Superfund Financial Responsibility

EPA completed its analysis of the CERCLA 108(b) Financial Assurance rulemakings in response to Executive Order 13990. EPA determined that the decisions made in the final rulemakings (i.e., not to issue final regulations) were sound, and no further action is necessary.

With respect to the CERCLA 108(b) Hardrock Mining Rule, EPA conclude that the financial assurance authorities available under CERCLA 108(b) are not the most effective path to achieving the intended goal. In support of the Administration’s Fundamental Principles for Domestic Mining Reform, EPA participated in the Department of the Interior’s multi-agency effort to improve the implementation of existing authorities and identify needed reforms to hardrock mining laws, regulations, and permitting policies to advance environmental protections and bolster financial assurance mechanisms.

In September of 2023, DOI published the Interagency Working Group report which includes recommendations that we believe are appropriate mechanisms to strengthen financial assurance for hardrock mines on public lands. EPA supports the report’s recommendations.

Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) gives EPA the authority to require that classes of facilities establish and maintain evidence of financial responsibility to cover the costs associated with releases or threatened releases of hazardous substances from their facilities.

In July 2009, EPA identified certain hardrock mining facilities as the first group of facilities for which EPA would consider development of financial responsibility requirements under CERCLA section 108(b).

In a 2010 Advance Notice of Proposed Rulemaking published in the Federal Register, EPA identified three additional classes of facilities for possible development of CERCLA Section 108(b) financial responsibility requirements: those in the Electric Power Generation, Transmission, and Distribution industry; the Petroleum and Coal Products Manufacturing industry; and the Chemical Manufacturing industry.

In January 2017, EPA published a notice describing its plan to consider financial responsibility requirements under CERCLA for these three industries.

On this page:

The Hardrock Mining Industry
Financial Responsibility Requirements Under CERCLA Section 108(b) for the Electric Power Generation, Transmission, and Distribution Industry; the Petroleum and Coal Products Manufacturing Industry; and the Chemical Manufacturing Industry

The Hardrock Mining Industry

On December 1, 2017, EPA announced a final rule reflecting the decision not to issue final regulations for financial responsibility requirements for hardrock mining facilities. After careful analysis of public comments, the statutory authority, and the record for this rulemaking, EPA concluded the degree and duration of risk associated with the modern production, transportation, treatment, storage or disposal of hazardous substances by the Hardrock Mining industry does not present a level of risk of taxpayer funded response actions that warrant imposition of financial responsibility requirements under CERCLA for this sector. This final rule reflects EPA’s interpretation of the statute, EPA’s evaluation of the record for the proposed rule, and the approximately 11,000 public comments received by EPA on this rulemaking.

Learn more about the final action in the Federal Register.

Financial Responsibility Requirements Under CERCLA Section 108(b) for the Electric Power Generation, Transmission, and Distribution Industry; the Petroleum and Coal Products Manufacturing Industry; and the Chemical Manufacturing Industry

On November 24, 2020, the EPA Administrator signed a consolidated notice which presents EPA’s final rules to not impose financial responsibility requirements for facilities in the following classes:

Electric Power Generation, Transmission, and Distribution industry.
Petroleum and Coal Products Manufacturing industry.
Chemical Manufacturing industry.

EPA has found that the degree and duration of risk to the Superfund posed by the electric power generation, transmission and distribution industry; petroleum and coal products manufacturing industry; and chemical manufacturing industry does not warrant financial responsibility requirements, based on EPA’s interpretation of the statute and its analysis of the record developed for the proposed rulemakings for all three of these industries, which are described in the Federal Register notice.

Read more about these final actions.