By Kevin Bromberg, Assistant Chief Counsel
On December 1, in a victory for small businesses, the Environmental Protection Agency announced that the Agency will not issue final regulations for financial responsibility requirements for certain hardrock mining facilities. Darryl DePriest, the previous Chief Counsel, in his last official action in the Obama Administration, sent a letter on January 19, 2017 to EPA asking the agency to withdraw the proposal as being costly and unnecessary.
Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 directs EPA to develop requirements for classes of facilities to establish evidence of financial responsibility for risks associated with the production, transportation, treatment, storage, or disposal of hazardous substances. EPA’s proposed requirements for the hardrock mining industry to avoid taxpayer expenditures associated with mining cleanups in January 2017.
In Advocacy’s view, these small mines are already highly regulated in a similar fashion by robust state and Federal programs. Advocacy agreed with the small business mining community and mining regulators that existing programs effectively address the same issues at modern small mines. The office found no significant evidence of a problem warranting federal regulation. EPA had proposed this rule based upon a contrary belief that the existing state and Federal programs would not adequately address future CERCLA liabilities. In the December final rule, EPA agreed, recognizing that it had failed to properly consider that modern mining practice and modern federal and state regulations had already addressed the same risks from operating mining facilities.
EPA convened a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel to examine this rulemaking. The panel report is found at https://www.epa.gov/reg-flex/sbar-panel-cercla-108b-hardrock-mining-financial-assurance-proposed-rule.
EPA Administrator Scott Pruitt, stated that “[a]dditional 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.” This final action avoids these substantial impacts on small mining companies without any harm to the environment.