecosystems 

to hazardous substances on a similarly large scale. As was previously discussed, the Agency’s TRI 

data revealed that the Chemical Manufacturing industry released large quantities of CERCLA 

hazardous substances, approximately 220 million pounds, or approximately 10 percent of the total 

on-site releases of hazardous substances reported under TRI. This overall percentage has remained 

relatively stable since 2001, ranging from 291 million pounds of total on-site releases of hazardous 

substances in 2001 to 233 million pounds in 2006. In 2007, the majority of on-site releases of 

hazardous substances from the Chemical Manufacturing industry were to underground injection, 

with additional releases to the air, water, and land. 32

Further, according to the 2007 RCRA BR, the Chemical Manufacturing industry generated 

approximately 16.5 million tons of hazardous waste, or approximately 53 percent of the total 

amount of hazardous waste reported by large quantity generators. This waste can take a variety of 

forms, including spent solvents, distillation bottoms and side-cuts, off specification or unused toxic 

 

http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/pharmaceutica

l.html

32 See TRI data from Bill Kline, U.S. EPA. On-site Releases of ASTDR Hazardous Substances 

Reported to TRI for 2001 through 2007, by Industry and Year, October 8, 2009. 

23
chemicals, wastewater, wastewater treatment sludge, emission control sludges, filter cake, spent 

catalysts, by-products, reactor clean out wastes, and container residues.33 

Finally, the potential for releases of and exposure to hazardous substances is reflected in the 

large number of active facilities operating in the U.S. While estimates of the number of active 

chemical manufacturing facilities vary, in 2007, the Census Bureau estimated that there were 

approximately 13,000 chemical manufacturing facilities in the U.S.34 

In some cases, these wastes have led to ground and surface water contamination when 

improperly managed.35 In particular, EPA’s review of its NPL site information underscores the 

risk of chemical manufacturing facilities. To begin with, that review showed almost 180 facilities 

with sites included on the NPL. Pemaco Maywood, a four-acre facility in Maywood, California, 

that housed a chemical blending plant operating between the 1940s and 1991, is a prominent 

example of a facility with high risk to the environment and human health. During its years of 

operation, hazardous chemicals were stored in both above- and below-ground tanks, and drums 

included chlorinated and aromatic solvents, flammable liquids, petroleum hydrocarbons, and other 

VOCs. In a later study of contamination of the site, several volatile organic chemicals (VOCs) 

were identified as infiltrating soil and wells drawing from groundwater. Aqueous samples taken 

from the wells contained highly toxic hydrocarbons, such as vinyl chloride, trichloroethene (TCE), 

1,1,1-trichloroethane (TCA), 1,1- and 1,2-dichloroethenes, and 1,1-dichloroethane, all listed on the 

 

33 European Commission. Integrated Pollution Prevention and Control (IPPC). Reference 

Document on Best Available Techniques in the Large Volume Organic Chemical Industry. 2003. 

European Commission Joint Research Centre. Available at: 

<ftp://ftp.jrc.es/pub/eippcb/doc/lvo_bref_0203.pdf>. 

34 American Fact Finder. 325 Chemical Manufacturing. U.S. Census Bureau, 2007 Economic 

Census. Last Updated: March. Available: http://factfinder.census.gov/servlet/IBQTable?_bm=y&-

ds_name=EC0700CADV1&-NAICS2007=325&-_lang=en. Accessed September 9, 2009. 

35 See, for example, “NPL Site Narrative for Diaz Chemical Corporation,” available at 

www.epa.gov/superfund/sites/npl/nar1708.htm, or “NPL Site Narrative for Standard Chlorine 

Chemical Company,” available at www.epa.gov/superfund/sites/npl/nar1672.htm. 

24
2007 CERCLA Priority List of Hazardous Substances.36 The site is of particular concern because 

13 water purveyors draw groundwater from 78 wells within four miles of the site to supply 

drinking water to approximately 339,000 people. Furthermore, the site is in a mixed industrial and 

residential community, with a residential tract across the street.37 Similarly, the Woolfolk 

Chemical Superfund site, in Fort Valley, Georgia, a full-line pesticide plant formulating products in 

liquid, dust, and granular forms for the agricultural, lawn, and garden markets emitted a large 

amount of chemicals throughout its years of operation. Monitors detected metals and pesticides, 

including lead, arsenic, chlordane, DDT, lindane, and toxaphene, in on-site soil and groundwater, 

and in an open ditch south of the plant. Three of the five Fort Valley municipal water supply wells 

are within 1,000 feet of the facility, and an estimated 10,000 people obtain drinking water from 

municipal wells within three miles of the site.38,39

b. Severity of Consequences Resulting from Releases and Exposure to Hazardous Substances. 

These situations, as well as others, EPA believes, have led to, and will continue to lead to, 

impacts to public health and the environment as a result of releases and exposure of hazardous 

 

36 ATSDR (Agency for Toxic Substances and Disease Registry). 2007. “CERCLA Priority List of 

Hazardous Substances.” U.S. Department of Health and Human Services. Available: 

http://www.atsdr.cdc.gov/cercla/07list.html. CERCLA Section 104 (i), as amended by the 

Superfund Amendments and Reauthorization Act (SARA), requires ATSDR and EPA to prepare a 

list, in order of priority, of substances that are most commonly found at facilities on the NPL and 

that are determined to pose the most significant potential threat to human health due to their known 

or suspected toxicity and potential for human exposure at these NPL sites.

37 EPA 2009. NPL Site Narrative for Pemaco Maywood. Available at: 

http://www.epa.gov/superfund/sites/npl/nar1517.htm

38 EPA 2009. NPL Site Narrative for Woolfolk Chemical Works, Inc., available at: 

http://www.epa.gov/superfund/sites/nplsnl/n0401315.pdf

39 Envirofacts Warehouse, “Facility Detail Report.” Available:

http://oaspub.epa.gov/enviro/fii_master.fii_retrieve?fac_search=handler_id&fac_value=GAD00326

9578&fac_search_type=Beginning+With&postal_code=&location_address=&add_search_type=Be

ginning+With&all_programs=YES&univ_search=0&univA=1&univB=1&LIBS=&procname=&pr

ogram_search=2&report=1&page_no=1&output_sql_switch=TRUE&database_type=RCRAINFO. 

Accessed: September 4, 2009 

25
substances. Specifically, the severity of consequences posed by chemical manufacturing facilities 

is evident in the large costs associated with past and estimated future actions necessary to protect 

public health and the environment through what are often extensive and long-term remediation 

efforts. In other words, the documented expenditures for cleanup reflect efforts to correct the 

realized risks from chemical manufacturing facilities. As noted earlier, chemical manufacturing 

facilities release, and have the potential to release, large quantities of hazardous substances, which 

can affect the environment and populations. Groundwater and soil contamination require longterm management and treatment. Remediation of these chemical manufacturing facilities has 

therefore been historically costly. For the NPL sites identified in the NAICS 325 category, EPA 

has spent approximately $2.7 billion through FY 2009.40 41 For example, Whitmoyer Laboratories, 

a veterinary and pharmaceutical manufacturing plant, produced, stored, and disposed of arsenic on 

its 22-acre site. Over the years, the laboratory changed ownership and in 1964 detectable levels of 

arsenic were found in the soil, groundwater and surface water. This site was added to the NPL in 

1987, and remediation efforts included demolishing the 17 abandoned buildings and the removal of 

 

40 This number is in constant 2009 dollars, and represents the Office of Superfund Remediation and 

Technology Innovation’s (OSRTI) analysis of end of FY 2009, cumulative, site-specific, agencywide, direct expenditures of Superfund appropriated and reimbursable resources extracted from the 

EPA Integrated Financial Management System (IFMS). Expenditure data include all direct costs, 

including, but not limited to site assessments, remedial, removal, enforcement, and oversight costs. 

Data do not include indirect costs, costs incurred by private or other parties performing response 

actions, or future costs to be incurred at these sites and may not be used for cost recovery purposes. 

See email from Alan Youkeles to Elaine Eby entitled: Cost Data for NAICS Sites, October 30, 

2009. 

41 Expenditure data are converted into 2009 constant dollars using GDP deflation factors derived 

from: Table 10.1 – Gross Domestic Product and Deflators Used in the Historical Tables: 1940-

2009, from the Budget of the U.S., FY 2005 Online via GPO access. 

26
more than 50,000 tons of arsenic-contaminated waste and soils, with a projected cost of $124 

million.42,43

 Thus, EPA’s past experience with NPL sites leads it to conclude that chemical 

manufacturing facilities are likely to and continue to present a substantial financial burden that 

could be met by financial responsibility requirements. 

Common corporate structures and interrelated corporate failures within the Chemical 

Manufacturing industry also increase the likelihood of uncontrolled releases of hazardous 

substances being left unmanaged, increasing risks. In particular, the existence of a parent-subsidiary 

relationship can present several risks. First, corporate structures may allow parent corporations to 

shield themselves from liabilities of their subsidiaries.44 In a 2005 study, GAO cited chemical 

manufacturing as an example of businesses at risk of incurring substantial liability and transferring 

the most valuable assets to a parent that could not be reached for cleanup.45

Second, chemical manufacturing sites tend to change ownership, making the assignment of 

appropriate responsibility for remediation costs difficult. For instance, a 500-600 acre Brunswick, 

Georgia site that was most recently owned by LCP Chemicals has a long history of turnover 

between owners. The site was originally owned and operated by a petroleum refinery from 1919 

until 1930, while portions of the site were also owned by a paint manufacturer and an energy 

provider. Allied Chemical bought the site in the mid-1950s and manufactured caustic soda, 

 

42 Congress of the U.S. Congressional Budget Office. A CBO Study. 1994. The Total Cost of 

Cleaning Up Non-Federal Superfund Sites, at p.22. Available at: 

http://www.cbo.gov/ftpdocs/48xx/doc4845/EntireReport.pdf

43 EPA, Mid-Atlantic Superfund Site. Accessed at: 

http://www.epa.gov/reg3hwmd/npl/PAD003005014.htm

44 See United States v. Bestfoods, 542 U.S. 51, 61(1998). 45 U.S. Government Accountability Office. 2005. Environmental Liabilities: EPA Should Do More 

to Ensure That Liable Parties Meet Their Cleanup Obligations. Report to Congressional 

Requesters. GAO-05-658, pp. 21-24. Accessed at: http://www.gao.gov/highlights/d05658high.pdf 

27
chlorine, and hydrochloric acid, until the site was purchased by LCP Chemicals in 1979. 

Investigation of the area has found on-site contamination of mercury, lead and PCBs. Since being 

added to the NPL, several different potentially responsibility parties have been identified.46 

 Furthermore, there have been a number of bankruptcies in the Chemical Manufacturing 

industry that resulted in or will likely require significant Federal responses, such as: 

• When the owner/operator of Vertac Chemical Company filed for bankruptcy, it left behind 

nearly 29,000 drums of chemical waste in Jacksonville, Arkansas. EPA’s remediation 

efforts included the incineration and off-site shipment of these drums, as well as clean-up of 

contaminated soil and destruction of the remaining industrial structures. These efforts 

resulted in a cost to EPA of over $127 million and ongoing disputes over legal 

responsibility.47 

• Chemical releases from a Delaware chlorinated benzene manufacturing facility that went 

bankrupt in 2002 have led to contamination of soil, sediment, a groundwater aquifer, and 

nearby surface water. Cleanup at this site has included the completion of a groundwater 

barrier and pump-and-treat system and treatment of contaminated soils. As of 2005, EPA 

estimated that it had incurred about $28 million in cleanup costs, and that the total cost will 

eventually rise to up to $100 million.48

Considering all of this information, EPA concludes that the classes of facilities within the 

Chemical Manufacturing industry are among those for which EPA should develop a proposed 

 

46 EPA 2009. “NPL Site Narrative for LCP Chemicals Georgia.” Available at: 

http://www.epa.gov/superfund/sites/npl/nar1458.htm

47 EPA 2007. “Compliance and Enforcement Annual Results: FY2007 Superfund Enforcement.” 

Available at: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2007/2007-spsuperfund.html. 48 U.S. Government Accountability Office (US GAO). 2005. Environmental Liabilities: EPA 

Should Do More to Ensure That Liable Parties Meet Their Cleanup Obligations. Washington, D.C. 

Page 37. August 2005. GAO-05-658. www.gao.gov/cgi-bin/getrpt?GAO-05-658

28
regulation that will identify appropriate financial responsibility requirements under CERCLA 

Section 108(b). 

2. Petroleum and Coal Products Manufacturing (NAICS 324) 

For purposes of this Federal Register notice, EPA has included the following classes of 

facilities that are encompassed by the NAICS code 324 definition of the “Petroleum and Coal 

Products Manufacturing” industry: facilities that transform crude petroleum and coal into usable 

products (e.g., gasoline, diesel fuel, asphalt base and coatings, heating oil, kerosene, and liquefied 

petroleum gas).49 The dominant process in this industry sector (which we discuss in this notice) is 

petroleum refining which involves the separation of crude petroleum into component products 

through such techniques as fractionation, distillation, and/or cracking. (However, this industry 

sector includes activities, such as the production of coke oven products that are not produced at 

steel mills, including tar derivatives, ammonia, light oil derivatives, and coke oven gas.) Facilities 

in this industry sector share common characteristics, and are, thus, being identified as a group. At 

the same time, facilities included in the class differ, and thus, are properly considered to encompass 

multiple classes of facilities. The various classes in this Federal Register notice’s definition of 

petroleum refining are involved in one or more of three general activities: (1) fractionation; (2) 

straight distillation of crude oil; and (3) cracking. Depending on the product sought, any or all of 

these processes may be used. The operations that comprise this industry sector are all part of a 

sequential process of converting crude petroleum into marketable petroleum-based products, even 

though the intermediate and end products may differ. 

 

49 Within NAICS 324 belongs the following: Petroleum Refineries (NAICS 32411); Asphalt 

Paving, Roofing, and Saturated Materials Manufacturing (NAICS 32412); and Other Petroleum 

and Coal Products Manufacturing (NAICS 32419). 

29
Both because of the way that the facilities covered by this Federal Register notice fit 

together, and because of the range of activities that they cover, EPA believes petroleum and coal 

products manufacturing is properly identified as a group and considered to include multiple classes 

of facilities. Facilities not considered not to be part of the Petroleum and Coal Products 

Manufacturing industry – that is, not part of NAICS 324 -- include establishments that focus 

primarily on the further processing of refined petroleum products to produce products, such as 

petrochemicals. For example, facilities that are exclusively involved with any of the following 

processes are not considered to be part of NAICS 324 -- the Petroleum and Coal Products 

Manufacturing industry: 

• Manufacturing paper mats and felts and saturating them with asphalt or tar into rolls and 

sheets (NAICS code 322121); 

• Manufacturing synthetic lubricating oils and greases (NAICS code 325998)50; 

• Recovering natural gas and/or liquid hydrocarbons from oil and gas field gases (NAICS 

code 21111); 

• Manufacturing acyclic and cyclic aromatic hydrocarbons (i.e., petrochemicals) from refined 

petroleum or liquid hydrocarbons (NAICS code 325110); 

• Manufacturing cyclic and acyclic chemicals (except petrochemicals) (NAICS code 32519); 

and 

• Manufacturing coke oven products in steel mills (NAICS code 331111). 

a. Releases and Exposure to Hazardous Substances 

 

50 It should be noted, however, that some of these processes fall within classes identified elsewhere 

in this Federal Register notice – in this case, the classes within NAICS 325. 

30
 EPA’s research indicates that while the petroleum refining industry has facilities throughout 

the U.S., it is also geographically concentrated, with the highest number of facilities located in 

Texas (27 facilities), California (20 facilities), and Louisiana (19 facilities).51 Thus, releases to the 

environment have resulted, in some situations, in subsequent exposure of humans, organisms, and 

ecosystems to hazardous substances on a regional scale. 

 As was previously discussed, the Agency’s TRI data revealed that the Petroleum and Coal 

Products Manufacturing industry released approximately 46 million pounds of CERCLA hazardous 

substances, or approximately 2.0 percent of the total on-site releases by U.S. industry reporting to 

TRI.52 This overall percentage has remained relatively stable since 2001, ranging from 

approximately 41 million pounds of total on-site releases of hazardous substances in 2003 to 

approximately 47 million pounds in 2006. In 2007, the majority of on-site releases were to surface 

water and air, with additional releases to the land and underground injection.53 

 The potential for releases of and exposure to hazardous substances is also reflected in the 

number of active facilities operating in the U.S. In 2007, the U.S. Census Bureau estimated the 

number of active petroleum and coal products manufacturing facilities at approximately 2,300. Of 

this total, there are approximately 190 operating petroleum refining facilities.54 Currently 

operating petroleum refining facilities tend to be very large, high-volume facilities. For example, 

the aggregate output of the 93 U.S. petroleum refineries listed on the Financial Reporting System 

 

51 Energy Information Administration. U. S. Department of Energy. Refinery Capacity Report 

2009, Released June 25, 2009. Available at 

www.eia.doe.gov/oil_gas/petroleum/data_publications/refinery_capacity_data/refcapacity.html. 

52 See: TRI data from Bill Kline, EPA. Onsite Releases of ATSDR Hazardous Substances 

Reported to TRI for 2001 through 2007, By Industry and Year, October 8, 2007. 

53 See: TRI data from Bill Kline, EPA. Onsite Releases of ATSDR Hazardous Substances 

Reported to TRI for 2001 through 2007, By Industry and Year, October 8, 2007. 

54 U.S. Census Bureau, 2009. 2007 Economic Census. Accessed at: 

http://factfinder.census.gov/servlet/IBQTable?_bm=y&-ds_name=EC0731I1&-

NAICS2007=324110&-ib_type=NAICS2007&-geo_id=&-_industry=324110&-_lang=en

31
(FRS)55 was 14.17 million barrels per calendar day in 2007.56 Because refineries tend to be 

operated for decades, there is a long timeframe for potential releases and exposure of hazardous 

substances to occur. In addition, because of their need for large amounts of cooling water for 

operations, refineries tend to be located near navigable waterways or on the seashore, which likely 

increases the potential to impact groundwater, surface water, aquatic biota, and aquatic vegetation. 

Other impacts to terrestrial vegetation, wetlands, wildlife, soils, air, cultural resources, and humans 

that use these resources recreationally or for subsistence also are likely. 

Facilities in the Petroleum and Coal Products Manufacturing industry also generate 

significant quantities of hazardous wastes, which may increase the risk of releases of hazardous 

substances. According to the 2007 RCRA BR, approximately 4.2 million tons of hazardous waste 

was generated by this industrial sector (second only to the Chemical Manufacturing industry). 

These wastes, which include primary and secondary sludges, spent catalysts, filter cakes, sour 

water, heavy ends (distillation bottoms), dissolved air/nitrogen flotation (DAF/DNF), flotation 

debris, waste soils, oily sludge, tank bottom sludge, clarified slurry oil, and tank bottoms57 have the 

potential to result in adverse environmental consequences if not properly managed. Hazardous 

wastes generated by the Petroleum and Coal Products Manufacturing industry can contain 

significant concentrations of certain toxic chemicals (benzene, arsenic, and polycyclic aromatic 

hydrocarbons (PAHs)). 

 

55 FRS is a reporting system operated by the Energy Information Administration (EIA) through 

which major energy-producing companies based in the U.S. annually report their worldwide 

financial and operating data on a uniform and standardized basis via Form EIA-28.

56 EIA Official Statistics from the U.S. Government, 2009. U.S. and Foreign Petroleum Refining 

Statistics for FRS Companies. Accessed at: 

http://tonto.eia.doe.gov/cfapps/frs/frstables.cfm?tableNumber=28&startYear=1998&endYear=2007

57 See Memorandum from Cpan Lee, to Elaine Eby, EPA, entitled: Wastes Description Generated 

by Petroleum Refineries (NAICS 3241xx). November 4, 2009. 

32
In some cases, these wastes have led to ground and surface water contamination when 

improperly managed. In particular, EPA’s analysis of NPL sites shows that 30 currently listed 

NPL sites have been attributed to petroleum and coal products manufacturing processes; of this 

total, 22 have been attributed to petroleum refinery operations. Sites contaminated by these 

processes typically contain a number of different contaminants, including toxic organics, such as 

benzene, polychlorinated biphenyls, phenol, and volatile organic compounds; and heavy metals, 

such as barium, cadmium, chromium, copper, lead, selenium, and zinc. The Falcon Refinery 

provides an example of contamination resulting from petroleum refining. The Falcon Refinery site 

occupies approximately 104 acres in San Patricio County, Texas. The site was proposed to be 

added to the NPL based on evidence that hazardous substances (including arsenic, barium, 

chromium, copper, lead, manganese, mercury, nickel, selenium, vanadium, zinc, and PAHs) have 

migrated or could potentially migrate from the facility to active fisheries and sensitive 

environments within the adjacent wetlands of Redfish Bay, Aranas Bay, and Corpus Christi Bay. 

The Falcon Refinery operated intermittently since 1980, and is currently inactive. When in 

operation, the refinery operated at a capacity of 40,000 barrels per day with primary products 

consisting of diesel, fuel oil, jet fuel, kerosene, and naphtha. The Falcon Refinery processed 

material that consisted of not only crude oil, but also contained RCRA hazardous wastes, including 

EPA Hazardous Waste Nos. K048 (dissolved air flotation float), K049 (slop oil emulsion solids), 

K050 (heat exchanger bundle cleaning sludge), and K051 (API separator sludge). Other hazardous 

wastes at the site include: (1) vinyl acetate, (2) cooling tower sludges containing chromium, (3) 

non-crude oil constituents detected in a pipeline spill, (4) untreated wastewater released inside tank 

berms, and (5) leaking drums.58

 

58 See www.epa.gov/superfund/sites/npl/nar1667.htm. 

33
Another example demonstrating the mismanagement of hazardous substances at such 

facilities is the Tennessee Products site in Chattanooga, Tennessee. The site consists of two 

distinct source areas of contamination: (1) certain areas in the flood plain containing uncontrolled 

coal-tar constituents; and (2) sediments along approximately 2.5 miles of Chattanooga Creek that 

were contaminated with coal-tar constituents. Contamination in the creek was caused, in part, by a 

former coal carbonization facility (coke plant). This facility was operated from approximately 

1918 until 1987. Various companies operated the facility throughout its history. The Tennessee 

Products Corporation operated it the longest, from 1926 to 1964. Uncontrolled dumping of coal-tar 

wastes contaminated the facility, the groundwater underlying the facility, and sediments and 

surface water in Chattanooga Creek downstream of the facility. These coal-tar wastes contained 

high levels of various polynuclear aromatic hydrocarbons (PAHs). Residents from nearby housing 

projects and homes in this urban area used Chattanooga Creek for swimming, playing, and fishing 

by both children and adults. After the Tennessee Department of Environment and Conservation 

issued a health advisory for the Creek in 1983 and a fish consumption advisory in 1992, EPA 

fenced a section of the Creek to prevent public access. After the site was listed on the NPL in 

1995, EPA conducted a removal action that removed approximately 25,350 cubic yards of coal-tar 

and contaminated sediment from the site at a cost of $12 million dollars.59 From 2005 to 2007, a 

remedial action excavated approximately 107,000 tons of stabilized sediment from the creek 

channel and transported it for disposal at an off-site landfill. A protective banner also was installed 

over 5,740 linear feet of creek channel to guard against potential recontamination.60 

 

59 EPA Superfund Update. Proposed Plan Fact Sheet. Cleanup of Chattanooga Creek – Tennessee 

Products Superfund Site, Chattanooga, Hamilton County, Tennessee. August 2002. 

60 See Tennessee Products (Chattanooga Creek) at https://www.epa.gov/Region 

4/waste/npl/npltn/tennprtn.htm#progress. 

34
In addition to sites that have been listed on the NPL, EPA notes that many petroleum 

refineries, as part of their operations, have released and may be continuing to release hazardous 

substances to the environment, including to groundwater. In certain instances, the amount of 

hydrocarbons released to the groundwater is such that these refineries are actually pumping out the 

hydrocarbons from the groundwater table, and recovering them back in the refinery,61 which 

demonstrates the significant extent to which these materials have been mismanaged. 

b. Severity of Consequences Resulting from Releases and Exposure to Hazardous Substances 

 The severity of the consequences impacting human health and the environment as a result 

of releases and exposure of hazardous substances at petroleum and coal products manufacturing 

processes is evident by analyzing a number of factors. Specifically, the severity of consequences 

posed by this industry sector is evident in the large costs associated with past and estimated future 

costs necessary to protect public health and the environment through what are often extensive and 

long-term remediation efforts. In other words, the documented expenditures reflect efforts to 

correct the realized risks from petroleum and coal products manufacturing facilities. These 

facilities release hazardous substances, which have, in some instances, resulted in contamination 

that requires long-term management and treatment. Remediation of these sites, therefore, has been 

historically costly. For the NPL sites identified as petroleum refineries in the NAICS 324 category, 

 

61 RCRA Facility Investigations (RFIs) document releases to the environment from regulated units 

subject to corrective action under Subtitle C. These RFIs are used to characterize the nature, 

extent, and rate of migration of contaminant releases to soils, ground water, subsurface gas, air, and 

surface water. They also provide guidance to the regulatory agency to determine if interim 

corrective measures may be necessary. EPA has reviewed RFIs from petroleum refineries and 

finds that released hydrocarbons are being recovered from the groundwater and recovered and 

reprocessed into the facilities oil refining process. For example, Sunoco, Inc Tulsa Refinery 

includes a “Light Non-Aqueous Phase Liquid (LNAPL) Recovery Plan” in its Closure and 

Corrective Action Permit (OKD058078775-PC). 

61 See 55 FR 11798, March 29, 1990, 55 FR 40834, October 5, 1990, 56 FR 3978, February 1, 

1991, and 56 FR 13406, April 2, 1991. 

35
EPA has spent approximately $250 million through FY 2009.62 63 Thus, EPA’s past experience 

with these sites leads it to conclude that petroleum and coal products manufacturing facilities are 

likely to continue to present a substantial financial burden that could be met by financial 

responsibility requirements. Examples of such releases include: 

• The Indian Refinery – Texaco Lawrenceville site, located in Lawrenceville, Illinois, was 

active as a petroleum refinery from the early 1900s until 1995. During its operation, the 

refinery produced many products. A variety of waste products was also generated and 

disposed of or released on and off-site. Petroleum products and hazardous substances, 

including an acidic sludge (lube oil acid sludge and lube oil filter cake sludge), polycyclic 

aromatic hydrocarbons (PAHs), benzene, toluene, ethyl-benzene, xylene, cadmium, lead, 

and other metals have been detected in surface waters, soil, and in groundwater on or 

adjacent to the site. This site is being addressed in two stages – immediate actions and 

long-term actions, focusing on cleanup of the entire (940 acres) site, which are still 

ongoing. 

• The Double Eagle and 4th Street Refineries, located across the street from each other in 

Oklahoma County, Oklahoma, were proposed for listing on the NPL in 1988, subsequently 

 

62 This number is in constant 2009 dollars, and represents the Office of Superfund Remediation and 

Technology Innovation’s (OSRTI) analysis of end of FY 2009, cumulative, site-specific, agencywide, direct expenditures of Superfund appropriated and reimbursable resources extracted from the 

EPA Integrated Financial Management System (IFMS). Expenditure data include all direct costs, 

including, but not limited to site assessments, remedial, removal, enforcement, and oversight costs. 

Data do not include indirect costs, costs incurred by private or other parties performing response 

actions, or future costs to be incurred at these sites and may not be used for cost recovery purposes. 

See email from Alan Youkeles to Elaine Eby entitled: Cost Data for NAICS Sites, October 30, 

2009. 

63 Expenditure data are converted into 2009 constant dollars using GDP deflation factors derived 

from: Table 10.1 – Gross Domestic Product and Deflators Used in the Historical Tables: 1940-

2009, from the Budget of the U.S., FY 2005 Online via GPO access. 

36
remediated, and deleted from the NPL in 2008. Cleanup costs were estimated at $30 

million. 

Considering all of this information, EPA concludes that the Petroleum and Coal Products 

Manufacturing industry (NAICS 324) consists of classes of facilities for which EPA should 

develop a proposed regulation that will identify appropriate financial responsibility requirements 

under CERCLA Section 108(b). 

3. Electric Power Generation, Transmission, and Distribution (NAICS 2211).

For purposes of this Federal Register notice, EPA has included the following classes of 

facilities that are encompassed by the NAICS code 2211 definition of the “Electric Power 

Generation, Transmission and Distribution (NAICS 2211): facilities primarily engaged in 

generating, transmitting, and distributing electric power. Establishments in this industry group may 

perform one or more of the following activities: (1) generate electric energy; (2) operate 

transmission systems that convey the electricity from the generation facility to the distribution 

system; and (3) operate distribution systems that convey electric power received from the 

generation facility or the transmission system to the final consumer. 

Various sources of energy can be converted into electric energy or electricity. The major, 

or dominant, sources include fossil fuels, uranium, and water. About 72 percent of electric power 

generation in the U.S., however, comes from fossil fuels (i.e., coal, oil, or gas). Coal and natural 

gas are currently the dominant fossil fuels used by the industry. The use of coal results in large 

quantities of solid waste including coal combustion residuals (CCR).64 

The majority of the electricity generated in the U.S. is produced by facilities that employ 

steam turbine systems. The process of generating electricity from steam comprises four parts: a 

 

64 See: www.eia.doe.gov/cneaf/electricity/page/prim2/toc2.html. Electric Power Industry 

Overview 2007. 

37
heating subsystem (fuel to produce the steam), a steam subsystem (boiler and steam delivery 

system), a steam turbine, and a condenser (for condensation of used steam). Heat for the system is 

usually provided by the combustion of coal, natural gas, or oil. The fuel is pumped into the boiler’s 

furnace. The boilers generate steam in pressurized vessels in small boilers; or in water-wall tube 

systems in modern utility and industrial boilers. High-temperature, high-pressure steam drives 

turbine blades, which power the generator to produce electricity.65

Wastes from the combustion of fossil fuels include fly ash, bottom ash, boiler slag, and flue 

gas desulfurization materials. Fly ash is lightweight, uncombusted material that is carried out of 

the boiler with flue gases. The fly ash is captured in the exhaust stack by electrostatic precipitators, 

fabric filters, mechanical collectors, or scrubbers. Bottom ash is heavier uncombusted material that 

settles to the bottom of the boiler. Bottom ash does not melt and, therefore, remains in the form of 

unconsolidated ash. Boiler slag is uncombusted material that settles to the bottom of the boiler. 

Slag, unlike bottom ash, forms when operating temperatures exceed ash fusion temperature, and 

remains in a molten state until it is drained from the boiler bottom. Flue gas desulfurization 

material is produced during the process of removing sulfur oxide gases from the flue gases using 

wet or dry scrubbers.66 In addition, non-combustion wastes, such as cooling, process, and storm 

water containing hazardous substances, such as chlorine and heavy metals are also generated and 

discharged into surface waters. Burning of fossil fuels also creates air emissions of hazardous 

substances, such as volatile organic compounds (VOCs), organic hydrocarbons, and metals.67

a. Releases and Exposure to Hazardous Substances 

 

65 Profile of the Fossil Fuel Electric Power Generation Industry, EPA, September, 2007. 

66 Report to Congress: Wastes from the Combustion of Fossil Fuels: Volume 2, Methods, 

Findings, and Recommendations (EPA530-R-99-010). 

(http://www/epa.gov/epawaste/nonhaz/industrial/special/fossil/volume_2.pdf) 

67 Profile of the Fossil Fuel Electric Power Generation Industry, EPA, September, 1997. 

(http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/fossil.html) 

38
 EPA’s research indicates that the Electric Power Generation, Distribution, and 

Transmission industry operates on a large scale, with releases to the environment (and, in some 

situations subsequent exposure to humans, organisms, and ecosystems) of hazardous substances on 

a similarly large scale. As an indication of the scope or scale of this industry, the Electric Power, 

Generation, Distribution, and Transmission industry reported high levels of on-site releases to TRI 

– third in quantity after Hardrock Mining and Chemical Manufacturing. That is, the Agency’s 

2007 TRI data revealed that the Electric Power Generation, Transmission, and Distribution industry 

(NAICS 2211) reported 161 million pounds of on-site releases of CERCLA hazardous substances, 

or approximately 7.5 percent of the total on-site releases by U.S. industry reporting to TRI.68 Of 

this total, 93.8 percent (or approximately 150 million pounds) was released from fossil fuel electric 

power generation, primarily to the land, with additional on-site releases to the air and surface water. 

This overall percentage of on-site releases has been declining somewhat, ranging from 

approximately 175 million pounds of total on-site releases of hazardous substances in 2005 to 

approximately 163 million pounds in 2006.69 The types of hazardous substances that have been 

released or potentially released vary depending on the types of coal or fuel used, and may include 

aluminum, arsenic, barium, cadmium, chromium, iron, lead, magnesium, mercury, and silicon. In 

addition, a number of the hazardous substances that are released or potentially released, including 

hydrogen fluoride and arsenic, are very toxic. 

The industry reported approximately 16,000 tons of RCRA hazardous waste generated in 

the 2007 RCRA BR. However, coal combustion residuals are a very large industrial waste stream 

containing arsenic, selenium, mercury, and other toxic metals, and dwarfing the volume of 

 

68 See TRI data from Bill Kline, U.S. EPA. On-site Releases of ASTDR Hazardous Substances 

Reported to TRI for 2001 through 2007, by Industry and Year, October 8, 2009.

69 See TRI data from Bill Kline, EPA., Onsite Releases of ATSDR Hazardous Substances Reported 

to TRI for 2001 through 2007, by Industry and Year, October 8, 2009. 

39
hazardous waste generated in the U.S. In 2007, 131 million tons of CCRs were generated in the 

U.S., with 75 million tons being disposed of in landfills and surface impoundments, 49.3 million 

tons being beneficially used, and 6.7 million tons being placed in minefilling operations. These 

matreials, which include fly ash, bottom ash, boiler slag (all composed predominantly of silica and 

aluminosilicates), and flue gas desulfurization materials (predominantly Ca-SOx compounds), have 

the potential to result in adverse environmental consequences if not properly managed. Because of 

historical and current mismanagement practices, EPA is taking regulatory action under RCRA to 

regulate these materials. 

The potential for releases of and exposure to hazardous substances is also reflected in the 

number of active facilities operating in the U.S. While estimates of the number of active facilities 

in this class vary, in 2007, the Census Bureau estimated that there were 9,642 such facilities in the 

U.S., including 1,270 fossil fuel electric power generation facilities.70 

 In some cases, these wastes have led to ground and surface water contamination when 

improperly managed. In particular, the Agency’s assessment of CCRs has documented evidence of 

proven damages71 to groundwater or surface water in 27 damage cases involving CCRs - 17 to 

groundwater, and 10 to surface water, including ecological damages in seven of the ten cases.72 

 

70 U.S. Census Bureau, 2007 Economic Census. Available at: http://factfinder.census.gov. 71 Per the May 2000 Regulatory Determination (see 65 FR 32224), proven damage cases are those 

with (i) documented exceedances of primary MCLs or other health-based standards measured in 

groundwater at sufficient distance from the waste management unit to indicate that hazardous 

constituents have migrated tot the extent that they could cause human health concerns, and/or (ii) 

where a scientific study demonstrates there is documented evidence of anther type of damage to 

human health or the environment (e.g., ecological damage), and/or (iii) where there has been an 

administrative ruling or court decision with an explicit finding of specific damage to human heath 

and the environment. 

72 The 24 cases identified in EPA’s Coal Combustion Waste Damage Case Assessments, July 9, 

2007, available at: www.regulations.gov/fdmspublic/component/main?main=Document 

Detail&d=EPA-HQ-RCRA-2006-0796-0015; with the addition of Martin Creek, Pennsylvania, 

where in August, 2005, a dam confining a 40-acre CCR surface impoundment failed, resulting in 

40
Sixteen of the 17 proven damages to groundwater involved disposal in unlined units (for the 

remaining unit it is unclear whether a liner was present), which continues to occur. EPA also has 

identified 40 cases of potential damage73 to groundwater or surface water.74 Another two cases 

were determined to be potential ecological damage cases. In one recent damage case example, 

BBBS Sand and Gravel Quarries, in Gambrills, Maryland, a consent order was filed to settle an 

environmental enforcement action that was taken against the owner of a sand and gravel quarry and 

the owner of two Maryland coal fired power plants (defendants) that generated the wastes that 

contaminated the public drinking water wells in the vicinity of the sand and gravel quarry. 

Beginning in 1995, fly ash and bottom ash from the two power plants were used to fill excavated 

portions of two sand and gravel quarries. Groundwater samples collected in 2006 and 2007 from 

residential drinking water wells near the site indicated that, in certain locations, hazardous 

substances, including heavy metals and sulfates, were present at or above groundwater quality 

standards. Under the terms of the consent order, the defendants are required to pay a fine, 

remediate the groundwater in the area, and provide replacement water supplies for 40 properties. 

 In addition to these cases of proven or potential damage, EPA’s analysis of the NPL shows 

that four sites containing CCRs have been listed on the NPL: (1) Chisman Creek, Virginia; (2) 

 

the discharge of 100 million gallons of coal ash and contaminant water. Gambrills, MD; and 

Kingston/TVA, TN. 

73 Per the May 2000 Regulatory Determination (see 65 FR 32224), potential damage cases are those 

with (i) documented exceedances of primary MCLs or other health-based standards only directly 

beneath or in very close proximity to the waste source, and/or (ii) documented exceedances of 

secondary MCLs or other non-health-based standards on-site or off-site. 

74 The 39 cases of potential damages from CCR identified in EPA’s Coal Combustion Waste 

Damage Case Assessments, July 9, 2007 available at: 

www.regulations.gov/fdmspublic/component/main?main=Document Detail&d=EPA-HQ-RCRA2006-0796-0015; excluding the four damage cases from oil combustion wastes, but including 

Battlefield Golf Course, Chesapeake, Virginia. This site is a 216-acre site contoured with 1.5 

million tons of fly ash as fill material (considered a beneficial use under Virginia’s Administrative 

Code, without a liner, as long as the fly ash was placed at least two feet above groundwater and 

covered by an 18-inch soil cap). 

41
Salem Acres, Massachusetts; (e) Lemberger Landfill, Wisconsin; and (4) U.S. Department of 

Energy Oakridge Reservation, Tennessee. At these sites, groundwater and surface water 

contaminated with a variety of hazardous substances including arsenic, nickel, selenium, sulfate, as 

well as volatile organic compounds, trichloroethylene, vinyl chloride, and methylene chloride, as 

been documented. 

b. Severity of Consequences Resulting from Releases and Exposure to Hazardous Substances.

 The severity of the consequences impacting public health and the environment as a result of 

releases and exposure of hazardous substances posed by the Electric Power Generation, 

Distribution, and Transmission industry is evident in the large costs associated with past and 

estimated future costs necessary to protect public health and the environment through what are 

often extensive and long-term remediation efforts. That is, these facilities release hazardous 

substances which have, in some instances, resulted in contamination that requires long-term 

management and treatment. Remediation of these sites, therefore, has been quite costly. For 

example, the costs to clean up the damage from the recent catastrophic release in Tennessee of over 

one billion gallons of coal ash from the Tennessee Valley Authority’s Kingston Plant has been 

estimated to range from $933 million to $1.2 billion.75 In addition, for the Chisman Creek NPL 

site, EPA has spent approximately $1.4 million through September 2009.76 77

 

75 See TVA’s July 31, 2009 quarterly report, available at: 

http://www.tva.gov/kingston/admin_record/pdf/51.pdf. 

76 This number is in constant 2009 dollars, and represents the Office of Superfund Remediation and 

Technology Innovation’s (OSRTI) analysis of end of FY 2009, cumulative, site-specific, agencywide, direct expenditures of Superfund appropriated and reimbursable resources extracted from the 

EPA Integrated Financial Management System (IFMS). Expenditure data include all direct costs, 

including, but not limited to site assessments, remedial, removal, enforcement, and oversight costs. 

Data do not include indirect costs, costs incurred by private or other parties performing response 

actions, or future costs to be incurred at these sites and may not be used for cost recovery purposes. 

See email from Alan Youkeles to Elaine Eby entitled: Cost Data for NAICS Sites, October 30, 

2009. 

42
 Considering all of this information, and considering that many facilities within the Electric 

Power Generation, Distribution and Transmission industry generate coal combustion residuals, 

EPA believes that this industry consists of classes of facilities for which EPA should develop a 

proposed regulation that will identify appropriate financial responsibility requirements under 

CERCLA Section 108(b). 

E. Additional Classes of Facilities Requiring Further Study 

As mentioned previously in this notice, EPA has identified classes of facilities within four 

industry sectors – the Waste Management and Remediation Services industry NAICS 562; the 

Wood Product Manufacturing industry (NAICS 321); the Fabricated Metal Product Manufacturing 

industry (NAICS 332); and the Electronics and Electrical Equipment Manufacturing industry -- as 

well as facilities engaged in the recycling of materials containing CERCLA hazardous substances 

as those for which the Agency plans to conduct further in-depth study before deciding whether to 

begin the development of a proposed regulation. The classes of facilities within these industry 

sectors comprise a large portion of the sites on the NPL (see Table 1), and ranked highly, in some 

cases, in the Agency’s analyses of BR and TRI data (see Tables 2 and 3). However, for the 

reasons, described below, EPA is not prepared at this time to identify these classes of facilities as 

those for which the Agency will begin development of a proposed rulemaking. 

The Agency believes that a more robust analysis of the NPL information, and review of 

data from State cleanup and other types of remediation programs (e.g., EPA’s Brownfields 

program), as well as any other relevant data, should be conducted before the Agency begins the 

development of any proposed regulations for these additional classes of facilities. 

 77 Expenditure data are converted into 2009 constant dollars using GDP deflation factors derived 

from: Table 10.1 – Gross Domestic Product and Deflators Used in the Historical Tables: 1940-

2009, from the Budget of the U.S., FY 2005. Online via GPO access. 

43
1. Waste Management and Remediation Services (NAICS 562) and Facilities Engaged in the 

Recycling of Materials Containing CERCLA Hazardous Substances.

The Waste Management and Remediation Services industry ranked highest in the Agency’s 

NPL analysis (with 465 sites), and ranked highly on both the BR and TRI analyses (see Tables 1, 2 

and 3). This would appear, at first glance, to indicate that the classes of facilities within this 

industry sector should also be considered for development of proposed regulations. However, 

because of the way that this category is tracked by the Superfund program (see footnote 17), the 

industrial categories that fall within it are not as clearly delineated as was the case for some of the 

other sectors and, as a result, the data analyzed for purposes of this notice provided only a limited 

categorization of the types of facilities that are included in this category. 

Facilities that recycle materials containing CERCLA hazardous substances presented a 

similar situation. As classified on the NPL, this sector includes an assortment of operations, which 

EPA is not currently prepared to characterize. 

Therefore, before EPA decides to develop a financial responsibility regulation under 

CERCLA Section 108(b), we believe more information is needed regarding the types of facilities 

included in these categories, and the risks that they might present. Thus, the Agency is identifying 

these sectors as among those it plans to further evaluate regarding financial responsibility 

requirements under CERCLA Section 108(b). 

2. Wood Product Manufacturing (NAICS 321), Fabricated Metal Product Manufacturing (NAICS 

332), and Electronics and Electrical Equipment Manufacturing (NAICS 334 and 335). 

The three remaining industry sectors identified in the NPL analysis – the Wood Product 

Manufacturing industry, the Fabricated Metal Product Manufacturing, and the Electronics and 

Electrical Equipment Manufacturing industry – are among the industry sectors that have undergone 

significant structural or operational changes in recent years. For example, regulatory changes have 

44
affected the types of chemical substances used to treat wood and the process operations at wood 

preserving sites.78 In the case of each of these three sectors, EPA believes it is necessary to further 

investigate the extent to which these changes have affected the risks that each of these sectors 

present. Thus, the Agency is identifying these sectors as among those it plans to further evaluate 

regarding financial responsibility requirements under CERCLA Section 108(b). 

III. Request for Public Comment

Consistent with the Agency’s approach in the July 2009 notice, EPA is not requesting 

comment in this Federal Register notice on its methodology for determining that the Chemical 

Manufacturing industry, the Petroleum and Coal Manufacturing industry, and the Electrical Power 

and Generation, Transmission, and Distribution industry represent classes of facilities for which 

EPA plans to develop proposed regulations that will identify appropriate financial responsibility 

requirements under CERCLA Section 108(b). The Agency is, however, interested in receiving 

comments on several issues. 

With respect to the classes within those industries for which EPA has decided to begin the 

regulation development process -- the Chemical Manufacturing industry, the Petroleum and Coal 

Manufacturing industry, and the Electrical Power and Generation, Transmission, and Distribution 

industry -- the Agency requests information on whether EPA should develop a proposed regulation 

under CERCLA Section 108(b) for any class or classes, or for the industry as a whole, including 

information demonstrating why such financial responsibility requirements would not be appropriate 

for those particular class(es). 

 

78 See: Profile of the Lumber and Wood Products Industry. EPA, Office of Enforcement and 

Compliance Assurance. EPA 310-R-95-006. September 1995; EPA Final Best Demonstrated 

Available Technology (BDAT) Background Document for Wood Preserving Wastes FO32, FO34, 

and FO35. April 17, 1996. Available at: www.epa.gov/waste/hazard/tsd/ldr/wood/bdat_bd.pdf, 

and Memorandum from Elaine Eby, to The Record, entitled: The Wood Preserving Industry, 

2009.. 

45
 The Agency also requests the following information (for any or all of the industry 

categories discussed in this notice), which could inform its future actions: 

• Data on facility operations within these industries, and on the classes within these 

industries. 

• Data on the risk evaluation approaches used by various industries (or by industry insurers) 

when seeking (or providing) insurance or bonding coverage. 

• Data on the prevalence of financial assurance mechanisms used in various sectors, and the 

reasons therefor. 

• Information demonstrating the extent to which facilities within the industry categories are 

currently subject to financial responsibility provisions under other federal or state 

requirements. 

• Information about financial responsibility instruments, particularly, information on the type 

and duration of financial instruments currently used to demonstrate financial responsibility, 

and on the default rates of those instruments. 

• Information EPA may consider in setting levels of financial responsibility under CERCLA 

108(b) on the payment experience, including voluntary settlements, of : 

o the commercial insurance, 

o surety bond industries, and 

o State cleanup programs and their participants. 

For purposes of developing any proposed regulations, EPA expects that it will be most 

useful to receive payment amounts on a site-specific basis (including site locations, facility 

type, and usage), the basis on which these payments were calculated (including the specific 

46
types of incidents and circumstances), and the types of liabilities for which the payments 

were made. 

• Information and advice from the insurance and surety industries, and from their regulators 

and customers, on how they think they can best inform EPA as it develops regulations 

under CERCLA 108 (b). For example: 

o Are there particular companies, associations, producers, policyholders, or regulators 

EPA should contact in the development of these requirements? 

o What policy or other contractual terms should EPA consider specifying, and how 

will these support a sound financial responsibility program under CERCLA 108(b)? 

o What are the maximum amounts of coverage that insurers or sureties offer for the 

various classes noted above, how have these varied over time, and what caused the 

variations? 

• Information on the reliability, availability, and affordability of existing financial 

responsibility mechanisms. For example: 

o What has been the experience of environmental financial assurance program 

regulators who have attempted to access funds or compel performance assured by 

insurance, guarantees, surety bonds, letters of credit and self insurance? 

o What data have shown some of these mechanisms to be more effective than others? 

o If there were payment delays, what caused them? 

o If the payment of funds or desired performance did not occur, what factors 

contributed to this? 

o For regulators who do not accept self insurance, what experience or other 

information supports your reasons? 

47
o For regulators who do accept self insurance, what criteria (such as financial test 

ratios, and please be specific), ratings, or other criteria have been most effective in 

terms of striking an appropriate balance between allowing companies to use selfinsurance when they can fulfill their obligations, and disallowing those that later 

could not or would not meet their obligations? 

o Can regulators provide data on specific sites that show that guarantees, or other 

instruments, have been difficult to enforce or are otherwise problematic? 

o Are there particular regulatory requirements that may affect (either by increasing or 

decreasing) the numbers and types of issuers, e.g. banks or insurers, that would be 

willing to offer coverage under CERCLA 108(b)? 

o What factors, including those that may be beyond the Agency’s control, affect the 

availability of mechanisms and how do these factors operate? 

o What information should the Agency consider in assessing incremental, annual 

increases in the requirements? 

o Are there specific qualifications or other requirements for issuers that are necessary 

to ensure the payment of funds when needed? If so, how, if at all, would these 

qualifications affect the availability of coverage? 

o For the various mechanisms, how are prices, for example, collateral requirements 

and fees, or insurance premiums, determined, and what information should EPA use 

to assess the costs of such coverage? 

o What factors or information are used by issuers to determine the amounts of 

coverage provided? 

o How do issuers determine what types of costs should be covered or excluded? 

48
o How are fees or coverage amounts adjusted to account for risk information such as 

from risk assessments, site-specific exemptions, or positive risk management 

incentives? 

o Are there particular environmental financial responsibility programs that EPA 

should look to as models in the design and implementation of CERCLA 108(b) If 

so, what factors lead to their effectiveness or efficiency, and what independent 

assessments support these conclusions? 

o Alternatively, are there examples of practices that EPA should seek to avoid and 

what documentation supports these conclusions? 

As EPA evaluates the classes within the groups identified in this notice, in the course of 

developing a proposed regulation, or in the course of deciding whether to develop a proposed 

regulation, the Agency will consider information it receives on these issues. 

IV. Conclusion 

In today’s notice, EPA has identified classes of facilities within (1) the Chemical 

Manufacturing industry (NAICS 325), (2) the Petroleum and Coal Products Manufacturing industry 

(NAICS 324), and (3) the Electric Power Generation, Transmission, and Distribution industry 

(NAICS 2211), as those for which EPA plans to develop a proposed regulation that will identify 

any appropriate financial responsibility requirements under CERCLA Section 108(b). EPA will 

carefully examine specific activities, practices, and processes involving hazardous substances at 

these facilities, as well as Federal and State authorities, policies, and practices to determine the 

risks posed by these classes of facilities and whether requirements under CERLCA Section 108(b) 

will effectively reduce these risks. Any financial responsibility regulations developed by the 

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Agency as the result of its analysis will be proposed in the Federal Register for public notice and 

comment. 

In addition, the Agency has identified classes of facilities within: (1) the Waste 

Management and Remediation Services industry (NAICS 562), (2) facilities engaged in the 

recycling of materials containing CERCLA hazardous substances, (3) the Wood Product 

Manufacturing industry (NAICS 321), (4) the Fabricated Metal Product Manufacturing industry 

(NAICS 332), and (5) the Electronics and Electrical Equipment Manufacturing industry (NAICS 

334 and 335), as classes of facilities that require further study before EPA begins development of a 

proposed regulation under CERCLA Section 108(b). Once the in-depth analysis is complete, the 

Agency will decide whether to begin development of a proposed regulation for these classes of 

facilities79. 

 

 Dated Lisa P. Jackson, 

 Administrator 

 

79 As part of developing proposed and final rules, the Agency will consider whether facilities within 

the classes identified in this notice that have RCRA permits or are subject to interim status 

requirements under RCRA, and already are subject to RCRA financial assurance and facility-wide 

corrective action requirements, also need to be subject to financial responsibility requirements 

under CERCLA Section 108(b). In addition, EPA is aware, and will consider in its development of 

proposed and final rules, that some facilities within the classes identified in this notice may be 

subject to other financial responsibility requirements. 

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