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December 06, 2017
CERCLA insurance rule for mining not needed, concludes EPA

Stating that existing programs are successfully assuring that financial instruments are available to cover adequate response to risks associated with the hard-rock mining sector, the EPA has decided not to exercise its authority under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to require that the sector acquire additional financial assurance.

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“The record demonstrates that, in the context of CERCLA section 108(b), 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 [CERCLA] financial responsibility requirements for this sector,” the Agency states.

Highest level of risk

The decision—explained in a final rule—at  least temporarily resolves any dispute that began in 2008 when environmental groups sued to force the EPA to take action under Section 108(b). The section requires that the Agency develop regulations that require classes of facilities to establish and maintain financial responsibility consistent with the degree and duration of risk associated with the management of hazardous substances. The section also directs that priority in the developing of these requirements must apply to those facilities that present the highest level of risk or injury.

In 2010, the EPA announced that it would develop financial responsibility requirements for four sectors, beginning with hard-rock mining. Four years later, after no such action was taken, the environmental groups asked the U.S. Court of Appeals for the D.C. Circuit to order the EPA to fulfill its obligation. The court told the litigants to jointly develop an action schedule. Petitioners and the EPA agreed that the Agency would publish a proposed action by December 1, 2016, and take final action by December 1, 2017.

Under EPA’s proposal, hard-rock mine owners and operators would have two options: (1) Obtain third-party financial instruments (e.g., insurance or bond), or (2) self-insure if they pass a financial test. The court-approved agreement required only that the EPA take a final action, which could be a final rule or a decision that additional financial assurance requirements are not necessary.

Other programs should be considered first

In deciding not to use its Section 108(b) authority to impose federal financial assurance requirements on the hard-rock mining sector, the EPA notes that in its proposal it failed to consider the roles of non-CERCLA federal and state regulatory programs and modern protective practices in reducing risks at current hard-rock mining operations as well as information on reduced costs to the taxpayer from regulatory programs and cleanup by owners and operators.

“Instead, the proposed rule would have considered other programs only after financial responsibility requirements are imposed, as a means to reduce such requirements,” the Agency says.

In addition to programs run by the states, both the federal Bureau of Land Management and the U.S. Forest Service have statutory responsibility for the development and administration of financial assurance requirements for hard-rock mines on federal lands and have had requirements in place since 1981 and 1974, respectively.

“EPA now believes that it is appropriate to consider such programs at the outset, when evaluating both the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances as well as when evaluating the risk of taxpayer financed response costs,” the EPA states.

Mining jobs protected

The Agency concluded that a Section 108(b) requirement is not necessary and, moreover, could harm economic development and employment.

“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’s decision was welcomed by Republican Governor Brian Sandoval of Nevada, the nation’s top gold-mining state.

“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,” said Sandoval. “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.”

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