On January 11, EPA proposed Superfund financial assurance regulations for the hardrock mining industry.  The proposal requires owners and operators of certain types of hardrock mines and mineral processing facilities to give financial assurances of their ability to pay for potential releases of hazardous substances from their facilities, including Superfund cleanup costs, health assessment costs and natural resource damages (NRD).

This is the first rule promulgated by EPA under section 108(b) of CERCLA, which requires EPA to issue financial assurance rules for certain classes of facilities. In 2009, EPA released a notice identifying the hardrock mining sector as the first sector for which it would issue such rules.  EPA promulgated the proposal after being sued by environmentalists for taking no action following the 2009 notice.

According to press releases, during a Jan. 10 webinar, EPA indicated that subparts A, B, and C of the proposal include components that could serve as a foundation for future section 108(b) rulemakings.  Subpart A of the proposal requires companies to provide financial assurance that is consistent with the degree of risk posed by the company’s management of hazardous substances. Under Subpart B, owners and operators would be required to update the financial responsibility amount every three years based on class-specific requirements. This subpart also includes certain notification requirements to EPA, including notifying EPA within 10 days of filing for bankruptcy under Chapter 11.  Notably, this subpart also allows owners and operators to petition EPA to be released from their financial responsibility obligations.  Subpart C specifies the types of financial responsibility instruments allowed under the proposal (i.e., letter of credit, surety bond, insurance, financial test, corporate guarantee and trust fund).

EPA is subject to a court ordered schedule for issuing the rule.  Comments on the proposal are due on March 13.

If you have questions about the proposed Mining Assurance Rule please contact Hahnah Williams, Andrea Rimer, or Andrea Wortzel.  The proposal can be found here: