Association at Docket ID Number EPA-HQ-SFUND-2015-0781-2657, page 2.
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a. Comments Providing Information on the Role of Federal and State
Programs and Protective Mining Practices in Reducing Risks at Current
Hardrock Mining Operations
    Many commenters who opposed the rule objected that EPA's analysis
failed to consider the technical or engineering requirements specified
by other regulatory programs or the requirements that financial
assurance be established to ensure that required measures will be
funded when needed. The commenters stated that both types of
requirements significantly decrease the risks posed by modern mines,
including both risks to the environment and risks that potential future
liabilities will not be funded by mining companies.\127\ EPA agrees
that due to the increased regulation of hardrock mining practices over
the past several decades, mining operations are conducted in a manner
that does not present the same level of risk as practices of the past.
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    \127\ Freeport-McMoRan Inc; Fertilizer Institute;
MiningMinnesota; New Mexico Environment Department and New Mexico
Energy, Minerals, and Natural Resources Department; Colorado
Department of Natural Resources, Division of Reclamation, Mining and
Safety; National Mining Association.
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    Commenters provided extensive information regarding the
requirements of those programs including design standards, engineering
controls, and environmental monitoring. Commenters argued that
engineering controls and best practices reduce the degree and duration
of risk associated with the modern production, transportation,
treatment, storage, and disposal of hazardous substances to minimal
levels and that no additional financial responsibility requirements are
necessary to protect the taxpayer or the Superfund. Some of these
federal and state programs are discussed below.
(1) Examples of Federal Programs
    The regulations of the Bureau of Land Management (BLM) and the
Forest Service, applicable to hardrock mining facilities, are described
below.
Bureau of Land Management
    BLM's surface management regulations at 43 CFR part 3800, subpart
3809, govern the majority of the hardrock mining operations on the
public lands that would be subject to the proposed rule. These
regulations were first promulgated in 1980 pursuant to the agency's
authority under the Mining Law of 1872,\128\ and its mandate under
section 302(b) of the Federal Land Policy and Management Act of 1976 to
take any action to prevent ``unnecessary or undue degradation'' of the
public lands.\129\ BLM also regulates the development of solid minerals
subject to other mineral disposal authorities, such as phosphate,
through the issuance of permits and leases under 43 CFR part 3500.
BLM's regulatory programs provide cradle-to-grave oversight of mining
operations on the public lands. For example, BLM's subpart 3809
regulations require operators to obtain authorization from BLM to
conduct any surface disturbance greater than casual use.\130\ All
operations under subpart 3809 must comply with the general and specific
performance standards set forth in the regulations which govern, among
other things, disposal of mining wastes and handling of acid-forming,
toxic, or other deleterious materials.\131\ In addition, subpart 3809
requires all operations to comply with applicable federal and state
laws and regulations, including laws related to air and water
quality.\132\ For extractive mining operations and some exploration,
operators under subpart 3809 must submit and obtain BLM approval of a
plan of operations that includes plans for baseline data collection,
water management, rock characterization and handling, spill
contingency, and reclamation.\133\ BLM's subpart 3809 regulations
impose also requirements for design, operation, closure, and
reclamation to ensure productive use of the land after mining. 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.
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    \128\ 30 U.S.C. 22-54, as amended.
    \129\ 43 U.S.C. 1732(b).
    \130\ 43 CFR 3809.10, 3809.11.
    \131\ See 43 CFR 3809.420.
    \132\ See 43 CFR 3809.5, 3890.420(b)(4), (b)(5).
    \133\ 43 CFR 3809.401.
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    BLM's regulations also require operators to provide a financial
guarantee before they can begin all hardrock mining operations.\134\
Moreover, financial guarantees for mining operations must remain in
effect until BLM determines that reclamation has been completed in
accordance with the authorized operations and the agency releases the
financial guarantee.\135\ BLM's regulations also allow the agency to
initiate forfeiture of the financial guarantee in the event the
operator refuses or is unable to conduct reclamation.\136\
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    \134\ See 43 CFR 3504.50, 3809.4500.
    \135\ 43 CFR 3504.71, 3809.590.
    \136\ 43 CFR 3504.65, 3809.595.
---------------------------------------------------------------------------

Forest Service
    The U.S. Department of Agriculture (USDA) Forest Service
regulations governing mining under the Mining Law of 1872 were
promulgated in 1974 \137\ and can be found at 36 CFR part 228, subpart
A. Disposal of minerals such as phosphates, sodium, potassium, and
hardrock minerals on acquired National Forest System lands are subject
to the mineral leasing laws and are regulated by BLM under 43 CFR part
3500.
---------------------------------------------------------------------------

    \137\ See comment from United States Forest Service, Docket ID:
EPA-HQ-SFUND-2015-0781-2400 at page 10; comment from National Mining
Association, EPA-HQ-SFUND-2015-0781-2794 at page 29.
---------------------------------------------------------------------------

    Under the Forest Service regulations at 36 CFR part 228, subpart A,
operators must submit and obtain approval of a plan of operations
before conducting any operations that might cause significant
disturbance of surface resources.\138\ The regulations are designed to
minimize adverse environmental impacts both during and after mining
operations. The regulations prohibit releases of hazardous substances,
and require financial guarantee that is calculated to reasonably insure
that operations and reclamation are conducted to avoid releases, and to
respond to releases that may occur.\139\ USDA highlighted in its
comments how well developed Plans of Operations, site inspections, and
monitoring reduce environmental risks before, during, and after mine
closure. Specifically, USDA stated that an operator complies with
Forest Service

regulations by developing a Plan of Operations, which requires that the
operator submit enough detail that the agency can analyze various risks
associated with the proposed operation and, through the NEPA process,
identify proper mitigation measures to reduce or eliminate those
risks.\140\ The regulations also require that, ``all operations be
conducted so as, where feasible, to minimize adverse environmental
impacts on National Forest surface resources'' (36 CFR 228.8). This
allows the Agency to be very site-specific in its analysis of risk and
mitigation.\141\ A Plan of Operations must also include detailed
reclamation and closure plans, which are reviewed and approved to
minimize the potential future risk to the environment based on
predicted outcomes.\142\ USDA further stated that Plans of Operation
must include hazardous materials inventory and handling procedures,
spill prevention plans, and transportation mitigation measures.\143\
USDA stated a Plan of Operations for a hardrock mining operation cannot
be approved unless hazardous substances are managed so that the threat
of present or future release is minimized.\144\ During the mine
permitting process, the Forest Service actively engages in memorandums
of understanding and agreements with other State and Federal Agencies
to ensure that all parties' permits are approved and implemented.
Currently this can involve over forty separate permits and
authorizations.
---------------------------------------------------------------------------

    \138\ 36 CFR 228.4(a).
    \139\ See comment from United States Forest Service, Docket ID:
EPA-HQ-SFUND-2015-0781-2400 at page 2.
    \140\ Ibid.
    \141\ Ibid.
    \142\ Ibid., page 5.
    \143\ Ibid., page 4.
    \144\ Ibid., page 4.
---------------------------------------------------------------------------

    The Forest Service requires that mine operators provide a financial
guarantee to assure complete reclamation and compliance with
environmental laws under the following authorities: 16 U.S.C. 551; 30
U.S.C. 612; 36 CFR 228.8, 228.13.\145\ USDA stated that regulatory
requirements (36 CFR 228.13) require operators to provide a bond
sufficient to insure stabilization, rehabilitation, and reclamation of
the area of operations.\146\ Environmental protection measures
described in under 36 CFR 228.8 also include certification of
compliance with all other applicable environmental standards.\147\
Forest Service regulations at 36 CFR 228.4(e) allow the agency to
require a modification to the Plan of Operations to allow for bond
adjustments to address unforeseen environmental effects.\148\ In its
comments on the proposed rule the USDA stressed that financial
guarantee requirements further reduce financial risk to the public. The
operator must provide a financial guarantee that must be of a
sufficient amount to ensure that, upon closure, the operation no longer
presents long-term risks to the environment and a liability to the
Forest Service and the public.\149\ USDA further noted that any ongoing
obligation to continue the protection of the environment is also
provided for in a long-term financial assurance instrument required by
the Forest Service.\150\
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    \145\ Ibid., page 1.
    \146\ Ibid., page 3.
    \147\ Ibid., page 3.
    \148\ Ibid., page 5.
    \149\ Ibid., page 5.
    \150\ Ibid., page 5.
---------------------------------------------------------------------------

    Commenters also noted the role the NEPA plays in identifying risks
at mining operations. NMA stated that a federal plan of operation is
also scrutinized under NEPA, usually requiring the preparation of an
environmental impact statement, which evaluates potential environmental
impacts of the mining operation, assesses alternatives, and requires
the identification of mitigation measures to reduce potentially
significant environmental impacts.\151\ The Forest Service also offered
several examples of the ways in which the NEPA process mitigates risk
for mines which require the preparation of an environmental impact
statement. Specifically, the Forest Service noted that it identifies
closure requirements as part of the NEPA process after in-depth studies
using site-specific data.\152\ Moreover, Forest Service noted that
proposed reclamation requirements and potential for releases at mines
on NFS lands are examined and disclosed in NEPA documents prepared for
Forest Service approval of the plan of operations, which are reviewed
by EPA.\153\ The Forest Service also noted that EPA reviews all NEPA
documents, and comments on the adequacy of mitigation measures and
reclamation plans in general. Once an operator incorporates source
controls and mitigation measures into their plan, the Forest Service
approves that plan, based on the expected outcomes and not the
individual engineering standards used.\154\ EPA notes that the NEPA
process applies to all federal agencies and thus is not limited to only
mines on NFS lands.
---------------------------------------------------------------------------

    \151\ See comment from National Mining Association, EPA-HQ-
SFUND-2015-0781-2794 at page 30.
    \152\ See comment from United States Forest Service, Docket ID:
EPA-HQ-SFUND-2015-0781-2400 at page 3.
    \153\ Ibid., page 5.
    \154\ Ibid., page 7.
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(2) Examples of State Programs
    A discussion of the mining programs of five states--Nevada, New
Mexico, Alaska, Colorado, and Montana--is provided below. Of the 184
\155\ mining sites in the potentially regulated universe of mines
developed by EPA for purposes of analysis in the proposed rule, roughly
one fourth are located in Nevada, and roughly one tenth are located in
New Mexico, Alaska, Colorado, and Montana combined. In addition to the
examples discussed below, the record includes detailed information on
the protectiveness of mining programs in Arizona, Utah, South Dakota,
and Idaho that were provided by those states and state
organizations.\156\ Additional information on state programs also was
provided by other commenters.\157\
---------------------------------------------------------------------------

    \155\ This number does not include the stand-alone mineral
processors in the potentially regulated universe of 221 hardrock
mining facilities developed by EPA for purposes of analysis in the
proposed rule.
    \156\ See comment and attachments from Beth A. Botsis, Deputy
Executive Director, Interstate Mining Compact Commission, comment
number EPA-HQ-SFUND-2015-0781-2759; EPA-HQ-SFUND-2015-0781-2758;
EPA-HQ-SFUND-2015-0781-2757), discussing the protectiveness of
mining programs in Arizona, Utah, and South Dakota. Together,
Arizona and Utah have 35 potentially regulated mines. See also,
comment from Governor Butch Otter, noting that that most of the
mines in Idaho are on federally managed land and thus would be
subject to Forest Service or BLM regulations, comment number EPA-HQ-
SFUND-2015-0781-2682. Idaho has nine potentially regulated mines.
    \157\ See the discussion of comments on state mining programs in
below.
---------------------------------------------------------------------------

Nevada
    The Bureau of Mining, Regulation, and Reclamation of Nevada
requires closure and reclamation for hardrock mines under the Nevada
Revised Statutes (NRS) 519A.010--NRS 519A.280 and the Nevada
Administrative Code (NAC) 519A.010--NAC 519A.415.\158\ Nevada's
regulatory program was enacted in 1989-1990 and includes the authority
for the Nevada Division of Environmental Protection (NDEP) to require
financial assurance for long-term management of mine-impacted
waters.\159\ Commenters reported that Nevada's stringent regulations
``impose extensive permitting, design, operation, monitoring,
corrective action, closure, reclamation, and financial assurance
requirements on hardrock mining

operations in the State.\160\ In addition, because many mines in Nevada
operate on federal lands, Nevada and BLM and Forest Service have
entered into Memoranda of Understanding to ensure coordination of
financial assurance requirements across private and public lands.\161\
Mines in Nevada estimate the amounts of their required financial
assurance through use of Nevada's Standardized Reclamation Cost
Estimator (SRCE).\162\ The SRCE is well-regarded amongst mining
reclamation programs and is used by several other states and Federal
agencies.\163\
---------------------------------------------------------------------------

    \158\ See comment from Nevada Lithium Corp, Comment Number: EPA-
HQ-SFUND-2015-0781-2681 at page 4.
    \159\ See comment from Nevada Division of Environmental
Protection, comment number EPA-HQ-SFUND-2015-0781-2651 at page 1.
    \160\ See comment from Newmont Mining Corporation, comment
number EPA-HQ-SFUND-2015-0781-2712 at page 46-47.
    \161\ See comment from Nevada Division of Environmental
Protection, comment number EPA-HQ-SFUND-2015-0781-2651, at page 2,
and Attachment.
    \162\ See comment from Nevada Lithium Corp, Comment Number: EPA-
HQ-SFUND-2015-0781-2681, Page 4.
    \163\ See comments from Women's Mining Coalition, Comment number
EPA-HQ-SFUND-2015-0781-2705 at page 5, Pershing Gold Corporation,
Comment number EPA-HQ-SFUND-2015-0781-2688 at page 6, Hecla Mining
Company, Comment number EPA-HQ-SFUND-2015-0781-2688 at page 21,
Mining and Metallurgical Society of America, comment number EPA-HQ-
SFUND-2015-0781-2734 at page 3.
---------------------------------------------------------------------------

    Nevada's hardrock mining regulatory programs, including its
reclamation surety program administered by NDEP, include stringent
design standards, including standards in liner systems, dam safety, and
tailings impoundments that are intended to manage and contain process
wastes.\164\ The regulations also specify treatment of spent ore heaps
at closure to ensure surface and groundwater impacts are
prevented.\165\ NDEP provided comment that no modern mines that
commenced operation after the promulgation of the Nevada mine
reclamation financial assurance regulations have required public
funding for proper closure or reclamation as evidence of the strength
of Nevada's program.\166\
---------------------------------------------------------------------------

    \164\ See comment from Newmont Mining Corporation, comment
number EPA-HQ-SFUND-2015-0781-2712 at page 48.
    \165\ Ibid., page 49.
    \166\ See comment from Nevada Division of Environmental
Protection, comment number EPA-HQ-SFUND-2015-0781-2651 at page 2.
---------------------------------------------------------------------------

New Mexico
    The New Mexico Mining Act (``Mining Act'') was adopted in 1993 with
the purposes of ``promoting responsible utilization and reclamation of
lands affected by exploration, mining or the extraction of minerals.''
\167\ The Mining Act broadly defines ``mining'' and ``minerals'' to
cover the extraction and processing of hardrock minerals.\168\
---------------------------------------------------------------------------

    \167\ See comments from New Mexico Environment Department and
the New Mexico Energy, Minerals, and Natural Resources Department,
Docket ID Number EPA-HQ-SFUND-2015-0781-2676-2 at page 4.
    \168\ Ibid. page 4.
---------------------------------------------------------------------------

    Mining operations in New Mexico, both ``existing'' and ``new,''
\169\ are required to obtain permits which include closeout, or
reclamation, plans.\170\ These plans, which are developed in
coordination with closure plans required under the Water Quality Act,
address the areas disturbed by mining including impacts from any of the
thirteen site features identified by EPA as the sources of releases or
threatened releases at hardrock mining sites.\171\ The reclamation and
remediation of these site features, which include tailings, waste rock,
leach piles and open pits, are addressed in the permits issued under
the Mining Act and the Water Quality Act.
---------------------------------------------------------------------------

    \169\ ``existing mining operations'' were producing minerals
prior to June 18, 1993, and ``new mining operations'' began
producing minerals after that date. Section 69-36-3(E) and (I).
    \170\ See comments from New Mexico Environment Department and
the New Mexico Energy, Minerals, and Natural Resources Department,
Docket ID Number EPA-HQ-SFUND-2015-0781-2676-2 at page 5.
    \171\ 82 FR 3461, fn. 171.
---------------------------------------------------------------------------

    Mining operations in New Mexico are subject to significant
compliance and enforcement provisions. The Mining Act mandates a
specific set of minimum inspections for each class of facility
including one inspection a month when a mine is conducting significant
reclamation activities.\172\ If the agency determines that a facility
is in violation of the Act, regulations or the permit or is creating an
imminent danger to public health or safety or is causing significant
environmental harm, the agency can order a cessation of mining or
undertake administrative or judicial enforcement proceedings.\173\
Violations can result in civil penalties of up to $10,000 a day, and
knowing or willful violations can bring criminal penalties.\174\
---------------------------------------------------------------------------

    \172\ See comments from New Mexico Environment Department and
the New Mexico Energy, Minerals, and Natural Resources Department,
Docket ID Number EPA-HQ-SFUND-2015-0781-2676-2 at page 5.
    \173\ Ibid., page 5.
    \174\ Ibid., page 5.
---------------------------------------------------------------------------

    Financial assurance is an integral and inseparable part of New
Mexico's regulation of hardrock mining and attendant reclamation
requirements. Before a permit can be issued under the Mining Act,
financial assurance must be filed with the agency. ``The amount of the
financial assurance shall be sufficient to assure the completion of the
performance requirements of the permit, including closure and
reclamation, if the work has to be performed by the director or a
third-party contractor.'' \175\ The financial assurance amount is based
on a detailed engineering cost estimate to complete the approved
reclamation plan and must be based on what it would cost the State, or
the State's contractor, to complete the reclamation plan. Financial
assurance must include costs for: Contract administration;
mobilization; demobilization; engineering redesign; profit and
overhead; procurement costs; reclamation or closeout plan management;
and contingencies.\176\
---------------------------------------------------------------------------

    \175\ Ibid., page 5.
    \176\ Ibid., page 5.
---------------------------------------------------------------------------

    The New Mexico Environment Department (NMED) regulates mining
operations under the New Mexico Water Quality Act (``Water Quality
Act'').\177\ Enacted in 1967, the Water Quality Act requires the New
Mexico Water Quality Control Commission (``WQCC'' or ``Commission'') to
adopt regulations to protect surface water and groundwater quality. The
Commission must ``adopt water quality standards for surface and ground
waters of the state,'' \178\ and must also adopt regulations requiring
a permit for ``the discharge of any water contaminant.'' \179\ The
Commission authorizes NMED to place conditions on discharge permits to
protect groundwater, and must deny a discharge permit if the discharge
would cause or contribute to contaminant levels in excess of water
quality standards at any place of present or potential future use.\180\
The WQCC must adopt procedures for providing notice to interested
persons and the opportunity for a public hearing, and must also adopt
regulations ``for the operation and maintenance of the permitted
facility, including requirements, as may be necessary or desirable,
that relate to the continuity of operation, personnel training and
financial responsibility.'' \181\ Finally, the Water Quality Act was
amended in 2009 to direct the WQCC to adopt regulations for the copper
industry, resulting in a comprehensive and prescriptive set of copper
mine regulations,\182\ and in accordance with the directives of the
Water Quality Act, the Commission has adopted a body of implementing
regulations codified in Title 20, Chapter 6 of the New Mexico
Administrative Code.
---------------------------------------------------------------------------

    \177\ Ibid., page 6.
    \178\ Ibid., page 6.
    \179\ Ibid., page 6.
    \180\ Ibid., page 6.
    \181\ Ibid., page 6-7.
    \182\ Ibid., page 6.
---------------------------------------------------------------------------

    The stated purpose of the Ground and Surface Water Protection
Regulations is

``to protect all ground water of the state of New Mexico which has an
existing concentration of 10,000 [milligrams per liter] or less [total
dissolved solids], for present and potential future use as domestic and
agricultural water supply.'' \183\ The regulations include three
categories of groundwater quality standards: (1) Maximum numerical
standards for thirty-three contaminants for protection of human health;
(2) maximum numerical standards for nine contaminants and a range for
pH for protection of domestic water supplies; and (3) maximum numerical
standards for five contaminants for protection of water for irrigation
use.\184\
---------------------------------------------------------------------------

    \183\ Ibid., page 6-7.
    \184\ Ibid., page 6-7.
---------------------------------------------------------------------------

    The regulations also address discharge permits,\185\ prohibiting
any person from causing or allowing a water contaminant to ``discharge
so that it may move directly or indirectly into groundwater'' unless
that person is discharging pursuant to a discharge permit issued by
NMED.\186\ The regulations provide for notice to the public of a
proposed discharge permit, and the opportunity to request a public
hearing on the permit.\187\ The regulations further provide that a
discharge permit may include a closure plan to protect ground water
after the cessation of the operations causing the discharge. The
closure plan must include ``a description of closure measures,
maintenance and monitoring plans, post-closure maintenance and
monitoring plans, financial assurance, and other measures necessary to
prevent and/or abate . . . contamination.'' \188\
---------------------------------------------------------------------------

    \185\ Ibid., page 6-7.
    \186\ Ibid., page 6-7.
    \187\ Ibid., page 6-7.
    \188\ Ibid., page 6-7.
---------------------------------------------------------------------------

    The Copper Mine Rule \189\ was promulgated in 2013 and the state
indicated that it is the most prescriptive rule governing copper mining
operations in the United States. The Copper Mine Rule establishes
specific operational, monitoring, contingency, closure, and post-
closure requirements for copper mines to ensure protection of water
quality and prevent the release of contaminants into the environment
during operations and following closure. The Copper Mine Rule is
supplemental to the general discharge permit regulations, and is
implemented through the issuance of ground water discharge permits.
---------------------------------------------------------------------------

    \189\ Ibid., page 7.
---------------------------------------------------------------------------

    The Copper Mine Rule covers all aspects of mine operation and
closure. The permit application requirements for copper mine facilities
result in a comprehensive document that identifies all mine units at
the facility including: Impoundments; pipelines; tanks; leach
stockpiles; waste rock stockpiles; crushing, milling, concentrating,
smelting and tailing impoundments; open pits; underground mines; and,
truck and equipment washing units.\190\ Each of these respective mine
units is subject to prescriptive engineering design criteria to control
and prevent the release of contaminants.\191\
---------------------------------------------------------------------------

    \190\ Ibid., page 8.
    \191\ Ibid., page 8.
---------------------------------------------------------------------------

    Existing mine units in operation prior to promulgation of the
Copper Mine Rule have extensive groundwater monitoring to determine
their effectiveness in preventing the release of contaminants to the
environment.\192\ Discharge permit requirements for existing mine units
include operation of groundwater interceptor systems, as well as
seepage and surface runoff capture systems to ensure impacts are
contained as close as is practicable.\193\ The Copper Mine Rule
requires development and implementation of a site-wide water management
plan describing in detail how impacted storm water and groundwater at
the site is contained and managed.\194\ Construction and operation of
new mine units or expansion of existing mine units is subject to
detailed engineering design requirements that include lined leach
stockpiles, double lined process water impoundments, leak detection
systems, flow metering, and extensive groundwater monitoring.\195\
---------------------------------------------------------------------------

    \192\ Ibid., page 8.
    \193\ Ibid., page 8.
    \194\ Ibid., page 8.
    \195\ Ibid., page 8.
---------------------------------------------------------------------------

    Proposals for new mine units such as waste rock stockpiles and
tailing impoundments are required to include an aquifer evaluation to
determine the nature and extent of any impacts to groundwater that may
occur if these mine units are proposed to be unlined.\196\ Based on the
aquifer evaluation, the Copper Mine Rule requires a design report for
proposed interceptor systems to ensure containment of groundwater
impacted by the stockpile or tailing impoundment such that applicable
standards will not be exceeded at monitoring well locations.\197\ As
previously stated, monitoring wells must be located as close as
practicable to the various mine units being monitored.\198\ Impacted
water collected at a mine site typically is used in the process water
system, offsetting use of potable water. Any impacted water in excess
of process water requirements must be treated prior to release.\199\ In
the event a demonstration of containment cannot be satisfactorily made,
a liner system placed beneath waste rock or tailing impoundments may be
required.\200\
---------------------------------------------------------------------------

    \196\ Ibid., page 8.
    \197\ Ibid., page 8.
    \198\ Ibid., page 8.
    \199\ Ibid., page 8.
    \200\ Ibid., page 8.
---------------------------------------------------------------------------

    The Copper Mine Rule also contains prescriptive requirements for
closure of mine units that have the potential to impact water quality
\201\ including requirements for process solution reduction plans \202\
and closure water management and water treatment plans.\203\ There are
prescriptive engineering design requirements for surface re-grading and
cover design to ensure storm water is routed off and away from
encapsulated mine waste, and that infiltration into mine waste is
minimized.\204\ It should be noted that the prescriptive closure design
criteria are based on designs that have been implemented successfully
not only at copper mines in New Mexico, but mimic successful closure
design that has been consistently required and applied at other mine
sites in New Mexico.
---------------------------------------------------------------------------

    \201\ Ibid., page 9.
    \202\ Ibid., page 9.
    \203\ Ibid., page 9.
    \204\ Ibid., page 9.
---------------------------------------------------------------------------

    Under these regulations, any hardrock mine that has the potential
to impact groundwater must obtain a permit from NMED. The Water Quality
Act provides numerous enforcement mechanisms for violations of the
provisions of the Act, the regulations, a water quality standard
adopted pursuant to the Act, or a condition of a permit issued pursuant
to the Act.\205\ These include injunctive relief ordered by a district
court; suspension or termination of a permit allegedly violated; \206\
civil penalties of up to $15,000 per day of noncompliance for a
violation of the Water Quality Act permit provisions at NMSA 1978,
Section 74-6-5, including regulations adopted or a permit issued
pursuant to that section; \207\ up to $10,000 per day for each
violation of the Water Quality Act or regulations other than Section
74-6-5; up to $25,000 per day for each day of continued noncompliance
with a compliance order; and criminal penalties.\208\
---------------------------------------------------------------------------

    \205\ Ibid., page 6-7.
    \206\ Ibid., page 6-7.
    \207\ Ibid., page 6-7.
    \208\ Ibid., page 6-7.
---------------------------------------------------------------------------

    The New Mexico state commenters indicated that NMED and the New
Mexico Energy, Minerals, and Natural Resources Department work closely
together pursuant to a Joint Powers

Agreement in drafting and issuing permits for hardrock mining
facilities to ensure that financial assurance and other permit
requirements are consistent, integrated, and complementary. These
agencies allow permitted facilities to submit a single financial
assurance instrument, or set of instruments, that are jointly held by
the agencies, meeting the financial assurance requirements of both
statutes. They also have Memoranda of Understanding with BLM and the
Forest Service to avoid duplication where federal land is involved.
Through mining permits issued under the Mining Act, and groundwater
discharge permits issued under the Water Quality Act, the Agencies have
jointly required permittees to establish financial assurance for all
operating hardrock mines in New Mexico, as well as many that are no
longer operating.
    Freeport McMoRan Inc. commented that there are existing, state-
imposed financial assurance requirements, often amounting to hundreds
of millions of dollars per mine, that might be sufficient to protect
against risks,\209\ and offered the example that EPA itself has adopted
state reclamation requirements specified in New Mexico law, as the
CERCLA remedy for the Questa mine site.
---------------------------------------------------------------------------

    \209\ See comments from Freeport McMoRan, Inc., EPA-HQ-SFUND-
2015-0781-2402 at page 9.
---------------------------------------------------------------------------

Alaska
    The Alaska Department of Environmental Conservation requires
financial assurance to prevent releases from mines to water.\210\
Financial assurance for reclamation at mines on state, private,
municipal, and federal land is managed by the Alaska Department of
Natural Resources under authority granted by the Alaska Mine
Reclamation Act.\211\ The act describes a general reclamation standard
which ``prevents unnecessary or undue degradation of land and water
resources'' \212\ Under the mine permitting process undertaken for most
large mines in Alaska, coordination with federal, state, and local
governments is employed to review mine plans.\213\ As evidence of the
stringency of Alaska's requirements, AEMA offered comment that large
mines in Alaska are required to undergo a comprehensive third-party
environmental audit every five years.\214\
---------------------------------------------------------------------------

    \210\ See comment from NOVAGOLD, comment number EPA-HQ-SFUND-
2015-0781-2720 at page 2.
    \211\ See comment from Alaska Department of Environmental
Conservation, comment number EPA-HQ-SFUND-2015-0781-2785 at page 9.
    \212\ See comment from Alaska Department of Environmental
Conservation, comment number EPA-HQ-SFUND-2015-0781-2785 at page 9.
    \213\ Ibid., page 10-11.
    \214\ See comment from AEMA, comment number EPA-HQ-SFUND-2015-
0781-2657 at page 10.
---------------------------------------------------------------------------

    Alaska requires further safeguards for mines where the plan
includes a dam. These requirements include operation and maintenance
plans and contingencies in an emergency action plan.\215\ Alaska made
the ``Guidelines for Cooperation with the Alaska Dam Safety Program''
guidance available which outlines regulatory requirements applying to
dams, including design standards, methods of analysis, [. . .]
performance requirements and risk profile of the facility, operation,
maintenance and monitoring requirements, emergency action planning and
incident reporting, periodic safety inspections'' as well as financial
assurance.\216\
---------------------------------------------------------------------------

    \215\ See comment from Alaska Department of Environmental
Conservation, comment number EPA-HQ-SFUND-2015-0781-2785 at page 10.
    \216\ Ibid., page 19.
---------------------------------------------------------------------------

Colorado
    In 1976, the Colorado state legislature passed the Mined Land
Reclamation Act \217\ (MLRA) establishing a Mined Land Reclamation
Board (``Board'').\218\ The MLRA provided far more structure for
permitting mine sites and, importantly, oversight of reclaiming these
sites. The MLRA's legislative declaration stated:
---------------------------------------------------------------------------

    \217\ C.R.S. section 34-32-101 et seq.
    \218\ See comments from Colorado Division of Reclamation, Mining
and Safety at Docket ID number EPA-HQ-SFUND-2015-0781-2774, page 3.

    It is the declared policy of this state that the extraction of
minerals and the reclamation of land affected by such extraction are
both necessary and proper activities. It is further declared to be
policy of this state that both such activities should be and are
compatible. It is the intent of the general assembly by enactment of
this article to foster and encourage the development of an
economically sound and stable mining and minerals industry and to
encourage the orderly development of the state's natural resources
while requiring those persons involved in mining operations to
reclaim land affected by such operations so that the affected land
may be put to a use beneficial to the people of this state. It is
the further intent of the general assembly by the enactment of this
article to conserve natural resources, to aid in the protection of
wildlife and aquatic resources, to establish agricultural,
recreational, residential, and industrial sites, and to protect and
promote the health, safety, and general welfare of the people of
this state. \219\
---------------------------------------------------------------------------

    \219\ Ibid., page 4.

    In 1984, the Colorado Division of Reclamation, Mining, and Safety
(DRMS) permitted the Summitville mine.\220\ This was a high elevation
mine located in the historic mining district of Summitville in
Southwest Colorado. Errors were made in the permitting review and
initial build out of this mine site. The financial assurance at
Summitville was not site-specific but based on a formulaic approach,
and ultimately proved to be far short of the actual reclamation
cost.\221\ The large cyanide heap leach operation almost immediately
encountered problems with construction and water treatment.\222\
Ultimately, the operator walked away from the site after a significant
environmental release leaving the state with an insufficient financial
assurance.
---------------------------------------------------------------------------

    \220\ Ibid.
    \221\ Ibid.
    \222\ Ibid.
---------------------------------------------------------------------------

    The state indicated that it learned from the errors at Summitville,
and the state legislature subsequently passed major programmatic
revisions to the MLRA in 1993, strengthening permitting and enforcement
provisions.\223\ Most importantly, the MLRA was specifically amended to
create a new class of mining sites now known as Designated Mining
Operations (DMOs) and to clearly require financial assurance for all
sites based on site specific, not formulaic, criteria.\224\
---------------------------------------------------------------------------

    \223\ Ibid.
    \224\ Ibid.
---------------------------------------------------------------------------

    The DMO amendment is the backbone of Colorado's hardrock regulatory
program and requires operators to submit an Environmental Protection
Plan with numerous technical elements that were previously not required
in light of lessons learned from Summitville.\225\ A DMO's
Environmental Protection Plan now describes how the operator assures
protection of all areas that have the potential to be affected by
designated chemicals, toxic or acid forming materials, or acid mine
drainage.\226\ The plan must include an Emergency Response Plan and
must implement any measures required by Colorado Parks and Wildlife for
the protection of wildlife or Colorado Water Quality Control Division
for the protection of water quality.\227\ Other aspects of the DMO
amendment required submission of information to evaluate the potential
for adverse impacts associated with acid mine drainage or acid or toxic
producing materials to leach facilities, heap leach pads, tailing
storage or disposal areas, impoundments, waste rock piles, stockpiles
(temporary or

permanent), land application sites and in-situ or conventional uranium
mining operations.\228\
---------------------------------------------------------------------------

    \225\ Ibid., page 5.
    \226\ Ibid.
    \227\ Ibid.
    \228\ Ibid.
---------------------------------------------------------------------------

    Further Environmental Protection Plans must include designated
chemicals and materials handling plans, facilities evaluation,
groundwater evaluation and protection measures, surface water control
and containment facilities information, surface water quality data,
hydrologic monitoring plans, detailed climate data to assist in
facilities design, geotechnical and geochemical data and analysis,
construction schedules including quality assurance and quality control
measures, plant and soils analysis, tailings and sludge disposal
plans.\229\
---------------------------------------------------------------------------

    \229\ Ibid.
---------------------------------------------------------------------------

    The financial assurance amendment required all hardrock mine
facilities in Colorado, including prospecting operations, to post a
financial assurance equal to the amount necessary for the state to
reclaim a site if permit revocation and forfeiture were to occur.\230\
The financial assurance amount is calculated during the permitting
phase of a mine and updated throughout the life of the mine to account
for any changes to the mining or reclamation plans or changes in
reclamation costs.\231\ As discussed above, DRMS did not calculate
site-specific financial assurance prior to the 1993 amendments. As part
of the 1993 amendments, language was removed that had allowed sites to
be permitted for an established amount (depending on permit type) and
language was inserted to mandate that DRMS require, on a site-specific
calculation, the total amount of financial assurance necessary for the
state to complete reclamation. DRMS now calculates financial assurance
amounts during permitting and periodically (at a minimum every four
years) through the life of the mine.\232\
---------------------------------------------------------------------------

    \230\ Ibid.
    \231\ Ibid.
    \232\ Ibid.
---------------------------------------------------------------------------

    The MLRA minimizes the adverse impacts of hardrock mining in
Colorado by requiring every operator to obtain a permit and adhere to
rigorous reclamation standards, both during and after mining.\233\ Many
of the MLRA's reclamation standards are designed to prevent the release
of hazardous substances into the environment.\234\ Pursuant to the
MLRA, DRMS regulates mining in Colorado to protect the health, safety
and welfare of the people of Colorado and to ensure that affected lands
are appropriately reclaimed by those operating mines and mills.\235\
See Section 34-32-102, C.R.S. Under Section 34-32-109, C.R.S., any
operator of a mine or mill must obtain and maintain a reclamation
permit.\236\ To ensure that reclamation obligations are performed,
Section 34-32-117(1), C.R.S., provides that no mining and reclamation
permit may be issued until the Board receives performance and financial
warranties.\237\ Pursuant to Section 34-32-117(3)(a), C.R.S., a
financial warranty consists of a written promise to the Board to be
responsible for reclamation costs together with proof of financial
capability.\238\ Each operator must submit a financial warranty
sufficient to assure compliance with applicable reclamation standards,
as incorporated in the operation's reclamation permit.\239\ See Section
34-32-117, C.R.S. During the life of a mine, DRMS requires financial
assurance for water quality treatment, as well.\240\
---------------------------------------------------------------------------

    \233\ Ibid., page 6.
    \234\ Ibid.
    \235\ Ibid.
    \236\ Ibid.
    \237\ Ibid.
    \238\ Ibid.
    \239\ Ibid.
    \240\ Ibid.
---------------------------------------------------------------------------

    Under the MLRA, reclamation must be conducted, both during and
after the mining operation, in accordance with a reclamation plan that
meets certain performance standards.\241\ Many of the reclamation
standards are designed to prevent releases of hazardous substances and
prevent adverse impacts on surrounding properties.\242\ See Section 34-
32-116, C.R.S. (requiring measures to minimize disturbance to the
hydrologic balance, protect outside areas from damage, and control
erosion and attendant air and water pollution).\243\ MLRA's financial
assurances ensure that DRMS can complete reclamation according to those
standards if the operator is unwilling or unable.\244\ Regulatory
financial assurances require enormous expertise, and must be
established by fact-intensive case-by-case review.\245\ DRMS calculates
the financial assurance amount by developing and aggregating task-by-
task cost estimates using current reference materials as well as the
regional expertise of its staff.\246\ Applicants may submit initial
estimates; however, DRMS rigorously reviews those estimates. DRMS is
also charged with continuously reviewing the adequacy of financial
warranties and uses the same methods.\247\
---------------------------------------------------------------------------

    \241\ Ibid.
    \242\ Ibid.
    \243\ Ibid.
    \244\ Ibid.
    \245\ Ibid.
    \246\ Ibid.
    \247\ Ibid.
---------------------------------------------------------------------------

    DRMS and the Board have promulgated a robust set of rules and
regulations specific to the oversight of the hardrock mining industry
that implement the MLRA.\248\ The rules contain specific performance
requirements for hardrock mining to protect, for example, both surface
and groundwater, impacts to wildlife, and offsite impacts including
erosion controls.\249\ The rules are evidence of how DRMS minimizes the
risk associated with the potential for releases from hardrock mine
facilities.\250\
---------------------------------------------------------------------------

    \248\ Ibid., page 7.
    \249\ Ibid.
    \250\ Ibid.
---------------------------------------------------------------------------

    Colorado's regulatory program is predicated on three essential
independent but interrelated elements; permitting, inspection and
enforcement \251\ that allow DRMS to carefully plan for mining and
reclamation through the permitting process which is anchored by a
thorough financial warranty calculation.\252\ It also allows DRMS to
periodically review sites through inspections to determine compliance
with their permits and, if necessary, take enforcement action to remedy
non-compliance.\253\
---------------------------------------------------------------------------

    \251\ Ibid.
    \252\ Ibid.
    \253\ Ibid.
---------------------------------------------------------------------------

    The permitting process requires prospective operators to, among
other things, assess baseline conditions for hydrology, soils,
vegetation, land use, climate, geology, and plan for a number of other
factors such as chemical and toxic materials handling plans, as they
develop their mining and reclamation plans.\254\ Many of these plans
are required to be certified by a registered professional engineer to
ensure design integrity and performance, particularly with respect to
any environmental protection facility.\255\ A financial warranty is
then calculated utilizing the specific factors associated with these
plans, including cost details associated with construction of
environmental protection facilities and costs associated with
demolition and removal of some of these same facilities and
structures.\256\ Other aspects included in these calculations address
volumes of topsoil to be removed and replaced, volumes of overburden to
be moved and regraded, waste piles and tailings impoundments to be
constructed, capped and reclaimed

and types and amounts of vegetation to be reestablished.\257\
---------------------------------------------------------------------------

    \254\ Ibid.
    \255\ Ibid.
    \256\ Ibid.
    \257\ Ibid.
---------------------------------------------------------------------------

    Once an application is approved and the financial and performance
warranties are posted, a permit is issued.\258\ Upon permit issuance,
the site inspection frequency is determined and the site is inspected
at an appropriate frequency throughout its mining and reclamation
life.\259\ If a violation occurs at a permitted site, this matter is
presented to the Board for adjudication which includes finding a
violation, possibly issuing a cease and desist order, assessing civil
penalties and requiring corrective actions to remedy the
violation.\260\ Failure by an operator to remedy a violation could lead
to permit revocation and, ultimately, financial warranty
forfeiture.\261\
---------------------------------------------------------------------------

    \258\ Ibid.
    \259\ Ibid.
    \260\ Ibid., page 8.
    \261\ Ibid.
---------------------------------------------------------------------------

Montana
    In the state of Montana, hardrock mining is regulated by the
Montana Department of Environmental Quality pursuant to the Montana
Metal Mine Reclamation Act (MMR Act).\262\ The intent of the
legislation is to ``provide adequate remedies for the protection of the
environmental life support system from degradation and provide adequate
remedies to prevent unreasonable depletion and degradation of natural
resources'' \263\ and the ``proper reclamation of mined land and former
exploration areas not brought to mining stage is necessary to prevent
undesirable land and surface water conditions detrimental to the
general welfare, health, safety, ecology, and property rights of the
citizens of the state.'' \264\
---------------------------------------------------------------------------

    \262\ Montana Code Annotated section 82-4-301 et seq.; available
at: http://leg.mt.gov/bills/mca/title_0820/chapter_0040/part_0030/sections_index.html.
    \263\ Montana Code Annotated, section 82-4-301(2)(a).
    \264\ Montana Code Annotated, section 82-4-301(3).
---------------------------------------------------------------------------

    The state legislature has amended the MMR Act several times over
the years, including reforms to address bankruptcies of mining
companies. For example, in the 1999 legislative session following the
bankruptcy of the Pegasus Gold Corp. the previous year, section 82-4-
390 was added to the MMR Act to prohibit open pit mining for gold and
silver using the heap leach or vat leach with cyanide ore-processing
agents except for certain mines that were already in operation as of
November 3, 1998. In another example, section 82-4-338 concerning
performance bonding requirements was substantially amended in the 2007
legislative session and now authorizes the Department of Environmental
Quality to take action, including accessing the financial assurance
bond and suspending the permit, to abate an imminent danger to public
health, public safety or the environment caused by violation of this
law.\265\
---------------------------------------------------------------------------

    \265\ Montana Code Annotated, section 82-3-338(10).
---------------------------------------------------------------------------

    Montana has also enacted state laws to protect water \266\ and air
\267\ quality, to regulate hazardous and solid waste disposal,\268\ and
to assess environmental impacts.\269\ The Department of Environmental
Quality has developed regulations implementing the MMR Act that require
compliance with the environmental laws contained in Title 75 of the
Montana Code. For example, reclamation activities must assure long-term
compliance with the air and water quality laws \270\ and that operating
permits must prevent acid mine drainage through the construction of
earth dams or other devises to control water drainage.\271\ In another
example, permit modifications require an assessment of environmental
impacts pursuant to the state equivalent of NEPA.\272\
---------------------------------------------------------------------------

    \266\ Montana Code Annotated, Title 75, Chapter 5.
    \267\ Montana Code Annotated, Title 75, Chapter 2.
    \268\ Montana Code Annotated, Title 75, Chapter 10.
    \269\ Montana Code Annotated, Title 75, Chapter 1.
    \270\ Montana Administrative Rules, 17.24.102(13)(f).
    \271\ Montana Administrative Rules, 17.24.115(1)(d).
    \272\ Montana Administrative Rules, 17.24.119.
---------------------------------------------------------------------------

    In its comments on the proposed rule, the Montana Department of
Environmental Quality stated that the proposed rule was unnecessary
because the state's environmental laws and the MMR Act sufficiently
regulate environmental and financial risks posed by current mining
operations in the state.\273\
---------------------------------------------------------------------------

    \273\ See comments of Montana Department of Environmental
Quality at EPA-HQ-SFUND-2015-0781-2742.
---------------------------------------------------------------------------

Comments on State Mining Programs
    Freeport-McMoRan Inc. commented that state regulatory programs are
comprehensive, staffed by experienced professionals, and effective. In
evaluating the risks of hardrock mining EPA did not take into account
common elements of current mining regulation, including the detailed,
mandatory closure and reclamation requirements designed to restore
large land areas disturbed by mining to an appropriate post-mining land
uses, the long-term water management requirements designed to protect
and, if needed, remediate both groundwater and surface water resources,
and operational requirements designed to prevent environmental problems
in the first place.\274\
---------------------------------------------------------------------------

    \274\ See comments from Freeport McMoRan Inc, EPA-HQ-SFUND-2015-
0781-2793, pages 23-24.
---------------------------------------------------------------------------

    In its comments, the Fertilizer Institute (TFI) stated that, by
applying the CERCLA program to facilities covered by existing federal
and state reclamation and bonding programs, EPA is duplicating such
programs.\275\
---------------------------------------------------------------------------

    \275\ See comments from The Fertilizer Institute, EPA-HQ-SFUND-
2015-0781-2633-34, page 63.
---------------------------------------------------------------------------

    Newmont Mining, in its comments, noted that, given the
administrative record compiled by the Agency and the excellent job that
the FLMAs and States such as Nevada and Colorado already are doing in
regulating the risk of unfunded CERCLA releases at hardrock mining
facilities, the Agency must conclude that there is no need for another,
expensive, duplicative, and preemptive rule to be layered on top of
existing regulations.\276\
---------------------------------------------------------------------------

    \276\ See comments from Newmont Mining Corporation, EPA-HQ-
SFUND-2015-0781-2712-207, page 195.
---------------------------------------------------------------------------

    NMA commented that mining is comprehensively regulated by a vast
range of federal, state, and local environmental laws and regulations,
and that these laws and regulations provide ``cradle to grave''
coverage of virtually every aspect of mining from exploration to
operations through mine reclamation and closure/post-closure.\277\
---------------------------------------------------------------------------

    \277\ See comments from National Mining Association, EPA-HQ-
SFUND-2015-0781-2794, page 28.
---------------------------------------------------------------------------

    EPA generally agrees with these commenters that in the proposed
rule it did not adequately consider the protectiveness and financial
assurance requirements of current state regulatory programs in
assessing the ``degree and duration of risk associated with the
production, transportation, treatment, storage, or disposal of
hazardous substances'' and the risk that taxpayers will be forced to
fund CERCLA response actions, and has based this final action in part
upon its more comprehensive consideration of those existing programs.
Protective Mining Practices
    Commenters further argued that new facilities are specifically
designed, constructed, operated, and closed in a manner to prevent
environmental degradation and to avoid the types of problems that were
caused by past practices. The information provided to EPA by commenters
emphasized that an assessment of risks of damages to the

environment should not focus on mines of an earlier era, and that the
targeted regulated universe--currently operating mines using
contemporary mining practices--pose comparatively minimal risks of
releases.
    NMA noted that new facilities are specifically designed,
constructed, operated, and closed in a manner to prevent environmental
degradation and avoid the types of problems that were caused by past
practices.\278\ NMA pointed out that historical operating practices
that led to the need for largescale CERCLA type responses in the past
(e.g., direct disposal of tailings into streams, uncontrolled
infiltration/discharge of mine impacted water, discharge of mine waste
into dumps or impoundments without mitigating potential release
mechanisms, etc.) are no longer utilized by the modern mining industry
or compliant with current state and federal regulatory requirements.
Rather, NMA notes that the mining industry routinely designs modern
mining operations using detailed scientific and engineering
investigations such as groundwater and surface water modeling,
environmental risk assessments, and stability analyses which contribute
to sound design and operating practices intended to protect human
health and the environment.
---------------------------------------------------------------------------

    \278\ See comment from National Mining Association, EPA-HQ-
SFUND-2015-0781-2794.
---------------------------------------------------------------------------

    NMA further stated that risks are further reduced at currently
operating hardrock mining sites using technologies such secondary
containment systems, seepage collection systems, surface water
management systems, liners, and active monitoring systems to reduce or
eliminate the risk of a release. In the event that a release or
potential release is identified through installed monitoring systems,
remedial actions are immediately implemented as required by regulatory
programs using technologies such as interceptor wells, cutoff walls,
and hydraulic capture zones.\279\
---------------------------------------------------------------------------

    \279\ Ibid., Appendix B.
---------------------------------------------------------------------------

    NMA stated that as federal and state mining programs and
groundwater protections have matured, monitoring, reporting, and
corrective action have become core components of hardrock mining
programs and permits, citing, for example, BLM's current regulations,
promulgated in 2001, which require operators to submit a comprehensive
monitoring plan that demonstrates compliance with BLM's surface
management regulations and other Federal and State environmental laws
and regulations, provides early detection of potential problems, and
supplies information that will assist in directing corrective actions
should they become necessary.\280\
---------------------------------------------------------------------------

    \280\ See 43 CFR 3809.401(b)(4).
---------------------------------------------------------------------------

    Numerous other commenters, including MiningMinnesota, AEMA, Energy
Fuels Resources, and General Moly, Inc. supported NMA's views, noting
that advances in engineering controls, technology, mining industry best
practices, and FLMA and state regulatory programs have lowered the
``degree and duration of risk'' to a point that CERCLA 108(b) financial
responsibility requirements are not required.\281\ These commenters
further elaborated that the FLMA and state mine regulatory and
financial assurance programs coupled with engineering controls and best
practices reduce the degree and duration of risk associated the
production, transportation, treatment, storage, or disposal of
hazardous substances and that these FLMA and state reclamation and
closure requirements require more than simply reshaping land and
revegetation--by requiring a mine to be designed, built, operated and
closed to prevent the release of hazardous substances and ensure no
adverse environmental impacts through the entire mine life cycle,
including closure and post-closure. As such, the commenters believe no
additional financial responsibility requirements are necessary to
protect the taxpayers or the Superfund Trust Fund.
---------------------------------------------------------------------------

    \281\ See comments from MiningMinnesota, EPA-HQ-SFUND-2015-0781-
2655 and from American Exploration and Mining Association (AEMA),
EPA-HQ-SFUND-2015-0781-2657, and General Moly, Inc., EPA-HQ-SFUND-
2015-0781-2715.
---------------------------------------------------------------------------

    The Idaho Mining Association (IMA) echoed the same message, noting
that modern mining techniques and best practices in the mining industry
use technology and appropriate controls in combination with FLMA and
state programs to lower risk of release such that EPA's proposed rule
is not necessary.\282\
---------------------------------------------------------------------------

    \282\ See comment from the Idaho Mining Association, EPA-HQ-
SFUND-2015-0781-2772.
---------------------------------------------------------------------------

    For the planned Donlin Gold project in Alaska, Calista Corporation
noted in its comments that one of the primary goals has been to avoid
environmental and human health risks both from planned operations and
potential unanticipated releases of hazardous substances such as
tailings, acid rock drainage, mercury, cyanide, and fuel oil. For
example, the Donlin Gold tailings storage facility design is state-of-
the-art and includes: (1) Downstream, rock fill dam construction keyed
into bedrock, (2) a geo-synthetic liner, and (3) dry closure to
minimize long-term water management needs.\283\
---------------------------------------------------------------------------

    \283\ See comment from Calista Corporation, EPA-HQ-SFUND-2015-
0781-2644.
---------------------------------------------------------------------------

    Freeport-McMoRan provided numerous specific examples of how the
hardrock mining industry has improved its management of environmental
impacts:
     In the area of managing the acidic content of waste rock,
the industry employs a far more sophisticated and technology-driven
approach that includes a thorough geochemical analysis of the ore
reserve body being mined. Using up-to-date information, trucks equipped
with GPS systems are routed to specific designated disposal locations
based on the acidic potential of the waste rock. These locations in
turn are selected based on geochemical modeling that can project out
far into the future. Potentially acid-generating material is disposed
of in engineered facilities designed to minimize the potential for acid
generation by encapsulation or neutralization and thereby reducing the
potential for acid rock drainage and seepage.
     The changes to the design and operation of tailings ponds
over the last 25 years are also quite extensive. At the operational
level, qualified internal tailings-dedicated engineers and onsite
leaders manage tailings stability. Sites with tailings dams follow
established operations, maintenance and communication protocols. In
this process, items regularly inspected and monitored are: Phreatic
level trends, deposition plans and adherence to good operational
construction practices, water management controls (including pool sizes
and location relative to dam faces), seepage management, decant systems
and other stability components.
     Prior to the revisions to state mining programs during the
late 1980s and into the early 1990s, it was not uncommon for waste rock
stockpiles, tailings impoundments, leach pads and ponds to be built
with limited or no engineering and design review, limited quality
control and questionable operational practices. For example, some leach
pads were built on somewhat compacted sub-grade overlain with solvent
welded poly-vinyl chloride (PVC) plastic sheeting, many times installed
by mine site employees without specific expertise in the construction
of these systems. These pads usually had ditches lined with Hypalon
sheeting due to this material's superior ultraviolet light resistance
compared to PVC. Many of these sites have been decommissioned, closed,
and

replaced by more environmentally robust options.
     Modern tailings disposal facilities are engineered and
constructed utilizing environmental protection controls. These
facilities are constructed utilizing geologic containment or engineered
liners to contain the fluid portion of the tailings. As time passes
following deposition, the solid fraction of the tailings consolidates,
reducing the interstitial pore space and thereby decreasing the
hydraulic permeability to a value that is often less than the liner
material used during construction. These facilities are often equipped
with controls, such as barge pump back systems and containment/
collection wells at the toes of the units, to capture any seepage and
allow for the recycling of captured water. Upon closure, these
facilities take measures to minimize net infiltration into the
tailings, such as by utilizing stormwater controls and ensuring that
there is positive drainage during storm events. Tailings facilities are
also covered and revegetated to produce a passive evapotranspiration
mechanism which further reduces net infiltration. These tailings
disposal facilities are operated following Tailings Management Plans
which are included in the application for environmental protection
permits issued by state regulating agencies.
     Prior to the placement of waste rock, the proposed site is
evaluated for environmental risks including upstream stormwater run-on,
seeps and springs upwelling from beneath the proposed facility,
proximity to streams and rivers and other site specific exposures. The
waste rock facility must be designed and built in accordance with
engineering and construction details required by a mine's state-issued
permit, which must be based on geotechnical stability analyses.
Stormwater management measures, such as diversion features to intercept
water and direct it around the waste rock facility, and facility
management plans that govern the placement of potentially-reactive
material are also employed to limit contact with potentially acid-
producing materials. Other management strategies that may be employed
to limit contact with potentially acid-generating material may include
blending with neutralizing rock, segregation in cells that are set back
a prescribed distance from the base and edges of the facility and are
covered or encapsulated in neutralizing material, and landform design
to minimize stormwater ponding. Concurrent reclamation is also often
incorporated to further reduce the potential for net infiltration into
the waste rock facility and return the area to a productive post-mining
land use. Waste rock facility inspections by the operator and
regulatory inspectors are also performed on schedules based upon
regulatory requirements imposed by laws, regulations and permit
stipulations. These inspections include looking for seepage from the
facility, slope stability, stormwater ponding and other prescribed
conditions. Any issues observed must be corrected per the regulatory
and permit requirements imposed. These inspections are conducted during
operation and continue through the closure period following reclamation
of the facility.
    Several commenters also commented on the usefulness of
environmental management systems (EMSs) and best management practices
(BMPs). For example, NMA commented that the introduction of EMSs in the
1990s was another key development for improved environmental
performance--a framework that helps an organization meet its regulatory
compliance requirements and otherwise achieve its environmental goals
through consistent review, evaluation, and improvement of its
environmental performance.\284\ This consistent review and evaluation
are intended to identify opportunities for continuous improvement in
the environmental performance of the organization. NMA states that many
HRM facilities have implemented EMS programs, noting that at EPA's
request, it, in association with the Society for Mining, Metallurgy,
and Exploration (``SME''), developed a model EMS guide to address the
agency's concerns about the ability of smaller and medium size mining
companies to develop and implement EMS programs. The objective of the
EMS guide is to assist companies in achieving reliable regulatory
compliance, reducing adverse impacts to the environment, improving
environmental stewardship, and continually improving environmental
performance. NMA notes the most commonly used framework for an EMS is
the one developed by the International Organization for Standardization
(``ISO'') for the ISO 14001 standard. Established in 1996, this
framework is the official international standard for an EMS and
includes an optional third-party certification component, meaning an
independent certification body audits an organization's practices
against the requirements of the standard. Many HRM facilities have
taken this extra certification step. The ISO 14001, first published in
1996, underwent significant revisions in both 2004 and 2015.
---------------------------------------------------------------------------

    \284\ See comment from National Mining Association, EPA-HQ-
SFUND-2015-0781-2794.
---------------------------------------------------------------------------

    Freeport-McMoRan similarly commented that EPA did not consider the
implementation of EMSs--under standards developed by reputable third-
party organizations, such as the International Standards Organization
and the International Council on Mining and Metals.\285\ The commenter
noted that such standards commit participants to continuing process
improvement above and beyond minimum legal requirements. Likewise,
standards for sustainability, such as ICMM's, require third party
assurance and verification programs. Freeport-McMoRan stated these
private initiatives supplement state programs, adding an additional
layer of best practices and external review above and beyond what is
legally required. The Arizona Department of Environmental Quality
(ADEQ) supported this approach, noting the usefulness of its Voluntary
Environmental Stewardship Program (VESP) and Voluntary Remediation
Program (VRP) that are innovative systems not based on enforceable
commitments required for reductions.\286\ ADEQ also stated the
usefulness of EMSs, ISO certification, third party inspection programs,
or similar types of state and federal programs for reducing risk from
mining operations and specifically noted that Freeport-McMoRan, with
mines in Arizona, employs industry best practices of an ISO14000
environmental management system.
---------------------------------------------------------------------------

    \285\ See comment from Freeport-McMoRan, EPA-HQ-SFUND-2015-0781-
2793.
    \286\ See comment from the Arizona Department of Environmental
Quality (ADEQ), EPA-HQ-SFUND-2015-0781-2714.
---------------------------------------------------------------------------

    With respect to BMPs, the Forest Service commented that EPA
acknowledges that ``[t]oday, BMPs have been developed that can mitigate
potential impacts from mining to meet EPA's goal `. . . that the
engineering requirements will result in a minimum degree and duration
of risk associated with the production, transportation, treatment,
storage, or disposal, as applicable, of all hazardous substances
present at that site feature.\287\ However, comments submitted by
Earthworks, et al. raise concern about the use of BMPs, noting that no
data was provided to demonstrate that these rules have reduced, or
prevented, releases of hazardous materials. Earthworks further noted
that numerous reports document substantial impacts at modern hardrock
mines, particularly those associated

with the release of hazardous materials.\288\
---------------------------------------------------------------------------

    \287\ See comment from USDA Forest Service, EPA-HQ-SFUND-2015-
0781-2400.
    \288\ See comment from Earthworks et al., EPA-HQ-SFUND-2015-
0781-2739.
---------------------------------------------------------------------------

    EPA recognizes that substantial advances have been made in the
development of mining practices and the implementation of federal and
state regulatory programs to address releases at hardrock mining
facilities. While the risk of a release is never totally eliminated,
commenters provided information regarding state regulation of hardrock
mining facilities, including detailed information on controls those
programs require to prevent releases. This information indicates that
state and voluntary programs improve in response to incidents. Barrick
Gold commented that EPA cited some releases including at the
Summitville and Zortman-Landusky mines, which the commenter stated
cannot occur again because federal land management agencies and state
regulators have strengthened requirements and practices to prevent the
issues that occurred previously. Specifically, they stated that
regulations and policy were modified to more carefully identify risks
of acid rock drainage or other water contamination, to control
potential sources though mine design and to assure those measures are
implemented through permit and monitoring obligations. The Colorado
Department of Natural Resources, Division of Reclamation, Mining, and
Safety's comments support Barrick's statements, stating that ``the
state learned from the errors at Summitville, and the state legislature
passed major programmatic revisions to the Mined Land Reclamation Act
(MLRA)'' that ``strengthened permitting and enforcement provisions.
Most importantly, the MLRA was specifically amended [. . .] to clearly
require financial assurance for all sites based on site specific, not
formulaic, criteria.'' \289\
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    \289\ See comment from Colorado Department of Natural Resources,
EPA-HQ-SFUND-2015-0781-2774, page 3.
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    The Nevada Mining Association's comments reference Nevada's
continual improvement of its regulatory programs to ensure
effectiveness and efficiency. This comment argues that state programs
are not static and rather make constant improvements.\290\ Comments
from the Small Business Administration Office of Advocacy explained
that the bonding requirements of the Nevada program have been more
recently upgraded, in part, because of the experience gained from
administering mines through bankruptcies in the early 1990s \291\ NMA
notes improvements to federal and state programs made in response to
bankruptcies in the mining industry experienced in the 1990s and early
2000s \292\ One coordinated improvement of Federal Land Management
Agencies and Nevada cited is the development of the SRCE mentioned
above.
---------------------------------------------------------------------------

    \290\ See comment from the Nevada Mining Association, EPA-HQ-
SFUND-2015-0781-2684, page 7.
    \291\ See comment from the Small Business Administration, EPA-
HQ-SFUND-2015-0781-1406, page 4.
    \292\ See comment from the National Mining Association, EPA-HQ-
SFUND-2015-0781-2794, page 64.
---------------------------------------------------------------------------

    Additionally, a commenter operating in several states stated that
EPA's evaluation of risk failed to consider important aspects of modern
mining, including the deployment of voluntary industry programs (e.g.,
the International Council on Mining and Metals (ICMM) Sustainable
Development Framework) and robust environmental management systems with
third-party certification.\293\ A commenter also noted the
International Cyanide Management Code for the Manufacture,
Transportation, and Use of Cyanide in the Production of Gold, which was
developed under the guidance of the United Nations Environment Program.
The code ``focuses exclusively on the safe management of cyanide and
cyanidation mill tailings and leach solutions. Companies that adopt the
Cyanide Code must have their mining and processing operations that use
cyanide to recover gold and/or silver audited by an independent third
party to determine the status of Cyanide Code implementation.'' The
requirements under the code include storage and mixing location and
containment, secondary containment, lining for leach ponds, and spill
prevention and containment.\294\ Similarly, another commenter stated
that EPA failed to adequately recognize the impacts of the development
and adoption of industry BMPs, other voluntary programs, and
environmental management systems.\295\
---------------------------------------------------------------------------

    \293\ See comment from Freeport-McMoRan Inc., EPA-HQ-SFUND-2015-
0781-2402.
    \294\ See Id., Appendix D page at 8.
    \295\ See comment from National Mining Association, EPA-HQ-
SFUND-2015-0781-2794.
---------------------------------------------------------------------------

    EPA acknowledges that the requirements of current federal and state
programs can reduce risk at hardrock mining facilities, and that when
determining the need for section 108(b) requirements for hardrock
mining facilities at proposal, EPA did not adequately consider their
impact. EPA agrees with commenters opposing the proposed rule that
those reductions in risk should be considered in determining the need
for final requirements under section 108(b) for current hardrock mining
operations.\296\ The Agency is thus convinced by those commenters and
its own further investigations that the rulemaking record supporting
requirements under section 108(b) for currently operating facilities
was incomplete in not adequately considering the risk reductions
currently obtained by other Federal and state regulatory programs.
While EPA also 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 today's 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.
---------------------------------------------------------------------------

    \296\ As discussed above, this determination applies only to
EPA's authority under section 108(b) and does not affect EPA's
authority to take action under other sections of CERCLA or under
other federal law at any facility, including at a facility discussed
in this preamble.
---------------------------------------------------------------------------

    Finally, it should be noted that in addition to the federal and
state mining programs that regulate mine operation and closure,
hardrock mining facilities are regulated under a number of other
federal programs, discussed above, which contribute to reduction in
risk at these facilities. For example, mines are generally required
under the Clean Water Act regulations to obtain NPDES permits, and to
meet federal water quality standards for point-source discharges to
water sources from industrial operations. Requirements of the Safe
Drinking Water Act include permitting and technical standards for
underground injection wells that might be used in mineral extraction.
And, requirements under the CAA apply National Emission Standards for
Hazardous Air Pollutants to hazardous air releases from mining and
processing operation sources.
b. Comments Providing Information on Reduced Costs to the Taxpayer
Resulting From Effective Hardrock Mining Programs and Owner or Operator
Responses
    Commenters also argued that the reduced risk at modern hardrock
mining facilities is evidenced by the fact that there are very few
cases where modern hardrock mining facilities have been addressed by
Superfund and/or at taxpayer expense.

    Several commenters disagreed with EPA's assertion in the proposal
that the estimated $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 stated that EPA did not differentiate between costs
associated with the highly-regulated mining practices of today and pre-
regulation practices in developing that number. EPA agrees that the
analysis discussed in the preamble to the proposed rule \297\ did not
adequately distinguish between legacy and current mines.
---------------------------------------------------------------------------

    \297\ See 82 FR 3479, January 11, 2017.
---------------------------------------------------------------------------

    Commenters argued that such analyses would further demonstrate that
any risks from modern operations entail much less costly responses, and
that the bulk of the observed historical response costs are
attributable to pre-regulation practices.
    In addition, many commenters stated that the risk that there will
be inadequate funding to cover CERCLA liabilities at hardrock mining
facilities in the future is adequately addressed by existing federal
and state financial assurance programs. Commenters provided numerous
examples of existing trust, bonds, and letters of credit (LOCs)
available to pay for necessary actions at these sites.\298\ Commenters
also provided examples of facilities where the response costs have been
paid for by owners and operators at no cost to taxpayers.\299\
---------------------------------------------------------------------------

    \298\ See a discussion of this issue in the Technical Support
Document for this final rulemaking: EPA, CERCLA Section 108(b)
Hardrock Mining Final Rule: Technical Support Document, December 1,
2017.
    \299\ See a discussion of this issue in the Technical Support
Document for this final rulemaking, Ibid.
---------------------------------------------------------------------------

    Since a goal of section 108(b) requirements is to provide funds to
address CERCLA liabilities at sites, evidence of such privately-funded
responses contributes to support for the decision that financial
responsibility requirements under section 108(b) for current hardrock
mining operations are not appropriate.

E. Evidence Rebutting EPA's Site Examples

    In developing the 2009 Priority Notice and the proposed rule, EPA
cited examples of hardrock mining facilities where releases of
hazardous substances have occurred, and in some cases where CERCLA or
CERCLA-like actions were necessary, as evidence of risk associated with
hardrock mining operations.\300\ The examples fell into three
categories: (1) Examples now not relevant to the mines to be regulated
under the rule, (2) examples reflecting a reassessment of costs to the
taxpayers based on new information, and (3) examples where program
requirements were subsequently modified to address the problem.
---------------------------------------------------------------------------

    \300\ See the Releases Report, the Practices Report, and the
Evidence Report. NMA comments included a detailed critique of the
Practices Report prepared by the Society for Mining Metallurgy and
Exploration, Inc., as Appendix D to its comments.
---------------------------------------------------------------------------

    Commenters on the proposed rule provided information to rebut the
facts associated with the case studies and their significance in
support of the 2009 Priority Notice and the proposed rule, by pointing
out that response actions were due to legacy contamination, were
privately funded, were covered by financial assurance under other law,
or were the result of situations that have been subsequently addressed
by state law.\301\ The information provided by these case studies
formed a significant portion of the record on which the 2009 Priority
Notice and the proposed rule were based. This additional information
provided by commenters has caused EPA to reevaluate its conclusions in
the proposed rule regarding the level of potential taxpayer liability
from modern mines operating under currently existing regulatory
programs.
---------------------------------------------------------------------------

    \301\ In fact, comments submitted by NMA included a lengthy
Appendix addressing the individual facilities cited by EPA. See
comment EPA-HQ-SFUND-2015-0781-2794, Appendices C-1, C-2, and C-3.
---------------------------------------------------------------------------

    One example in each of the three categories is discussed below. A
full discussion of the case studies and the evidence provided in
rebuttal can be found in a support document entitled ``CERCLA Section
108(b) Hardrock Mining Final Rule: Technical Support Document,'' which
is available in the docket for this rulemaking.
1. Example of Sites Now Not Relevant to the Mines To Be Regulated Under
the Rule
    Commenters provided information demonstrating that several of the
site examples relied upon in the proposed rule are not relevant to an
evaluation of the risk at current hardrock mining operations because
they relate to historic mining activities that do not reflect current
mining practices or regulatory regimes at the state or federal level.
EPA agrees that the historical mining practices, and environmental
contamination that may have occurred as a result of such practices, are
not an accurate representation of the risks associated with current
hardrock mining operations. Many of the sites referenced in the
proposed rule, the 2009 Priority Notice, and record of support, are not
relevant to EPA's assessment of risk posed by current hardrock mining
operations that are already subject to applicable federal and state
regulatory regimes. Rio Tinto Kennecott Bingham Canyon Site in Utah is
an example of a site that was now not relevant to current hardrock
mining operations.
    This mine was included in the preamble of the proposed rule as an
example of the impacts that can occur from large-scale operations.\302\
For example, the discussion of this mine references the large-scale
disturbance of land, accumulation of waste rock, and leaching of
hazardous substances and acid rock drainage, but it does not provide
details about the history of the mine or context about whether certain
activities are best characterized as legacy mining activities or ones
that reflect current mining practices and regulatory regimes.
---------------------------------------------------------------------------

    \302\ 82 FR 3388, 3472; see also, Comment submitted by
Earthworks (EPA-HQ-SFUND-2015-0781-1072). The four-page report
characterizes the mine as the ``second most polluting mine in the US
by toxic releases'' based on TRI data; however, as noted in the
preamble to the final rulemaking, TRI data are not an accurate
representation of risk at a particular site. As the Earthworks
comment notes, EPA and the state have reached an agreement to not
finalize the proposal to list the site on the NPL and there have
been several state and federal regulatory and enforcement actions at
the site, which required the company to take steps to mitigate risks
to human health, water, and other natural resources.
---------------------------------------------------------------------------

    According to Rio Tinto's comments and EPA's record for the site,
there has been active mining in the canyon since the 1860s and that the
historic mining activities ``based on a less sophisticated
understanding of environmental sciences and substantially less
regulation by emerging environmental protection laws inarguably left
their mark.'' \303\ According to the record for this action, EPA has
secured more than $270 million to pay for response actions for this
site through enforcement orders and consent decrees. Rio Tinto in its
comments acknowledges that accidents do happen and that reporting,
inspections, and enforcement can help prevent and address problems that
do occur. In its comments, NMA stated that the cooperation between the
mining company, EPA, and the state is a model for addressing legacy
environmental contamination at mining sites.\304\ EPA has touted the
cooperative effort to clean up the site as a ``major accomplishment of
the Superfund program and law.'' \305\ Further

discussion of this mine can be found in the Technical Support Document
for this final rulemaking.\306\ EPA agrees that this mine, which has an
expansive footprint but whose current operations are subject to
considerable oversight by regulatory authorities, is not a relevant
example on which to base a rule under section 108(b).
---------------------------------------------------------------------------

    \303\ EPA-HQ-SFUND-2015-0781-2747; see also, EPA-HQ-SFUND-2015-
0781-0186.
    \304\ EPA-HQ-SFUND-2015-0781-2794, table C.
    \305\ See comment from the National Mining Association, EPA-HQ-
SFUND-2015-0781-2747, Appendix F.
    \306\ See: EPA, CERCLA Section 108(b) Hardrock Mining Final
Rule: Technical Support Document, December 1, 2017.
---------------------------------------------------------------------------

2. Example Reflecting Reassessment of Costs to the Taxpayers Based on
Additional Information
    As discussed above, a goal of regulations under section 108(b) is
to increase the likelihood that owners and operators will provide funds
necessary to address the CERCLA liabilities at their facilities. In
doing so, section 108(b) requirements assure that owners and operators,
rather than the taxpayers, bear the costs associated with necessary
responses to releases and potential releases of hazardous substances at
their sites. Commenters on the proposed rule objected that EPA did not
properly consider whether a release resulted in expenditure of taxpayer
funds to determine the need for a rule under section 108(b). EPA's
reconsideration of these case studies supports the determination that
section 108(b) financial responsibility requirements at hardrock mining
facilities are not necessary to provide funds to address CERCLA
liabilities at sites. Many of the sites referenced in the proposed
rule, the 2009 Priority Notice, and record of support, are not relevant
to EPA's assessment of risk posed to the taxpayer because cleanup is
being paid for by private parties. Golden Sunlight Mine in Montana is
an example of such a site.
    The Releases Report presented this mine as an example of a current
mine with releases to the environment where a response action was
necessary. NMA and Barrick Gold both commented that the releases from
the tailings facility detected in 1993 were discovered by monitoring
implemented at the behest of state mining permits at the site and
corrective action was taken by the operator.\307\ In the proposed rule,
the agency described the actions by the owner/operator to immediately
repair the bentonite cut-off wall to control seepage from the tailings
impoundments. The facility has also installed an extensive system of
monitoring wells and several hydrogeologic investigations have been
undertaken to continue to monitor, evaluate, and control leakage from
the tailings impoundment.
---------------------------------------------------------------------------

    \307\ National Mining Association comments on proposed rule
appendix table C-2 pg 6; Barrick Gold July 11, 2017 comments on
proposed rule page 20.
---------------------------------------------------------------------------

    As discussed in the Technical Support Document and elsewhere in the
preamble, Montana substantially reformed its mining laws over the past
couple of decades. Montana Department of Environmental Quality
commented on the proposed rule that Montana State Law ``requires Hard
Rock operators to submit to Montana Department of Environmental Quality
a bond in an amount no less than the estimated cost to the state to
ensure compliance with Montana's Air Quality Act, Montana's Water
Quality Act, the Metal Mine Reclamation Act, and the permit issued by
DEQ under the Metal Mine Reclamation Act (MMRA). The site is also
subject to Montana's Environmental Policy Act (MEPA) which is patterned
after NEPA). The mine has been the subject of several environmental
assessments and one environmental impact statement for amendments to
its operating permit. In addition, and at a minimum, Montana Department
of Environmental Quality is required to perform a comprehensive bond
review every five years for each Hard Rock operation to ensure that the
bonding level is appropriate.'' \308\
---------------------------------------------------------------------------

    \308\ EPA-HQ-SFUND-2015-0781-2742.
---------------------------------------------------------------------------

    The Agency researched Montana's requirement to perform a
comprehensive bond review every five years as it applies to the Golden
Sunlight Mine. The agency found a final bond determination for Golden
Sunlight Mine dated July 28, 2017 in which Montana DEQ determined that
the current bonding level of $112,153,980 did not represent the present
cost of compliance with the MMRA, the administrative rules, and
Operating Permit No. 00065. After negotiations between Montana
Department of Environmental Quality, the Bureau of Land Management, and
the mine owner, and a 30-day comment period, the bond amount was
increased to $146,564,163. The next comprehensive bond review will be
in 2020.\309\ Further discussion of this mine can be found in the
Technical Support Document for this final rulemaking.\310\
---------------------------------------------------------------------------

    \309\ See: EPA, CERCLA Section 108(b) Hardrock Mining Final
Rule: Technical Support Document, December 1, 2017. http://deq.mt.gov/Portals/112/Land/Hardrock/Active%20Amendments/Golden%20Sunlight%20016/00065_GSM_2017_07_28_Final_Bond.pdf.
    \310\ See: EPA, CERCLA Section 108(b) Hardrock Mining Final
Rule: Technical Support Document, December 1, 2017.
---------------------------------------------------------------------------

3. Example Where Program Requirements Were Subsequently Modified To
Address the Problem
    Commenters provided information to demonstrate that when problems
have arisen at hardrock mining facilities, states have responded by
improving their programs to prevent similar problems in the future and
that there is, therefore, no need for financial responsibility
requirements under section 108(b). Commenters provided examples of such
state program modifications to rebut evidence provided in the record
supporting the proposed rule. Barite Hill/Nevada Goldfields Facility in
South Carolina is an example of a situation where program modifications
reduced future risk.
    As was discussed in the proposed rule, the Barite Hill/Nevada
Goldfields was a gold and silver surface mine located in McCormick,
South Carolina that was operated by Nevada Goldfields.\311\ The mine
operated an open pit cyanide heap leach operation on the property from
1989 to 1994. Nevada Goldfields conducted mine reclamation activities
from 1995 to 1999, when it filed for bankruptcy and abandoned the site,
turning over control to the South Carolina Department of Health and
Environmental Control.\312\
---------------------------------------------------------------------------

    \311\ 82 FR at 3473.
    \312\ ATSDR 2011 PHA Barite Hill EPA-HQ-SFUND-2015-0781.
---------------------------------------------------------------------------

    NMA commented that EPA's description of the mine in the proposed
rule included mischaracterizations and omissions, including that
significant changes were made to South Carolina Mining Act in 1990 that
specified reclamation requirements and provided enforcement tools. NMA
also stated that the most recent facility that had been permitted in
the state had a waste rock management plan to prevent acid mine
drainage.\313\ EPA has confirmed that South Carolina finalized
regulations implementing this new authority in 1992, including
requirements that a mine obtain a reclamation bond as a condition for
receiving a mining permit, and that the recently permitted gold mine is
subject to stricter environmental and financial assurance
requirements.\314\ These regulations were not completed in time to
significantly reduce risks at Nevada Goldfields, which ceased active
mining in 1994, but EPA believes that similar mines operating in South
Carolina today under

the current regulations would have significantly reduced risks of
unpermitted releases and taxpayer liability. Further discussion of this
mine can be found in the Technical Support Document for this final
rulemaking.
---------------------------------------------------------------------------

    \313\ NMA EPA-HQ-SFUND-2015-0781-2794 Attachment #109 pdf p. 81/
119; Attachment #110 pdf p. 330, 346, and 387/440.
    \314\ S.C. State Register, Vol. 16, Issue 4 (April 24, 1992);
available at: http://digital.tcl.sc.edu/cdm/compoundobject/collection/scsreg/id/31138/rec/5.
---------------------------------------------------------------------------

F. Information Regarding Financial Responsibility Instrument
Availability

    During the public comment period for the proposed rule, commenters
representing or participating in the insurance, surety and banking
industries identified several concerns with EPA's proposed instrument
terms, and expressed concern that those terms could impact the
availability of instruments. Similarly, entities in the mining industry
expressed concerns that instruments may not be available for the
amounts proposed in the forms specified. Information provided by
commenters on likely lack of available instruments to satisfy section
108(b) requirements provides further support for EPA's determination
that the proposed financial responsibility requirements are not
appropriate.
    EPA considered the capacity of the financial market to provide
instruments as part of the development of the proposed rule. The
Conference Committee Report for the Consolidated Appropriations Act
(2016) instructed EPA to conduct a study of the market capacity
regarding the necessary instruments for meeting any new section 108(b)
financial responsibility requirements. EPA accordingly developed a
study,\315\ which suggested significant uncertainty exists around the
ultimate availability of instruments.
---------------------------------------------------------------------------

    \315\ Doc. ID EPA-HQ-SFUND-2015-0781-0496; Letter from USEPA,
Chief Financial Officer, to members of Senate and House
Subcommittees on Interior, Environment, and Related Agencies, dated
Sept. 1, 2016, along with attached submission of EPA study titled,
``CERCLA 108(b) Hardrock Mining and Mineral Processing Evaluation of
Markets for Financial Responsibility Instruments, and the
Relationship of CERCLA 108(b) to Financial Responsibility Programs
of Other Federal Agencies'', August 25, 2016.
---------------------------------------------------------------------------

    Many commenters expressed concerns regarding the uncertainty
inherent in the study as well and expressed concerns that financial
responsibility instruments may not be universally available and
affordable.\316\ The concerns raised by commenters regarding the terms
and conditions of the proposed instruments as well as the comments on
the market capacity study have contributed to uncertainty regarding the
availability of instruments to owners and operators seeking to comply
with the proposed section 108(b) requirements. If instruments were not
available, owners and operators would be unable to comply with section
108(b) requirements, and the goal of the rule to provide funds to
address CERCLA liabilities at sites would not be achieved.
---------------------------------------------------------------------------

    \316\ See, for example, Freeport McMoran comments on the
proposed rule Docket ID: EPA-HQ-SFUND-2015-0781-2793 pg 89-91;
American Exploration and Mining Association comments on the proposed
rule Docket ID: EPA-HQ-SFUND-2015-0781-2795 pg 30-32; National
Mining Association comments on the proposed rule Docket ID: EPA-HQ-
SFUND-2015-0781-2794 pages 81-82.
---------------------------------------------------------------------------

    The issue of availability of instruments is discussed in more
detail in section VII.D. of this final rulemaking.

V. Decision to Not Issue the General Facility Requirements of Subparts
A Through C in This Final Rulemaking

    The Agency also has decided not to issue as final any provisions of
the proposed rule, including the general financial responsibility
requirements in subparts A through C. EPA would include general
facilities requirements, such as these, in the first of any subsequent
rulemaking proposals under section 108(b), rather than issue final
requirements under those subparts at this time.
    EPA decided on this approach because there is no need to issue
final requirements in subparts A through C at this time as they would
not be applicable to any classes of facilities until such time as final
section 108(b) regulations applicable to classes of facilities are
issued.
    In addition, the Agency received significant comment on the general
financial responsibility provisions of the proposed rule, many of which
identified significant issues with those portions of the proposal.
These included, for example, the financial industry's concerns
regarding certain provisions included with the language of the
instruments, as described in detail below. By issuing a new proposed
set of general requirements for any subsequent industry class, EPA
would to be able to gather additional information as appropriate.
Accordingly, EPA would be able to present a new set of general facility
requirements in any subsequent proposal, with an additional opportunity
for public comment, rather than having to create a proposal to modify
existing requirements, thus avoiding potential confusion to commenters.

VI. Obstacles To Developing and Implementing Section 108(b) Financial
Responsibility Requirements for Hardrock Mining Facilities

    EPA decided not to issue final requirements under section 108(b)
for hardrock mining facilities because the Agency believes that final
requirements are not appropriate. Furthermore, the Agency encountered a
set of challenges that validate the decision not to issue final
regulations. First, challenges remain regarding the potential
disruption of state, tribal, and local mining programs by section
108(b) requirements. Second, section 108(b) continues to present
particular challenges regarding the determination of a financial
responsibility amount. Third, the Agency's evaluation of the economic
impacts of the proposed rule does not support the need for a rule.
Fourth, concerns regarding the availability of instruments remain.
Finally, section 108(b) continues to present challenges in identifying
the facility for purposes of the rule. These concerns were raised by
commenters, and are discussed in detail below.

A. Potential Disruption of State, Tribal, or Local Mining Programs

    In the proposed rule, EPA acknowledged the role that effective
reclamation and closure requirements at hardrock mining facilities
under federal and state programs can have in reducing the likelihood of
releases or potential releases of hazardous substances to the
environment. EPA also documented that federal and state mining
regulatory programs require financial assurance to support
implementation of reclamation and closure requirements.
    Numerous observers raised questions about the effects of an express
preemption provision in CERCLA section 114(d) during EPA's development
of the proposed rule. This provision states in part:

    Except as provided in this subchapter, no owner or operator of a
. . . facility who establishes and maintains evidence of financial
responsibility in accordance with this subchapter shall be required
under any State or local law, rule or regulation to establish or
maintain any other evidence of financial responsibility in
connection with liability for the release of a hazardous substance
from such . . . facility. Evidence of compliance with the financial
responsibility requirements of this subchapter shall be accepted by
a State in lieu of any other requirement of financial responsibility
imposed by such State in connection with liability for the release
of a hazardous substance from such . . . facility.\317\

    \317\ 42 U.S.C. 9614(d).
---------------------------------------------------------------------------

    EPA discussed its views on the preemption provision in the proposed
rule. Specifically, EPA explained that it did not intend for its
section 108(b) regulations to result in widespread displacement of
state mine bonding programs under section 114(d), nor did

it believe that such preemption is intended by CERCLA, necessary, or
appropriate. In support of this conclusion, EPA discussed the language
of paragraph (d) and section 114 as a whole, and considered whether
state bonding programs were ``in connection with liability for the
release of a hazardous substance'' as that term is used in section
114(d), and also took into account relevant policy considerations.\318\
---------------------------------------------------------------------------

    \318\ 82 FR 3403-04.
---------------------------------------------------------------------------

    Commenters on the proposal nevertheless continued to express
concern that preemption would indeed occur if section 108(b)
requirements were implemented at facilities, resulting in disruption of
those programs not only from successful preemption challenges, but also
from the mere need to defend against those challenges.\319\
---------------------------------------------------------------------------

    \319\ See, for example, Montana Dept. of Environmental Quality,
Comment #: EPA-HQ-SFUND-2015-0781-2742; Arizona Dept. of
Environmental Quality (ADEQ), Comment #: EPA-HQ-SFUND-2015-0781-
2714; and State of Alaska (Dept. of Natural Resources (ADNR), Dept.
of Environmental Conservation (ADEC), and the Alaska Dept. of Law),
Comment #: EPA-HQ-SFUND-2015-0781-2785.
---------------------------------------------------------------------------

    Although EPA discussed its views on the question in the proposed
rule, it will be the courts, rather than EPA, that will decide the
effect of section 114(d). Thus, EPA cannot ensure that preemption will
not occur if financial responsibility under section 108(b) requirements
is in place at a facility. EPA thus understands why states and local
governments have concerns that they would have to defend preemption
challenges, and concerns over the possibility that preemption could
occur.
    EPA also recognizes that the potential impact of preemption of
financial assurance requirements extends beyond the concerns relating
to the financial impacts, as financial assurance is an integral part of
state mining programs--that is, financial assurance can provide
enforcement leverage to regulators, and can prevent delays in
conducting closure and reclamation at a site should the owner or
operator become unwilling or unable to do so, thus minimizing
environmental harm.
    For all of these reasons, EPA believes that preemption of state
financial assurance requirements, should it occur, would be an
undesirable and damaging consequence of section 108(b) requirements.
The Agency's decision not to issue final requirements under section
108(b) for hardrock mining facilities avoids this undesirable outcome.

B. Challenges To Determine the Level of Financial Responsibility

    In developing the proposed rule, EPA considered four approaches to
identify a financial responsibility amount for a facility--fixed
amount, site-specific amount, parametric approach, and formulaic
approach, and described three of those approaches in the proposed rule.
EPA also identified some of the challenges of the three approaches
described and sought comment on various aspects of these approaches.
    Under a fixed amount approach, the Agency would identify a standard
cost for the class of regulated facilities. This method would not rely
on site-specific factors but rather on historical costs associated with
similar facilities to calculate an expected future amount. This
approach is best applied where the costs at issue are fairly uniform,
as the wider the variation, the lower the accuracy of the financial
responsibility amount for that cost. If there is wide variation in the
costs associated with the facilities within the class to which the
fixed amount is applied, the result can be significant over-regulation
at those facilities with lower levels of liabilities, and significant
under-regulation of facilities with higher levels of liabilities. At
the same time, this approach has advantages in that it requires a lower
level of effort on the part of the regulated community and the Agency
to implement because the rule does not require a site-specific
calculation to be developed, submitted, or evaluated. EPA proposed the
use of a fixed amount for the health assessment component of the
financial responsibility amount from hardrock mining facilities.
    The second method considered by EPA was a site-specific approach.
Under this approach, the owner or operator would calculate the cost of
conducting known activities to address identified problems. This
approach is the most precise of the three approaches considered by EPA.
However, it is also the most resource intensive to implement. It
requires gathering detailed information about the site, including an
assessment of the site conditions, and is most easily implemented where
a release has occurred, a response is necessary, and a remedy
determination has been made. In fact, EPA already requires financial
responsibility identified on a site-by-site basis when requiring
parties to carry out response actions under CERCLA.\320\ EPA notes that
state regulatory programs and the programs of BLM and the Forest
Service generally do use a site-specific approach based on extensive
knowledge of site conditions to establish financial responsibility
amounts, and this is one of the strengths of existing programs relative
to the formula based approach in the proposed rule. Having identified
reasons that a fixed cost and a site-specific approach may not be
appropriate to identify the level of financial responsibility under
section 108(b) for response costs and natural resource damages for
hardrock mining facilities, EPA sought to develop an approach that was
more accurate than the fixed amount, yet could be implemented without
conducting a full site investigation at the facility. The Agency's
efforts resulted in development of a formula for facilities within the
hardrock mining industry.
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    \320\ See Guidance on Financial Assurance in Superfund
Settlement Agreements and Unilateral Administrative Orders (April
2015).
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    The proposed formula identified categories of response action at
hardrock mining facilities, based on past response actions to legacy
contamination and estimated the costs of those actions based on
reclamation activities under federal and state laws. Instead of taking
other regulations or facility practices into account when identifying
the risk to be addressed by financial responsibility requirements, the
formula assumed the need for a CERCLA response, and then allowed
reductions in the financial responsibility amount based on a
demonstration of compliance with other regulatory requirements or other
facility practices. As discussed above, EPA no longer believes that
this approach would result in financial responsibility requirements
``consistent with the degree and duration of risk associated with the
production, transportation, treatment, storage, or disposal of
hazardous substances.'' Thus, the formula does not reflect a level of
financial responsibility that EPA in its discretion believes is
appropriate.
    The financial responsibility formula proposed for hardrock mining
was specific to that industry, and was not designed for use in future
rulemakings under section 108(b). In future rulemakings under section
108(b), EPA will evaluate how to determine financial responsibility
amounts for each particular rule, and will propose an appropriate
methodology on which it would seek additional public comment.

C. Concerns Regarding Costs and Economic Impacts of the Proposed Rule

1. Overall Concerns Regarding Cost and Economic Impact
    EPA received significant comments on the Regulatory Impact Analysis
(RIA) for the proposed section 108(b) rule that

highlight detrimental economic outcomes of concern to commenters. In
addition to numerous comments critical of various methodological and
data limitations in the RIA, the leading criticism focuses on the
disparity between projected industry costs in comparison with the
rule's predicted transfer of liability costs from the government to the
hardrock mining industry.
    Using a period of analysis from 2021 to 2055, and assuming a seven
percent social discount rate, EPA estimated the annualized compliance
costs for industry to procure third-party instruments would be
approximately $111 to $171 million (the net present value (NPV) of
which is $1.4 to 2.2 billion over 34 years). These values represent the
proposed rule's estimated incremental costs to industry.\321\
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    \321\ The majority of the industry costs represented a transfer
from the regulated industry to the financial industry in association
with the procurement of third party instruments, and hence the
quantified annualized net social costs were estimated at $30 million
to $44 million.
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    EPA then also quantified the transfer of potential CERCLA-related
costs from the government to private industry that the proposed rule
would yield. Based on an assumed facility default rate of 7.5 percent,
the rule was expected to transfer a burden of just $15 to 15.5 million
in annual liability from the federal government to the regulated
industry (or $511 to $527 million over 34 years).
    Based on these estimates, commenters objected that the projected
annualized costs to industry ($111-$171 million) are a magnitude of
order higher than the avoided costs to the government ($15-15.5
million) sought by the rule. Estimates of government cost savings in
the baseline, and industry compliance costs under the rule, occur under
different regulatory scenarios and are therefore not readily
comparable. However, these findings do reveal that the costs borne by
industry far exceed the relative scale of cost savings gained by the
government as a result of the rule. In the words of one owner/operator,
``the proposed rules inflict grossly disproportionate burdens on the
hardrock mining industry relative to the small benefit that it is
intended to provide to the taxpayers.'' \322\
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    \322\ See comments from Freeport McMoran, EPA-HQ-SFUND-2015-
0781-2793 page 3.
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    Beyond these concerns, commenters also took significant issue with
the broader economic impacts that the rule could have on the hardrock
mining industry and the nation. A trade association noted that the cost
of compliance relative to cash flow will be devastating to many
companies.\323\ According to some, the high cost of compliance will
result in existing mines closing, and new mines not being built.
Another commenter stated that the high costs of the rule would force
more companies into bankruptcy, which they suggested is an unacceptable
environmental risk without any demonstrated benefits.\324\ That
commenter stated that it takes much effort and expertise over several
years to administer a bankruptcy, so it is important to keep operators
in business to conduct their own reclamation responsibilities.\325\
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    \323\ EPA-HQ-SFUND-2015-0781-2666-20/Organization: ACC, AFPM,
AISI, CKRC, IMA-NA, NAM, NMA, NAMC, PCA, SSP, TFI, and the Chamber.
    \324\ See comment from Scott Richey and Susan Elliott, USDA
Forest Service Humboldt-Toiyabee National Forest EPA-HQ-SFUND-2015-
0781-2722 page 1.
    \325\ Ibid., page 1.
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    State mining associations also repeatedly commented on the
importance of the hardrock mining sector in their individual
states.\326\ States commented that they would be grievously harmed
financially if facilities reduced operations, ceased planned
expansions, or otherwise closed or went bankrupt. In states where
mining is prevalent, those states count heavily upon the tax and
permitting revenues, jobs, etc. that come from the industry.
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    \326\ See comment from Arizona Mining Association Docket ID:
EPA-HQ-SFUND-2015-0781-2744 at pages 2-3.
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    According to AEMA the cash collateral required to obtain a section
108(b) financial responsibility instrument could be significant and
also very problematic, because this cash collateral requirement reduces
the capital that companies have available to conduct reclamation
activities, advance environmental improvement initiatives, and pursue
development opportunities. Ultimately, AEMA commented that the drain on
corporate capital from the section 108(b) financial responsibility
program would reduce the domestic production of minerals, cost hardrock
mining jobs, and economically devastate mining dependent rural
communities.\327\
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    \327\ See comment from American Exploration and Mining
Association, Docket ID: EPA-HQ-SFUND-2015-0781-2657 page 35.
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    In an effort to further emphasize the adverse economic impacts of
the proposed rule, an analysis was independently conducted by Dr.
Gordon Rausser of OnPoint Analytics, on behalf of Freeport McMoRan, and
submitted for the record in this rulemaking.\328\ These industry
supported analyses found that when all impacts are considered
(including impacts on cash flow, production, and available resources),
the proposed rule is estimated to cost the U.S. hardrock mining
industry ten times the amount projected in the RIA--an amount reported
to be between 23 percent and 66 percent of annual industry profits. The
study also estimates that U.S. investment in the hardrock mining
industry would drop by more than $5.6 billion, and that between 3,486
to 10,110 jobs would be lost in the U.S. hardrock mining industry
should the proposed rule have become final.\329\
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    \328\ EPA-HQ-SFUND-2015-0781-2650-4/Organization: New Mexico
Mining Association.
    \329\ EPA-HQ-SFUND-2015-0781-2712-135/Organization: Newmont
Mining Corporation.
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    Lastly, commenters note that while mining occurs at the local
level, the mining sector is a global industry. A commenter stated that
increased costs have implications at the state and local levels, but
these same increased costs could place U.S. mining at a competitive
disadvantage. The commenter further explained that those increases
could be a disincentive to investment in domestic projects and an
incentive to focus on operations and production outside of the
U.S.\330\ The commenter continued to speculate that this could further
result in a shortage of strategic metals at home. The commenter
explained by way of an example that lithium is viewed as a strategic
mineral currently in high demand globally as a lubricant, for use in
steel and aluminum production, and in batteries and in electrolytes and
electrodes.\331\ Finally, the commenter stated that lithium mining is
an area of considerable expansion in the U.S., and implied that could
be threated under the proposed rule.\332\
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    \330\ See comment from Nevada Mining Association Docket ID: EPA-
HQ-SFUND-2015-0781-2684 pg 11.
    \331\ Ibid.
    \332\ Ibid.
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    EPA's decision not to issue final requirements under section 108(b)
for hardrock mining facilities will thus alleviate potential burden on
owners and operators, and will help prevent any disruptions to markets
in the U.S. and abroad. EPA further seeks to avoid negatively impacting
facility resources that could otherwise have greater benefits to the
economy. The state of Idaho, for example, commented that the proposed
requirements may divert funds from uses such as the implementation of
environmental protection and enhancement programs, reclamation
projects, exploration and

development of new mineral deposits, etc.\333\
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    \333\ See comment from State of Idaho Docket ID: EPA-HQ-SFUND-
2015-0781-2682 at page 7.
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2. Concerns Particular to Impacts on Small Entities/Businesses
    Concerns raised by commenters also point to the burden that the
proposed rule could impose on small entities. In the RIA of the
proposed rule, EPA assessed the economic impacts on small entities. Of
the 221 mines and mineral processing facilities in the potentially
regulated universe, EPA identified approximately 53 facilities that
were owned by 44 small businesses. Twelve additional mines have owners
of unknown size (due to lack of available company data). For these
small entities, EPA compared the estimated annualized compliance costs
with their annual revenues in order to assess whether these small
entities could be expected to incur costs that constitute a significant
impact; and whether the number of those small entities estimated to
incur a significant impact represent a substantial number of small
entities. Results of the analysis showed that 80 percent to 87 percent
of these small entities may face an average annual compliance cost that
is greater than one percent of their revenues. Similarly, 57 percent to
75 percent of these small entities may experience impacts upon revenues
that exceed three percent. These impact estimates were found by EPA to
surpass the significant impact thresholds as set forth by the
Regulatory Flexibility Act.
    In line with these findings, many of the commenters likewise
suggested that a major number of small entities under the proposed rule
would face significant annualized costs which would either severely
hinder their ability to operate, cause them to cease operations, or be
a barrier to them being able to acquire financing to begin new
operations. In light of the findings from the Agency's own small entity
analyses, and the comments of concern raised by the regulated
community, EPA agrees that the proposed financial responsibility
requirements could prove particularly burdensome for small businesses.
Such impacts will be avoided in the absence of such requirements under
this final decision.

D. Concerns Regarding Financial Responsibility Instrument Availability

    As discussed above, during the public comment period for the
section 108(b) hardrock mining rule, commenters representing or
participating in the insurance, surety, and banking industries
identified several concerns with EPA's proposed instrument terms, and
expressed concern that those terms could impact the availability of
instruments. Similarly, entities in the mining industry expressed
concerns that instruments may not be available for the amounts proposed
in the forms specified. EPA agrees with these concerns.