The National Mining Association (NMA) has welcomed the US Environmental Protection Agency’s (EPA) decision that new, duplicative financial responsibility requirements for the hard rock mining industry are unnecessary. The decision stems from environmental group litigation seeking to use the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund Law) to impose additional, crippling financial and regulatory burdens on the mining industry.

“When litigation is used as a tool to attempt to force the government into unnecessary action against an industry, the result is bad policy,” said Hal Quinn, NMA President and CEO. “Today’s action shows that reason can prevail. Modern, advanced mining practices – coupled with existing state and federal environmental and financial assurance requirements – comprehensively cover the same risks contemplated under the CERCLA program.

“At a time when America is completely import-dependent for many key minerals, we should be supporting domestic mining and encouraging investment in the U.S. to lessen our dependence on foreign supply chains,” added Quinn.

Congress enacted CERCLA in 1980 to address threats to human health and the environment posed by the nation’s past waste disposal practices. CERCLA is both a backward- and forward-looking statute, intended to address remediation of existing sites and prevent the creation of new ones. In the decades that followed its enactment, state and federal environmental and financial assurance programs were developed and implemented to address the very same risks contemplated by CERCLA’s financial responsibility provisions.

In 2009, several environmental groups sued the EPA, attempting to use CERCLA to subject classes of facilities within the hard rock mining industry to additional financial responsibility requirements. As a result, EPA conducted a rulemaking to determine if new requirements were needed.

In 2016, EPA released a proposal premised on a faulty picture of the mining industry – it relied on legacy practices used at operations decades and even generations ago that are not representative of today’s mining and mineral processing industry. In sum: the proposal addressed conditions that no longer exist or are already remedied under other comprehensive regulatory programs. Now, the EPA has acknowledged these fundamental flaws in the proposal and rightly determined that a new financial responsibility program was not needed.

EPA’s decision not to impose additional requirements on the mining and minerals industry is consistent with the ruling by the US Court of Appeals for the District of Columbia Circuit, which stated that, while EPA had to act by December 1, 2017 (the deadline established in the litigation), the final action could be no rule at all:

“[T]he proposed joint order ‘does not require EPA to promulgate a new, stricter rule. At most, it ‘merely requires that EPA conduct a rulemaking and then decide whether to promulgate a new rule – the content of which is not in any way dictated by the [proposed order on consent] – using a specific timeline.” In re Idaho Conservation League, 811 F.3d 502, 524 (D.C. Cir. 2016).