National Mining Association (NMA) President and CEO, Hal Quinn, says “the US Environmental Protection Agency (EPA) ignored critical facts and used inappropriate data in singling out US hardrock mining for financial assurance requirements under the ‘Superfund’ (officially the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)). The NMA is particularly concerned that in making this determination, EPA made [several] errors. “
Firstly, Quinn says that the “EPA used Toxic Release Inventory (TRI) data to identify ‘high risk’ facilities – TRI reports are not an appropriate mechanism for evaluating potential risks posed by reporting facilities. EPA has cautioned from the inception of TRI that the reports are not intended to assess risk to the public or the environment and should not be used for that purpose. Hardrock mining facilities must report as ‘releases’ on their TRI forms the trace amounts of naturally occurring metallic impurities contained in materials that are sent for storage to engineered impoundments and units. These metallic impurities are not released into the environment and pose no risks. Any assessment of facilities presenting the ‘highest level of risk of injury,’ as noted in the relevant regulation, should rely on a more realistic risk assessment tool than TRI reports.”
Secondly, Quinn says the “EPA ignored other state and federal laws that subject hardrock mining operations to financial responsibility regulations – Hardrock mining facilities are subject to financial responsibility regulations under other federal and state laws. Among other things, reclamation and closure bonds are required by the Bureau of Land Management (BLM) and the U.S. Forest Service for mining operations on federal lands and by state laws and regulations for operations on state and private lands. These financial assurance provisions, which are unique to mining operations, provide financial assurance for clean up, closure and post-closure care of hardrock mining operations, including those subject to bankruptcy or operator abandonment.”
The EPA also “failed to consider design and operation requirements for modern mining operations – Modern mining regulations not only require reclamation bonds, they also impose detailed design, operation and monitoring requirements to assure protection of the environment. A 1999 study by the National Academy of Sciences concluded that the combination of federal and state requirements applicable to hardrock mining is effective to protect the environment. BLM and state environmental requirements (including financial assurance requirements) for hardrock mining operations have been updated over the last 10 years to provide additional protection and to address gaps in regulations and bonding requirements that led to anomalous historic events.”
And lastly, the “EPA inappropriately based its notice on historic events rather than modern mining practices – The hardrock mining sites on the CERCLA National Priorities List are nearly all ‘legacy’ sites that were operated and abandoned long before the advent of detailed regulation at the federal and state level, including the requirement for financial assurance for closure and reclamation. It is inappropriate to use these legacy sties as ‘evidence’ that modern mining facilities pose great risks to the public health or the environment or that they have insufficient financial assurances in place to properly close and reclaim sites once operations are completed.”
The EPA’s notice represents the agency’s preliminary decision of what industries it considers ‘high risk’ and in need of further consideration for financial assurance obligations. EPA will begin a formal rulemaking (involving public notice and comment) to address whether, and the manner in which, hardrock mining facilities should be subject to additional financial assurance requirements.
This statement was released in response to the U.S. EPA’s notice identifying the hardrock mining industry as a priority for developing financial assurance requirements under the CERCLA, commonly called ‘Superfund.’ The notice of the industry or industries is required by the February 25 ruling of the U.S. District Court for the Northern District of California in the case Sierra Club, et al. vs. Johnson.