January 2010 – Superfund Financial Assurance Obligations Imminent

The U.S. Environmental Protection Agency (EPA) has taken a significant step in an effort to shift the responsibility for the cleanup of environmental releases from the federal taxpayer to industry.

THE FACTS

EPA has identified industry sectors where it will begin the regulatory development process to require financial assurance requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund law.

Following a notice issued in July 2009, EPA plans to propose new financial responsibility rules by spring of 2011 for classes of facilities within the hard-rock mining industry.

Although a regulatory timeline for rulemaking has not yet been defined, EPA issued a notice published in the Federal Register on January 6, 2010, to begin the regulatory process for developing appropriate financial assurance requirements for these additional newly identified industry sectors:

  • the chemical manufacturing industry (NAICS 325)
  • the petroleum and coal products manufacturing industry (NAICS 324), which primarily includes refineries and not coal mines
  • the electric power generation, transmission, and distribution industry (NAICS 2211).

Furthermore, EPA will conduct studies on the following industries to decide whether to develop proposed regulations:

  • waste management and remediation services (NAICS 562)
  • wood product manufacturing (NAICS 321)
  • fabricated metal product manufacturing (NAICS 332)
  • electronics and electrical equipment manufacturing (NAICS 334 and 335)
  • facilities engaged in the recycling of materials containing CERCLA hazardous substances.

HOW WILL THIS AFFECT MY COMPANY?

Financial assurance requirements provide a mechanism for the government to ensure that owners and operators of facilities are able to pay for cleanup of environmental liabilities and help reduce the number of sites that need to be addressed by federal taxpayers through the Superfund program.  For example, owners and operators of facilities that treat, store, or dispose of hazardous waste are required to provide proof that they will have sufficient funds to pay for cleanup, closure, and post-closure care of their facilities.

Owners must also demonstrate that they have sufficient funds to pay for cleanup of any accidental releases of hazardous constituents during the active life of their facilities, and compensate third parties for any resulting bodily injury or property damage.

WHAT CAN MY COMPANY DO TO PREPARE?

This action is not a proposed rule or a final regulation; however, EHS Support recommends, that you, as a targeted industry take the following steps:

  • Determine the financial and business impacts this would have on your operations if the rule is promulgated.
  • Closely follow progress made by the EPA towards potential future financial assurance obligations.
  • Submit comment on the January 6 notice on or before February 5, 2010.
  • Follow EHS Support Alerts for updates on this topic.

If this has the potential to affect your business, EHS Support can assist you in evaluating the bottom line impact to your company and in authoring comments to the notice or any future rulemaking.

We will continue to follow this topic closely, keep you updated on important changes using EHS Support alerts and newsletter, and will thoroughly evaluate any proposed and final rule when issued.  For more information, contact Amy Bauer at 251-533-6949 and amy.bauer@ehs-support.comor Andrew Patz at 412-215-7703 and andy.patz@ehs-support.com

More information is available at the EPA’s website:  https://www.epa.gov/superfund/policy/financialresponsibility/index.html

 

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