NMA Exposes Deep Flaws in EPA’s 2017 Financial Assurance Rule

WASHINGTON, D.C. The Environmental Protection Agency’s (EPA) proposal to impose new financial responsibility requirements on the hardrock mining and mineral processing industry is wholly without merit, claimed the National Mining Association (NMA) today in voluminous comments filed with the agency. U.S. mineral and metal mines would be severely penalized by a regulation that is unnecessary and rests on comprehensively flawed assertions and legally questionable assumptions.

“To conclude that today’s mining industry presents the level of risk that justifies an expansive, costly and duplicative regulation, EPA had to ignore modern mining practices, existing state and federal environmental, reclamation and financial assurance requirements, and a sensible reading of the law,” said NMA President and CEO Hal Quinn. Rather than acknowledging the modern regulatory framework that arose during 40 years of EPA inaction on this issue, the agency adopted a “we know best” attitude in an absurd attempt to solve a nonexistent problem.

NMA’s lengthy recitation of fundamental errors, together with persuasive evidence presented by state and other federal regulatory agencies, private financial institutions and small businesses compels only one conclusion – that no new rulemaking is necessary, said NMA.

Fatally undermining the proposed rule is EPA’s wholesale dismissal of a fundamental legal requirement Congress specified in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund Law) – i.e. consideration of risk prior to imposing any new financial assurance requirements. Congress directed EPA to address facilities presenting “the highest level of risk of injury” and establish new obligations “consistent with the degree and duration of risk” of hazardous releases.

Instead of undertaking any true risk assessment of the industry, EPA grossly exaggerated potential risks by irrationally relying on anecdotal, circumstantial and outdated evidence. EPA blindly refused to evaluate risks related to current or future facilities and instead based its conclusions on an examination of legacy practices that predated the environmental movement and the resulting evolution of modern practices and regulatory programs.

EPA has in effect created a rule for an industry and conditions that no longer exist.

EPA utterly failed to weigh the contributions from existing state and federal environmental, reclamation and financial assurance requirements that reduce the risks of releases of hazardous substances and govern all aspects of mining – from exploration through active mining, post-mining reclamation, closure and post-closure.

Consequently, EPA arrived at a risk characterization that is not remotely tied to today’s reality. The only assurance offered by this rule is the certainty of a less competitive American mining industry employing fewer Americans with an economy even more heavily reliant on imported metals and minerals.