Superfund Financial Assurance Rules: Chemical, Coal, Petroleum and Electric Power Industries Face Upcoming EPA Rulemaking

On December 1, 2016, the EPA Administrator signed two documents about financial assurance – effectively bonding for facility cleanup – under Superfund for several industry sectors. The longer document with the shorter deadline concerned the hard rock mining and mineral processing industries, proposing specific costly rules, on which comments are due around March 13.

The other, shorter notice signed that day affects much more of the economy, because it announced the EPA’s decision to proposed financial assurance rules under Superfund for much larger sectors of the economy:

• Chemical manufacturing
• Petroleum and coal products
• Electric power generation, transmission and distribution

The notice, finally published on January 11, 2017, sets a schedule by which these rules will be published, a schedule dictated by court order. 82 Fed. Reg. 3512 (Jan. 11, 2017). Thus, while the new administration will certainly have much to say about the content of such rules, the timing of their proposal and the timing of final decisions about them are unlikely to change. Consequently, it would be a serious mistake for affected stakeholders to think that the change in administration means that these rules will not be proposed.

Given that reality, stakeholders will be well served to follow the EPA’s pre-proposal work closely, as well as the development of the rule for hard rock mining and mineral processing. While the EPA is clear that the mining rule is not necessarily the template for other industries, many common issues are likely to be settled in that first rulemaking.