Press Release: Court Affirms EPA’s Decision Not to Impose Unnecessary, Duplicative Financial Assurance Requirements on Mining Industry

For Immediate Release

Contact:

Conor Bernstein
(202) 463-2620
cbernstein@nma.org

July 19, 2019

Court Affirms EPA’s Decision Not to Impose Unnecessary, Duplicative Financial Assurance Requirements on Mining Industry

WASHINGTON, D.C. – The National Mining Association (NMA) today welcomed the decision from the United States Court of Appeals for the District of Columbia Circuit rejecting environmental groups’ challenge to the U.S. Environmental Protection Agency’s (EPA) proper decision that new, duplicative financial responsibility requirements for the hardrock mining industry are unnecessary. NMA was an intervenor in the case in support of the government.

“We welcome the court’s decision and its recognition that hardrock mines are already subject to significant financial assurance requirements under other federal and state laws,” said Hal Quinn, NMA President and CEO. “EPA used common sense in its final determination, and we are pleased the court found the agency’s reasoning compelling,” Quinn added.

NMA has long held that the EPA’s decision was proper, given that 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.

In the opinion, the Court:

• Found that the EPA’s interpretation of “risk” was reasonable and “nothing in [the statute] mandates the EPA to promulgate financial responsibility requirements for the hardrock mining industry, authorizing the EPA to decline to do so”;
• Was “unpersuaded” by the petitioners’ claims concerning the EPA’s evaluation of the financial risks of the industry, finding that environmental organizations “misread the record and the EPA’s analysis,” and found “no ‘serious flaw’ in the agency’s economic analysis;”
• Recognized that the EPA’s analysis “makes clear, existing federal and state programs impose significant financial responsibility requirements on the hardrock mining industry;” and
• Concluded: “That the EPA might choose not to promulgate financial responsibility requirements for the hardrock mining industry has always been a foreseeable possibility; our decision in the Environmental Groups’ previous mandamus action expressly recognized that the EPA “retains ‘discretion to promulgate a rule or decline to do so.’”

Today’s decision stems from environmental group litigation (Idaho Conservation League v. Wheeler, No. 18-1141 (D.C. Circuit)) challenging the EPA’s December 2017 determination not to impose additional, unnecessary financial assurance obligations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund Law).

Background

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 hardrock 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. EPA subsequently acknowledged these fundamental flaws in the proposal and rightly determined that a new financial responsibility program was not needed.

Consistent with Legal Requirements:

EPA’s decision not to impose additional requirements on the mining and minerals industry is consistent with the ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which stated that, while EPA had to act by Dec. 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).

On May 16, 2018, environmental groups challenged the EPA’s decision in the petition that was denied by the court in today’s ruling.

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