Following a court order and congressional directive under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the U.S. Environmental Protection Agency (EPA) is proposing new requirements for owners and operators of certain classes of hard rock mines and mineral processing facilities.

Owners and operators of facilities subject to the proposed rule would be required to notify the EPA that they are subject to the rule; calculate a level of financial responsibility for their facility using a formula provided in the rule (and provide supporting documentation for the calculation); obtain a financial responsibility instrument, or qualify to self-assure, for the amount of financial responsibility if that option is adopted in the final rule; demonstrate they have obtained such evidence of financial responsibility; and update and maintain financial responsibility until the EPA releases the owner or operator from the CERCLA section 108(b) regulations.

The financial responsibility instruments required by the rule would cover all types of CERCLA section 107 liabilities: response costs, natural resource damages and health assessment costs. The formula includes components for each of these categories. The funds assured for would be available for any future response action, natural resource damages or health assessment costs, regardless of the particular formula input values. Because CERCLA section 108(b) is a stand-alone financial responsibility authority, the rule does not include technical requirements for the operation or closure of mines.

The National Mining Association (NMA) expressed alarm and said it disregards serious flaws raised by industry experts and financial institutions. The agency introduced its proposed rule and offered an inadequate 60-day comment period on an entirely brand-new federal program, despite significant concerns voiced by states, Congress and industry, as well as repeated requests to thoughtfully consider the economic ramifications of the rule, NMA said.

“This rule is unnecessary, redundant and poorly constructed, and exemplifies all the problems of rushed rulemaking from an outgoing administration,” said NMA President and CEO Hal Quinn. “Current programs already address the risks of mining and mineral processing sites, and prevent these sites from becoming a Superfund liability, rendering this rule unnecessary.”

Throughout the process, the EPA has conducted little to no consultation with actual experts from the mining sector or financial institutions, the NMA said. The predictable result is a faulty rule that overstates potential risks and liabilities of modern mining facilities, and duplicates successful state and federal regulatory programs, leaving an exorbitant price tag on an already comprehensively regulated industry, it added.

A pre-publication version of the rule is available for review here.

A pre-publication version of the Regulatory Determination Notice for additional industries may be viewed at here.