The US Environmental Protection Agency (EPA) has announced that the Agency will not issue final regulations for financial responsibility requirements for certain hard rock mining facilities.
“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 hard rock 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,” Pruitt added.
The EPA published proposed regulations under section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) on 11 January 2017, and the public comment period closed on 11 July 2017. EPA has decided not to issue final regulations because the risks associated with these facilities’ operations are addressed by existing federal and state programmes and industry practices. EPA was under a court-ordered deadline to take final action on this rulemaking by 1 December 2017. The decision not to issue final rules under CERCLA section 108(b) will be published in the Federal Register.
EPA has analysed 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 hard rock mining operations, as well as the risk of taxpayer funded clean-ups 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.
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.
“I urged then President-elect Trump, to stop the EPA’s overreach into state regulation harming Montana businesses,” said U.S. Senate Western Caucus Chairman, Steve Daines.
“Instead of threatening the very industries that are a backbone of our Western economies, we need to support American families and American businesses to secure our mineral and energy independence. I am pleased the EPA has taken action.”
“I am grateful for Administrator Pruitt’s leadership in eliminating this costly, duplicative, and job-killing rule,” said Arizona Governor Doug Ducey.
"Arizona already has financial responsibility protections in place for hard rock mines and does not need a duplicative federal programme that will unnecessarily burden a key Arizona industry," Ducey continued.
“The pending CERCLA 108(b) rulemaking has been at the top of my agenda,” said Nevada Governor Brian Sandoval.
“The success of Nevada’s robust mine bonding programme protects public safety and our environment and ensures our critical mining industry can operate with certainty. 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 recognises the reality that the states have been capably regulating mine bonding without interference from Washington and should be allowed to continue to do so.”
“States have developed comprehensive financial responsibility programmes for hard rock mining in the 30 years since the passage of CERCLA 108(b)(1),” said Jim Ogsbury, Executive Director of the bipartisan Western Governors’ Association.
“These programmes require operators to comply with state regulations, implement reclamation and post-closure plans, and post financial assurance to minimise risks to public health and the environment. Western Governors appreciate EPA’s decision regarding its proposed financial assurance requirements under CERCLA 108(b), which would have duplicated or supplanted existing and proven state financial assurance regulations,” Ogsbury added.
"EPA's actions to rescind the CERCLA 108(b) financial assurance rule is another positive step by EPA in eliminating redundant regulations and recognising the importance of cooperative federalism," said Todd Parfitt, Director of Wyoming Department of Environmental Quality.