EPA CERCLA financial assurance rule ignores states and small business

The American Exploration & Mining Association (AEMA) reports the US Environmental Protection Agency (EPA) has released “its deeply flawed proposed financial assurance rule that duplicates and overlaps the current effective federal and state hardrock mining financial assurance programs and threatens to pre-empt state programs.

“The EPA has repeatedly refused to provide those most impacted by a CERCLA financial assurance rule vital information on the proposed rule’s modelling, information sources and formula despite repeated requests during the small business review process. Such information is essential to understand a rule that could have devastating effects on America’s mining industry. Rather, in the waning days of this administration, a deeply flawed proposed rule was rushed out the door.

“The Bureau of Land Management, US Forest Service and individual states currently hold billions of dollars in financial assurance covering all of what EPA is proposing to cover in this duplicative rule. Western Governors Association and the Interstate Mining Compact Commission have both issued objections to the rule as have members of Congress and Native American corporations.”

“This proposed rule serves no purpose other than to stop investment in America’s mineral supply chain and drive jobs away,” said Laura Skaer, AEMA Executive Director. “It provides no discernable environmental benefit, while adding hundreds of millions of dollars of costs and regulatory compliance burdens on industry. The most judicious thing for EPA to do is listen to the experts and their own federal family and end this economic disaster.”

AEMA has been working with “pro-jobs” members of Congress and will work with the new administration to rescind this action. In addition, AEMA was a leading participant in the Small Business Advocacy Review (SBAR) Panel as a Small Entity Representative (SER). The SBAR panel is set to release its report in conjunction with EPA’s proposed rule.

The National Mining Association (NMA) has also expressed alarm, saying: “In a process that has been continuously and needlessly rushed, EPA introduced its proposed rule, Financial Responsibility Requirements under CERCLA Section 108(b) for Classes of Facilities in the Hardrock Mining Industry, and offered a woefully 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.”

“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 the rulemaking with little to no consultation with actual experts from the mining sector or financial institutions. EPA has also truncated key rulemaking milestones, as evidenced by its lacklustre consultation with the states on pre-emption of existing state programs.

“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.”

The NMA has released a useful infographic http://nma.org/wp-content/uploads/2016/10/FA_Infographic_FINAL-2.pdf