Activists Use Courts to Force EPA Rulemaking

Steve Fiscor

On January 26, the U.S. Court of Appeals granted an expedited rulemaking schedule negotiated between the Environmental Protection Agency (EPA) and environmental groups. The Idaho Conservation League (ICL) and five other environmental activist organizations filed a petition seeking to compel the EPA to promulgate financial assurance regulations required by section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). That law states that the EPA “shall promulgate” regulations requiring “that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.” The petitioners contend that 30 years have passed and the EPA has yet to issue any regulations.

CERCLA was enacted to promote the timely cleanup of hazardous waste sites and to ensure that the cleanup costs were borne by those who created the mess. The issue is financial assurance regulations. In the case of hardrock mining, companies set aside funding—or otherwise demonstrate that funding is available—to pay for any necessary cleanup or reclamation efforts.

The six environmental groups filed a lawsuit on August 11, 2014, to establish a schedule for the rulemaking. They wanted a final rule by January 2016. They had momentum on their side. Some of the groups had sued the EPA in California forcing the agency to identify which classes of facilities required financial assurance rules. Now that they had identified the classes, they were targeting specific industries.

For the court to rule, the groups needed to show that at least one petitioner had the standing to challenge the lack of financial assurance regulations in the hardrock mining industry. John Robison, an ICL member, stepped forward saying that he “had suffered and continued to be threatened with ongoing and certainly impending injuries-in-fact that are caused by EPA’s failure to promulgate financial assurance regulations for the hardrock mining industry.” Robison described situations where his recreational interests were harmed by arsenic-laden mine tailings and waste. He further explained that two mining projects will threaten his future enjoyment of the Idaho wilderness. Robison questions the mines’ financial viability, fears the treatment will stop, and believes there are currently insufficient financial assurances for future cleanup efforts. In the court’s eyes, through the fears of one man, the petitioners showed they had standing. The court extended the deadline for the EPA to propose a new hardrock mining rule to December 1, 2016, with a final rulemaking deadline of December 2017. The timeline for notice and comments has been reduced from what would have been three years to one year.

Most mining companies strive to do the right thing. Hardrock mining in the U.S. is already subject to comprehensive federal and state financial assurance requirements that could be duplicated or preempted by a new EPA rule. If the rulemaking proceeds the way others have, the agency will not likely consider science, logic or the economic value these industries provide. The new rules could deter future investment in the U.S. and force active operations out of business. Does the financial industry even have the capacity to provide the necessary financial instruments?

That’s unclear too.

Steve Fiscor, Editor-in-Chief, E&MJ

As featured in Womp 2016 Vol 02 -