[Federal Register Volume 82, Number 7 (Wednesday, January 11, 2017)]
[Proposed Rules]
[Pages 3512-3516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30040]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 320

[EPA-HQ-OLEM-2016-0212; FRL-9956-56-OLEM]
RIN 2050-AG56


Financial Responsibility Requirements for Facilities in the 
Chemical, Petroleum and Electric Power Industries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of intent to proceed with rulemakings.

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SUMMARY: Section 108(b) of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) 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. On January 6, 2010, the Environmental Protection Agency 
(EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that 
identified additional classes of facilities within three industry 
sectors that may warrant the development of financial responsibility 
requirements under CERCLA section 108(b)--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). This document formally 
announces EPA's intention to publish a notice for proposed rulemaking 
for classes of facilities within the three industries identified in the 
2010 ANPRM, as well as gives an overview of some of the comments 
received on the ANPRM and initial responses to those comments. The 
announcement in this action is not a determination that requirements 
are necessary for any or all of the classes of facilities within the 
three industries, or that EPA will propose such requirements--rather, 
it is an announcement that EPA intends to move forward with the 
regulatory process. After that process, EPA will determine whether 
proposal of requirements for any or all of the classes of facilities 
within the three industries is necessary.

DATES: January 11, 2017.

FOR FURTHER INFORMATION CONTACT: For more information on this action, 
contact Peggy Vyas, U.S. Environmental Protection Agency, Office of 
Resource Conservation and Recovery, Mail Code 5303P, 1200 Pennsylvania 
Ave. NW., Washington, DC 20460; telephone (703)

[[Page 3513]]

308-5477 or (email) [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. How can I get copies of this document and other related information?

    1. Docket. EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2016-0212. The 2010 Advance Notice of 
Proposed Rulemaking and its related documents, including background 
documents and public comments, are under Docket ID No. EPA-HQ-SFUND-
2009-0834. All documents in the docket are listed in the http://www.regulations.gov index. 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 
in http://www.regulations.gov or in hard copy at 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.
    2. Electronic Access. You may access this Federal Register document 
electronically from the Government Printing Office under the ``Federal 
Register'' listings at FDSys (http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR).

II. Overview of CERCLA Section 108(b)

    CERCLA section 108(b) generally requires that EPA develop 
requirements that classes of facilities 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.'' \1\ CERCLA section 
108(b)(2) directs that the level of financial responsibility shall be 
initially established, and, when necessary, adjusted to protect against 
the level of risk that EPA in its discretion believes is appropriate 
based on the payment experience of the Fund, commercial insurers, 
courts settlements and judgments, and voluntary claims satisfaction.
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    \1\ Executive Order 12580 delegates the responsibility to 
develop these requirements to the Administrator of EPA for non-
transportation related facilities. 52 FR 2923, 3 CFR, 1987 Comp., p. 
193.
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    CERCLA section 108(b) also discusses particular instruments for EPA 
to consider in its regulations. Specifically, paragraph (b)(2) states 
that financial responsibility may be established by any one, or any 
combination, of the following: Insurance, guarantee, surety bond, 
letter of credit, or qualification as a self-insurer. Paragraph (b)(2) 
further authorizes EPA to specify policy or other contractual terms, 
conditions, or defenses which are necessary, or which are unacceptable 
in establishing evidence of financial responsibility. Paragraph (b)(2) 
also requires EPA to cooperate with and seek the advice of the 
commercial insurance industry to the maximum extent practicable when 
developing financial responsibility requirements.\2\ Paragraph (b)(4) 
provides direction on how the CERCLA section 108(b) instruments are to 
address multiple owners and operators at a single facility.\3\
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    \2\ 42 U.S.C. 9608(b)(2).
    \3\ 42 U.S.C. 9608(b)(4).
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    CERCLA section 108(b)(3) requires that regulations promulgated 
under CERCLA section 108(b) incrementally impose financial 
responsibility requirements as quickly as can reasonably be achieved, 
but in no event more than four years after the date of promulgation.\4\
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    \4\ 42 U.S.C. 9608(b)(3).
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    CERCLA section 108(c) also includes a ``direct action'' provision 
under which any claim authorized by CERCLA section 107 or 111 may be 
asserted directly against any guarantor providing evidence of financial 
responsibility under CERCLA section 108(b) if the person is liable 
under CERCLA section 107 and (1) is in bankruptcy, reorganization, or 
arrangement pursuant to the Federal Bankruptcy Code, or (2) is likely 
to be solvent at the time of judgment, but over whom jurisdiction in 
the Federal courts cannot be obtained with reasonable diligence.\5\
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    \5\ 42 U.S.C. 9608(c)(2).
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III. In re Idaho Conservation League

    In August 2014, the groups Idaho Conservation League, Earthworks, 
Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities 
for a Better Environment filed a lawsuit in the U.S. Court of Appeals 
for the District of Columbia Circuit, for a writ of mandamus requiring 
issuance of CERCLA section 108(b) financial responsibility rules for 
the hardrock mining industry, and for the three additional industries 
identified by EPA in the ANPRM, that is, Chemical Manufacturing, 
Petroleum and Coal Products Manufacturing, and Electric Power 
Generation, Transmission, and Distribution.\6\ Following oral 
arguments, EPA and the petitioners submitted Joint Motion for an Order 
on Consent, filed on August 31, 2015, which included a schedule for 
further administrative proceedings under CERCLA section 108(b). The 
court order granting the motion was issued on January 29, 2016. A copy 
of the order can be found in the docket for this action.
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    \6\ See In re: Idaho Conservation League, No. 14-1149. For more 
information on the lawsuit please refer to the preamble of the 
``Financial Responsibility Requirements for the Hardrock Mining 
Industry'' proposed rule, published elsewhere in this Federal 
Register.
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    In addition to requiring EPA to publish a proposed rule on hardrock 
mining financial requirements by December 1, 2016, the January 2016 
Order requires EPA to ``sign for publication in the Federal Register a 
determination whether EPA will issue a action of proposed rulemaking on 
financial responsibility requirements under CERCLA Sec.  108(b) in the 
(a) chemical manufacturing industry; (b) petroleum and coal products 
manufacturing industry; and (c) electric power generation, 
transmission, and distribution industry by December 1, 2016.'' The 
publication of this action satisfies that component of the January 2016 
order. The order includes the following schedule for these rulemakings:

    ``EPA will sign for publication in the Federal Register a notice 
of proposed rulemaking in the first additional industry by July 2, 
2019, and sign for publication in the Federal Register a notice of 
its final action by December 2, 2020.
    EPA will sign for publication in the Federal Register a notice 
of proposed rulemaking in the second additional industry by December 
4, 2019, and sign for publication in the Federal Register a notice 
of its final action by December 1, 2021.
    EPA will sign for publication in the Federal Register a notice 
of proposed rulemaking in the third additional industry by December 
1, 2022, and sign for publication in the Federal Register a notice 
of its final action by December 4, 2024.'' \7\
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    \7\ In Re: Idaho Conservation League, No. 14-1149 (D.C. Cir. 
Jan. 29, 2016) (order granting joint motion).

    While the January 2016 Order identifies the other industries as 
being the Chemical Manufacturing industry, the Petroleum and Coal 
Products Manufacturing industry, and the Electric Power Generation, 
Transmission and Distribution industry, and sets a rulemaking schedule, 
it does not specify which industry will be the

[[Page 3514]]

first, second or third. EPA will decide that at a later date. Nor does 
the January 2016 Order mandate any specific outcome of the 
rulemakings.\8\ The Joint Motion specified that it did not alter the 
Agency's discretion provided by CERCLA and administrative law.\9\ In 
other words, the substance of any requirements arising out of CERCLA 
section 108(b) for the additional classes are not established in this 
action--any such requirements, if they are imposed, will not be 
established until EPA issues any final rules for these classes. 
Consequently, this document is not final agency action.
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    \8\ In granting the Joint Motion, the court expressly stated 
that its Order ``merely requires that EPA conduct a rulemaking and 
then decide whether to promulgate a new rule--the content of which 
is not in any way dictated by the [Order].'' In re Idaho 
Conservation League, at 17 (quoting Defenders of Wildlife v. 
Perciasepe, 714 F, 3d 1317, 1324 (D.C. Cir. 2013).
    \9\ See Joint Motion at 6 (``Nothing in this Joint Motion should 
be construed to limit or modify the discretion accorded EPA by CECLA 
or the general principles of administrative law''.)
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IV. Factors Identified by EPA for Consideration in the Decision To 
Develop a Proposed Rule for an Additional Industry Sector

    On July 28, 2009, EPA published a Priority Notice in which we 
identified classes of facilities in the hardrock mining industry for 
development of CERCLA section 108(b) financial responsibility 
requirements. In that action, EPA also announced its intention to 
consider additional industry sectors. EPA identified the following 
factors as among those it may consider in the decision whether to 
propose requirements for an industry sector: (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.\10\ 
EPA also indicated that the Agency intends to consider whether 
financial responsibility requirements under CERCLA section 108(b) will 
effectively reduce these risks.\11\
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    \10\ See 74 FR 37218.
    \11\ See 74 FR 37219.
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    Some of the factors reflect the basic elements of risk evaluation 
(i.e., the probability of release, exposure, and toxicity); 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).

V. Additional Classes Advance Notice of Proposed Rulemaking

    On January 6, 2010, EPA published an ANPRM,\12\ in which the Agency 
identified three additional industrial sectors for the development, as 
necessary, of a proposed CERCLA section 108(b) regulation. To develop 
the list of additional classes for the 2010 ANPRM, EPA used information 
from the National Priorities List (NPL), as well as analyzed data from 
the Biennial Report (BR) and Toxics Release Inventory (TRI). As was 
discussed in the document, these sources were chosen because ``they are 
well-established, reliable sources of information on facilities 
associated with hazardous substances, and were readily available to the 
Agency.'' \13\ In addition to these sources, EPA further evaluated 
industry sectors by gathering additional information from natural 
resource damage cases. The result of this analysis is explained in the 
2010 ANPRM in detail, with the conclusion that three industries--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)--
should be considered for financial responsibility requirements under 
CERCLA section 108(b).
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    \12\ See 75 FR 816.
    \13\ See 75 FR 819.
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    EPA specifically requested public comment in the 2010 ANPRM on 
whether to propose a regulation under CERCLA section 108(b) for any 
class or classes, or the industry as a whole, including information 
demonstrating why such financial responsibility requirements would not 
be appropriate for those particular classes. In addition, the Agency 
requested information related to the industry categories discussed in 
the action, including data on facility operations, information on past 
and expected future environmental responses, use of financial 
responsibility mechanisms by the industry categories, existing 
financial responsibility requirements, and other information the Agency 
might consider in setting financial responsibility levels. Finally, EPA 
requested information from the insurance and the financial sectors 
related to instrument implementation and availability, and potential 
instrument conditions.\14\
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    \14\ See 75 FR 830-831.
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    EPA received over sixty comments on the ANPRM, which can be found 
in the docket for that action (see Docket ID No. EPA-HQ-SFUND-2009-
0834). Several comments offered valuable insight that will help to 
inform the Agency's approach to the additional classes ANPRM. While the 
Agency is not obligated to respond to comments received on the ANPRM, 
EPA has provided general responses to those comments that relate 
specifically to this announcement that EPA will continue the regulatory 
process under CERCLA section 108(b).

VI. Comments Received on the 2010 ANPRM

    Representatives for the electric utility industry submitted roughly 
one-third of the comments on the 2010 ANPRM. Representatives for the 
chemical manufacturing industry, the petroleum industry, the waste 
management industry, the hardrock mining industry, as well as other 
interested parties also submitted comments.
    The comments on the 2010 ANPRM, which specifically addressed the 
need for CERCLA section 108(b) regulation for the additional classes, 
can be divided into four categories: (1) Other laws that the industry 
complies with that obviate the need for CERCLA section 108(b) 
regulation; (2) the sources of data EPA used to select the industries; 
(3) past versus current practices within each industry; and (4) the 
overall need for financial responsibility for each industry. EPA is 
broadly addressing these categories of comments in this action.

A. Other Laws

    Many commenters cited existing laws that their industries are 
already complying with to ensure that there are no occurrences of non-
permitted releases of hazardous substances. In particular, commenters 
pointed out that there are already financial responsibility 
requirements under the Resource Conservation and Recovery Act (RCRA). 
While EPA appreciates the concern, as was discussed above, CERCLA 
section 108(b) broadly directs the development of financial 
responsibility requirements consistent with the degree and duration of 
risk associated with the production, transportation, treatment, storage 
or disposal of hazardous substances. These requirements, which are 
designed to help ensure that CERCLA liabilities are paid if CERCLA 
claims are made, are distinct from financial responsibility 
requirements for closure imposed under other statutes, such as RCRA, 
which are more narrowly designed to assure

[[Page 3515]]

compliance with those closure requirements.
    At the same time, the Agency recognizes that compliance with 
regulatory requirements may reduce the risks at a facility. Thus, as 
EPA moves forward with developing proposed rules for additional classes 
of facilities, EPA expects to consider site factors that reduce risks, 
including those that result from compliance with other regulatory 
requirements. EPA has taken a similar approach in the CERCLA section 
108(b) proposed rule applicable to hardrock mining, which is published 
elsewhere in this Federal Register.

B. Data Used in Developing the ANPRM

    In the ANPRM, EPA used data from the Toxics Release Inventory 
(TRI), and RCRA's national Biennial Report (BR), among other sources, 
to identify and prioritize which classes of facilities present the 
highest risk of injury due to exposure, and thus to justify the need to 
prioritize financial responsibility requirements. The Chemical 
Manufacturing and Petroleum and Coal Products Manufacturing industries 
were the top two industries in a ranking of the quantity of hazardous 
waste generated in 2007. They were responsible for approximately 64 
percent of all the hazardous waste reported to the 2007 Biennial Report 
cycle.\15\ The Electric Power Generation, Transmission and Distribution 
industry was responsible for approximately 0.05 percent hazardous waste 
generated. This is not unexpected considering that coal combustion 
residuals (CCRs) are a ``Bevill exempt'' \16\ waste under RCRA, and 
thus not subject to Biennial Reporting requirements. Therefore, the 
amount of hazardous waste generated is not necessarily a valid 
representation of the hazardous substances produced by that 
industry.\17\
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    \15\ See 75 FR 820-821.
    \16\ The ``Bevill'' exemption is codified at 40 CFR 
261.3(a)(2)(i) and (g)(4) and 261.4(b)(7).
    \17\ This notice does not revisit EPA's Regulatory Determination 
for CCR disposal units. See Hazardous and Solid Waste Management 
System; Disposal of Coal Combustion Residuals from Electric 
Utilities, 80 FR 21302, April 17, 2015.
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    The Chemical Manufacturing and Electric Power Generation, 
Transmission and Distribution industries ranked high on the list of on-
site releases reported to TRI in 2007, at number two and three 
respectively. The Petroleum and Coal Products Manufacturing industry 
ranked seventh on that list.\18\
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    \18\ See 75 FR 821.
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    Commenters expressed concern that releases reported to TRI are 
permitted releases, subject to various environmental laws. Commenters 
also expressed concern that BR data merely shows the quantity of 
hazardous substances generated and managed, and not any mismanagement 
of those substances. Neither of these, commenters felt, should be used 
as indicators of potential risk of exposure due to a release. EPA 
recognizes the limitations on the extent of information that can be 
gained from TRI and BR data, however, EPA believes these data do offer 
insight into the characteristics and management of hazardous substances 
for facilities in each industry, and that in conjunction with other 
information, can be used as to evaluate the relative degree of risk 
posed by a class of facilities and the priority need for financial 
responsibility regulation under CERCLA section 108(b). As with the 
hardrock mining rule, for each subsequent industry rule, EPA intends to 
use other, more industry-specific and more current sources of data to 
identify risk, and will propose financial responsibility requirements 
based on the record EPA will develop for each rulemaking. Where the 
Agency finds risk associated with management of hazardous substances 
for a class of facilities, it is obligated to promulgate financial 
responsibility requirements that are consistent with the degree and 
duration of that risk. None of the commenters submitted data to 
dissuade the Agency from the path of acquiring additional and more 
comprehensive information for these industries. The Agency considers 
quantity and toxicity of hazardous substances released to the 
environment are good indicators of risk.

C. Past versus Current Industry Practices

    Another source of data for the ANPRM was the Superfund National 
Priorities List (NPL). The NPL is the list of national priorities among 
the known releases or threatened releases of hazardous substances, 
pollutants, or contaminants in the United States. The Agency assigned 
three-digit NAICS \19\ codes that best identified the activities at 
each site, using available data and best professional judgment. The 
Chemical Manufacturing industry had a total of 181 sites on the NPL 
from 1981-2009, the Petroleum and Coal Products Manufacturing industry 
had 30 sites.\20\
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    \19\ North 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.
    \20\ See 75 FR 820.
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    Commenters whose industries had sites listed on the NPL pointed out 
that many of those sites either did not remain in production, or had 
practices that were improved based on environmental regulations issued 
after the initial contamination. Commenters felt that legacy 
contamination was not a valid indicator of current and future risk. 
Also at issue was EPA's analysis of the NPL data. Some commenters felt 
their industry was over-represented based on incorrect analysis of the 
NPL data.
    EPA believes, notwithstanding the commenters' negative assessment 
of the Agency's analysis, that the NPL assessment is informative. Like 
the TRI and BR data, NPL data was used to indicate which industries 
pose potential risk that would warrant pursuing financial 
responsibility regulation under CERCLA section 108(b). The Agency did 
not receive evidence that risks do not continue at these sites. Where 
risk continues, EPA believes it is appropriate to consider site factors 
that reduce risks, such as current industry practices, in determining 
the level of financial responsibility required. Consideration will also 
be given to payment experience of the Fund, commercial insurers, court 
settlements and judgments, and voluntary claims satisfaction.

D. Need for Financial Responsibility

    A common theme in the comments, across all three industries, was 
that there was no need for financial responsibility since facilities 
within these industries are not in danger of going bankrupt. Many 
commenters felt that rather than focus on a few examples of past 
bankruptcies, EPA should consider the financial health of all the 
companies in an industry as a group. EPA disagrees with commenters' 
suggestion that need for financial responsibility should be informed by 
the financial health of the overall industry. Financial responsibility 
is imposed on classes within an industry, but is assessed at the 
facility level, and not the industry as a whole. Economic solvency at 
an industry-wide level is not a substitute for insurance against the 
possibility of CERCLA liabilities remaining unsatisfied on a facility-
specific basis. Furthermore, CERCLA section 108(b) funds could be used 
to address releases at currently-operating facilities. It should be 
noted that, as mentioned in the preamble to the Financial 
Responsibility Requirements under CERCLA Section 108(b) for Classes of 
Facilities in the Hardrock Mining Industry proposed rule, the financial 
responsibility formula

[[Page 3516]]

developed for the hardrock mining industry is intended for that 
industry only, and is not intended for other industries. In future 
rulemakings under CERCLA section 108(b) for the additional classes, EPA 
will evaluate how to determine financial responsibility amounts for 
each particular industry, and will propose an appropriate methodology.

E. Comments That Support CERCLA Section 108(b) Requirements for 
Additional Classes

    The Agency received two comments on the ANPRM that supported the 
need for CERCLA section 108(b) regulations for the additional classes. 
The first commenter provided an example of a facility that required 
cleanup and where, in the commenter's opinion, had the facility been 
subject to financial responsibility requirements, remediation would 
have been achieved much earlier as financial resources would have been 
available from the outset to carry out the remediation and there would 
have been less incentive for the responsible party to delay cleanup.
    The second commenter supporting the need for financial 
responsibility requirements for the additional classes cited a 2005 GAO 
report that the number of sites on the NPL continues to expand, with 
EPA adding an average of 28 sites to the NPL each year from 1983 to 
2003, and the 1995 expiration of CERCLA authority to collect taxes for 
the Superfund as reasons for EPA to move forward with regulations ``to 
ensure that facilities generating and handling hazardous substances 
will remain financially able to clean-up improperly disposed substances 
that could pose threats to public health and the environment.''

VII. Conclusion

    Since the issuance of the 2010 ANPRM, EPA has not received evidence 
that would demonstrate that regulation under CERCLA section108(b) is 
not necessary for 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).
    EPA has not, at this time, identified sufficient evidence to 
determine that initiating the rulemaking process is not warranted, nor 
has EPA identified sufficient evidence to establish the necessary 
CERCLA section 108(b) requirements, if any. To make a final decision 
regarding the need for CERCLA section 108(b) requirements, the Agency 
must gather additional information, and must further evaluate the 
classes of facilities within the three industry sectors.
    Therefore, in response to the January 29, 2016 Court Order, EPA is 
announcing its intent to proceed with rulemakings according to the 
schedule stipulated in the order. This announcement does not indicate 
that EPA has determined that requirements are necessary for any or all 
of the classes of facilities within the three industries, or that EPA 
will propose such requirements--rather, this announcement indicates 
that EPA intends to move forward with the regulatory process. That 
process will include gathering and analyzing additional information to 
support the Agency's ultimate decision. At that time, EPA will decide 
whether proposal of requirements for any or all of the classes of 
facilities within each industry sector is necessary and, if they are, 
will propose appropriate requirements. If, however, after a careful 
evaluation of the information for each industry sector, EPA were to 
determine that requirements under CERCLA section 108(b) are not 
necessary, EPA would propose not to impose requirements. In other 
words, this document does not constitute a rulemaking. It merely 
indicates the initiation of the rulemaking process rather than being 
the culmination of such a process.

    Dated: December 1, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016-30040 Filed 1-10-17; 8:45 am]
 BILLING CODE 6560-50-P