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[Federal Register: January 6, 2010 (Volume 75, Number 3)]
[Proposed Rules]               
[Page 816-832]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ja10-20]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 320

[EPA-HQ-SFUND-2009-0265; FRL-9100-5]
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: Advance notice of proposed rulemaking (ANPRM).

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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, as necessary, a proposed regulation identifying 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 
CERCLA Section 108(b) will effectively reduce these risks.
    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 the regulatory development process. 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 February 5, 2010.

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.

[[Page 817]]

     E-mail: 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 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-HQ-SFUND-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 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 Web site 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 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 (e-mail) 
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 (e-mail) 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 Ave., NW., Washington, DC 20460. 
The Docket Facility 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, 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

[[Page 818]]

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\
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    \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.)

* * * identify those classes for which requirements will be first 
developed and publish notice of such identification in the Federal 
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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, as necessary, a proposed regulation 
identifying 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 CERCLA Section 108(b) will effectively 
reduce these risks. Any financial responsibility regulations developed 
by the Agency as the result of its analysis will be proposed in the 
Federal Register for public notice and comment.
    This notice also identifies classes of facilities within four 
additional industry sectors, as well as 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 development of a 
proposed regulation.
    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 
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.

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.\2\ 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.''
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    \2\ 74 FR 37213 at 37219.
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    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 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 toxicity 
\3\), 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). Finally, the 
Agency identified the following specific classes of facilities for 
examination: hazardous waste generators,\4\ hazardous waste recyclers, 
metal finishers, wood treatment facilities, and chemical

[[Page 819]]

manufacturers.\5\ 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, July 28, 2009).
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    \3\ National Research Council, ``Risk Assessment in the Federal 
Government: Managing the Process,'' National Academy Press, 
Washington, DC, 1983.
    \4\ 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.
    \5\ Although EPA did not solicit comment on the notice, it did 
receive correspondence related to this notice from a number of 
sources--Earth Justice; 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; American Chemistry Council; American 
Petroleum Institute; and the Society of Chemical Manufactures and 
Affiliates.
    Through this correspondence, the Agency received a number of 
comments on a range of issues related to development of financial 
responsibility requirements under CERLCA Section 108(b) including, 
but not limited to:
    Suggestions regarding additional sectors to identify for 
financial responsibility requirements,
    Concerns about the Agency's overall approach under CERCLA 
Section 108(b),
    Suggestion regarding interpretation of the statutory language,
    Suggestions for effective implementation of financial 
responsibility requirements,
    Suggestions regarding the focus of rulemaking efforts under 
CERCLA Section 108(b), and
    Industry-specific factors to consider in developing regulatory 
requirements.
    This correspondence can be found in the docket for this Federal 
Register notice. The Agency will consider and address any comments 
received as part of its proposed and final rulemakings.
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    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).\6\ 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,
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    \6\ 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.
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     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.\7\
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    \7\ 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 wastes \8\ generated or 
managed.
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    \8\ RCRA hazardous wastes are, under CERCLA Section 101(14), 
defined as CERCLA hazardous substances.
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     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.
    EPA recognizes that the NPL data reflects activity that, in some 
cases, pre-dates CERCLA, RCRA, and other legal requirements. In our 
request for comment about risks at the end of this notice, the Agency 
welcomes information about current releases of hazardous substances to 
the environment to help inform EPA's future actions.
    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 of hazardous substances from a site, is the 
primary method used to determine whether a site should be placed on the 
NPL.\9\ 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 proposed, final, and deleted non-Federal sites on the NPL. For 
purposes of this analysis, the Agency assigned each of the NPL sites 
the three-digit NAICS code 10 11 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.\12\
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    \9\ EPA 2007. ``Introduction to the Hazard Ranking System 
(HRS).'' Available at: http://www.epa.gov/superfund/programs/npl_hrs/hrsint.htm.
    \10\ 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: http://www.census.gov.
    \11\ This information can be found in the docket for this 
Federal Register notice.
    \12\ In this analysis, EPA excluded sites identified within 
those classes of Hardrock Mining already discussed in the July 2009 
notice.
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    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; \13\ (4) the Wood Product Manufacturing 
industry (NAICS 321), with 94 sites; (5) the Fabricated Metal Product 
Manufacturing industry (NAICS 332), with 91 sites; (6) the Electronics 
and Electrical Equipment Manufacturing industry (NAICS 334 and 335), 
with 71 sites; \14\

[[Page 820]]

and (7) the Petroleum and Coal Products Manufacturing industry (NAICS 
324), with 30 sites. EPA focused on these seven industry categories 
because they comprise 1,073 sites, or approximately 70 percent of all 
non-Federal, proposed, finalized, and deleted sites on the NPL. The 
findings of the NPL analysis are shown in Table 1.
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    \13\ 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.
    \14\ 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 (Computer and Electronic Product 
Manufacturing), and NAICS 335 (Electrical Equipment, Appliance, and 
Component Manufacturing), so conducted its analysis treating them as 
one industry sector (hereinafter referred to as ``the Electronics 
and Electrical Equipment Manufacturing'' industry). 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.

              Table 1--Top Industries Listed on the CERCLA National Priorities List From 1981-2009
----------------------------------------------------------------------------------------------------------------
                                                                                                      Percentage
                                                                                           Total       of total
            Category or NAICS code                 Includes NPL sites identified as:     number of    number of
                                                                                           sites        sites
----------------------------------------------------------------------------------------------------------------
562 Waste Management and Remediation Services.  Industrial waste facility (non-                 465         30.7
                                                 generator), municipal solid waste
                                                 landfill; co-disposal landfills
                                                 (municipal and industrial).
325 Chemical Manufacturing....................  Chemicals/chemical waste recovery.....          181         11.9
REC Recycling of Materials Containing CERCLA    Recycled oil/reclaimed copper; solvent          138          9.1
 Hazardous Substances.                           recovery/reclamation; reprocessed
                                                 solvent; recovered metals; used oil
                                                 recycling, drums/tanks recycling.
321 Wood Products Manufacturing...............  Lumber, wood and paper bag products;             94          6.2
                                                 wood preservers.
332 Fabricated Metal Product Manufacturing....  Metal fabrication/finishing/coating              91          6.0
                                                 and allied industries.
334 Computer and Electronic Product             Electronic/electrical equipment.......           71          4.7
 Manufacturing.
335 Electrical Equipment, Appliance, and
 Component Manufacturing*.
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
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* The Agency's CERCLA database does not differentiate facilities in NAICS 334 from those in NAICS 335 (see
  footnote 14).

    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 industry 
sectors that generate the majority of hazardous waste \15\--the 
Chemical Manufacturing industry (NAICS 325) (approximately 19.8 million 
tons), and the Petroleum and Coal Products Manufacturing industry 
(NAICS 324) (approximately 4.2 million tons). These two industry 
sectors comprise more than 24 million tons, or approximately 74 percent 
of the total amount of hazardous waste generated annually (see Table 
2), and with the Hardrock Mining industry, represent approximately 80 
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.
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    \15\ It should be noted that CERCLA hazardous substances include 
RCRA hazardous wastes.

Table 2--RCRA 2007 Biennial Reporting Data on Waste Generation of NPL-Identified Industrial Sectors--Top Ranking
                                                   NAICS Codes
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                                                                                                  Percentage of
                                                                                                 total amount of
              NAICS code                              Description                Generated tons  hazardous waste
                                                                                                    generated
----------------------------------------------------------------------------------------------------------------
325...................................  Chemical Manufacturing................       19,767,608            61.10
324...................................  Petroleum and Coal Products                   4,189,468            12.95
                                         Manufacturing.
331...................................  Primary Metal Manufacturing \16\......        2,706,145             8.37
562...................................  Waste Management and Remediation              2,690,809             8.32
                                         Services.
334-335...............................  Computer and Electric Product                 1,155,014             3.57
                                         Manufacturing/Electrical Equipment,
                                         Appliance and Component Manufacturing.
332...................................  Fabricated Metal Product Manufacturing          621,739             1.92
336...................................  Transportation Equipment Manufacturing          188,102             0.58
928...................................  National Security and International             140,946             0.43
                                         Affairs.
424...................................  Merchant Wholesalers, Nondurable Goods           76,678             0.24
326...................................  Plastics and Rubber Products                     62,887             0.19
                                         Manufacturing.
327...................................  Nonmetallic Mineral Product                      55,031             0.17
                                         Manufacturing.
333...................................  Machinery Manufacturing...............           52,117             0.17

[[Page 821]]


321...................................  Wood Product Manufacturing............           48,923             0.15
541...................................  Professional, Scientific, and                    45,288             0.14
                                         Technical Services.
561...................................  Administrative and Support Services...           43,846             0.13
339...................................  Miscellaneous Manufacturing...........           38,970             0.12
493...................................  Warehousing and Storage...............           33,443             0.10
488...................................  Support Activities for Transportation.           29,989             0.10
531...................................  Real Estate...........................           29,740             0.10
323...................................  Printing and Related Support                     27,810             0.08
                                         Activities.
322...................................  Paper Manufacturing...................           18,272             0.06
611...................................  Educational Services..................           16,684             0.05
2211..................................  Electric Power Generation,                       15,703             0.05
                                         Transmission and Distribution.
                                                                               -----------------================
----------------------------------------------------------------------------------------------------------------

    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 of hazardous substances (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), 
and was the sector reporting the second-largest quantity of on-site 
releases of hazardous substances. (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 hazardous 
substances, and with the Hardrock Mining industry represent over 75 
percent of the total amount of on-site releases of hazardous 
substances.
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    \16\ When the Agency assigned NAICS codes to the NPL sites (see 
Section II.A.), it included within the definition of Hardrock Mining 
many activities that fall within NAICS 331 Primary Metal 
Manufacturing. Thus, while Primary Metal Manufacturing ranks high in 
the TRI and BR analysis conducted for this notice, the Agency had 
already considered those releases in identifying the classes within 
Hardrock Mining for financial responsibility requirements in the 
July 2009 notice.

  Table 3--2007 TRI On-Site Releases of CERCLA Hazardous Substances for NPL-Identified Industrial Sectors--Top
                                               Ranking NAICS Codes
----------------------------------------------------------------------------------------------------------------
                                                                                     On-site      Percentage of
               NAICS code                              Description                  releases      total on-site
                                                                                   (1,000 lbs)       releases
----------------------------------------------------------------------------------------------------------------
2122...................................  Metal Ore Mining......................       1,099,573             51.1
325....................................  Chemicals Manufacturing...............         220,246             10.2
2211...................................  Electric Power Generation,                     161,053              7.5
                                          Transmission and Distribution.
331....................................  Primary Metal Manufacturing...........         156,811              7.3
562....................................  Waste Management and Remediation               152,397              7.1
                                          Services.
311....................................  Food Manufacturing....................         107,406              5.0
324....................................  Petroleum and Coal Products                     46,052              2.1
                                          Manufacturing.
322....................................  Paper Manufacturing...................          43,491              2.0
326....................................  Plastics and Rubber Products                    32,612              1.5
                                          Manufacturing.
                                         No TRI NAICS code.....................          28,578              1.3
336....................................  Transportation Equipment Manufacturing          25,921              1.2
327....................................  Nonmetallic Mineral Product                     17,669              0.8
                                          Manufacturing.
323....................................  Printing and Related Support                    11,798              0.5
                                          Activities.
332....................................  Fabricated Metal Product Manufacturing          10,292              0.5
337....................................  Furniture and Related Product                    7,180              0.3
                                          Manufacturing.
321....................................  Wood Product Manufacturing............           6,479              0.3
334-335................................  Computer and Electric Product                    5,840              0.3
                                          Manufacturing/Electrical Equipment,
                                          Appliance and Component Manufacturing.
2121...................................  Coal Mining...........................           5,473              0.2
3274...................................  Lime and Gypsum Product Manufacturing.           3,459              0.2
333....................................  Machinery Manufacturing...............           2,690              0.1
339....................................  Miscellaneous Manufacturing...........           2,488              0.1
313....................................  Textile Mills.........................           1,996              0.1
                                                                                ----------------
4247...................................  Petroleum and Petroleum Products                 1,388              0.1
                                          Merchant Wholesalers.

[[Page 822]]


    Total..............................  Amount of On-Site Releases of                2,151,723  ...............
                                          Hazardous Substances.
----------------------------------------------------------------------------------------------------------------

C. Conclusions From the NPL/BR/TRI Analyses

    As described in Section II.A. above, the analysis of the NPL 
provided the Agency with six industry sectors, and one group of 
facilities, to consider further--(1) The Waste Management and 
Remediation Services industry, (2) the Chemical Manufacturing industry, 
(3) facilities engaged in the recycling of materials containing CERCLA 
hazardous substances, (4) the Wood Product Manufacturing industry, (5) 
the Fabricated Metal Product Manufacturing industry, (6) the 
Electronics and Electrical Equipment Manufacturing industry, and (7) 
the Petroleum and Coal Products Manufacturing industry.
    The Agency then evaluated data from the BR and TRI to determine 
whether any of the seven industry categories provided by the NPL 
analysis emerged as classes of facilities for further consideration 
because of the quantities of hazardous substances generated and 
managed. Finally, the Agency considered additional factors, which will 
be discussed below, to determine whether to begin the regulatory 
development process.
    Analysis of the BR data, which is described in Section II.B. above, 
shows that two of the industry sectors identified in the NPL analysis 
generate the majority of hazardous waste--the Chemical Manufacturing 
industry, and the Petroleum and Coal Products Manufacturing industry. 
Further, the TRI data, also described in Section II.B. above, shows 
that in 2007, two industry sectors identified in the NPL analysis were 
also among those reporting the largest quantities of on-site releases 
of hazardous substances--the Chemical Manufacturing industry, and the 
Waste Management and Remediation Services industry.
    Therefore, classes of facilities within two industry sectors 
emerged as clearly appropriate for consideration based on the results 
of the analysis--the Chemical Manufacturing industry (NAICS 325) and 
the Petroleum and Coal Products Manufacturing industry (NAICS 324).\17\ 
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 61 percent of the total amount of hazardous 
waste generated), and ranked second on the TRI analysis (representing 
approximately 10 percent of the total on-site releases of hazardous 
substances). 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 sixth on the TRI analysis (representing 
approximately 2 percent of the total on-site releases of hazardous 
substances). While this industry sector did rank lower on the NPL 
analysis, we 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 environmental releases 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 plans to develop, as 
necessary, a proposed regulation identifying appropriate financial 
responsibility requirements under CERCLA Section 108(b).
---------------------------------------------------------------------------

    \17\ The Waste Management and Remediation Services industry also 
seems, at first glance, to emerge from this analysis as appropriate 
for development of a proposed rule but, for reasons described in 
section II.E. of this notice, the Agency believes more information 
is needed regarding this category of facilities.
---------------------------------------------------------------------------

    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 consider a proposed rulemaking regarding financial 
responsibility under CERCLA Section 108(b). Our basis for this is 
several-fold. Specifically, this industry sector ranked third in the 
TRI analysis, representing approximately 7.5 percent of total on-site 
releases of hazardous substances. 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'' 
\18\ 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 \19\ involving these 
wastes--17 cases of damage to groundwater, and ten cases of 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, discussed 
more fully in Section II.D.3 of this notice, supplements the NPL, BR, 
and TRI analyses to indicate that development of proposed financial 
responsibility requirements for this industry sector is appropriate.
---------------------------------------------------------------------------

    \18\ The ``Bevill'' exemption is codified at 40 CFR 261.4(b)(7).
    \19\ 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 to the extent 
that they could cause human health concerns, and/or (ii) where a 
scientific study demonstrates there is documented evidence of 
another 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 health and the environment.
    \20\ The 24 cases identified in EPA's ``Coal Combustion Waste 
Damage Case Assessments,'' July 9, 2007, available at: http://www.regulations.gov/fdmspublic/component/main?main=Document 
Detail&d=EPA-HQ-RCRA-2006-0796-0015 with the addition of Martins 
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.
---------------------------------------------------------------------------

    As a result of evaluating this information, the Agency is today 
identifying classes of facilities within three industries--the Chemical

[[Page 823]]

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, as necessary, 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 II.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

    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 plans to 
develop, as necessary, a proposed regulation identifying appropriate 
financial responsibility requirements under CERCLA Section 108(b). EPA 
identified the classes within these industry sectors based 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 
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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 muds, a large waste stream containing the 
hazardous substances sulfate, chloride, and carbon tetrachloride.\24\
---------------------------------------------------------------------------

    \22\ U.S. Department of Energy. Office of Industrial 
Technologies. (2000). ``Energy and Environmental Profile of the U.S. 
Chemical Industry.'' Columbia, MD: ENERGETICS Inc. Available at: 
http://www1.eere.energy.gov/industry/chemicals/tools_profile.html.
    \23\ EPA 1995. ``Office of Compliance Sector Notebook: Profile 
of the Inorganic Chemical Industry.'' EPA/310-R-95-004 SIC Code: 
281. Available 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.
---------------------------------------------------------------------------

    The next step in 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 
halogenation in the formation of chlorinated solvents, 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\
---------------------------------------------------------------------------

    \25\ EPA 1997. ``Office of Compliance Sector Notebook: Profile 
of the Pharmaceutical Industry.'' EPA/310-R-97-005: 283. Available 
at: http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/pharmaceutical.html.
    \26\ EPA 2002. ``Office of Compliance Sector Notebook: Profile 
of the Organic Chemical Industry.'' EPA/310-R-02-001 SIC Code: 286. 
http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/organic.html.
    \27\ Ibid.
---------------------------------------------------------------------------

    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

[[Page 824]]

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.\28\ 
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 of 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\ Ibid.
    \29\ EPA 1997. ``Office of Compliance Sector Notebook: Profile 
of the Pharmaceutical Industry.'' EPA/310-R-97-005: 283. Available 
at: http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/pharmaceutical.html.
    \30\ EPA 1995. ``Office of Compliance Sector Notebook: Profile 
of the Inorganic Chemical Industry.'' EPA/310-R-95-004: 281. 
Available at: http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/inorganic.html.
    \31\ Ibid.
---------------------------------------------------------------------------

    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, while declining, has still remained large 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\
---------------------------------------------------------------------------

    \32\ See TRI data from Bill Kline, EPA. ``On-site Releases of 
ATSDR (Agency for Toxic Substances and Disease Registry) Hazardous 
Substances Reported to TRI for 2001 through 2007, by Industry and 
Year,'' October 8, 2009.
---------------------------------------------------------------------------

    Further, according to the 2007 RCRA BR, the Chemical Manufacturing 
industry generated approximately 19.8 million tons of hazardous waste, 
or approximately 61 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 chemicals, wastewater, wastewater 
treatment sludge, emission control sludges, filter cake, spent 
catalysts, by-products, reactor clean out wastes, and container 
residues.\33\
---------------------------------------------------------------------------

    \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: http://ftp.jrc.es/eippcb/doc/lvo_bref_0203.pdf.
---------------------------------------------------------------------------

    There are a large number of active facilities operating in the 
U.S., and thus, there is potential for releases of and exposure to 
hazardous substances. 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\
---------------------------------------------------------------------------

    \34\ American Fact Finder. 325 Chemical Manufacturing. U.S. 
Census Bureau. 2007 Economic Census. Last Updated: March. Accessed 
at: http://factfinder.census.gov/servlet/IBQTable?_bm=y&-ds_name=EC0700CADV1&-NAICS2007=325&_-lang=en Accessed: September 9, 
2009.
---------------------------------------------------------------------------

    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 over 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 volatile 
organic chemicals (VOCs). In a later study of contamination of the 
site, several VOCs were identified as infiltrating soil and wells 
drawing from groundwater. Aqueous samples taken from the wells 
contained 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 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
---------------------------------------------------------------------------

    \35\ See, for example, the NPL Site Narrative for Diaz Chemical 
Corporation, available at: http://www.epa.gov/superfund/sites/npl/nar1708.htm, or the NPL Site Narrative for Standard Chlorine 
Chemical Company, available at: http://www.epa.gov/superfund/sites/npl/nar1672.htm.
    \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 at: http://www.atsdr.cdc.gov/cercla/. 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\ Facility Detail Report for Woolfolk Chemcial Works. 
Available at: http://oaspub.epa.gov/enviro/fii_master.fii_retrieve?fac_search=handler_id&fac_value=GAD003269578&fac_search_type=Beginning+With&postal_code=&location_address=&add_search_type=Beginning+With&all_programs=YES&univ_search=0&univA=1&univB=1&LIBS=&procname=&program_search=2&report=1&page_no=1&output_sql_switch=TRUE&database_type=RCRAINFOAccessed: September 4, 2009.

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[[Page 825]]

b. Severity of Consequences Resulting From Releases and Exposure to 
Hazardous Substances.
    These situations, as well as others, EPA believes, have led to, and 
may continue to lead to, impacts to public health and the environment 
as a result of releases and exposure of hazardous substances. 
Specifically, the severity of consequences posed by some chemical 
manufacturing facilities is evident in the large costs associated with 
some 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 long-term 
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 more than 
50,000 tons of arsenic-contaminated waste and soils, with a projected 
cost of $124 million.42 43
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    \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, agency-wide, 
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 Memorandum from Elaine Eby, EPA, to The 
Record, Re: ``Superfund Cost Estimates for Selected Classes of 
Facilities,'' November 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.
    \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, Whitmore Laboratories, 
Current Site Information. Accessed at: http://www.epa.gov/reg3hwmd/npl/PAD003005014.htm.
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    Thus, EPA's past experience with some 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.
    EPA believes that 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, the Government Accountability Office (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\
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    \44\ 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.
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    Second, EPA believes that 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, 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\
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    \46\ EPA 2009. NPL Site Narrative for LCP Chemicals Georgia. 
Available at: http://www.epa.gov/superfund/sites/npl/nar1458.htm.
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    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\
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    \47\ EPA 2007. ``Compliance and Enforcement Annual Results: 
FY2007 Superfund Enforcement.'' Available at: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2007/2007-sp-superfund.html.
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     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\
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    \48\ U.S. Government Accountability Office. 2005. 
``Environmental Liabilities: EPA Should Do More to Ensure That 
Liable Parties Meet Their Cleanup Obligations.'' Washington, DC GAO-
05-658, p.37. Available at: http://www.gao.gov/cgi-bin/getrpt?GAO-05-658.
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    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, as necessary, a proposed regulation 
identifying 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:

[[Page 826]]

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.
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    \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).
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    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 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\
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    \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.
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     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
    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\ Releases to the environment have resulted, in some 
situations, in subsequent exposure of humans, organisms, and ecosystems 
to hazardous substances on a regional scale.
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    \51\ Energy Information Administration. U.S. Department of 
Energy. ``Refinery Capacity Report 2009.'' Released June 25, 2009. 
Available at: http://www.eia.doe.gov/oil_gas/petroleum/data_publications/refinery_capacity_data/refcapacity.html.
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    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 of hazardous 
substances 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 of hazardous substances were to 
surface water and air, with additional releases to the land and 
underground injection.\53\
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    \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, 2009.
    \53\ Ibid.
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    There are a large number of active facilities operating in the 
U.S., and thus, there is potential for releases of and exposure to 
hazardous substances. 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 (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.
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    \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.
    \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.
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    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 bottoms \57\ have the 
potential to result in adverse environmental consequences if released 
to the environment. Hazardous wastes generated by the Petroleum and 
Coal Products Manufacturing industry can contain significant 
concentrations of

[[Page 827]]

certain toxic chemicals (benzene, arsenic, and polycyclic aromatic 
hydrocarbons (PAHs)).
---------------------------------------------------------------------------

    \57\ See ``Wastes Description Generated by Petroleum Refineries 
(NAICS 3241xx).'' November 4, 2009.
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    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 VOCs; 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.\58\ 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.
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    \58\ EPA. NPL Site Narrative for Falcon Refinery. Available at: 
http://www.epa.gov/superfund/sites/npl/nar1667.htm.
---------------------------------------------------------------------------

    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.\59\
---------------------------------------------------------------------------

    \59\ Ibid.
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    Another example demonstrating the release of hazardous substances 
at such facilities is the Tennessee Products site in Chattanooga, 
Tennessee.\60\ 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 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 
included removal of approximately 25,350 cubic yards of coal-tar and 
contaminated sediment from the site at a cost of $12 million 
dollars.\61\ 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 barrier also was installed over 5,740 linear feet of creek 
channel to guard against potential recontamination.\62\
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    \60\ EPA Superfund Update. August 2002. Proposed Plan Fact Sheet 
for Cleanup of Chattanooga Creek--Tennessee Products Superfund Site, 
Chattanooga, Hamilton County, Tennessee. Available at: http://www.epa.gov/region4/waste/npl/npltn/tnprod/chtgcrkppf.pdf.
    \61\ Ibid.
    \62\ EPA. Site Summary for Tennessee Products (Chattanooga 
Creek). Available at: http://www.epa.gov/Region4/waste/npl/npltn/tennprtn.htm#progress.
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    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.\63\ 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,\64\ which 
demonstrates the significant extent to which these materials have been 
released to the environment.
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    \63\ RCRA Facility Investigations (RFIs) document releases to 
the environment from regulated units subject to corrective action 
under Subtitle C of RCRA. 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. See, for example, the 
Closure and Corrective Action Permit of an Oklahoma Refinery, which 
includes a ``Light Non-Aqueous Phase Liquid (LNAPL) Recovery Plan'' 
(OKD058078775-PC), and which is available in the docket for this 
Federal Register notice.
    \64\ Ibid.
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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, EPA has spent approximately $250 million through FY 
2009.\65\\,\\66\ Thus, EPA's past

[[Page 828]]

experience with these sites leads it to conclude that petroleum and 
coal products manufacturing facilities may be likely to continue to 
present a substantial financial burden that could be met by financial 
responsibility requirements. Examples include:
---------------------------------------------------------------------------

    \65\ 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, agency-wide, 
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 Memorandum from Elaine Eby, EPA, to The 
Record, Re: ``Superfund Cost Estimates for Selected Classes of 
Facilities,'' November 30, 2009.
    \66\ 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.
---------------------------------------------------------------------------

     The Indian Refinery--Texaco Lawrenceville site, located in 
Lawrenceville, Illinois, was active as a petroleum refinery from the 
early 1900s until 1995. The refinery has been inactive since November 
1995, and demolition activities began in June 1998. 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), 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 (approximately 900 acre) site. The remedial investigation 
and feasibility study are still ongoing.\67\
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    \67\ EPA. 2009. NPL Fact Sheet for Indian Refinery-Texaco 
Lawrenceville. Accessed at: http://www.epa.gov/region5superfund/npl/illinois/ILD042671248.htm; Public Health Assessment, Indian 
Refinery--Texaco Lawrenceville (a/k/a. Texaco Incorporated 
Lawrenceville Refinery) Lawrenceville, Lawrence County, Illinois, 
CERCLIS No. ILD042671248. Prepared by Illinois Department of Public 
Health under Cooperative Agreement with the Agency for Toxic 
Substances and Disease Registry. March 31, 2000. Summary accessed 
at: http://www.atsdr.cdc.gov/HAC/pha/indian/ind_p1.html#summary; 
and U.S. Department of the Interior U.S. Fish and Wildlife Service, 
Illinois Department of Natural Resources, and Illinois Environmental 
Protection Agency, Final Preassessment Screen Determination for the 
Former Indian Refinery NPL Site, June 27, 2003. Accessed at: http://www.fws.gov/midwest/LawrencevilleNRDA/documents/PASD.pdf.
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     The Double Eagle Refinery and Fourth Street Abandoned 
Refinery, located adjacent to each other in Oklahoma County, Oklahoma, 
were proposed for listing on the NPL in 1988, subsequently remediated, 
and deleted from the NPL in 2008. The Double Eagle Refinery operated 
through 1980 and the Fourth Street Refinery ceased operating in the 
late 1960s or early 1970s. Both facilities collected, stored, and re-
refined used oils. The principal hazardous substances found at the 12-
acre Double Eagle Refinery site in contaminated soils and sediments 
were xylene, ethlybenzene, and trichloroethane, and lead was found in 
contaminated sludge. Principal hazardous substances found at the 27-
acre Fourth Street Abandoned Refinery site in contaminated soils and 
sediments were phenanthrene and naphthalene, and lead and chrysene were 
found in contaminated sludge. Cleanup costs were estimated at around 
$31 million, with over $21 million for the Double Eagle Refinery site 
and over $11 million for the Fourth Street Abandoned Refinery site.\68\
---------------------------------------------------------------------------

    \68\ EPA. 2009. NPL Site Status Summary for Double Eagle 
Refinery. Accessed at: http://www.epa.gov/region6/6sf/pdffiles/0601029.pdf; U.S. EPA. 2009. NPL Site Status Summary for Fourth 
Street Abandoned Refinery. Accessed at: http://www.epa.gov/earth1r6/6sf/pdffiles/0601297.pdf; and Final Close Out Report, Fourth Street 
Abandoned Refinery Superfund Site, EPA Region 6 Superfund Division, 
March, 2006.
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    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, as necessary, a 
proposed regulation identifying 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).\69\
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    \69\ U.S. Department of Energy, Energy Information 
Administration. ``Electric Power Industry Overview 2007.'' Available 
at: www.eia.doe.gov/cneaf/electricity/page/prim2/toc2.html.
---------------------------------------------------------------------------

    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 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.\70\
---------------------------------------------------------------------------

    \70\ EPA. September 1997. ``Profile of the Fossil Fuel Electric 
Power Generation Industry.'' Available at: http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/fossil.html.
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    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.\71\ 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 VOCs, organic hydrocarbons, and 
metals.\72\
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    \71\ EPA. March 1999. ``Report to Congress: Wastes from the 
Combustion of Fossil Fuels, Volume 2, Methods, Findings, and 
Recommendations'' (EPA530-R-99-010). Available at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/volume_2.pdf.
    \72\ EPA. September 1997. ``Profile of the Fossil Fuel Electric 
Power Generation Industry,'' Available at: http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/fossil.html.

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[[Page 829]]

a. Releases and Exposure to Hazardous Substances
    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 of 
hazardous substances to TRI--third in quantity after Hardrock Mining 
and Chemical Manufacturing. That is, the Agency's 2007 TRI data \73\ 
revealed that the Electric Power Generation, Transmission, and 
Distribution industry (NAICS 2211) reported 161 million pounds of on-
site releases of hazardous substances, or approximately 7.5 percent of 
the total on-site releases of hazardous substances by U.S. industry 
reporting to TRI.\74\ 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 quantity of on-site releases of 
hazardous substances 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.\75\ 
The types of hazardous substances that have been released include 
hydrogen fluoride; vanadium, zinc, copper, and lead compounds; ammonia; 
and arsenic, cobalt, barium, and selenium compounds; a number of the 
hazardous substances that are released or potentially released, 
including hydrogen fluoride and arsenic, are very toxic.
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    \73\ The analysis for this notice was conducted based on 2007 
data. Though more recent data became available before publication of 
this Federal Register notice, the Agency did not repeat its 
analysis--rather, the Agency plans to include more recent data when 
it develops the proposed rule.
    \74\ See TRI data from Bill Kline, EPA. ``On-site Releases of 
ATSDR Hazardous Substances Reported to TRI for 2001 through 2007, by 
Industry and Year,'' October 8, 2009.
    \75\ 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.
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    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 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 materials, 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.
    There are a large number of facilities operating in the U.S., and 
thus, there is potential for releases of and exposure to hazardous 
substances. 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.\76\
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    \76\ U.S. Census Bureau, 2007 Economic Census. Available at: 
http://factfinder.census.gov.
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    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 damages \77\ 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.\78\ 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 damage \79\ to 
groundwater or surface water.\80\ 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.
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    \77\ See footnote 19.
    \78\ The 24 cases identified in EPA's ``Coal Combustion Waste 
Damage Case Assessments,'' July 9, 2007, available at: http://www.regulations.gov/fdmspublic/component/main?main=Document-Detail&d=EPA-HQ-RCRA-2006-0796-0015; with the addition of Martins 
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.
    \79\ 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.
    \80\ The 39 cases of potential damages from CCR identified in 
EPA's ``Coal Combustion Waste Damage Case Assessments,'' July 9, 
2007 are available at: http://www.regulations.gov/fdmspublic/component/main?main=Document-Detail&d=EPA-HQ-RCRA-2006-0796-0015; 
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).
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    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) 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 
VOCs, trichloroethylene, vinyl chloride, and methylene chloride, have 
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,

[[Page 830]]

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.\81\ In addition, for the Chisman Creek NPL site, EPA has spent 
approximately $1.4 million through September 2009.82 83
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    \81\ See ``TVA Reports 2009 Fiscal Year Third Quarter Results.'' 
Available at: http://www.tva.gov/news/releases/julsep09/3rd_quarter.htm.
    \82\ 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, agency-wide, 
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 Memorandum from Elaine Eby, EPA, to The 
Record, Re: ``Superfund Cost Estimates for Selected Classes of 
Facilities,'' November 30, 2009.
    \83\ 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.
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    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, as necessary, a proposed regulation identifying 
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 (NAICS 334 and 335)--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 regulatory 
development process. The classes of facilities within these industry 
sectors comprise a large portion of the sites on the NPL (see Table 1), 
and ranked high, in some cases, in the Agency's analyses of the 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 the regulatory 
development process. 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 first be conducted.
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 high 
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 14), 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.
    Likewise, 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 industry, 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 affected the types of 
chemical substances used to treat wood and the process operations at 
wood preserving sites.\84\ 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).
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    \84\ EPA. September 1995. ``Profile of the Lumber and Wood 
Products Industry.'' Office of Enforcement and Compliance Assurance, 
EPA 310-R-95-006. Available at: http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/lmbrwdsn.pdf; 
and EPA. April 17, 1996. ``Final Best Demonstrated Available 
Technology (BDAT) Background Document for Wood Preserving Wastes 
FO32, FO34, and FO35.'' Available at: http://www.epa.gov/waste/hazard/tsd/ldr/wood/bdat_bd.pdf, and EPA. October 2001. ``RCRA, 
Superfund & EPCRA Call Center Training Module.'' Available at: 
http://www.epa.gov/waste/inforesources/pubs/hotline/training/drip.pdf.
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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 Products Manufacturing industry, and the 
Electrical Power and Generation, Transmission, and Distribution 
industry represent classes of facilities for which EPA plans to 
develop, as necessary, a proposed regulation identifying 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--the Chemical 
Manufacturing industry, the Petroleum and Coal Products 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).
    The Agency also requests the following information (for any or all 
of

[[Page 831]]

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 profile for facilities in the various 
industries, including data addressing the scope of past and expected 
future environmental responses.
     Data on the risk evaluation approaches used by various 
industries (or by industry insurers) when seeking (or providing) 
insurance or bonding coverage.
     Data explaining how frequently various financial assurance 
mechanisms are used by the various sectors, and the factors causing 
some to be chosen over others.
     Information demonstrating the extent to which facilities 
within the industry categories are currently subject to financial 
responsibility provisions under other federal or state requirements, 
and the manner in which these requirements are posed.
     Information about existing Federal, State, Tribal, and 
local environmental requirements for the various industries, and how 
these might affect the environmental risks posed.
     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:
    [cir] commercial insurance,
    [cir] surety bond industries, and
    [cir] 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 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 pursues the regulatory development 
process. For example:
    [cir] Are there particular companies, associations, producers, 
policyholders, or regulators EPA should contact in the development of 
these requirements?
     What policy or other contractual terms should EPA consider 
specifying, and how will these support a sound financial responsibility 
program under CERCLA 108(b)?
     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:
     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?
     What data have shown some of these mechanisms to be more 
effective than others?
     If there were payment delays, what caused them?
     If the payment of funds or desired performance did not 
occur, what factors contributed to this?
     For regulators who do not accept self insurance, what 
experience or other information supports your reasons?
     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 self-insurance 
when they can fulfill their obligations, and disallowing those that 
later could not or would not meet their obligations?
     Can regulators provide data on specific sites that show 
that guarantees, or other instruments, have been difficult to enforce 
or are otherwise problematic?
     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)?
     What factors, including those that may be beyond the 
Agency's control, affect the availability of mechanisms and how do 
these factors operate?
     What information should the Agency consider in assessing 
incremental, annual increases in the requirements?
     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?
     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?
     What factors or information are used by issuers to 
determine the amounts of coverage provided?
     How do issuers determine what types of costs should be 
covered or excluded?
     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?
     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?
     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, as necessary, a 
proposed regulation identifying 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 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

[[Page 832]]

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 
facilities.\85\
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    \85\ 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.

    Dated: December 30, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-31399 Filed 1-5-10; 8:45 am]

BILLING CODE 6560-50-P
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