EPA Issues Financial Responsibility Requirements for the Hardrock Mining Industry and Announces Intent to Regulate Other Industries

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On December 1, 2016, EPA signed a proposed rule setting forth financial responsibility requirements for the hardrock mining industry under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Other industries will also find this proposed rule of interest because, on the same day, EPA announced its intention to move forward with the regulatory process for three other classes of facilities: chemical manufacturing, petroleum and coal products manufacturing, and electric power generation, transmission, and distribution. EPA anticipates that core financial responsibility program requirements will apply to these other classes of facilities. Accordingly, EPA is actively soliciting comments now from “all interested parties, including representatives of industries other than the hardrock mining industry.”

Legal Authority and Timing of Regulatory Process -

Section 108(b) of CERCLA requires EPA to promulgate regulations requiring that certain “classes of facilities establish and maintain evidence of financial responsibility.” Pursuant to Section 108(b), EPA must prioritize “classes of facilities” for regulation based on risk of injury from use of hazardous substances. EPA failed to identify its first priorities by the statutory deadline of December 11, 1983. In response to a lawsuit by several environmental organizations, EPA agreed earlier this year to a rulemaking schedule. The resulting consent order issued by the D.C. Circuit set forth a schedule for future actions by EPA.

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