CERCLA 108(b) Review of Existing Financial Responsibility Laws Potentially Applicable to Facilities in the Chemical Manufacturing Industry (NAICS 325) ------- This page intentionally left blank. ------- Contents I. Introduction 1 II. Background on the Chemical Manufacturing Industry (NAICS 325) 3 III. Findings 4 Appendix A - State-by-State Listing of Identified FR Programs Potentially Applicable to NAICS Code 325 A-l Appendix B - Methodology for Selecting States Reviewed B-l ------- This page intentionally left blank. ------- II. Introduction. On January 6, 2010, the U.S. Environmental Protection Agency (EPA) identified three industries -the Electric Power Generation, Transmission, and Distribution industry (NAICS 2211), the Petroleum and Coal Products Manufacturing industry (NAICS 324), and the Chemical Manufacturing industry (NAICS 325) - as including classes of facilities for which EPA planned to develop, as necessary, proposed regulations identifying appropriate financial responsibility (FR) requirements under CERCLA 108(b).1 To help inform potential CERCLA 108(b) rulemakings and the level of risk associated with these identified classes of facilities, EPA assessed existing State and Federal FR programs that cover a wide range of liabilities (e.g., closure, post-closure care, corrective action, third-party personal injury/property damage, natural resource damages). EPA focused on these types of FR programs for two reasons. First, these categories of damages, actions, and costs are similar to those that could be covered by any future CERCLA 108(b) rulemaking and thus may inform the need for CERCLA 108(b) FR for these industries. Secondly, the existence of FR requirements can help incentivize better environmental performance broadly speaking. For example, closure FR increases compliance with end-of-life facility closure and remediation requirements. FR, depending on the program design, can also encourage safer environmental practices because firms may have an incentive to lower required FR amounts or lower the risk their facilities pose in the eyes of financial institutions (e.g., insurers, sureties). Additionally, EPA is identifying State funds that are partially funded by industry, including the industries of interest in this report (e.g., through a tax on generated hazardous wastes), and that could cover future CERCLA liabilities that may arise at the facilities of interest in this report. To support those efforts, EPA tasked ICF with preparing three reports reviewing and describing existing FR laws and certain State funds potentially applicable to each of the three CERCLA 108(b) additional classes in 25 States selected by EPA. The States reviewed were intended to be the same States reviewed in EPA's report regarding existing State regulatory and voluntary programs (excluding FR programs) that may be applicable to the additional classes. See Appendix B for the State selection methodology. The States in the review include the following: Alaska, California, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Virginia, Washington, Wisconsin, and Wyoming. This report provides ICF's findings in performing a broad review of FR laws applicable to facilities in the Chemical Manufacturing industry (NAICS 325), including laws that would cover CERCLA liabilities and those covering other environmental liabilities at regulated facilities. Findings of this research are presented as categories of different types of FR requirements found within the States included in ICF's review. In addition to State programs, ICF also reviewed existing FR requirements in the following Federal programs: (1) EPA RCRA Subtitle C hazardous waste, (2) TSCA commercial PCB waste facilities, and (3) EPA Safe Drinking Water Act Underground Injection Control wells. ICF did not include State regulations that are counterparts to these programs because such State FR programs tend to mirror the Federal counterpart FR regulations, whereas the State programs described in this report often are very different in many respects and have not been designed in most cases by reference to a Federal model. 1 75 Fed. Reg. 816 available at https://www.gpo.gov/fdsys/pkg/FR-2010-01-06/pdf/E9-31399.pdf. These three industries were identified by EPA after EPA identified the hardock mining industry as the class of facility to be the subject of the first CERCLA 108(b) rulemaking effort. 1 ------- Additionally, the following FR programs were considered to be outside of the scope of this review: • FR for solid waste management. • FR programs solely covering releases at off-site facilities (e.g., off-site disposal facilities) other than the facilities where the hazardous substance was generated or initially utilized in a production process. • Transportation FR, which often includes coverage for liabilities associated with releases occurring during the loading and unloading of hazardous materials at the additional classes of facilities. Such transport FR can apply to different types and capacities of vessels, trucks, pipelines, and railroads. • FR programs related to releases solely of oil (crude and refined) applicable to facilities such as petrochemical manufacturing as well as associated storage.2 • FR for aboveground or underground storage tanks of oil/petroleum.3 • Programs that impose FR requirements on non-power reactor nuclear materials licensees (i.e., FR for decommissioning of facilities that have used radioactive materials), technologically enhanced naturally occurring radioactive materials, or low-level radioactive waste. In addition to this introduction, this report includes three sections: • Section 2 provides background information on the Chemical Manufacturing industry (NAICS 325). • Section 3 presents findings from the research performed, including identification of types of FR programs that have been identified to which facilities within NAICS 325 codes could be subject. 2 Petroleum is excluded from coverage under CERCLA, with certain exceptions: "(14) The term "hazardous substance" means (A) any substance designated pursuant to section 1321(b)(2)(A) of title 33 [Clean Water Act], (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title [CERCLA], (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (42 U.S.C. 6921) (but not including any waste the regulation of which under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of title 33 [Clean Water Act], (E) any hazardous air pollutant listed under section 112 of the Clean Air Act (42 U.S.C. 7412), and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of title 15 [Toxic Substances Control Act], The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas)" (emphasis added). 42 U.S.C. § 9601(14). 3 The Federal underground storage tank (UST) regulations apply to UST systems storing either petroleum or hazardous substances. The Federal UST program includes FR requirements to assure that, in the event of a leak or a spill of petroleum, an owner or operator will have the resources to pay for costs associated with cleaning up releases and compensating third parties. The Federal UST FR requirements apply to releases of petroleum, not hazardous substances. (40 CFR §§ 280.90 - 280.116, available at https://www.ecfr.gov/cgi-bin/text- idx?tpl=/ecfrbrowse/Title40/40cfr280_main_02.tpl&SID=2fa2adfcdfd0ddc5b78752elb2b6083e&m=06&d=01&y=201 6&pd=20150101&pitd=20150101&submit=GO.)The Federal regulations allow State UST program approval by EPA to operate in lieu of the federal program. States may have more stringent regulations than the Federal FR requirements. As of September 2017, 38 States, plus DC and Puerto Rico had approved UST programs. 2 ------- • Appendix A provides a State-by-State listing of the FR programs identified in each State, including identification of the trigger for the FR requirement or the mechanism by which the facilities in the additional classes of industry would be required to contribute to a State clean-up fund, and the liabilities covered. • Appendix B describes the methodology used to identify the sub-set of States that is covered by this report. II. Background on the Chemical Manufacturing Indu 3 325). This section provides background on the Chemical Manufacturing industry (NAICS 325)/ one of the industries for which EPA planned to develop, as necessary, proposed regulations identifying appropriate FR requirements under CERCLA 108(b). This section identifies NAICS code 325 sub-categories. NAICS code sub-categories are identified to inform the reader of the classes of facilities covered by each NAICS code. NAICS code 325 is organized into the following five-digit NAICS code sub-categories: NAICS 5-Digit Classification NAICS Code Industry Description 32511 Petrochemical manufacturing: Establishments manufacturing acyclic hydrocarbons (e.g., ethylene, propylene, butylene) and cyclic aromatic hydrocarbons (e.g., benzene, toluene, styrene, xylene, ethyl benzene, cumene) from refined petroleum or liquid hydrocarbons 32512 Industrial gas manufacturing: Establishments manufacturing industrial gases in compressed, liquid, and solid forms 32513 Inorganic and synthetic organic dye and pigment manufacturing 32518 Basic inorganic chemical manufacturing: Establishments manufacturing alkalis (e.g., chlorine, sodium hydroxide), carbon black, and other inorganic chemicals 32519 Basic organic chemical manufacturing: Establishments manufacturing gum and wood chemicals (e.g., tall oil, tanning materials, charcoal briquettes), cyclic crudes, ethyl alcohol, and other basic inorganic chemicals 32521 Plastics material, resin, and synthetic rubber manufacturing 32522 Organic fiber manufacturing: Establishments manufacturing and/or texturizing cellulosic fibers and filaments (e.g., monofilament, filament yarn, tow), and noncellulosic fibers and filaments (e.g., nylon, polyolefin polyester) 32531 Fertilizer manufacturing: Establishments manufacturing nitrogenous fertilizers, phosphatic fertilizers, and fertilizers mixed with ingredients made elsewhere than the manufacturing facility 32532 Pesticide and agricultural chemical manufacturing 4The North American Industry Classification System (NAICS) was developed under the direction and guidance of the Office of Management and Budget (OMB) as the standard for use by Federal statistical agencies in classifying business establishments for the collection, tabulation, presentation, and analysis of statistical data describing the U.S. economy. Use of the standard provides uniformity and comparability in the presentation of these statistical data. NAICS is based on a production-oriented concept, meaning that it groups establishments into industries according to similarity in the processes used to produce goods or services. 3 ------- NAICS 5-Digit Classification NAICS Code Industry Description 32541 Biological product manufacturing: Establishments manufacturing medical and botanical chemicals, pharmaceutical preparations (e.g., in-vivo diagnostic substances), in-vitro diagnostic substances (e.g., radioactive substances), and other biological products (e.g., vaccines, toxoids, blood fractions, culture media of plant or animal origin) 32551 Paint and coating manufacturing: Establishments that mix pigments, solvents, and binders into paints and other coatings (e.g., stains, varnishes, lacquers), and manufacture allied paint products (e.g., putties, paint and varnish removers, paint brush cleaners) 32552 Adhesive (e.g., glues, caulking compounds) manufacturing 32561 Surface active agent manufacturing: Establishments manufacturing soap, detergents, polish, specialty cleaning goods, bulk surface active agents (e.g., wetting agents, penetrants), and textiles and leather finishing agents 32562 Toilet preparation (e.g., perfumes, shaving preparations, hair preparations, face creams, lotions, sunscreens) manufacturing 32591 Printing ink and inkjet cartridge manufacturing 32592 Explosives manufacturing 32599 Miscellaneous chemical products and preparation manufacturing: Establishments manufacturing plastics resins through custom mixing and blending of plastics resins made elsewhere than the facility, photographic film, sensitized paper sensitized cloth, sensitized plates, toners, and other miscellaneous chemical products III. Findings. This section describes the findings of the review performed to identify types of existing FR programs that may be applicable to the Chemical Manufacturing industry (NAICS 325). The initial findings described are the results of a review of the statutes and regulations of 25 States, as well as select Federal FR programs described in the introduction. The types of FR programs identified include the following: (1) FR for petrochemical manufacturing facilities (2) FR for phosphatic fertilizer manufacturing facilities (3) FR for hazardous waste management facilities (4) FR for underground injection of hazardous wastes that might pollute drinking water or threaten human health and the environment (5) FRfor PCB storage or disposal facilities (6) Corrective action FR for discharges/releases of hazardous substances or their constituents (7) Facility remediation FR associated with transfer in ownership or facility closure (8) FR for storage tanks containing hazardous substances (9) Other broad authorities to require FR to assure compliance with orders Each is discussed in more detail below. In addition to identifying types of FR programs that may be applicable, this section provides example Federal and State FR programs that have been found. Additional research could be performed to review the FR programs in the remaining 25 States and could lead to the identification of additional examples and additional types of existing FR programs. See Appendix A for a State-by-State listing of the FR programs 4 ------- identified in each State, including identification of the trigger for the FR requirement or mechanism by which the facilities in NAICS Code 325 would be required to contribute to a State clean-up fund, and the liabilities covered. (1) FR for petrochemical manufacturing facilities States may have FR programs focused specifically on liabilities (e.g., closure, post-closure care, corrective action, and/or other liability) associated with petrochemical manufacturing facilities. Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement Petrochemical manufacturing facilities [NAICS 32511] are a sub-category of the chemical manufacturing category of facilities. Use or production of CERCLA hazardous substance at covered facilities/equipment The processes and products involved in petrochemical manufacturing involve handling of various CERCLA hazardous substances. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Program dependent. State Example Alaska has FR requirements prohibiting the operation of a petrochemical facility unless the person has furnished proof of financial ability to control a hazardous waste that will be used in, produced by, or disposed of at the petrochemical facility. [AS § 46.03.8301. (2) FR for phosphatic fertilizer manufacturing facilities States may have FR programs focused specifically on liabilities (e.g., closure, post-closure care, corrective action, and/or other liability) associated with phosphatic fertilizer manufacturing facilities. Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement Phosphatic fertilizer manufacturing facilities [NAICS 325312] are a sub- category of the chemical manufacturing category of facilities. Use or production of CERCLA hazardous substance at covered facilities/equipment The processes involved in the production of phosphatic fertilizer involve handling of various CERCLA hazardous substances. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Program dependent. State Example Florida has FR requirements covering closure, long-term care, and water management applicable to phosphogypsum stacks at phosphatic fertilizer manufacturing facilities. [FAC 62-673.640(2)(a)1. 5 ------- (3) FR for hazardous waste management facilities Federal FR requirements are triggered by the operation of a hazardous waste storage, treatment, or disposal facility.5 All covered RCRA hazardous waste management facilities are subject to decontamination and closure FR as well as liability coverage for third-party personal injury or property damage outside of the property line. Covered RCRA disposal facilities also are subject to FR for post-closure maintenance and monitoring. RCRA itself requires FR for completing corrective action at permitted solid waste management units (SWMUs), including permitted hazardous waste treatment, storage, and disposal units. Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement All facilities in NAICS code 325 would be subject to these requirements if they stored, treated, or disposed of hazardous wastes or were SWMUs covered by the corrective action program. Use or production of CERCLA hazardous substance at covered facilities/equipment RCRA hazardous wastes are defined by CERCLA as hazardous substances. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Likely. (4) FR for underground injection of hazardous wastes that might pollute drinking water or threaten human health and the environment Federal FR requirements are triggered by the allowable underground injection of a hazardous waste (Class I). All Class I wells for injecting hazardous wastes are subject to closure, plugging, and abandonment FR as well as FR for post-closure care.6 RCRA also requires FR for completing corrective (i.e., remedial) actions at permitted SWMUs including hazardous waste injection wells. Class VI facilities for underground containment of captured carbon dioxide provide FR for well plugging, "corrective action" of wells in the area of review, site closure and post-injection site care, and emergency and remedial response.7 However, captured carbon dioxide is conditionally not a RCRA hazardous waste8 nor a CERCLA hazardous substance. 5 40 CFR § 264, Subpart H; 40 CFR § 265, Subpart H. 6 See 40 CFR Part 144 (Subpart F) and corresponding sections in 40 CFR Part 146. 7 See 40 CFR § 146.85. 8 See EPA, "Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (C02) Streams in Geologic Sequestration Activities (Final Rule)," 78 Fed. Reg. 350 (January 3, 2014). 6 ------- Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement All facilities in NAICS codes 325 would be subject to these requirements if they injected hazardous wastes. Use or production of CERCLA hazardous substance at covered facilities/equipment RCRA hazardous wastes are defined by CERCLA as hazardous substances. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Likely. (5) FR for PCB storage or disposal facilities Federal FR requirements are triggered by the operation of a commercial PCB storage facility.9 Commercial PCB storage facilities are subject to Federal closure FR. States may also have FR requirements for PCB storage facilities that are not exclusively applicable to commercial facilities, cover additional types of liabilities, and also apply to PCB disposal facilities. Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement All facilities in NAICS code 325 would be subject to these requirements if they stored or disposed of PCBs. Use or production of CERCLA hazardous substance at covered facilities/equipment TSCA PCBs are defined by CERCLA as hazardous substances. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Likely. State Example Indiana has FR requirements for closure and post-closure care costs for facilities owning or operating PCB landfills or alternative disposal areas. [329 IAC 4.1-121. (6) Corrective action FR for discharges/releases of hazardous substances or their constituents States may have FR requirements that are triggered by a release of hazardous substances that are intended to assure the proper clean up of the release. States may also have clean-up funds that are not industry-specific but that are partially funded by industry, including the industries within the additional classes of facilities of interest in the review, that can be used to fund the clean up of a release of hazardous substances. 9 See 40 CFR§ 761.65. 7 ------- Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement All facilities in NAICS code 325 could be subject to these requirements if they produced or released hazardous substances covered by the program that required remediation. Use or production of CERCLA hazardous substance at covered facilities/equipment This criterion would depend upon the extent to which the hazardous substances covered by the program were CERCLA hazardous substances. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Likely. State Examples Corrective action FR Alaska may require FR that covers the costs of operation and maintenance, including compliance monitoring and corrective measures, of institutional controls for a discharge or release of a hazardous substance [18 AAC 75.375(e)!. As part of an order requiring corrective action for the release of hazardous substances, Georgia may require FRfor corrective action [GA. Code Ann. § 12-8-951. Georgia may require participants in a voluntary remediation program to demonstrate FRto cover clean up and remediation of hazardous and regulated substances at properties that are not listed on the NPL or currently undergoing remediation [GA. Code Ann. § 12-8-1071. As part of a court determination that contamination of usable ground water poses a threat to the public health and that evaluation or remediation is required to protect the usable ground water, Louisiana has FR requirements covering the implementation of a plan for evaluating and remediating the contamination and protecting usable ground water [La. R.S. § 30:2015.11. Michigan has FR for an environmental remediation program for monitoring, operation and maintenance, oversight, and other costs determined necessary by the department to assure the effectiveness and integrity of a remedial action for a release of hazardous substances [MCL 324.20114d(4)(b)1. Minnesota also has FR requirements for corrective action and response costs if or when there is an order associated with a responsible party's response to a hazardous substance release [Minn. Stat. 115E.01 and Minn Stat. § 115E.051. In New Jersey, a State agency or court can require a demonstration of FR to cover the cost of clean up and removal of hazardous substances or hazardous waste discharges [N.J. Stat. § 58:10B-1.31. New Jersey also has FR requirements that are applicable at the discretion of the Department covering operation, maintenance, and inspection of engineering controls and related system installed as part of a remedial action of a contaminated site [N.J. Stat. § 58:10C-191. 8 ------- North Carolina has FR requirements triggered by the remediation of a contaminated site, including those requiring remediation pursuant to CERCLA, RCRA, and the Oil Pollution and Hazardous Substance Control Act, among other laws. The FR covers implementation and maintenance of the actions or controls specified in an approved remedial action plan for the site [N.C. Gen. Stat. § 130A-310.69; N.C. Gen. Stat § 130A-309.721. Texas has FR requirements that cover post-response action care for releases of chemicals of concern, as defined by a number of Texas environmental programs, that are addressed by Remedy Standard B [30 TAC § 350.33; 30 TAC § 37.40211. Within the same Texas Risk Reduction Program, Texas also has FR requirements triggered by the establishment of a Facility Operations Area to address multiple sources of chemicals of concern, which may include CERCLA hazardous substances, within an operational chemical or petroleum manufacturing plant which is required to perform corrective action pursuant to industrial solid waste regulations. These FR requirements cover post-response action care [30 TAC § 350.134; 30 TAC § 37.40311. In Washington the Department can require FR after a release of a hazardous substance where the clean-up action includes engineering and/or institutional controls. The FR covers operation and maintenance of the clean-up action, including institutional control, compliance monitoring, and corrective actions [WAC § 173- 340-4401. Washington also has corrective action FR requirements associated with owning or operating a facility with releases of dangerous wastes, which include hazardous substances and their constituents [WAC 5 173-303-64620: WAC 5 173-303-6451. Wisconsin has an FR requirement that covers remedial actions at sites with residual contamination after approving an interim action, a remedial action, or a case close letter if residual contamination remains on a site after conclusion of an interim action or a remedial action [Wis. Stat. § 292.12(2)(d)(2)1. Wisconsin also has an FR requirement triggered by an application for approval of a voluntary response based on natural attenuation or additional remediation needed for contaminated sediments. The latter FR covers response and restoration [Wis. Stat. § 292.15(2)(ae); Wis. Stat. § 292.15(2)(af); Wis. Admin. Code § NR 754.11(3)1. Wyoming has an FR requirement that covers the performance and maintenance of engineering controls and any monitoring activities required in remedy agreements, after entering a voluntary remedy agreement with the Wyoming Department of Environmental Quality [WY Stat § 35-ll-1607(b)(i)1. State clean-up funds Alaska has a State release prevention and response fund that can be used to contain, clean up, and take other necessary action, such as monitoring and assessing, to address a release or threatened release of a hazardous substance. Funding comes in part from a per barrel of oil production surcharge, as well as fines, penalties, or damages recovered under AS 46.08.005-46.08.080 or other law for costs incurred by the state as a result of a release or threatened release of a hazardous substance. [AS § 46.08.020; AS § 46.08.0251. California has a State clean-up fund for the following liabilities at facilities contaminated with hazardous substances: removal or remedial action, site operation and maintenance, 10% State share of CERCLA costs, and certain third-party compensation of costs and losses. Funding comes in part from monies from State cost recoveries, fees, fines, or penalties incurred or received from responsible parties during enforcement actions. [Cal HS Code 6.8-20 § 25300-25395.451. Georgia has a State hazardous waste trust fund for the investigation, detoxification, removal, and disposal 9 ------- of any hazardous wastes, hazardous constituents, or hazardous substances at sites where corrective action is necessary to mitigate a present or future danger to human health or the environment. The fund can also be used to cover emergency actions the director considers necessary to protect public health, safety, or the environment whenever there is a release of hazardous wastes, hazardous constituents, or hazardous substances. Funds can also be used for CERCLA response actions. Funding comes in part from hazardous waste management fees paid by hazardous waste generators. [GA. Code Ann. §§ 12-8-91 - 12-8-951. Florida has a State water quality assurance trust fund that may be used for the assessment, clean up, restoration, monitoring, and maintenance of any site involving spills, discharges, or escapes of pollutants or hazardous substances which occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of pollutants or hazardous substances. Funds can also be used for CERCLA response actions. Funding comes in part from a tax imposed on those engaged in the production of motor fuel, diesel fuel, aviation fuel, and/or other pollutants, as well as environmental enforcement actions. [Fla. Stat. § 376.3071. Illinois has a State hazardous waste fund for preventative and corrective action in response to the release of hazardous substances. Funding comes in part from a tax on the disposal of hazardous wastes. [415 ILCS 5/22.21. Indiana has a State hazardous substances response trust fund that may be used for State responses to hazardous releases. Funding comes in part from fees on the disposal of hazardous waste by generators. [IN Code 5 13-25-41. Iowa has a State hazardous substance remedial fund that provides funds for corrective action and remediation of hazardous substance disposal sites, includes financing of clean up, remediation, and post- closure operation and maintenance costs. Funding comes in part from fees from hazardous waste generators and transporters in the State. [Iowa Code § 455B.423(6)1. Louisiana has a State hazardous waste site clean-up fund providing funds for the remediation of hazardous wastes, and the assessment, clean up, and other costs associated with nonhazardous waste sites determined to be priority sites by the Secretary. Funding is provided in part from a tax on the disposal of hazardous wastes. [La. R.S. § 30:22051. Minnesota has a State fund that may be used for corrective action to address releases of hazardous substances and for environmental response actions at qualified landfill facilities. Funding comes in part from cost recoveries and natural resources damages. [Minn Stat. § 116.1551. Missouri has a State hazardous waste fund that may be used for clean up of hazardous substances, site remediation activities, and post closure operation and maintenance costs. Funding comes in part from fees paid by the generators of hazardous wastes. [Mo. Ann. Stat. § 260.3911. New Jersey has a State fund that may be used for the removal and clean up of hazardous substances, natural resource damages restoration and replacement, compensation for damage and/or destruction of real or personal property and associated lost income, compensation for loss of tax revenue, and interest on loans. Funding comes in part from taxes on the owners or operators of major facilities receiving the transfer of petroleum and/or hazardous substances, assessed according to the volume of the substance transferred. [N.J. Stat. § 58:10-23.11g; N.J. Stat. § 58: 10-23.11M. 10 ------- New Jersey has another State fund that may be used for remediation of a hazardous substance or waste. Funding comes in part from a surcharge on parties required to remediate a hazardous substance or waste, per N.J. Stat. § 58: 10B-11, and appropriations, subrogation recoveries, and investment earnings. [N.J. Stat. 5 58:10B-3: N.J. Stat. 5 58:10B-201. New Mexico has a State hazardous waste emergency fund for clean up and corrective action of hazardous substance releases, disposal of hazardous substances, and necessary repairs of State property. Funding comes in part from penalties collected by the Division against responsible parties for hazardous substance incidents. [NM Stat. 74-4-71. Texas has a State fund for removal and remediation of hazardous substances or solid waste. Funding comes in part from fees imposed on the owners and operators of hazardous waste facilities. [Texas Health And Safety Code § 361.1331. Utah has a State hazardous substances mitigation fund for emergency actions, remedial investigations, and the amounts required by the federal government as the State's portion of the cost of clean ups under CERCLA. It is funded in part by waste disposal fees [Utah Code Ann. § 19-6-307 1. Washington has a State fund for hazardous waste clean up, spill response, and hazardous waste planning, management, regulation, and enforcement. It is funded in part by a percentage pollution tax on the wholesale value of possessed hazardous substances by holders of hazardous substances [Rev. Code Was. § 70.105D.0701. (7) Facility remediation FR associated with transfer in ownership or facility closure States may have FR requirements assuring the remediation of specified classes of facilities triggered by a prospective transfer in ownership or facility closure. Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement Program dependent. Use or production of CERCLA hazardous substance at covered facilities/equipment Program dependent. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Likely. State Example The New Jersey Industrial Site Recovery Act requires a demonstration of FRto cover facility remediation from owners or operators of "industrial establishments" planning to close or transfer ownership or operations. [NJAC 7:26B1. 11 ------- (8) FR for storage tanks containing hazardous substances States may have programs requiring a demonstration of FRto cover liabilities associated with releases from aboveground or underground storage of hazardous substances in tanks. These FR requirements would be imposed upon owners/operators prior to a release. Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement Many facilities in NAICS code 325 are likely to have storage tanks containing hazardous substances at their facilities and therefore be subject to these FR requirements. Use or production of CERCLA hazardous substance at covered facilities/equipment This criterion would depend upon the extent to which the hazardous substances covered by the program were CERCLA hazardous substances. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Likely. State Examples Florida has FR requirements covering liabilities associated with the pollution of surface and ground waters, discharge removal, and damage to natural resources from above or underground storage tanks containing hazardous substances [Fla. Stat. § 376.309(1)1. Michigan has FR requirements for monitoring, operation, and maintenance of corrective action remediation plans for leaking underground storage tanks containing regulated substances, which includes a sub-set of CERCLA hazardous substances [MCL 324.21309a(2)(f)1. New Jersey has FR requirements to which those servicing underground storage tanks containing CERCLA hazardous substances are subject covering remediation and compensating third parties for bodily injury and property damage [N.J. Stat. § 58:10A-24.4; N.J. Stat. § 58:10A-25a(8)1. New Mexico has a State fund that may be used for corrective action at above and underground storage tanks to pay for the costs of a site assessment, the State's share of the federal leaking underground storage tank trust fund, and to make payments to or on behalf of owners or operators for corrective action. New Mexico has an FR requirement for corrective action and remediation if the owner or operator receives notification of incapacity of the corrective action fund to cover corrective action and remediation of contamination from above and below ground storage tanks [NM Stat. 74-6B-71. Pennsylvania has FR requirements for corrective action and compensation for bodily injury and property damage caused by accidental releases of regulated substances from storage tanks. [Note: Although the authorizing Statute grants authority to impose FR requirements on both aboveground and underground storage tanks, implementing regulations apply only to underground storage tanks.] [35 P.S. § 6021.701 and 25 PA. Code Chapter 2451 Washington has FR requirements that are triggered by submitting a license application for an UST system that contains regulated substances, which include hazardous substances and mixtures of petroleum and 12 ------- hazardous substances. The FR requirement covers remediation and compensation of third parties for bodily injury and property damage due to sudden and non-sudden accidental releases [Rev. Code Was. § 90.76: WAC 5 173-360A-0200: WAC 5 173-360A-1000 et seal. (9) Other broad authorities to require FR to assure compliance with orders States may have broad authority to require FR to assure compliance with an agency order. Relevance to Chemical Manufacturing industry (NAICS 325) and CERCLA 108(b) NAICS codes subject to requirement Program dependent. Use or production of CERCLA hazardous substance at covered facilities/equipment Program dependent. Likelihood that scope of FR program covers clean up of CERCLA hazardous substance Program dependent. State Example In New Jersey, the Department of Environmental Protection (DEP) has the authority to require FR to assure good faith compliance with an order to correct a violation of DEP regulations [N.J. Stat. § 13:lD-9(u)l. 13 ------- Appendix A - State-by-Ste i li;iih i Identified FR Progr in, I i ntially Applicable i . 11 •!« < 25. The following table provides an alphabetical State-by-State listing of the FR programs identified in each State, including identification of the trigger for the FR requirement and the liabilities covered. For each program, a hyperlink is provided for a publicly available version of the statute and/or regulation describing the program. Links to authorizing statutes and/or implementing regulations are included in the table. The trigger for the FR requirement is the activity or action that subjects an individual or company to an FR requirement. The trigger for the FR requirement may be (1) ownership or use of a specific piece of equipment or product (e.g., ownership of an underground storage tank that contains regulated substances) or (2) engagement in a specified activity (e.g., a release of a hazardous substance). Where State Funds are identified, the "Trigger for FR requirement" column identifies the mechanisms (e.g., fee on the generation of hazardous waste) by which the facilities in NAICS Code 325 would be required to contribute to the fund. The covered liabilities described in the table are the full scope of liabilities that are discussed for the program, but are subject to various limitations and exclusions that are not discussed in detail in this report. Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities Alaska Financial Responsibility Required for Petrochemical Facility AS § 46.03.830 Operating a petrochemical facility. Control of hazardous wastes that will be used, produced, or disposed of at the petrochemical facility. Release Prevention and Response Fund (State fund) AS § 46.08.020 AS § 46.08.025 Funding comes in part from a per barrel of oil production surcharge, as well as fines, penalties, or damages recovered under AS 46.08.005- 46.08.080 or other law for costs incurred by the State as a result of a release or threatened release of a hazardous substance. Contain, clean up, and take other necessary action, such as monitoring and assessing, to address a release or threatened release of a hazardous substance. Discharge Reporting, Clean Up, and Disposal of Hazardous Substances 18 AAC 75.375(e) Department determination associated with institutional controls for a discharge or release of a hazardous substance. Costs of operation and maintenance, including compliance monitoring and corrective measures, for any institutional control. A-l ------- Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities California Hazardous Substances Account Act (State Fund) Cal HS Code 6.8-20 § 25300-25395.45 Funded in part by monies from State cost recoveries, fees, fines, or penalties incurred or received from responsible parties during enforcement actions. Removal or remedial action, site operation and maintenance, 10% State share of CERCLA costs, certain third-party compensation of costs and losses. Florida Pollutant Discharge Prevention - Water Quality Assurance Trust Fund (State Fund) Fla. Stat. § 376.307 Funding comes in part from (1) a tax imposed on those engaged in the production of motor fuel, diesel fuel, aviation fuel, or other pollutants and (2) moneys recovered by the State as a result of actions initiated against a person for a violation of Florida Statutes Chapter 403, Environmental Control, that result in injury to the air, waters, or property, including animal, plant, and aquatic life. Assessment, clean up, restoration, monitoring, and maintenance of any site involving spills, discharges, or escapes of pollutants or hazardous substances which occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of pollutants or hazardous substances. Funds can also be used for CERCLA response actions. Facilities, Financial Responsibility Fla. Stat. § 376.309(1) Owning an underground tank over 110 gallons that contains any hazardous substances or pollutants or owning an aboveground tank with storage capacity more than 550 gallons that contain any pollutants. Liabilities incurred under the Statute, including liabilities associated with pollution of surface and ground waters, discharge removal, and damage to natural resources. Phosphogypsum Management Program Owning or operating a phosphogypsum stack system. Closure of the site, long-term care, and water management. Fla. Stat. §§ 403.4154 - 403.4155 Fla. Admin. Code Ann. r. 62-673.640 Georgia Georgia Hazardous Waste Trust Fund (State Fund) GA. Code Ann. §§ 12-8-91 _ 12-8-95 Funding comes in part from hazardous waste management fees paid by generators of hazardous waste, hazardous substance release reporting fees, and cost recovery from corrective actions and enforcement. Investigation, detoxification, removal, and disposal of any hazardous wastes, hazardous constituents, or hazardous substances at sites where corrective action is necessary to A-2 ------- Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities mitigate a present or future danger to human health or the environment. Emergency actions the director considers necessary to protect public health, safety, or the environment whenever there is a release of hazardous wastes, hazardous constituents, or hazardous substances. Funds can also be used for CERCLA response actions. Georgia Corrective Action Order Financial Assurance GA. Code Ann. § 12-8-95 An order requiring corrective action for the release of hazardous substances. Corrective action. Voluntary Remediation Program - Hazardous Wastes GA. Code Ann. § 12-8-107 Participating in voluntary remediation program for sites contaminated with hazardous and regulated substances. Clean up and remediation of hazardous and regulated substances at properties that are not listed on the NPL or currently undergoing remediation. Includes soil and water remediation and reclamation. Illinois Hazardous Waste Fund (State Fund) 415 ILCS 5/22.2 Funding comes in part from a tax on the disposal of waste, per unit of volume, at hazardous waste facilities. The tax is collected from the owners and operators of disposal facilities according to the amount of waste they process. Preventative and corrective action in response to the release of hazardous substances, State compliance with CERCLA, and groundwater protection activities. Indiana Disposal of Wastes Containing PCBs 329 IAC 4.1-12 Owning or operating facilities that dispose of PCBs in landfills or alternative disposal areas. Closure and post-closure care. Hazardous Substances Response Trust Fund (State Fund) Funding comes in part from a fee on the disposal of hazardous waste by generators. State responses to hazardous releases. IN Code § 13-25-4 A-3 ------- Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities Iowa Iowa Hazardous Substances Remedial Fund (State Fund) Iowa Code § 455B.423(6) Funding comes from fees from hazardous waste generators and transporters, as well as enforcement penalties. Corrective action and remediation of hazardous substance disposal sites. Includes financing of clean up, remediation, and post-closure operation and maintenance costs. Kansas No relevant programs identified. Kentucky No relevant programs identified. Louisiana Remediation of Usable Ground Water La. R.S. § 30:2015.1 Court determination that contamination of usable ground water exists which poses a threat to the public health and that evaluation or remediation is required to protect usable ground water. Implementation of a plan for evaluating and remediating the contamination and protecting the usable ground water consistent with the health, safety, and welfare of the people. Hazardous Waste Site Clean-up Fund (State Fund) La. R.S. § 30:2205 Funding comes in part from a tax on the disposal of hazardous waste. In addition to providing for the remediation of hazardous waste, the assessment, clean up, and associated costs of nonhazardous waste sites determined to be priority sites by the Secretary. No further guidance as to the determination of priority sites was identified in Louisiana hazardous and solid waste law. Michigan Environmental Remediation Statute - No further action report MCL 324.20114d(4)(b) Submission of a no further action report associated with a remedial action for a release of hazardous substances, which requires a proposed post-closure agreement. Monitoring, operation and maintenance, oversight, and other costs determined necessary by the department to assure the effectiveness and integrity of the remedial action. Leaking Underground Storage Tanks - Corrective Action Plan Creation of a corrective action plan for a release of regulated substances, which includes a sub-set of CERCLA Monitoring, operation, and maintenance necessary to assure the effectiveness and integrity of A-4 ------- Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities MCL 324.21309a(2)(f) hazardous substances, from an underground storage tank system, if the corrective action plan includes the operation of a mechanical soil or groundwater remediation system or both. [Note: No implementing regulations were identified pursuant to this statute.] the corrective action remediation system. Minnesota Hazardous Substance Discharge Preparedness Minn Stat. § 115E.01 Minn Stat. § 115E.05 An order associated with a responsible party's response to a hazardous substance release. Corrective action and response costs. Minnesota Remediation Fund (State Fund) Minn Stat. § 116.155 Funding comes in part from cost recoveries and natural resource damages. Corrective action to address releases of hazardous substances and for environmental response actions at qualified landfill facilities. Missouri Hazardous Waste Fund (State Fund) Mo. Ann. Stat. § 260.391 Funding comes in part from fees paid by the generators of hazardous wastes. Clean up of hazardous substances, site remediation activities, and post closure operation and maintenance costs. New Jersey Powers of the Department of Environmental Protection An order of the NJ Department of Environmental Protection (DEP)to correct a violation of DEP regulations. Good faith compliance with the order. N.J. Stat. § 13:lD-9(u) Spill Compensation Fund (State Fund) N.J. Stat. § 58:10-23.lie N.J. Stat. § 58: 10-23.llh Funding comes in part from taxes on the owners or operators of major facilities receiving the transfer of petroleum and/or hazardous substances, assessed according to the volume of the substance transferred. Removal and clean up of hazardous substances, natural resource damages restoration and replacement, compensation for damage and/or destruction of real or personal property and associated lost income, compensation for loss of tax revenue, and interest on loans. A-5 ------- Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities Underground Storage Tank Regulations N.J. Stat. § 58:10A-24.4 N.J. Stat. § 58:10A-25a(8) Servicing an underground storage tank containing CERCLA hazardous substances. Remediation and compensating third parties for bodily injury and property damage. Hazardous Discharge Site Remediation N.J. Stat. § 58:10B-1.3 Directive or order by a State agency or court to clean up and remove a hazardous substance or hazardous waste discharge. Remediation. Remediation Guarantee Fund (State Fund) N.J. Stat. § 58:10B-3 N.J. Stat. § 58:10B-20 Funding comes in part from a surcharge on parties required to remediate hazardous substance or waste, per N.J. Stat. § 58: 10B-11, and appropriations, subrogation recoveries, and investment earnings. Remediation. Site Remediation Professional Licensing and Regulation N.J. Stat. § 58:10C-19 At the discretion of the department, the operation, maintenance, and inspection of engineering or institutional controls and related systems installed as part of a remedial action of a contaminated site. Operation, maintenance, and inspection of engineering controls as part of a remedial action of a contaminated site for the period that such controls are required. Industrial Site Recovery Act Rules N.J.A.C. 7:26B et subsa. Proposing closure or transferring an industrial establishment in need of remediation to a new owner or operator. Site remediation, meaning the investigation and/or clean up of any known or suspected discharge of hazardous waste, substance, or pollutant into the lands or waters of the State. New Mexico Corrective Action Fund - Storage Tanks (State Fund and FR requirement) NM Stat. 74-6B-7 Funding comes in part from yearly fees from owners and operators of above and below ground storage tanks containing regulated substances, which include a sub-set of CERCLA hazardous substances (State fund). Corrective action at above and underground storage tanks to pay for the costs of a site assessment, the State's share of the federal leaking underground storage tank trust fund, and to make payments to or on behalf of owners or operators for corrective action. A-6 ------- Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities Receipt by the owner or operator of notification of incapacity of the corrective action fund to cover corrective action and remediation of contamination from above and below ground storage tanks (FR requirement). Corrective action and remediation. Hazardous Waste Emergency Fund (State Fund) NM Stat. 74-4-7 Funding comes in part from penalties collected by the Division against responsible parties for hazardous substance incidents. Clean up and corrective action of hazardous substance releases, disposal of hazardous substances, and necessary repairs of State property. North Carolina Risk Based Environmental Remediation of Sites N.C. Gen. Stat. § 130A- 310.69: N.C. Gen. Stat § 130A- 309.72 Conducting remediation of a contaminated site, including those requiring remediation pursuant to CERCLA, RCRA, and the Oil Pollution and Hazardous Substance Control Act, among other laws. Implementation and maintenance of the actions or controls specified in an approved remedial action plan for the site. Ohio No relevant programs identified. Oklahoma No relevant programs identified. Pennsylvania Storage Tank and Spill Prevention 35. P.S. §6021.701 25 PA. Code Chapter 245 Owning or operating a storage tank containing regulated substances, which include a sub-set of CERCLA hazardous substances. [Note: Although the authorizing Statute grants authority to impose FR requirements on both aboveground and underground storage tanks, implementing regulations apply only to underground storage tanks.] Corrective action and bodily injury and property damage caused by releases arising from operation of storage tank. A-7 ------- Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities Texas Texas Hazardous and Solid Waste Remediation Fee Account (State Fund) Funding comes in part from fees imposed on the owners and operators of hazardous waste facilities. Removal and remediation of solid waste or hazardous substances. Texas Health And Safety Code § 361.133 Texas Risk Reduction Program, Remediation Standard B 30 TAC § 350.33 30 TAC § 37.4021 Releasing chemicals of concern, as defined by a number of Texas environmental programs, and developing a response action pursuant to Remedy Standard B. Post-response action care. Texas Risk Reduction Program, Facility Operations Area 30 TAC § 350.134 30 TAC § 37.4031 Establishing a Facility Operations Area to address multiple sources of chemicals of concern, which may include CERCLA hazardous substances, within an operational chemical or petroleum manufacturing plant which is required to perform corrective action pursuant to industrial solid waste regulations. Post-response action care. Utah Hazardous Substances Mitigation Fund (State Fund) Utah Code Ann. § 19-6- 307 Funded in part by waste disposal fees. Emergency actions, remedial investigations, and the amounts required by the federal government as the State's portion of the cost of clean ups under CERCLA. Virginia No relevant programs identified. Washington State Toxics Control Accounts (State Fund) Rev. Code Was. § 70.105D.070 Funded in part by a percentage pollution tax on the wholesale value of possessed hazardous substances by holders of hazardous substances. Hazardous waste clean up, spill response, hazardous waste planning, management, regulation, and enforcement. A-8 ------- Program name (including hyperlink to publicly available version of statute and/or regulation) Trigger for FR requirement Covered liabilities Releases from Regulated Units WAC § 173-303-64620 WAC § 173-303-645 Owning or operating a facility with releases of dangerous wastes, which include hazardous substances and their constituents. Corrective action. Model Toxics Control Act WAC § 173-340-440 Department order after release of a hazardous substance where the clean- up action includes engineering and/or institutional controls. Operation and maintenance of the clean-up action, including institutional control, compliance monitoring, and corrective actions. Underground Storage Tanks - Storage of Regulated Substances Rev. Code Was. § 90.76 Submitting a license application for an UST system that contains regulated substances, which include hazardous substances and mixtures of petroleum and hazardous substances. Remediation and compensation of third parties for bodily injury and property damage due to sudden and non-sudden accidental releases. WAC § 173-360A-0200 WAC § 173-360A-1000 et seq. Wisconsin Sites with Residual Contamination from Hazardous Substances Wis. Stat. § 292.12(2)(d)(2) Approving an interim action, a remedial action, or a case close letter if residual contamination remains on a site after conclusion of an interim action or a remedial action. Remedial action at site with residual contamination. Voluntary Remediation Wis. Stat. § 292.15(2)(ae): Wis. Stat. § 292.15(2)(af) Application for approval of a voluntary response based on natural attenuation or additional remediation needed for contaminated sediments. Response and restoration. Wis. Admin. Code § NR 754.11(3) Wyoming Voluntary Remediation of Contaminated Sites WY Stat § 35-ll-1607(b)(i) Entering a voluntary remedy agreement with the Wyoming Department of Environmental Quality. Performance and maintenance of engineering controls and any monitoring activities required in remedy agreement. A-9 ------- Append thodology for Selecting States Reviewed The following sections summarize findings about the geographic distribution of facilities within the 50 States and the District of Columbia for each of the NAICS classes of interest. EPA relied upon EPA rulemakings, industry sources, and the U.S. Census Bureau's County Business Pattern data to generate the results. The Census Bureau collects data on the number of "establishments" within each geographic area; it defines an "establishment" as "a single physical location at which business is conducted or services or industrial operations are performed."10 The Census Bureau collects establishment information by the number of employees at each establishment (i.e., number of establishments in a given State with 1-4 employees, number of establishments in a given State with 5-9 employees, etc.). For the purposes of generating a representative sample of States for regulatory information collection, EPA included all of the establishments in a given State, regardless of employment, in its findings. The sections below discuss in detail the method for identifying representative samples of States from which to collect FR regulatory information. In summary, the States identified that had significant number of facilities in each industry include: • NAICS 2211 (221112 - Coal-Fired Electric Utility Power Plants): Pennsylvania, Michigan, Indiana, Illinois, Missouri, Texas, Kentucky, Iowa, Ohio, Wisconsin, Florida, Minnesota, and North Carolina. • NAICS 324 (324110 - Petroleum Refineries, and 324199 - All Other Petroleum and Coal Products Manufacturing): Texas, Louisiana, California, Alaska, Oklahoma, Utah, Washington, Wyoming, Pennsylvania, Illinois, and Virginia. • NAICS 325 - Chemical Manufacturing: California, Texas, Illinois, Florida, New Jersey, Pennsylvania, New York, and Georgia. EPA included every State that appeared at least once in the above lists. This resulted in EPA reviewing the following 25 States to identify existing FR programs: Alaska, California, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Virginia, Washington, Wisconsin, and Wyoming. NAICS 221112: Fossil Fuel Powered Utility Plants NAICS 221112 includes all fossil fuel powered electric power generation facilities. The data from EPA's coal combustion residuals rulemaking is specific to coal-fired plants, while the Census Bureau data on NAICS 221112 establishments reflects the geographic distribution of all fossil fuel powered plants. Table 1, below, summarizes the geographic distribution of the affected universe of coal-fired utility plants from EPA's 2015 coal combustion residuals rulemaking and presented in EPA's 2018 RCRA disposal of coal combustion residuals rulemaking. 10 U.S. Census Bureau, County Business Patterns, Glossary, accessed July 27, 2018 at: https://www.census.gov/programs-survevs/cbp/about/glossarv.html. B-l ------- Table 1. Coal-Fired Electric Utility Plants Affected by the 2015 CCR Rule by State Row State Plants % of Total Plants Cumulative % 1 Pennsylvania 24 5.8% 5.8% 2 Michigan 23 5.6% 11.4% 3 Indiana 21 5.1% 16.5% 4 Illinois 19 4.6% 21.1% 5 Missouri 19 4.6% 25.7% 6 Texas 18 4.4% 30.0% 7 Kentucky 17 4.1% 34.1% 8 Iowa 16 3.9% 38.0% 9 Ohio 16 3.9% 41.9% 10 Wisconsin 16 3.9% 45.8% 11 Florida 14 3.4% 49.2% 12 Minnesota 14 3.4% 52.5% 13 North Carolina 14 3.4% 55.9% 14 Colorado 12 2.9% 58.8% 15 Virginia 12 2.9% 61.7% 16 Wyoming 11 2.7% 64.4% 17 Alabama 10 2.4% 66.8% 18 Georgia 10 2.4% 69.2% 19 West Virginia 10 2.4% 71.7% 20 California 8 1.9% 73.6% 21 New York 8 1.9% 75.5% 22 South Carolina 8 1.9% 77.5% 23 Kansas 7 1.7% 79.2% 24 Maryland 7 1.7% 80.9% 25 North Dakota 7 1.7% 82.6% 26 Nebraska 7 1.7% 84.3% 27 Tennessee 7 1.7% 86.0% 28 Arizona 6 1.5% 87.4% 29 Oklahoma 6 1.5% 88.9% 30 Arkansas 5 1.2% 90.1% 31 Mississippi 5 1.2% 91.3% 32 Montana 5 1.2% 92.5% 33 New Jersey 5 1.2% 93.7% 34 Utah 5 1.2% 94.9% 35 Louisiana 4 1.0% 95.9% 36 New Mexico 4 1.0% 96.9% 37 Hawaii 2 0.5% 97.3% 38 Massachusetts 2 0.5% 97.8% 39 New Hampshire 2 0.5% 98.3% 40 Nevada 2 0.5% 98.8% 41 South Dakota 2 0.5% 99.3% 42 Alaska 1 0.2% 99.5% B-2 ------- Row State Plants % of Total Plants Cumulative % 43 Connecticut 1 0.2% 99.8% 44 Maine 1 0.2% 100.0% 45 District of Columbia 0 0.0% 100.0% 46 Delaware 0 0.0% 100.0% 47 Idaho 0 0.0% 100.0% 48 Oregon 0 0.0% 100.0% 49 Rhode Island 0 0.0% 100.0% 50 Vermont 0 0.0% 100.0% 51 Washington 0 0.0% 100.0% 52 Total 413 100% Source: Regulatory Impact Analysis: EPA's 2018 RCRA Proposed Rule Disposal of Coal Combustion Residuals from Electric Utilities; Amendments to the National Minimum Criteria (Phase One), U.S. EPA, Office of Resource Conservation and Recovery, March 2018. Table 2, below, summarizes the geographic distribution of NAICS 221112 establishments from the Census Bureau's 2016 County Business Patterns data, which include all fossil fuel powered electric power generation facilities. Table 2. NAICS 221112 Establishments by State, 2016 U.S. Census County Business Patterns Data Row State Establishments % of Total Establishments Cumulative % 1 Texas 155 10.4% 10.4% 2 Louisiana 79 5.3% 15.7% 3 California 72 4.8% 20.5% 4 Ohio 71 4.8% 25.3% 5 Pennsylvania 70 4.7% 30.0% 6 North Carolina 60 4.0% 34.0% 7 New York 56 3.8% 37.8% 8 Georgia 54 3.6% 41.4% 9 Florida 47 3.2% 44.6% 10 Colorado 46 3.1% 47.7% 11 Oklahoma 45 3.0% 50.7% 12 Kentucky 44 3.0% 53.6% 13 Missouri 41 2.8% 56.4% 14 Illinois 40 2.7% 59.1% 15 Indiana 38 2.6% 61.6% 16 New Jersey 38 2.6% 64.2% 17 Michigan 36 2.4% 66.6% 18 Minnesota 35 2.3% 68.9% 19 Wisconsin 33 2.2% 71.1% 20 Alabama 27 1.8% 73.0% 21 Utah 27 1.8% 74.8% 22 Massachusetts 26 1.7% 76.5% 23 Arkansas 23 1.5% 78.1% B-3 ------- Row State Establishments % of Total Establishments Cumulative % 24 Kansas 22 1.5% 79.5% 25 Maryland 22 1.5% 81.0% 26 Alaska 21 1.4% 82.4% 27 Virginia 21 1.4% 83.8% 28 Mississippi 20 1.3% 85.2% 29 Iowa 18 1.2% 86.4% 30 South Carolina 18 1.2% 87.6% 31 West Virginia 18 1.2% 88.8% 32 New Mexico 16 1.1% 89.9% 33 Nevada 13 0.9% 90.7% 34 North Dakota 13 0.9% 91.6% 35 Arizona 12 0.8% 92.4% 36 Connecticut 12 0.8% 93.2% 37 Delaware 12 0.8% 94.0% 38 Hawaii 12 0.8% 94.8% 39 Wyoming 11 0.7% 95.6% 40 Idaho 9 0.6% 96.2% 41 Nebraska 8 0.5% 96.7% 42 South Dakota 8 0.5% 97.2% 43 Washington 8 0.5% 97.8% 44 New Hampshire 7 0.5% 98.3% 45 Oregon 6 0.4% 98.7% 46 Montana 5 0.3% 99.0% 47 Rhode Island 5 0.3% 99.3% 48 Maine 4 0.3% 99.6% 49 District of Columbia 3 0.2% 99.8% 50 Vermont 2 0.1% 99.9% 51 Tennessee 1 0.1% 100.0% 52 Total 1490 100% Source: U.S. Census Bureau, 2016 County Business Patterns Data for NAICS 221112, accessed July 27, 2018 at: https://www.census.gov/programs-survevs/cbp/data/tables.html. EPA collected State FR regulatory information from the 13 States with the most coal-fired plants that constitute over 50 percent of the affected universe (by facility count): Pennsylvania, Michigan, Indiana, Illinois, Missouri, Texas, Kentucky, Iowa, Ohio, Wisconsin, Florida, Minnesota, and North Carolina. NAICS 324: Petroleum Refineries (NAICS 3 24110) and All Other Petroleum and Coal Manufacturing (NAICS 324199) Table 3, below, summarizes the geographic distribution of petroleum refineries in the United States as of January 1, 2018 from the Energy Information Administration (EIA)'s 2018 Refinery Capacity Report. B-4 ------- Table 3. Petroleum Refineries by State, 2018 EIA Refinery Capacity Report Row State Refineries % of Total Refineries Cumulative % 1 Texas 29 21.5% 21.5% 2 Louisiana 17 12.6% 34.1% 3 California 16 11.9% 45.9% 4 Alaska 5 3.7% 49.6% 5 Oklahoma 5 3.7% 53.3% 6 Utah 5 3.7% 57.0% 7 Washington 5 3.7% 60.7% 8 Wyoming 5 3.7% 64.4% 9 Illinois 4 3.0% 67.4% 10 Montana 4 3.0% 70.4% 11 Ohio 4 3.0% 73.3% 12 Pennsylvania 4 3.0% 76.3% 13 Alabama 3 2.2% 78.5% 14 Kansas 3 2.2% 80.7% 15 Mississippi 3 2.2% 83.0% 16 Arkansas 2 1.5% 84.4% 17 Hawaii 2 1.5% 85.9% 18 Indiana 2 1.5% 87.4% 19 Kentucky 2 1.5% 88.9% 20 Minnesota 2 1.5% 90.4% 21 New Jersey 2 1.5% 91.9% 22 New Mexico 2 1.5% 93.3% 23 North Dakota 2 1.5% 94.8% 24 Colorado 1 0.7% 95.6% 25 Delaware 1 0.7% 96.3% 26 Michigan 1 0.7% 97.0% 27 Nevada 1 0.7% 97.8% 28 Tennessee 1 0.7% 98.5% 29 West Virginia 1 0.7% 99.3% 30 Wisconsin 1 0.7% 100.0% 31 Arizona 0 0.0% 100.0% 32 Connecticut 0 0.0% 100.0% 33 District of Columbia 0 0.0% 100.0% 34 Florida 0 0.0% 100.0% 35 Georgia 0 0.0% 100.0% 36 Idaho 0 0.0% 100.0% 37 Iowa 0 0.0% 100.0% 38 Maine 0 0.0% 100.0% 39 Maryland 0 0.0% 100.0% 40 Massachusetts 0 0.0% 100.0% 41 Missouri 0 0.0% 100.0% 42 Nebraska 0 0.0% 100.0% B-5 ------- Row State Refineries % of Total Refineries Cumulative % 43 New Hampshire 0 0.0% 100.0% 44 New York 0 0.0% 100.0% 45 North Carolina 0 0.0% 100.0% 46 Oregon 0 0.0% 100.0% 47 Rhode Island 0 0.0% 100.0% 48 South Carolina 0 0.0% 100.0% 49 South Dakota 0 0.0% 100.0% 50 Vermont 0 0.0% 100.0% 51 Virginia 0 0.0% 100.0% 52 Total 135 100% Source: U.S. Energy Information Administration, Petroleum Refinery Capacity Report, as of January 1, 2018, accessed July 27, 2018 at: https://www.eia.gov/petroleum/refinervcapacitv/. Table 4, below, summarizes the geographic distribution of NAICS 324110 establishments in the United States from the Census Bureau's 2016 County Business Patterns data. Table 4. NAICS 324110 Establishments by State, 2016 U.S. Census County Business Patterns Data % of Total Row State Establishments Establishments Cumulative % 1 Texas 38 19.3% 19.3% 2 California 24 12.2% 31.5% 3 Louisiana 20 10.2% 41.6% 4 Oklahoma 9 4.6% 46.2% 5 Pennsylvania 9 4.6% 50.8% 6 Illinois 6 3.0% 53.8% 7 New Jersey 6 3.0% 56.9% 8 Ohio 6 3.0% 59.9% 9 Washington 6 3.0% 62.9% 10 Wyoming 6 3.0% 66.0% 11 Alaska 5 2.5% 68.5% 12 Utah 5 2.5% 71.1% 13 Indiana 4 2.0% 73.1% 14 Mississippi 4 2.0% 75.1% 15 Montana 4 2.0% 77.2% 16 Alabama 3 1.5% 78.7% 17 Arkansas 3 1.5% 80.2% 18 Kansas 3 1.5% 81.7% 19 Kentucky 3 1.5% 83.2% 20 Michigan 3 1.5% 84.8% 21 New York 3 1.5% 86.3% 22 Colorado 2 1.0% 87.3% 23 Florida 2 1.0% 88.3% 24 Hawaii 2 1.0% 89.3% 25 Iowa 2 1.0% 90.4% B-6 ------- Row State Establishments % of Total Establishments Cumulative % 26 Massachusetts 2 1.0% 91.4% 27 Minnesota 2 1.0% 92.4% 28 Missouri 2 1.0% 93.4% 29 Nevada 2 1.0% 94.4% 30 New Mexico 2 1.0% 95.4% 31 North Carolina 2 1.0% 96.4% 32 North Dakota 2 1.0% 97.5% 33 Delaware 1 0.5% 98.0% 34 Georgia 1 0.5% 98.5% 35 Tennessee 1 0.5% 99.0% 36 West Virginia 1 0.5% 99.5% 37 Wisconsin 1 0.5% 100.0% 38 Arizona 0 0.0% 100.0% 39 Connecticut 0 0.0% 100.0% 40 District of Columbia 0 0.0% 100.0% 41 Idaho 0 0.0% 100.0% 42 Maine 0 0.0% 100.0% 43 Maryland 0 0.0% 100.0% 44 Nebraska 0 0.0% 100.0% 45 New Hampshire 0 0.0% 100.0% 46 Oregon 0 0.0% 100.0% 47 Rhode Island 0 0.0% 100.0% 48 South Carolina 0 0.0% 100.0% 49 South Dakota 0 0.0% 100.0% 50 Vermont 0 0.0% 100.0% 51 Virginia 0 0.0% 100.0% 52 Total 197 100% Source: U.S. Census Bureau, 2016 County Business Patterns Data for NAICS 324110, accessed July 27, 2018 at: https://www.census.gov/programs-survevs/cbp/data/tables.html. Table 5, below, summarizes the geographic distribution of NACIS 324199 establishments in the United States from the Census Bureau's 2016 County Business Patterns data. Table 5. NAICS 324199 Establishments by State, 2016 U.S. Census County Business Patterns Data Row State Establishments % of Total Establishments Cumulative % 1 Pennsylvania 15 15.0% 15.0% 2 Texas 11 11.0% 26.0% 3 Louisiana 10 10.0% 36.0% 4 California 6 6.0% 42.0% 5 Illinois 6 6.0% 48.0% 6 Virginia 5 5.0% 53.0% 7 Colorado 4 4.0% 57.0% 8 Missouri 4 4.0% 61.0% B-7 ------- Row State Establishments % of Total Establishments Cumulative % 9 Alabama 3 3.0% 64.0% 10 Massachusetts 3 3.0% 67.0% 11 Michigan 3 3.0% 70.0% 12 Ohio 3 3.0% 73.0% 13 Connecticut 2 2.0% 75.0% 14 Florida 2 2.0% 77.0% 15 Georgia 2 2.0% 79.0% 16 Indiana 2 2.0% 81.0% 17 Kansas 2 2.0% 83.0% 18 Kentucky 2 2.0% 85.0% 19 Mississippi 2 2.0% 87.0% 20 Nevada 2 2.0% 89.0% 21 Oklahoma 2 2.0% 91.0% 22 South Carolina 2 2.0% 93.0% 23 Wisconsin 2 2.0% 95.0% 24 Idaho 1 1.0% 96.0% 25 Maryland 1 1.0% 97.0% 26 North Carolina 1 1.0% 98.0% 27 Utah 1 1.0% 99.0% 28 Wyoming 1 1.0% 100.0% 29 Alaska 0 0.0% 100.0% 30 Arizona 0 0.0% 100.0% 31 Arkansas 0 0.0% 100.0% 32 Delaware 0 0.0% 100.0% 33 District of Columbia 0 0.0% 100.0% 34 Hawaii 0 0.0% 100.0% 35 Iowa 0 0.0% 100.0% 36 Maine 0 0.0% 100.0% 37 Minnesota 0 0.0% 100.0% 38 Montana 0 0.0% 100.0% 39 Nebraska 0 0.0% 100.0% 40 New Hampshire 0 0.0% 100.0% 41 New Jersey 0 0.0% 100.0% 42 New Mexico 0 0.0% 100.0% 43 New York 0 0.0% 100.0% 44 North Dakota 0 0.0% 100.0% 45 Oregon 0 0.0% 100.0% 46 Rhode Island 0 0.0% 100.0% 47 South Dakota 0 0.0% 100.0% 48 Tennessee 0 0.0% 100.0% 49 Vermont 0 0.0% 100.0% 50 Washington 0 0.0% 100.0% 51 West Virginia 0 0.0% 100.0% 52 Total 100 100% B-8 ------- Source: U.S. Census Bureau, 2016 County Business Patterns Data for NAICS 324119, accessed July 27, 2018 at: https://www.census.gov/programs-survevs/cbp/data/tables.html. From a NAICS 324 perspective, EPA decided to include in its review of existing FR programs, eight States with the most refineries that constitute greater than 50 percent of the refineries in the United States from the ElA's Refinery Capacity Report data, as well as the three additional States that have the most number of NAICS 324199 establishments that constitute greater than 50 percent of the NAICS 324199 establishments in the United States from the U.S. Census's County Business Patterns data. Together, those 11 States are: Texas, Louisiana, California, Alaska, Oklahoma, Utah, Washington, Wyoming, Pennsylvania, Illinois, and Virginia. NAICS 3 25: Chemical Manufacturing Table 6, below, summarizes the geographic distribution of NAICS 325 establishments from the Census Bureau's 2016 County Business Patterns data. Table 6. NAICS 325 Establishments by State, 2016 U.S. Census County Business Patterns Data Row State Establishments % of Total Establishments Cumulative % 1 California 1657 12.3% 12.3% 2 Texas 1119 8.3% 20.6% 3 Illinois 685 5.1% 25.7% 4 Ohio 678 5.0% 30.7% 5 Florida 606 4.5% 35.2% 6 New Jersey 594 4.4% 39.6% 7 Pennsylvania 576 4.3% 43.9% 8 New York 568 4.2% 48.1% 9 Georgia 483 3.6% 51.7% 10 North Carolina 448 3.3% 55.0% 11 Michigan 381 2.8% 57.8% 12 Wisconsin 345 2.6% 60.4% 13 Massachusetts 335 2.5% 62.9% 14 Indiana 324 2.4% 65.3% 15 Missouri 310 2.3% 67.6% 16 Minnesota 268 2.0% 69.6% 17 Tennessee 253 1.9% 71.4% 18 Washington 251 1.9% 73.3% 19 South Carolina 245 1.8% 75.1% 20 Louisiana 235 1.7% 76.9% 21 Oregon 224 1.7% 78.5% 22 Colorado 212 1.6% 80.1% 23 Kentucky 194 1.4% 81.5% 24 Iowa 191 1.4% 83.0% 25 Alabama 190 1.4% 84.4% 26 Utah 173 1.3% 85.6% 27 Arizona 171 1.3% 86.9% 28 Virginia 165 1.2% 88.1% 29 Connecticut 162 1.2% 89.3% B-9 ------- Row State Establishments % of Total Establishments Cumulative % 30 Maryland 153 1.1% 90.5% 31 Kansas 140 1.0% 91.5% 32 Oklahoma 136 1.0% 92.5% 33 Arkansas 101 0.7% 93.3% 34 Mississippi 99 0.7% 94.0% 35 Nebraska 89 0.7% 94.7% 36 Nevada 84 0.6% 95.3% 37 West Virginia 79 0.6% 95.9% 38 New Hampshire 73 0.5% 96.4% 39 Idaho 65 0.5% 96.9% 40 Maine 57 0.4% 97.3% 41 Delaware 54 0.4% 97.7% 42 Rhode Island 53 0.4% 98.1% 43 New Mexico 50 0.4% 98.5% 44 Montana 40 0.3% 98.8% 45 South Dakota 40 0.3% 99.1% 46 Vermont 36 0.3% 99.3% 47 Wyoming 35 0.3% 99.6% 48 Hawaii 25 0.2% 99.8% 49 North Dakota 13 0.1% 99.9% 50 Alaska 10 0.1% 100.0% 51 District of Columbia 5 0.0% 100.0% 52 Total 13480 100% Source: U.S. Census Bureau, 2016 County Business Patterns Data for NAICS 325, accessed July 27, 2018 at: https://www.census.gov/programs-survevs/cbp/data/tables.html. From a NAICS 325 perspective, EPA wanted to ensure it collected FR regulatory information from the nine States with the most establishments that constitute over 50 percent of the total establishments in the United States: California, Texas, Illinois, Ohio, Florida, New Jersey, Pennsylvania, New York, and Georgia. EPA created a comprehensive list representing every State that appeared in a least one of the additional classes industry lists. This list included 25 States and were the 25 States that were reviewed to identify existing FR programs potentially applicable to one or more of the CERCLA 108(b) additional classes. The list includes: Alaska, California, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Virginia, Washington, Wisconsin, and Wyoming. B-10 ------- |