CERCLA Financial Assurance: What Energy Companies Need to Know

Section 108(b) of the Comprehensive Environmental Response, Compensation and Recovery Act of 1980 (“CERCLA” or “Superfund”) directs the EPA to identify industry sectors that pose the greatest risks of hazardous substance releases, and to promulgate financial assurance requirements for them. The EPA did nothing to implement Section 108(b) until it was sued by environmental groups beginning in 2009. Under court order, the EPA has now identified hard rock mining as the industry posing the highest risk, and has proposed CERCLA financial assurance requirements for hard rock mines. The EPA also has identified petroleum and coal products manufacturing, electric power generation, and chemical manufacturing as the next industry sectors to be scrutinized.

This presentation, led by attorney Steven Barringer, will review the status of the EPA’s rulemaking and the prospects for similar requirements to be imposed on petroleum and coal product manufacturing.

Learning Objectives: 

1. Review background and purpose of CERCLA Section 108(b), enacted by Congress in 1980
2. Understand background and outcome of litigation driving the EPA to promulgate CERCLA financial assurance requirements
3. Address the EPA’s 2009 Federal Register notice identifying priority industries for CERCLA financial assurance
4. Explore the EPA’s stated rationale for focusing on electric generation and coal and oil products manufacturing as future targets for CERCLA financial assurance
5. Identify key provisions of the EPA’s January 11, 2017 Federal Register notice proposing financial assurance requirements for hard rock mining, focusing on elements that are likely to be imposed on other industry sectors
6. Appreciate the impact of the change in administrations on prospects for the rulemaking and for future actions that might affect energy industries
7. Discuss next steps in the rulemaking process that may affect energy industries