WASHINGTON — The U.S. Environmental Protection Agency will not issue final regulations for financial responsibility requirements for certain hardrock mining facilities, the agency announced Dec. 1.
“After careful analysis of public comments, the statutory authority, and the record for this rulemaking, EPA is confident that modern industry practices, along with existing state and federal requirements address risks from operating hardrock mining facilities,” said EPA Administrator Scott Pruitt. “Additional financial assurance requirements are unnecessary and would impose an undue burden on this important sector of the American economy and rural America, where most of these mining jobs are based.”
EPA published proposed regulations under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) on Jan. 11, and the public comment period closed on July 11.
EPA has decided not to issue final regulations because the risks associated with these facilities’ operations are addressed by existing federal and state programs and industry practices. EPA was under a court-ordered deadline to take final action on this rulemaking by Dec. 1. The decision not to issue final rules under CERCLA section 108(b) will be published in the Federal Register.
“The success of Nevada’s robust mine bonding program protects public safety and our environment and ensures our critical mining industry can operate with certainty,” said Gov. Brian Sandoval in a statement. “I applaud the EPA for their thoughtful approach and thorough review of the proposed rule, for seeking comments from a diverse set of stakeholders and ultimately, for making the right decision. Today’s action by the Administrator recognizes the reality that the states have been capably regulating mine bonding without interference from Washington and should be allowed to continue to do so.”
EPA has analyzed the need for financial responsibility requirements under CERCLA section 108(b) based on the degree and duration of risk associated with the production, transportation, treatment, storage and disposal of hazardous substances from current hardrock mining operations, as well the risk of taxpayer funded cleanups at facilities operating under modern management practices and modern environmental regulations. That risk is identified by examining: the management of hazardous substances at such facilities; federal and state regulatory controls on that management and federal and state financial responsibility requirements; and, the payment experience of the fund in responding to releases.
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 determination 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.
The American Exploration & Mining Association “is pleased that EPA, under Administrator Pruitt, undertook a legitimate, science and fact based analysis. EPA has finally recognized that the robust financial assurance system in place works.” said Laura Skaer, AEMA executive director. “No mine approved by the Bureau of Land Management or the United States Forest Service since 1990 has been placed on the Superfund list. This undeniable fact, along with robust financial assurance requirements, stringent regulatory requirements and the industry’s commitment to the highest environmental standards is what made today’s decision the right one.”
State mining and environmental regulators, as well as other federal agencies and the regulated community and financial sectors, commented that the proposed requirements would potentially interfere with state and local mining regulations, were unnecessary, and would be difficult to implement. This decision does not in any way affect EPA’s authority to take appropriate response actions under CERCLA.
The National Mining Association also welcomed the decision, saying that the proposed final rules stemmed from environmental group litigation seeking to use CERCLA to impose additional, crippling financial and regulatory burdens on the mining industry.
“When litigation is used as a tool to attempt to force the government into unnecessary action against an industry, the result is bad policy,” said Hal Quinn, NMA president and CEO. “Today’s action shows that reason can prevail. Modern, advanced mining practices – coupled with existing state and federal environmental and financial assurance requirements – comprehensively cover the same risks contemplated under the CERCLA program.”
Great Basin Resource Watch, a nonprofit regional environmental justice organization, was one of the plaintiffs in the years-old litigation via Earthjustice, a nonprofit environmental law firm. GBRW Executive Director John Hadder said that the group hasn’t yet discussed officially what will happen next but that the fight isn’t over.
“I guess the bottom line is that we’ll be back in court,” he said. “We feel that it is needed, and we’ll probably be back in court.”
Nevada Mining Association President Dana Bennett said she appreciated the EPA not tampering with Nevada’s already successful bonding program.
"If enacted, the proposed rule would have created an unnecessary and duplicative federal program in Nevada, which would have discouraged domestic mineral production, limited future mining investments, and devastated rural Nevada economies," she said in a statement. "The Silver State has long protected its public lands, in partnership with federal land management agencies, through continuous oversight of mining operations and vigorous enforcement of state and federal environmental laws. In addition, mining companies are required to bond for the reclamation and remediation of mining sites, and Nevada regulators currently hold nearly$3 billion in financial assurance bonds. The proposed CERCLA rule would have more than doubled the bonding costs for mines without adding any extra benefit to Nevada’s environment."
Sen. Dean Heller, R-Nev., also remarked on the decision.
“The Environmental Protection Agency’s decision today is a win for Nevada’s mining industry, which helps employ nearly 25,000 workers in our state alone,” he said. “The CERCLA rule would have discouraged investment, development, and job creation in the very communities that rely on this industry.”
This story has been updated to include a statement from the Nevada Mining Association.