October 20, 2019

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

On December 1, 2016, the US 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.  As previously reported, US EPA had agreed to promulgate financial assurance rules for hard rock mining companies by December 1, 2017.

The other, shorter notice signed that day affects much more of the economy, because it announced US 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 US EPA’s pre-proposal work closely, as well as the development of the rule for hard rock mining and mineral processing. While US 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.

© Copyright 2019 Squire Patton Boggs (US) LLP


About this Author

Russell V. Randle, Squire Patton, superfund attorney, contaminated properties lawyer

Russ Randle has practiced environmental law since 1981, with extensive experience not only with superfund and contaminated properties, but also with the Clean Air, Clean Water, and Oil Pollution Acts (OPA), and antimicrobial issues under FIFRA. He has been published extensively on the issues, including the 2012 Environmental Law Institute’s Oil Pollution Deskbook. His current work includes helping Leon County, Florida in federal clean water permitting controversies.

Carolyn L. McIntosh, Squire Patton, complex environmental compliance lawyers, natural resources attorney

Carolyn McIntosh counsels clients on complex environmental compliance matters and environmental, natural resources and commercial litigation. In addition to her environmental litigation and regulatory work, Carolyn counsels a variety of companies on federal land use approvals and in the renewable energy and clean technology (cleantech) arena. She has devoted much of her career to addressing exposure, remediation and cost recovery litigation related to contaminated sites under state and US federal laws in California, Colorado, Idaho, Kansas, Massachusetts, Missouri, Montana, Nebraska, Nevada, New Mexico, Utah and Wyoming. She has been the lead environmental counsel on dozens of site remediation matters, concerning regulatory compliance, arbitration and litigation.