816 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

TABLE 1—CROP GROUP 20: OILSEED GROUP—Continued 

Commodities Related crop subgroups 

Sweet rocket, Hesperis matronalis L. ............................................................................................................................................ 20A 

Tallowwood, Ximenia americana L. ............................................................................................................................................... 20B 

Tea oil plant, Camellia oleifera C. Abel ......................................................................................................................................... 20B 

Vernonia, Vernonia galamensis (Cass.) Less. .............................................................................................................................. 20B 

Cultivars, varieties, and/or hybrids of these. .................................................................................................................................

(iii) Table. The following Table 2 

identifies the crop subgroups for Crop 

Group 20, specifies the representative 

commodities for each subgroup and lists 

all the commodities included in each 

subgroup. 

TABLE 2—CROP GROUP 20 SUBGROUP LISTING

Representative commodities Commodities 

Crop Subgroup 20A. Rapeseed subgroup.

Rapeseed, canola varieties only. ............................................................. Borage, Crambe, Cuphea, Echium, Flax seed, Gold of pleasure, Hare’s 

ear mustard, Lesquerella, Lunaria, Meadowfoam, Milkweed, Mustard 

seed, Oil radish, Poppy seed, Rapeseed, Sesame, Sweet rocket, 

cultivars, varieties, and/or hybrids of these. 

Crop Subgroup 20B. Sunflower subgroup.

Sunflower, seed. ....................................................................................... Calendula, Castor oil plant, Chinese tallowtree, Euphorbia, Evening 

primrose, Jojoba, Niger seed, Rose hip, Safflower, Stokes aster, 

Sunflower, Tallowwood, Tea oil plant, Vernonia, cultivars, varieties, 

and/or hybrids of these. 

Crop Subgroup 20C. Cottonseed Subgroup.

Cottonseed. .............................................................................................. Cottonseed, cultivars, varieties, and/or hybrids of these. 

* * * * * 

[FR Doc. E10–31397 Filed 01–05–10; 8:45 

am] 

BILLING CODE 6560–50–S 

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). 

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. 

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Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 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 email 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 email 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 

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818 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

1Executive 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.) 2 74 FR 37213 at 37219. 

3National 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. 

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

* * * identify those classes for which 

requirements will be first developed and 

publish notice of such identification in the 

Federal Register. 

On July 28, 2009, EPA published that 

notice (see 74 FR 37213). In that notice, 

EPA identified classes of facilities 

within the Hardrock Mining industry as 

its priority for the development of 

financial responsibility requirements 

under CERCLA Section 108(b). For 

purposes of that notice, ‘‘hardrock 

mining’’ was defined as the extraction, 

beneficiation, or processing of metals 

(e.g., copper, gold, iron, lead, 

magnesium, molybdenum, silver, 

uranium, and zinc) and non-metallic, 

non-fuel minerals (e.g., asbestos, 

phosphate rock, and sulfur). 

The notice also stated the Agency’s 

belief that classes of facilities, in 

addition to those within the Hardrock 

Mining industry, may warrant the 

development of financial responsibility 

requirements under CERCLA Section 

108(b), that the Agency would continue 

to gather and analyze data on additional 

classes of facilities, and would consider 

them for possible development of 

CERCLA Section 108(b) financial 

responsibility requirements. The 

Agency indicated its plans to publish a 

Federal Register notice addressing these 

additional classes of facilities by 

December 2009. 

This Federal Register notice identifies 

additional classes of facilities—the 

classes within three industry sectors— 

for which the Agency plans to develop, 

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 indepth 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.’’ 

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 

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5Although 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. 

6TRI 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. 

7While 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. 

8RCRA hazardous wastes are, under CERCLA 

Section 101(14), defined as CERCLA hazardous 

substances. 

9EPA 2007. ‘‘Introduction to the Hazard Ranking 

System (HRS).’’ Available at: http://www.epa.gov/ 

superfund/programs/npl_hrs/hrsint.htm. 

10North 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. 

11This 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. 

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 

Continued 

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). 

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, 

• 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

• The BR information addresses 

(either directly or indirectly) (1) the 

amounts of RCRA hazardous wastes 8

generated or managed. 

• The TRI information addresses the 

following factors (either directly or 

indirectly): (1) The amounts of 

hazardous substances released to the 

environment; (2) the toxicity of these 

substances; and (5) whether the causes 

of this contamination still exist. 

EPA recognizes that the NPL data 

reflects activity that, in some cases, predates 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 nonFederal 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

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

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820 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

Agency for purposes of this notice will be necessary to further delineate the prevalence of each of these 

two industry sectors on the NPL. 

15 It should be noted that CERCLA hazardous 

substances include RCRA hazardous wastes. 

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. 

TABLE 1—TOP INDUSTRIES LISTED ON THE CERCLA NATIONAL PRIORITIES LIST FROM 1981–2009 

Category or NAICS code Includes NPL sites identified as: 

Total 

number of 

sites 

Percentage 

of total 

number of 

sites 

562 Waste Management and Remediation Services ..... Industrial waste facility (non-generator), municipal solid 

waste landfill; co-disposal landfills (municipal and industrial).

465 30.7 

325 Chemical Manufacturing .......................................... Chemicals/chemical waste recovery ................................ 181 11.9 

REC Recycling of Materials Containing CERCLA Hazardous Substances.Recycled oil/reclaimed copper; solvent recovery/reclamation; reprocessed solvent; recovered metals; 

used oil recycling, drums/tanks recycling.

138 9.1 

321 Wood Products Manufacturing ................................ Lumber, wood and paper bag products; wood preservers.94 6.2 

332 Fabricated Metal Product Manufacturing ................ Metal fabrication/finishing/coating and allied industries ... 91 6.0 

334 Computer and Electronic Product Manufacturing ...

335 Electrical Equipment, Appliance, and Component 

Manufacturing*.

Electronic/electrical equipment ........................................ 71 4.7 

324 Petroleum and Coal Products Manufacturing ......... Oil and gas refining, coke production .............................. 30 1.9 

TS Transportation-related Facilities ............................... Trucks/ships/trains related components .......................... 25 1.6 

PS Product Storage ........................................................ Product storage/distribution ............................................. 20 1.3 

812 Personal and Laundry Services .............................. Dry cleaners ..................................................................... 19 1.3 

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

TABLE 2—RCRA 2007 BIENNIAL REPORTING DATA ON WASTE GENERATION OF NPL-IDENTIFIED INDUSTRIAL SECTORS— 

TOP RANKING NAICS CODES

NAICS code Description Generated tons 

Percentage of 

total amount of 

hazardous 

waste 

generated 

325 .................... Chemical Manufacturing ....................................................................................................... 19,767,608 61.10 

324 .................... Petroleum and Coal Products Manufacturing ...................................................................... 4,189,468 12.95 

331 .................... Primary Metal Manufacturing 16 ........................................................................................... 2,706,145 8.37 

562 .................... Waste Management and Remediation Services .................................................................. 2,690,809 8.32 

334–335 ............ Computer and Electric Product Manufacturing/Electrical Equipment, Appliance and Component Manufacturing.1,155,014 3.57 

332 .................... Fabricated Metal Product Manufacturing ............................................................................. 621,739 1.92 

336 .................... Transportation Equipment Manufacturing ............................................................................ 188,102 0.58 

928 .................... National Security and International Affairs ........................................................................... 140,946 0.43 

424 .................... Merchant Wholesalers, Nondurable Goods ......................................................................... 76,678 0.24 

326 .................... Plastics and Rubber Products Manufacturing ...................................................................... 62,887 0.19 

327 .................... Nonmetallic Mineral Product Manufacturing ........................................................................ 55,031 0.17 

333 .................... Machinery Manufacturing ..................................................................................................... 52,117 0.17 

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Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 821 

16When 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 2—RCRA 2007 BIENNIAL REPORTING DATA ON WASTE GENERATION OF NPL-IDENTIFIED INDUSTRIAL SECTORS— 

TOP RANKING NAICS CODES—Continued 

NAICS code Description Generated tons 

Percentage of 

total amount of 

hazardous 

waste 

generated 

321 .................... Wood Product Manufacturing ............................................................................................... 48,923 0.15 

541 .................... Professional, Scientific, and Technical Services ................................................................. 45,288 0.14 

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 Activities ............................................................................... 27,810 0.08 

322 .................... Paper Manufacturing ............................................................................................................ 18,272 0.06 

611 .................... Educational Services ............................................................................................................ 16,684 0.05 

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

Total ........... Amount of Hazardous Waste Generated ............................................................................. 32,331,213 ..........................

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. 

TABLE 3—2007 TRI ON-SITE RELEASES OF CERCLA HAZARDOUS SUBSTANCES FOR NPL-IDENTIFIED INDUSTRIAL

SECTORS—TOP RANKING NAICS CODES

NAICS code Description 

On-site 

releases 

(1,000 lbs) 

Percentage of 

total on-site 

releases 

2122 .................. Metal Ore Mining .................................................................................................................... 1,099,573 51.1 

325 .................... Chemicals Manufacturing ....................................................................................................... 220,246 10.2 

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

331 .................... Primary Metal Manufacturing ................................................................................................. 156,811 7.3 

562 .................... Waste Management and Remediation Services ................................................................... 152,397 7.1 

311 .................... Food Manufacturing ............................................................................................................... 107,406 5.0 

324 .................... Petroleum and Coal Products Manufacturing ........................................................................ 46,052 2.1 

322 .................... Paper Manufacturing .............................................................................................................. 43,491 2.0 

326 .................... Plastics and Rubber Products Manufacturing ....................................................................... 32,612 1.5 

........................... No TRI NAICS code ............................................................................................................... 28,578 1.3 

336 .................... Transportation Equipment Manufacturing .............................................................................. 25,921 1.2 

327 .................... Nonmetallic Mineral Product Manufacturing .......................................................................... 17,669 0.8 

323 .................... Printing and Related Support Activities ................................................................................. 11,798 0.5 

332 .................... Fabricated Metal Product Manufacturing ............................................................................... 10,292 0.5 

337 .................... Furniture and Related Product Manufacturing ....................................................................... 7,180 0.3 

321 .................... Wood Product Manufacturing ................................................................................................ 6,479 0.3 

334–335 ............ Computer and Electric Product Manufacturing/Electrical Equipment, Appliance and Component Manufacturing.5,840 0.3 

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 Merchant Wholesalers .................................................. 1,388 0.1 

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822 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

17The 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. 

18The ‘‘Bevill’’ exemption is codified at 40 CFR 

261.4(b)(7). 

19Per 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. 

20The 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. 

TABLE 3—2007 TRI ON-SITE RELEASES OF CERCLA HAZARDOUS SUBSTANCES FOR NPL-IDENTIFIED INDUSTRIAL

SECTORS—TOP RANKING NAICS CODES—Continued 

NAICS code Description 

On-site 

releases 

(1,000 lbs) 

Percentage of 

total on-site 

releases 

Total ........... Amount of On-Site Releases of Hazardous Substances ...................................................... 2,151,723 ..........................

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). 

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. 

As a result of evaluating this 

information, the Agency is today 

identifying classes of facilities within 

three industries—the Chemical 

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Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 823 

21Within 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). 

22U.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. 

23EPA 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. 

25EPA 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. 

26EPA 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. 

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. 

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

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

The desired end products are rarely 

obtained in pure form out of the 

reaction or synthesis process, and byproducts and unreacted inputs must be 

removed. Once the reaction occurs, the 

targeted product or products must be 

isolated and purified, and this 

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824 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

28 Ibid. 

29EPA 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. 

30EPA 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. 

32See 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. 

33European 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. 

34American 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. 

35See, 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. 

36ATSDR (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. 

37EPA 2009. NPL Site Narrative for Pemaco 

Maywood. Available at: http://www.epa.gov/ 

superfund/sites/npl/nar1517.htm. 

38EPA 2009. NPL Site Narrative for Woolfolk 

Chemical Works, Inc. Available at: http:// 

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

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

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

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, byproducts, reactor clean out wastes, and 

container residues.33

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

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

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39Facility 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. 

40This 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. 

41Expenditure 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. 

42Congress 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. 

43EPA. Mid-Atlantic Superfund Site, Whitmore 

Laboratories, Current Site Information. Accessed at: 

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

PAD003005014.htm. 

44United States v. Bestfoods, 542 U.S. 51, 

61(1998). 

45U.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. 

46EPA 2009. NPL Site Narrative for LCP 

Chemicals Georgia. Available at: http:// 

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

47EPA 2007. ‘‘Compliance and Enforcement 

Annual Results: FY2007 Superfund Enforcement.’’ 

Available at: http://www.epa.gov/compliance/ 

resources/reports/endofyear/eoy2007/2007-spsuperfund.html. 

48U.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. 

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

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 parentsubsidiary 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

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

Furthermore, there have been a 

number of bankruptcies in the Chemical 

Manufacturing industry that resulted in 

or will likely require significant Federal 

responses, such as: 

• When the owner/operator of Vertac 

Chemical Company filed for 

bankruptcy, it left behind nearly 29,000 

drums of chemical waste in 

Jacksonville, Arkansas. EPA’s 

remediation efforts included the 

incineration and off-site shipment of 

these drums, as well as clean-up of 

contaminated soil and destruction of the 

remaining industrial structures. These 

efforts resulted in a cost to EPA of over 

$127 million and ongoing disputes over 

legal responsibility.47

• Chemical releases from a Delaware 

chlorinated benzene manufacturing 

facility that went bankrupt in 2002 have 

led to contamination of soil, sediment, 

a groundwater aquifer, and nearby 

surface water. Cleanup at this site has 

included the completion of a 

groundwater barrier and pump-and-treat 

system and treatment of contaminated 

soils. As of 2005, EPA estimated that it 

had incurred about $28 million in 

cleanup costs, and that the total cost 

will eventually rise to up to $100 

million.48

Considering all of this information, 

EPA concludes that the classes of 

facilities within the Chemical 

Manufacturing industry are among those 

for which EPA should develop, 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: 

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49Within 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). 

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. 

51Energy 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. 

52See 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. 

54U.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. 

55FRS 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. 

56EIA 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. 

57See ‘‘Wastes Description Generated by 

Petroleum Refineries (NAICS 3241xx).’’ November 

4, 2009. 

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. 

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

• 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. 

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

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. 

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 

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58EPA. NPL Site Narrative for Falcon Refinery. 

Available at: http://www.epa.gov/superfund/sites/

npl/nar1667.htm. 

59 Ibid. 

60EPA 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. 

62EPA. Site Summary for Tennessee Products 

(Chattanooga Creek). Available at: http:// 

www.epa.gov/Region4/waste/npl/npltn/ 

tennprtn.htm#progress. 

63RCRA 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. 

65This 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. 

66Expenditure 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, 

Continued 

certain toxic chemicals (benzene, 

arsenic, and polycyclic aromatic 

hydrocarbons (PAHs)). 

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. 

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

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

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. 

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 

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828 Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Proposed Rules 

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

GPO access. 

67EPA. 2009. NPL Fact Sheet for Indian RefineryTexaco 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. 

68EPA. 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. 

69U.S. Department of Energy, Energy Information 

Administration. ‘‘Electric Power Industry Overview 

2007.’’ Available at: www.eia.doe.gov/cneaf/ 

electricity/page/prim2/toc2.html. 

70EPA. 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. 

71EPA. 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. 

72EPA. 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. 

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: 

• 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

• 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 rerefined 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

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

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. Hightemperature, high-pressure steam drives 

turbine blades, which power the 

generator to produce electricity.70

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, noncombustion 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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73The 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. 

74See 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. 

75See 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. 

76U.S. Census Bureau, 2007 Economic Census. 

Available at: http://factfinder.census.gov. 

77See footnote 19. 

78The 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=DocumentDetail&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. 

79Per 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. 

80The 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=DocumentDetail&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). 

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. 

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

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. 

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, 

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81See ‘‘TVA Reports 2009 Fiscal Year Third 

Quarter Results.’’ Available at: http://www.tva.gov/ 

news/releases/julsep09/3rd_quarter.htm. 

82This 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. 

83Expenditure 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. 

84EPA. 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. 

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

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 indepth 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). 

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 

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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: 

Æ commercial insurance, 

Æ surety bond industries, and 

Æ 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: 

Æ 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 selfinsurance 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, sitespecific 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 

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85As 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. 

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

Dated: December 30, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–31399 Filed 1–5–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 225 and 252 

Defense Federal Acquisition 

Regulation Supplement; Foreign 

Participation in Acquisitions in 

Support of Operations in Afghanistan 

(DFARS Case 2009–D012) 

AGENCY: Department of Defense (DoD). 

ACTION: Proposed rule with request for 

comment. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

implement: Waiver of the section 302(a) 

of the Trade Agreements Act of 1979, as 

amended, which prohibits acquisitions 

of products or services from nondesignated countries, in order to allow 

acquisition from the nine South 

Caucasus/Central and South Asian (SC/ 

CASA) states; and Determination of 

inapplicability of the Balance of 

Payments Program evaluation factor to 

offers of products (other than arms, 

ammunition, or war materials) from the 

SC/CASA states to support operations in 

Afghanistan. 

DATES: Comment date: Comments on the 

proposed rule should be submitted in 

writing to the address shown below on 

or before March 9, 2009 to be 

considered in the formulation of the 

final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D012, 

using any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. 

Follow the instructions for submitting 

comments. 

• E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D012 in the subject 

line of the message. 

• Fax: (703) 602–7887. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. Amy 

Williams, OUSD (AT&L) DPAP (DARS), 

IMD 3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

• Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy Williams, (703) 602–0328. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On July 9, 2009, the Deputy Secretary 

of Defense issued a waiver of the 

procurement prohibition of Section 

302(a) of the Trade Agreements Act of 

1979 with regard to acquisitions by the 

Department of Defense or by the General 

Services Administration, on behalf of 

DoD, in support of operations in 

Afghanistan. This waiver applies to 

offers of products and services from the 

following nine South Caucasus/Central 

and South Asian (SC/CASA) states: 

Armenia, Azerbaijan, Georgia, 

Kazakhstan, Kyrgyzstan, Pakistan, 

Tajikistan, Turkmenistan, and 

Uzbekistan. This waiver was authorized 

by the United States Trade 

Representative by letter of June 2, 2009. 

In addition, the Deputy Secretary of 

Defense also made a determination that 

it would be inconsistent with the public 

interest to apply the provisions of the 

Balance of Payments Program to offers 

of products (other than arms, 

ammunition, or war materials) and 

construction materials from these SC/ 

CASA states acquired in direct support 

of operations in Afghanistan. For 

purposes of this rule, the term 

‘‘products other than arms, ammunition, 

or war materials’’ equates to the 

products listed at DFARS 225.401–70. 

The draft proposed rule adds a new 

section 225.7704 to Subpart 225.77, 

Acquisitions in Support of Operations 

in Iraq or Afghanistan, to specifically 

address the two determinations by the 

Deputy Secretary of Defense relating to 

acquisitions in support of operations in 

Afghanistan. 

More specifically, in order to 

implement the waiver of the Trade 

Agreements Act of 1979 prohibition on 

acquisitions of products or services from 

non-designated countries, the proposed 

rule— 

• Adds in the subpart on Trade 

Agreements (225.401 and 225.403) cross 

references to 225.7704–1; 

• Adds alternates to the trade 

agreements provision and clause 

(252.225–7020 and –7021, with 

conforming changes to the provision 

and clause prescriptions at 225.1101 

paragraphs (5) and (6)); and 

• Adds a requirement to the clauses 

at 252.225–7021 and 252.225–7045 that 

the contractor shall inform its 

government of its participation in the 

acquisition and that it generally will not 

have such opportunity in the future 

unless its government provides 

reciprocal procurement opportunities to 

U.S. products and services and 

suppliers of such products and services. 

In order to implement the 

determination of the inapplicability of 

the Balance of Payments Program to end 

products and construction material from 

the SC/CASA states, the proposed 

rule— 

• Modifies Subpart 225.5, to provide 

that whenever the acquisition is in 

support of operations in Afghanistan, 

offers of end products (other than arms, 

ammunition, and war materials) from 

SC/CASA states shall be treated the 

same as qualifying country offers; 

• Modifies Subpart 225.75, Balance of 

Payments Program, to provide 

exceptions in 225.7501(b)(1)(iii) and 

(b)(2), with cross references to 

225.7704–2; 

• Adds alternates to the Balance of 

Payments Program provisions and 

clauses at 252.225–7000, –7001, –7035, 

–7036–7044, and –7045, with 

conforming changes to the provision 

and clause prescriptions at 225.1101 

paragraphs (1), (2), (10), and (11) and 

225.7503. 

Other changes: 

• Definitions of ‘‘South Caucasus/ 

Central and South Asian (SC/CASA) 

state,’’ SC/CASA state construction 

material, and ‘‘SC/CASA state end 

product’’ have been added at 225.003, 

because these terms are used in more 

than one subpart. 

• Conforming change were made to 

the clause dates in 252.212–7001. 

• A correction is made to Alternate I 

of 252.225–7035 to delete the phrase 

mstockstill on DSKH9S0YB1PROD with PROPOSALS