February 24, 2017 Scott Pruitt issued a press release that extended the hard rocking mining comment period on a December 2016 rule EPA proposed. They used the Superfund Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §9601 et seq. (1980)) as their authority to issue the new rule.
The act provides a Federal “Superfund” to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Through CERCLA, EPA was given power to seek out those parties responsible for any release and assure their cooperation in the cleanup. Section 108(b) of CERCLA, U.S. EPA is required to promulgate regulations under which certain classes of facilities must establish and maintain evidence of financial responsibility so that the owners and operators of those facilities, not public funding sources, bear the financial burden of cleaning up releases from those facilities. The new rule would require that owners and operators of certain classes of hardrock mines and mineral processing facilities show financial ability to address risks from hazardous substances.
The impact of the rule, if finalized, could be far-reaching within the industry: U.S. EPA estimates that 221 facilities in 38 states would be subject to the new requirements. There are signs that the hardrock mining industry is not being singled out. In December, U.S. EPA also formally announced its intention to consider implementing financial assurance requirements for three other types of facilities: chemical manufacturing; petroleum and coal products manufacturing; and electric power generation, transmission, and distribution. Whether U.S. EPA will actually implement parallel financial responsibility rules for these facilities, and which of the three classes it would prioritize first, remain to be seen.
A letter on March 29, 2016 was sent to EPA by governors who would be affected by the ruling. In the letter they listed three issues the states have as:
- Duplicative Federal Regulations
- Inappropriately Hampering Effective State Programs
- Failure to Recognize States’ Primacy Role in Water Management
Idaho Conservation League, et al., No. 14-1149 (D.C. Cir. Jan. 29, 2016) was decided by the United States Circuit Court of Appeals for the District of Columbia on January 29, 2016. The judges’ response was to require EPA to issue a final rule by December 2017.
The referenced D.C. Circuit court order directed EPA to determine by December 1, 2016 whether to issue notice of proposed rulemaking on CERCLA 108(b) financial assurance requirements for (a) chemical manufacturing; (b) petroleum and coal products manufacturing; and (c) electric power generation, transmission and distribution industries. We note similar concerns regarding EPA’s introduction of bonding requirements for these industries.
Prior to publishing a notice of proposed rulemaking for any of these industries EPA should consult with Governors and engage state regulators. This should occur early in the process – before rulemaking. Substantive consultation during development of rules or decisions should occur well before formal rulemaking is launched. This should include a review by Governors and state regulators of any proposals before they are sent to the White House Office of Management and Budget for finalization.
I’m not saying whether this is a bad topic to pursue…obviously holding companies rather than federal taxpayers monies responsible for their actions is a very important issue. However, this seems to be something that EPA has again perhaps overreached authority on. Seems to me as if this would be better addressed by congress in either a revision to that thirty year old act or even ending that act and providing a more modern version where there is a clear delineation of rule making authority especially when states have objections to the rules.
As a matter of interest there is a bill currently introduced which would affect rule making authority rights called HJ Res 32 which proposes an amendment to the Constitution of the United States to give States the authority to repeal Federal rules and regulations when the repeal is agreed to by the legislatures of two-thirds of the several States.
There is also HR 637 which is to discuss EPA overreach on Clean Air Act rules. It also requires that
“before proposing or finalizing regulations or policies, the Environmental Protection Agency must analyze the net and gross impact of those regulations and policies on employment. Regulations and policies may not take effect if they have a negative impact on employment, unless they are approved by Congress and signed by the President.”
Sounds like this part of the bill ought to be extended to other areas not just employment and to ALL federal agencies who might issue rules or regulations. It doesn’t appear to stop the issuance but simply to develop steps necessary to reach a general understanding and problems official procedure would be resolved, like transparency of actions, courts involvement, or citizens accusations agencies of overly burdensome rules without oversight.
Some of the rulings I read make a lot of sense and appear to be thoughtful. However, they don’t seem to see an overall picture or relate to current laws of other agencies so that there is no duplication or counterproductive measures occur. That would be better handled through congressional oversight and procedures of committees.
As yet though, I couldn’t find a resolution or bill on the hard rock mining rule proposal though it’s possible they are waiting for Scott Pruitt and the rule to be finalized in order to learn more before something is introduced.