On January 26, the U.S. Court of Appeals ruled in favor of the Idaho Conservation League (ICL) on its petition against the Environmental Protection Agency (EPA). The ICL and five other environmental activist organizations filed a petition directing the EPA to promulgate financial assurance regulations required by section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). That law states that the EPA “shall promulgate” regulations requiring “that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.” The petitioners contend that 30 years have passed and the EPA has yet to issue any regulations.
CERCLA was enacted to promote the timely cleanup of hazardous waste sites and to ensure that the cleanup costs were borne by those who created the mess.
The issue is the financial assurance regulations. In the case of the hardrock mining business, companies set aside funding—or otherwise demonstrate that funding is available—to pay for any necessary cleanup or reclamation efforts.
The six environmental groups filed a joint motion on August 11, 2014, to establish a schedule for the rulemaking. They wanted a final rule by January 2016. They had momentum on their side. Some of the groups had sued the EPA in California forcing the agency to identify which classes of facilities required financial assurance rules. Now that they had identified the classes, they were targeting specific industries.
For the court to rule, the groups needed to show that at least one petitioner had the standing to challenge the lack of financial assurance regulations in the hardrock mining industry. John Robison, an ICL member, stepped forward saying that he “had suffered from the EPA’s failure to promulgate financial assurance regulations.” Robison described situations where his recreational interests were harmed by arsenic-laden mine tailings and waste. He further explained that two mining projects will threaten his future enjoyment of the Idaho wilderness. Robison questions the mines’ financial viability, fears the treatment will stop, and believes there are currently insufficient financial assurances for future cleanup efforts. In the court’s eyes, through the fears of one man, the petitioners showed they had standing. The court extended the deadline for the EPA to propose a new hardrock mining rule to December 1, 2016, with a final rulemaking deadline of December 2017. The timeline for notice and comments has been reduced from what would have been three years to one year.
Most mining companies strive to do the right thing. Hardrock mining in the U.S. is already subject to some financial assurance requirements, so the impact of the new requirements may be reduced. If the rulemaking proceeds the way others have, the agency will likely not consider science, logic or the economic value these industries provide. The new rules could force some hardrock mining companies into bankruptcy, which could potentially put more of the environment at risk.
After all, the EPA’s track record of cleaning up abandoned mine sites is less than stellar, especially considering last summer’s massive release in Colorado.