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CERCLA 108(B) Financial Assurance For Hardrock Mining—Overdue or Overburden?

Richard J. Angell, Alysa M. Keller, Proceedings of 57th Annual Rocky Mountain Mineral Law Institute (2011)

Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)2 requires the US. Environmental Protection Agency (EPA) to promulgate financial responsibility requirements for classes of facilities based on the degree and duration of risk of releases of hazardous substances at such facilities in the future.3 In response to a court order requiring it to identify and publish notice of classes of facilities, as specified in section 108(b)(1), by May 4, 2009,4 EPA identified classes of facilities within the hardrock mining industry as those for which it would first develop financial responsibility requirements. This chapter analyzes EPA's selection of hardrock mining in light of the criteria provided by section 108(b) and factors that EPA determined were relevant to applying the statutory criteria. This chapter also explores the appropriateness and necessity of imposing financial responsibility requirements under section 108(b) in light of existing federal and state financial responsibility requirements that already apply to the hardrock mining industry. In addition, this chapter reviews EPA's rationale for prioritizing hardrock mining facilities as the priority class of facilities and explores whether EPA's decision was consistent with the intent of section 108(b). Finally, this chapter examines the administrative and constitutional imp