Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, establishes certain regulatory authorities concerning financial responsibility requirements. Specifically, the statutory language addresses the promulgation of regulations that require classes of facilities to 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. EPA recognizes that financial responsibility is an important policy tool for ensuring that the clean-up of contaminated sites is not left as a burden for the public.
On Feb. 25, 2009, a U.S. federal district court judge ruled that the U.S. Environmental Protection Agency must identify industries that would be subject to future financial assurance regulations under the Comprehensive Environmental Recovery and Liability Act (CERCLA). The court ordered that EPA must publish the classes of facility that will be subject to future CERCLA financial assurance requirements by May 4, 2009. No financial assurance regulations currently exist for the CERCLA regime and this order represents the first step towards their promulgation. In a July 28, 2009 Federal Register notice, EPA identified classes of facilities within the hard rock mining industry as those for which the Agency will first develop financial responsibility requirements under CERCLA Section 108(b). As discussed in that notice, EPA research indicates that the hard rock mining industry typically operates on a large scale, with releases of toxic chemicals to the environment and in some situations, subsequent exposure of humans, organisms, and ecosystems to hazardous substances on a similarly large scale. The metal mining industry released nearly 1.15 billion pounds of hazardous substances in 2007. The hard rock mining industry is responsible for polluting 3,400 miles of streams and 440,000 acres of land. Approximately 10,000 miles of rivers and streams may have been contaminated by acid mine drainage from the metal mining industry. The severity of consequences as a result of releases of and exposure to hazardous substances is evident in the enormous costs associated with past and projected future actions necessary to protect public health and the environment.
Assuming mining is the first of many, what impact will this have on existing businesses, brownfield redevelopment, and an economy where cash flow is king?....
Stay tuned. This could get ugly.
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