Citing an unnecessary burden on the mining industry, Nevada’s elected officials asked the Environmental Protection Agency to eliminate a proposed rule that would require owners and operators of hardrock mining facilities to demonstrate financial responsibility. Proponents of the rule call it long overdue.

The previous presidential administration proposed the rule, “Financial Responsibility Requirements Under CERCLA Section 108(b) for Classes of Facilities in the Hardrock Mining Industry,” which would amend rules for the federal Superfund, established in 1980 to clean up uncontrolled or abandoned hazardous-waste sites and other hazards to the environment. The goal is to “increase the likelihood that those owners and operators will have funds necessary to address the CERCLA liabilities at their facilities, thus preventing the burden of cleanup from falling to other parties, including the American taxpayer,” according to an EPA rule summary.

In a letter sent February, Sen. Dean Heller (R-Nev.) urged the EPA to extend the public comment period and further review the effect the rule would have on the mining industry. The EPA responded by extending the comment period from 60 to 120 days, ending July 11. Gov. Brian Sandoval in April also wrote to EPA Administrator Scott Pruitt expressing concern over the proposed rule.

Taking advantage of the additional time, Heller and colleagues outlined issues with the proposed rule in a July letter, which calls the proposal “unnecessary and duplicative and exceeds EPA’s authority under the law.”

Heller stated that the proposal improperly relies on legacy contamination, which he maintains is outside what Congress directed the EPA to address under the section, and fails to take into account the degree and duration of the risk. He also cites a Senate Committee on Environment and Public Works report that found facilities already to be covered by another financial responsibility act. Heller warned about the consequences should the rule pass.

“The cost of compliance with this unlawful and duplicative federal program will discourage domestic mineral production and stymie future investment and development opportunities, leading to greater import reliance for metals and minerals, and putting the United States domestic manufacturing, energy, and national security sectors at a major disadvantage,” he wrote. “Furthermore, this rule will have substantial adverse impacts to local communities who depend on the high-paying family-wage jobs and tax revenues supported by the industry.”

Great Basin Resource Watch joined a group of rule supporters nationwide, including the Sierra Club, to write to the EPA last summer, expressing support for “rigorous regulations under CERCLA 108(b) to ensure that funding is available for clean-up of hazardous materials at mine facilities.”

Sandoval wrote that the rule would duplicate or preempt Nevada’s financial responsibility programs, which he deemed the best in the nation to minimize risk and ensure remediation when necessary.

“As required by those programs, Nevada mining companies collectively hold billions of dollars in financial assurance instruments required by the State, and/or by the federal land management agencies to cover reclamation, closure, and spills and releases during operations,” he wrote. “EPA has not fully understood and taken into account existing mining regulations and financial assurance requirements imposed by states and sister federal agencies, nor has any member of the rulemaking team ever visited a hardrock mine … .”

GBRW Director John Hadder said better assurances are needed nationwide.

“Nevada does have better financial assurance regulations than probably most other states. GBRW sees the EPA regulation development as an opportunity to review what we have in Nevada and make any improvements. … Assuming that flexibility is built into the final rule, mining companies will most likely not see a significant increased financial burden and mining operations will largely be unaffected in Nevada.”

A final rule would be published in the Federal Register in December.

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