By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) announced that it will not issue a final rule for the Obama-era’s proposed regulations for financial responsibility requirements for certain hardrock mining (HRM) facilities. 83 Fed. Reg. 7556 (Jan. 21, 2018).

EPA Administrator Scott Pruitt announced that “after careful analysis of public comments, the statutory authority, and the record for this rulemaking, EPA is confident that modern industry practices, along with existing state and federal requirements [sufficiently] address risks from operating hardrock mining facilities.”  “Additional financial assurance requirements are unnecessary and would impose an undue burden on this important sector of the American economy and rural America, where most of these mining jobs are based.”

EPA was under a court ordered deadline to take final action on this rulemaking by December 1, 2017.

EPA’s actions confirm the Trump Administration’s hostility toward regulation. Specifically, EPA concluded that the “degree and duration of risk” associated with the modern hardrock mining industry “does not present a level of risk of taxpayer funded response actions that warrant imposition of financial responsibility requirements under CERCLA for this sector.” According to the Agency, the determination reflected EPA’s interpretation of the statute, EPA’s evaluation of the record for the proposed rule, and the approximately 11,000 public comments received by EPA on this proposed rulemaking.

EPA published proposed HRM financial responsibility regulations under section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) on January 11, 2017. The public comment period on the docket closed on July 11, 2017. The proposed rule was intended to “increase the likelihood that owners and operators will provide funds necessary to address the CERCLA liabilities at their facilities, thus preventing owners or operators from shifting the burden of cleanup to other parties, including the taxpayer.”

The U.S. Chamber of Commerce’s comments on the proposed rule, filed July 11, 2017, called upon EPA to make a determination that no rule was necessary.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.