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T: 202 667 4500    F: 202 667 2 356     E: eajusdc@earthjustice. org    W: www.earthjustice.org September 1, 2009

By Email

James Berlow Director, Program Implementation and Information Division U.S. Environmental Protection Agency Headquarters Ariel Rios Building 1200 Pennsylvania Avenue, N.W.

Mail Code: 5303P Washington, DC 20460

berlow.jim@epa.gov

Re: Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Requirements

Dear Mr. Berlow:

Thank you for the opportunity to comment on the Environmental Protection Agency’s (“EPA”) recent notice, “Identifi cation of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financ ial Responsibility Requirements.” 74 Fed. Reg 37213 (July 28, 2009). The following comments are submitted by Ea rthjustice on behalf of the Sierra Club, Amigos Bravos, Great Basin Resource Watch a nd Idaho Conservation League. We appreciate EPA’s willingness to consider our comments prio r to the agency’s publication of its second notice identifying classes of facilities for development of financial assurance requirements pursuant to Section 108(b) of the Comprehens ive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9608(b).

In the July notice, EPA identified hard rock mining as the class of facilities for which EPA will first develop financial responsibility re quirements. Within the class of hardrock mining, EPA included facilities that extract, beneficiate a nd process both metals and nonmetallic, non-fuel minerals. We concur that th e history of environmental damage and costly cleanups at hardrock mining site s, as well as the legacy of bankruptcy and inadequate bonding, justifies requiring adequate financial assurance fo r this class of facilities as soon as possible.

While hardrock mining must be a priority, there are numerous additional industries that generate, handle and dispose of hazardous substances that also meet EPA’ s criteria for development of financial responsibility requ irements under CERCLA Section 108(b). Taking

into consideration the substant ial risks posed by these industrie s, including the toxicity and quantity of hazardous substances, the proxim ity of potential recepto rs, the history of contamination, the cost of remediation, the incide nce of bankruptcy, and the frequency of federal2 cleanups, it is necessary that EP A significantly expand the classes of facilities for which it will develop regulations.

In addition to the personal knowledge and experience of the undersigned groups, several reports, studies and databases informed our selecti on of priority classes. The sources consulted include the CERCLA National Priorities List (“ NPL”) and the following reports: (1): US EPA, Office of Superfund Remediation and Technol ogy Innovation, Superfund Sites and Legacy Waste: An Analysis of Superfund Sites to A ssess the Feasibility of Financial Assurance Requirements Under CERCLA 108(b), November 7, 2007 (“2007 Superfund Analysis”); (2) US Government Accountability Office (“GAO”), Report to Congressional Requesters,

Environmental Liabilities: EPA Should Do More to Ensure That Liable Parties Meet Their Cleanup Obligations, August 2005 (2005 GAO Repor t); (3) Superfund S ubcommittee of the National Advisory Council for Environmenta l Policy and Technology, Final Report, April 12, 2004 (“NACEPT Final Report”), (4) US EPA, Offi ce of Solid Waste and Emergency Response, NPL Characterization Project: National Resu lts, November 1991 (“NPL Characterization Project”); and (5) US EPA, Office of So lid Waste and Emergency Response, CERCLIS Characterization Project: National Results, November 1991, (“CERCLIS Characterization Project”).

Based on the experiences of the undersigned groups and the sources named above, we conclude that the severity and frequency of environmental dama ge resulting from the activities of the following industries warrants inclusi on on EPA’s priority list of classes:

(a) Coal mining, including underground mines, co al refuse disposal operations, coal ash placement operations, and preparation plants

Surface and underground coal mining has been the source of severe contamination of tens

of thousands of miles of streams and nu merous underground water sources throughout the United States. Acid mine drainage, acid rock drainage, and chemical leaching from hazardous substances used in coal mining, processing and waste disposal commonly results in significant environmental damage around mining sites. While the Surface Mining Control and Reclamation Act (“SMCRA”) requires surface coal mining operati ons to post bonds for reclamation at surface coal mines, these bonds have often been insu fficient to address the release of hazardous substances from mine sites. State mining progr ams often do not take into account the need to clean up hazardous wastes and substances, such as degreasing solvents and other industrial chemicals, at mining operations, particularly underground mine complexes and coal preparation plants. When coal mining bonds are insufficient to cover the cost of remediation of hazardous substances, states resort to hazardous wa ste cleanup programs. One recent example in Pennsylvania, the Mon View Mine Site, result ed in a cost to the state of up to $200,000 to

remove abandoned transformers and containers of waste after the mine operator declared bankruptcy in 2005. 1

In addition, SMCRA bonding does not address th e disposal of hazardous substances, such as coal ash, in coal mines. Approximately 25 m illion tons of coal ash are disposed in mines every year without financial assura nce. The toxic waste is creati ng a legacy of contamination of

1 See http://www.depweb.state.pa.us/news/cwp/view.asp?a=3&q=548229 (last checked August 20, 2009).3 groundwater and surface water for which ther e is no guarantee of funds for cleanup. 2 In addition, SMCRA does not regulate deep mines and long wall coal mining, which pose substantial risks to groundwater, surface water, sediments and soils. While coal mines do not represent a significant number of sites on the NPL, the large nu mber of operating mines, the enormity of the waste disposal operations occurring at these s ites, and the documented absence of adequate financial assurance warrants incl usion of this class on EPA’s priority list.

(b) Lumber products and wood preserving facilities

EPA has documented severe environmental damages from lumber and wood preserving facilities, and this industry is well represented on the Superfund NPL. In EPA’s 1991 NPL Characterization Project, lumber and wood pres erving sites constituted almost 10% of all manufacturing sites on the NPL, and in certain regions, the number of wood treatment NPL sites is much higher. NPL Characterization Project at 33. In EPA Region 4, w ood treatment facilities make up over 45% of all manu facturing sites on the NPL. 3

Lumber products and wood preserving sites often present significant environmental contamination that is both difficult and expensiv e to clean up. EPA’s 2007 report, “Analysis of 40 Potential TSDs: Potential RCRA Treatment, Storag e, and Disposal Facil ities Proposed to the Superfund National Priority List after 1990,” descri bed the 40 wood treatment facilities recently proposed to the NPL and noted the large percenta ge of operators who were unwilling or unable to pay for the cleanup, due to bankruptcy or other reasons. 4 The report determined that the Superfund expenditures at these 40 facili ties alone totaled at least $425 million. 5

Additional government studies have also singled out lumber and wood preserving facilities. The 2005 GAO Report cited wood treatmen t facilities as an industry “with a high risk for contamination requiring clean up” under fe deral programs. 2005 GAO Report at 11. In addition, EPA’s 2007 Superfund Analysis found that of the 306 post-1990 NPL sites identified as potentially affected by the fa ilure to require fina ncial assurance, 18 were wood treatment facilities. 2007 Superfund Analysis at 35. The to tal expenditures for these sites were estimated at over $500 million. Id. as 38. Lastly, the high cost of cleanup at wood processing sites was confirmed in the 2004 NACEPT Superfund Subcomm ittee Final Report, which found that of the 142 “mega-sites” on the NPL, defined as thos e sites where cleanup costs exceed $50 million, 6%

were classified as wood treatment f acilities. NACEPT Final Report at 15.

(c) Hazardous waste recycling f acilities, including hazardous secondary materials recycling operations

Hazardous waste recycling facil ities also make up a significant percentage of Superfund NPL sites. EPA’s 1991 NPL Characterization Proj ect found that recycling sites constituted over

2 See National Academies of Science, Managing Coal Combustion Residues in Mines, March 2006.

3 See US EPA, NPL Characterizati on Project: Region 4 Results, November 1991 at 41.

4 US EPA, Office of Solid Waste, Anal ysis of 40 Potential TSDs: Potential RCRA Treatment, Storage, and Disposal Facilities Proposed to the Superfund National Pr iority List after 1990, January 19, 2007.

5 Id . at 8. If more recent EPA analyses indicate that the wood preserving industry is effectively captured under RCRA Part B permits (and therefore subject to financial assurance requirements), it may not be necessary to impose CERCLA financial assurance requirements, as well.4 12% of all NPL sites, the third single larg est category after manuf acturing facilities and municipal landfills. NPL Characterization Pr oject at 32. Further, EPA’s 2007 Superfund Analysis confirmed that recycling facilities still play a major role on the NPL. In that analysis,

EPA found that of 70 NPL sites where on-site acti vities after 1990 contributed to contamination, 17 were recycling facilities, with total cleanup costs of $102 million

. 2007 Superfund Analysis at iii. When the larg er universe of 306 post-1990 NPL site s were considered, the report found that 28 recycling faciliti es represented a total cleanup cost of $131 million. Id. at 6. The report noted that the average cleanup cost was over $6 million per site. Id. at 31.

In fact, EPA has recently very closely examined the damage caused by hazardous waste recycling in a 2007 report entitled “An Assessment of Environmenta l Problems Associated with the Recycling of Hazardous Secondary Materials.” 6 This report documented 209 sites where hazardous waste recycling facilitie s contaminated groundwater, surf ace water, air, sediment and

soil. Over 100 of these sites were classified as CERCLA sites, and 46 were listed on the NPL. 7
The large number of hazardous waste recycling sites on the NPL, the evidence of continuing contamination by the industry, the high cost of site cleanup, and the high incidence of bankruptcy warrants listing of this class on EPA’s priority list.

(d) Chemical manufacturers

Chemical manufacturing facilities similarly have constituted a very significant number of sites on the Superfund NPL. EPA’s 1991 NPL Charact erization Project iden tified chemical and allied products as the largest single category (over 33%) in the manuf acturing sector of NPL

sites. NPL Characteri zation Project at 33.

Additional studies confirm th e continuing waste management problems at chemical manufacturing facilities. The 2005 GAO Report speci fically cited chemical manufacturing as an industry “with a high risk for contamination requiring clean up.” 2005 GAO Report at 11. In addition, of the 306 NPL sites identified in EPA’s 2007 Superfund Analysis, EPA identified 25 “chemical and allied products” sites with total cleanup costs of $94 million. 2007 Superfund Analysis at 37. The report notes that the average cleanup cost is $7.4 million per site. Id. at 31. The high cost of cleanup at chemical manuf acturing sites was also confirmed in the 2004 NACEPT Superfund Subcommittee Final Report, wh ich found that of the 142 “mega-sites” on the NPL, 15% were classified as chemical ma nufacturing facilities. NACEPT Final Report at

15.

(e) Metal finishing faciliti es (including metal fabr ication and coating)

Metal finishing facil ities also have significant repr esentation on the Superfund NPL. EPA’s 1991 NPL Characterization Project note d that fabricated metal products and electroplating constitute over 31% of all manufacturing sites on the NPL. NPL Characterization Project at 33. Costs are ofte n high to remediate these sites, as soil and water are commonly

6 US EPA, Office of Solid Waste, An Assessment of En vironmental Problems Associated with the Recycling of Hazardous Secondary Materials, Ja nuary 11, 2007 at Appendix 2.

7 Id. at 11.5 contaminated with heavy metals, vo latile organic compounds, and acids. 8 According to EPA’s 2007 Superfund Analysis, of the 306 post-1990 NPL s ites, 15 metal fabrication facilities represented over $111 million in cleanup costs

. 2007 Superfund Analysis at 37. The severe contamination caused by this industry, its promin ence on the NPL, and the large numbers of still operating metal finishing facilities warrant its listing as a priority class.

(f) Oil and gas refineries

Petroleum refining and related industries made up 8.5% of all manufa cturing sites listed on the Superfund NPL before 1991. NPL Character ization Project at 33. In EPA Region 9, 10% of the NPL manufacturing sites in th e region are oil and gas refineries. 9 In EPA Region 6, over 26% of the manufacturing sites on its 1991 CERC LIS list are petroleum refiners and related

industries. 10 Cleanup costs are also high at refinery sites. According to EPA’s 2007 Superfund Analysis, five oil and gas refinery sites re quired over $18.9 million in cleanup costs. 2007 Superfund Analysis at 37. Given the past history of contaminat ion and high cost of cleanup, oil and gas refineries should be listed as a priority class.

(g) Coal-fired power plants

The waste generated by coal-fired power pl ants has escaped federal regulation for decades. Consequently hundreds of millions of tons of coal combusti on wastes (including fly ash, bottom ash, boiler slag and flue gas desulfur ization sludge) are disp osed in hundreds of under-regulated waste ponds, pits, quarries and landfills across the coun try. Two examples of NPL sites resulting from the unregulated disposal of coal combustion wastes are the U.S. DOE Oak Ridge Reservation, located in Anders on County, Tennessee and the Chisman Creek Superfund Site, located in York County, VA. 11 EPA has documented the widespread damage caused by coal combustion wastes in a 2007 compe ndium of sites contaminated by the wastes. 12

The report describes 70 sites throughout the Unite d States where disposal of coal combustion wastes contaminated surface water and groundwater.

Also, according to EPA’s 1991 NPL Characteriza tion Project, 2% of the manufacturing sites on the Superfund NPL are from electric po wer and distribution. NPL Characterization Project at 33. Regionally, the percentage of el ectric power generating sites is significantly higher. In Region 10, electric power production and distribution sites constitute 6.7% of the manufacturing sites on the NPL. 13 These sites may reflect contamination caused by coal

combustion wastes as well as other wastes relate d to power generation. Thus it is clear that electric power generating facilities have cause d multiple sites requiring federal cleanup, thus

8 US EPA, Office of Research and De velopment, Technical Approaches to Characterizing and Cleaning up Metal Finishing Sites under the Brownfield Initiative, March 1999 at 5.

9 US EPA, “NPL Characterization Project: Region 9 Results, November 1991 at 33.

10 US EPA, “CERCLIS Characterization Project: Region 6 Results”, November 1991 at 33.

11 EPA ID numbers TN1890090003 and VAD980712913, respectively.

12 US EPA, Office of Solid Waste, Co al Combustion Waste Damage Case Assessments, EPA Docket No. EPA-HQRCRA-2006-0786, July 9, 2007.

13 US EPA, NPL Characterization Project: Region 6 Results, November 1991 at 33.6 justifying their inclusion on EPA’s priority list.

(h) Electronic and electric equipment manufacturers

Electronic and electric equi pment manufacturers are well represented on the Superfund NPL. According to EPA’s 1991 NPL Characterizati on Project, this sector constitutes over 13% of the manufacturing sites on the NPL. NPL Characterization Project at 33. The 2004 NACEPT Superfund Subcommittee Final Report found that of the 142 “mega-sites” on the NPL, 5% were

classified as electronic/el ectrical equipment facilities. NACEPT Final Report at 15.

Regionally electronic and electrical equi pment manufacturers may represent a high percentage of NPL sites. In EPA Region 9, for ex ample, these sites make up 44% of the region’s

NPL sites. 14 In Santa Clara County, CA, the manufact uring of computer components created 23 Superfund sites, including 19 NPL sites. 15 Highly toxic contaminan ts at the sites include trichloroethylene, trichloroethane and pol ychlorinated biphenyls (PCBs), which have contaminated soil and the underlying aquifer. The high cost of clea nup, the large number of sites, and the threat of bankruptcy warrant in clusion of this class on EPA’s priority list.

(i) Dry cleaners

Pollution from dry cleaning facilities is a well-recognized problem throughout the United States. In 1995, there were over 30,000 co mmercial dry cleaning facilities operating nationally. 16 The widespread use of solvents, such as perchloroethylene, by dry cleaners has caused serious groundwater, soil, and air contamination at numerous sites. The 2005 GAO Report specifically identified dry cleaning faci lities as industries w ith a “high risk for contamination requiring cleanup” under federal programs. 2005 GAO Report at 11. Furthermore, in EPA’s 2007 Superfund Analysis, 14 dr y cleaning facilities were identified on the NPL, having cleanup costs exceeding $75 million. 2007 Superfund Analysis at ii. Although the sites tend to be small in size, th e cleanup costs at dry cleaning f acilities are substa ntial. The 2007 Superfund Analysis notes that the average site cleanup cost is $5.5 million per site. Id. at 31. Given the thousands of sites, the highly toxic natu re of the solvents used by the facilities, and the low-profit nature of the business (resulting in undercapitalized facili ties), the dry cleaning industry should be placed on EP A’s priority list of classes.

(j) Fabric manufacturers and tanneries

Fabric manufacturers and tanners have also been historically we ll represented on the Superfund NPL. EPA’s 1991 NPL Characterization Project notes that textile mills alone constituted 2.4 percent of the NPL manufacturing industry sites. NPL Characterization Project at 33 EPA’s 2007 Superfund Analysis identified 7 NPL sites (post- 1990) with a total cleanup cost exceeding $117 million. Id . at 38. While less information was readily available concerning

14 US EPA, NPL Characterization Project: Region 9 Results, November 1991 at 33.

15 See Silicon Valley Toxics Coalition at http://www.svtc.org/site/P ageServer?pagename=svtc_silicon_valley_toxic_tour (last checked August 20, 2009).

16 US EPA, Office of Compliance, Sect or Notebook Project, Profile of the Dry Cleaning Industry, September 1995

at 5.7 fabric manufacturers and tanne ries than for other industrie s on this list, the historic contamination, high cost of cleanup and continuing problems at active sites may justify inclusion on the EPA priority list.

(k) Coke production facilities

Coke production has spawned numerous Superfund sites. EPA’s 2007 Superfund Analysis notes that four NPL sites were identif ied at coke production fac ilities after 1990, with a total cleanup cost of over $36 million. 2007 Supe rfund Analysis at 38. These sites tend to be large, and contaminants often include PAHs , mercury, and heavy metals, which commonly migrate to groundwater, surface water and sediments. The high cost of cleanup and the fact that

the coke and steel industries have been plagued with bankruptcies 17 justify inclusion on the EPA’s priority list of classes.

(l) Radioactive products facilities

Radioactive product facilities represent a smalle r number of facilities on the NPL than the other categories on this list, but the sites tend to be large and extremely costly to remediate. EPA’s 2007 Superfund Analysis identif ied four NPL sites at radioac tive product facilities listed after 1990, but the total cost of cleanup was ove r $240 million. 2007 Superfund Analysis at 38. The 2004 NACEPT Superfund Subcommittee Final Repor t noted that 4% of the cost of the 142 “mega-sites” on the NPL could be attributed to radioactive product sites. NACEPT Final Report at 15. The extremely high cost of remediation and the high risk associated with these sites justifies their inclusion on EPA’s priority list.

(m) Agricultural operations, including confined animal feeding operations (“CAFOs”)

Numerous sites at agricultural operati ons are also found on the NPL and CERCLIS

databases. The 1991 NPL Charact erization Project notes that 0.6% of NPL manufacturing sites are in the agricultural se ctor. NPL Characterization Project at 33. This jumps to 5.1%, when one looks at non-NPL Superfund s ites described in the CERCLIS Characterization Project. CERCLIS Characterization Project at 33. EPA’s 2007 Superfund Analysis identified five NPL sites (post-1990) at agricultural facilities ha ving total cleanup costs of over $21 million. 2007 Superfund Analysis at 38.

In addition to these Superfund sites, conf ined animal feeding operations (“CAFOs”) present a new and growing source of toxic po llution to surface and underground water. A 2008 report from the GAO found that over the past 30 years, the number of CAFOs increased about 230 percent, rising from approximately 3,600 operations in 1982 to almost 12,000 in 2002. 18
Large CAFOs can produce more than 1.6 million tons of manure a year -- more raw waste than some U.S. cities generate annually. 19 The GAO report also noted that the clustering of CAFOs

17 See, for example, Kaiser Steel Corp oration, Sharon Steel Corporation, and the Hudson Refinery NPL sites.

18 U.S. Government Accountability Office, Concentrated Animal Feeding Operations: EPA Needs More Information and a Clearly Defined Strategy to Protect Air and Wa ter Quality from Pollutants of Concern, GAO-08-944, September 4 2008 at 4.

19 Id . at 5.8 in certain geographic areas may result in large am ounts of manure that cannot be effectively used as fertilizer on adjacent cropland, thereby increa sing the potential of pol lutants to reach nearby waters and degrade water quality. Accordi ng to the GAO report, si nce 2002, 15 governmentsponsored or peer-reviewed studies have examined air and water quality i ssues associated with CAFOs and have directly linked ai r and water pollutants from animal waste to specific health or environmental impacts. 20

Given the NPL and CERCLA sites identified at agricultural operations and the high potential for more damage in view of the pr oliferation of CAFOs, EPA should include these facilities in its list of priority classes.

While the above classes warrant inclusion as priority classes ba sed on our knowledge and experience, we understand that there may be ot her classes of facilities where risk from generation and handling of hazardous substances also justifies inclus ion on EPA’s priority list. We look forward to EPA’s analysis of its exte nsive data, including its CERCLIS database and the numerous studies that the agency ha s undertaken under CERCLA and the Resource Conservation and Recovery Act, which may iden tify classes of facilities in addition to those

listed above.

Thank you for the opportunity to comment.

Respectfully submitted:

/s/ Lisa Evans

Lisa Evans

Senior Administrative Counsel Earthjustice

21 Ocean Avenue Marblehead, MA 01945 (781) 631-4119 levans@earthjustice.org

20 Id.