Daily Rules, Proposed Rules, and Notices of the Federal Government
In addition, this
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:
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 (
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
This notice also identifies classes of facilities within four additional industry sectors, as well as classes of facilities engaged in recycling activities associated with materials containing CERCLA hazardous substances, which do not fit within a particular industry sector, as those classes for which the Agency plans to conduct further in-depth study before deciding whether to begin development of a proposed regulation.
Today's notice, its identification of classes, and its announcement of further study of other classes is not itself a rule, and does not create any binding duties or obligations on any party. Additional research, outreach to stakeholders, proposed regulations, review of public comments, and finalization of those regulations are needed before any facilities are subject to any financial responsibility requirements.
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.
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
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 (
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
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).
• 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.
• The BR information addresses (either directly or indirectly) (1) the amounts of RCRA hazardous wastes
• The TRI information addresses the following factors (either directly or indirectly): (1) The amounts of hazardous substances released to the environment; (2) the toxicity of these substances; and (5) whether the causes of this contamination still exist.
EPA recognizes that the NPL data reflects activity that, in some cases, pre-dates CERCLA, RCRA, and other legal requirements. In our request for comment about risks at the end of this notice, the Agency welcomes information about current releases of hazardous substances to the environment to help inform EPA's future actions.
The following sections describe EPA's evaluation and its results. However, EPA notes that while, in general, the Agency chose to identify those classes of facilities comprising a relatively large percentage or amounts of hazardous substances, it should not be assumed that other industry classes are no longer being considered and will not be identified for future rulemakings.
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.
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;
The Agency next considered BR and TRI data. Those analyses are explained below.
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
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).
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”
As a result of evaluating this information, the Agency is today identifying classes of facilities within three industries—the Chemical
As was discussed above, the Agency is identifying in this
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—
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.
For purposes of this
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).
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.
The desired end products are rarely obtained in pure form out of the reaction or synthesis process, and by-products and unreacted inputs must be removed. Once the reaction occurs, the targeted product or products must be isolated and purified, and this
Both because of the way that the facilities covered by this
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.
Further, according to the 2007 RCRA BR, the Chemical Manufacturing industry generated approximately 19.8 million tons of hazardous waste, or approximately 61 percent of the total amount of hazardous waste reported by large quantity generators. This waste can take a variety of forms, including spent solvents, distillation bottoms and side-cuts, off specification or unused toxic chemicals, wastewater, wastewater treatment sludge, emission control sludges, filter cake, spent catalysts, by-products, reactor clean out wastes, and container residues.
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.
In some cases, these wastes have led to ground and surface water contamination when improperly managed.
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 man