[Federal Register Volume 83, Number 35 (Wednesday, February 21, 2018)]
[Rules and Regulations]
[Pages 7556-7588]
[FR Doc No: 2017-26514]

Vol. 83

Wednesday,

No. 35

February 21, 2018

Part II

 Environmental Protection Agency

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40 CFR Part 320

Financial Responsibility Requirements Under CERCLA Section 108(b) for
Classes of Facilities in the Hardrock Mining Industry; Final Rule

Federal Register / Vol. 83 , No. 35 / Wednesday, February 21, 2018 /
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 320

[EPA-HQ-SFUND-2015-0781; FRL-9971-50-OLEM]
RIN 2050-AG61

Financial Responsibility Requirements Under CERCLA Section 108(b)
for Classes of Facilities in the Hardrock Mining Industry

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
announcing its decision to not issue final regulations on its proposed
regulations for financial responsibility requirements applicable to
hardrock mining facilities that were published on January 11, 2017.
    This decision is based on the record for this rulemaking. This
final rulemaking is the Agency's final action on the proposed rule.

DATES: This final action is effective on March 23, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-SFUND-2015-0781. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available
electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Office of Resource Conservation and
Recovery, Mail Code 5303P, Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; Barbara Foster, (703)
308-7057, [email protected]; or Michael Pease,<PHONE_NUMBER>,
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    A. Overview
    B. Purpose of the Regulatory Action
    C. Summary of the Major Provisions of the Regulatory Action
    D. Costs and Benefits of the Regulatory Action
II. Authority
III. Background Information
    A. Overview of Section 108(b) and Other CERCLA Provisions
    B. History of This Rulemaking
    C. Recent Litigation Under Section 108(b)
    D. Hardrock Mining Priority Notice
    E. Hardrock Mining Proposed Rule
IV. Statutory and Record Support for This Final Rulemaking
    A. Statutory Interpretation
    B. Evaluation of the Administrative Record
    1. Reports on Risk Posed by Hardrock Mining Facilities
    2. Federal and State Regulatory Requirements
    a. Federal Environmental Statutes
    b. Federal Reclamation Laws
    c. Other Existing Regulatory Requirements
    3. Risk of Payments From the Fund
    C. Comments Supporting a Final Rulemaking
    D. Comments Opposing a Final Rulemaking
    1. Comments Regarding Appropriateness of Information Used
    a. Use of Information Not Relevant to the Mines To Be Regulated
Under the Rule
    b. Use of Data That Did Not Directly Demonstrate Risk at Current
Hardrock Mining Operations
    2. Comments That EPA Failed To Consider Relevant Information
    a. Comments Providing Information on the Role of Federal and
State Programs and Protective Mining Practices in Reducing Risks at
Current Hardrock Mining Operations
    (1) Examples of Federal Programs
    (2) Examples of State Programs
    b. Comments Providing Information on Reduced Costs to the
Taxpayer Resulting From Effective Hardrock Mining Programs and Owner
or Operator Responses
    E. Evidence Rebutting EPA's Site Examples
    1. Example of Sites Now Not Relevant to the Mines To Be
Regulated Under the Rule
    2. Example Reflecting Reassessment of Costs to the Taxpayers
Based on Additional Information
    3. Example Where Program Requirements Were Subsequently Modified
To Address the Problem
    F. Information Regarding Financial Responsibility Instrument
Availability
V. Decision to Not Issue the General Facility Requirements of
Subparts A Through C in This Final Rulemaking
VI. Obstacles to Developing and Implementing Section 108(b)
Financial Responsibility Requirements for Hardrock Mining Facilities
    A. Potential Disruption of State, Tribal, or Local Mining
Programs
    B. Challenges To Determine the Level of Financial Responsibility
    C. Concerns Regarding Costs and Economic Impacts of the Proposed
Rule
    1. Overall Concerns Regarding Cost and Economic Impact
    2. Concerns Particular to Impacts on Small Entities/Businesses
    D. Concerns Regarding Financial Responsibility Instrument
Availability
    E. Challenges To Identify the Facility
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    L. Congressional Review Act

I. Executive Summary

A. Overview

    EPA is announcing its decision on its proposed regulations for
financial responsibility requirements applicable to hardrock mining
facilities that were published on January 11, 2017. EPA has decided not
to issue final regulations because the Agency has determined that final
regulations are not appropriate. This decision is based on EPA's
interpretation of the statute and analysis of its record developed for
this rulemaking. EPA has analyzed the need for financial responsibility
based on risk of taxpayer funded cleanups at hardrock mining facilities
operating under modern management practices and modern environmental
regulations, i.e., the type of facilities to which financial
responsibility regulations would apply. That risk is identified by
examining the management of hazardous substances at such facilities, as
well as by examining federal and state regulatory controls on that
management and federal and state financial responsibility requirements.
With that focus, the record demonstrates that, in the context of CERCLA
section 108(b), the degree and duration of risk associated with the
modern production, transportation, treatment, storage or disposal of
hazardous substances by the hardrock mining industry does not present a
level of risk of taxpayer funded response actions that warrant
imposition of financial responsibility requirements for this sector.
This determination reflects EPA's interpretation of the statute, EPA's
evaluation of the record for the proposed rule, and the public comment
received by EPA.

    The decision not to issue final regulations will address the
concerns of those federal and state regulators and members of the
regulated community who commented that the proposed requirements were
unnecessary and would, therefore, impose an undue burden on the
regulated community. This decision will provide assurance to state
regulators who were concerned that the proposed requirements would be
disruptive of state mining programs. This decision also will address
the information provided by the insurance industry regarding the lack
of availability of financial instruments that meet the requirements of
section 108(c)(2). This decision is based on the record for this
rulemaking, and does not affect the process for site-specific risk
determinations, or determinations of the need for a particular CERCLA
response, at individual sites, nor does this decision affect EPA's
authority to take appropriate CERCLA response actions. Decisions on
risk under other environmental statutes would continue under those
statutes. This final rulemaking is the Agency's final action on the
proposed rule.

B. Purpose of the Regulatory Action

    Section 108(b) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), also known as Superfund,
directs EPA to develop regulations that require classes of facilities
to establish and maintain evidence of financial responsibility
consistent with the degree and duration of risk associated with the
production, transportation, treatment, storage, or disposal of
hazardous substances. The statute further requires that the level of
financial responsibility be established to protect against the level of
risk the President, in his discretion, believes is appropriate, based
on factors including the payment experience of the Fund. The
President's authority under this section for non-transportation-related
facilities has been delegated to the EPA Administrator.\1\
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    \1\ See E.O. 12580, 52 FR 2923 (January 23, 1987).
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    In a Federal Register notice dated July 28, 2009,\2\ EPA identified
the classes of facilities within hardrock mining \3\ as the classes for
which it would first develop financial responsibility requirements
based on consideration of many factors, including factors unrelated to
modern facilities, such as legacy contamination, and factors not
demonstrating risk, in and of themselves, such as Toxic Release
Inventory (TRI) reports under Superfund Amendments and Reauthorization
Act of 1986 (SARA) section 313.
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    \2\ Identification of Priority Classes of Facilities for
Development of CERCLA Section 108(b) Financial Responsibility
Requirements, 74 FR 37213, July 28, 2009.
    \3\ For purposes of this final rulemaking, EPA includes within
the term ``hardrock mining'' the facilities included in the
definition of that term developed for purposes of the Priority
Notice, that is, facilities that extract, beneficiate, or process
metals (e.g., copper, gold, iron, lead, magnesium, molybdenum,
silver, uranium, and zinc), and non-metallic non-fuel minerals
(e.g., asbestos, gypsum, phosphate rock, and sulfur).
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    On January 11, 2017, the Agency published proposed financial
responsibility requirements applicable to hardrock mining
facilities.\4\ The proposal identified two goals for section 108(b)
regulations--the goal of providing funds to address CERCLA liabilities
at sites, and the goal of creating incentives for sound practices that
will minimize the likelihood of need for a future CERCLA response. As
discussed below, EPA now believes that these goals have been met for
the hardrock mining classes of facilities.
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    \4\ Financial Responsibility Requirements Under CERCLA Section
108(b) for Classes of Facilities in the Hardrock Mining Industry, 82
FR 3388, January 11, 2017.
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    The proposal identified for public comment a range of options and
supporting information, as described in the proposed rule preamble.\5\
The proposed rule set forth, in proposed 40 CFR part 320, subparts A
through C, requirements for a comprehensive financial responsibility
program under section 108(b) that would be applicable to hardrock
mining facilities as well as to future industry sectors for which
requirements under section 108(b) are later developed. In addition, the
proposed rule set forth, in proposed part 320, subpart H, requirements
specifically applicable to hardrock mining facilities.
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    \5\ See 82 FR 3388, January 11, 2017.
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    EPA provided information and analysis demonstrating releases and
potential releases of hazardous substances at hardrock mining
facilities. EPA also discussed the relationship of section 108(b) to
other federal law and to state law.\6\ However, despite making a
commitment to do so in the notice entitled ``Identification of Priority
Classes of Facilities for Development of CERCLA Section 108(b)
Financial Responsibility Requirements'' (2009 Priority Notice),
published on July 28, 2009, in the development of the proposed rule the
Agency did not consider other federal and state programs when
determining the need for section 108(b) regulations.\7\ Instead, the
proposed rule would have considered other programs only after financial
responsibility requirements are imposed, as a means to reduce such
requirements. EPA now believes that it is appropriate to consider such
programs at the outset, when evaluating both the degree and duration of
risk associated with the production, transportation, treatment,
storage, or disposal of hazardous substances as well as when evaluating
the risk of taxpayer financed response costs.
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    \6\ 82 FR 3402-03 (concluding that section 108(b) applies even
when a facility is subject to financial responsibility requirements
under federal law).
    \7\ 74 FR 37219 and n. 50.
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    EPA's final action on the proposed rule is a decision not to
promulgate it.\8\ As explained below, EPA has reconsidered whether the
rulemaking record supports the proposed rule in light of the Agency's
interpretation of the statute, the Agency's evaluation of the record,
and the information and data received through public comment. As a
result of this reconsideration, EPA has determined that the rulemaking
record it assembled does not support imposing financial responsibility
requirements under section 108(b) on current hardrock mining
operations. This determination is based on information in the record on
the degree and duration of risk posed by modern production,
transportation, treatment, storage or disposal of hazardous substances
at mining sites operating under modern regulations that demonstrates
that financial responsibility requirements are not necessary to address
the risk of taxpayer financed response actions at hardrock mines. EPA
has reconsidered its assessment of the risks posed by hardrock mining
operations presented in the proposed rule, and determined that that
assessment did not adequately consider the degree to which existing
federal and state regulatory programs and improved mining practices at
modern mines reduce the risk that there would be unfunded response
liabilities at currently operating mines. Furthermore, EPA notes that
even under the analysis in the proposed rule, the

projected level of risk of EPA-funded response actions was relatively
low ($15 to $15.5 million per year), and was significantly less than
the projected cost to industry of providing the additional financial
responsibility that would have been required by the proposed rule
($111-$171 million per year).
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    \8\ EPA has made editorial changes to this document from the
prepublication version, including replacing various references to
the action being a ``final rule,'' in accordance with the Office of
the Federal Register's (OFR) interpretations of its implementing
regulations (1 CFR 5.9 and parts 21 and 22), the Federal Register
Act (44 U.S.C. chapter 15) and Document Drafting Handbook. OFR
regulations, however, expressly disclaim a legal effect from these
publication requirements. ``In prescribing regulations governing
headings, preambles, effective dates, authority citations, and
similar matters of form, the Administrative Committee does not
intend to affect the validity of any document that is filed and
published under law.'' 1 CFR 5.1(c). Accordingly, these editorial
changes do not affect the legal status of the action as a final
regulation under CERCLA.
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    The Agency's decision that a section 108(b) rule for the hardrock
mining industry is not appropriate relies on the record developed for
this rulemaking as well as information submitted by commenters on three
key points, which in combination demonstrate significantly reduced risk
at current hardrock mining operations: (1) The reduction in risks due
to the requirements of existing federal and state mining programs and
voluntary protective practices of current hardrock mining owners and
operators, (2) the reduced costs to the taxpayer resulting from
effective hardrock mining programs, enforcement actions, and owner or
operator responses, including financial assurance requirements pursuant
to these other programs, and (3) the resulting reduction in the risk of
the need for federally financed response actions at hardrock mines. The
record thus evaluated also supports EPA's determination that federal
and state regulation and practices at modern facilities reduce the
risks posed by operating facilities and, therefore, the imposition of
section 108(b) financial responsibility requirements is not
appropriate.
    This determination also addresses concerns regarding disruption and
duplication of state and federal financial responsibility requirements,
the difficulty in tailoring financial responsibility to a specific
level of risk, as well as concerns raised by the financial industry
regarding challenges in providing financial instruments that meet the
requirements of the statute and the proposed rule. As discussed below,
the proposed rule created the potential for the preemption of state
financial responsibility requirements. In addition, EPA acknowledges
that the formula through which EPA had proposed to determine the level
of financial assurance relied on information unrelated to risks of
taxpayer financed costs posed by the current facilities to which the
proposed rule would apply. Finally, as discussed below, members of the
financial industry commented that section 108(c)(2), which allows
direct claims against a guarantor providing evidence of financial
responsibility, is at odds with relevant commercial law and practice
and would significantly deter the financial industry from providing
such instruments and services.
    This final rulemaking does not affect, limit, or restrict EPA's
authority to take a response action or enforcement action under CERCLA
at any individual hardrock mining facility, including the currently
operating facilities described elsewhere in this final rulemaking and
in the Technical Support Document for this final rulemaking,\9\ and to
include requirements for financial responsibility as part of such
response action. The set of facts in the rulemaking record related to
the individual facilities discussed in this final rulemaking support
the Agency's decision not to issue financial responsibility
requirements under section 108(b) for currently operating hardrock
mining facilities as a class, but a different set of facts could
demonstrate a need for a CERCLA response at those sites. This final
rulemaking also does not affect the Agency's authority under other
authorities that may apply at hardrock mining facilities, such as the
Clean Water Act (CWA), the Resource Conservation and Recovery Act
(RCRA), the Clean Air Act (CAA), and the National Environmental Policy
Act (NEPA).
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    \9\ See: EPA, ``CERCLA Section 108(b) Hardrock Mining Final Rule
Technical Support Document,'' December 1, 2017.
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C. Summary of the Major Provisions of the Regulatory Action

    EPA is not requiring evidence of financial responsibility under
section 108(b) at hardrock mining facilities in this action. Thus,
there are no regulatory provisions associated with this final action.

D. Costs and Benefits of the Regulatory Action

    The Regulatory Impact Analysis for the proposed rule demonstrated
that the projected level of taxpayer liability that would have been
avoided by the proposed rule was relatively small, and that the costs
of meeting the proposed financial responsibility requirements were an
order of magnitude greater than the costs avoided by the federal
government as a result of such requirements. EPA is not requiring
evidence of financial responsibility under section 108(b) at hardrock
mining facilities in this action. EPA therefore has not conducted a
Regulatory Impact Analysis for this action.

II. Authority

    This final rulemaking is issued under the authority of sections
101, 104, 108 and 115 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601,
9604, 9608 and 9615, and Executive Order 12580. 52 FR 2923, 3 CFR, 1987
Comp., p. 193.

III. Background Information

A. Overview of Section 108(b) and Other CERCLA Provisions

    CERCLA, as amended by the Superfund Amendments and Reauthorization
Act of 1986 (SARA), establishes a comprehensive environmental response
and cleanup program. Generally, CERCLA authorizes EPA \10\ to undertake
removal or remedial actions in response to any release or threatened
release into the environment of ``hazardous substances'' or, in some
circumstances, any other ``pollutant or contaminant.'' As defined in
CERCLA section 101, removal actions include actions to ``prevent,
minimize, or mitigate damage to the public health or welfare or to the
environment,'' and remedial actions are ``actions consistent with [a]
permanent remedy[.]'' Remedial and removal actions are jointly referred
to as ``response actions.'' CERCLA section 111 authorizes the use of
the Superfund Trust Fund (the Fund) established under title 26, United
States Code, including financing response actions undertaken by EPA. In
addition, CERCLA section 106 gives EPA \11\ authority to compel action
by liable parties in response to a release or threatened release of a
hazardous substance that may pose an ``imminent and substantial
endangerment'' to public health or welfare or the environment.
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    \10\ Although Congress conferred the authority for administering
CERCLA on the President, most of that authority has since been
delegated to EPA. See Exec. Order No. 12580, 52 FR 2923 (Jan. 23,
1987). The executive order also delegates to other federal agencies
specified CERCLA response authorities at certain facilities under
their ``jurisdiction, custody or control.'' This can include CERCLA
authorities at mines located on federal lands under the jurisdiction
of BLM and the Forest Service.
    \11\ CERCLA sections 106 and 122 authority is also delegated to
other federal agencies in certain circumstances. See Exec. Order No.
13016, 61 FR 45871 (Aug. 28, 1996).
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    CERCLA section 107 imposes liability for response costs on a
variety of parties, including certain past owners and operators,
current owners and operators, and certain transporters of hazardous
substances. Such parties are liable for any costs of removal or
remedial action incurred by the federal government, so long as the
costs incurred are ``not inconsistent with the national contingency
plan,'' (NCP).\12\ Section 107 also imposes liability for natural
resource damages and health assessment costs.\13\ As has been the case
since

CERCLA's enactment, these provisions of CERCLA are available according
to their terms, to the federal government and other parties, regardless
of whether an owner or operator has provided evidence of financial
responsibility under section 108(b).
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    \12\ See CERCLA section 107 (a)(4)(A).
    \13\ See CERCLA section 107 (a)(4)(C)-(D).
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    In accordance with CERCLA, in 1990 EPA issued the current version
of the NCP.\14\ These regulations provide the organizational structure
and procedures for preparing for, and responding to, discharges of oil
and releases of hazardous substances, pollutants, and contaminants. The
NCP is codified at 40 CFR part 300. Among other provisions, the NCP
provides procedures for hazardous substance response including site
evaluation, removal actions, remedial investigation/feasibility studies
(RI/FS), remedy selection, remedial design/remedial action (RD/RA), and
operation and maintenance.\15\ The NCP also designates federal, state,
and tribal trustees for natural resource damages, and identifies their
responsibilities under the NCP.\16\ Under the NCP, EPA undertakes
response actions that address or prevent risk to human health and the
environment from the release of hazardous substances, pollutants or
contaminants. A determination whether a release of hazardous
substances, pollutants or contaminants presents a risk to be addressed
under other sections of CERCLA or under other law is a separate
determination from whether under section 108(b) risk associated with
the management of hazardous substances at current hardrock mining
operations warrants imposition of financial responsibility
requirements. Nothing in this final action restricts EPA's other
authorities. The Agency's decision not to issue final regulations under
section 108(b) applicable to hardrock mining facilities does not change
or substitute for EPA's procedures for site-specific evaluations of
risk, and for determining the need for response, in accordance with the
NCP.
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    \14\ See 55 FR 8666, March 8, 1990.
    \15\ See 40 CFR part 300, subpart E.
    \16\ See 40 CFR part 300, subpart G.
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    Section 108(b) establishes an authority to require owners and
operators of classes of facilities to establish and maintain evidence
of financial responsibility. Section 108(b)(1) directs EPA to develop
regulations requiring owners and operators of facilities (in addition
to those under Subtitle C of the Solid Waste Disposal Act and other
federal law) to establish evidence of financial responsibility
``consistent with the degree and duration of risk associated with the
production, transportation, treatment, storage, or disposal of
hazardous substances.'' In turn, section 108(b)(2) directs that the
level of financial responsibility shall be initially established, and,
when necessary, adjusted to protect against the level of risk that EPA
in its discretion believes is appropriate based on the payment
experience of the Fund, commercial insurers, courts settlements and
judgments, and voluntary claims satisfaction. Section 108(b)(2) does
not, however, preclude EPA from considering other factors in addition.
The statute prohibited promulgation of such regulations before December
1985.
    In addition, section 108(b)(1) provides for publication within
three years of the date of enactment of CERCLA of a ``priority notice''
identifying the classes of facilities for which EPA would first develop
financial responsibility requirements. It also directs that priority in
the development of requirements shall be accorded to those classes of
facilities, owners, and operators that present the highest level of
risk of injury.

B. History of This Rulemaking

    In November 2003, EPA initiated a study of the Superfund program,
commonly referred to as the ``120 Day Study.'' \17\ This ``120 Day
Study'' resulted in more than 100 recommendations. In 2005, EPA
initiated an Action Plan for implementing the recommendations of the
120-Day Study of the Superfund Program. Under that plan, EPA conducted
an analysis to determine whether action under section 108(b) was
appropriate (Recommendation 12). This analysis resulted in two detailed
studies specifically designed to help identify classes of facilities
for priority consideration under section 108(b), carried out from 2006
through 2008. The report of these studies, labeled ``draft'' and dated
February 2009, are titled: ``CERCLA 108(b) Financial Responsibility,
Phase 1: Preliminary Analysis'' (hereinafter Phase 1 Report) and
``CERCLA 108(b) Financial Responsibility, Phase 2 Preliminary
Analysis'' (hereinafter Phase 2 Report).\18\ Another analysis,\19\
referred to as the 40 TSD Study, also recommended by the 120-Day Study
(Recommendations 10 and 11), on the sufficiency of financial assurance
requirements imposed on hazardous waste treatment, storage, and
disposal (TSD) facilities regulated under RCRA also provides relevant
information.
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    \17\ See Superfund: Building on the Past, Looking to the Future
(Washington DC: April 22, 2004), EPA-HQ-SFUND-2015-0781-0501.
    \18\ EPA-HQ-SFUND-2009-0265-0019 and EPA-HQ-SFUND-2009-0265-
0020.
    \19\ See ``Analysis of 40 Potential TSDs: Potential RCRA
Treatment, Storage, and Disposal Facilities Proposed to the
Superfund National Priority List after 1990,'' Office of Solid
Waste, January 19, 2007.
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    In the Phase 1 and Phase 2 analyses, EPA interpreted the financial
responsibility requirements of section 108(b) to apply to currently
operating facilities and current or future risks. Accordingly, in the
analyses performed from 2006 through 2008, the Agency attempted to
exclude historic practices and legacy contamination resulting from such
practices by using 1990 as a date to distinguish between modern and
legacy practices. The Agency stated that it used 1990 because by that
date most of the regulations under RCRA relating to management of
hazardous waste had been promulgated. This approach was consistent with
the 40 TSD study, which excluded facilities proposed to the National
Priorities List (NPL) before 1990 to exclude facilities with legacy
contamination that predated the RCRA hazardous waste regulatory
program. However, because EPA determined in 1986 under section
3001(b)(3)(C) of RCRA that solid waste from the extraction and
beneficiation of ores and minerals do not present sufficient risk to
warrant regulation under subtitle C of RCRA,\20\ 1990 is not a precise
date for the advent of modern regulation of mining. As discussed below,
commenters noted that state and federal mining regulations developed
over a period of time. For mining regulated under state law, commenters
suggest the mid-1990s represent the advent of modern mining
regulation.\21\
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    \20\ 51 FR 24496 (July 3, 1986).
    \21\ State mining laws are discussed below.
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    In 2009, the Agency changed its interpretation of the statute. A
July 2, 2009, memorandum attached to the Phase 1 and Phase 2 reports
states that EPA decided that the reports were deficient because they
excluded sites listed on the NPL before 1990. Accordingly, EPA did not
finalize the reports and did not proceed to an analysis of the federal
and state regulatory requirements and the modern practices of any
specific industry sector.\22\ Instead, in a Federal Register notice
dated July 28, 2009,\23\ EPA identified certain classes of facilities
within the hardrock mining sector as the classes for which it would
first develop financial responsibility requirements.

EPA based that identification on consideration of many factors,
including factors unrelated to risk posed by the production,
transportation, treatment, storage, and disposal of hazardous
substances at facilities that would be regulated under the proposed
rule, such as legacy contamination, and non-risk based information,
such as Toxic Release Inventory reports under SARA section 313. This
notice represented a substantial departure from previous EPA
interpretation of the statute to exclude legacy activities when
determining the need for financial responsibility requirements under
section 108(b).\24\
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    \22\ EPA-HQ-SFUND-2009-0265-0019 and EPA-HQ-SFUND-0265-0020.
    \23\ Identification of Priority Classes of Facilities for
Development of CERCLA Section 108(b) Financial Responsibility
Requirements, 74 FR 37213, July 28, 2009.
    \24\ Compare EPA's Phase I and Phase II reports (EPA-HQ-SFUND-
2009-0265-0019 and EPA-HQ-SFUND-0265-0020) to 74 FR 37213.
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    In the 2009 Priority Notice, EPA identified hardrock mining
facilities as a priority without considering the impacts of modern
federal and state regulations. Instead, EPA stated: ``EPA will
carefully examine specific activities, processes, and/or metals and
minerals in order to determine what proposed financial responsibility
requirements may be appropriate. As part of this process, EPA will
conduct a close examination and review of existing Federal and State
authorities, policies, and practices that currently focus on hardrock
mining activities.'' \25\
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    \25\ 74 FR 37219.
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    On January 11, 2017, the Agency published proposed financial
responsibility requirements applicable to hardrock mining
facilities.\26\ The proposed rule adopted two goals for section 108(b)
regulations--to provide funds to address CERCLA liabilities at sites,
and to create incentives for sound practices that will minimize the
likelihood of need for a future CERCLA response.
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    \26\ 82 FR 3388 (January 11, 2017).
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    The proposal identified for public comment a range of options and
supporting information, as described in the proposed rule preamble. The
proposed rule set forth, in proposed part 320, subparts A through C,
requirements for a comprehensive financial responsibility program under
section 108(b) that would be applicable to hardrock mining facilities,
as well as to future industry sectors for which requirements under
section 108(b) are later developed. In addition, the proposed rule set
forth, in proposed part 320, subpart H, requirements specifically
applicable to hardrock mining facilities.
    The proposed rule provided information and analyses on releases and
potential releases of hazardous substances at hardrock mining
facilities. The proposed rule identified several classes of hardrock
mining facilities that were excluded from the financial responsibility
requirements because they involved a lower risk, and sought comment on
whether additional classes should be excluded from the scope of a final
rule.\27\ The proposed rule also discussed the relationship of section
108(b) to other federal law and to state law.\28\ However, contrary to
the commitment made in the 2009 Priority Notice, the proposed rule did
not consider reductions in risk as a result of such laws when
determining the need for financial responsibility requirements.
Instead, the proposed rule would have established such requirements at
a level based on the activities already covered by reclamation bonds as
well as the cost of cleaning up historic mining sites and then, based
on information provided by the facility, would have allowed reductions
in the amount of financial responsibility,\29\ or release from the
requirement for financial responsibility entirely.\30\
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    \27\ 82 FR 3456-59; Hoffman Memo, ``Mining Classes Not Included
in Identified Classes of Hardrock Mining,'' June 2009. See 82 FR
3455 n. 145. See exclusions from the rule at proposed 40 CFR
320.60(a)(2). EPA solicited comments on whether to identify
additional exclusions based on a finding of minimal risk, citing
iron ore, phosphates and uranium mines as examples. 82 FR 3456.
    \28\ 82 FR 3402-03.
    \29\ Proposed 40 CFR 320.63.
    \30\ Proposed 40 CFR 320.27.
---------------------------------------------------------------------------

    EPA received over 11,000 public comment submissions on the proposed
rule. Other federal agencies, state agencies, and industry
representatives overwhelmingly opposed financial responsibility
requirements under section 108(b) for the hardrock mining industry.
Environmental groups urged adoption of the proposed rule. EPA also
received a large number of identical comments from individuals through
multiple letter-writing campaigns, advocating both for and against
adoption of the rule. Among other concerns, commenters objecting to the
proposed rule expressed the view that the Agency's assessment of the
information relating to risks posed by hardrock mining operations as
presented in the proposed rule was deficient because the Agency: (1)
Relied on inappropriate evidence, such as data that did not demonstrate
risk, and evidence not relevant to the facilities to be regulated under
the rule; and (2) failed to consider relevant evidence, such as the
role of federal and state mining programs and voluntary protective
mining practices in reducing risks at current \31\ hardrock mining
operations, and the reduced costs to the taxpayer resulting from
effective hardrock mining programs, including existing financial
responsibility requirements, and owner or operator responses.
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    \31\ A discussion of which mining operations are considered
``current'' or ``modern'' can be found in section IV.D.1. of this
final rulemaking.
---------------------------------------------------------------------------

    EPA has considerable discretion under the statute and, as explained
below, has reconsidered whether the rulemaking record supports the
proposed rule in light of EPA's interpretation of the statute, review
of the record, and the information and data received through public
comment. As a result, EPA has determined that the assessment of the
information relating to risks posed by hardrock mining operations as
presented in the proposed rule was not supported by the record. This
reassessment relies on the information in the record on three key
points: (1) The reduction in risks due to the requirements of existing
federal and state mining programs and protective practices of current
hardrock mining owners and operators, (2) the reduced costs to the
taxpayer resulting from effective hardrock mining programs, including
existing financial responsibility requirements, and owner or operator
responses, and (3) the resulting reduction in the risk of the need for
federally financed response actions at hardrock mines.

C. Recent Litigation Under Section 108(b)

    On March 11, 2008, Sierra Club, Great Basin Resource Watch, Amigos
Bravos, and Idaho Conservation League filed a suit against then EPA
Administrator Steven Johnson and then Secretary of the U.S. Department
of Transportation Mary E. Peters, in the U.S. District Court for the
Northern District of California. Sierra Club, et al. v. Johnson, No.
08-01409 (N.D. Cal.). On February 25, 2009, that court ordered EPA to
publish the Priority Notice required by section 108(b)(1) later that
year. The court later dismissed the remaining claims.\32\
---------------------------------------------------------------------------

    \32\ See Sierra Club v. Johnson, 2009 U.S. Dist. LEXIS 68436
(N.D. Cal. Aug. 5, 2009).
---------------------------------------------------------------------------

    EPA continued to work on a proposed rule for the next several
years. However, developing a regulation that meets the statutory
requirements presented a significant challenge.\33\ Dissatisfied with
the pace of EPA's progress, in August 2014, the Idaho Conservation
League, Earthworks, Sierra Club, Amigos Bravos,

Great Basin Resource Watch, and Communities for a Better Environment
filed a new lawsuit in the U.S. Court of Appeals for the District of
Columbia Circuit, seeking a writ of mandamus requiring issuance of
section 108(b) financial responsibility rules for the hardrock mining
industry and for three other industries--chemical manufacturing;
petroleum and coal products manufacturing; and electric power
generation, transmission, and distribution.\34\ Companies and
organizations representing business interests in the hardrock mining
and other sectors also sought to intervene in the case.
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    \33\ See the discussion regarding instrument availability in
section IV., and the discussions in section VII of some of the
obstacles to developing a rule under section 108(b).
    \34\ In re: Idaho Conservation League, et al., No. 14-1149.
---------------------------------------------------------------------------

    Following oral argument, the court issued an Order in May 2015
requiring the parties to submit, among other things, supplemental
submissions addressing a schedule for further administrative
proceedings under section 108(b). The Court's May 19, 2015 Order
encouraged the parties to confer regarding a schedule and, if possible,
to submit a jointly agreed upon proposal. Petitioners and EPA agreed to
a schedule calling for the Agency to sign for publication in the
Federal Register a proposed rule for the hardrock mining industry by
December 1, 2016, and a notice of its final action on the proposal by
December 1, 2017. The parties submitted this schedule to the court, and
on January 29, 2016, the court granted the parties' joint motion and
issued an order that mirrored the submitted schedule in substance.\35\
With this action the Agency has now satisfied both of these
obligations.
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    \35\ In re Idaho Conservation League, 811 F.3d 502.
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D. Hardrock Mining Priority Notice

    As described above, section 108(b)(1) requires the President to
identify those classes of facilities for which requirements will be
first developed and to publish notice of such identification in the
Federal Register. On July 28, 2009, EPA issued a ``Priority Notice''
entitled ``Identification of Priority Classes of Facilities for
Development of Section 108(b) Financial Responsibility Requirements.''
\36\ In the 2009 Priority Notice, EPA explained how it then chose to
evaluate indicators of risk and its related effects, to inform its
decision on the classes of facilities for which it would first develop
requirements.\37\ The 2009 Priority Notice pointed to eight factors
that EPA considered,\38\ and stated that its review of those factors
and the associated information in the docket led the Agency to conclude
that hardrock mining facilities present the type of risk that, in light
of its evaluation, justified them being the first for which EPA would
develop section 108(b) requirements.\39\ The 2009 Priority Notice
satisfied the notice requirement in section 108(b)(1).
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    \36\ See 74 FR 37213 (July 28, 2009).
    \37\ See Id. at 37214.
    \38\ These eight factors were: (1) Annual amounts of hazardous
substances released to the environment; (2) the number of facilities
in active operation and production; (3) the physical size of the
operation; (4) the extent of environmental contamination; (5) the
number of sites on the CERCLA site inventory (including both NPL
sites and non-NPL sites); (6) government expenditures; (7) projected
cleanup expenditures; and (8) corporate structure and bankruptcy
potential (74 FR 37214, July 28, 2009).
    \39\ Id.
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E. Hardrock Mining Proposed Rule

    On January 11, 2017, EPA proposed requirements in a new 40 CFR part
320 that owners and operators of hardrock mining facilities subject to
the rule demonstrate and maintain financial responsibility as specified
in the proposed rule.
    The proposed rule identified two goals for section 108(b)
regulations--the goal of providing funds to address CERCLA liabilities
at sites, and the goal of creating incentives for sound practices that
will minimize the likelihood of need for a future CERCLA response. The
proposed rule explained that first, when releases of hazardous
substances occur, or when a threat of release of hazardous substances
must be averted, a Superfund response action may be necessary.
Therefore, the costs of such response actions can fall to the taxpayer
if parties responsible for the release or potential release of
hazardous substances are unable to assume the costs.\40\ Second, the
likelihood of a CERCLA response action being needed, as well as the
costs of such a response action, are likely to be higher where
protective management practices were not utilized during facility
operations.\41\
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    \40\ The proposed rule discussion acknowledged the existence of
federal and state financial responsibility requirements but took the
position that they do not duplicate CERCLA financial responsibility
requirements. 83 FR 3402. For example, the proposed rule claimed
that state regulations include but are not limited to hazardous
substance releases. 83 FR 3403.
    \41\ As discussed below, the Agency now believes that protective
management practices must be considered when determining the need
for financial responsibility requirements.
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    The proposed rule discussed information assembled by EPA in the
record for the action, which, as discussed below, included information
on legacy practices and legacy contamination, as well as information
not related to risk. Based on that record, EPA had proposed to presume
that hardrock mining facilities as a class present the type of risks
that section 108(b) addresses. The proposed rule then proceeded to
establish a methodology to determine a level of financial
responsibility in accordance with a proposed formula. The formula then
allowed adjustments to the level of those requirements if a facility
could demonstrate site specific conditions that rebut the presumption
that the hardrock mining facilities that would be regulated under the
rule pose a risk.\42\
---------------------------------------------------------------------------

    \42\ See proposed 40 CFR 320.63.
---------------------------------------------------------------------------

    EPA proposed limiting the applicability of the rule to owners and
operators of facilities that are authorized to operate or should be
authorized to operate on the effective date of the rule (hereinafter
referred to as ``current hardrock mining operations'').\43\ EPA
explained its interpretation of the statute on this issue.\44\ The
proposed rule also relied, in part, on the grounds that these owners
and operators are more likely to further the regulatory goals of
section 108(b) requirements than are owners and operators of facilities
that are closed or abandoned. EPA also proposed limiting the
applicability of the rule to current hardrock mining operations because
those facilities are readily identifiable and, since they are ongoing
concerns, they are more likely to be able to obtain the kind of
financial responsibility necessary under the regulation.\45\ EPA
continues to believe that this focus upon current hardrock mining
operations is appropriate.
---------------------------------------------------------------------------

    \43\ See proposed 40 CFR 320.2.
    \44\ 82 FR 3404-05.
    \45\ The proposed rule also excluded 55 specific substances (see
footnote 25 infra).
---------------------------------------------------------------------------

IV. Statutory and Record Support for This Final Rulemaking

A. Statutory Interpretation

    Section 108(b) provides EPA only general instructions in paragraphs
(b)(1) and (b)(2), on how to determine what financial responsibility
requirements to impose for a particular class of facility. Section
108(b)(1) directs EPA to develop regulations requiring owners and
operators of facilities to establish evidence of financial
responsibility ``consistent with the degree and duration of risk
associated with the production, transportation, treatment, storage, or
disposal of hazardous substances. Section 108(b)(2) directs that the
level of financial responsibility shall be initially established, and,
when necessary, adjusted to protect against the level of risk that EPA
in its discretion believes is appropriate based on the payment
experience of the Fund, commercial insurers, courts settlements

and judgments, and voluntary claims satisfaction. Section 108(b)(2)
does not indicate that this list of factors is exclusive. Read
together, it is clear that the statutory language on determining the
degree and duration of risk presented by a class, and in setting the
level of financial responsibility as it determines is appropriate,
confers a significant amount of discretion upon the Agency. EPA
discusses these key phrases in turn below.
    Section 108(b)(1) directs EPA to develop regulations requiring
owners and operators of classes of facilities that EPA identifies, to
establish evidence of financial responsibility ``consistent with the
degree and duration of risk associated with the production,
transportation, treatment, storage, or disposal of hazardous
substances.'' Thus, the statute indicates that EPA is to evaluate risk
from a selected class. However, EPA does not interpret this direction
to require a precise calculation of risk associated with the selected
classes of facilities. Standard dictionary definitions of the term
``consistent'' include merely ``being in agreement'' or ``compatible.''
\46\ Moreover, section 108(b) requirements are necessarily imposed in
the absence of any response action, although it is through such
response actions that the precise level of risk associated with a
particular site is ascertained. The statute thus confers upon EPA wide
latitude to determine, for purposes of a section 108(b) rulemaking
proceeding, what the degree and duration of risk presented by the
identified class is. Section 108(b)(2) in turn directs that the level
of financial responsibility shall be initially established, and, when
necessary, adjusted to protect against the level of risk that EPA in
its discretion believes is appropriate based on the payment experience
of the Fund, commercial insurers, courts settlements and judgments, and
voluntary claims satisfaction. This statutory direction does not
specify a particular methodology for the evaluation, indicating simply
that the level of financial responsibility be established to protect
against the level of risk that EPA ``in [its] discretion believes is
appropriate.'' Thus, this decision is committed to the discretion of
the Administrator. While the statute does provide a list of information
sources in section 108(b)(2) on which EPA is to base its decision--the
payment experience of the Superfund, courts settlements and judgments,
and voluntary claims satisfaction--that list is not exclusive, nor does
the statute specify how the information from these sources is to be
used, for example, by indicating how the categories are to be weighted
relative to one another. As discussed elsewhere in this final
rulemaking and in the Technical Support Document, the record and
comments received by EPA, provide details about the payment history of
the Fund, experience with enforcement actions and court settlements
resulting in operational changes, and voluntary actions by companies to
reduce risks at specific sites that were used by the Administrator in
his judgement to evaluate the risks from current hardrock mining
operations. EPA has, therefore, taken multiple considerations into
account, including information in these categories which, taken
together, inform the exercise of its statutory discretion.
---------------------------------------------------------------------------

    \46\ 301 Webster's II New Riverside University Dictionary
(1988).
---------------------------------------------------------------------------

    Among the types of information the statute authorizes EPA to
consider are the existence of federal and state regulations and
financial responsibility requirements. Section 108(b)(1) directs EPA to
promulgate financial responsibility requirements ``for facilities in
addition to those under subtitle C of the Solid Waste Disposal Act and
other Federal law.'' According to the 1980 Senate Report on legislation
that was later enacted as CERCLA, Congress felt it was appropriate for
EPA to examine those additional requirements when evaluating the degree
and duration of risk:

    The bill requires also that facilities maintain evidence of
financial responsibility consistent with the degree and duration of
risks associated with the production, transportation, treatment,
storage, and disposal of hazardous substances. These requirements
are in addition to the financial responsibility requirements
promulgated under the authority of section 3004(6) of the Solid
Waste Disposal Act. It is not the intention of the Committee that
operators of facilities covered by section 3004(6) of that Act be
subject to two financial responsibility requirements for the same
dangers.\47\

    \47\ S. Rept. 96-848 (2d Sess, 96th Cong.), at 92.
---------------------------------------------------------------------------

    While the report language addresses section 3004(6) of RCRA
specifically, EPA believes that it is consistent with Congressional
intent for EPA to consider other potentially duplicative Federal
financial responsibility requirements when examining the ``degree and
duration of risk'' or the ``level of risk'' when determining whether
and what financial responsibility requirements are appropriate. EPA
also believes that it is consistent with Congressional intent for EPA
to consider state laws before imposing federal financial responsibility
requirements on facilities. Consideration of state laws before
developing financial responsibility regulations is consistent with
section 114(d) of CERCLA, which prevents states from imposing financial
responsibility requirements for liability for releases of the same
hazardous substances after a facility is regulated under section 108 of
CERCLA. Just as Congress clearly intended to prevent states from
imposing duplicative financial assurance requirements after EPA had
acted to impose such requirements under Section 108, EPA believes it
reasonable to also conclude that Congress did not mean for EPA to
disrupt existing state programs that are already successfully
regulating industrial operations to minimize risk, including the risk
of taxpayer liability for response actions under CERCLA, and that
specifically include appropriate financial assurance requirements under
State law. Both reviews (of state and other Federal programs) help to
identify whether and at what level there is current risk that is
appropriate to address under section 108 of CERCLA.
    EPA also believes that, when evaluating whether and at what level
it is appropriate to require evidence of financial responsibility, EPA
should examine information from hardrock mining facilities operating
under modern conditions. These modern conditions include state and
federal regulatory requirements and financial responsibility
requirements that currently apply to operating facilities.
    This reading of section 108(b) is consistent with statements in the
legislative history of the statute. The 1980 Senate Report states that
the legislative language that became section 108(b) ``requires those
engaged in businesses involving hazardous substances to maintain
evidence of financial responsibility commensurate with the risk which
they present.'' \48\ This reading of section 108(b) is also supported
by testimony given by EPA before Congress during consideration of
legislation that led to CERCLA. In 1979, Thomas C. Jorling, the EPA
Assistant Administrator for Water and Waste Management, testified
before a Senate subcommittee that new financial responsibility
requirements in a hazardous substance liability law would be important
to increase ``standards of care'' with respect to management of such
substances. Mr. Jorling testified that this goal is not ``relevant'' to
sites where ``it is already too late; emergency assistance and
containment are

required.'' \49\ EPA notes that nothing in Mr. Jorling's testimony
suggests that there are not other potential mechanisms, such as
successful regulatory programs under state and other Federal laws, that
can ensure appropriate ``standards of care.''
---------------------------------------------------------------------------

    \48\ S. Rept. 96-848 (2d Sess, 96th Cong.), at 92.
    \49\ See Statement of Thomas C. Jorling, Assistant Administrator
for Water and Waste Management, USEPA regarding S.1341/S.1480 (Sen.
Comm. on Env't and Public Works, Subcommittees on Resource
Protection and Environmental Pollution, June 20, 1979).
---------------------------------------------------------------------------

    This statutory interpretation was also reflected in the proposed
rule. The proposed rule would have applied to currently operating
facilities.\50\ As explained in the preamble to the proposal, EPA
sought to document the extent to which hardrock mining facilities as a
class continued to present risk associated with hazardous substance
management.\51\ Moreover, this direction to identify requirements
``consistent with'' the risks found also led EPA to recognize that
imposition of financial responsibility requirements under section
108(b) would not be necessary for facilities that present minimal
current risks \52\ and to seek comment on whether other classes of
facilities should be excluded.\53\
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    \50\ See proposed 40 CFR 320.2 and 82 FR 3404-05.
    \51\ See 82 FR 3470-80.
    \52\ See exclusions from the rule at proposed 40 CFR
320.60(a)(2), as well as the opportunity to obtain a release from
financial responsibility requirements at proposed 40 CFR 320.27.
Both were proposed based on an evaluation of the level of risk posed
by the facilities. 82 FR 3455-59.
    \53\ 82 FR 3456.
---------------------------------------------------------------------------

    Despite its focus on currently operating facilities, the proposed
rule relied on a record of releases of hazardous substances from
facilities and payments to respond to such releases that does not
present the same risk profile as the modern facilities to which the
rule would apply.\54\ As a result, EPA has determined that the analysis
of risk presented in the proposed rule is inconsistent with the scope
of the proposed rule and EPA's intended approach under the statute.
---------------------------------------------------------------------------

    \54\ 82 FR 3460-61.
---------------------------------------------------------------------------

    The final rulemaking does not seek to rely on historical practices,
many of which would be illegal under current environmental laws and
regulations,\55\ to identify the degree and duration of risk posed by
the facilities that would be subject to financial responsibility
requirements. Instead, in this final rulemaking EPA has considered
modern federal and state regulation of hazardous substance production,
transportation, treatment, storage, or disposal at hardrock mining
facilities. As discussed below, the record does not document
significant risks associated with such facilities. Further, this final
rulemaking does not rely on the cost of responding to historic mining
activities and instead reflects the reduction in the risk of federally
financed response actions at modern hardrock mining facilities that
result from modern practices and modern regulation. With a few
exceptions, discussed below, EPA has made minimal expenditures for
modern hardrock mining operations. In addition, EPA engaged in
significant discussions with, and received significant comments from,
commercial insurers and other financial instrument providers. These
providers have submitted information indicating that the availability
of financial responsibility instruments would likely be limited for
regulated entities, should EPA require companies to obtain them. Thus,
to the extent that risks remain at current hardrock mining operations,
the information provided by commenters has further convinced EPA that
it is not appropriate to establish financial responsibility
requirements on this class of facilities.
---------------------------------------------------------------------------

    \55\ See, for example, Clean Water Act effluent limitations
applicable to mining, discussed below.
---------------------------------------------------------------------------

    Nor does EPA believe that issuing final financial responsibility
requirements is necessary to achieve the stated goals of the proposed
section 108(b) rules for hardrock mining, namely, the goal to increase
the likelihood that regulated entities will provide funds necessary to
address CERCLA liabilities if and when they arise, and the goal to
create an incentive for sound practices. EPA's economic analysis
showing that the proposed rule would avoid governmental costs of only
$15-$15.5 million a year supports this conclusion. Based on these
estimates, commenters objected that the projected annualized costs to
industry ($111-$171 million) are an order of magnitude higher than the
avoided costs to the government ($15-15.5 million) sought by the rule.
Further, given the fact that federal and state laws, including
potential liability under CERCLA, have already created an incentive for
sound practices, promulgating financial responsibility regulations for
hardrock mining facilities under section 108(b) also is not necessary
to advance that goal.
    This final rulemaking is based on the record assembled for this
action. This decision does not substitute for any site-specific
determinations of risk made in the context of individual CERCLA site
responses. Those decisions will continue to be made in accordance with
preexisting procedures. EPA has reached these conclusions on the record
for this rulemaking, including public comments.
    The major concerns raised by commenters are described below in
Sections C and D. Section E below, and the Technical Support Document
for this final rulemaking, discuss case examples in EPA's record that
correspond to these major concerns. It should be noted that much of the
public comment received on the proposed rule addressed specific
provisions of the proposal. Because EPA has decided not to issue
regulatory text under section 108(b) for hardrock mining facilities, or
the general provisions in proposed subparts A through C, comments on
specific regulatory provisions are outside the scope of this final
rulemaking.

B. Evaluation of the Administrative Record

    EPA has reevaluated the administrative record for this rulemaking
regarding risk at current hardrock mining operations in light of its
interpretation of the statute discussed above, and has determined that
that record does not support the proposed rule and supports, instead, a
final Agency action of no rule. This determination is based on an
evaluation of the three primary reports that the proposed rule relied
on to identify risk to be addressed by section 108(b): Evidence of
CERCLA Hazardous Substances and Potential Exposures at Section 108(b)
Mining and Mineral Processing Sites (hereinafter referred to as the
``Evidence Report''); Releases from Hardrock Mining Facilities
(hereinafter referred to as the ``Releases Report''); and Comprehensive
Report: An Overview of Practices at Hardrock Mining and Mineral
Processing Facilities and Related Releases of CERCLA Hazardous
Substances (hereinafter referred to as the ``Practices Report'').\56\
This determination also is based on EPA's consideration of the
reduction of risk as a result of federal and state regulatory and
financial assurance requirements. Finally, this determination is based
on the record of payments from the Superfund Trust Fund to address
hazardous substance releases from modern mining facilities.
---------------------------------------------------------------------------

    \56\ See Releases from Hardrock Mining Facilities, EPA-HQ-SFUND-
2015-0781-0497; Comprehensive Report: An Overview of Practices at
Hardrock Mining and Mineral Processing Facilities and Related
Releases of CERCLA Hazardous Substances, EPA-HQ-SFUND-2015-0781-
0144; and Evidence of CERCLA Hazardous Substances and Potential
Exposures at Section 108(b) Mining and Mineral Processing Sites,
EPA-HQ-SFUND-2015-0781-0505.

---------------------------------------------------------------------------

1. Reports on Risks Posed by Hardrock Mining Facilities
Evidence Report
    As described in the preamble to the proposed rule, the Evidence
Report documents EPA's 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. This
report also collected 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). The
proposed rule relied on the following conclusions from the Evidence
Report:

    Overall, the compiled information demonstrates that sites
requiring cleanup 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 illustrated the applicability of EPA's CERCLA
experience to evaluating currently operating mines and
processors.\57\

    \57\ 82 FR 3475.
---------------------------------------------------------------------------

    Upon review, EPA has now determined that those conclusions are not
supported by the information provided in the Evidence Report. Further,
these conclusions are not a primary factor in determining the ``degree
and duration of risk'' presented by currently operating mines under
modern environmental regulations. As a result, the Evidence Report does
not support a rulemaking under section 108(b).
    First, the Evidence Report compares releases of hazardous
substances at 24 facilities on the NPL that continued to operate after
1980 (called post-1980 historical sites) to facilities operating in
2009. It does not specify whether or not 1980 can be considered a date
by which mining facilities could be considered modern facilities
subject to modern regulations. The report does not identify or consider
whether the releases from the historical sites were due to pre-1980
activities and practices or whether the releases were caused by
practices that are no longer typical of current mines. Instead, the
report conflates risks posed by the historical facilities to risks
posed by the 2009 facilities by comparing mining practices and
contaminants of concern released at the facilities.
    When comparing mining practices, the report does not take into
account the fact that by 2009, practices at mining facilities were
already heavily regulated. For example, the effluent limitation for
processes that use cyanide to extract gold or silver is zero
discharge.\58\
---------------------------------------------------------------------------

    \58\ See 40 CFR 440.100(d).
---------------------------------------------------------------------------

    When comparing contaminants of concern, the Evidence Report
identifies contaminants of concern at the historic sites through CERCLA
response action documentation.\59\ In contrast, at the 2009 operating
sites, contaminants of concern are identified through reports of TRI
releases and through discharge monitoring reports submitted pursuant to
Clean Water Act permits.\60\ The report fails to acknowledge that the
evidence presented regarding releases of hazardous substances from
facilities operating in 2009 is not evidence of risk. ``TRI data do not
reveal whether or to what degree the public is exposed to listed
chemicals.'' \61\ Further, releases reported under Clean Water Act
permits are regulated releases. The fact that the same hazardous
substances may be present at historic modern hardrock mining facilities
is simply a consequence of the type of ores and processes used at
hardrock mines. The mere presence of hazardous substances is not
equivalent to risk. Similarly, the existence of common environmental
receptors at historic and modern mines is not determinative of risk.
The presence of a receptor does not indicate that there are releases of
hazardous substances at levels that cause risk. Rather, the primary
determinant of risk is how current operations at the mine are
conducted, including the current regulatory regime under which they
operate. As documented in this final action, it is in this respect that
most of the historic examples discussed in the proposed rule differ
from the modern mines that would actually be subject to its
requirements.
---------------------------------------------------------------------------

    \59\ Evidence Report, at 9.
    \60\ Evidence Report, at 17.
    \61\ See https://www.epa.gov/sites/production/files/2015-06/documents/factors_to_consider_6.15.15_final.pdf.
---------------------------------------------------------------------------

    Finally, the Evidence Report admits that the releases identified as
a cause of past fund expenditures are now regulated under the Clean Air
Act and RCRA.\62\
---------------------------------------------------------------------------

    \62\ Evidence Report, at 55-56.
---------------------------------------------------------------------------

    As a result of these limitations, the Evidence Report fails to
identify substantial risks associated with modern hardrock mining
facilities and therefore does not support a rule that would impose
financial responsibility requirements on the current hardrock mining
sector.
Releases Report and Practices Report
    Implicitly recognizing the limitations of the Evidence Report, as
well as the inability to rely on reports that are decades old,\63\ EPA
developed two additional reports to attempt to provide record support
for a rule under section 108(b), the Releases Report and the Practices
Report.
---------------------------------------------------------------------------

    \63\ See the 1992 and 1997 reports cited at 82 FR 3475.
---------------------------------------------------------------------------

    The Releases Report was intended to ``substantiate the ongoing
existence of environmental risk from releases to the environment from
hardrock mining and mineral processing operations in spite of improved
regulation of and practices instituted by the hardrock mining and
mineral processing industry.'' \64\ It purports to document releases
from facilities ``that had no previous significant legacy mining
issues.'' \65\
---------------------------------------------------------------------------

    \64\ Releases Report, at 1.
    \65\ 82 FR 3471.
---------------------------------------------------------------------------

    The report lists sites that required CERCLA, CERCLA-like, and
potential CERCLA actions, and describes the release and response
narratively. However, the limitations of this report prevent it from
supporting a determination that requirements under section 108(b) for
hardrock mining facilities are appropriate. As discussed in section E,
below, and in the Technical Support Document for this final
rulemaking,\66\ the Releases Report included facilities with
significant mining activity that pre-dated modern regulation, creating
legacy contamination. The report also fails to address whether or not
the releases resulted in the expenditure of federal dollars or
appropriately distinguish releases that predate modern regulation and
are now prohibited by law or otherwise regulated.
---------------------------------------------------------------------------

    \66\ See: EPA, CERCLA Section 108(b) Hardrock Mining Final Rule:
Technical Support Document, December 1, 2017.
---------------------------------------------------------------------------

    The Practices Report purports to present information on the
potential for future releases at operating hardrock mining
facilities.\67\ However, the Practices Report acknowledges that it
cannot be used to draw conclusions about future releases, stating that:
``Many sites and facilities within the non-operating and currently
operating samples have been active for a century or longer. When a
post-1980 release occurred at these facilities, it was difficult to
determine if the equipment or practice responsible for the release was
newly constructed or part of the site's past operations.'' \68\ The
Practices Report acknowledges that ``a number of

factors limited the inferences that can be drawn from data about
releases at currently operating facilities.'' \69\
---------------------------------------------------------------------------

    \67\ Practices Report, at 1.
    \68\ Id., at 5.
    \69\ Practices Report, at 9.
---------------------------------------------------------------------------

    Both reports also lack important information on whether or not the
releases resulted in the expenditure of federal dollars or whether the
releases identified are now prohibited by law or otherwise regulated.
As noted in section E, below, and the Technical Support Document for
this final rulemaking, many of the releases discussed in those reports
are being addressed by the responsible parties.
    Despite the limitations of the Releases Report and the Practices
Report, the proposed rule claimed that they validated the conclusions
of earlier reports stating that: ``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 [the Evidence Report and the reports from 1992 and
1997] 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.'' \70\
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    \70\ 82 FR 3475.
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    As discussed above, upon reexamination, EPA now believes that none
of these reports provide an appropriate basis for identification of the
risk of hazardous substance releases at the facilities that would be
regulated under the proposed rule or the risk of federally financed
response actions at such facilities. Additional relevant information on
many of the sites discussed in these reports which helped inform EPA's
conclusions in this final rulemaking is documented in section IV.E
below and in the Technical Support Document.
2. Federal and State Regulatory Requirements
    EPA has determined that modern regulation of hardrock mining
facilities, among other factors, reduces the risk of federally financed
response actions to a low level such that no additional financial
responsibility requirements for this industry are appropriate. This
section summarizes the regulations that support that determination.
a. Federal Environmental Statutes
    The proposed rule proposed to regulate facilities that engage in
the extraction, beneficiation, and processing of metals, (e.g., copper,
gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and
non-metallic, non-fuel minerals (e.g., asbestos, phosphate rock, and
sulfur), other than placer mining, exploration only activities, and
mines and processers disturbing less than five acres.\71\ This scope
includes mines, processors, and smelters.
---------------------------------------------------------------------------

    \71\ See Proposed 40 CFR 320.60.
---------------------------------------------------------------------------

    While much mining and beneficiation is exempt from RCRA,\72\ these
activities are regulated under the Clean Water Act and the Clean Air
Act. In addition, some waste material from covered mineral processing
facilities is regulated under RCRA. Finally, permissions to mine on
federal land are subject to review under the National Environmental
Policy Act and may require the preparation of an Environmental Impact
Statement.
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    \72\ See 51 FR 24496.
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Clean Water Act
    The Clean Water Act (CWA) prohibits discharges to waters of the
United States, unless in compliance with another portion of the
Act.\73\ Principal among those other provisions is the permitting
program established under section 402 of the Act, the National
Pollution Discharge Elimination System (NPDES).\74\ Existing
dischargers of toxic and nonconventional pollutants are required to
install best available control technology that is economically
achievable.\75\ New dischargers must meet new source performance
standards, based on the best available demonstrated control technology.
If these technology-based standards do not fully protect water quality,
then a facility must adopt additional controls to meet applicable water
quality standards (water quality-based effluent limitations).\76\
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    \73\ 33 U.S.C. 1311.
    \74\ 33 U.S.C. 1342.
    \75\ 33 U.S.C. 1311.
    \76\ 33 U.S.C. 1311(b)(1)(C).
---------------------------------------------------------------------------

    Technology-based effluent limitations for hardrock mining are found
at 40 CFR part 440. The Ore Mining and Dressing Effluent Guidelines
apply to facilities in twelve subcategories as follows:

Iron Ore
Aluminum Ore
Uranium, Radium and Vanadium Ores
Mercury Ore
Titanium Ore
Tungsten Ore
Nickel Ore
Vanadium Ore (Mined Alone and Not as a Byproduct)
Antimony Ore
Copper, Lead, Zinc, Gold, Silver, and Molybdenum Ores
Platinum Ores
Gold Placer Mining

    The Background Document for the proposed financial responsibility
formula states: ``Nearly three-quarters of the 354 currently operating
facilities report mining five commodities (gold, iron, copper,
phosphate, and uranium), with gold mines alone making up nearly half of
the universe.'' \77\ Accordingly, subpart J, the Copper, Lead, Zinc,
Gold, Silver, and Molybdenum Ores Subcategory, is of particular
relevance. Last amended in 1982 (effective January 1983), this subpart
applies to:
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    \77\ EPA-HQ-2015-0781-0500 at 3-11.
---------------------------------------------------------------------------

    (1) Mines that produce copper, lead, zinc, gold, silver, or
molybdenum bearing ores, or any combination of these ores from open-pit
or underground operations other than placer deposits;
    (2) Mills that use the froth-flotation process alone or in
conjunction with other processes, for the beneficiation of copper,
lead, zinc, gold, silver, or molybdenum ores, or any combination of
these ores;
    (3) Mines and mills that use dump, heap, in-situ leach, or vat-
leach processes to extract copper from ores or ore waste materials; and
    (4) Mills that use the cyanidation process to extract gold or
silver.\78\
---------------------------------------------------------------------------

    \78\ 40 CFR 440.100.
---------------------------------------------------------------------------

    Under this subpart, the following activities must meet an effluent
limitation of zero discharge:
    (1) Mine areas and mills processes and areas that use dump, heap,
in situ leach or vat-leach processes to extract copper from ores or ore
waste materials (40 CFR 440.103(c)); and
    (2) Mills that use the cyanidation process to extract gold or
silver (40 CFR 440.103(d)).
    In addition, drainage from all mines in this subcategory and
discharges from mills in this category that use a froth-flotation
process must meet limitations for copper, zinc, lead, mercury, and
cadmium.
    Discharges to water from mineral mining and processing facilities
are regulated under 40 CFR part 436. Last amended in 1979, these
regulations require best practicable control technology for wastewater
discharges from mine drainage, mineral processing operations and
stormwater runoff. This part includes subpart R, which applies to the
mining and the processing of phosphate bearing rock, ore or earth for
the phosphate content. These regulations regulate the pH of discharges
from phosphate mines and limit discharges of total suspended solids
from such mines to a daily maximum concentration of 60 mg/l.
    The Clean Water Act regulates discharges of pollutants from
smelters under 40 CFR part 421 (Nonferrous Metals Manufacturing
Category). Last

amended in 1984, these regulations limit pH and the concentration of
metals in discharges.
Clean Air Act
    The Clean Air Act regulates air emissions from industrial processes
like mining and mineral processing. These include National Emissions
Standards for Hazardous Air Pollutants (NESHAPs) as well as New Source
Performance Standards (NSPS).
    The 2011 NESHAP for gold ore processing and production facilities
controls mercury air emissions from these facilities. 40 CFR part 63,
subpart EEEEEEE.
    On June 12, 2002, EPA promulgated final air toxics standards for
the Primary Copper Smelting major sources 40 CFR part 63, subpart QQQ.
These regulations control emissions of arsenic, beryllium, cadmium,
chromium, lead, manganese and nickel. On June 4, 1999, EPA promulgated
a NESHAP for primary lead smelting (40 CFR part 63, subpart TTT) that
controls emissions of lead. In 2007, EPA promulgated a NESHAP for zinc,
cadmium and beryllium smelters (40 CFR part 63, subpart GGGGGG), and
those regulations established a particulate matter standard. Under
section 111 of the CAA, New Source Performance Standards (NSPS)
applicable to metallic mineral-processing plants have been established
(40 CFR part 60, subpart LL control emissions of particulate matter).
EPA's 1976 NSPS for primary lead smelting (40 CFR part 60, subpart R)
controls emissions of particulate matter.
RCRA
    While most hardrock mining and beneficiation waste is exempt from
RCRA subtitle C,\79\ mineral processing waste (other than twenty
``special wastes'') are not.\80\ Thus, mineral processing facilities
may be regulated under RCRA Subtitle C. The management of hazardous
wastes is generally subject to strict minimum technology
requirements.\81\ Land disposal of hazardous wastes is prohibited
unless treatment standards are met.\82\
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    \79\ 51 FR 24496 (July 3, 1986).
    \80\ See the list at https://www.epa.gov/hw/special-wastes#mining.
    \81\ 42 U.S.C. 6924(o).
    \82\ 42 U.S.C. 6924(d)-(g).
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National Environmental Policy Act
    The National Environmental Policy Act (NEPA) requires an
environmental review of major federal actions significantly affecting
the quality of the human environment.\83\ Major federal actions include
the issuance of federal permits or permission to use federal lands.\84\
Mining activities on federal lands are generally subject to NEPA.
Accordingly, the potential environmental impacts of those activities
are considered and publicly disclosed before they occur. These reviews
include consideration of impacts to surface water, ground water, air,
soils, ecosystems, wetlands, endangered species, and flood plains.
---------------------------------------------------------------------------

    \83\ 42 U.S.C. 4332.
    \84\ 40 CFR 1508.18.
---------------------------------------------------------------------------

b. Federal Land Management Laws
    The Bureau of Land Management (BLM) and the Forest Service (herein
referred to at the Federal Land Management Agencies (FLMAs), have both
promulgated regulations that apply to hardrock mining operations on
land they manage.
    BLM has promulgated regulations under the Federal Land Policy and
Management Act (43 U.S.C. 1701 et seq.) that apply to hardrock mining
operations on BLM land. These regulations include a requirement to
develop a plan for reclamation of disturbed areas and a financial
guarantee sufficient to fund completion of the reclamation plan.\85\
---------------------------------------------------------------------------

    \85\ 43 CFR part 3800, subpart 3809.
---------------------------------------------------------------------------

    In order to obtain a permit to mine on public lands, the operator
must submit a plan of operations that includes plans for water
management, rock characterization and handling, spill contingency, and
reclamation.\86\ The plan of operations for the mine cannot be approved
until thirty days after a final environmental impact statement has been
prepared and filed with EPA.\87\ The required reclamation plan must
detail stabilization of land disturbed for mining, reclaiming and
reshaping the land, wildlife rehabilitation, controlling potentially
hazardous materials, and post-closure management.\88\
---------------------------------------------------------------------------

    \86\ 43 CFR 3809.1-6.
    \87\ 43 CFR 3809.1-6.
    \88\ 43 CFR 3809.1-3(d).
---------------------------------------------------------------------------

    Like BLM, the Forest Service also requires a plan of operation that
includes a plan for reclamation of mining disturbances on Forest
Service lands.\89\ The requirements for environmental protection are
set forth in 36 CFR 228.8 and include compliance with all air quality,
water quality, and solid waste standards; protection of scenic values;
and reclamation to control erosion and water runoff, isolate, remove or
control toxic materials, reshape and revegetate disturbed areas, and
rehabilitate fisheries and wildlife habitat. The Forest Service
requires a bond to cover the cost of stabilizing, rehabilitating, and
reclaiming the area of operations.\90\ Like a BLM plan of operations,
approval of a Forest Service plan of operations also is subject to
NEPA.
---------------------------------------------------------------------------

    \89\ 36 CFR part 228.
    \90\ 36 CFR 228.13.
---------------------------------------------------------------------------

    The Forest Service regulations allow the Forest Service to require
a modification to the Plan of Operations and reclamation plan (36 CFR
228.4(e)) and adjust the bond to cover the modified plan (36 CFR
228.13(c)).
    EPA's conclusion that BLM and Forest Service regulations address
risks at hardrock mining facilities is further supported by the
comments submitted by these agencies, discussed below.
c. Other Existing Regulatory Requirements
    The proposed rule stated that addressing CERCLA liabilities is
different from the mine reclamation bonding requirements required by
BLM, the Forest Service, or state requirements that seek to ensure
compliance with technical engineering requirements imposed through a
permit, or to ensure proper closure or reclamation of an operating
mine.\91\ This discussion in the proposed rule was intended to
highlight legal distinctions between the section 108(b) requirements
and the requirements of other federal and state programs. However, even
when developing the proposed rule, EPA acknowledged the overlap between
the risks to be addressed by section 108(b) and existing federal and
state regulations. EPA now recognizes that the existence of these other
programs, whatever legal differences there may be in their intent and
implementation, are critical to understanding ``the degree and duration
of risk associated with the production, transportation, treatment,
storage, or disposal of hazardous substances'' as well as the risk to
taxpayers of being required to fund response activities under CERCLA,
which are the primary factors relevant to EPA's determination of the
need for and appropriate level of financial responsibility requirements
under section 108(b).
---------------------------------------------------------------------------

    \91\ 82 FR 3403.
---------------------------------------------------------------------------

    For example, 16 of the 27 sites discussed in the Releases Report
are called ``CERCLA-like'' releases. Thus, according to the Releases
Report, these sites present the same type of risk that is to be
addressed under section 108(b). However, as discussed below and in the
Technical Support Document for this final rulemaking, we have
documented no expenditure of funds by EPA for those ``CERCLA-like''
releases, which,

as is explained in the Releases Report, are being addressed under other
state and Federal programs, demonstrating that modern regulation
adequately addresses the risk of Fund financed response action posed by
these sites.\92\
---------------------------------------------------------------------------

    \92\ The limited number of sites referenced in the Releases
Report for which there were CERCLA actions and EPA expenditures are
discussed below.
---------------------------------------------------------------------------

    Even the methodology used in the proposed rule to develop the
proposed financial responsibility requirements shows that the actual
physical risks addressed by modern regulations are essentially the same
as the risks to be addressed by section 108(b). The Background Document
for the financial responsibility formula demonstrates that the costs of
existing federal and state reclamation and closure requirements were
used to develop costs for the categories of response activities that
are the building blocks of financial responsibility requirements under
the proposed rule.\93\ Thus, the proposed financial responsibility
requirements largely address the same risks that are addressed by
existing regulatory requirements.
---------------------------------------------------------------------------

    \93\ See CERCLA 108(b) Financial Responsibility Formula For
Hardrock Mining Facilities, Background Document, Sept. 19, 2016
(EPA-HQ-2015-0781-0500), at 2-17, Table 2.2. See also 82 FR 3462
(``EPA found that such engineering cost data was readily available
from cost estimates developed for state and Federal mining
reclamation and closure plans, and associated documents.'').
---------------------------------------------------------------------------

    This conclusion is further supported by comments submitted by the
Forest Service, and a number of states opposing the proposed rule. The
Forest Service demonstrated in their comments how their regulations
address the same physical risks that are captured in the response
categories that are the building blocks of the proposed section 108(b)
financial responsibility formula.\94\ The states of Alaska, Nevada, New
Mexico, and South Dakota each provided a similar analysis for their
state, and the Interstate Mining Compact Commission provided analyses
for Arizona, South Dakota, and Utah.\95\ The National Mining
Association (NMA) also compiled similar information for 15 states.\96\
---------------------------------------------------------------------------

    \94\ See comment from the Forest Service, EPA-HQ-SFUND-2015-
0781-2400, at page 2.
    \95\ Alaska (Attachment 5/Attachment D to EPA-HQ-SFUND-2015-
0781-2785); Nevada (Appendix to EPA-HQ-SFUND-2015-0781-2651); New
Mexico (Attachment A at p. 17 of EPA-HQ-SFUND-2015-0781-2676); South
Dakota (Attachment to EPA-HQ-SFUND-2015-0781-2419); IMCC (showing
results for Arizona, South Dakota, and Utah at EPA-HQ-SFUND-2015-
0781-2758 & EPA-HQ-SFUND-2015-0781-2757).
    \96\ EPA-HQ-SFUND-2015-0781-2794 at Appendix A.
---------------------------------------------------------------------------

    In conclusion, EPA is convinced by the arguments made by state and
Federal commenters that the risks sought to be addressed by the
proposed rule are already addressed by existing state and Federal
programs. The proposed rule would have considered the risk reduction of
existing regulations only as a means to reduce the amount of otherwise
required financial responsibility and sought comment on several aspects
of this approach. EPA is now convinced that those regulations obviate
the need for additional financial responsibility requirements under
section 108(b) on the hardrock mining sector. As stated by the Forest
Service:

    [T]he fact that EPA refers to existing regulations as a
rationalization for building the requirements of a particular
reduction [in financial responsibility] serves to underline that
these existing regulations serve the purpose that EPA hopes is
served by the proposed rule: To reduce the risk of a release of a
hazardous or toxic substance. Therefore, the specific requirements
in the reductions are unnecessary, because other programs with more
site-specific presence than EPA has, are already requiring these
actions, using site-specific conditions as criteria for design of
the mitigations in question. Thus, the outcome is that EPA is
attempting to regulate that which is already regulated.\97\
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    \97\ See comment EPA-HQ-SFUND-2015-0781-2400, at page 11.
---------------------------------------------------------------------------

3. Risk of Payments From the Fund
    According to the preamble of the proposed rule, EPA estimated that
the historical costs of responding to releases from 243 hardrock mining
and minerals processing facilities totaled $12.9 billion, of which
approximately $4 billion was paid for through EPA's Superfund program.
EPA relied on this estimate to conclude that: ``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.'' \98\
---------------------------------------------------------------------------

    \98\ 82 FR 3479.
---------------------------------------------------------------------------

    As discussed above, EPA has now determined that as a result of
modern regulations, the degree and duration of risk associated with the
modern production, transportation, treatment, storage or disposal of
hazardous substances by the hardrock mining industry does not present a
level of risk of taxpayer funded response actions that warrant
imposition of financial responsibility requirements for this sector.
    EPA acknowledges that the Agency has incurred response costs at
mining sites. However, as many commenters have noted, the vast majority
of those costs have been to address legacy practices. EPA also
acknowledges that there are a handful of examples of sites where EPA
has incurred response costs, notwithstanding regulation under the Clean
Water Act, or other state and federal law. However, the Agency does not
believe that these few examples are an appropriate basis for regulation
under CERCLA section 108(b).
    The record for the proposed rule includes background information on
response costs, expenditures, and settlements at 185 NPL sites and 134
non-NPL sites to inform the proposed financial responsibility
formula.\99\ To develop this information, EPA collected and reviewed
data available in the Comprehensive Environmental Response,
Compensation, and Liability Information System (CERCLIS), the
Integrated Financial Management System (IFMS), and the Office of
Enforcement and Compliance Assurance (OECA) settlements database, as
well as a 2004 report of the EPA Inspector General, and a 2010 report
from the Government Accountability Office.\100\ As part of this
analysis, EPA combined data from CERCLIS and IFMS into a Microsoft
Access file to summarize Fund expenditures incurred at each hardrock
mining facility for which EPA had data (as of 2011).\101\ A link to an
FTP site containing these files was provided in the docket.\102\
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    \99\ CERCLA 108(b) Financial Responsibility Formula For Hardrock
Mining Facilities, Background Document, Sept. 19, 2016 (EPA-HQ-2015-
0781-0500), at sections 2.1 and 2.2, and Appendix B. The formula
also includes estimated costs for natural resources damages and
public health assessments. However, both are a function of a release
that requires a response action. In the formula, health assessment
costs are simply a fixed cost of $550,000 and the natural resource
damages are assumed based on a percentage of the response costs. Id.
at section 5 and page 6-2.
    \100\ Id. at 2-1. EPA was able to obtain cost information for
319 hardrock mining facilities.
    \101\ Id. at 2-2. If EPA itself had incurred expenditures at a
hardrock mining facility, those expenditures would have been
included in the data pulled from these databases.
    \102\ It also is available here: ftp://newftp.epa.gov/CERCLA108B.
---------------------------------------------------------------------------

    While the purpose of this data collection was to support the
development of the financial responsibility formula, it also can be
used to examine Fund expenditures at specific sites. For example, the
results of a query of the Microsoft Access file on site expenditures
results in a table that has data for only eight of the 27 sites
identified in the Releases Report.\103\ The

discussion of why the releases at these sites do not support the
proposed rule is discussed in the Technical Support Document
accompanying this final rulemaking.\104\ Of the eight, seven are gold
or gold and silver mines. Of the seven, six were operational after the
effective date of Clean Water Act effluent limitations applicable to
cyanide heap leach mining processes. Thus, regulation does not always
prevent releases. In fact, the release at the Summitville Mine in
Colorado was significant and the response was very costly. As discussed
in the Technical Support Document accompanying this final rulemaking,
the costs of response at that site included costs of addressing acid
mine drainage from legacy (since 1890) operations, unrelated to the
releases from cyanide heap leach process. Further, Colorado has since
changed its regulation to prevent a repeat of the releases that
occurred from the heap leach process at Summitville. Thus, Summitville
mine is not an example of current risk. However, it also is important
to understand that, according to a 1996 retrospective review of
Summitville prepared by an EPA Region 8 employee and the Colorado
Department of Natural Resources, the Colorado-issued Clean Water Act
permit, which assumed no discharge from the heap leach process, was
based on an erroneous water balance calculation for the site. The
permit assumed that evaporation would be greater than
precipitation.\105\ EPA's financial responsibility formula similarly
relies on water balance data, and could be subject to the same type of
error, demonstrating that neither regulation nor financial
responsibility requirements are infallible.\106\
---------------------------------------------------------------------------

    \103\ See the site expenditure table from the D Site Exp.accdb
file on the FTP site. These sites are Barite Hill, a gold and silver
mine in South Carolina ($6.3 million), Brewer Gold, a gold and
silver mine in South Carolina ($12.3 million), Cimarron Mine, a gold
mine in New Mexico ($3.5 million), Formosa Mine, a copper and zinc
mine in Oregon ($3.1 million), Gilt Edge mine, a gold and silver
mine in South Dakota ($75 million), Grouse Creek mine, a gold mine
in Idaho ($314,000), Silver Mountain, a gold and silver mine in
Washington ($1.4 million), and Summitville, a gold and silver mine
in Colorado ($226 million). These numbers are presented in nominal
dollars and are current as of 2011. The Microsoft Access file on
settlements available at the same FTP site shows past cost
settlements totaling $12.7 million at Gilt Edge, response work and
past cost settlements totaling over $9 million at Grouse Creek, and
past cost and future cost settlements at Summitville totaling
approximately $49 million. See the settlements table from the
cerclis_historical_sites_41612.accdb file on the FTP site.
    \104\ The Technical Support Document addresses all but two of
the eight sites discussed in the Releases Report for which there is
a record of Fund expenditures. Silver Mountain is a gold and silver
mine that operated beginning in 1928 and that used a cyanide heap
leach process before the promulgation of strict Clean Water Act
regulations for those processes. See Releases Report, at 7. Grouse
Creek was operated by Hecla Mining Company and the Microsoft Access
files on the FTP site show only $314,000 in EPA expenditures and a
greater amount in cost recoveries. Thus, these sites are not
evidence of risk of Fund-financed response actions at currently
operating sites.
    \105\ The Mining History and Environmental Clean-up at the
Summitville Mine. Colorado Geological Society Open File Report 96-4.
Available at http://2fdpn7hy0ht206jws2e9og41.wpengine.netdna-cdn.com/wp-content/uploads/2013/08/38.pdf.
    \106\ EPA-HQ-2015-0781-0500, at section 3.4.
---------------------------------------------------------------------------

    Issues with the financial responsibility formula in the proposed
rule are also discussed in, January 19, 2017 comments submitted by the
Small Business Administration (SBA) Office of Advocacy. SBA used data
in the record to compare the results of the proposed financial
responsibility formula against actual site costs at six mining sites.
The formula both underestimated, and in some cases greatly
overestimated the costs of response. For example, at one mine the
actual costs to address an open pit were $77,000, while the formula
would have required financial responsibility in the amount of
$197,900,000 for this response activity.\107\ At another site, the
formula would have required evidence of financial responsibility to
cover interim operation and maintenance at a level of $69 million while
the actual costs reported by the site operator who is paying for the
response action pursuant to its reclamation plan were over $96
million.\108\ EPA acknowledges that any formula with limited site
specific information is necessarily a very imprecise means of
determining potential response costs, and may significantly over or
underestimate actual costs, as documented in the SBA comments. As noted
by several commenters, financial assurance amounts established by state
and other Federal regulatory programs are usually informed by site-
specific assessments by on-the-ground regulators and are thus likely to
better reflect actual response costs.
---------------------------------------------------------------------------

    \107\ EPA-HQ-SFUND-2015-0781-1406, at 18.
    \108\ Id. (discussing Hycroft Resources, an active gold mine in
Nevada). See also discussions of Hycroft in the Background Document
for the financial capability formula. EPA-HQ-SFUND-2015-0781-0500.
---------------------------------------------------------------------------

    The conclusion that modern regulation has greatly reduced the risk
of taxpayer financed response actions also is supported by the
experience of other federal agencies. For example, in letters sent to
Senator Murkowski, BLM and the Forest Service stated that no modern
mines permitted since 1990 by either BLM or the Forest Service have
been added to the NPL. When asked how many mining plans of operation
BLM and Forest Service have approved since 1990, and how many of the
corresponding sites have been placed on the NPL, BLM responded that it
had approved 659 plans since 1990 and none had been added to the NPL
and the Forest Service reported approval of 2,685 plans since 1990 with
no sites being placed on the NPL.\109\ These data support a conclusion
that federal financial responsibility programs (and related mining
engineering and permitting requirements) have been effective at
lowering risk, reducing taxpayer liability, and contrasts strongly with
the historical record involving legacy mines.
---------------------------------------------------------------------------

    \109\ Letter dated June 21, 2011 from BLM Director Robert Abbey
to Senator Lisa Murkowski, dated June 21, 2011; Letter dated July
20, 2011 from USDA Secretary Thomas Vilsack to Senator Lisa
Murkowski, dated July 20, 2011. The letters were written in response
to several questions posed by Senator Murkowski relating to hardrock
mining programs on BLM and Forest Service lands.
---------------------------------------------------------------------------

    States have had similar experience with their own programs. The
state of Nevada, which has roughly one fourth of hardrock mines in the
potentially regulated universe of mines developed by EPA for purposes
of analysis in the proposed rule, has not had a case involving taxpayer
funded response action since 1991, when the state's new rules were put
in place.\110\
---------------------------------------------------------------------------

    \110\ Nevada comments, at Appendix 3 (EPA-HQ-SFUND-2015-0781-
2651).
---------------------------------------------------------------------------

    EPA considered these examples of the limited payment experience of
the Fund, as well as the record relating to payments covered by federal
and state financial responsibility instruments required under other
federal and state law, and payments made pursuant to settlements and
voluntary response actions \111\ to further support EPA's determination
that the degree and duration of risk associated with the modern
production, transportation, treatment, storage or disposal of hazardous
substances by the hardrock mining industry does not present a level of
risk of taxpayer funded response actions that warrant imposition of
financial responsibility requirements for this sector.
---------------------------------------------------------------------------

    \111\ EPA considers this information to be encompassed by the
categories of information set forth in section 108(b)(2) (``payment
experience of the Fund, commercial insurers, courts settlements and
judgments, and voluntary claims satisfaction'').
---------------------------------------------------------------------------

C. Comments Supporting a Final Rulemaking

    EPA received many comments on the proposed rule that expressed
support for promulgation of financial responsibility requirements under
section 108(b). Sixty comments from individual private citizens
encouraged EPA to issue final requirements, as did four mass mailing
letter campaigns sponsored by the Idaho Conservation League, Water
Legacy, Friends of the Boundary Waters Wilderness, and Earthworks. The
main comment in support of the rule came

from Earthworks, representing 35 different environmental groups.\112\
---------------------------------------------------------------------------

    \112\ Earthworks submitted comments on the proposed rule
representing: Inform, Western Organization Resource Councils,
Minnesota Center for Environmental Advocacy, Upper Peninsula
Environmental Coalition, Natural Resources Council of Maine, Montana
Environmental Information Center, Greater Yellowstone Coalition,
Conservation Law Foundation, Northeastern Minnesotans for
Wilderness, Friends of The Boundary Waters Wilderness, Northern
Alaska Environmental Center, Save Our Sky Blue Waters, Gila
Resources Information Project, Brooks Range Council, The Lands
Council, Campaign to Save the Boundary Waters, Friends of The
Clearwater, Rock Creek Alliance, Save Our Cabinets, Patagonia Area
Resources Council, Friends of the Kalmiopsis, Clean Water Alliance,
Water Legacy, Park County Environmental Council, Great Basin
Resource Watch, Wisconsin Resources Protection Council, Rivers
Without Borders, Spokane Riverkeepers, Western Watersheds Project,
Okanagan Highlands Alliance, Boise Chapter Great Old Broads for
Wilderness, Copper Country Alliance, Nunamta Aulukestai, and Idaho
Conservation League.
---------------------------------------------------------------------------

    Earthworks, et al. commented that CERCLA financial assurance
regulations are necessary to ensure enough funds are available to
complete cleanup actions without shifting the burden to the general
public. They also stated in their comments that the proposed
regulations did not duplicate existing state rules, which they argued
do not cover pipeline spills, tailings spills, tailings impoundment
failures and other releases of hazardous materials which commonly occur
at hardrock mines, and can result in substantial liabilities.\113\ In a
separate comment on the proposed rule, the Idaho Conservation League
stated that the state of Idaho's financial assurance requirements do
not authorize bonding for groundwater contamination and water treatment
in perpetuity and that a section 108(b) rule is necessary to close that
gap.\114\
---------------------------------------------------------------------------

    \113\ See comment from Earthworks, et al., EPA-HQ-SFUND-2015-
0781-2739, at page 2.
    \114\ See comment from Idaho Conservation League, EPA-HQ-SFUND-
2015-0781-2700, at page 1.
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    In their comments on the proposed rule, Earthworks stated that:
``Strong CERCLA 108(b) regulations are necessary to protect taxpayers
from incurring the cost of mine clean-up, and to ensure that clean-up
of hazardous materials at mine sites occur in a timely manner.'' To
support their conclusion, they specifically mentioned a 2005 report by
the Government Accountability Office (GAO) that concluded that EPA
should ``fully use its existing authorities to better ensure that those
businesses that cause pollution also pay to have their contaminated
sites cleaned up.'' \115\ They also pointed to a 2004 report by EPA's
Office of Inspector General (IG) that identified 29 specific sites
where, according to the IG, cleanup work was delayed or scaled back in
ways harmful to human health and the environment because of funding
shortfalls.\116\ In addition to this report, Earthworks identified in
their comments other examples of cleanup efforts at mines that they
stated remain uncompleted due to insufficient funds being available, or
that took an inordinate amount of time to complete, exposing the public
to dangerous substances. As discussed in the specific case studies and
the accompanying Technical Support Document, a number of the examples
cited by the IG and Earthworks are not representative of the risk posed
by currently operating hardrock mining facilities.
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    \115\ Earthworks, et al., EPA-HQ-SFUND-2015-0781-2739, page 5.
    \116\ Ibid. page 5, 6.
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    EPA appreciates Earthworks' concern that insufficient funds leads
to incomplete or slow cleanup and restoration of mine sites. Earthworks
acknowledges that the universe of entities that EPA proposed to
regulate under the proposed rule excluded mines that are no longer
operating. They recommended that the universe be expanded to cover mine
operations that are no longer active but still retain a responsible
party. They state that, ``Many past hardrock mining facilities are
already and/or will be the site of CERCLA liabilities and necessary
response actions. The CERCLA 108(b) regulations should apply to these
operations.'' \117\ EPA disagrees with this comment, and notes that the
Agency has determined the goals of a section 108(b) rule as described
in the proposal have already been satisfied.
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    \117\ Ibid., page 11.
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    Earthworks also commented that ``CERCLA 108(b) regulations are
essential because they address risks and liabilities that aren't
addressed in most other State or federal land management financial
assurance programs, including spills, accidental releases, and tailings
failures.'' \118\ To support this conclusion, they point to several
instances in ongoing mining operations where there are impacts to
natural resources and/or groundwater due to ongoing mining operations
which other federal or state rules fail to regulate. Earthworks also
submitted comment claiming the need for financial responsibility for
long-term water treatment. EPA recognizes that some historical mining
operations have resulted in the need for long-term water
treatment.\119\ However, modern regulation of both process discharges
and runoff, as well as reclamation requirements to control sources of
contamination, significantly address those risks. Additionally, as
discussed above, while EPA acknowledges that the risk of a release is
never totally eliminated by the requirements of other programs, this
residual risk is to be evaluated in light of EPA's discretion under the
statute on whether to set section 108(b) requirements, and in light of
the other information in the record for this action discussed elsewhere
in this final rulemaking. Viewed in this manner, such residual risk
does not change EPA's conclusion that it is not appropriate to issue
final section 108(b) requirements for current hardrock mining
operations.
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    \118\ Ibid., page 12.
    \119\ Ibid., page 2.
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    Water Legacy and Friends of the Boundary Waters Wilderness
submitted separate comments expressing concern that Minnesota's
financial assurance laws, for instance, are not adequate to cover mine
pit seepage, waste rock pile seepage, tailings dam seepage and/or
catastrophic dam failures.\120\ However, as is discussed in the site
examples elsewhere in this final rulemaking and accompanying Technical
Support Document, commenters submitted information to demonstrate that
most releases at currently operating facilities are being addressed by
owners and operators, and that the costs of these incidents at modern
operations are generally not falling to the taxpayer.
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    \120\ See comment from Water Legacy, EPA-HQ-SFUND-2015-0781-
2649, at page 3.
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    EPA received comments from three federally-recognized tribes and
from three Alaska Native Claims Settlement Act (ANCSA) resource
managers regarding section 108(b) financial responsibility. Tribal
comments were generally in support of the proposed rule, and cited some
concerns about the potential negative impacts of hardrock mining on
commercial enterprises and on subsistence living, along with the need
to more fully identify the benefits of the rule. A primary ANCSA
concern was that the section 108(b) financial responsibility
requirements would duplicate existing federal and state requirements,
resulting in a negative impact on Alaska Natives and states, that
receive royalties through the Regional and Village Corporations. These
comments are discussed in section VIII.G.

D. Comments Opposing a Final Rulemaking

1. Comments Regarding Appropriateness of Information Used
a. Use of Information Not Relevant to the Mines To Be Regulated Under
the Rule
    Many commenters on the proposed rule, including mining companies,
trade associations, as well as state and federal agencies, commented
that EPA's record incorrectly characterized the on-going environmental
risk at operating hardrock mining facilities by relying on information
related to mines that were constructed and operated before current
regulatory requirements were in place, rather than on information
specific to current hardrock mining activities, which are highly
regulated. Commenters argued that since the rule would not apply to
inactive, non-operating sites, EPA should not rely on information
related to such sites as part of its rulemaking record to justify the
need for financial responsibility requirements for current hardrock
mining operations. Several commenters disagreed with EPA's assertion in
the proposed rule that the $4 billion spent by EPA through the
Superfund for cleanup costs at historical hardrock mining facilities is
an indication of the relative risk present at the facilities covered by
the proposed rule. Commenters argued that the 2009 Priority Notice and
the proposed rule did not differentiate between costs associated with
the highly-regulated mining practices of today and pre-regulation
practices in developing that number.
    EPA agrees with commenters that information about facilities that
present a level of risk similar to those proposed to be regulated is
the most appropriate focus for the Agency's record for this action. EPA
also agrees with commenters that because mining practices have changed
significantly over the past several decades, information related to
risk presented by mines that operated before those changes occurred may
not reflect the level of risk presented by currently operating
facilities that include controls such as surface water containment
structures, engineered storage facilities, water treatment, impermeable
liners, and leak detection and recovery systems. Finally, EPA agrees
with commenters that the cost of addressing releases from mines that
operated without the controls in place today should not be assumed to
be comparable to the cost of addressing releases from current
operations, where controls such as monitoring assure early detection.
    Commenters objected to the use of 1980 in the Practices
Report,\121\ (CERCLA was enacted in December 1980) as the point when
``historic'' mining practices changed over to ``modern'' ones. They
felt this ignored the evolution of mining practices that took place
since 1980, in response to other environmental laws, as well as state
mining regulations which were still in their infancy in 1980. Some
commenters seemed to agree that EPA should consider ``modern'' mining
practices to have begun post-1990, and some suggested that the mid-
1990s was the true beginning of modern hardrock mining practices.
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    \121\ EPA relied on this date numerous times in the Practices
Report (e.g., pages 7, 8, 72, 119, 126, 127, 133, 145).
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    In evaluating the record for this rulemaking, EPA considered the
issue of when mining operations became ``modern'' or ``current.'' EPA
recognizes that there are not nationally-applicable federal standards
governing the operation of mines,\122\ and that the current regulatory
scheme of federal and state mining programs has evolved over time.
Thus, the requirements of individual hardrock mining programs developed
at different paces and sequences. One commenter provided a table
demonstrating the evolution of hardrock mining programs over time,
extending from 1972 to 2014, and including the adoption of regulations
in Alaska, Arizona, Arkansas, Montana, New Mexico, Nevada, and Utah
during that period of time.\123\ EPA has therefore concluded that no
particular date in the past reliably distinguishes between ``historic''
or ``legacy'' and ``current'' or ``modern'' mines nationwide, and that
a better approach is to consider operations taking place under the
current applicable regulatory scheme as ``current'' operations, and
mine operations that took place before the enactment of the currently
applicable and relevant requirements as ``historic'' or ``legacy.''
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    \122\ In 1986 EPA made a determination under section
3001(b)(3)(C) of RCRA that wastes from the extraction of ores did
not pose a significant enough risk to warrant regulation under
Subtitle C of RCRA. 51 FR 24496.
    \123\ See comment from Freeport-McMoRan, EPA-HQ-SFUND-2015-0781-
2793, Attachment B.
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b. Use of Data That Did Not Directly Demonstrate Risk at Current
Hardrock Mining Operations
    Some commenters who opposed the rule objected to EPA's analysis of
the information presented in the 2009 Priority Notice relating to
hardrock mining risk. Commenters objected that EPA relied on
inappropriate information to demonstrate risk at current hardrock
mining operations, by focusing on data that does not address potential
exposure to CERCLA hazardous substances, or the possibility that a
CERCLA response action may occur in the future, that is--Toxics Release
Inventory (TRI), and data from the Hazardous Waste Biennial Report
(BR).\124\ Commenters argued that EPA's approach to identifying
hardrock mining did not evaluate actual or potential risk.
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    \124\ See, for example, comment from Comstock Mining, Inc., EPA-
HQ-SFUND-2015-0781-2735, at page 31.
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    EPA agrees with commenters that information regarding releases from
hardrock mining facilities does not, in and of itself, demonstrate
risk. For example, as noted in EPA's ``Factors to Consider When Using
Toxics Release Inventory Data'' (2015), ``TRI data do not reveal
whether or to what degree the public is exposed to listed chemicals.''
\125\ In fact, TRI data generally encompass releases that are permitted
under the Clean Air Act (CAA), the Clean Water Act (CWA), or the Safe
Drinking Water Act, as well as the lawful disposal of hazardous
substances. Accordingly, EPA agrees that TRI data cannot help predict
the risk associated with potential mismanagement and therefore cannot
be used to support any determination under CERCLA section 108(b) that
imposing financial responsibility requirements on a sector is
appropriate. Similarly, EPA agrees that BRS data and National Response
System (previously referred to as the Emergency Response Notification
System (ERNS) data do not provide information on the risk, if any,
posed by the management of hazardous substances at hardrock mines.
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    \125\ See https://www.epa.gov/sites/production/files/2015-06/documents/factors_to_consider_6.15.15_final.pdf.
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    Another commenter stated that EPA's methodology for assessing risk
was simply to describe some of the major mining practices that
contributed to past CERCLA releases and simplistically conclude that
similar practices are used today. The commenter argued that this
approach is not accurate because it fails to account for the major
changes in mining practices and regulatory requirements that are
applied to modern mines. EPA agrees that it is important to consider
modern mining practices and current regulatory regimes and has adopted
that approach in this final action.
2. Comments That EPA Failed To Consider Relevant Information
    Commenters on the 2009 Priority Notice and the proposed rule
objected

that EPA failed to consider relevant information in the 2009 Priority
Notice and the proposed rule, specifically on the role of federal and
state regulatory programs and protective practices in reducing risks at
current hardrock mining operations, and on information on reduced costs
to the taxpayer from regulatory programs and cleanup by owners and
operators. For example, the American Exploration and Mining Association
(AEMA) commented that the Federal Land Management Agencies and the
states have significantly evolved their financial assurance programs
with specific emphasis on post-closure care and maintenance, thereby
minimizing the long-term potential for releases of hazardous substances
and un-bonded agency liability. AEMA further commented that existing
financial responsibility programs are working at modern mines and there
is no need for a costly EPA program.\126\
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    \126\ See comments from American Exploration and Mining