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Daily Rules, Proposed Rules, and Notices of the Federal Government

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 Registernotice, 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 aFederal Registernotice, 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, thisFederal Registernotice 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: *Electronic docket at: www.regulations.gov:Follow the on-line instructions for submitting comments.

*E-mail:Comments may be sent by electronic mail (e-mail) tosuperfund.docket@epa.gov, Attention Docket ID No. EPA-HQ-SFUND-2009-0834. In contrast to EPA's electronic public docket, EPA's e-mail system is not an "anonymous access" system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

*Fax:Comments may be faxed to 202-566-0272; Attention Docket ID No. EPA-HQ-SFUND-2009-0834.

*Mail:Send your comments to the Identification of Additional Classes of Facilities for Development of Financial Responsibility Requirements under CERCLA Section 108(b) Docket, Attention Docket ID No., EPA-HQ-SFUND-2009-0834, Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies.

*Hand Delivery:Deliver two copies of your comments to the Identification of Additional Classes of Facilities for Development of Financial Responsibility Requirements under CERCLA Section 108(b) Docket, Attention Docket ID No., EPA-HQ-SFUND-2009-0834, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions:Direct your comments to Docket ID No. EPA-HQ-SFUND-2009-0834. EPA's policy is that all comments received will be included in the public docket without change and may be made available online atwww.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 throughwww.regulations.govor e-mail. Thewww.regulations.govWeb 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 throughwww.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage athttp://www.epa.gov/epahome/dockets.htm.For additional instructions on submitting comments, go to theSUPPLEMENTARY INFORMATIONsection of this document.

Docket:All documents in the docket are listed in thewww.regulations.govindex. 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 inwww.regulations.govor 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?

ThisFederal Registernotice 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 thehttp://www.regulations.govWeb 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 throughhttp://www.regulations.govor 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 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

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.)

* * * identify those classes for which requirements will be first developed and publish notice of such identification in theFederal 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 aFederal Registernotice addressing these additional classes of facilities by December 2009.

ThisFederal Registernotice 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 theFederal Registerfor public notice and comment.

This notice also identifies classes of facilities within four additional industry sectors, as well as classes of facilities engaged in recycling activities associated with materials containing CERCLA hazardous substances, which do not fit within a particular industry sector, as those classes for which the Agency plans to conduct further in-depth study before deciding whether to begin development of a proposed regulation.

Today's notice, its identification of classes, and its announcement of further study of other classes is not itself a rule, and does not create any binding duties or obligations on any party. Additional research, outreach to stakeholders, proposed regulations, review of public comments, and finalization of those regulations are needed before any facilities are subject to any financial responsibility requirements.

II. EPA's Approach for Identifying Additional Classes of Facilities

EPA has worked to determine which classes of facilities it should identify in this notice for evaluation regarding financial responsibility requirements. In contrast to the statutory mandate under CERCLA Section 108(b)(1) to publish the priority notice (that EPA satisfied in July 2009), there is no statutory requirement for EPA to publish today's notice. However, EPA is doing so as announced in the July 2009 notice.2 As was the case with the July 2009 notice, EPA looked to the text of CERCLA Section 108(b) to inform its identification of facility classes. To begin with, the last sentence of Section 108(b)(1) states that “[p]riority in the development of such requirements shall be accorded to those classes of facilities * * * which the President determines present the highest level of risk of injury.”

274 FR 37213 at 37219.

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 thedegree and duration of risk” and paragraph (b)(2) states that “[t]he level of financial responsibility shall be initially established, and, when necessary, adjusted toprotect against the level of riskwhich 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 toxicity3 ), 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 chemicalmanufacturers.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).

3National Research Council, “Risk Assessment in the Federal Government: Managing the Process,” National Academy Press, Washington, DC, 1983.

4In 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 thisFederal Registernotice. 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.

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 thisFederal Registernotice. The Agency will consider and address any comments received as part of its proposed and final rulemakings.

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,

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.

• 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

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.

• The BR information addresses (either directly or indirectly) (1) the amounts of RCRA hazardous wastes8 generated or managed.

8RCRA hazardous wastes are, under CERCLA Section 101(14), defined as CERCLA hazardous substances.

• The TRI information addresses the following factors (either directly or indirectly): (1) The amounts of hazardous substances released to the environment; (2) the toxicity of these substances; and (5) whether the causes of this contamination still exist.

EPA recognizes that the NPL data reflects activity that, in some cases, pre-dates CERCLA, RCRA, and other legal requirements. In our request for comment about risks at the end of this notice, the Agency welcomes information about current releases of hazardous substances to the environment to help inform EPA's future actions.

The following sections describe EPA's evaluation and its results. However, EPA notes that while, in general, the Agency chose to identify those classes of facilities comprising a relatively large percentage or amounts of hazardous substances, it should not be assumed that other industry classes are no longer being considered and will not be identified for future rulemakings.

A. Analysis of National Priority List Information

The NPL is a list of national priorities for cleanups among the known or threatened releases of hazardous substances, pollutants, or contaminants throughout the U.S. (In addition to the list of sites on the NPL, file information about individual sites was also considered in developing today's notice.) The Hazard Ranking System, the scoring system EPA uses to assess the relative threat associated with releases or potential releases of hazardous substances from a site, is the primary method used to determine whether a site should be placed on the NPL.9 The HRS takes into account the three elements of environmental and human health risk: (1) Probability of release; (2) exposure; and (3) toxicity. EPA generally will list on the NPL sites with scores of 28.50 or above. The HRS is a proven and accepted tool for evaluating and prioritizing the releases that may pose threats to human health and the environment throughout the nation. As of October, 2009, there were 1,495 proposed, final, and deleted non-Federal sites on the NPL. For purposes of this analysis, the Agency assigned each of the NPL sites the three-digit NAICS code10 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

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 thisFederal Registernotice.

12In this analysis, EPA excluded sites identified within those classes of Hardrock Mining already discussed in the July 2009 notice.

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 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.

13In 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.

14In 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 theAgency for purposes of this notice will be necessary to further delineate the prevalence of each of these two industry sectors on the NPL.

Table 1—Top Industries Listed on the CERCLA National Priorities List From 1981-2009 Category or NAICS code Includes NPL sites identified as: Total
  • number of sites
  • Percentage of total number of sites
    562Waste Management and Remediation Services Industrial waste facility (non-generator), municipal solid waste landfill; co-disposal landfills (municipal and industrial) 465 30.7 325Chemical Manufacturing Chemicals/chemical waste recovery 181 11.9 RECRecycling 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 321Wood Products Manufacturing Lumber, wood and paper bag products; wood preservers 94 6.2 332Fabricated Metal Product Manufacturing Metal fabrication/finishing/coating and allied industries 91 6.0 334Computer and Electronic Product Manufacturing
  • 335 Electrical Equipment, Appliance, and Component Manufacturing*
  • Electronic/electrical equipment 71 4.7
    324Petroleum and Coal Products Manufacturing Oil and gas refining, coke production 30 1.9 TSTransportation-related Facilities Trucks/ships/trains related components 25 1.6 PSProduct Storage Product storage/distribution 20 1.3 812Personal 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 (seefootnote 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 waste15 —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.

    15It should be noted that CERCLA hazardous substances include RCRA hazardous wastes.

    Table 2—RCRA 2007 Biennial Reporting Data on Waste Generation of NPL-Identified Industrial Sectors—Top Ranking NAICS Codes 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 Manufacturing16 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
    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

    TRIis 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.

    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 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 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).

    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.

    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 cases19 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.

    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-2006-0796-0015with the addition of Martins Creek, Pennsylvania, where in August, 2005, a dam confining a 40-acre CCR surface impoundment failed, resulting in the discharge of 100 million gallons of coal ash and contaminant water; Gambrills, MD; and Kingston/TVA, TN.

    As a result of evaluating this information, the Agency is today identifying classes of facilities within three industries—the ChemicalManufacturing 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 thisFederal Registernotice 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 thisFederal Registernotice, 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 thisFederal Registernotice'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.

    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).

    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

    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.

    24International Finance Corporation, World Bank Group 2007. “Environment, Health, and Safety Guidelines: Large Volume Inorganic Compounds Manufacturing and Coal Tar Distillation.” Available at:http://www.ifc.org/ifcext/sustainability.nsf/Content/EnvironmentalGuidelines.

    The next step in chemical and allied products manufacturing process, chemical reaction and/or synthesis, exhibits variety both across and within sectors in the chemical manufacturing industry, although with the common characteristic of using a chemical process to formulate a product. Some examples of chemical reactions include halogenation in the formation of chlorinated solvents, and polymerization in the formation of plastic resins. Inputs will often go through more than one reaction. In many sectors, a reactor vessel acts as a host to the reaction, as well as sometimes acting as a crystallizer, heater, mixer, or evaporator.25 Chemical synthesis can be responsible for significant emissions of hazardous substances, including ammonia, ethylene, aromatics, alcohols, oxides, acids, and chlorine.26 In organic chemical manufacturing, inputs are generally added by either a batch process, in which all reactant chemicals are added to a reaction vessel at the same time and the products are emptied completely when the reaction is finished, or by a continuous process, in which reactants are added and products are removed at a constant rate. Chemicals may be emitted more at the beginning and end of the reaction during operations, such as vessel loading and product transfer.27

    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.

    27Ibid.

    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 thispurification 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

    28Ibid.

    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.

    31Ibid.

    Both because of the way that the facilities covered by thisFederal Registernotice 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

    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.

    Further, according to the 2007 RCRA BR, the Chemical Manufacturing industry generated approximately 19.8 million tons of hazardous waste, or approximately 61 percent of the total amount of hazardous waste reported by large quantity generators. This waste can take a variety of forms, including spent solvents, distillation bottoms and side-cuts, off specification or unused toxic chemicals, wastewater, wastewater treatment sludge, emission control sludges, filter cake, spent catalysts, by-products, reactor clean out wastes, and container residues.33

    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.

    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

    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=enAccessed: September 9, 2009.

    In some cases, these wastes have led to ground and surface water contamination when improperly managed.35 In particular, EPA's review of its NPL site information underscores the risk of chemical manufacturing facilities. To begin with, that review showed over 180 facilities with sites included on the NPL. Pemaco Maywood, a four-acre facility in Maywood, California, that housed a chemical blending plant operating between the 1940s and 1991, is a prominent example of a facility with high risk to the environment and human health. During its years of operation, hazardous chemicals were stored in both above- and below-ground tanks, and drums included chlorinated and aromatic solvents, flammable liquids, petroleum hydrocarbons, and other volatile organic chemicals (VOCs). In a later study of contamination of the site, several VOCs were identified as infiltrating soil and wells drawing from groundwater. Aqueous samples taken from the wells contained toxic hydrocarbons, such as vinyl chloride, trichloroethene (TCE), 1,1,1-trichloroethane (TCA), 1,1- and 1,2-dichloroethenes, and 1,1-dichloroethane, all listed on the 2007 CERCLA Priority List of Hazardous Substances.36 The site is of particular concern because 13 water purveyors draw groundwater from 78 wells within four miles of the site to supply drinking water to approximately 339,000 people. Furthermore, the site is in a mixed industrial and residential community, with a residential tract across the street.37 Similarly, the Woolfolk Chemical Superfund site, in Fort Valley, Georgia, a full-line pesticide plant formulating products in liquid, dust, and granular forms for the agricultural, lawn, and garden markets emitted a large amount of chemicals throughout its years of operation. Monitors detected metals and pesticides, including lead, arsenic, chlordane, DDT, lindane, and toxaphene, in on-site soil and groundwater, and in an open ditch south of the plant. Three of the five Fort Valley municipal water supply wells are within 1,000 feet of the facility, and an estimated 10,000 people obtain drinking water from municipal wells within three miles of the site.38 39

    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.

    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.

    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 man