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NORTHWEST    ROCKY MOUNTAIN    WASHINGTON, DC    INTERNATIONAL 

1625 MASSACHUSETTS AVE. NW, S UITE 702, WASHINGTON,DC 20036 

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, “Identification of Priority Classes of Facilities for Development of 

CERCLA Section 108(b) Financial Responsibility Requirements.” 74 Fed. Reg 37213 (July 28, 

2009). The following comments are submitted by Earthjustice on behalf of the Sierra Club, 

Amigos Bravos, Great Basin Resource Watch and Idaho Conservation League. We appreciate 

EPA’s willingness to consider our comments prior 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 Comprehensive 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 requirements. Within the class of hardrock 

mining, EPA included facilities that extract, beneficiate and process both metals and nonmetallic, non-fuel minerals. We concur that the history of environmental damage and costly 

cleanups at hardrock mining sites, as well as the legacy of bankruptcy and inadequate bonding, 

justifies requiring adequate financial assurance for 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 requirements under CERCLA Section 108(b). Taking 

into consideration the substantial risks posed by these industries, including the toxicity and 

quantity of hazardous substances, the proximity of potential receptors, the history of 

contamination, the cost of remediation, the incidence of bankruptcy, and the frequency of federal 
2

cleanups, it is necessary that EPA 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 selection 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 Technology Innovation, Superfund Sites and Legacy 

Waste: An Analysis of Superfund Sites to Assess 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 Report); (3) Superfund Subcommittee of the 

National Advisory Council for Environmental Policy and Technology, Final Report, April 12, 

2004 (“NACEPT Final Report”), (4) US EPA, Office of Solid Waste and Emergency Response, 

NPL Characterization Project: National Results, November 1991 (“NPL Characterization 

Project”); and (5) US EPA, Office of Solid 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 damage resulting from the activities 

of the following industries warrants inclusion on EPA’s priority list of classes: 

(a) Coal mining, including underground mines, coal 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 numerous 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 operations to post bonds for reclamation at surface 

coal mines, these bonds have often been insufficient to address the release of hazardous 

substances from mine sites. State mining programs 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 waste cleanup programs. One recent example in 

Pennsylvania, the Mon View Mine Site, resulted 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 the disposal of hazardous substances, such 

as coal ash, in coal mines. Approximately 25 million tons of coal ash are disposed in mines 

every year without financial assurance. The toxic waste is creating 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 there 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 number of operating mines, the 

enormity of the waste disposal operations occurring at these sites, and the documented absence 

of adequate financial assurance warrants inclusion 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 preserving 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, wood treatment facilities 

make up over 45% of all manufacturing sites on the NPL.3 

Lumber products and wood preserving sites often present significant environmental 

contamination that is both difficult and expensive to clean up. EPA’s 2007 report, “Analysis of 

40 Potential TSDs: Potential RCRA Treatment, Storage, and Disposal Facilities Proposed to the 

Superfund National Priority List after 1990,” described the 40 wood treatment facilities recently 

proposed to the NPL and noted the large percentage 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 facilities 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 treatment facilities as an industry “with a high risk 

for contamination requiring clean up” under federal 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 failure to require financial assurance, 18 were wood treatment 

facilities. 2007 Superfund Analysis at 35. The total 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 Subcommittee Final Report, which found that of the 

142 “mega-sites” on the NPL, defined as those sites where cleanup costs exceed $50 million, 6% 

were classified as wood treatment facilities. NACEPT Final Report at 15. 

(c) Hazardous waste recycling facilities, including hazardous secondary materials 

recycling operations 

Hazardous waste recycling facilities also make up a significant percentage of Superfund 

NPL sites. EPA’s 1991 NPL Characterization Project 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 Characterization Project: Region 4 Results, November 1991 at 41. 4

 US EPA, Office of Solid Waste, Analysis of 40 Potential TSDs: Potential RCRA Treatment, Storage, and Disposal 

Facilities Proposed to the Superfund National Priority 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 largest category after manufacturing facilities and 

municipal landfills. NPL Characterization Project 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 activities after 1990 contributed to contamination, 

17 were recycling facilities, with total cleanup costs of $102 million. 2007 Superfund Analysis 

at iii. When the larger universe of 306 post-1990 NPL sites were considered, the report found 

that 28 recycling facilities 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 Environmental Problems Associated with 

the Recycling of Hazardous Secondary Materials.”6

 This report documented 209 sites where 

hazardous waste recycling facilities contaminated groundwater, surface 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 Characterization Project identified chemical and 

allied products as the largest single category (over 33%) in the manufacturing sector of NPL 

sites. NPL Characterization Project at 33. 

Additional studies confirm the continuing waste management problems at chemical 

manufacturing facilities. The 2005 GAO Report specifically 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 manufacturing sites was also confirmed in the 2004 

NACEPT Superfund Subcommittee Final Report, which found that of the 142 “mega-sites” on 

the NPL, 15% were classified as chemical manufacturing facilities. NACEPT Final Report at 

15. 

(e) Metal finishing facilities (including metal fabrication and coating) 

Metal finishing facilities also have significant representation on the Superfund NPL. 

EPA’s 1991 NPL Characterization Project noted that fabricated metal products and 

electroplating constitute over 31% of all manufacturing sites on the NPL. NPL Characterization 

Project at 33. Costs are often high to remediate these sites, as soil and water are commonly 

 

6

 US EPA, Office of Solid Waste, An Assessment of Environmental Problems Associated with the Recycling of 

Hazardous Secondary Materials, January 11, 2007 at Appendix 2. 7 Id. at 11. 
5

contaminated with heavy metals, volatile organic compounds, and acids.8

 According to EPA’s 

2007 Superfund Analysis, of the 306 post-1990 NPL sites, 15 metal fabrication facilities 

represented over $111 million in cleanup costs. 2007 Superfund Analysis at 37. The severe 

contamination caused by this industry, its prominence 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 manufacturing sites listed 

on the Superfund NPL before 1991. NPL Characterization Project at 33. In EPA Region 9, 10% 

of the NPL manufacturing sites in the region are oil and gas refineries.9 In EPA Region 6, over 

26% of the manufacturing sites on its 1991 CERCLIS 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 required over $18.9 million in cleanup costs. 2007 

Superfund Analysis at 37. Given the past history of contamination 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 plants has escaped federal regulation for 

decades. Consequently hundreds of millions of tons of coal combustion wastes (including fly 

ash, bottom ash, boiler slag and flue gas desulfurization sludge) are disposed in hundreds of 

under-regulated waste ponds, pits, quarries and landfills across the country. Two examples of 

NPL sites resulting from the unregulated disposal of coal combustion wastes are the U.S. DOE 

Oak Ridge Reservation, located in Anderson 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 compendium of sites contaminated by the wastes.12

The report describes 70 sites throughout the United States where disposal of coal combustion 

wastes contaminated surface water and groundwater. 

Also, according to EPA’s 1991 NPL Characterization Project, 2% of the manufacturing 

sites on the Superfund NPL are from electric power and distribution. NPL Characterization 

Project at 33. Regionally, the percentage of electric 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 related to power generation. Thus it is clear that 

electric power generating facilities have caused multiple sites requiring federal cleanup, thus 

 

8

 US EPA, Office of Research and Development, 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, Coal 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 equipment manufacturers are well represented on the Superfund 

NPL. According to EPA’s 1991 NPL Characterization 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/electrical equipment facilities. NACEPT Final Report at 15. 

Regionally electronic and electrical equipment manufacturers may represent a high 

percentage of NPL sites. In EPA Region 9, for example, these sites make up 44% of the region’s 

NPL sites.14 In Santa Clara County, CA, the manufacturing of computer components created 23 

Superfund sites, including 19 NPL sites.15 Highly toxic contaminants at the sites include 

trichloroethylene, trichloroethane and polychlorinated biphenyls (PCBs), which have 

contaminated soil and the underlying aquifer. The high cost of cleanup, the large number of 

sites, and the threat of bankruptcy warrant inclusion 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 commercial 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 facilities as industries with a “high risk for 

contamination requiring cleanup” under federal programs. 2005 GAO Report at 11. 

Furthermore, in EPA’s 2007 Superfund Analysis, 14 dry 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, the cleanup costs at dry cleaning facilities are substantial. 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 nature of the solvents used by the facilities, and the 

low-profit nature of the business (resulting in undercapitalized facilities), the dry cleaning 

industry should be placed on EPA’s priority list of classes. 

(j) Fabric manufacturers and tanneries 

Fabric manufacturers and tanners have also been historically well 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/PageServer?pagename=svtc_silicon_valley_toxic_tour (last checked August 20, 2009). 16 US EPA, Office of Compliance, Sector Notebook Project, Profile of the Dry Cleaning Industry, September 1995 

at 5. 
7

fabric manufacturers and tanneries than for other industries 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 identified at coke production facilities after 1990, with a 

total cleanup cost of over $36 million. 2007 Superfund 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 bankruptcies17 justify inclusion on the 

EPA’s priority list of classes. 

(l) Radioactive products facilities 

Radioactive product facilities represent a smaller 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 identified four NPL sites at radioactive product facilities listed 

after 1990, but the total cost of cleanup was over $240 million. 2007 Superfund Analysis at 38. 

The 2004 NACEPT Superfund Subcommittee Final Report 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 operations are also found on the NPL and CERCLIS 

databases. The 1991 NPL Characterization Project notes that 0.6% of NPL manufacturing sites 

are in the agricultural sector. NPL Characterization Project at 33. This jumps to 5.1%, when 

one looks at non-NPL Superfund sites 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 having total cleanup costs of over $21 million. 2007 

Superfund Analysis at 38. 

In addition to these Superfund sites, confined animal feeding operations (“CAFOs”) 

present a new and growing source of toxic pollution 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 Corporation, 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 Water 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 amounts of manure that cannot be effectively used 

as fertilizer on adjacent cropland, thereby increasing the potential of pollutants to reach nearby 

waters and degrade water quality. According to the GAO report, since 2002, 15 governmentsponsored or peer-reviewed studies have examined air and water quality issues associated with 

CAFOs and have directly linked air 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 proliferation of CAFOs, EPA should include these 

facilities in its list of priority classes. 

While the above classes warrant inclusion as priority classes based on our knowledge and 

experience, we understand that there may be other classes of facilities where risk from 

generation and handling of hazardous substances also justifies inclusion on EPA’s priority list. 

We look forward to EPA’s analysis of its extensive data, including its CERCLIS database and 

the numerous studies that the agency has undertaken under CERCLA and the Resource 

Conservation and Recovery Act, which may identify 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.