[Federal Register Volume 84, Number 145 (Monday, July 29, 2019)]
[Proposed Rules]
[Pages 36535-36552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15094]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 320

[EPA-HQ-OLEM-2019-0085; FRL-9996-47-OLEM]
RIN 2050-AH03


Financial Responsibility Requirements Under CERCLA Section 108(b) 
for Facilities in the Electric Power Generation, Transmission, and 
Distribution Industry

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA (or the Agency) is proposing to not impose financial 
responsibility (FR) requirements for facilities in the Electric Power 
Generation, Transmission, and Distribution industry under Section 
108(b) of the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA). Section 108(b) 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.

DATES: Comments must be received on or before September 27, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-2019-0085, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the Web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

[[Page 36536]]


FOR FURTHER INFORMATION CONTACT: For more information on this document, 
contact Charlotte Mooney, U.S. Environmental Protection Agency, Office 
of Resource Conservation and Recovery, Mail Code 5303P, 1200 
Pennsylvania Ave. NW, Washington, DC 20460; telephone (703) 308-7025 or 
(email) mooney.charlotte@epa.gov.

SUPPLEMENTARY INFORMATION:

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

    This Federal Register proposed rule and supporting documentation 
are available in a docket EPA has established for this action under 
Docket ID No. EPA-HQ-OLEM-2019-0085. 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., Confidential 
Business Information (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 at 
http://www.regulations.gov or in hard copy at EPA/DC, WJC 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 Facility 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.

Table of Contents

I. Executive Summary
    A. Overview
    B. Purpose of This Action
    C. Summary of the Major Provisions of the Regulatory Action
    D. Costs and Benefits of the Regulatory Action
II. Authority
III. Background Information
    A. Overview of Section 108(b) and Other CERCLA Provisions
    B. History of Section 108(b) Rulemakings
    1. 2009 Identification of Priority Classes of Facilities for 
Development of CERCLA Section 108(b) Financial Responsibility 
Requirements
    2. Additional Classes 2010 Advance Notice of Proposed Rulemaking
    3. 2014 Petition for Writ of Mandamus
    4. Additional Classes 2017 Notice of Intent To Proceed With 
Rulemakings
IV. Statutory Interpretation
V. Approach To Developing This Proposed Rule
VI. Electric Power Generation, Transmission and Distribution 
Industry Overview
    A. Identification of Electric Power Generation, Transmission and 
Distribution Industry
    B. Current Industry Practices
    C. Industry Economic Profile
VII. Discussion of Cleanup Sites Analysis
    A. Cleanup Site Evaluations
    B. Role of Federal and State Programs and Voluntary Protective 
Industry Practices at Facilities in the Electric Power Generation, 
Transmission and Distribution Industry
    C. Existing State and Federal Financial Responsibility Programs
    D. Compliance and Enforcement History
    1. Relevant Industry-Specific Focused Federal Enforcement 
Initiatives
    2. Enforcement of Recent Electric Power Generation, Transmission 
and Distribution Industry Federal Requirements
    3. Review of Major CERCLA and RCRA Cases
VIII. Decision To Not Propose Requirements
    A. Solicitation of Public Comment on This Proposal
IX. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Executive Summary

A. Overview

    Section 108(b) of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) directs EPA to develop 
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 statute further requires that the level of financial 
responsibility be established to protect against the level of risk the 
President, in his discretion, believes is appropriate, based on factors 
including the payment experience of the Hazardous Substance Superfund 
(Fund). The President's authority under this section for non-
transportation-related facilities has been delegated to the EPA 
Administrator.
    In August 2014, the 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, seeking 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 2010 Advance Notice of Proposed Rulemaking 
(ANPRM),\1\ that is, Chemical Manufacturing; Petroleum and Coal 
Products Manufacturing; and Electric Power Generation, Transmission, 
and Distribution. Following oral arguments, EPA and the petitioners 
submitted a 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 rulemaking.
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    \1\ See 75 FR 816.
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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 notice of proposed rulemaking on 
financial assurance requirements under Section 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.'' EPA 
signed the required determination on December 1, 2016; the document was 
published on January 11, 2017 \2\ and announced EPA's intent to proceed 
with rulemakings for all three of the classes.
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    \2\ See 82 FR 3512.
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B. Purpose of This Action

    The purpose of today's action is to propose that financial 
responsibility requirements under CERCLA Section 108(b) at facilities 
in the Electric Power Generation, Transmission, and Distribution 
industry are not necessary, and solicit comments on this proposal. EPA 
has reached this conclusion based on the analyses described in Parts VI 
and VII of this proposal. The evidence

[[Page 36537]]

provided in these analyses contributed to EPA's proposed finding that 
the degree and duration of risk posed by the Electric Power Generation, 
Transmission and Distribution Industry does not warrant financial 
responsibility requirements under CERCLA Section 108(b).
    The analysis and proposed finding in this proposal are not 
applicable to and do not affect, limit, or restrict EPA's authority to 
take a response action or enforcement action under CERCLA at any 
facility in the Electric Power Generation, Transmission, and 
Distribution Industry, including any currently operating facilities or 
those described in this proposal and in the background documents for 
this proposal, and to include requirements for financial responsibility 
as part of such response action. The set of facts in the rulemaking 
record related to the individual facilities discussed in this proposed 
rulemaking support the Agency's proposal not to issue financial 
responsibility requirements under Section 108(b) for this class, but a 
different set of facts could demonstrate a need for a CERCLA response 
action at an individual site. This proposed rulemaking also does not 
affect the Agency's authority under other authorities that may apply to 
individual facilities, such as the Clean Air Act (CAA), the Clean Water 
Act (CWA), the Resource Conservation and Recovery Act (RCRA), and the 
Toxic Substances Control Act (TSCA).

C. Summary of the Major Provisions of the Regulatory Action

    EPA is proposing to not require evidence of financial 
responsibility under CERCLA Section 108(b) at facilities in the 
Electric Power Generation, Transmission, and Distribution industry. 
Thus, there are no proposed regulatory provisions associated with this 
action.

D. Costs and Benefits of the Regulatory Action

    EPA is proposing to not require evidence of financial 
responsibility under CERCLA Section 108(b) at facilities in the 
Electric Power Generation, Transmission, and Distribution industry. 
EPA, therefore, has not conducted a Regulatory Impact Analysis for this 
action.

II. Authority

    This proposed rule is issued under the authority of Sections 101, 
104, 108 and 115 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, 
9604, 9608 and 9615, and Executive Order 12580. (52 FR 2923, January 
29, 1987).

III. Background Information

A. Overview of Section 108(b) and Other CERCLA Provisions

    CERCLA, as amended by the Superfund Amendments and Reauthorization 
Act of 1986 (SARA), establishes a comprehensive environmental response 
and cleanup program. Generally, CERCLA authorizes EPA \3\ to undertake 
removal or remedial actions in response to any release or threatened 
release into the environment of ``hazardous substances'' or, in some 
circumstances, any other ``pollutant or contaminant.'' As defined in 
CERCLA Section 101, removal actions include actions to ``prevent, 
minimize, or mitigate damage to the public health or welfare or to the 
environment,'' and remedial actions are ``actions consistent with [a] 
permanent remedy[.]'' Remedial and removal actions are jointly referred 
to as ``response actions.'' CERCLA Section 111 authorizes the use of 
the Hazardous Substance Superfund (Fund) established under title 26, 
United States Code, to finance response actions undertaken by EPA. In 
addition, CERCLA Section 106 gives EPA \4\ authority to compel action 
by liable parties in response to a release or threatened release of a 
hazardous substance that may pose an ``imminent and substantial 
endangerment'' to public health or welfare or the environment.
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    \3\ Although Congress conferred the authority for administering 
CERCLA on the President, most of that authority has since been 
delegated to EPA. See Exec. Order No. 12580, 52 FR. 2923 (Jan. 23, 
1987). The executive order also delegates to other Federal agencies 
specified CERCLA response authorities at certain facilities under 
their ``jurisdiction, custody or control.''
    \4\ CERCLA Sections 106 and 122 authority is also delegated to 
other Federal agencies in certain circumstances. See Exec. Order No. 
13016, 61 FR 45871 (Aug. 28, 1996).
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    CERCLA Section 107 imposes liability for response costs on a 
variety of parties, including certain past owners and operators, 
current owners and operators, and certain generators, arrangers, and 
transporters of hazardous substances. Such parties are liable for 
certain costs and damages, including all costs of removal or remedial 
action incurred by the Federal Government, so long as the costs 
incurred are ``not inconsistent with the national contingency plan,'' 
(the National Oil and Hazardous Substances Pollution Contingency Plan 
or NCP).\5\ Section 107 also imposes liability for natural resource 
damages and health assessment costs.\6\
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    \5\ See CERCLA Section 107 (a)(4)(A).
    \6\ See CERCLA Section 107 (a)(4)(C)-(D).
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    Section 108(b) establishes an authority to require owners and 
operators of classes of facilities to establish and maintain evidence 
of financial responsibility. Section 108(b)(1) directs EPA to develop 
regulations requiring owners and operators of facilities to establish 
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 turn, 
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. Section 108(b)(2) does not, however, preclude EPA from 
considering other factors in addition to those specifically listed. The 
statute prohibited promulgation of such regulations before December 
1985.
    In addition, Section 108(b)(1) provides for publication within 
three years of the date of enactment of CERCLA of a ``priority notice'' 
identifying the classes of facilities for which EPA would first develop 
financial responsibility requirements. It also directs that priority in 
the development of requirements shall be accorded to those classes of 
facilities, owners, and operators that present the highest level of 
risk of injury.

B. History of Section 108(b) Rulemakings

1. 2009 Identification of Priority Classes of Facilities for 
Development of CERCLA Section 108(b) Financial Responsibility 
Requirements
    On March 11, 2008, Sierra Club, Great Basin Resource Watch, Amigos 
Bravos, and Idaho Conservation League filed a suit against former EPA 
Administrator Stephen Johnson and former Secretary of the U.S. 
Department of Transportation Mary E. Peters, in the U.S. District Court 
for the Northern District of California. Sierra Club, et al. v. 
Johnson, No. 08-01409 (N.D. Cal.). On February 25, 2009, that court 
ordered EPA to publish the Priority Notice required by CERCLA Section 
108(b)(1) later that year. The 2009 Priority Notice and supporting 
documentation presented the Agency's conclusion that hardrock mining 
facilities would be the first class of facilities for which EPA would 
issue

[[Page 36538]]

CERCLA Section 108(b) requirements.\7\ Additionally, the 2009 Priority 
Notice stated EPA's view that classes of facilities outside of the 
hardrock mining industry may warrant the development of financial 
responsibility requirements.\8\ The Agency committed to gather and 
analyze data on additional classes of facilities and consider them for 
possible regulation. The court later dismissed the remaining claims.
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    \7\ See 74 FR 37214 (July 28, 2009).
    \8\ Id. at 37218.
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2. Additional Classes 2010 Advance Notice of Proposed Rulemaking
    On January 6, 2010, EPA published an Advance Notice of Proposed 
Rulemaking (ANPRM),\9\ in which the Agency identified three additional 
industrial sectors for the development, as necessary, of proposed 
Section 108(b) regulation. To develop the list of additional classes 
for the 2010 ANPRM, EPA used information from the CERCLA National 
Priorities List (NPL) and analyzed data from the Resource Conservation 
and Recovery Act (RCRA) Biennial Report (BR) and the Toxics Release 
Inventory (TRI). As was discussed in the ANPRM, 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.'' \10\ As an additional factor 
for consideration, EPA looked at certain known cases where impacts to 
groundwater or surface water had been documented, as well as recent 
catastrophic releases, such as the 2008 release of coal ash from the 
Tennessee Valley Authority's (TVA) Kingston Plant. The result of this 
analysis is explained in the 2010 ANPRM in detail, with the conclusion 
that three industries--the Chemical Manufacturing industry (North 
American Industry Classification System (NAICS) 325), the Petroleum and 
Coal Products Manufacturing industry (NAICS 324), and the Electric 
Power Generation, Transmission, and Distribution industry (NAICS 
2211)--would be considered for financial responsibility requirements 
under Sec.  108(b).
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    \9\ See 75 FR 816.
    \10\ 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 each of 
the three industries, or any class or classes within those industries, 
including information demonstrating why such financial responsibility 
requirements would or would not be appropriate for those particular 
classes. In addition, the Agency requested information related to the 
industry categories discussed in the ANPRM, including data on facility 
operations, information on past and expected future environmental 
response actions, 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 availability 
and implementation, and potential instrument conditions.\11\ Comments 
received on the ANPRM are summarized in the Additional Classes 2017 
Notice of Intent to Proceed with Rulemakings, section III.B.4 below.
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    \11\ See 75 FR 830-831.
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3. 2014 Petition for Writ of Mandamus
    Dissatisfied with the pace of EPA's progress, in August 2014, the 
Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, 
Great Basin Resource Watch, and Communities for a Better Environment 
filed a new lawsuit in the U.S. Court of Appeals for the District of 
Columbia Circuit, seeking a writ of mandamus requiring issuance of 
CERCLA Section 108(b) financial assurance rules for the hardrock mining 
industry and for three other industries: Chemical manufacturing; 
petroleum and coal products manufacturing; and electric power 
generation, transmission, and distribution. Thirteen companies and 
organizations representing business interests in the hardrock mining 
and other sectors sought to intervene in the case.
    Following oral argument, the court issued an Order in May 2015 
requiring the parties to submit, among other things, supplemental 
submissions addressing a schedule for further administrative 
proceedings under CERCLA Section 108(b). The Order further encouraged 
the parties to confer regarding a schedule and, if possible, to submit 
a jointly agreed upon proposal. Petitioners and EPA were able to reach 
agreement on a schedule. The parties requested an Order from the court 
with a schedule calling for the Agency to sign a proposed rule for the 
hardrock mining industry by December 1, 2016, and a final rule by 
December 1, 2017. The joint motion also included a requested schedule 
for the additional industry classes, which called for EPA to sign by 
December 1, 2016, a determination on whether EPA will issue a notice of 
proposed rulemaking for classes of facilities in any or all of the 
other industries, and a signature schedule for proposed and final rules 
for the additional industry classes as follows:

    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.\12\
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    \12\ In Re: Idaho Conservation League, No. 14-1149 (D.C. Cir. 
Jan. 29, 2016) (order granting joint motion).

    While the joint motion identified 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 set a rulemaking schedule, it did not 
indicate which industry would be the first, second or third. The Joint 
Motion specified that it did not alter the Agency's discretion as 
provided by CERCLA and administrative law.\13\
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    \13\ See Joint Motion at 6 (``Nothing in this Joint Motion 
should be construed to limit or modify the discretion accorded EPA 
by CERCLA or the general principles of administrative law.'')
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    On January 29, 2016, the court granted the joint motion and issued 
an Order that mirrored the submitted schedule in substance. The Order 
did not mandate any specific outcome of the rulemakings.\14\ The court 
Order can be found in the docket for this rulemaking. The signing of 
this proposed rule by July 2, 2019, will satisfy one component of the 
court Order. EPA has selected the Electric Power Generation, 
Transmission and Distribution industry as the first additional industry 
to meet the schedule laid out in the Order.
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    \14\ 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).
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4. Additional Classes 2017 Notice of Intent To Proceed With Rulemakings
    Consistent with the January 2016 court Order, EPA signed on 
December 1, 2016, a determination regarding rulemakings for the 
additional classes--a Notice of Intent to Proceed with

[[Page 36539]]

Rulemakings for all three of the classes. The document was published in 
the Federal Register on January 11, 2017.\15\
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    \15\ See 82 FR 3512.
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    The Notice of Intent to Proceed with Rulemakings formally announced 
EPA's intention to move forward with the regulatory process and publish 
a notice of proposed rulemaking for classes of facilities within the 
three industries identified in the 2010 ANPRM. The announcement in the 
Notice of Intent to Proceed with Rulemakings was not a determination 
that requirements were necessary for any or all of the classes of 
facilities within the three industries, or that EPA would propose such 
requirements. In addition, the document gave an overview of some of the 
comments received on the 2010 ANPRM and initial responses to those 
comments. The comments on the ANPRM which specifically addressed the 
need for CERCLA Section 108(b) regulation for the three additional 
classes fell 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. In 
discussing the ANPRM comments in the 2017 Notice of Intent to Proceed 
with Rulemakings, the Agency stated its intent to use other, more 
industry-specific and more current sources of data to identify risk, 
and to consider site factors that reduce risks, including those that 
result from compliance with other regulatory requirements, and develop 
a regulatory proposal based on the record EPA would develop for each 
rulemaking.
    At the time of the 2017 Notice of Intent to Proceed with 
Rulemakings, EPA had not identified sufficient evidence to determine 
that the rulemaking process was not warranted, nor had EPA identified 
sufficient evidence to establish CERCLA Section 108(b) requirements. 
The document described a process to gather and analyze additional 
information to support the Agency's ultimate decision, including 
further evaluation of the classes of facilities within the three 
industry sectors. The Notice of Intent to Proceed with Rulemakings 
stated that EPA would decide whether proposal of requirements was 
necessary and, accordingly propose appropriate requirements or propose 
not to impose requirements.

IV. Statutory Interpretation

    CERCLA Section 108(b) provides general instructions on how to 
determine what financial responsibility requirements to impose for a 
particular class of facility. Section 108(b)(1) directs EPA to develop 
regulations requiring owners and operators of facilities to establish 
evidence of financial responsibility ``consistent with the degree and 
duration of risk associated with the production, transportation, 
treatment, storage, or disposal of hazardous substances.'' 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 ``believes is appropriate based on the 
payment experience of the Fund, commercial insurers, courts settlements 
and judgments, and voluntary claims satisfaction.'' Read together, the 
statutory language on determining the degree and duration of risk and 
on setting the level of financial responsibility confers a significant 
amount of discretion on EPA.
    Section 108(b)(1) directs EPA to evaluate risk from a selected 
class of facilities, but it does not suggest that a precise calculation 
of risk is either necessary or feasible. Although the risk associated 
with a particular site can be ascertained only once a response action 
is required, any financial responsibility requirements imposed under 
Section 108(b) would be imposed before any such response action was 
identified. The statute thus necessarily confers on EPA wide latitude 
to determine, in a Section 108(b) rulemaking proceeding, what degree 
and duration of risk are presented by the identified class.
    Section 108(b)(2) in turn directs that EPA establish the level of 
financial responsibility that EPA in its discretion believes is 
appropriate to protect against the risk. This statutory direction does 
not specify a methodology for the evaluation. Rather, this decision is 
committed to the discretion of the EPA Administrator. While the statute 
provides a list of information sources on which EPA is to base its 
decision--the payment experience of the Superfund, commercial insurers, 
courts settlements and judgments, and voluntary claims satisfaction--
the statute does not indicate that this list of factors is exclusive, 
nor does it specify how the information from these sources is to be 
used, such as by indicating how these categories are to be weighted 
relative to one another.
    For the electric power industry, EPA has investigated the payment 
history of the Fund, and enforcement settlements and judgments, to 
evaluate, in the context of this CERCLA Section 108(b) rulemaking, the 
risk from facilities that would be subject to CERCLA financial 
responsibility requirements. The statute also authorizes EPA to 
consider the existence of Federal and state regulatory requirements, 
including any financial responsibility requirements. Section 108(b)(1) 
directs EPA to promulgate financial responsibility requirements ``in 
addition to those under subtitle C of the Solid Waste Disposal Act and 
other Federal law.'' According to the 1980 Senate Report on legislation 
that was later enacted as CERCLA, Congress considered it appropriate 
for EPA to examine those additional requirements when evaluating the 
degree and duration of risk under what was later enacted as CERCLA 
Section 108(b):

    The bill requires also that facilities maintain evidence of 
financial responsibility consistent with the degree and duration of 
risks associated with the production, transportation, treatment, 
storage, and disposal of hazardous substances. These requirements 
are in addition to the financial responsibility requirements 
promulgated under the authority of Sec.  3004(6) of the Solid Waste 
Disposal Act. It is not the intention of the Committee that 
operators of facilities covered by Sec.  3004(6) of that Act be 
subject to two financial responsibility requirements for the same 
dangers.\16\
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    \16\ S. Rept. 96-848 (2d Sess, 96th Cong.), at 92.

    While the Senate Report mentions RCRA Section 3004(6) specifically, 
it is consistent with Congressional intent for EPA to consider other 
potentially duplicative federal financial responsibility requirements 
when examining the ``degree and duration of risk'' in the context of 
CERCLA Sec.  108(b) to determine whether and what financial 
responsibility requirements are appropriate. It is also consistent with 
Congressional intent for EPA to consider state laws before imposing 
additional Federal financial responsibility requirements on facilities.
    Consideration of state laws before developing financial 
responsibility regulations is consistent with CERCLA Section 114(d), 
which prevents states from imposing financial responsibility 
requirements for liability for releases of the same hazardous 
substances after a facility is regulated under Section 108 of CERCLA. 
Just as Congress clearly intended to prevent states from imposing 
duplicative financial assurance requirements after EPA had acted to 
impose such requirements under Section 108, it is reasonable to also 
conclude that Congress did not mean for EPA to disrupt existing state 
programs that are successfully

[[Page 36540]]

regulating industrial operations to minimize risk, including the risk 
of taxpayer liability for response actions under CERCLA, and that 
specifically include appropriate financial assurance requirements under 
state law. Reviews of both state programs and other federal programs 
help to identify whether and at what level there is current risk that 
is appropriate to address under CERCLA Section 108.
    EPA also believes that, when evaluating whether and at what level 
it is appropriate to require evidence of financial responsibility, EPA 
should examine information on electric power generation, transmission 
and distribution facilities operating under modern conditions, i.e., 
the type of facilities to which financial responsibility regulations 
would apply. These modern conditions include state and federal 
regulatory requirements and financial responsibility requirements that 
currently apply to operating facilities. This reading of Section 108(b) 
is consistent with statements in the legislative history of the 
statute. The 1980 Senate Report states that the legislative language 
that became Section 108(b) ``requires those engaged in businesses 
involving hazardous substances to maintain evidence of financial 
responsibility commensurate with the risk which they present.'' \17\
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    \17\ S. Rept. 96-848 (2d Sess, 96th Cong.), at 92.
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    This statutory interpretation is reflected in this proposal. Any 
financial responsibility requirements imposed under Section 108(b) 
would apply to currently operating facilities. EPA thus sought to 
examine the extent to which hazardous substance management at currently 
operating electric power generation, transmission and distribution 
facilities as a class continues to present risk. Moreover, the 
statutory direction to identify requirements consistent with identified 
risks guides EPA's interpretation that imposition of financial 
responsibility requirements under Section 108(b) would not be necessary 
for currently operating facilities that present minimal current risk. 
The interpretation in this proposal does not extend to any site-
specific determinations of risk made in the context of individual 
CERCLA site responses. Those decisions will continue to be made in 
accordance with preexisting procedures.
    EPA thus examined records of releases of hazardous substances from 
facilities operating under a current regulatory framework and data on 
the actions taken and expenditures incurred in response to such 
releases. The data collected do not reflect historical practices, many 
of which would be illegal under current environmental laws and 
regulations. Instead, EPA has considered current federal and state 
regulation of hazardous substance production, transportation, 
treatment, storage, or disposal applicable to facilities in the 
electric power industry.

V. Approach To Developing This Proposed Rule

    Based on the statutory interpretation described above, EPA 
developed an analytical approach to determine whether the current risk 
under a modern regulatory framework within the Electric Power 
Generation, Transmission and Distribution industry rises to the level 
that warrants imposition of financial responsibility requirements under 
CERCLA Section 108(b). Specifically, EPA designed the analytical 
approach to determine the need for financial responsibility for this 
industry based on the degree and duration of risk associated with the 
industry's production, transportation, treatment, storage, or disposal 
of hazardous substances. The approach, described in detail below, looks 
at risks by examining records of releases of hazardous substances from 
facilities in the industry in combination with the payment history of 
the Fund, and enforcement settlements and judgments. To enable EPA to 
base its decision on risk posed by facilities operating under modern 
conditions, i.e., the types of facilities to which financial 
responsibility requirements would apply, EPA developed an approach to 
identify and consider relevant state and Federal regulatory 
requirements and financial responsibility requirements that currently 
apply to operating facilities, as well as voluntary protective 
practices.
    EPA sought to determine the level of risk at current Electric Power 
Generation, Transmission and Distribution operations. Relevant to this 
decision are requirements of existing regulatory programs and voluntary 
practices, including existing financial responsibility requirements, 
which can reduce costs to the taxpayer; EPA's experience with clean-ups 
in the Electric Power Generation, Transmission and Distribution 
industry; and enforcement actions, which may reduce the need for 
federally-financed response action at facilities in the Electric Power 
Generation, Transmission and Distribution industry.
    As part of scoping the Electric Power Generation, Transmission and 
Distribution industry for this proposal, EPA sought to understand 
general characteristics of the industry that may be relevant to 
financial responsibility under Section 108(b). To do this EPA compiled 
industry features, including the types of activities undertaken and 
wastes handled or produced. Additionally, EPA looked at the financial 
condition of the industry to assess the ability of facilities in this 
class to pay for any environmental obligations they may incur. 
Discussion of these aspects of the industry is included in Section VI 
of this proposal.
    Section VII.A. describes EPA's evaluation of cleanup cases at 
facilities in the Electric Power Generation, Transmission and 
Distribution industry. So-called ``cleanup cases'' are sites in the 
Electric Power Generation, Transmission and Distribution industry where 
releases and cleanup actions occurred. To perform this evaluation EPA 
developed an analytic approach that considered cleanup cases to 
identify risk at currently operating facilities and where taxpayer 
funds were expended for response action. EPA first examined each site 
to determine the nature and timing of release. EPA used this 
information to determine if releases occurred under current 
regulations. As an initial screen, releases that occurred prior to 1980 
were deemed to be legacy releases that occurred prior to the advent of 
the modern environmental regulatory framework and were therefore 
screened out of our analysis. Once EPA identified those sites with more 
recent releases occurring under a modern environmental regulatory 
framework, EPA then focused on those response actions that were paid 
for by the taxpayer by looking at those sites with Fund-financed 
cleanup activity.
    As described in Section VII.B., to understand the modern regulatory 
framework applicable to currently operating facilities within the 
Electric Power Generation, Transmission and Distribution industry, EPA 
compiled applicable Federal and state regulations. Specifically, EPA 
looked to regulations that address the types of releases identified in 
the cleanup cases. This review also considered industry voluntary 
programs that could reduce risk of releases. EPA also identified 
financial responsibility regulations that apply to facilities in the 
Electric Power Generation, Transmission and Distribution industry, 
Section VII.C., and compliance and enforcement history for the relevant 
regulations, Section VII.D.
    In considering how to structure its analysis and what data sources 
to examine, EPA looked at prior analysis done for selection of industry 
classes in the 2010 ANPRM and public comments responding to EPA's 
approach. In the

[[Page 36541]]

public comment period for the ANPRM, EPA received a total of 67 
comments from 30 commenters on the Chemical Manufacturing industry, 
Petroleum and Coal Products Manufacturing industry, and the Electric 
Power Generation, Transmission, and Distribution industry. In addition, 
EPA received five comments to the Hardrock Mining Proposed Rule related 
to the additional classes of facilities.
    A large portion of the comments EPA received on the ANPRM were 
related to the Electric Power Generation, Transmission and Distribution 
industry. Commenters noted their view that this industry is distinct 
from other industries because it does not have a history of failing to 
cover remediation costs. Further, commenters stated that facilities in 
this industry are subject to multiple Federal environmental statutes 
and regulations and thus EPA should not duplicate existing financial 
assurance. In addition, commenters stated that EPA should focus on 
large electric power generation facilities that produce and release 
hazardous substances, not transmission or distribution facilities; 
wind, solar, nuclear, or hydro-electric plants; or natural gas-fired 
and oil-fired electric generation facilities. Lastly, some commenters 
believe that EPA placed too much emphasis on Toxics Release Inventory 
(TRI) data and RCRA Biennial Report (BR) data and expressed their 
opinions that these data sources are not risk based.
    In its 2017 Notice of Intent to Proceed with Rulemakings \18\ EPA 
acknowledged limitations on information that can be gained from TRI and 
BR data and announced its intention to use industry-specific and 
current sources of data to identify risk for the purposes of the 
rulemakings. In the analysis conducted to assess risk in the Electric 
Power Generation, Transmission and Distribution industry for this 
action, EPA chose not to rely on TRI and BR data. While the Agency 
found those data sources appropriate for identifying classes of 
facilities to examine further at the time of the 2010 ANPRM, it did not 
find them valuable for assessing current risk in the industry or the 
need for a response action.
---------------------------------------------------------------------------

    \18\ See 82 FR 3512.
---------------------------------------------------------------------------

V. Electric Power Generation, Transmission and Distribution Industry 
Overview

A. Identification of Electric Power Generation, Transmission and 
Distribution Industry

    For this proposal and the associated analyses, EPA reviewed 
facilities classified under the North American Industry Classification 
System (NAICS) code 2211. Most recently available census data lists the 
size of the industry at 10,330 establishments nationally.\19\ The 
Electric Power Generation, Transmission and Distribution (NAICS 2211) 
industry is defined as: Facilities primarily engaged in generating, 
transmitting, and distributing electric power. Establishments \20\ in 
this industry group may perform one or more of the following 
activities: (1) Generate electric energy; (2) operate transmission 
systems that convey the electricity from the generation facility to the 
distribution system; and (3) operate distribution systems that convey 
electric power received from the generation facility or the 
transmission system to the final consumer.
---------------------------------------------------------------------------

    \19\ United States Census Bureau, EC1222A1--Utilities: 
Geographic Area Series: Summary Statistics for the U.S., States, 
Metro Areas, Counties, and Places, 2012.
    \20\ Establishment is defined as a single physical location 
where business is conducted or where services or industrial 
operations are performed. www.census.gov/ces/dataproducts/bds/definitions.html.
---------------------------------------------------------------------------

B. Current Industry Practices

    Operational and decommissioning practices in industrial sectors and 
their associated firms can ultimately affect the ability of individual 
firms to responsibly minimize their impact on human health and the 
environment. To consider the potential for releases as part of its 
decision making, EPA prepared a high-level review \21\ of industry 
practices and the environmental profile of the Electric Power 
Generation, Transmission and Distribution industry, which includes a 
summary of relevant operational and decommissioning materials and 
wastes.
---------------------------------------------------------------------------

    \21\ Electrical Power Generation, Transmission and Distribution 
Industry Practices and Environmental Characterization, June 2019.
---------------------------------------------------------------------------

    Electric generating plants convert mechanical, chemical, and/or 
fission energy into electric energy. Within this population of electric 
generating plants, there are different types of processes employed to 
produce electricity (e.g., coal-fired power plants, wind turbines). 
Electric power transmission is the bulk transfer of electrical energy 
between the point of generation and multiple substations near a 
populated area or load center. A distribution substation performs 
multiple functions, such as stepping down and stabilizing voltage going 
into distribution lines, splitting and routing distribution power in 
multiple directions, and disconnecting the transmission grid from the 
substation when necessary.
    Operation of any power plant requires use of a variety of 
nonhazardous materials, including paper, cardboard, wood, aluminum, 
containers, packaging materials, office waste, food, municipal trash, 
and wastes from equipment assembly and maintenance crews. Potentially 
hazardous materials are also frequently used. These materials can 
include sandblast media, fuels, paints, spent vehicle and equipment 
fluids (e.g., lubricating oils, hydraulic fluids, battery electrolytes, 
glycol coolants), among others. Hazardous materials may include, but 
are not limited to, asbestos or mercury containing materials, 
compressed gases used for welding and cutting, dielectric fluids, 
boiler bottom ash, and oils. Process fluids can be either hazardous or 
non-hazardous, and can include oily water, spent solvents, chemical 
cleaning rinses, cooling water, wash and makeup water, sump and floor 
discharges, oily water separator fluids, boiler blowdown, and water 
from surface impoundments. Other materials beyond those listed here may 
be used in the operation of power plants.
    The types of hazardous substances that have been released from 
facilities in the Electric Power Generation, Transmission and 
Distribution industry include hydrogen fluoride; vanadium, zinc, 
copper, and lead compounds; ammonia; and arsenic, cobalt, barium, 
cadmium, and selenium compounds. Coal combustion residuals frequently 
contain arsenic, selenium, mercury, and other toxic metals. Other 
substances beyond those listed here may also have been released from 
facilities in the industry.
    As detailed in the 2010 ANPRM, most environmental impacts of 
electric utilities relate to the fuel sources used to generate electric 
power. For example, burning coal at coal-fired power plants generates 
ash that contains contaminants like mercury, cadmium and arsenic. 
Without proper management, contaminants present in coal ash can pollute 
waterways, groundwater, and drinking water. The need for Federal action 
to help ensure protective coal ash disposal has been further 
highlighted by large spills such as those at the TVA Kingston Plant and 
Duke Energy's Dan River Steam

[[Page 36542]]

Station,\22\ which caused widespread environmental and economic damage 
to nearby waterways and properties.
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    \22\ https://www.epa.gov/tn/epa-response-kingston-tva-coal-ash-spill, https://www.epa.gov/dukeenergy-coalash.
---------------------------------------------------------------------------

    Electricity delivery can also affect the environment in several 
ways. High voltage power switches, inverters, converters, controller 
devices and other power electronics contain lead, brominated fire 
retardants, and cadmium in their printed circuit boards; these circuit 
boards must be managed properly to avoid posing risk to human health or 
the environment. Electrical substations and urban manhole facilities 
require periodic cleaning, which may yield hazardous waste. 
Additionally, insulating materials such as asbestos and polychlorinated 
biphenyls (PCBs) must also be managed properly.
    Industry practices in certain subsectors, the Fossil Fuel 
Generation (221112), Transmission (221121) and Distribution (221122), 
of the Electric Power Generation, Transmission and Distribution 
industry use more hazardous substances and/or generate larger volumes 
of hazardous waste. Several generation subsectors use and generate 
lower amounts of hazardous substances or wastes, including 
Hydroelectric (221111), Nuclear (221113), Solar (221114), Wind 
(221115), Geothermal (221116) and Tidal (221118). Further information 
on industry practices is provided in EPA's document ``Electrical Power 
Generation, Transmission and Distribution Industry Practices and 
Environmental Characterization'' \23\ available in the docket for this 
rulemaking.
---------------------------------------------------------------------------

    \23\ Electrical Power Generation, Transmission and Distribution 
Industry Practices and Environmental Characterization, June 2019.
---------------------------------------------------------------------------

    Facilities in the electric power generation, transmission and 
distribution industry are subject to a wide range of environmental 
regulation and enforcement oversight as discussed in Sections VII.B. 
and VII.D. below.

C. Industry Economic Profile

    Economic trends and financial health in industrial sectors and 
their associated firms can ultimately affect the ability of individual 
firms to responsibly address their environmental liabilities. 
Circumstances where firms face financial stress can potentially 
contribute to the abandonment of facilities and the creation of orphan 
wastes sites requiring cleanup. To consider the potential for firms to 
default on their financial obligations EPA prepared a high-level 
economic profile of the Electric Power Generation, Transmission and 
Distribution industry, which includes a summary of relevant financial 
metrics, market consolidation and diversification trends, industry 
default risks, and accounting standards for environmental liabilities 
of entities operating within this industry. This analysis, summarized 
in this section, looked at the industry as a whole and additionally 
focused on certain subsectors that might be most pertinent to evaluate 
for CERCLA 108(b) requirements, including facilities subject to the 
2015 Disposal of Coal Combustion Residuals from Electric Utilities 
Final Rule (2015 CCR Rule).\24\ The full analysis is found in the 
background document for this section available in the docket for this 
rulemaking.\25\
---------------------------------------------------------------------------

    \24\ Hazardous and Solid Waste Management System; Disposal of 
Coal Combustion Residuals from Electric Utilities (80 FR 21302, 
April 17, 2015).
    \25\ CERCLA 108(b) Economic Sector Profile: Electric Power 
Generation, Transmission, and Distribution Industry, June 2019.
---------------------------------------------------------------------------

    According to the U.S. Census Survey of Business Owners, firms under 
NAICS 2211 generated $430 billion in total value of sales, shipments, 
receipts, revenue, or business done in 2012. Of this $430 billion, 72 
percent came from Electric Power Transmission, Control, and 
Distribution, while Electric Power Generation accounted for the 
remaining 28 percent. Within Electric Power Generation, fossil fuel 
power generation accounted for the largest portion of these values, at 
68 percent.
    The market structures under which Electric Power Generation, 
Transmission and Distribution industry firms operate are varied and 
unique to this industry. Firms, their owners/shareholders, and 
taxpayers may experience different risk profiles based on the 
companies' ownership (privately or publicly held), as well as the 
nature of the market in which they operate (regulated or deregulated). 
In addition, the Federal Government owns nine power agencies, 
accounting for seven percent of net generation and eight percent of 
transmission. These federally-owned utilities present an extremely low 
risk of default on environmental liabilities. Publicly-owned utilities 
also present a low risk of bankruptcy due to detailed financial 
reporting requirements and government oversight. Publicly-owned 
utilities may also have access to lower-cost forms of financing, such 
as tax-free bonds and local low-interest loans. More information on the 
numbers of publicly-owned utilities and investor-owned utilities, and 
their relative percentages across the industry, is provided in the 
background document available in the docket for this rulemaking.\26\
---------------------------------------------------------------------------

    \26\ Id.
---------------------------------------------------------------------------

    These utilities can operate in either regulated or deregulated 
markets, which also come with financial risk/stability tradeoffs. 
Regulated markets are characterized by vertically integrated monopolies 
that own and operate all infrastructure and essential components 
involved in the delivery of electricity to their customers. Regulated 
firms are given reasonable opportunity to recover necessary and prudent 
costs in their rates through rate regulation. This generally includes 
costs necessary to address environmental liabilities, which are 
ultimately covered by the rate-payers. On the other hand, deregulated, 
or merchant, markets allow for competition as generation plants sell 
wholesale electricity to retail suppliers, who set prices, making the 
performance of environmental cleanups more susceptible to market forces 
and a firm's ability to pay.
    EPA assessed financial ratios, including cash flow-solvency, 
profitability, efficiency, and debt risk, for companies in the Electric 
Power Generation, Transmission and Distribution industry to examine 
trends over time and provide a deeper assessment of the industry's and 
companies' financial health. Generally, EPA research finds that the 
Electric Power Generation, Transmission, and Distribution industry 
remains financially stable. The industry is characterized by 
diversified fuel sources and vertical integration, reducing firms' 
dependency on any one subsector and strengthening long-term financial 
stability. Mergers and acquisitions in recent years have also enhanced 
financial stability in the long run by further diversifying large firms 
across subsectors. According to the 2018 U.S. Cost of Capital Valuation 
Handbook, in recent years the industry experienced less risk and 
volatility than the overall market.
    Firms in the industry overall remain profitable and able to cover 
short-term debt. The data, however, also indicate that larger firms in 
the industry tend to be more highly leveraged. For some firms, long-
term liabilities have risen relative to net worth ratios, resulting in 
a higher risk of default. While default risk remains relatively low 
industry-wide, the data suggest two key risk factors that may threaten 
financial stability for some firms: High dependency on coal and nuclear 
generation, and rapid market consolidation through mergers and 
acquisition.

[[Page 36543]]

    For example, some notable bankruptcies in recent years stemmed from 
a high dependency on coal and nuclear power generation. Firms more 
solely invested in coal or nuclear generation faced more difficulty, 
due to their lack of diversification into alternative fuel sources and 
lower profit margins.\27\ Nevertheless, the occurrence of bankruptcies 
in this industry has historically been far lower than that of many 
other industries, and such occurrences remain relatively infrequent. 
Further evidence suggests that due in part to factors such as the 
significant amount of fixed infrastructure and consumer dependence on 
electricity, energy sector firms that default tend to emerge from 
bankruptcy and continue to operate rather than fully close. Such 
bankruptcies tend to proceed under Chapter 11 relief, for purposes of 
debt restructuring. Moreover, in most of these bankruptcies the debtors 
have retained their responsibility for environmental liabilities. 
Additionally, if the units are continuing to operate, the obligation to 
comply with applicable environmental regulations, including the 2015 
CCR final rule and any final amendments, will still be required. 
Further discussion on bankruptcy experience of this industry, including 
evaluation of individual bankruptcy cases, can be found in the 
background document to this section found in the docket.\28\
---------------------------------------------------------------------------

    \27\ For example, Energy Future Holdings Corp. filed for 
bankruptcy in 2014, followed by First Energy Solutions in 2018, 
after they struggled to make money from coal and nuclear plants in 
unfavorable market conditions.
    \28\ CERCLA 108(b) Economic Sector Profile: Electric Power 
Generation, Transmission, and Distribution Industry, June 2019.
---------------------------------------------------------------------------

    Close examination of market structures and typical bankruptcy 
restructuring that exist within the Electric Power Generation, 
Transmission and Distribution industry suggest that the industry as a 
whole should retain the capacity and fiduciary responsibility to pay 
the costs of addressing their environmental obligations. In this 
industry, publicly-owned utilities subject to rate-setting regulations, 
as well as federally-owned utilities, are less likely to default on 
liabilities than in other industries. For investor-owned utilities and 
those that operate in deregulated markets, bankruptcy code provisions 
and legal precedents can provide other protections against the 
discharge of environmental liabilities in bankruptcy.

VII. Discussion of Cleanup Sites Analysis

A. Cleanup Site Evaluations

    As described in the Approach to Developing the Proposed Rule, 
Section V above, to evaluate the need for financial responsibility 
regulations in the Electric Power Generation, Transmission and 
Distribution industry, EPA sought examples of pollution that occurred 
under a modern regulatory framework and that required a taxpayer-funded 
CERCLA cleanup. In its evaluation, EPA focused first on identifying 
response actions at Superfund National Priority List (NPL) sites and 
sites using the Superfund Alternative Approach (SAA),\29\ as those are 
generally larger cleanups both in terms of amounts of contaminants 
removed and costs to carry out these cleanups. EPA also looked at 
Superfund removals at non-NPL sites. Beyond these sites in the Federal 
Superfund program, EPA included proven CCR damage cases \30\ in its 
evaluation, given the prevalence and significance of the CCR damage 
cases reviewed for the 2010 ANPRM. Specifically, in that ANPRM, EPA 
assessed documented evidence of proven damage due to CCRs in 17 cases 
of groundwater contamination and 10 cases of surface water 
contamination. EPA noted an additional 40 cases of potential CCR-
related groundwater or surface water contamination.
---------------------------------------------------------------------------

    \29\ The ``Superfund Alternative Approach (SAA)'' uses the same 
CERCLA authority and investigation and cleanup process and standards 
that are used for NPL sites. The threshold criteria for using the 
SAA are: (1) The site must have contamination significant enough to 
make it eligible for listing on the NPL; (2) the site is anticipated 
to need remedial action; and, (3) there must be a cooperative, 
viable, capable PRP that will sign a CERCLA agreement with EPA to 
perform the necessary cleanup.
    \30\ CCR are byproducts of the combustion of coal at power 
plants by electric utilities and independent power producers. Fly 
ash, bottom ash, boiler slag, and flue gas desulfurization materials 
are types of CCR. On April 17, 2015, the EPA published a final rule 
establishing a comprehensive set of requirements for the disposal of 
CCR in landfills and surface impoundments. 80 FR 21302. These 
requirements were finalized under the solid waste provisions, 
subtitle D, of the Resource Conservation and Recovery Act.
---------------------------------------------------------------------------

    To identify the relevant cleanup cases, EPA included NPL sites, 
sites using the SAA, and non-NPL sites identified in EPA's Superfund 
Enterprise Management System (SEMS) database. EPA also included CCR 
damage cases identified as part of the 2015 CCR Rule.\31\ EPA collected 
information on the timing and nature of releases or threatened releases 
at these sites. Specifically, EPA sought to identify, as applicable, 
facility operation end dates, release dates, sources of contamination, 
NPL proposal dates, contaminated media, type of contaminant, cleanup 
lead, and information on Superfund expenditures at the site. For this 
collection, EPA relied on information previously collected as part of 
the ANPRM, information available in Superfund site documents (e.g. NPL 
listing narratives, Records of Decision, Action Memos, Five-Year 
Reviews), and information in SEMS as of March 2018, as well as data for 
proven CCR damage cases, and associated site summaries developed for 
the 2015 CCR Rule.\32\ The cleanup case identification and site 
information collection processes are described in greater detail in the 
relevant background documents.\33\
---------------------------------------------------------------------------

    \31\ The same list of proven CCR Damage Cases used in 
promulgation of the 2015 CCR Rule, was also relied upon as the best 
available source of data on CCR damage cases at the time that these 
CERCLA 108(b) analyses were conducted. The 2015 CCR Rule requires 
groundwater monitoring as a first step in a process to monitor and 
assess contaminants from CCR units. Facilities must post groundwater 
monitoring data on a publicly available website. Utilities are 
required to initiate corrective actions should groundwater 
exceedances be detected. Any such responses being taken under the 
2015 CCR Rule are in early stages, too early to discern if any 
impact to taxpayer may result. EPA, therefore, did not evaluate this 
data for this proposal.
    \32\ Hazardous and Solid Waste Management System; Disposal of 
Coal Combustion Residuals from Electric Utilities (80 FR 21302, 
April 17, 2015).
    \33\ Identification and Evaluation of National Priority List 
(NPL) Sites, Sites Using the Superfund Alternative Approach (SAA), 
and Coal Combustion Residual (CCR) Cleanup Cases in the Electric 
Power Generation, Transmission, and Distribution Industry, June 
2019, and Identification and Evaluation of CERCLA 108(b) Electric 
Power Generation, Transmission, and Distribution Industry non-
National Priority List (NPL) Removal Sites, June 2019.
---------------------------------------------------------------------------

    After compiling information about the risks and history of each 
site, EPA sought to identify instances where releases occurred under a 
modern regulatory framework and those releases that resulted in Fund-
financed response actions. To do so, EPA's methodology applied 
sequenced screens to the identified sites. EPA first sought to screen 
out any NPL sites or sites using the SAA where the contaminant release 
or cleanup activity occurred before 1980. EPA chose 1980 as a cutoff 
point to initially screen out legacy issues because it was the year 
that CERCLA was enacted, as well as the date of the initial regulations 
under RCRA Subtitle C governing the generation, treatment, storage, and 
disposal of hazardous waste. EPA chose to give these significant RCRA 
and CERCLA milestones greatest consideration due to the large number of 
issues of waste management, land disposal, and soil contamination 
identified in the review

[[Page 36544]]

of the NPL and SAA cases. EPA believes the 1980 cutoff point to be a 
conservative screen (i.e., retains more sites in the analysis) in that 
only the initial RCRA regulations were in place in 1980 and they were 
refined, expanded and enhanced several times over the next decades. 
Moreover, the Agency's enforcement authorities expanded in the 1980s as 
the RCRA program matured. Notably, the passage in 1984 of Hazardous and 
Solid Waste Amendments (HSWA) resulted in many regulatory changes and 
enhanced enforcement mechanisms.
    Next, EPA sought to remove sites where significant Fund 
expenditures had not occurred, because response actions that were paid 
for by private parties do not support the need for CERCLA Section 
108(b) financial responsibility regulations. Using the ``Action Lead'' 
field in SEMS associated with each site, EPA screened out the 
Potentially Responsible Party (PRP) lead sites. This left only the 
Mixed Lead Construction or Government Performed Construction sites in 
the analysis, consistent with EPA's assessment that at PRP Performed 
Construction sites, responsible parties retain responsibility for the 
majority of costs. Therefore, PRP Performed Construction sites do not 
represent significant expenses to the Superfund.
    EPA then reviewed the remaining sites (i.e., those with both 
release dates of 1980 or later and Mixed Lead Construction or 
Government Performed Construction designation in SEMS) individually in 
greater detail. Specifically, EPA considered the site history and each 
of the contamination sources at the site in the context of the 
regulations that would be applicable to that facility today. A 
particularly relevant regulation is the 2015 CCR Rule, which added 
significant new requirements to the coal-fired electric utility plants 
that dispose of CCR in landfills and surface impoundments. The 
promulgation of the 2015 CCR Rule effectively establishes the 
introduction of the modern regulatory framework for coal-fired electric 
utilities. More information on the regulations EPA considered is 
available in Section VII.B. below.
    Findings from EPA's analysis of the cleanup cases are discussed 
below, with more detailed information available in the ``Identification 
and Evaluation of National Priority List (NPL) Sites, Sites Using the 
Superfund Alternative Approach (SAA), and Coal Combustion Residual 
(CCR) Cleanup Cases in the Electric Power Generation, Transmission, and 
Distribution Industry'' background document and the ``Identification 
and Evaluation of CERCLA 108(b) Electric Power Generation, 
Transmission, and Distribution Industry non-National Priority List 
(NPL) Removal Sites'' background document in the docket for this 
rulemaking.\34\ The background documents provide the list of sites 
identified as well as the information considered in the screening and 
review process. Also provided is the list of sites remaining at each 
stage of the analysis, as well as the Agency's rationale for each 
site's subsequent designation.
---------------------------------------------------------------------------

    \34\ Identification and Evaluation of National Priority List 
(NPL) Sites, Sites Using the Superfund Alternative Approach (SAA), 
and Coal Combustion Residual (CCR) Cleanup Cases in the Electric 
Power Generation, Transmission, and Distribution Industry, June 
2019.
---------------------------------------------------------------------------

    Using the data sources described above for the Electric Power 
Generation, Transmission, and Distribution industry, EPA identified 4 
NPL sites and 1 site using the SAA, as well as 24 non-NPL CERCLA 
removal action sites,\35\ and an additional 27 proven CCR-related 
damage cases \36\ not tracked within Superfund data systems, to 
evaluate according to the methodology described above. As described 
further below, none of the NPL sites, sites using the SAA, or CCR 
damage cases were ultimately considered incidents that occurred under a 
modern regulatory framework nor were they incidents where taxpayer 
funds were relied upon. For the removal sites, 2 of the 24 cases showed 
releases of hazardous substances under a modern regulatory framework 
and required taxpayer expenditures, as described below.
---------------------------------------------------------------------------

    \35\ None of these 24 removal sites are associated with NPL 
sites. Removal actions that have taken place at NPL sites or sites 
using the SAA, either before or after listing or designation, are 
tracked in SEMS as NPL or SAA level actions and not as separate 
removal records.
    \36\ These 27 proven CCR damage cases represent the final list 
of sites at Electric Power Generation, Transmission and Distribution 
industry facilities that are not in the Superfund program. Such 
sites were included in EPA's evaluation due to the known prevalence 
of ground and surface water damages associated with the management 
of CCRs. Proven damage cases were relied upon as the highest quality 
source of data, selected on the basis of strict criteria where the 
subject damages are confirmed as being attributable to Fossil Fuel 
Combustion Wastes, based on documented evidence from Scientific 
Results, Administrative Rulings, and/or Court Findings.
---------------------------------------------------------------------------

    The four NPL sites evaluated include two coal-fired power 
generation plants with serious CCR contamination, as well as one hydro-
electric facility with PCB contamination and one nuclear power 
generator with radiation contamination. The one site using the SAA is a 
steam plant that generates electric power from oil-fired burners and 
natural gas turbines.
    For the four NPL sites, either the dates of contaminant release 
were prior to 1980, or the power plants were Federal facilities owned 
and operated by the Federal Government. In the case of the one site 
using the SAA, no further remedial action is called for and costs for 
removal and cleanup were covered by the PRP under its CERCLA agreement 
with EPA. As a result, EPA did not undertake a more detailed review of 
these sites, as summarized in Table 1 below.

               Table 1--Evaluation Results for NPL and SAA Sites in the Electric Power Generation, Transmission and Distribution Industry
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                 Number of NAICS 2211 NPL &                                   Detailed review identified a   Cases with release(s) under
  Total NAICS 2211 NPL & SAA    SAA sites screened out based    Detailed review concluded      possible modern regulation      modern regulation that
       sites evaluated            on pre-1980, or PRP lead      release occurred prior to       release but no taxpayer       required taxpayer funded
                                           status                   modern regulation                 expenditures                    response
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         5                              5                              0                              0                             0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Given the small number of NPL and SAA cleanup cases and the 
consideration of CCR damage cases for the 2010 ANPRM, EPA chose to 
evaluate the potential risk from CCR damage cases. EPA evaluated the 27 
proven CCR damage cases identified for the 2015 CCR Rule. Following the 
above methodology for identifying modern risk, 17 of the cases were 
screened from further consideration because the source of contamination 
was determined to

[[Page 36545]]

have occurred prior to 1980, or because the site was designated as a 
responsible party lead cleanup. Ten remaining cases were determined to 
have occurred after 1980. When these 10 remaining cases were assessed 
against today's modern regulatory framework, the releases were all 
found to have occurred prior to promulgation of the 2015 CCR Rule \37\ 
and therefore they were screened from further consideration. As 
described in more detail in the Role of Federal and State Programs 
section below, the 2015 CCR Rule was specifically designed to contain 
requirements that address the risks from coal combustion residue 
disposal--leaking of contaminants into groundwater, blowing of 
contaminants into the air as dust, and the catastrophic failure of coal 
ash surface impoundments, i.e., the sources of contamination identified 
in the CCR damage cases. Therefore, although there are examples of 
significant releases in more recent years (for example, as recent as 
2014 in the case of the Duke Energy breach at Dan River, and 2008 in 
the case of a catastrophic dike failure at the TVA Kingston Plant), 
those cases still occurred prior to the advent of the new regulatory 
standards intended to prevent and remedy these types of incidents. 
Although not all provisions of the 2015 CCR Rule have been fully 
implemented, EPA believes the requirements in place and those to be 
implemented in the coming years sufficiently reduce the risk level at 
coal-fired power plants. The 2015 CCR Rule is described further in 
Section VII.B.
---------------------------------------------------------------------------

    \37\ Hazardous and Solid Waste Management System; Disposal of 
Coal Combustion Residuals from Electric Utilities, (80 FR 21302, 
April 17, 2015).
---------------------------------------------------------------------------

    The summary results of the analysis of proven CCR damage cases are 
presented in Table 2 below.

                Table 2--Evaluation Results for CCR Damage Cases in the Electric Power Generation, Transmission and Distribution Industry
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                 Number of CCR damage cases                                   Detailed review identified a   Cases with release(s) under
Total proven CCR damage cases    screened out based on pre-     Detailed review concluded      possible modern regulation      modern regulation that
          evaluated              1980, or responsible party     release occurred prior to       release but no taxpayer       required taxpayer funded
                                        lead status                 modern regulation                 expenditures                    response
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        27                             17                             10                              0                             0
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Additionally, EPA chose to look at the major removal cases found in 
the SEMS database to supplement this analysis. For this sector, EPA 
identified 24 removal sites which were evaluated using the analytic 
methodology. Using the methodology, EPA screened out 19 sites because 
the environmental releases occurred before 1980 or PRPs led the 
response action. To assess the five sites that remained after those 
screens, EPA first conducted a detailed review to compare the 
environmental issues at the sites to the regulations applicable today. 
Based on the detailed review, EPA concluded that the environmental 
releases at three of the five remaining removal sites were caused by a 
one-time incident (e.g., transformer fire, equipment failure), 
resulting in release of PCB transformer oil. Although not designated 
PRP-lead actions, according to EPA's record, PRPs financed and 
performed the response actions to the satisfaction of EPA at these 
sites, and no Fund expenditures occurred.
    Regarding the other two removal sites that remained after the 
screens, EPA's detailed review indicated that both cases involved long-
term PCB contamination resulting from inappropriate handling and 
storage of PCB waste. However, notwithstanding a government-lead 
designation in SEMS, neither of these sites required significant 
taxpayer expenditure. EPA considered all available history at each site 
to determine the level of Fund expenditure. According to EPA's SEMS 
expenditure data for English Station power plant in New Haven, 
Connecticut (an abandoned coal fired power plant, which operated from 
1914 through 1992), the Fund incurred an estimated cost of $17,000, 
while the PRP signed a Partial Consent Order \38\ with the state of 
Connecticut to spend $30 million to address site contamination 
potentially dating back to 1914. Similarly, EPA incurred an estimated 
cost of $374,000 for response actions at Commonwealth Utilities 
Corporation (CUC) site in the Northern Mariana Islands (a currently 
operating facility) after the territory-owned company informed EPA that 
it lacked the technical capacity to address the PCB contamination 
issues at the site. In this case, EPA did not pursue cost recovery due, 
in part, to the PRP's inability to pay. The Fund expenditures for 
response action at these two sites were not deemed significant for 
purposes of this analysis. More detailed information can be found in 
the background document and supporting spreadsheets available in the 
docket for this rulemaking. The background document includes the list 
of sites identified for analysis, as well as the data and information 
considered in the screening and review process. The summary results of 
the analysis are presented in Table 3 below.
---------------------------------------------------------------------------

    \38\ State of Connecticut v. The United Illuminating Company 
Partial Consent Order Number COWSPCB 15-001.

            Table 3--Evaluation Results for Superfund Removal Sites in the Electric Power Generation, Transmission and Distribution Industry
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Number of NAICS 2211                                      Detailed review identified a   Cases with release(s) under
  Total NAICS 2211 superfund      superfund removal cases       Detailed review concluded      possible modern regulation      modern regulation that
   removal cases evaluated       screened out based on pre-     release occurred prior to       release, but no taxpayer      required taxpayer funded
                                  1980, or PRP lead status          modern regulation                 expenditures                    response
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        24                             19                              0                              3                             2
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 36546]]

Prevalent Sources of Risk
    EPA's analysis of cleanup cases compiled information, where 
discernable, on the root cause of releases. Across the industry 
overall, the most prevalent issue was groundwater contamination from 
unlined or leaking CCR surface impoundments and landfills. Other 
sources of contamination observed at these sites include catastrophic 
failures/breaches of dikes, and collapse of dry ash stacks. The common 
issues observed at most removal sites were legacy PCB and asbestos 
contamination resulting from the handling and disposal of PCB-
containing oil and asbestos-containing insulation materials at fossil 
fuel powered electric generation plants.

B. Role of Federal and State Programs and Voluntary Protective Industry 
Practices at Facilities in the Electric Power Generation, Transmission 
and Distribution Industry

    In the January 6, 2010 ANPRM, EPA stated that it recognized that 
the NPL data reflect releases arising from activity that, in some 
cases, predates CERCLA, RCRA, and other legal requirements and, as 
such, the Agency welcomed information about current releases of 
hazardous substances to the environment to help inform EPA's future 
actions. As discussed in the Approach section of this proposal, to 
enable EPA to base its decision on risk posed by facilities operating 
under modern conditions, i.e., the types of facilities to which 
financial responsibility requirements would apply, EPA developed an 
approach to identify and consider relevant state and Federal regulatory 
requirements and financial responsibility requirements that currently 
apply to operating facilities, as well as voluntary protective 
practices. EPA thus undertook an effort to gather information about 
Federal and state environmental programs and industry voluntary 
programs that have been implemented and are applicable to currently 
operating facilities within the Electric Power Generation, Transmission 
and Distribution industry today. EPA evaluated the extent to which 
activities that contributed to the risk associated with the production, 
transportation, treatment, storage, or disposal of hazardous substances 
are now regulated. EPA recognizes that substantial advances have been 
made in the development of manufacturing, pollution control, and waste 
management practices, as well as the implementation of Federal and 
state regulatory programs to prevent and address such releases at these 
facilities. In part, EPA's proposed decision to not issue financial 
responsibility requirements for this industry was determined based on 
EPA's review and analysis of Federal regulations and complemented by 
state program regulations. Industry voluntary programs were considered 
as an additional factor in EPA's proposed decision. EPA's findings and 
conclusions about the impact of Federal and state environmental 
programs, along with industry voluntary programs, are discussed in the 
following section.
Overview of Federal and State Regulatory Programs and Industry 
Voluntary Practices Applicable to the Electric Power Generation, 
Transmission and Distribution Industry
    EPA evaluated Federal and state regulations which address the 
potential for release of hazardous substances to the range of 
environmental media that may be affected by a release from a facility 
in the Electric Power Generation, Transmission and Distribution 
industry. EPA found that a comprehensive regulatory framework has 
developed since the enactment of CERCLA. Federal statutes such as the 
Clean Air Act (CAA), the Clean Water Act (CWA), and RCRA are applicable 
across the entire industry and lay the foundation for this regulatory 
framework. Specific regulations are discussed in the background 
document according to the environmental issues that the regulations 
address: Air pollution, water pollution, emergency planning and 
response, hazardous substances management, and hazardous and non-
hazardous waste disposal and management. This background document is 
located in the docket for this rulemaking.\39\
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    \39\ Summary Report: Federal and State Environmental Regulations 
and Industry Voluntary Programs in Place to Address CERCLA Hazardous 
Substances at Facilities in the Electric Power Generation, 
Transmission and Distribution Industry, June 2019.
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Regulations Addressing Prevalent Sources Identified in Analysis of 
Cleanup Cases
    EPA's analysis of the cleanup cases found that the most prevalent 
releases were:
     Groundwater contamination from unlined or leaking CCR 
surface impoundments and landfills, catastrophic failures/breaches of 
CCR containment dikes, and collapse of dry ash stacks;
     PCB contamination from the handling and disposal of PCB-
containing oil; and
     asbestos contamination from handling and disposal of 
asbestos-containing insulation.
    CCR is one of the largest industrial waste streams generated in the 
United States. CCRs are residuals from the combustion of coal at coal-
fired power plants; they consist of fly ash, bottom ash, boiler slag, 
and flue gas desulfurization materials. Approximately 110 million tons 
of CCR was generated in 2012.\40\ The disposal of CCR is subject to 
recent regulation under the Agency's 2015 CCR Rule.\41\ EPA promulgated 
the rules for CCR disposal under RCRA Subtitle D. The 2015 CCR Rule 
addresses risks from CCR disposal identified in these cases--leaking of 
contaminants into groundwater, blowing of contaminants into the air as 
dust, and the catastrophic failure of CCR surface impoundments such as 
what occurred at TVA's Kingston Plant--by adding new requirements for 
CCR landfills and surface impoundments. In any cases where releases 
might occur, the 2015 CCR Rule includes both closure and corrective 
action provisions that could be used to remedy those releases. These 
regulations establish minimum national criteria for existing and new 
CCR landfills, existing and new CCR surface impoundments, and lateral 
expansions of these units including: Location restrictions, design and 
operating criteria, groundwater monitoring and corrective action, 
closure and post closure care requirements, as well as recordkeeping, 
notification, and internet posting requirements. These regulatory 
requirements are designed specifically to prevent the types of risks 
from CCR that have occurred in the past. EPA did not establish 
financial assurance requirements as part of the CCR rule.\42\
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    \40\ See 80 FR 21303 (April 17, 2015).
    \41\ See 80 FR 21301.
    \42\ In the proposal for the 2015 CCR Rule the Agency stated 
that the RCRA subtitle D alternative did not include proposed 
financial responsibility requirements and that any such requirements 
would be proposed separately. The Agency solicited comment on 
whether financial responsibility requirements under CERCLA Section 
108(b) should be a key Agency focus under a RCRA subtitle D 
approach. While the Agency received numerous comments urging the 
Agency to establish financial responsibility as part of the subtitle 
D option, the CERCLA Section 108(b) option did not receive 
significant support. EPA did not require financial assurance 
requirements as part of the 2015 CCR Rule and committed to continue 
to investigate the use financial responsibility requirements under 
other statutory authorities.
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    EPA recognizes that the 2015 CCR Rule is not yet fully implemented 
at this point, although rule implementation is ongoing. While the rule 
became effective in 2015, it established timeframes for the technical 
criteria

[[Page 36547]]

based on the amount of time needed to implement the requirement. Thus, 
for some requirements implementation is complete, and for other 
requirements, activities are ongoing. The implemented standards 
themselves have materially reduced risk by, for example, imposing 
structural integrity criteria on surface impoundments holding CCR to 
help prevent damages that would occur if the unit's embankment or dike 
failed structurally, such as the dike failure at the TVA Kingston Plant 
in 2008. One of these criteria is that the surface impoundment must be 
assessed to demonstrate that the unit design and operation meet minimum 
factors of safety, and if the unit does not, the surface impoundment 
must be closed. The deadline to complete this initial assessment was 
2016 or 2108, depending on designations in the rule, and represents an 
important rule protection that has been implemented.\43\
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    \43\ The 2015 CCR Rule requires that operating surface 
impoundments must be re-assessed every five years to ensure that the 
unit remains structurally sound.
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    An example of an important risk-reducing requirement of the 2015 
CCR rule for which implementation is ongoing is the requirement for 
groundwater monitoring and corrective action. Owners and operators of 
landfills and surface impoundments holding CCR are required to install 
a system of monitoring wells to detect releases of hazardous 
constituents from the units. If this monitoring shows an exceedance of 
a groundwater protection standard for specific constituents, corrective 
action must be taken to remedy the contamination. The groundwater 
monitoring and corrective action program is an example of a requirement 
that is ongoing but has already provided meaningful protection by 
identifying issues and requiring corrective action. Based on 
information made publicly available by electric utilities, current 
groundwater monitoring results show that a significant percentage of 
the electric utilities will need to implement the rule's corrective 
action program. At this point, electric utilities are at the early 
stages of implementing the corrective action program.
    The 2015 CCR Rule also established timelines and standards for 
closure and post-closure care. Specifically, the rule requires all CCR 
units to close in accordance with specified standards and to monitor 
and maintain the units for a period of time after closure, including 
the groundwater monitoring and corrective action programs. These 
criteria help ensure the long-term safety of closed CCR units. EPA 
expects, based on information made publicly available by the electric 
utilities, that a significant percentage of CCR surface impoundment 
will begin closing in the coming years. A small percentage of CCR units 
have already completed closure under the rule.
    As described here, the 2015 CCR Rule is not yet fully implemented; 
however, the activities associated with the deadlines that have already 
passed have already reduced risk from coal-fired power plants, 
including that of a Superfund response being necessary. Moreover, EPA 
expects that activities associated with the ongoing CCR rule compliance 
will further reduce risk at these facilities as units are closed in 
accordance with the prescribed standards and corrective actions taken.
    Contamination from PCBs and asbestos is largely addressed by toxic 
substances management regulations under the authority of the Toxic 
Substances Control Act (TSCA). TSCA provides EPA with authority to 
issue rules requiring reporting, record-keeping, and testing of 
specific chemicals and to establish regulations that restrict the 
manufacturing (including import), processing, distribution in commerce, 
use, and disposal of chemicals and mixtures. TSCA authorizes EPA to 
prevent unreasonable risks by regulating chemicals and mixtures, 
ranging from hazard warning labels to the outright ban on the 
manufacture, processing, distribution in commerce or use of certain 
chemicals and mixtures. TSCA and its amendments have also established 
specific programs for the management of certain chemicals--namely, 
PCBs, asbestos, radon, lead, mercury, and formaldehyde.
    TSCA section 6(e) establishes a set of requirements that apply 
throughout the lifecycle of PCBs. Specifically, TSCA prohibits the 
manufacturing, processing, distribution in commerce, and use of PCBs, 
except under certain exclusions, exemptions, and authorizations. 
Regulations implementing TSCA section 6(e), found in 40 CFR part 761, 
contain certain criteria through which EPA may obtain additional 
knowledge of the PCB universe. For example, the regulatory use 
authorization for PCB Transformers generally require owners to register 
those transformers with EPA. TSCA also established EPA's authority to 
promulgate rules to prescribe methods for the disposal of PCBs. The 
TSCA PCB regulations include storage and disposal requirements for 
specific types of PCB waste which are designed to prevent unreasonable 
risk of injury to health or the environment. These regulations may 
dictate comprehensive requirements, such as verification sampling and 
financial assurance, or may provide for the issuance of an approval 
(permit) which takes into account factors specific to the facility and 
serves as an enforceable document that governs PCB activities at that 
facility. In particular, the PCB regulations provide for the cleanup 
and disposal of PCB remediation waste through self-implementing 
provisions, performance-based disposal requirements, and site-specific 
risk-based approvals. Cleanup and disposal requirements can include 
notification, sampling, approval requirements, and institutional 
controls. Regulatory notification provisions for PCB waste activities 
require facilities to notify EPA of specific PCB activities, including 
transportation, disposal, storage, R&D/treatment, and certain 
generation. All affected PCB waste is manifested from the generator to 
final disposal.
    Regulation of asbestos is similarly rigorous. Numerous laws and 
regulations control the use of asbestos and direct procedures for 
asbestos abatement. Under TSCA, in 1989, EPA imposed a partial ban on 
the manufacture, import, processing, and distribution of some asbestos-
containing products, and in the April 2019 Significant New Use Rule 
\44\ ensured that other discontinued uses of asbestos cannot reenter 
the marketplace without EPA review. OSHA has promulgated standards for 
asbestos exposure in work under 29 CFR 1926.1101. This part sets 
permissible exposure limits, set standards for restriction of access to 
regulated areas and require employers to provide respirators for 
employees in those areas, implement monitoring and exposure assessment 
testing and frequency requirements, and prescribe engineering controls 
and work practices for operations to come into compliance. 
Additionally, EPA's Asbestos Worker Protection Rule, promulgated under 
the authority of the TSCA, extends these worker protections to state 
and local government employees involved in asbestos work who are not 
covered by OSHA's asbestos regulations. Asbestos demolition methods are 
separately regulated by the Asbestos National Emission Standards for 
Hazardous Air Pollutants (NESHAP) regulation under the Clean Air Act. 
The Asbestos NESHAP established requirements that apply to asbestos 
removal, transportation, and disposal practices from a variety of 
sources, and is intended to minimize the release of

[[Page 36548]]

asbestos fibers during activities involving the handling of 
asbestos.\45\
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    \44\ Restrictions on Discontinued Uses of Asbestos (84 FR 17345, 
April 25, 2019).
    \45\ See https://www.epa.gov/asbestos/overview-asbestos-national-emission-standards-hazardous-air-pollutants-neshap#was.
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State Regulatory Programs
    Some state regulations impose requirements on the Electric Power 
Generation, Transmission, and Distribution industry in addition to 
Federal regulatory requirements. The requirements of current state 
programs can reduce risk at facilities that manage hazardous 
substances. EPA researched key state environmental regulations relevant 
to the Electric Power Generation, Transmission and Distribution 
industry from states representative of the geographic distribution of 
facilities. In many cases, states have adopted Federal regulations or 
incorporate them by reference into state administrative codes. In other 
cases, states have promulgated their own regulatory regimes that expand 
on or are more stringent that analogous Federal regulations or 
implement standalone state regulations. A detailed discussion of state 
regulations, as well as the methodology EPA used in selecting the 25 
states that it researched, is available in the regulation summary 
background document in the docket for this rulemaking.\46\
---------------------------------------------------------------------------

    \46\ Summary Report: Federal and State Environmental Regulations 
and Industry Voluntary Programs in Place to Address CERCLA Hazardous 
Substances at Facilities in the Electric Power Generation, 
Transmission and Distribution Industry, June 2019. To summarize the 
state regulatory framework relevant to fossil fuel electric power 
generation facilities, EPA first determined the geographic 
distribution of fossil fuel power plants and determined which states 
contain over 50 percent of these facilities in the United States. 
Those states are: Pennsylvania, Michigan, Indiana, Illinois, 
Missouri, Texas, Kentucky, Iowa, Ohio, Wisconsin, Florida, 
Minnesota, and North Carolina. For a description of EPA's 
methodology in determining relevant state regulations, see Appendix 
I. For a comprehensive summary of the relevant state regulations 
that EPA located, see Appendix III.
---------------------------------------------------------------------------

    States regulations relevant to the Electric Power Generation, 
Transmission and Distribution industry primarily focus on air 
pollution. State air regulations are an example of state regulations 
that set standards that are stricter than Federal regulations. 
Specifically, states may set air emission standards for emissions other 
than the six criteria pollutants regulated under the CAA, such as 
mercury, volatile organic compounds, and visible air emissions. Some 
states, such as Wisconsin, have issued emission limitation and 
technology standards for facilities constructed before the 
implementation of Federal new source requirements; those sources are 
exempt from the Federal source performance standards.
    In addition, state regulations relevant to the Electric Power 
Generation, Transmission and Distribution industry primarily focus on 
the management and disposal of CCR wastes. More than half of U.S. 
states had implemented some form of their own CCR-related monitoring, 
design/siting, and/or inspection requirements beyond those called for 
at the Federal level, prior to promulgation of the 2015 CCR Rule. 
Additionally, most states have been authorized to implement the RCRA 
Subtitle C program, which applies to certain facilities and waste 
streams in the Electric Power Generation, Transmission and Distribution 
industry. For specific substances and operational practices, some 
states with authorized RCRA programs have imposed requirements that are 
more stringent than the Federal regulations.
    EPA's review of current Federal and state regulations indicates 
that a framework of requirements is being implemented, that reduces the 
risks posed by operating facilities in the Electric Power Generation, 
Transmission and Distribution industry. This risk reduction is critical 
to understanding ``the degree and duration of risk associated with the 
production, transportation, treatment, storage, or disposal of 
hazardous substances'' as well as the risk to taxpayers of being 
required to fund response activities under CERCLA, and thus is a 
primary factor leading to EPA's proposed decision to not issue 
financial responsibility requirements for this industry.
Industry Voluntary Practices
    EPA reviewed facility Risk Management Plans, industry materials, 
government literature and academic literature to locate voluntary 
programs that: (1) Attempt to address CERCLA hazardous substance 
management, disposal and release prevention, mitigation and response; 
(2) are relevant to fossil fuel electric power facilities; and (3) in 
which fossil fuel electric power facilities participated. Industry 
voluntary programs fall into three categories: Those sponsored by 
Federal, state, or local governmental agencies; those fostered within 
industry associations or non-governmental organizations; and those 
implemented by individual firms. Some of these programs set discharge, 
emissions and safety standards that supplement Federal and state 
standards and may come with a certification from the government agency 
or industry group that promotes the standards. Other programs solicit 
reporting on emissions or other data in order to publish industry 
performance reports. EPA's review of available studies found that the 
industry voluntary programs can be effective at reducing both pollution 
and the frequency of government enforcement actions. A detailed 
discussion of industry voluntary practices, as well as the methodology 
used by EPA, is available in Section II. Industry Voluntary Programs of 
the regulation summary background document in the docket for this 
rulemaking.\47\
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    \47\ Summary Report: Federal and State Environmental Regulations 
and Industry Voluntary Programs in Place to Address CERCLA Hazardous 
Substances at Facilities in the Electric Power Generation, 
Transmission and Distribution Sector, June 2019.
---------------------------------------------------------------------------

C. Existing State and Federal Financial Responsibility Programs

    To help inform the level of risk associated with classes of 
facilities in the Electric Power Generation, Transmission and 
Distribution industry, EPA reviewed existing state and Federal 
financial responsibility (FR) programs that may be applicable to the 
industry and that cover a wide range of liabilities including, closure, 
post-closure care, corrective action, third-party personal injury/
property damage, and natural resource damages. EPA focused on these 
types of FR programs for two reasons. First, these categories of 
damages, actions and costs are like those that could be covered by 
CERCLA Section 108(b) rulemaking and thus they help inform the need for 
CERCLA Section 108(b) FR for this industry. Secondly, the existence of 
FR requirements can help create incentives for sound practices, 
reducing the risk of releases requiring CERCLA response action. EPA 
also sought to identify state cleanup funds that are at least partially 
funded by industry (e.g., through a tax on hazardous wastes generated), 
and that could cover future CERCLA liabilities that may arise at 
electric power facilities. EPA's report focused on the 25 states 
reviewed in EPA's reports on existing state regulatory and voluntary 
programs (excluding FR programs) that may be applicable to electric 
power facilities. Finally, EPA reviewed existing FR requirements in the 
following Federal programs: (1) RCRA Subtitle C Treatment, Storage, 
Disposal Facilities; (2) TSCA commercial PCB waste facilities; (3) EPA 
Safe Drinking Water Act Underground Injection Control wells; (4) U.S. 
Nuclear Regulatory Commission (NRC) requirements for decommissioning 
nuclear power reactors; and (5) NRC

[[Page 36549]]

insurance requirements for nuclear incidents. The report is available 
in the docket for this rulemaking.\48\
---------------------------------------------------------------------------

    \48\ Review of Existing Financial Responsibility Laws 
Potentially Applicable to Classes of Facilities in the Electric 
Power Generation, Transmission, and Distribution Industry, June 
2019.
---------------------------------------------------------------------------

    EPA identified a range of existing FR programs that may be 
applicable to facilities in the Electric Power Generation, Transmission 
and Distribution industry. These programs include the Federal programs 
mentioned above as well as state programs related to:

 Cleanup or corrective action financial assurance for 
discharges/releases of hazardous waste or hazardous constituents
 Facility remediation FR associated with transfer in ownership 
or facility closure
 FR for storage tanks containing hazardous substances
 FR included in enforcement orders to assure compliance
 FR specific to coal-fired electric generating facilities
 FR specific to facilities that process or dispose of coal 
combustion residuals, for example, in coal ash ponds and/or landfills
 FR found in land use/siting permit conditions

    The applicability of these programs will depend on a variety of 
facility-specific factors, for example, use of a specific piece of 
equipment (e.g., ownership of an underground storage tank that contains 
regulated substances) or engagement in a specified activity (e.g., a 
release of a hazardous substance). Furthermore, state financial 
responsibility programs vary by state and some types of FR programs 
exist only in subsets of the states reviewed. However, a majority of 
the states reviewed, 20 of the 25, had financial responsibility 
programs in place that cover the processing or disposal of coal 
combustion residuals. EPA believes that state and Federal FR programs 
help reduce risk at facilities where they are applicable.

D. Compliance and Enforcement History

    To understand the experience of courts settlements and judgments, 
EPA looked at compliance and enforcement in the Electric Power 
Generation, Transmission and Distribution industry. Compliance 
assistance, monitoring, and enforcement are important components of the 
regulatory framework discussed above. Through inspections, compliance 
monitoring can identify noncompliance at regulated facilities. 
Enforcement actions impose legal instruments to ensure correction of 
deficiencies and achieve compliance with environmental requirements. 
Compliance and enforcement actions have certain functions which EPA 
considers particularly pertinent to the risk determination for 
rulemaking under CERCLA Section 108(b). First, through negotiated 
agreements, EPA can ensure that the responsible party carries out or 
pays for the cleanup in the event that noncompliance causes release of 
a hazardous material. Second, enforcement actions can compel a 
responsible party to return to compliance through instruments such as 
settlements and orders. Third, the prospect of financial penalties that 
can accompany these enforcement instruments can encourage compliance. 
All of these functions support the regulatory structure in reducing 
risk of Fund expenditures. EPA looked at applicable enforcement 
authorities as well as historical enforcement and compliance data in 
the development of this proposal.
    EPA obtained data from the EPA Enforcement and Compliance History 
Online (ECHO) system to provide a review of Federal enforcement from 
FY1973 through FY2017.\49\ Facilities whose primary NAICS codes 
indicate Electric Power Generation, Transmission and Distribution 
industry activities (NAICS 2211) were included in EPA's review. ECHO 
data show that initiatives and normal review or inspection of 
facilities resulted in over 2000 enforcement cases in the Electric 
Power Generation, Transmission and Distribution industry from FY1974 
through FY2017. CAA (62%) and CWA (12%) cases were the most common. 
There are a dramatically smaller number of cases in RCRA (6%), CERCLA 
(5%), and the Emergency Planning and Community Right-to-Know Act 
(EPCRA) (4%). Further description of this review, which includes 
details on the topics summarized in this section, is available in the 
background document ``Enforcement, Court Settlements and Judgments in 
the Electric Power Generation, Transmission and Distribution Industry'' 
in the docket for this rulemaking.
---------------------------------------------------------------------------

    \49\ ECHO does not include all of EPA's compliance and 
enforcement activity because regions are not required to report 
``informal actions,'' and it does not consistently capture all state 
actions.
---------------------------------------------------------------------------

1. Relevant Industry-Specific Focused Federal Enforcement Initiatives
    One way that EPA's Office of Enforcement and Compliance Assurance 
focuses enforcement and compliance resources on the most serious 
environmental violations is with enforcement initiatives that develop 
and implement national program priorities. Enforcement initiatives are 
an important tool for identification of noncompliance and subsequent 
actions to compel return to compliance. Additionally, these initiatives 
emphasize use of the full range of compliance assurance tools, not only 
enforcement, and can thereby reduce risk by helping facilities prevent 
releases that might otherwise be caused by noncompliance. In recent 
years, facilities in the Electric Power Generation, Transmission and 
Distribution industry were included in two initiatives:
a. Ensuring Energy Extraction Sector Compliance With Environmental Laws
    This initiative focuses on significant public health and 
environmental problems, including exposure to significant releases of 
volatile organic compounds, reducing CAA non-attainment, and reducing 
water quality impairment. The background document \50\ details some of 
the relevant initiative inspection and NAICS 2211 enforcement results 
from FY2011 through FY2017.
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    \50\ Enforcement, Court Settlements and Judgments in the 
Electric Power Generation, Transmission and Distribution Industry, 
June 2019.
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b. Reducing Air Pollution From the Largest Sources
    This initiative focused on ensuring that large industrial 
facilities, like coal fired power plants, comply with the Clean Air Act 
when building new facilities or making modifications to existing ones. 
This initiative benefited human health and the environment with 
significant cuts in air emissions, especially from coal fired power 
plants, since it began in 2005.
2. Enforcement of Recent Electric Power Generation, Transmission and 
Distribution Industry Federal Requirements
    At the time of promulgation, EPA lacked the authority to enforce 
the 2015 CCR Rule.\51\ Enforcement was by citizen suits only, although 
the Agency could use its authorities under RCRA Sec.  7003 to address 
conditions that may present an ``imminent and substantial 
endangerment.'' The Water Infrastructure Improvements for the

[[Page 36550]]

Nation (WIIN) Act \52\ was signed in December of 2016 and expanded the 
enforcement authorities available to EPA. The Act states that EPA may 
use its information gathering and enforcement authorities under RCRA 
Sections 3007 and 3008 to enforce the 2015 CCR Rule or permit 
provisions.\53\ At this time, no cases of Federal enforcement of this 
regulation have yet been concluded.
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    \51\ The 2015 CCR Rule was promulgated under Subtitle D of RCRA, 
and at the time of rule promulgation in 2015, it did not require the 
states to adopt or implement the regulations or to develop a permit 
program. It also did not provide a mechanism for EPA to approve a 
state permit program to operate ``in lieu of'' the Federal 
regulations.
    \52\ Public Law 114-322.
    \53\ Section 2301 of the WIIN Act, 42 U.S.C. 6945(d), amended 
RCRA to allow States to submit permit (or other system of prior 
approval and conditions) programs to EPA for approval. The Act 
states that if a state CCR permitting program is approved by the 
Agency (known as a participating state), those permits will operate 
``in lieu of'' the Federal regulations in part 257. The Act states 
that EPA will develop permits for those units located in tribal 
lands and, if given specific appropriations, EPA will develop a 
permitting program for those units located in non-participating 
states.
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a. Review of Enforcement Response Actions
    Enforcement cases can include instances where removal action, 
release reduction, or return to compliance include the removal of 
contaminated media by the responsible party. Measures to remove 
contamination may be required in enforcement orders under the range of 
environmental statutes and are negotiated to require activities aligned 
with return to compliance.\54\ In this situation, taking an enforcement 
action directly reduces risks to human health and the environment. 
During the period FY2012 through FY2017, 14 settled Electric Power 
Generation, Transmission and Distribution industry enforcement cases 
were identified as those where removal of contaminated media occurred. 
Six of these are CERCLA cases and five are CWA cases. One CAA and two 
TSCA cases are also included.
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    \54\ These ECHO enforcement removals are separate from the 
Superfund removals analyzed elsewhere. ECHO system data includes the 
combined value of total enforcement financial penalties, 
Supplemental Environmental Projects (SEPs), and associated 
compliance activity.
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    The substances removed are generally categorized as metals, 
hydrocarbons, and hazardous chemicals. These cleanups arising from 
Federal enforcement actions mitigated risks to human health and the 
environment by removing soils, groundwater, and sediments contaminated 
by a variety of substances, and reduced likelihood of impact to the 
Fund.
b. Total Value of Enforcement Settlements and Judgments
    Settlements and judgments in enforcement cases can result in 
financial penalties, supplemental environmental projects (SEPs), and 
activities required to return to compliance.\55\ Enforcement 
settlements and judgments can ensure that the responsible party 
conducts or pays for cleanup, drive a return to compliance, and 
incentivize compliance. For all enforcement cases from FY1974 through 
FY2017 in the Electric Power Generation, Transmission and Distribution 
industry, the total penalties recovered are over $415 million, the 
total value of SEPs is over $129 million, and the total compliance 
activity estimates are over $34.2 billion, all in 2017 inflation-
adjusted dollars.
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    \55\ Compliance actions ordered can include the removal of 
contaminated media, installation of new equipment, or implementation 
of compliant processes.
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3. Review of Major CERCLA and RCRA Cases
    As stated in the cleanup site evaluations in Section VII.A., 
particular consideration was given to CERCLA and RCRA regulations as 
relevant components of the modern regulatory framework that applies to 
the Electric Power Generation, Transmission and Distribution industry. 
There have been over 224 CERCLA and RCRA cases brought in this 
industry, beginning in 1984. The ten largest CERCLA or RCRA enforcement 
settlements and judgments for the Electric Power Generation, 
Transmission and Distribution industry have 2017 inflation-adjusted 
values ranging from over $250,000 to $1.1 billion. Further discussion 
of the details on the Federal actions for these and additional criminal 
cases can be found in the background document ``Enforcement, Court 
Settlements and Judgments in the Electric Power Generation, 
Transmission and Distribution Industry.'' This document identifies 
facilities where noncompliance was identified and was addressed by 
means of formal Federal enforcement. The scope of the background 
document does not include either facilities where noncompliance was 
addressed through informal enforcement, facilities where noncompliance 
was addressed by a state, or facilities that are in compliance.
    The compliance and enforcement actions documented here and in the 
background document show that where noncompliance is identified, the 
preponderance of industry responsible parties are conducting or paying 
for cleanups, returning to compliance, and improving public health and 
the environment. Although enforcement actions alone do not completely 
supplant the need for Fund-financed response actions in the Electric 
Power Generation, Transmission and Distribution (as discussed in 
section VIII, below), effective criminal, administrative and judicial 
enforcement demonstrates proper functioning of this component of the 
modern regulatory framework. Enforcement thus serves as a complementary 
element supporting the overall conclusion that CERCLA 108(b) financial 
assurance is not necessary.

VIII. Decision To Not Propose Requirements

    Based on consideration of the analyses described in the previous 
sections, EPA has reached a conclusion that the degree and duration of 
risk posed by the Electric Power Generation, Transmission and 
Distribution industry does not warrant financial responsibility 
requirements under CERCLA Section 108(b) and thus is proposing to not 
issue such requirements. The analysis and proposed finding in this 
proposal are not applicable to and do not affect, limit, or restrict 
EPA's authority to take a response action or enforcement action under 
CERCLA at any facility in the Electric Power Generation, Transmission, 
and Distribution Industry, including any currently operating facilities 
or those described in this proposal and in the background documents for 
this proposal, and to include requirements for financial responsibility 
as part of such response action. The set of facts in the rulemaking 
record related to the individual facilities discussed in this proposed 
rulemaking support the Agency's proposal not to issue financial 
responsibility requirements under Section 108(b) for this class, but a 
different set of facts could demonstrate a need for a CERCLA response 
action at an individual site. This proposed rulemaking also does not 
affect the Agency's authority under other authorities that may apply to 
individual facilities, such as the CAA, the CWA, RCRA, and TSCA.
    EPA believes the evaluation of the Electric Power Generation, 
Transmission and Distribution industry demonstrates significantly 
reduced risk at current Electric Power Generation, Transmission and 
Distribution operations. The reduction in risks due to the requirements 
of existing regulatory programs and voluntary practices combined with 
reduced costs to the taxpayer, demonstrated by EPA's cleanup case 
analysis, existing financial responsibility requirements, and 
enforcement actions, reduce the need for federally-financed response 
action at facilities in the Electric Power

[[Page 36551]]

Generation, Transmission and Distribution industry. EPA looked at 
current industry practices, market structure and economic performance 
of the industry; analyzed cleanup cases and CCR proven damage cases for 
facilities in the industry to identify risk; evaluated the extent to 
which the industry and sources of releases are covered by a modern 
regulatory framework, the degree to which taxpayers have been called 
upon to pay for cleanup, and EPA enforcement history in the industry.
    As discussed in Section VII.A., EPA identified a small number of 
cleanup cases that occurred under a modern regulatory framework and 
also entailed some Fund expenditure. Overwhelmingly, however, the 
industry was found to be practicing responsibly within the current 
regulatory framework, with just 2 sites out of the 10,330 
establishments in the industry indicating a significant impact to the 
Fund under a modern regulatory framework. The language in Section 
108(b) on determining the degree and duration of risk and on setting 
the level of financial responsibility confers a significant amount of 
discretion on EPA. It is EPA's assessment that the small set of 
federally-funded cleanup cases due to recent contamination does not 
warrant the imposition of financial responsibility requirements on the 
entire Electric Power Generation, Transmission and Distribution 
industry under CERCLA Section 108(b).
    EPA's analysis of Superfund cleanup cases, supplemented by a review 
of CCR damage cases, found that the most prevalent source of 
contamination stemmed from unlined or leaking CCR surface impoundments 
and landfills. Requirements under the newly-imposed regulatory 
structure of the 2015 CCR Rule specifically target this CCR risk, 
minimizing the likelihood of future contamination from this source 
incurring liabilities to the Fund. EPA believes the 2015 CCR rule 
requirements, both those implemented and those with ongoing 
implementation, significantly reduce the risk of a Superfund response 
being necessary at these facilities. The Agency believes this risk 
reduction is particularly notable in light of coal fired power plant 
sector's minimal impact on Superfund resources to date as indicated by 
the review of NPL, SAA and removal sites associated with the sector.
    The analysis of removal cases found PCB and asbestos contamination 
to be the leading causes of removal actions in the industry. The 
current regulatory framework, including application of the TSCA and 
RCRA regulations, limits the use of these contaminants and requires 
both proper disposal and cleanup of these contaminants when releases do 
occur.
    EPA acknowledges that regulations do not always prevent releases, 
and the risk of a release is lessened but never eliminated by existing 
Federal and state environmental regulations. However, EPA believes that 
the network of Federal and state regulations creates a comprehensive 
framework that applies to prevent releases that could result in a need 
for future cleanup. In addition, enforcement settlements and judgments 
that force return to compliance are effective components of the 
applicable regulatory structure. EPA's analysis of enforcement history 
shows that enforcement of the applicable regulations provides a lever 
to monitor compliance, obtain responsible party cleanups, and recover 
financial penalties. Federal and state regulatory programs, backed up 
by effective enforcement and complemented by industry voluntary 
practices, have improved public health and the environment 
significantly since CERCLA's initial adoption over 40 years ago. EPA 
believes within the Electric Power Generation, Transmission and 
Distribution industry this framework provides effective controls which 
protect human health and the environment.
    Examination of market structures for the Electric Power Generation, 
Transmission and Distribution industry further indicates comparatively 
low likelihood of default on environmental obligations at the expense 
of taxpayers and the government by companies in this industry. This 
economic performance combined with the low impact to the Fund by 
facilities with releases that happened under the modern regulatory 
framework, suggests that the degree of risk to the Fund by this 
industry does not rise to a level that warrants CERCLA Section 108(b) 
financial responsibility requirements.
    For these reasons, EPA is proposing today to not issue financial 
responsibility requirements under CERCLA Section 108(b) for this 
industry.

A. Solicitation of Public Comment on This Proposal

    EPA solicits comments on all aspects of this proposal. EPA is 
specifically interested in receiving comments on several issues and 
requests the following information:
     Examples of Electric Power Generation, Transmission and 
Distribution industry related response actions related to releases 
which took place under the modern regulatory framework where 
potentially responsible parties (PRPs) did not lead the response at the 
facility.
     Examples of Electric Power Generation, Transmission and 
Distribution industry related response actions related to releases 
which took place under the modern regulatory framework where PRPs have 
not taken financial responsibility for their environmental liabilities.
     Information on state-lead or other Federal agency cleanups 
or instances of natural resource damages associated with this industry 
that may supplement the information on cleanups gathered and analyzed 
for this proposal.
     Information about existing Federal, state, tribal, and 
local environmental requirements for the Electric Power Generation, 
Transmission and Distribution industry relevant to the prevention of 
releases of hazardous substances that were not evaluated as part of 
this proposal.
     Information about financial responsibility requirements 
applicable to the Electric Power Generation, Transmission and 
Distribution industry that were not evaluated as part of this proposal.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review, because it may 
raise novel legal or policy issues [3(f)(4)]. Any changes made in 
response to OMB recommendations have been documented in the docket for 
this rulemaking. EPA did not prepare an economic analysis for the 
proposed rule, since this action imposes no regulatory requirements.

B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This proposed rule is not subject to the requirements of Executive 
Order 13771 (82 FR 9339, February 3, 2017) because this proposed rule 
would not result in additional cost.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA, because this action does not impose any regulatory 
requirements.

[[Page 36552]]

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments, because this action does not impose any regulatory 
requirements.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the Federal Government and the states, or on the distribution of power 
and responsibilities among the various levels of government, since this 
action imposes no regulatory requirements.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175, because this action imposes no regulatory 
requirements. Thus, Executive Order 13175 does not apply to this 
action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because EPA does not believe the environmental health or safety risks 
addressed by this action present a disproportionate risk to children, 
since this action imposes no regulatory requirements.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy, since this action imposes no regulatory 
requirements.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action is not subject to Executive Order 
12898 because it does not establish an environmental health or safety 
standard, since this action imposes no regulatory requirements.

List of Subjects in 40 CFR Part 320

    Environmental protection, Electric power, Financial responsibility, 
Hazardous substances.

    Dated: July 2, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019-15094 Filed 7-26-19; 8:45 am]
BILLING CODE 6560-50-P


