Environmental coalition petitions U.S. EPA to further regulate the mining industry, among others

On 8 August 2014, Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities for a Better Environment (the “Environmental Coalition”) filed a Petition for Writ of Mandamus with the United States Court of Appeals for the District of Columbia. The Environmental Coalition is seeking an order finding that the U.S. Environmental Protection Agency (“EPA”) has unreasonably delayed issuing final assurances rules for four industries: (1) hardrock mining; (2) chemical manufacturing; (3) petroleum and coal products manufacturing; and (4) electric power generation, transmission, and distribution (the “Petition”). The Environmental Coalition is concerned with the prolonged public exposure to known toxins as a result of EPA’s continued delay.

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) in 1980 to ensure that parties responsible for hazardous pollution bear the cost of any requisite cleanup. See 42 U.S.C. § 9601 et seq. Concurrent with the enactment of CERCLA, Congress directed EPA to enact regulations requiring facilities that handle or involve hazardous substances to demonstrate financial responsibility sufficient to remedy and reclaim any environmental damage caused by the facility’s operation, commonly known as the “financial assurances” requirement. See 42 U.S.C. § 9608(b); see also 52 Fed. Reg. 2923 (Jan. 23, 1987) (delegating responsibility to EPA to enact and implement financial assurances requirements). CERCLA lays out a three-step process for EPA to develop financial assurances requirements. First, EPA must publish a notice identifying those classes of facilities for which it will develop requirements. See 42 U.S.C. § 9608(b)(1). CERLCA directed EPA to complete this first step no later than 1983. Second, EPA must promulgate requirements for those classified facilities, prioritizing those that present the “highest level of risk of injury.” See id. Finally, CERCLA directs EPA to incrementally implement such financial assurance requirements. Id. 

By order of the District Court for the Northern District of California, in 2009, EPA satisfied the first step and issued a notice that it would develop financial assurance requirements, focusing on the hardrock mining industry as priority. See Sierra Club v. Johnson, No. C 08-01409, 2009 WL 482248 (25 February 2009) (holding EPA had a non-discretionary duty to identify the classes of facilities for which EPA would first develop financial assurances rules); see also 74 Fed. Reg. 37,213 (28 July 2009) (EPA’s “Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Requirements”). In January 2010, EPA issued a second notice in the Federal Register stating that it would develop financial assurance requirements for three additional industries: chemical manufacturing, petroleum and coal products manufacturing, and electric power generation, transmission, and distribution. 75 Fed. Reg. 816 (6 January 2010). To date, EPA has not issued final assurances rules for any of the four priority industries identified. While the Environmental Coalition concedes that financial assurances rules are not subject to “a date-certain” deadline, they assert that EPA must nonetheless act within a “reasonable time.” Specifically, the Environmental Coalition seek an order from the court requiring EPA to finalize financial assurance requirements for the four classified industries by 1 January 2016. 

Rachel Deitz, a spokeswoman for EPA, indicated in an interview that the agency is currently developing a proposed regulation for financial assurances that would cover “certain hardrock mines and mineral processing facilities,” but stated that the process has taken longer than expected. EPA now expects to issue a proposed rule between May 2014 to August 2016. Once EPA promulgates a financial responsibility regulation, it will be required by statute to begin implementing any such rules within four years of enactment. This means that if the Petition is successful, impacted industries might be required to offer financial assurances by as early as January 2020. For the affected mining industries, financial assurance requirements will likely seriously impact investment and strategic planning within the United States.