EPA has also considered whether reductions to the financial
responsibility amount could be made by EPA, on a broader basis, to
avoid expenditure of facility resources to determine eligibility for
reductions, and reduce the burden on EPA to review each facility's
claimed reductions individually. EPA is therefore also soliciting
comment on whether the rule should also allow for EPA to conduct a
programmatic review of other regulatory requirements and their
implementation, with the objective of determining whether the reduction
criteria are met across the program in question. Such a program
deferral approach would provide for programmatic-based reductions in
situations where the program meets the requirements for deferral of
CERCLA Sec.  108(b) requirements for the full response component of the
financial responsibility formula--that is, for all facilities and all
response categories.
    Under this approach, owners and operators of facilities would not
be required to comply with the requirements to calculate a financial
responsibility amount and to obtain a financial responsibility
instrument under EPA's CERCLA 108(b) regulations after EPA determines
that a state or federal program meets certain criteria. The remainder
of the requirements of Part 320 would remain applicable at the facility
(e.g., notification to EPA, public notice requirements). Facilities
would remain subject to these other requirements in order for EPA to
monitor the regulated universe and ensure the continuing validity of
any deferral determination. EPA would be able to withdraw its
determination and impose all CERCLA Sec.  108(b) requirements if the
requirements for deferral are no longer met.
    The criteria for deferral would be designed to assure that EPA
would be able to make a program-wide determination that facilities
regulated

by a particular program would be subject to, and in compliance with,
requirements that will result in a minimum degree and duration of risk
associated with the production, transportation, treatment, storage, or
disposal of all hazardous substances present. This would involve EPA
making a determination that: (1) The federal or state program has
authority to impose all of the requirements necessary for the
reductions described in proposed 320.63(d); (2) the program would
impose those requirements on the same regulated universe subject to the
proposed rule; (3) the program ensures that each facility obtains
adequate financial assurance to ensure the other requirements will be
implemented; and (4) the requirements will be enforced to assure
compliance.
    EPA recognizes potential advantages to this approach. First,
deferral of these requirements would minimize the implementation of the
CERCLA Sec.  108(b) rule at facilities that are already subject to
programmatic requirements that, if implemented and enforced, can be
determined to result in a minimum level of risk, thereby focusing
implementation resources on the remaining universe of facilities with
less protective practices. This approach would also reduce costs for
owners and operators subject to programs that qualify for deferral of
CERCLA Sec.  108(b) requirements, as they would not have to submit
information to support the calculation of a financial responsibility
amount, or the reductions to that amount. Finally, providing for
deferral provides an incentive for programs to adopt the necessary
requirements to comply with the reduction criteria.
    At the same time, EPA recognizes several disadvantages to the
programmatic deferral approach. First, EPA is concerned that it may be
difficult for the Agency to ensure that facilities remain in compliance
with the underlying requirements, and thus ensure that the facilities
continue to present a minimum degree and duration of risk over time.
Potential problems could include the necessity for EPA to monitor
changes to permitting regimes and substantive technical requirements.
EPA is also concerned about how it could ensure that the financial
assurance actually provided by every facility under a given regulatory
regime is sufficient to ensure that the reduction criteria would be met
in practice. Without such an assurance, EPA may find it difficult to
conclude that the regulatory program requirements relied upon for the
deferral determination will result in minimum risk. This concern is
presented particularly where the determination of the amount of
financial assurance is subject to the discretion of the regulator,
instead of being identified with particularity in the terms of the
regulations. In this case, EPA is unsure how it could make a broad-
based determination that financial assurance requirements will be
sufficient, if they have potential for varying stringency in practice.
Finally, EPA is concerned that as a practical matter it may be
difficult for the Agency to withdraw a programmatic deferral once
granted, even where there is evidence that the criteria for
programmatic deferral are no longer met. Thus, EPA expects that any
deferral option would necessitate an oversight mechanism short of full
withdrawal. EPA also expects that a dispute resolution process to
resolve differences that arise among implementers would be an important
component of a programmatic deferral approach.
    It should be noted, however, that in taking this approach, EPA
would not expect to review Federal and state closure and reclamation
programs for adequacy, or to judge the quality or efficacy of those
programs. EPA's concern would be whether requirements meeting the
reduction criteria, designed for purposes of CERCLA Sec.  108(b), are
imposed and enforced at facilities, and secured with financial
assurance adequate to assure their implementation. Those questions are
separate from the question of whether the Federal or state closure
program is adequate for its intended purpose or whether the financial
assurance required is adequate financial responsibility for the purpose
of that program.
    EPA solicits comment on the programmatic deferral approach. EPA
particularly solicits comment on whether regulators would be interested
in seeking an EPA determination of programmatic deferral, whether
existing programs would qualify for programmatic deferral based on the
proposed reduction criteria, whether commenters believe EPA could
assure compliance with the proposed reduction criteria if a
programmatic deferral was implemented, how a conflict resolution
process might be developed and implemented, and how a programmatic
deferral approach might be improved.
Partial Program Deferral Approach
    EPA also solicits comment on whether to consider partial deferral
from the response component of the formula where a federal or state
program met the criteria for deferral for some but not all of the
thirteen response categories. This would result in a requirement to
calculate a financial responsibility amount and to obtain a CERCLA
Sec.  108(b) instrument, for a lower overall amount. This would not,
however, otherwise change the operation of the rule in practice. As was
discussed in section IV.D of this preamble, because the formula employs
an aggregation of individual costs to obtain an overall amount for the
facility, the individual cost components are not themselves intended to
represent any sub-limits within the actual financial responsibility
instrument--in other words, the total amount of funds would be
available for any future Superfund action anywhere across the facility,
and would not be tied to particular site features. This would remain
the case in any partial deferral approach. For example, a program might
include requirements that would satisfy the reduction criteria for the
waste pile response category but not for the open pit category. In that
situation, under this approach, owners or operators would not have to
calculate an amount for waste pile areas at their facilities, or make
the demonstrations necessary to qualify for reductions to that amount.
Those facilities would still have to calculate a financial
responsibility amount for open pit areas at their facilities, and any
other portions of the formula not subject to an EPA partial deferral
determination. The total amount of funds would be available for any
future Superfund action
    EPA sees a potential advantage to the regulated community from such
an approach, because of the timing requirements of the statute. As was
discussed in section VI.D.2 of this preamble, CERCLA Sec.  108(b)(3)
includes a statutory phasing provision that requires financial
responsibility requirements to be imposed as quickly as can reasonably
be achieved but in no event more than four years after the date of
promulgation of the final rule. Thus, EPA has included provisions in
the proposed rule reflecting this provision (Sec.  320.61). Owners and
operators will need to comply with the requirement to calculate a
financial responsibility amount and obtain a CERCLA Sec.  108(b)
instrument in accordance with the phase-in provisions of the proposed
rule, until EPA makes a final determination on deferral. EPA's ability
to make any deferral decisions (partial or complete) quickly, may in
turn depend upon the actions of another regulator to make changes to
its regulations, and/or the resources available to the Agency to
undertake the necessary reviews. A partial program

deferral approach, even if adopted on a temporary basis, may allow EPA
to make more rapid determinations on deferral requests, while federal
and state mining programs make any necessary modifications to qualify
for programmatic deferral. On the other hand, a partial deferral
approach may increase the burden on EPA to undertake multiple reviews
of many different programs.
    EPA solicits comment on this approach. EPA requests comment on any
drawbacks to allowing for partial deferral and, if the Agency were to
adopt this approach, whether this approach should be a long-term
component of the CERCLA Sec.  108(b) requirements, or whether it should
be a temporary mechanism to allow time for program modifications
necessary to comply with the reduction criteria.
Partial Reductions Within Formula Sub-Components
    Finally, EPA is also soliciting comment on whether partial
reductions should be allowed within the formula sub-components, and how
partial reductions might be structured. As was explained above, EPA is
proposing to allow for all-or-nothing reductions when all reduction
criteria are met, and when the general performance standard (and other
requirements) are met. As also explained above, one key consideration
is how to ensure that the reductions can confidently be tied to
reductions in risk in a nationally-applicable rule. Accordingly, EPA
does not expect that allowing partial reductions for a response
category amount based on partial compliance with the reduction criteria
would be appropriate, as the reduction criteria are not intended to
reflect proportional reductions in risk--rather, EPA's intent is to
establish a combined system of requirements that together, would result
in a set of conditions that result in a minimum degree and duration of
risk. Nonetheless, EPA solicits comment on whether partial reductions
should be allowed for response categories. EPA requests information
regarding how the amount of a partial reduction could be determined,
and the basis upon which EPA could apportion the reduction in risk
among the reduction criteria to assign a corresponding decrease in the
financial responsibility, while still providing assurance that the
resultant financial responsibility amount will be consistent with the
level of risk.
5. Information Submission and Recordkeeping Requirements (Sec.  320.64)
    Owners or operators are required under Sec.  320.66 to submit
information to support the calculation of financial responsibility at
their facility, and to maintain that information for a period of three
years. The information submitted must be in sufficient detail to enable
EPA to review the cost estimate and determine its adequacy.
    The Agency anticipates that the type of information can be found in
existing documents such as the owners or operator's plan of operations,
reclamation and/or closure plans, and permits. EPA solicits comment on
these reporting and recordkeeping requirements.
6. Third-party Certification (Sec.  320.65)
    EPA is proposing that elements of the calculation of the financial
responsibility amount submitted to EPA be certified by an independent
qualified professional engineer. EPA believes that this requirement
would improve the accuracy of submissions, and would thereby facilitate
implementation of the rule by requiring less review by EPA of financial
responsibility amount submissions.
    The requirements to determine a financial responsibility amount
that are proposed in Sec.  320.63 include a formula in Sec.  320.63(b)
and criteria for reducing the financial responsibility amount in Sec.
320.63(c). EPA solicits comment on the use of professional
certifications in the implementation of those requirements. EPA is
particularly interested in which elements of the formula would be best
suited to certification by an independent professional engineer, what
other independent professional certifications might be appropriate, and
whether independent professional certifications are beneficial.
    Proposed Sec.  320.65 includes the requirement that the qualified
professional engineer that certifies the financial responsibility
amount be ``independent.'' EPA is considering whether the requirement
for independence would help strengthen the certifications under this
proposal, and whether that extra level of protection is necessary in
this rule where EPA is not the permitting authority and will therefore
have less familiarity with the facility than it would in other
circumstances (e.g., RCRA closure requirements under 40 CFR part 264
and Part 265). EPA solicits comment on the proposed requirement for
independence of the qualified professional engineer, on whether a
requirement that a qualified professional engineer be independent would
strengthen the certification requirement, and on whether such a
requirement is appropriate under this proposed rule. EPA wants to
ensure that the definition of ``independent'' contribute to the
objectivity of the certifier. Thus, EPA solicits comment on criteria to
define ``independent,'' including criteria related to personal,
professional, and economic relationships between the owner or operator
and the certifier.
    Finally, EPA solicits comment on whether certification by other
professionals other than professional engineers could be incorporated
into this proposed rule to facilitate implementation. For example, EPA
has heard from states that they are using third parties to review site
features, bonding requirements, and financial documents. EPA request
comment on the experience of implementers and the regulated community
on the use of professional certifications in regulatory programs,
including the benefits and disadvantages of such an approach.
7. Continued Risk at Hardrock Mining Facilities
    Since issuing the 2009 Priority Notice, EPA has continued to gather
data and information on hardrock mines, practices, and risks associated
with classes of facilities within the industry. EPA's review of
available data indicates abundant evidence that hardrock mining
facilities continue to pose risks associated with the management of
hazardous substances at their sites. EPA reached this determination
after further identifying and analyzing various sources of data,
including: (1) CERCLA site data to better understand the types and
sources of releases that occurred at National Priority List (NPL) and
NPL-equivalent cleanups, (2) Toxics Release Inventory (TRI) and
Resource Conservation and Recovery Act (RCRA) Hazardous Waste Biennial
Report (BR) data to determine which facilities reported CERCLA
hazardous substances/hazardous wastes, (3) Emergency Response
Notification System (ERNS) to learn about the types and causes of
releases reported, and (4) numerous existing reports that evaluated
releases that occurred at hardrock mining and processing
facilities.\189\ Each of these are further discussed later in this
preamble.
---------------------------------------------------------------------------

    \189\ These databases are all available on the EPA Web site--
www.epa.gov.
---------------------------------------------------------------------------

    In developing this proposed rule, EPA also documented examples of
releases and threatened releases of hazardous substances from recent
and current mining operations. The documents developed by EPA can be
found in the docket for this rulemaking, and are discussed below.

a. Releases from Mining and Mineral Processing Facilities \190\
---------------------------------------------------------------------------

    \190\ See U.S. EPA, Office of Land and Emergency Management,
Memorandum to the Record: Releases from Hardrock Mining Facilities,
November 2016.
---------------------------------------------------------------------------

    This document discusses sources of releases at approximately thirty
recently or currently operating mines and mineral processing facilities
that had no previous significant legacy mining issues. These releases
to the environment from mining and mineral processing activities,
including tailings impoundments, waste rock piles, open pits, and leach
pads were subsequently mitigated using CERCLA or CERCLA like actions
under Federal and/or state statutory authority. Mines that have
predicted future discharges to the environment and have proposed either
preventative actions or CERCLA like mitigations also are discussed.
    Examples of releases at currently operating facilities discussed in
this document include:
    Smoky Canyon Mine/Pole Canyon Overburden Disposal Area (ODA): At
the Smoky Canyon Mine in Idaho, phosphate ore is extracted from a
series of open pits, located on the eastern slope of the Webster Range
between Smoky Canyon and South Fork Sage Creek. To extract the ore, JR
Simplot removes and disposes the overburden nearby; the Pole Canyon
Overburden Disposal Area (ODA). The Pole Canyon ODA is an external
disposal area that covers approximately 120 acres. Downstream of the
ODA, selenium concentrations in groundwater and surface water emanating
from the toe of the ODA exceed risk-based screening-level benchmarks
for human receptors (surface water and groundwater) and ecological
receptors (surface water). Removal and remedial actions are currently
ongoing at the site.
    Buckhorn Mine: The Buckhorn gold mine owned by Kinross Corp.
located in Washington has been in operation since 2007. The site is an
underground mine that includes waste rock. Water management during
spring snow melt has been a well-documented problem at the mine. In
2011 and 2012, the Buckhorn Mountain mine's groundwater capture zone
failed to contain spring rains and snow melt, resulting in contaminated
water reaching Gold Bowl Creek. Water generated in the underground mine
can carry high concentrations of heavy metals such as copper, lead and
zinc that must be captured and processed before being discharged at
approved outfalls. Violations in 2011 include allowing water discharges
causing slope instability and erosion, and for discharging water at an
unauthorized point. The mine is required to capture contaminated
groundwater from around mine excavations and tunnels and under surface
stockpiles, and pump it to a treatment plant. Since operations began at
the mine in 2007, the Washington Dept of Ecology has issued $62,000 in
penalties, six notices of violation and six administrative orders
directing the company to control stormwater, rectify groundwater
capture zone inadequacies, prevent slope failures, and comply with
permit limits for nitrates, sulfate, acidity, copper, lead, zinc and
solids from stormwater ponds.
    Florida Canyon Mine: The Florida Canyon gold and silver open pit
mine with cyanide heap leach operation, located in Nevada, has been in
operation since 1986. A groundwater plume consisting of weak acid
dissociable (WAD) cyanide, mercury and nitrate was identified on the
west side of the mine's leach pad and appeared to be related to process
solution leakage. As a result of continued contamination of groundwater
the Nevada Division of Environmental Protection (NDEP) issued a Finding
of Alleged Violation and Order in August 2012. BLM also placed the mine
in non-compliance in August 2012. The facility has identified and
mitigated groundwater contaminant sources, as well as operated and
optimized the groundwater plume pump-back system and evaluates on a
quarterly basis to verify that the plume migration has been halted, and
that groundwater cleanup is occurring.
    Jerritt Canyon: The Jerritt Canyon mine located in Nevada has been
in operation since 1981. The gold and silver mine is an open pit and
underground cyanide vat leach operation that also processes refractory
ores using both roasting and chlorination processes. Seepage from the
Tailings Storage Facility 1 (TSF-1) was detected in the alluvium in
1987. In an effort to address the seepage issue nine trench drains were
constructed along the embankment toes in 1988 to intercept and collect
seepage from the impoundment. As of January 2015, a ring of ninety
monitoring wells surrounded TSF-1, of which 76 are operational. The
facility is required to operate, maintain and monitor the Seepage
Remediation System at all times to ensure the capture of affected
groundwater, to preclude further migration, and to ensure contraction
of the overall extent of the TSF-1 seepage groundwater contaminant
plume. Contamination from TSF-1 leakage has degraded groundwater in the
immediate vicinity, including in some cases with antimony, arsenic,
cadmium, magnesium, manganese, mercury, selenium, and WAD cyanide.
Authorization by NDEP to impound tailings slurry into another tailings
storage facility (TSF-2) was granted in July 2013 and almost
immediately, the 150 gpd permitted leak detection rate was exceeded.
The facility believed that the specific cause of the exceedance was
unknown but it was assumed to be puncture(s) in the primary liner
system and/or residual meteoric waters that entered the system during
liner repairs before operation began. After several unsuccessful
attempts at addressing the leakage, the facility opted to manage TSF-2
as a single-lined facility and agreed to install vadose zone wells
outside the periphery of TSF-2.
b. Overview of Practices at Hardrock Mining and Mineral Processing
Facilities and Related Releases \191\
---------------------------------------------------------------------------

    \191\ See U.S. Environmental Protection Agency, Draft
Comprehensive Report: An Overview of Practices at Hardrock Mining
and Mineral Processing Facilities and Related Releases of CERCLA
Hazardous Substances, November 2016.
---------------------------------------------------------------------------

    EPA also gathered information on current mining and mineral
processing practices to better understand the extent to which present
day practices might have changed, determine whether currently operating
hardrock mining and processing facilities continue to release CERCLA
hazardous substances, and evaluate the present and future concerns
regarding these releases. Initial research efforts focused on
characterizing practices within each commodity sector. However,
hardrock mining encompasses multiple commodities that represent a broad
range of activities and marketable products. Through initial research
and consultation with mining experts, EPA concluded that, for the most
part, many of the mining, mineral processing, and waste management
practices that are in widespread use within the current U.S. hardrock
mining industry have a common thread regardless of the commodity. EPA
therefore concluded that rather than evaluate releases on a commodity
by commodity basis, a better approach was to focus on commonly employed
practices and, when necessary, also evaluate commodity-specific issues
and processes. EPA thus identified the following thirteen hardrock
mining, mineral processing, and associated waste management practices
for detailed evaluation: (1) Surface and underground mining; (2) non-
entry (in-situ leaching or solution) mining; (3) physical, gravity, and
magnetic processing; (4) flotation; (5)

cyanidation; (6) acid leach, solvent extraction, and electrowinning;
(7) pyrometallurgical processes; (8) Bayer process for refining
alumina; (9) ion exchange in uranium and phosphoric acid processing;
(10) mine-influenced water; (11) waste rock piles; (12) tailings
management; and (13) mining processes leaks and spills.
    For each practice, EPA gathered information including literature
reviews of technical references, academic sources, and government
publications. EPA also consulted with United States Geological Survey
(USGS) staff and mining experts. EPA focused this research and
discussions on the following topics for each practice listed earlier:
(1) Historical and current use, (2) technical description, (3)
potential sources and releases of CERCLA hazardous substances and
management practices to address those potential sources and releases,
and (4) documented releases at historical sites and currently operating
facilities.192 193 194 195
---------------------------------------------------------------------------

    \192\ See U.S. Environmental Protection Agency Region 10, EPA
and Hardrock Mining: A Source Book for Industry in the Northwest and
Alaska (Washington, DC: U.S. Government Publishing Office, 2003).
    \193\ See U.S. Environmental Protection Agency, Damage Cases and
Environmental Releases from Mines and Mineral Processing Sites,
March, 2007.
    \194\ See Mining Sites on Superfund's National Priorities List--
Past and Current Mining Practices, Van E. Housman and Stephen
Hoffman, U.S. Environmental Protection Agency, Washington, D.C.,
Published in: Proceedings, Chapter 6, Risk Assessment/Management
Issues in the Environmental Planning of Mines, Society for Mining,
Metallurgy and Exploration (SME) (September 1992), Proceedings,
Second International Conference on Environmental Issues and
Management of Waste in Energy and Mineral Production, University of
Calgary (1992).
    \195\ See U.S. EPA, Office of Land and Emergency Management,
Memorandum to the Record: Releases from Hardrock Mining Facilities,
November 2016.
---------------------------------------------------------------------------

    EPA developed a profile of historical and contemporary practices
and the environmental releases of CERCLA hazardous substances
associated with each practice. Information about historical sites was
gathered largely from Record of Decision (ROD) and Remedial
Investigation/Feasibility Study (RI/FS) documents. Information about
currently operating sites came from various EPA databases, Emergency
Response Notification System (ERNS) incident notifications, Mine Safety
and Health Administration (MSHA) records, Federal and state permit
documents, and general research.
    EPA selected a sample of the 102 historical CERCLA sites (including
both NPL and non-NPL sites at which removal actions occurred),
involving hardrock mining and primary mineral processing sites, for
additional data collection to characterize the practices and releases
of hazardous substances. Some findings of the study follow.
    Underground and surface mining create large amounts of excavated
material, with surface mining tending to generate greater amounts of
waste rock. Large-scale surface (open-pit) mining techniques generally
create a greater surface impact than underground or non-entry (e.g., in
situ leaching) mining methods. Surface mines generate dust, large piles
of waste rock, and large, usually permanent holes in the earth's
surface. The corresponding amount of waste rock and tailings being
mined and deposited is increasing as a result of large-scale mining
operations. The scale of these mining operations poses formidable
obstacles to effectively and efficiently addressing releases. Such
large scale mining operations cause a significant increase in exposure
of ore constituents to precipitation, resulting in the leaching of
hazardous substances to ground and surface waters, and to the wind,
resulting in air emissions. The Rio Tinto Kennecott Bingham Canyon
site, an open-pit copper, gold, silver, and molybdenum mine located
near Salt Lake City, Utah provides an example of the problems posed by
such large scale mining operations. As part of its operations,
Kennecott had deposited waste rock on the slopes of the nearby Oquirrh
Mountains. The waste rock dumps leached metals-rich acidic water first
through an unlined reservoir and then into a groundwater plume that
extended 72 square miles. The State of Utah took legal action against
Kennecott as a result of the contamination in 1986; as a result of a
consent decree reached in 2007, Kennecott agreed to treat the
contaminated groundwater for the next forty years.\196\
---------------------------------------------------------------------------

    \196\ See Earthworks Factsheet: Problems with Bingham Canyon
Mine, Earthworks, published 2011. Accessed December 29, 2015, at:
https://www.earthworksaction.org/files/publications/FS_Problems_BinghamCanyon_2011_low.pdf; and U.S. EPA Region 8 and
Utah Department of Environmental Quality, Five-Year Review Report:
Kennecott North Zone Superfund Site, Salt Lake County and Tooele
County, Utah (Washington, DC: U.S. Government Printing Office,
2014).
---------------------------------------------------------------------------

    Similar to practices at some mines that became NPL sites, mining is
currently performed in open pits and underground mines, both of which
may discharge acidic waters, referred to as acid mine drainage that can
result when stormwater, surface water or ground water comes in contact
with sulfur bearing minerals, creating acidic water which dissolves and
leaches toxic metals into the environment. The Formosa Mine, a former
copper, zinc and thorium mine in southwest Oregon, provides an example
of the risk posed by releases from underground mines. In this case,
storm water-driven contaminant releases from the mine have led to an
annual discharge of approximately five million gallons of acid rock
drainage, containing up to 30,000 pounds of dissolved copper and zinc,
along with other metals. One of the primary sources of these metals is
underground mine workings; low pH shallow ground water and adit
drainage to surface water, both laden with high concentrations of
metals. According to the State of Oregon, the mine has contaminated 18
miles of the Oregon's Umpqua watershed (Middle Creek and South Fork of
Middle Creek and Cow Creek)--eliminating prime habitat for the
threatened Oregon coast Coho salmon and steelhead.\197\
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    \197\ Also see: Earthworks, Modern Mining Needs a Modern Mining
Law. Available at: https://www.earthworksaction.org/library/detail/modern_mining#.V-QlSk37VD8.
---------------------------------------------------------------------------

    Dust and waste rock, produced during both open-pit and underground
mining, can release trace elements and other toxic substances. Waste
rock and overburden piles are typically stored on-site and remain an
important consideration for the environmental performance of currently
operating mines. Disposal typically involves depositing the waste rock
in dedicated dumps or piles, or in some cases using it as mine
backfill. Waste rock can also be co-disposed with filtered tailings, or
in a slurry pond. Further, releases from waste rock disposals can arise
years after operations have ceased, through discharges of mine
influenced water, and pile deformation or collapse. Thus, waste rock
disposals are often the focus of reclamation and closure plans and
require consistent and long-term maintenance, monitoring, and
potentially treatment.
    As with acid mine drainage, other mine influenced water can also be
of concern. Mine influenced water encompasses any water whose chemical
composition has been affected by mining or mineral processing. This
includes not only acid mine drainage but also drainage that is neutral
or alkaline. In addition to environmental concerns posed by acidity or
alkalinity, mine influenced water often contains elevated
concentrations of mobilized contaminants, suspended solids, or sulfate
or arsenate content. There are many potential sources of mine
influenced water, because it includes any natural waters that come into
contact with mining operations. Common sources include groundwater
affected by pits or underground workings, surface water that has
entered

surface excavations, or any precipitation that comes into contact with
pit faces, leach piles, waste rock piles, or tailings piles.
    The risk for contamination from hazardous substances originating in
waste rock depends on the mineralogy and geochemical composition of the
waste rock and its level of exposure to air and water at the disposal
site. For example, sulfide rock can generate acids that dissolve trace
elements that, without long-term containment, collection, and
treatment, pose a significant concern long after initial disposal.
Discharges can take years to develop, and pose a long-term risk of
hazardous releases at the site. Environmental issues resulting from
mine influenced water vary depending on commodity, climate, type of
mine or mineral processing facility, and mine phase. A key
characteristic for most mine influenced water (whether acidic, neutral,
or alkaline drainage) is an elevated concentration of trace elements
that have leached from surrounding solids such as waste rock, tailings,
or mine surfaces. These acidic and metal-contaminated fluids are
frequently a serious problem at mines and may be acutely or chronically
toxic and may have harmful effects on humans, fish, animals, and
plants.
    An example of such a situation is the Barite Hill/Nevada Goldfields
facility. The Barite Hill gold/silver mine located in South Carolina
was previously owned by Nevada Goldfields, Inc., who operated an open
pit cyanide heap leach operation on the property from 1989 until 1994.
Nevada Goldfields conducted mine reclamation activities from 1995 until
1999 when they went bankrupt and subsequently abandoned the property.
After the mine closed, the 10-acre Main Pit began to fill with water.
At its highest, the Main Pit contained approximately sixty million
gallons of highly acidic water with high dissolved metals content. The
main mine pit, ponds, sediment, surface water and soil are contaminated
with arsenic, cadmium, chromium, copper, lead, mercury, nickel,
selenium, silver, zinc, and cyanide. Contamination affected surface
water and sediment in Hawe Creek and its tributaries, posing a threat
to people who eat fish from the Hawe Creek fishery as well as a nearby
drinking water reservoir. When acid mine drainage occurs, it is
extremely difficult and often very expensive to control, and also often
requires costly long-term management measures.
    Mineral processing practices likewise raise significant release
issues. For example, flotation processes generate tailings that consist
of a mixture of waste material and the remaining liquid, which consists
mostly of water and any remaining reagents. These are generally pumped
to a tailings impoundment, where solids are settled out of the
solution. In some cases, reagents have the potential for environmental
harm. Although most of these reagents are consumed during flotation and
only small residual quantities make it into the tailings, facilities
might dispose of wastes from various processes in the same waste
management units, with the resulting mixture containing more hazardous
constituents than tailings from flotation alone.
    The use of cyanide in gold mining operations creates additional
risks, including the potential release of cyanide into soil,
groundwater, and/or surface waters, which has resulted in catastrophic
cyanide spills. Cyanide leaching has occurred since the mid 1900's.
While the use of acid to leach copper dumps, the use of cyanide to
leach gold in heaps, and the spread of solvent extraction techniques
have changed some aspects of mining, the basic operation of removing
ore from the ground and concentrating it through beneficiation has
remained fundamentally the same as when most of the non-active NPL
sites were in operation. In the case of heap and dump leaching, the
metals and other compounds in the ores have become more mobile due to
the increased use of efficient lixiviants. In addition to the release
of cyanide, discharges from cyanidation processes both during
operations and after closure can also contain potentially toxic
elements including lead, cadmium, copper, arsenic, and mercury.
Leaching tanks, leach pads, piping and storage facilities (e.g.,
process solution ponds and facilities associated with leaching) can
release sulfuric acid and mobilized contaminants into the environment.
These leaching solutions can pose significant environmental and human
health risks if they are not contained successfully. Information on
documented releases reveals that acid leach operations have caused
contamination of both surface and ground waters in addition to injuring
habitat and wildlife. Releases due to equipment failures, chronic
seepage, or weather-related overflows seem to be the most common
problems; acid leach operations need to ensure proper reclamation of
spent dump or heap leach piles, maintenance of equipment, and
preparation of systems for severe weather in order to minimize
environmental impacts. Cyanide leaching processes create wastes that
can present risks of releases of hazardous substances such as cyanide,
cyanide-metal complexes, and metals via groundwater and surface water
routes. In addition, sulfuric acid can leach metals from other mining
wastes and containment areas, transporting other contaminants to
surface and groundwater systems. While leaching solutions are generally
recycled back to the process, failure to contain them properly can
result in releases. After leaching has been discontinued, the abandoned
leach site can be a source of acidic effluents, hazardous trace
elements, and total dissolved solids if it is not properly monitored
and managed. Mine influenced water (e.g., acid, alkaline, or neutral
mine drainage), i.e., runoff originating from exposed heap leach piles
or tailings, is also a distinct risk associated with this practice.
    The Beal Mountain Mine, a gold and silver mine in Montana, used
cyanidation to extract precious metals until it was closed in 1997 when
Pegasus gold went bankrupt. Although the mine is no longer operating,
it has continued to pollute neighboring streams with cyanide, selenium
and copper. Ongoing issues include the geotechnical stability of the
pit high wall and leach pad dike, infiltration of precipitation and
groundwater into the leach pad, and treatment and disposal of excess
solution accumulating on the heap leach pad.\198\ This mine also
demonstrates the limitations of predicting environmental impacts of
these facilities -when this mine was permitted, the Environmental
Analysis concluded that the operation of the mine would have no impacts
to water quality, because there will be no discharge of mine or process
water to surface waters.\199\
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    \198\ See USDA-FS, Preliminary Leach Pad Investigation Beal
Mountain Mine, February 2010. Available at: http://www.fs.usda.gov/detail/bdnf/landmanagement/projects/?cid=stelprdb5076989.
    \199\ See False Promises: Water Quality Predictions Gone Wrong--
Large Mines and Water Pollution, 2012. Available at: http://wman-info.org/wp-content/uploads/2012/08/FalsePromisesWater.pdf.
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    Zortman and Landusky Mines, in Montana, likewise used cyanidation
to extract precious metals and also underwent bankruptcy and left
significant pollution at their respective sites. In addition to a heap
leach pad leak, the Zortman and Landusky facility experienced cyanide
releases from a leach pad pipe, a solution pond liner leak, and a
process pond liner leak.\200\

According to BLM, ``modern'' open pit heap leach operations began in
1977.\201\ The BLM, as the lead Federal agency, conducted removal
actions under its CERCLA authority. In response to the numerous issues
associated with cyanide leaching in Montana, the state, in 1998,
enacted a referendum banning the development of new open pits that use
cyanide leaching.
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    \200\ See U.S. Bureau of Land Management, Final Engineering
Evaluation/Cost Analysis (EE/CA) For Water Management at the Zortman
and Landusky Mines, Phillips County Montana, prepared by Spectrum
Engineering (Washington, DC: U.S. Government Printing Office, 2006).
Accessed August 28, 2015 at: http://www.blm.gov/style/medialib/blm/mt/field_offices/lewistown/zortman.Par.62509.File.dat/finaleeac.pdf.
    \201\ See Zortman and Landusky Mines--Project History, February
2006. Available at: http://www.blm.gov/style/medialib/blm/mt/field_offices/lewistown/zortman.Par.32256.File.dat/ZLbackground.pdf.
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    Releases also have occurred from other leach pad operations,
including the Barrick Goldstrike mine in Nevada, where there was a
release of 159,000 gallons of cyanide in 2003 and 21,625 gallons of
sodium cyanide in 1995. Also, the Florida Canyon mine in Nevada
released 52,500 gallons of sodium cyanide (30 percent solution) in
1996. The groundwater contamination that resulted from releases from
this facility's leach pad operation was previously discussed.
    Similar to historical releases, tailings management played a role
in roughly half of the publicly documented releases. Tailings are the
waste material created when valuable minerals or metals have been
extracted from ore. Depending on the commodity and the mineral
processing method, tailings may contain chemical residues inherent to
processing. For example, milling operations that practice flotation or
leaching may produce tailings containing reagents such as lime or
glycol ether and lixiviants including acids and cyanide. The Robinson
Nevada Mining Company operates the Robinson Operation surface mine in
White Pine County, Nevada. This facility produces gold and copper using
flotation processes. The facility released copper flotation tailings
five times in 1996, leading to violations of its water pollution
control permit.
    Tailings usually take the form of a slurry (e.g., wet tailings),
but may also undergo dewatering and disposal as paste or filtered
tailings. Depending on the commodity and the beneficiation process,
tailings may contain a variety of hazardous materials, originating from
geologic components of the ore or chemicals introduced during
processing. Therefore, they require proper disposal and storage.
    In addition to the previously discussed releases from the tailings
storage units at the Jerritt Canyon mine, there have been releases at
other tailings storage units, including: ArcelorMittal Minorca is an
iron mining and processing facility located in Virginia, Minnesota.
Three failures in the tailings and waste rock pipe and tailings dike at
the site occurred in 2013 and 2014, discharging 8,500 cubic yards of
tailings and waste rock and affecting 15.3 acres of wetlands,
potentially destroying the area's ability to function as a natural
aquatic habitat and filtration system.\202\
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    \202\ See Pipeline, Storage Basin Failures Send Ore Tailings and
Road Aggregate into Wetlands, Minnesota Pollution Control Agency,
June 24, 2015.
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    The U.S. Silver Galena mine is a silver-lead and silver-copper
underground mine located near Wallace, Idaho, and operated by the U.S.
Silver Corporation since 2007. In 2014, U.S. Silver Corporation signed
a Consent Agreement and Final Order with EPA Region 10 admitting to
discharging wastewater from the Osburn tailings pond into Lake Creek
and the Coeur d'Alene River that carried excessive concentrations of
mercury and copper in 2012 and 2013. The discharge was the result of a
failure to monitor treated water normally discharged to water system.
U.S. Silver also admitted that on March 14, 2014, it discharged
tailings slurry directly into Lake Creek.\203\
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    \203\ See U.S. Environmental Protection Agency, Consent Agree
and Final Order In the Matter of U.S. Silver--Idaho Inc., Coeur and
Galena Mines and Mills, Wallace, Idaho, effective 16 September 2014.
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    The Golden Sunlight mine located in Montana is a gold and silver
open pit mine and underground cyanide vat leach operation. This
facility's original tailing disposal facility operated from 1983 to
1995. Seepage was detected from Tailing Impoundment No. 1 in 1983. To
control effluent from the impoundment, the bentonite cut-off wall was
immediately repaired. An extensive system of monitoring wells has been
installed over the years, and several hydrogeologic investigations have
been undertaken to continue to monitor, evaluate, and control leakage
from the impoundment.
    Tailings management presents significant environmental challenges
to current mining operations. Because acid may not be generated for
many years and most tailings ponds are designed to allow infiltration
of water through the pond, the potential of acid generation and mobile
metals are of such concern that many mines construct complex monitoring
and water management systems for their tailings ponds. It is likely
that some constituents of concern (i.e., arsenic, sulfates, etc.) have
become more mobile due to crushing the ore to a smaller particle size.
Although operators now generally attempt to contain these waste
management features, proper long-term management is required to
safeguard against leaks, runoff, and catastrophic failure. Because
reclamation and closure are yet to occur at currently operating
facilities, the available data do not capture information
characterizing the scope and efficacy of these practices. Based on the
experience of currently closed sites, the environmental impacts of
releases to groundwater and runoff from tailings impoundments and waste
rock piles will continue to be of concern at these facilities long
after closure.
    Fugitive dust emissions from tailings storage units also can be a
concern. For example, Hecla Greens Creek is a lead, zinc, silver, and
gold underground mine located near Juneau, Alaska, and operated by the
Hecla Greens Creek Mining Company. The mill produces 650,000 tons of
tailings annually. In 2013, elevated concentrations of metals were
detected in the snow and lichens adjacent to the tailings disposal
facility. The USFS, who installed the lichen to act as a biomonitor of
the recently expanded tailings facility, concluded the contamination
was the result of fugitive dust emissions from the tailings.\204\
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    \204\ See United States Department of Agriculture, Forest
Service, Greens Creek Mine Tailings Disposal Facility Expansion:
Final Environmental Impact Statement and Record of Decision
(Washington, DC: U.S. Government Printing Office, 2013), Volume 1.
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    EPA recognizes various environmental regulatory programs may affect
releases of CERCLA hazardous substances at hardrock mining and mineral
processing facilities. Examples of the regulations include requirements
under: (1) The Clean Water Act (CWA), (2) the Uranium Mill Tailings
Radiation Control Act (UMTRCA), and (3) reclamation requirements such
as the BLM's 3809 regulations. However, EPA has found that significant
issues involving noncompliance with regulatory requirements resulting
in releases of hazardous substances persist. EPA's ongoing concern with
reducing the risk of mining waste contamination of drinking water,
rivers, and streams, and work to cleanup mining and mineral processing
facilities has been an enforcement priority for almost ten years, as
reflected in the Agency's National Enforcement Initiative (NEI):
Reducing Pollution from Mineral Processing Operations reflects the
Agency's concerted effort to reduce the risk of mining waste
contamination of drinking water, rivers, and streams, and work to
cleanup mining and mineral

processing facilities.\205\ The Agency's FY 2011-2013 National
Enforcement Initiatives states `At some sites, EPA's inspections have
found significant non-compliance with hazardous waste and other
environmental laws.' EPA's National Enforcement and Compliance Strategy
for Mineral Processing FY2008-2010 states `Environmental impacts caused
by the mineral processing and mining sectors are significant. The
mineral processing and mining sectors generate more wastes that are
corrosive or contain toxic metals than any other industrial sector.
Over the past decade, we have found that many of the facilities that
manage these wastes, due either to noncompliance with state or Federal
environmental requirements or legally permissible waste management
practices, have created groundwater, surface water, and soil
contamination.'
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    \205\ See U.S. EPA Office of Enforcement and Compliance
Assurance, National Program Manager Guidance, April 2015. Available
at: https://www.epa.gov/sites/production/files/2015-02/documents/oecas_draft_fy_2016-2017_national_program_manager_guidance_february_19_2.pdf.
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    EPA believes the results of this relatively recent effort to
further document the state of current mining practices substantiates
the findings from the other documents described herein and further
reinforces the Agency's belief that currently operating hardrock mining
and mineral processing facilities subject to this proposal continue to
present risks of release of hazardous substances.
c. Evidence of CERCLA Hazardous Substances and Potential Exposures at
CERCLA Sec.  108(b) Mining and Mineral Processing Sites \206\
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    \206\ See U.S. EPA, Office of Land and Emergency Management,
Memorandum to the Record: Releases from Hardrock Mining Facilities,
November 2016.
---------------------------------------------------------------------------

    The document ``Evidence of CERCLA Hazardous Substances and
Potential Exposures at CERCLA Sec.  108(b) Mining and Mineral
Processing Sites'' reports EPA preliminary efforts from 2009-2012 to
examine CERCLA site-specific documents for estimated exposures of human
and ecological receptors to CERCLA hazardous substances from mining and
mineral processing sites cleaned up under Superfund in the past. The
report also collects available information on potential exposures of
human and ecological receptors to CERCLA hazardous substances from
mining and mineral processing sites that were operational in 2009 (the
most current available data at the time the evaluation took place).
    EPA concluded the following: (1) Some of the sites operational in
2009 are already on Superfund's National Priority List (NPL) requiring
cleanup; (2) mining and mineral processing practices at sites cleaned
up under Superfund in the past continue to be used at sites operational
in 2009, especially when comparing sites that mine or process the same
range of commodities; (3) there are similarities between the
Contaminants of Concern \207\ at sites cleaned up under Superfund in
the past, and the CERCLA hazardous substances present at sites
operational in 2009; (4) human and ecological receptors at sites
cleaned up under Superfund in the past have parallel potential
receptors at sites operational in 2009; and (5) environmental settings
and exposure pathways at sites cleaned up under Superfund in the past
have corresponding environmental settings and potential exposure
pathways at sites operational in 2009.
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    \207\ A CERCLA hazardous substance found at a concentration that
a Superfund risk assessment has determined poses an unacceptable
risk to human health or the environment.
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    Overall, the compiled information demonstrates that sites requiring
cleaned up under Superfund in the past, and sites operational in 2009
share characteristics related to the potential release of CERCLA
hazardous substances and the exposure of human and ecological
receptors, and illustrates the applicability of EPA's CERCLA experience
to evaluating currently operating mines and processors.
d. Previous Studies About Releases From Hardrock Mining and Mineral
Processing Facilities
    EPA has also identified numerous documents showing recent releases
of CERCLA hazardous substances at hardrock mining and processing
facilities and thus continuing risks of release or threatened release
of CERCLA hazardous substances associated with those activities. These
documents are available in the docket for this proposed rule and
include:
Damage Cases and Environmental Releases from Mines and Mineral
Processing Sites \208\
    This document, published in 1997, presents summaries about mining
and mineral processing damage cases that occurred since 1990. Many of
the damage cases included in this document involved mining and mineral
processing of commodities covered by this proposed rule. The release
incidents occurred from the production, treatment, storage or disposal
of hazardous substances involving extraction and beneficiation
operations, including inadequate containment of tailings, clay ponds,
waste rock, process water, process solution (e.g., cyanide),
wastewater, acid mine drainage, and stormwater. Many of the releases
occurred through spills resulting from equipment failure, and operator
error while others resulted from unusually heavy rains and,
consequently, the generation of high stormwater volumes. The typical
management practices used for storage or disposal of mineral processing
secondary materials and wastes were found to have created or
exacerbated ground water contamination in the immediate area. In some
cases, a combination of feedstock, in-process materials, secondary
materials, and wastes contributed to ground water, surface water, or
soil contamination. EPA believes that this document presents a
relatively accurate description of current mining and processing
practices and the potential releases associated with these practices.
---------------------------------------------------------------------------

    \208\ See U.S. EPA 1997. Damage Cases and Environmental Releases
from Mines and Mineral Processing Sites.
---------------------------------------------------------------------------

Mining Sites on Superfund's National Priorities List--Past and Current
Mining Practices \209\
---------------------------------------------------------------------------

    \209\ See Van E. Housman and Stephen Hoffman U.S. Environmental
Protection Agency Washington D.C. Published in: Proceedings, Chapter
6, Risk Assessment/Management Issues in the Environmental Planning
of Mines, Society for Mining, Metallurgy and Exploration (SME)
(September 1992), and in: Proceedings, Second International
Conference on Environmental Issues and Management of Waste in Energy
and Mineral Production, University of Calgary (1992).
---------------------------------------------------------------------------

    This document provides an overview of the types of releases of
hazardous substances associated with the production, storage, and
disposal of hazardous substances and the associated impacts, including
NPL cleanups. It also documents that `although some mining waste
management practices have changed over time, the basic technology for
extraction and beneficiation of mineral ores have remained fairly
constant over the last fifty years.'
    This document states that mining activities at many NPL sites
resulted in the generation of tailings, acid drainage, waste dumps, and
waste rock and that these are the same types of wastes generated by
current mines. It further reports that tailings, mine water, and waste
rock are the highest volume wastes generated by all past and current
mining operations. In the case of tailings, it is likely that some
constituents (i.e., arsenic, sulfates, etc.) have become more mobile
due to crushing the ore to a smaller particle size. In the case of heap
and dump leaching, the metals and other compounds in the ores have
become more mobile due to the increased use of

efficient lixiviants (i.e., the solution used in hydrometallurgy to
assist in extracting the desired metal from ore in heap leaching, dump
leaching, and in situ leaching).
    The document also states that `many current mining operations are
extracting sulfide ores, having exhausted the less acidic oxide ores.
Therefore, the potential for environmental damage from acid mine
drainage at existing mines is possible, if favorable geologic and
climatic factors exist. There are dozens of current mining operations
with open pits or that have extensive underground tunnels are, similar
to NPL sites, located in high sulfide environments.' These current
operations continuously pump and treat groundwater that enters the pit
or mined tunnels as part of the overall mine water management system.
Some of the larger currently operating mines are not only pumping and
chemically treating mine water, they are using other control methods
such as intercepting aquifers to control water flow into the mine and
diverting entire surface streams. In many cases, once the decision is
made to divert streams and intercept aquifers, active water management
will have to continue indefinitely, long after the mine is closed.
    Finally, the document states that current mining practice is to
impound tailings behind engineered dams and attempt to control and
treat discharges to surface water and groundwater. Current design
rarely includes lining the ponds. Unlined tailings ponds are
specifically designed either to introduce water directly to groundwater
or direct it to leachate collection systems that flow into surface
ponds at the base of a dam (toe ponds). Tailings management presents
significant environmental challenges to current mining operations.
Because acid may not be generated for many years and most tailings
ponds are designed to allow infiltration of water through the pond, the
potential for acid generation and mobile metals are of such concern
that many mines construct complex monitoring and water management
systems for their tailings ponds.
    Although this document was published almost 25 years ago, EPA has
concluded that it still presents a relatively accurate description of
current mining and mineral processing practices and the potential
releases associated with these practices, as identified in the more
recent documents previously described.210 211
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    \210\ See U.S. EPA, Draft Comprehensive Report: An Overview of
Practices at Hardrock Mining and Mineral Processing Facilities and
Related Releases of CERCLA Hazardous Substances, November 2016.
    \211\ See U.S. EPA, Draft Report--Discharges from Recently or
Currently Operating Mines and Mineral Processing Facilities.
September 2016.
---------------------------------------------------------------------------

Human Health and Environmental Damages from Mining and Mineral
Processing Wastes \212\
---------------------------------------------------------------------------

    \212\ See U.S. EPA December 1995. Technical Background Document
Supporting the Supplemental Proposed Rule Applying Phase IV Land
Disposal Restrictions to Newly Identified Mineral Processing Wastes.
Damage cases used for this document were derived from previous
studies by EPA identifying human health and environmental damages
caused by mining and mineral processing waste management activities,
including: Report to Congress on Special Wastes from Mineral
Processing, July 1990; Mining Waste Release and Environmental
Effects Summaries, Draft, March 1994; Mining Sites on the National
Priorities List: NPL Site Summary Report, June 21, 1991; and Mining
Sites on the NPL, August 1995.
---------------------------------------------------------------------------

    EPA developed this document to illustrate the human health and
environmental damages caused by management of wastes from mining (i.e.,
extraction and beneficiation) and mineral processing, particularly
damages caused by placement of mining and mineral processing wastes in
land-based units, including piles, surface impoundments, and ponds as
part of its ``Phase IV'' Land Disposal Restrictions rulemaking under
the RCRA Subtitle C program. This document presents 66 mining and
mineral processing damage cases, including mining and mineral
processing of commodities covered by this proposed rule. The damage
cases demonstrate that land-based management practices for mining and
mineral processing wastes are responsible for considerable damages to
human health and the environment. These damages commonly arise from
land placement of wastes in unlined units having minimally engineered
release controls. These units include piles of slags, dusts, refractory
bricks, sludges, waste rock and overburden, and spent ore; surface
impoundments containing mill tailings and/or process wastewaters; and
heap leaching solution ponds. In addition, many, if not most of the
damage case facilities have caused human health or environmental
damages through leaks or spills, such as releases from lined management
units, valves, and pipes.
    The damage cases illustrate the wide variety of human health and
environmental impacts caused by wastes from mining and mineral
processing operations, including groundwater, surface water, and soil
contamination; human health damages or risks; and damages to
vegetation, wildlife, and other biota. As noted earlier, in more recent
documents prepared by EPA, many of the damage cases cited in this
document involved releases that EPA has concluded are still indicative
of current mining and mineral processing practices and the potential
releases associated with these practices.
e. Data Concerning Releases, Generation, and Management of CERCLA
Hazardous Substances
    EPA evaluated several databases, as follows:
(1) Releases Reported Under the Emergency Response Notification System
(ERNS)
    EPA also looked at releases of CERCLA hazardous substances reported
under the Emergency Response Notification System (ERNS). EPA considered
these data because of the potential insights the data offered on an
annual basis over a prolonged period of time--providing a means by
which to show the extent of and reasons for reported releases of CERCLA
hazardous substances by hardrock mining and mineral processing
facilities.
    ERNS primarily contains initial accounts of releases reported to
the National Response Center, made during or immediately after a
release occurs. The National Response Center receives all reports of
releases involving hazardous substances and oil that trigger Federal
notification requirements under several laws. It also should be noted
that the National Response Center is strictly an initial report-taking
agency and does not participate in the investigation or incident
response. The National Response Center receives initial reporting
information only and notifies Federal and state On-Scene Coordinators
for response.
    From the National Response Center Web site (http://www.nrc.uscg.mil/), EPA downloaded, by year, the details for each call
reporting a release--from 1990 through 2014. Although releases have
been reported to the National Response Center since 1982, the data from
1982-1989 are difficult to use because of inconsistent formats, and
missing and/or inconsistent data fields, among other problems. A more
uniform and consistent format for documenting calls was put into place
in 1990, so EPA examined National Response Center data from 1990
through 2014. For the purpose of this rulemaking, EPA only focused on
reported releases that involved CERCLA hazardous substances.\213\ The
ERNS data contains information about the material and the

quantity released, where and when the release occurred, and information
about property damage, injuries, and deaths occurring due to the
release. The ERNS data include a general Incident Type and Incident
Cause. Analyzing information from the Incident Description for each
reported release, EPA developed and assigned a more detailed
description of the incident type and cause.
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    \213\ See U.S. EPA, Extracting Useable Data from ERNS Incidents
Applicable to HRM Facilities, December 2015.
---------------------------------------------------------------------------

    EPA's analyses show that, since 1990, more than 950 reported
releases of CERCLA hazardous substances were associated with currently
operating facilities in the hardrock mining industry.\214\ Looking at
the more recent data, approximately 435 of the releases were reported
since 2000, for an average of about thirty reported releases per year
since 2000. These ERNS data provide yet another indicator of ongoing
reported releases of CECLA hazardous substances at hardrock mining and
mineral processing facilities. Many of the reported releases were due
to: (1) Damage to/overflow of pond/impoundment/pile/landfill due to
storms, (2) breaks or leaks of piping/hoses, (3) accidents/operator
error, and (4) failure or overflow of process units and storage/
treatment tanks/sumps.
---------------------------------------------------------------------------

    \214\ See U.S. EPA, Analyses of ERNS Data Applicable to HRM
Facilities, December 2015.
---------------------------------------------------------------------------

    EPA also reviewed a report that substantially relied on ERNS data
to show pipeline, seepage control and tailings impoundment failures at
operating copper porphyry mines in the U.S., and the associated water
quality impacts.\215\ This document states that `copper porphyry mines
are often associated with water pollution associated with acid mine
drainage, metals leaching and/or accidental releases of toxic
materials.'
---------------------------------------------------------------------------

    \215\ See Bonnie Gestring, U.S. Copper Porphyry Mines Report:
The Track Record of Water Quality Impacts Resulting from Pipeline
Spills, Tailings Failures, and Water Collection and Treatment
Failures (Washington, DC: Earthworks, July 2012). Available at:
https://www.fxsp0;earthworkfxsp0;saction.fxsp0;org/files/
publications/Porphyry_Copper_Mines_Track_Record&lowbar-_8-
2012.pdf.
---------------------------------------------------------------------------

(2) Analysis of Toxics Release Inventory (TRI) Data
    The Toxics Release Inventory (TRI) includes data on chemicals
(including numerous CERCLA hazardous substances) that are released,
recycled, treated, or used for energy recovery. Under TRI, releases
include air emissions, surface water discharges, underground injection
wells, and placement to land, including RCRA hazardous waste landfills
and other landfills. TRI data also show quantities transferred to
publicly owned treatment works (POTWs) and to off-site facilities. In
developing this proposal, EPA examined recent TRI data \216\ in order
to identify the types, amounts, and methods of hazardous substance
management at facilities potentially subject to the rule. EPA's 2010
through 2013 Toxic Release Inventory (TRI) data indicates that the
metal mining industry (e.g., gold ore mining, lead ore and zinc ore
mining, and copper ore and nickel ore mining) reported quantities of
onsite releases of hazardous substances, averaging nearly 1.7 billion
pounds per year. In 2013, the metal mining sector reported the largest
quantity of total disposal or other releases, accounting for 47 percent
of the releases for all industries. It also represents almost three
quarters (71 percent) of the on-site land disposal for all sectors in
2013. (See: http://www.epa.gov/toxics-release-inventory-tri-program/2013-tri-national-analysis-metal-mining.) The preliminary 2014 TRI data
likewise show nearly 1.8 billion pounds of onsite releases. Specific
hazardous substances of concern that are released into the environment
by mining facilities include: Ammonia, benzene, chlorine, hydrogen
cyanide, hydrogen fluoride, toluene, and xylene, as well as heavy
metals and their compounds (e.g., antimony, arsenic, cadmium, chromium,
cobalt, copper, lead, manganese, mercury, nickel, selenium, vanadium
and zinc).
---------------------------------------------------------------------------

    \216\ TRI is a publicly available EPA database that contains
information on a list of 581 individually listed chemicals and
thirty chemical categories that are being used, manufactured,
treated, transported, released into the environment, or recycled.
Facilities (certain regulated industries and federal facilities) are
required to annually report to TRI under the Emergency Planning and
Community Right to Know Act (EPCRA Sec.  313).
---------------------------------------------------------------------------

    More than 99 percent of these onsite releases involved surface
impoundments (e.g., tailings) and other land placement (e.g., waste
piles) not subject to RCRA Subtitle C permits.\217\ In addition to the
placement of these quantities of CERCLA hazardous substances on the
land, for the period covering 2010-2013, metal mining facilities also
reported an average of three million pounds of air releases and over
800,000 pounds of surface water discharges. Over the time period of
2010-2012, releases of hazardous substances (ranging between 425,000
pounds and 978,000 pounds) also were reported due to catastrophic or
one-time events; in 2013, nearly 194 million pounds of such releases
were reported.
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    \217\ Many of the wastes generated by mining and processing
operations, i.e., those processes that remove, concentrate, and/or
enhance values contained in ores and minerals or beneficiated ores
and minerals, have been excluded from regulation under RCRA Subtitle
C per the Bevill Amendment.
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    In the 2009 Priority Notice, EPA used Toxics Release Inventory
(TRI) data to provide an indication of the quantities of hazardous
substances that were associated with facilities in the hardrock mining
industry. Commenters objected to EPA's use of these data. Commenters
noted that releases reported to TRI encompass releases that may be
permitted under the Clean Air Act, Clean Water Act, Safe Drinking Water
Act, and RCRA Subtitle C. Thus, these commenters argued that these
releases should not be used to predict the risk of releases and
exposures to hazardous substances associated with potential
mismanagement of hazardous substances.
    EPA considered these objections to the use of these data, in
developing its data for this proposal. The Agency recognizes that a
significant portion of the TRI releases reported as air emissions and
surface water discharges are likely permitted by Federal/state
regulatory authorities. EPA also recognizes that some of the surface
impoundments, landfills, and waste piles used to manage wastes
containing these large volumes of hazardous substances might be
designed and operated to mitigate releases into the environment.
    These data provide some perspective about the number of currently
operating facilities and offer insights on the types, amounts, and
management of hazardous substances at hardrock mining and mineral
processing facilities potentially subject to this proposed rule. The
presence of such significant amount of hazardous substances, even if
subject to regulatory controls, provides some indication of the
potential for risks to result if improperly managed. In addition, EPA
previously has discussed the evidence of non-compliance with regulatory
standards. Thus, the TRI data provide relevant information on the risks
associated with hardrock mining facilities.
(3) Analysis of RCRA Hazardous Waste Biennial Report (BR) Data
    The RCRA Hazardous Waste Biennial Report (BR) contains data
reported by hazardous waste handlers and must be submitted by large
quantity hazardous waste generators and treatment, storage, and
disposal facilities every two years. Because RCRA hazardous wastes, by
statute, are designated CERCLA hazardous substances, EPA analyzed the
BR data for the 2009, 2011, and 2013 reporting cycles. These data show
the quantities of RCRA hazardous waste streams generated and how the
waste

was managed. It is important for the reader to note that many wastes
generated by mining and mineral processing operations are excluded from
RCRA Subtitle C hazardous waste regulation under the Bevill Amendment.)
    EPA found a wide variation in the quantity of hazardous waste
generated by facilities in the hardrock mining industry, including
nearly 3,000 tons in 2009, nearly 25,000 tons in 2011, and more than
13,000 tons in 2013. These generated quantities, for the most part, do
not represent actual releases to the environment but instead represent
amounts of hazardous substances produced and managed at the reporting
facilities. The sources and types of hazardous wastes generated by
these facilities are numerous and varied, including: (1) Contaminated
soil from remediation and/or past contamination; (2) contaminated soil
and debris from spills and accidental releases; (3) filters, solid
adsorbents, ion exchange resins and spent carbon from air pollution
control devices; (4) sludges, liquids, solids from cleanout of process
equipment; (5) laboratory analytical wastes; (6) spent process liquids
or catalysts, (7) removal of tank sludge, sediments, or slag; and (8)
discarding off-specification or out-of-date chemicals or products.
    To a large extent, facilities in the hardrock mining industry
ultimately transfer their RCRA hazardous wastes to offsite treatment
and disposal facilities. However, for those facilities that do treat
and dispose of hazardous wastes onsite, the potential co-mingling of
hazardous wastes with Bevill excluded wastes or non-hazardous wastes is
a concern to EPA. Indeed, EPA has determined that some facilities place
mixtures of exempt wastes (e.g. tailings) and non-exempt wastes in an
on-site waste management unit.\218\ Recently, EPA and the U.S.
Department of Justice announced a settlement with Mosaic Fertilizer,
LLC that will ensure the proper treatment, storage, and disposal of an
estimated sixty billion pounds of hazardous waste at Mosaic's
facilities in Bartow, Lithia, Mulberry and Riverview in Florida and St.
James and Uncle Sam in Louisiana. At these facilities, sulfuric acid is
used to extract phosphorus from mined phosphate rock, which produces
large quantities of a solid material called phosphogypsum and
wastewater that contains high levels of acid. EPA inspections revealed
that Mosaic was mixing certain types of highly-corrosive substances
from its fertilizer operations, which qualify as hazardous waste, with
the phosphogypsum and wastewater from mineral processing (Bevill
wastes), which is a violation of Federal and state hazardous waste
laws. The phosphogypsum piles can contain several billion gallons of
highly acidic wastewater, which can threaten human health and cause
severe environmental damage if it reaches groundwater or local
waterways. In August 2016, one of these facilities (the New Wales in
Mulberry) experienced a sinkhole, leaking 215 million gallons of
contaminated water into the Floridian aquifer.
---------------------------------------------------------------------------

    \218\ See U.S. EPA, Mineral Processing Facilities Placing
Mixtures of Exempt and Non-Exempt Wastes in On-Site Waste Management
Units, Technical Background Document Supporting the Supplemental
Proposed Rule Applying Phase IV Land Disposal Restrictions to Newly
Identified Mineral Processing Wastes, December 1995. (Note: See
EPA's Supplemental Phase IV LDR Final Rule [63 F.R. 28595-97 (May
26, 1998), which included discussion of mineral processing secondary
materials and Bevill Exclusion issues.
---------------------------------------------------------------------------

    In the 2009 Priority Notice, EPA also used BR data to show the
quantities of hazardous wastes that were associated with facilities in
the hardrock mining universe. Commenters objected to EPA's use of these
data to justify the need for financial responsibility requirements.
Specifically, commenters stated: (1) That the BR data simply show the
quantities of RCRA hazardous wastes that are generated and managed in
accordance with the RCRA Subtitle regulations. They argued that thus
these data are not an indicator of mismanagement and provide no
information concerning the degree and duration of risk associated with
the production, transportation, treatment, storage, or disposal of
hazardous substances; (2) that EPA did not discuss whether, or how
often, the generation of hazardous waste corresponds to on-site
discharges of hazardous substances, or to costly cleanups; and (3) that
the volume of hazardous waste reported on the RCRA BR may not be a
realistic indicator of risk for CERCLA Sec.  108(b) purposes. High
volume waste streams often are highly dilute aqueous wastes that are
managed in Clean Water Act wastewater treatment facilities.
    EPA recognizes that the BR data concerning volume of hazardous
waste generated and managed onsite, when considered alone, does not
provide a direct indicator of risk of release or of mismanagement of
wastes. Notwithstanding the issues pointed out by commenters, EPA
believes these data do offer insights on the types, amounts, and
management of RCRA hazardous wastes (by definition, CERCLA hazardous
substances) at hardrock mining and mineral processing facilities
potentially subject to this proposed rule.
e. Government Expenditures--Historical CERCLA Costs
    EPA conducted analysis of historical response costs at 319 hardrock
mining and processing sites on the National Priorities List (NPL) and
at non-NPL CERCLA sites. EPA used this information to help further
identify the magnitude of continuing risks from hardrock mining
facilities potentially subject to the rule. Such costs also serve as a
measure of the severity of consequences impacting human health and the
environment as a result of releases of and exposure to hazardous
substances. Specifically, the past and estimated future costs
associated with protecting public health and the environment through
what is often extensive and long-term reclamation and remediation
efforts can be substantial.
    The Agency developed a database for purposes of analysis that uses
the ``Expenditures'', ``ROD Costs'', and ``Settlements'' data derived
from CERCLIS, Integrated Financial Management System (IFMS), and Office
of Enforcement and Compliance Assurance (OECA) information resources.
These data sources for response costs included: (1) Fund expenditures
incurred at each site to date, the type of expenditure (broadly
speaking, construction versus non-construction) and the source of funds
(whether the Fund was reimbursed by the potentially responsible party
(PRP) through a ``special account''); and (2) Records of Decision
(RODs) at each site. A ROD is a document that provides the
justification for the remedial action (treatment) chosen at a Superfund
site. It also contains information concerning site history, site
description, and site characteristics. The ROD Costs database provides
a dollar estimate for each remedial action chosen at a site. Last,
information was compiled about settlements with PRPs, including ``cash
out'' funds accrued and deposits into special accounts associated with
settlements at each site.
    Following a review of the discussed data sources, EPA developed a
tailored approach that attempts to characterize the total (i.e., past
and future) response cost at each of the historical sites identified,
taking advantage of all available data sources and site
characteristics. EPA then verified and adjusted the response costs
using reports from the U.S. Government Accountability Office (GAO) and
from the Office of the Inspector General

(OIG)) that investigated past and future costs at NPL
sites.219 220
---------------------------------------------------------------------------

    \219\ See U.S. Government Accountability Office, Superfund:
EPA's Estimated Costs to Remediate Existing Sites Exceed Current
Funding Levels, and More Sites Are Expected to Be Added to the
National Priorities List. Report No. GAO-10-380. May 2010 (the GAO
Report).
    \220\ See Office of Inspector General, Nationwide Identification
of Hardrock Mining Sites. Report No. 2004-P-00005. March 31, 2004
(the OIG Report).
---------------------------------------------------------------------------

    In considering the total remediation and other expenditures
experienced at these sites (including both past and projected future
expenditures necessary to complete cleanup), EPA estimates that the
historical response costs total $12.9 billion at 243 hardrock mining
and minerals processing facilities evaluated for which data were
available at the time of the analyses. The estimate of response costs
for just 117 NPL sites from the sample totals more than $12 billion, or
an average of more than $103 million per site. Federal expenditures to
date total roughly one-third of the total (or $4 billion), paid for
through EPA's Superfund program. Such significant cleanup costs may be
considered as an indication of the relative risks present at these
sites, and the potential magnitude of environmental liabilities
associated with this industry overall. It should be noted that this
data does not capture funds spend cleaning up hardrock mining
facilities outside of the Superfund program (e.g., by a state cleanup
authority).
    Costs associated with ATSDR Health Assessments and Natural Resource
Damages further increase the liabilities attributable to the hardrock
mining and mineral processing sectors. EPA identified documented
natural resource damages settlements at 64 sites within this sector.
This statistic alone suggests that as many as 25 percent of CERCLA
sites in this sector have also been the source for associated damages
to natural resources. Based on the natural resource damages cases
identified, the values of the damages average more than $16 million
across all of the cases, with individual settlements ranging from
$32,000 to over $400 million.
f. EPA's Conclusions Regarding Risks Posed by Facilities in the
Hardrock Mining Universe
    Information available to EPA indicates strongly that the hardrock
mining industry continues to present risks associated with the
production, transportation, treatment, storage, and disposal of
hazardous substances. Mining activities at many NPL sites resulted in
the generation of tailings, acid drainage, waste dumps, and waste rock;
these are the same types of wastes generated by current mines. In many
cases, releases were largely due to the direct discharge of wastes into
the local environment or minimal containment efforts. For example, the
P4/Monsanto-South Rasmussen facility, operating near Soda Springs in
southeast Idaho, discharged wastewater containing high concentrations
of selenium and heavy metals from a waste rock dump at the mine without
a required permit. Further, P4's unpermitted discharges, which
contained selenium levels far above Idaho's state water quality
standards, polluted a nearby wetland and an unnamed tributary of Sheep
Creek, as well as downstream waters that drain to the Snake River. P4
agreed to pay a $1.4 million civil penalty for alleged Clean Water Act
violations and to continue collecting selenium-contaminated leachate
from the waste rock pile and to prevent leachate from entering nearby
creeks and wetlands until such time as the company either obtains a
National Pollution Discharge Elimination System permit, or it
undertakes a restoration of the waste rock dump under another state or
Federal order.
    Additionally, many releases described in publicly available
information occurred after closure of the mine or mineral processing
site, suggesting that the potential for releases and adequate
monitoring remains a long-term concern after closure of the mining or
mineral processing operation.
    While some mining waste management practices have changed over
time, the basic technologies for extracting and processing of mineral
ores have remained fairly constant over approximately the last 50
years. Mining technology has become more efficient over time in
recovering mineral values--allowing lower grade ores to be mined which
produce more waste. At the same time, a combination of economic and
technological factors have increased the scale of surface disturbance
and waste generation. Mining and mineral processing facilities generate
more toxic and hazardous waste than any other industrial sector.
    Underground and surface mining create large amounts of excavated
material. Disposal typically involves depositing the waste rock in
dedicated dumps or piles, or in some cases using it as mine backfill.
Waste rock can also be co-disposed with paste or filtered tailings, or
in a slurry pond. Waste rock and overburden piles are typically stored
on-site, which may result in acidic or other mine-influenced water.
Common sources include groundwater affected by pits or underground
workings, surface water that has entered surface excavations, or any
precipitation that contacts pit faces, leach piles, waste rock piles,
or tailings piles. Sulfide rock can generate acids that dissolve trace
elements which, without long-term containment, collection, and
treatment, pose a significant concern long after initial disposal.
    Further, releases from waste rock disposal can arise years after
operations have ceased, through discharges of mine influenced water,
and pile deformation or collapse. Most mines require ongoing management
for acidic drainage. Evidence has shown that such problems continue to
be a problem even at sites that have been inactive for more than a
century. Thus, discharges can take years to develop, and pose a long-
term risk of hazardous releases at the site.
    EPA's research indicates that all processing of ore, including
physical and magnetic processing, can result in spills of intermediate
material and waste. This is because transport within the facility of
the many different commodities and process chemicals used in hardrock
mining activities is required between subsequent processing steps, thus
resulting in risk of release. In addition, where operators use toxic
process chemicals, the potential for harm associated with these spills
is increased. Similarly, ore must be transported from the extraction
site to the mineral processing facility. Process water and solutions
are often stored in ponds on site for use and recycling. Slurries are
piped from mill facilities to storage facilities (which can include
waste management features such as tailings ponds) by pipeline, truck,
or conveyor. The slurry, containing ore and process chemicals, can
contain mobilized contaminants and other hazardous substances. EPA has
documented that leaks also often occur due to liner failures,
containment failures during transport or at exchange points (e.g.,
conveyor drop points or truck offloads), and defects in pipe seams. EPA
has also documented that operator error, such as mishandling of
solutions (e.g., over-fills) or equipment, and severe weather events
that overwhelm containment systems can contribute to these types of
releases.
    Finally, information available to EPA indicates that potential
risks posed by hardrock mining and mineral processing facilities can
affect all environmental media. Air, land, and water contamination may
result when waste rock dumps, tailings disposal facilities and open
pits are not maintained properly and release hazardous

substances to the environment.\221\ EPA has also documented that
releases of CERCLA hazardous substances have occurred and continue to
occur, including ongoing releases that have not yet been detected and/
or mitigated.
---------------------------------------------------------------------------

    \221\ See U.S. EPA. 2004. Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends. EPA 542-R-04-015. Accessed at: http://www.epa.gov/tio/pubisd.htm.
---------------------------------------------------------------------------

VII. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review.
Any changes made in response to OMB recommendations have been
documented in the docket. The EPA prepared an analysis of the potential
costs and benefits associated with this action. This analysis,
Regulatory Impact Analysis, is available in the docket. Section I.C. of
this preamble summarizes the results of the RIA. As discussed in that
section of the preamble, on annualized basis, the estimated regulatory
costs to private entities for the two options in the proposed action
are $171 million (without a financial test), and $111 million (with a
financial test). EPA also segregated the costs borne by private
entities into social cost (borne by society) and intra-industry
transfers. The majority of the industry costs represent a transfer from
the regulated industry to the financial industry, and hence the
quantified annualized net social costs are estimated at $30 million to
$44 million. Similarly, the Agency conducted a qualitative analysis of
the benefits of the rule; however, the results were not monetized. As
such, the net benefit-cost analysis of the two options may have an
annual effect on the economic near $100 million or more. Accordingly,
EPA submitted this action to the OMB for review under Executive Order
12866, and plans to incorporate changes in response to OMB
recommendations on the proposal rule.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have
been submitted for approval to the OMB under the PRA. The ICR document
that the EPA prepared has been assigned EPA ICR number 2554.01. You can
find a copy of the ICR in the docket for this rule, and it is briefly
summarized here.
    The proposed rule would require that owners or operators of
facilities subject to the rule submit information to EPA. This ICR
addresses the following proposed information requirements that are part
of the rule: (1) Submit an initial Notification Form to EPA within
thirty days of the effective date of the regulation; (2) make relevant
information available to the public on the company's website; (3)
calculate financial responsibility amount and submit information to
support the calculation to EPA; (4) submit evidence that support the
establishment of financial responsibility; (5) update financial
responsibility amount at minimum every three years and submit evidence
of proper maintenance of financial responsibility; (6) notify EPA when
the owner or operator and the issuer of financial instruments enter
Chapter 11 bankruptcy proceedings; (7) notify EPA of any claim pursuant
to CERCLA naming the owner, operator, or guarantor as defendant; (8)
notify EPA when the facility is no longer authorized to operate or the
date by which the owner or operator must provide notification that the
facility is ceasing operations under another regulatory program; and
(9) maintain a record of all of the information related to financial
responsibility requirements and retain those records for three years
after the owner or operator released from financial responsibility
requirements.
    EPA believes that submission of the information would be needed for
effective implementation of CERCLA Sec.  108(b) requirements. By
requiring the owner or operator to submit information about the
facility to EPA, these requirements would better enable the Agency to
assure full compliance with the requirements for financial
responsibility throughout the time the facility is subject to those
requirements.
    As discussed in section VI.A.3. of this preamble, some element of
the information required for submission under this proposed rule may be
claimed as proprietary business information or trade secrets. As
described in that section, the proposal would not require or provide
for posting of this sensitive information. However, the Agency expects
that much of the information submitted to EPA under the proposal could
be made available.
    Respondents/affected entities: Hardrock Mining Industry.
    Respondent's obligation to respond: Mandatory, pursuant to CERCLA
Sec. Sec.  104, 108, and 115, 42 U.S.C. Sec. Sec.  9604, 9608, 9615.
    Estimated number of respondents: 221.
    Frequency of response: One to three times (the first three years).
    Total estimated burden: 7,057 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $490,504 (per year), includes $12,532
annualized capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden to EPA. This information should be
submitted to the docket for tis proposed rule (Docket No. EPA-HQ-SFUND-
2015-0781). You may also send your ICR-related comments to OMB's Office
of Information and Regulatory Affairs via email to
<EMAIL_ADDRESS>Attention: Desk Officer for EPA. Since OMB
is required to make a decision concerning the ICR between thirty and
sixty days after receipt, OMB must receive comments no later than
February 10, 2017. EPA will respond to any ICR-related comments in the
final rule.

C. Regulatory Flexibility Act (RFA)

    Pursuant to section 603 of the RFA, EPA prepared an initial
regulatory flexibility analysis (IRFA) that examines the impact of the
proposed rule on small entities along with regulatory alternative that
could minimize that impact. The complete IRFA is available for review
in the docket and is summarized here.
1. Why EPA is Considering This Action
    A series of studies and reviews conducted by the EPA Office of
Inspector General (OIG) and the Government Accountability Office (GAO)
from 2004 through 2008 demonstrated that the hardrock mining industry
presented a risk to EPA and taxpayers with respect to the amount of
cleanup costs for which they would be responsible. Information
available to EPA indicates strongly that the hardrock mining industry
continues to present risks associated with the production,
transportation, treatment, storage, and disposal of hazardous
substances. In accordance with CERCLA Sec.  108(b) and in response to
these concerns, EPA is publishing the proposed rule that would create a
financial responsibility program in CERCLA.

2. Objectives of, and Legal Basis for, the Proposed Rule
    The proposed rule endeavors to increase the likelihood that owners
and operators will provide funds necessary to address the CERCLA
liabilities at their facilities, thus preventing the burden from
shifting to the taxpayer. In addition, the rule would provide an
incentive for implementation of sound practices at hardrock mining
facilities that would decrease the need for future CERCLA actions.
3. Estimate of the Number of Small Entities To Which the Proposed Rule
Would Apply
    For purposes of assessing the impacts of this regulation on small
entities, a small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR part
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    For the purposes of this analysis, EPA identified approximately 221
mines/processing facilities in the potentially regulated universe; of
these, 53 facilities are estimated to have a small owner (including
joint ventures), corresponding to 43 firms. Twelve additional mines
have owners of unknown size (due to lack of available company data).
Most (38) of these 53 facilities engage in mining/extraction; 15
facilities engage in processing/refining only.
    Depending on the specific NAICS code of the owner, the
determination of ``small entity'' status depends on either the revenue
or the number of employees of the firm. The minimum threshold for
revenue in the relevant NAICS codes ranges from $11 million to $36.5
million. The employment qualifications ranges from 100 employees to
1,500 employees. Table C-1 lists summary information on the small
entity universe.

                                                               Table C-1--Summary of Small Business Statistics (Company Revenues)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                SBA small business size
                                               standard (as of February                                                                            Number of small firms   Number of small firms
                                                         2016)                                        Average  annual       Average  number of         facing annual           facing annual
       NAICS code              Industry       --------------------------  Number of small firms     revenues of  small      employees  of small    compliance costs >1%    compliance costs >3%
                                                 Revenues                                           firms  ($Millions)             firms                 (Median)*               (Median)*
                                               ($millions)   Employees
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
211111.................  Crude Petroleum and   ...........         1250  1......................  $61...................  194...................  1.....................  0-1.
                          Natural Gas
                          Extraction.
212210.................  Iron Ore Mining.....  ...........          750  1......................  100...................  475...................  1.....................  0-1.
212221.................  Gold Ore Mining.....  ...........         1500  10.....................  96....................  261...................  6-7...................  5-6.
212234.................  Copper Ore and        ...........         1500  5......................  22....................  80....................  5.....................  4.
                          Nickel Ore Mining.
212291.................  Uranium[dash]Radium[  ...........          250  2......................  15....................  48....................  1.....................  0-1.
                          dash]Vanadium Ore
                          Mining.
212392.................  Phosphate Rock        ...........         1000  <1.....................  <1....................  6.....................  1.....................  1.
                          Mining.
212393.................  Other Chemical and    ...........          500  1......................  <1....................  3.....................  1.....................  1.
                          Fertilizer Mineral
                          Mining.
212399.................  All Other             ...........          500  3......................  329...................  173...................  2.....................  2.
                          Nonmetallic Mineral
                          Mining.
213114.................  Support Activities           20.5  ...........  2......................  <1....................  7.....................  2.....................  2.
                          for Metal Mining.
213115.................  Support Activities            7.5  ...........  1......................  <1....................  2.....................  1.....................  1.
                          for Nonmetallic
                          Minerals (except
                          Fuels).
236115.................  New Single-family            36.5  ...........  1......................  8.....................  10....................  1.....................  0.
                          Housing
                          Construction
                          (Except For-Sale
                          Builders).
238910.................  Site Preparation               15  ...........  2......................  2.....................  100...................  2.....................  1.
                          Contractors.
325180.................  Other Basic           ...........         1000  2......................  168...................  295...................  0-1...................  0.
                          Inorganic Chemical
                          Manufacturing.
325312.................  Phosphatic            ...........          750  1......................  47....................  315...................  1.....................  0-1.
                          Fertilizer
                          Manufacturing.
327992.................  Ground or Treated     ...........          500  2......................  32....................  111...................  2.....................  1.
                          Mineral and Earth
                          Manufacturing.
331313.................  Alumina Refining and  ...........         1000  1......................  2.....................  550...................  1.....................  1.
                          Primary Aluminum
                          Production.
331410.................  Nonferrous Metal      ...........         1000  1......................  13....................  83....................  1.....................  0.
                          (except Aluminum)
                          Smelting and
                          Refining.
331491.................  Nonferrous Metal      ...........          750  1......................  34....................  500...................  1.....................  1.
                          (except Copper and
                          Aluminum) Rolling,
                          Drawing and
                          Extruding.
423520.................  Coal and Other        ...........          100  1......................  15....................  54....................  0.....................  0.
                          Mineral and Ore
                          Merchant
                          Wholesalers.
522390.................  Other Activities             20.5  ...........  1......................  <1....................  1.....................  1.....................  1.
                          Related to Credit
                          Intermediation.
551112.................  Offices of Other             20.5  ...........  2......................  <1....................  2.....................  2.....................  2.
                          Holding Companies.
561499.................  All Other Business             15  ...........  1......................  <1....................  1.....................  1.....................  1.
                          Support Services.
561990.................  All Other Support              11  ...........  1......................  <1....................  2.....................  1.....................  1.
                          Services.
Unknown................  Unknown.............  ...........  ...........  Up to 12 additional....  Unknown...............  Unknown...............  Up to 12 additional     Up to 12 additional
                                                                                firms.                  firms.
                                                           -------------------------------------------------------------------------------------------------------------------------------------
    TOTAL..............  ....................  ...........  ...........  44 to 56 firms.........  ......................  ......................  35 to 49 firms........  25 to 42 firms.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    As required by section 609(b) of the RFA, EPA convened a Small
Business Advocacy Review (SBAR) Panel to obtain advice and
recommendations from small entity representatives that potentially
would be subject to the rule's requirements. The SBAR Panel evaluated
the assembled materials and small-entity comments on issues related to
elements of an IRFA. A copy of the full SBAR Panel Report is available
in the rulemaking docket.
    The SBAR Panel recommended that EPA:
    (1) Solicit comment on whether to provide for programmatic-based
deferral of the requirement for owners and operators of facilities to
calculate an individual financial responsibility amount and to obtain a
financial responsibility instrument in situations where all facilities
regulated by a particular Federal or state mining program could qualify
for reductions for the full response component of the financial
responsibility formula--that is, for all response categories, and at
all facilities.
    (2) propose to allow reductions to the financial responsibility
amount applicable at facility for future requirements that are
enforceable against the owner and operator, that are supported by
adequate financial assurance, and with which the owner and operator are
in compliance, and solicit comment on allowing reductions to the
financial responsibility amount for other risk-reducing practices and/
or controls (e.g., voluntary practices) that are implemented at
hardrock mining facilities that should be accounted for in the
reductions, and on how, if reductions were allowed for such practices
and/or controls, EPA could assure that those controls would remain in
place and be effective over time where there is no regulatory program
overseeing their maintenance and operation.
    (3) provide in the rule discussion and solicitation of comment on
the impact of the financial test on small businesses. The discussion
and solicitation of comment should consider whether making a financial
test available would increase the available capacity for third-party
instruments in the marketplace and increase the availability of such
instruments to owners or operators of small businesses and/or whether
it would create a competitive disadvantage for small business, and
solicit comment on those concerns.
    (4) solicit comment on all aspects of the proposed financial
responsibility formula, including comment on specific elements of the
formula such as the robustness of the regression analyses,
identification and treatment of influential data points (i.e. potential
outliers), the use and calculation of the individual smear factors, and
the assumption of source controls.
    (5) solicit comment on the criteria used to identify lower-level of
risk of injury classes in the proposed rule, and whether it would be
feasible and appropriate to identify additional classes as presenting a
lower level of risk of injury, particularly classes of mines that
differ in their operations and associated risks from more traditional
hardrock mines, and on whether such classes of mines, defined based on
facility characteristics, could potentially encompass iron ore,
phosphate, and uranium mines.
    (6) request comment on whether more alternate or more flexible
engineering standards can substitute for some or all of the numeric
engineering standards in the proposed reduction criteria (e.g. planning
for a 200-year storm event, reduction of net precipitation by 95
percent), on whether the proposed reduction criteria would limit
flexibility necessary for innovative or different site-specific
approaches and, if so, how those might be preserved, and on whether
other regulatory programs already impose the requirements that would
satisfy the reduction criteria.
    EPA revised the rule to include in Sec.  320.63 a proposal to allow
reductions to the financial responsibility amount applicable at
facility for future requirements that are enforceable against the owner
and operator, that are supported by adequate financial assurance, and
with which the owner and operator are incompliance. These reductions
are described in section VI.D.4. of this preamble. EPA also solicited
comment on most of the areas recommended by the Panel.
4. Projected Reporting, Recordkeeping, and Other Compliance
Requirements of the Proposed Rule
    EPA estimates industry costs for the owner/operator companies that
are unable to utilize a self-insurance option under the proposed rule
as the resources expended and/or foregone to obtain a third-party
financial responsibility instrument. Additional administrative and
recordkeeping costs to industry include reading the regulations,
submitting initial facility information to EPA and the public,
calculating financial responsibility amounts, choosing a financial
responsibility instrument, acquiring and maintaining a financial
responsibility instrument, recalculating financial responsibility
amounts to reflect any changes in facility operations, and any
functions the rule requires of owners and operators upon the transfer
of a facility, owner or operator default, a CERCLA claim against the
owner or operator, and release from financial responsibility.
    As described earlier, EPA began its assessment of the impact of
regulatory options on small entities by first estimating the number of
small entities owning hardrock mining facilities that would be subject
to the proposed rule. EPA then assessed whether these small entities
would be expected to incur costs that constitute a significant impact;
and whether the number of those small entities estimated to incur a
significant impact represent a substantial number of small entities.
    To assess whether small entities' compliance costs might constitute
a significant impact, EPA averaged the annualized compliance costs as a
percentage of entity revenue (cost-to-revenue test). EPA compared the
resulting percentages to impacts criteria of one percent and three
percent of revenue. Small entities estimated to incur compliance costs
exceeding one or more of the one percent and three percent impact
thresholds were identified as potentially incurring a significant
impact.
    Table C-1 shows that 35 to 49 small entities may face an average
annual compliance cost of greater than the one percent of revenues.
Similarly, 25 to 42 small entities may experience impact on revenues
above three percent. The results of the impacts analysis do not vary
significantly between the two regulatory options. However, impacts are
generally lower under Option 2 due to the lower compliance costs when a
financial test is available.
    These results may suggest that a significant number of small
entities expected to incur annualized cost of more than the three
percent of the revenue thresholds. However, because of data
limitations, the screening level analysis relied upon estimated
financial responsibility amounts for each facility based on facility
type, rather than actual size and nature of operations. Further,
reliable and current revenues information for small, private firms was
not readily available. As a result, these results are not suggestive of
impacts for any specific company or entity.
5. Related Federal Rules
    These are the only financial responsibility requirements for non-
transportation related facilities pursuant to CERCLA.

6. Description of Alternatives to the Proposed Rule
    The Agency considered alternatives to provisions of this rule.
Those alternatives are discussed in section VII.K. of this preamble.

D. Unfunded Mandates Reform Act (UMRA)

    This action contains a Federal mandate under UMRA, 2 U.S.C. 1531-
1538, that may result in expenditures of $100 million or more for
state, local and tribal governments, in the aggregate, or the private
sector in any one year. Accordingly, EPA has prepared a written
statement required under section 202 of UMRA. The statement is included
in the docket for this action and briefly summarized here.
    The RIA estimates the rule may affect 221 hardrock mining and
processing facilities. EPA estimates that the regulation will have
aggregate annual compliance costs ranging from $111 million to $171
million to the private sector. A detailed assessment of the anticipated
costs and benefits (presented qualitatively) of the Federal mandate is
provided in the RIA.
    In accordance with UMRA Sec.  205, EPA is proposing a range of
regulatory options. The options can be summarized as: (1) A financial
responsibility regulation that allows for a financial test, and (2) a
financial responsibility regulation that does not allow for a financial
test. These options are all considered to be technologically feasible
and economically achievable.
    This action is not subject to the requirements of Sec.  203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments.
E. Executive Order 13132: Federalism
    EPA believes that this action will not have federalism implications
as defined by agency policy for implementing Executive Order 13132,
entitled ``Federalism.''
    Earlier in the development of this proposed rule, EPA projected
that the CERCLA Sec.  108(b) rules would have federalism implications
under the terms of Executive Order 13132, and EPA planned certain
outreach activities accordingly. As discussed in Section IV of this
preamble, EPA spent significant time and effort gathering and
evaluating information on regulated entities and considering various
approaches to structuring the proposed rule. EPA also considered as
part of this the potential relevance of CERCLA Sec.  114(d). In light
of further development of the proposed rule and its resultant analysis
of the question of federalism implications as explained below, EPA has
come to expect that this action does not, in fact, have federalism
implications. Regardless of this determination on the applicability of
the Executive Order, EPA nonetheless engaged its intergovernmental
partners in the same pre-proposal outreach activities expected under
the Executive Order.
    As part of the regulatory impact analysis, EPA analyzed the CERCLA
Sec.  108(b) proposed rule's potential for federalism implications as
defined in the Executive Order to include regulations that have
``substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.'' EPA
typically considers a policy or regulation to have federalism
implications if it results in the expenditure by State and/or local
governments in the aggregate of $25 million or more nationally in any
one year, or if the policy or regulation results in preemption, whether
by intent or effect, of State of local government law. The proposed
CERCLA Sec.  108(b) rule does not impose requirements on, nor is
expected to result in significant expenditure by, state and/or local
governments. Further, as discussed in Section V of the preamble, EPA
does not believe that CERCLA Sec.  114(d) gives a preemptive effect to
EPA's CERCLA Sec.  108(b) financial responsibility regulations over
state reclamation bonding requirements.
    In any case, this proposed rule is of significant interest to state
and/or local governments. Therefore, consistent with the EPA's policy
to promote intergovernmental communication and cooperation, and in
response to the considerable interest shown by states prior to and
during the development of this action, EPA engaged in extensive pre-
proposal consultation, under the auspices of Executive Order 13132, to
ensure that our state and local partners would have the opportunity to
provide meaningful and timely input into its development. EPA also
anticipates additional state and local government input in response to
the proposed rule. In this regard, EPA is interested in receiving
information on any state hazardous substance response program(s) that
require demonstrations of financial responsibility for claims made and
that states believe could be preempted by this proposal. EPA is
committed to continued interactions with the states before promulgating
any final rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175 (Executive Order 13175). Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments,\222\
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' EPA believes that any tribal
impacts from this regulation will be limited, because no tribal
governments own or operate facilities in the potentially regulated
universe.
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    \222\ See 65 FR 67249, November 9, 2000.
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    Earlier in the development of this proposed rule, EPA projected
that the CERCLA 108(b) rules would have tribal implications and EPA
planned certain outreach activities accordingly. As discussed in
Section IV of this preamble, EPA spent significant time and effort
gathering and evaluating information on regulated entities and
considering various approaches to structuring the proposed rule. In
light of further development of the proposed rule and its resultant
analysis of the question of tribal implications as explained below, EPA
has come to expect that this action does not, in fact, have tribal
impacts. Regardless, EPA held early engagement with tribal governments
as guided by EPA Policy on Consultation and Coordination with Indian
Tribes.
    To assess the impact on tribal governments, EPA identified tribal
lands and associated tribes that overlap with the ``included'' universe
of currently operating facilities potentially subject to the CERCLA
Sec.  108(b) rulemaking. Relevant tribal lands were identified through
a GIS dataset available from the U.S. Census Bureau.\223\ This dataset
included the following legal and statistical entities: Federally
recognized American Indian reservations and off-reservation trust land
areas; \224\ State-recognized

American Indian reservations; Hawaiian home lands (HHLs); Alaska Native
village statistical areas (ANVSAs); Oklahoma tribal statistical areas
(OTSAs); Tribal designated statistical areas (TDSAs); and State
designated tribal statistical areas (SDTSAs).
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    \223\ See U.S. Census Bureau. (2014). ``TIGER/Line Shapefile,
2014, Series Information File for the Current American Indian/Alaska
Native/Native Hawaiian Areas National (AIANNH) National Shapefile.''
Accessed at: https://catalog.data.gov/dataset/tiger-line-shapefile-2014-series-information-file-for-the-current-american-indian-ala.
    \224\ The Census Bureau defines off-reservation trust land as
``areas for which the United States holds title in trust for the
benefit of a tribe (tribal trust land) or for an individual American
Indian (individual trust land). Trust lands can be alienated or
encumbered only by the owner with the approval of the Secretary of
the Interior or his/her authorized representative. Trust lands may
be located on or off a reservation; however, the Census Bureau
tabulates data only for off-reservation trust lands with the off-
reservation trust lands always associated with a specific federally
recognized reservation and/or tribal government.''
    See U.S. Census Bureau. ``Geographic Terms and Concepts--
American Indian, Alaska Native, and Native Hawaiian Areas.''
Accessed August 21, 2015 at: https://www.census.gov/geo/reference/gtc/gtc_aiannha.html.
---------------------------------------------------------------------------

    To estimate the physical extent of the facilities, buffers of
varying sizes were projected around these coordinates in ArcGIS. Half
mile, one-mile, and ten-mile buffers were projected around each set of
coordinates. The number of facilities overlapping tribal lands varied
considerably depending on the size of the buffer used: with the half-
mile buffer, four facilities overlapped three tribal land areas; with
the one-mile buffer, six facilities overlapped four tribal land areas;
and with the ten-mile buffer, 35 facilities overlapped 38 tribal land
areas. A complete list of the facilities and tribes that fall within
these buffers is presented in the RIA.
    EPA has concluded that this action will have limited tribal
implications to the extent that the facilities in its regulated
universe are located close to tribal lands. As no tribal governments
own or operate any of the regulated facilities, and therefore will not
incur any direct compliance costs as a result of the proposed rule,
Executive Order 13175 does not apply to this rule.
    Although Executive Order 13175 does not apply, the EPA consulted
with tribal officials during the development phase of the proposed
rule, consistent with the EPA Policy on Consultation and Coordination
with Indian Tribes. In early June 2016, EPA sent letters to all
federally recognized Indian tribes, notifying them of the opportunity
to provide input to the proposed rule during the consultation and
coordination period. EPA conducted tribal outreach activities including
a tribal webinar on June 22, 2016, and conference calls with the
National Tribal Caucus on August 3, 2016, and the Great Lakes Fish and
Wildlife Commission on August 8, 2016. EPA also participated in the
Tribal Lands and Environment Forum from August 15-18, 2016, where
several tribal leaders expressed interest in the proposed rulemaking.
The EPA also intends to hold a second round of consultation and
coordination with tribal officials aligned with the public comment
period for the proposed rule. EPA also intends to summarize comments
and input received from both consultation and coordination periods with
the final action.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    This action is not subject to Executive Order 13045 because EPA
does not expect the environmental health risks or safety risks
addressed by this action present a disproportionate risk to children.
EPA expects that by adjusting the amount of financial responsibility to
account for environmentally safer practices, the proposed rule would
provide an incentive for implementation of sound practices at hardrock
mining facilities and thereby decrease the need for future CERCLA
actions. To the extent that environmental conditions surrounding mine
sites improve following this rule, the children living in close
proximity to mining facilities are likely to benefit. To assess the
proportional distribution of the benefits of the proposed rule, EPA
prepared an analysis of the demographic characteristics of populations
surrounding hardrock mining site to identify the number and proportion
of children living in close proximity to these sites. This analysis is
presented in the Regulatory Impact Analysis (RIA), which is available
in the docket.
    As discussed in the RIA, of the 775,000 people living within one
mile of regulated facilities, approximately 188,000 or 24.3 percent,
are under the age of 18. Nationwide, approximately 23.5 percent of the
population is under the age of 18. To the extent that environmental
conditions surrounding mine and mineral processor sites improve
following this rule, the children living in close proximity to mining
facilities are likely to benefit.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,