EPA Proposes New CERCLA Financial Assurance Requirements for Mineral Operators

The United States Environmental Protection Agency recently proposed a new rule requiring mining companies to provide proof of financial assurance under Section 108 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The proposal is intended to shift Superfund costs away from the general taxpayer revenues after the Superfund tax expired in the 1990's.  Facilities engaging in the extraction, beneficiation, and processing of copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, zinc, asbestos, phosphate rock, and sulfur, among other minerals, would be subject to the new rule.

EPA is proposing that current owners and operators be required to demonstrate "financial responsibility" to cover CERCLA Section 107 costs: response costs, health assessment costs, and natural resource damages.  These costs are expected to range from facility to facility, and EPA has therefore proposed a calculation formula to determine the "financial responsibility" of each operation.  The proposal would also require owners or operators to post their compliance with the financial responsibility requirements on their company websites.  Further, the proposed rule would establish a system for operators that create a system to pay some judicial costs associated with CERCLA enforcement.

The proposed rule would also provide an incentive for "sound practices" at hardrock mining facilities in order to reduce future Superfund expenses.  Public comment will begin after the proposed rule is published in the Federal Register. 

On the same day, the EPA gave notice that it was analyzing the need for developing similar CERCLA financial assurance requirements for chemical, agrochemical, petroleum, and coal manufacturing industries, as well as for the electric power generation, transmission, and distribution sectors.  The EPA has not made a determination at this time and would be required to publish a separate proposed rule should it decide to pursue new regulations, so potentially-affected parties have some time before that public comment period would begin, if it does at all.