THE CERCLA § 108(B) FINANCIAL RESPONSIBILITY INITIATIVE

• Jurisdiction: United States

Mine Closure, Financial Assurance, and Final Reclamation
(Nov 2009)
CHAPTER 2C
THE CERCLA § 108(B) FINANCIAL RESPONSIBILITY INITIATIVE
James R. Berlow
Ben Lesser
Office of Resource Conservation and Recovery
U.S. Environmental Protection Agency
Washington, D.C.

Ben Lesser has served since the first of this year as Chief of Staff and Senior Advisor to the Director, Program Implementation and Information Division, in the Office of Resource Conservation and Recovery of the U.S. Environmental Protection Agency (EPA). He also serves as Project Manager for the relatively new CERCLA 108(b) initiative, in which the agency is developing financial responsibility assurance requirements for industries that have the potential to release hazardous substances. Lesser most recently served as Chief of the EPA's Analysis and Information Branch, where he established a record of innovations in improving the information EPA uses to show results and in supporting the agency's voluntary hazardous waste minimization program. In his 18 years at EPA Lesser has held widely varying positions including: Agency "PART" Coordinator--leading EPA's support of the successful Program Assessment Rating Tool accomplishments confirmation process; Planning and Budget Officer; Coordinator of five "Wet Weather" Water Pollution Teams; Deputy Leader of EPA's North American Free Trade Agreement (NAFTA) Task Force; and Communications Director for EPA's Office of Water. Lesser's primary interests at EPA are leading change and transforming government performance. Before joining EPA Lesser served in the U.S. Senate as Legislative Assistant for Environment and Public Works, and he spent 12 years as a television news reporter, anchor and news director. Ben Lesser has lived and worked in five Western states and now makes his home in the Alexandria, Virginia area.

October 29, 2009

Purpose

• Discuss the requirements and process leading to publication of a court-ordered CERCLA Section 108(b) "priority notice."

• Discuss the process and schedule for developing a planned December Federal Register notice.

• Discuss the process for naming additional classes in that notice.

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Existing EPA Financial Regulations

• EPA has financial responsibility regulations for:

- Hazardous waste treatment, storage and disposal facilities (RCRA)

- Solid waste disposal facilities (RCRA)

- PCB commercial storage facilities (TSCA)

- Petroleum underground storage tanks (RCRA)

- Underground Injection Wells (RCRA, SDWA)

Congressional Direction

• Section 108(b) of the 1980

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) authorizes the president to establish financial responsibility requirements.

• Executive Order 12580 delegates this responsibility to EPA for non-transportation-related facilities.

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• Section108(b) requires the president to:

• ...promulgate requirements...that classes of facilities 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.

• ...identify those classes for which requirements will be first developed and publish notice of such identification in the Federal Register.

History and a New Beginning

• EPA made previous attempts to address section 108(b), but did not complete them.

• Reports in the late 1990s and...