Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Requirements, 37213-37219 [E9-16819]
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[FR Doc. E9–17927 Filed 7–27–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–SFUND–2009–0265; FRL–8931–7]
RIN 2050–AG56
Identification of Priority Classes of
Facilities for Development of CERCLA
Section 108(b) Financial Responsibility
Requirements
AGENCY: Environmental Protection
Agency (EPA)
ACTION: Priority notice of action.
SUMMARY: Section 108(b) of the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) of 1980, as amended,
establishes certain regulatory authorities
concerning financial responsibility
requirements. Specifically, the statutory
language addresses the promulgation of
regulations that require classes of
facilities to establish and maintain
evidence of financial responsibility
consistent with the degree and duration
of risk associated with the production,
transportation, treatment, storage, or
disposal of hazardous substances.
CERCLA Section 108(b) also requires
EPA to publish a notice of the classes
for which financial responsibility
requirements will be first developed. To
fulfill this requirement, EPA is by this
notice identifying classes of facilities
within the hardrock mining industry for
which the Agency will first develop
financial responsibility requirements
under CERCLA Section 108(b). For
purposes of this notice, hardrock mining
facilities include those which extract,
beneficiate or process metals (e.g.,
copper, gold, iron, lead, magnesium,
molybdenum, silver, uranium, and zinc)
and non-metallic, non-fuel minerals
(e.g., asbestos, gypsum, phosphate rock,
and sulfur).
FOR FURTHER INFORMATION CONTACT: For
more information on this notice, contact
Ben Lesser, U.S. Environmental
Protection Agency, Office of Resource
Conservation and Recovery, Mail Code
5302P, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460; telephone (703)
308–0314; or (e-mail)
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Lesser.Ben@epa.gov; or Elaine Eby, U.S.
Environmental Protection Agency,
Office of Resource Conservation and
Recovery, Mail Code 5304P,1200
Pennsylvania Ave., NW., Washington,
DC 20460; telephone (703) 603–844; or
(e-mail) Eby.Elaine@epa.gov.
SUPPLEMENTARY INFORMATION:
A. How Can I Get Copies of This
Document and Other Related
Information?
This Federal Register notice and
supporting documentation are available
in a docket EPA has established for this
action under Docket ID No. EPA–HQ–
SFUND–2009–0265. All documents in
the docket are listed on the https://
www.regulations.gov Web site. Although
listed in the index, some information
may not be publicly available, because
for example, it may be Confidential
Business Information (CBI) or other
information, the disclosure of which is
restricted by statute. Certain material,
such as copyrighted material, is not
placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
the RCRA Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Avenue,
NW., Washington, DC. The Docket
Facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
legal holidays. The telephone number
for the Public Reading Room is (202)
566–1744, and the telephone number for
the Superfund Docket is (202) 566–
0270. A reasonable fee may be charged
for copying docket materials.
B. Table of Contents
I. Introduction
II. EPA’s Approach for Identifying Those
Classes of Facilities for Which
Requirements Will Be First Developed
III. Identification of Classes of Facilities in
Hardrock Mining
IV. Hardrock Mining—Releases and Exposure
to Hazardous Substances
V. Hardrock Mining—Severity of
Consequences Resulting From Releases
and Exposure to Hazardous Substances
VI. EPA’s Consideration of Additional
Classes of Facilities for Developing
Financial Responsibility Requirements
VII. Conclusion
I. Introduction
Section 108(b), 42 U.S.C. 9608 of the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) of 1980, as amended,
requires in specified circumstances that
owners and operators of facilities
establish evidence of financial
responsibility. Specifically, it requires
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the promulgation of regulations that
require classes of facilities to establish
and maintain evidence of financial
responsibility consistent with the degree
and duration of risk associated with the
production, transportation, treatment,
storage, or disposal of hazardous
substances. The section also instructs
that the President: 1
* * * identify those classes for which
requirements will be first developed and
publish notice of such identification in the
Federal Register.2
EPA is publishing this notice to fulfill
its obligations under CERCLA Section
108(b) to identify those classes of
facilities, owners, and operators (herein
referred to as classes of facilities) for
which financial responsibility
requirements will first be developed.
For the reasons that follow, the
Agency has identified classes of
facilities within the hard-rock mining
industry as its priority for the
development of financial responsibility
requirements under CERCLA Section
108(b). For purposes of this notice only,
hardrock mining is defined as the
extraction, beneficiation or processing
of metals (e.g., copper, gold, iron, lead,
magnesium, molybdenum, silver,
uranium, and zinc) and non-metallic,
non-fuel minerals (e.g., asbestos,
gypsum, phosphate rock, and sulfur).3
(See Section VI of this notice for a
discussion of EPA’s consideration of
additional classes of facilities for
developing financial responsibility
requirements under Section 108(b) of
CERCLA.)
II. EPA’s Approach for Identifying
Those Classes of Facilities for Which
Requirements Will Be First Developed
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In accordance with CERCLA Section
108(b) EPA worked to determine which
classes of facilities it should identify as
its priority. CERCLA Section 108(b)
directs the President to ‘‘identify those
classes for which requirements will be
first developed and publish notice of
such identification [.]’’ However, this
simple sentence does not spell out a
particular methodology by which the
identification is to be made. While EPA
views this statutory ambiguity as
allowing substantial discretion in
making the identification, EPA looked
1 Executive
Order 12580 delegates this
responsibility to the Administrator of the U.S.
Environmental Protection Agency (‘‘EPA’’ or ‘‘the
Agency’’) for non-transportation related facilities.
52 FR 2923, 3 CFR, 1987 Comp., p. 193.
2 42 U.S.C. 9608 (b)(1).
3 See memorandum to Jim Berlow, USEPA from
Stephen Hoffman, USEPA and Shahid Mahmud,
USEPA. Re: Mining Classes Not Included in
Identified Classes of Hardrock Mining. June 2009.
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to the rest of CERCLA Section 108(b) to
inform its exercise of this discretion.
Examination of CERCLA Section
108(b) as a whole reveals repeated
references to the concept of ‘‘risk.’’ The
first sentence of paragraph (b)(1) refers
to ‘‘requirements * * * that classes of
facilities establish and maintain
evidence of financial responsibility
consistent with the degree and duration
of risk’’ and the last sentence states that
‘‘[p]riority in the development of such
requirements shall be accorded to those
classes of facilities * * * which the
President determines present the
highest level of risk of injury.’’
Paragraph (b)(2) also states that ‘‘[t]he
level of financial responsibility shall be
initially established, and, when
necessary, adjusted to protect against
the level of risk which the President in
his discretion believes is appropriate
* * * .’’ Accordingly, EPA chose to
look for indicators of risk and its related
effects to inform its selection of classes
for which it would first develop
requirements under CERCLA Section
108(b). As a practical method of doing
so, EPA reviewed information contained
in a number of studies, reports, and
analyses. This review pointed to
numerous factors EPA should consider.
For example, typical elements in
evaluating risk to human health and the
environment include: the probability of
release, exposure, and toxicity.4 While
some of the considerations reflect these
basic elements of risk evaluation, others
relate more closely to the severity of
consequences that result when those
risks are realized, such as the releases’
duration if not prevented or quickly
controlled as a result of economic
factors and the exposures that can
result. Therefore, EPA has chosen to
evaluate the following factors: (1)
Annual amounts of hazardous
substances released to the environment;
(2) the number of facilities in active
operation and production; (3) the
physical size of the operation; (4) the
extent of environmental contamination;
(5) the number of sites on the CERCLA
site inventory (including both National
Priority List (NPL) sites and non-NPL
sites); (6) government expenditures; (7)
projected clean-up expenditures; and (8)
corporate structure and bankruptcy
potential.
Toxicity is reflected in the
designation of substances as CERCLA
hazardous substances. Current releases
of hazardous substances, number of
operating facilities, the physical size of
an operation, the extent of
4 ‘‘Risk Assessment in the Federal Government:
Managing the Process.’’ National Research Council.
National Academy Press, Washington, DC. 1983.
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environmental contamination, and the
number of sites on the CERCLA site
inventory (non-NPL sites and NPL sites)
are factors that can relate to the
probability of a release of a hazardous
substance, as well as the potential for
exposure. These are discussed in detail,
in Section IV of this notice. Government
expenditures, projected clean-up costs,
and corporate structure and bankruptcy
potential can relate to the severity of the
consequences as a result of releases and
exposure of hazardous substances.
These are discussed in Section V of this
notice.
EPA’s review of all these factors, as
reflected in the information presented in
this notice and included in the docket,
makes it readily apparent that hardrock
mining facilities present the type of risk
that, in light of EPA’s current
assessment, justifies designating such
facilities as those for which EPA will
first develop financial responsibility
requirements pursuant to CERCLA
Section 108(b).5
III. Identification of Classes of Facilities
in Hardrock Mining
For purposes of this notice, EPA has
included the following classes of
facilities under the general title of
hardrock mining: facilities which
extract, beneficiate or process metals
(e.g. copper, gold, iron, lead,
magnesium, molybdenum, silver,
uranium, and zinc) and non-metallic,
non-fuel minerals (e.g. asbestos,
gypsum, phosphate rock, and sulfur).6
As explained below, hardrock mining
facilities share common characteristics,
and are thus being identified as a group.
At the same time, those facilities
included in the definition above differ
such that ‘‘hardrock mining facilities’’
are properly considered to encompass
multiple ‘‘classes’’ of facilities. The
various classes in this notice’s
definition of hardrock mining are
involved in two general activities: (1)
The extraction of an ore or mineral from
the earth; and (2) using various
beneficiation activities and processing
operations to produce a targeted
material product, such as a metal ingot.
The operations that comprise hardrock
mining (i.e., extraction, beneficiation,
and then processing) are all part of a
sequential process of converting
5 Today’s identification of hardrock mining is not
itself a rule, and does not create any binding duties
or obligations on any party. Additional research,
outreach to stakeholders, proposed regulations,
review of public comments, and finalization of
those regulations are needed before hardrock
mining facilities are subject to any financial
assurance requirements.
6 EPA notes that this notice does not affect the
current Bevill status of extraction, beneficiation and
processing wastes as codified in 40 CFR 261.4(b)(7).
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material removed from the earth into
marketable products, even though the
intermediate and end products differ.
Extraction, beneficiation or processing
of ores and minerals can involve similar
processes across types of mining, as
discussed below.
However, hardrock mining is also
properly considered to encompass
multiple ‘‘classes’’ that represent a range
of activities and marketable products.
Extraction differs from beneficiation and
both differ from processing, and
depending upon the product sought,
different types of processes are used.
Extraction, also called mining, is the
removal of rock and other materials that
contain the target ore and/or mineral.
The physical processes used to
accomplish this vary, but are
nonetheless often shared across
different types of mining. These
physical processes include surface,
underground, and in-situ solution
mining. Overburden and waste rock are
removed during surface and
underground extraction processes in
order to gain access to the ore.
Overburden and waste rock are
disposed of in dumps near the mine.
The dumps may or may not be lined or
covered. In-situ mining involves the
recovery of the metal from the ore by
circulating solutions through the ore in
its undisturbed geologic state and
recovering those solutions for
processing. The principal
environmental protection concern with
in-situ mining is the control and
containment of the leach solutions.
Typically the next step after
extraction, beneficiation involves
separating and concentrating the target
mineral from the ore. There are,
however, many different ways in which
beneficiation can occur. Beneficiation
activities generally do not change the
mineral values themselves other than by
reducing (e.g. crushing or grinding) or
enlarging (pelletizing or briquetting)
particle size to facilitate processing, but
can involve the introduction of water,
other substances, and chemicals
(including hazardous substances). A
common beneficiation technique is
flotation. Froth flotation involves
adding forced air and chemicals to an
ore slurry causing the target mineral
surfaces to become hydrophobic and
attach to air bubbles that carry the target
minerals to the top of a floatation vessel.
The surface froth containing the
concentrated mineral is removed, and
thus separated from the other waste
minerals. The remaining waste minerals
are called tailings. Leaching, another
beneficiation technique, involves the
addition of chemicals to ores or flotation
concentrates in order to dissolute the
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target metal. For example, solvents,
such as sulfuric acid are used to leach
copper and sodium cyanide is used to
leach gold. Following leaching, the
leftover waste product is called spent
ore (in heap leaching) or tailings (in
other types of leaching). There are
various other beneficiation techniques
and intermediate processes that are used
and not described here. However,
flotation and leaching are the most
common techniques used in the mining
industry. Tailings from beneficiation are
disposed in a variety of ways, most
commonly in tailing ponds. Design of
tailings ponds differ and may or may
not include liners, seepage control,
surface water diversions, and final
covers. Regardless, many tailings ponds
require long-term management of waste
and the impoundment dam.
Processing is the refining of ores or
mineral concentrates after beneficiation
to extract the target material. As with
beneficiation, there are many different
ways of processing the ores or mineral
concentrates. For example, mineral
processing operations can use
pyrometallurgical techniques (the use of
higher temperatures as in smelting), to
produce a metal or high grade metallic
mixture. Smelting generates a waste
product called slag. Slag is initially
placed directly on the ground to cool,
and is often subsequently managed into
a wide range of construction materials
(e.g., road bed or foundation bedding).
Both because of the ways that the
facilities covered by this notice fit
together, and because of the range of
activities that they cover, EPA believes
hardrock mining is properly identified
as a group and considered to include
multiple classes of facilities.
IV. Hardrock Mining—Releases and
Exposure to Hazardous Substances
As discussed above, evaluations of
risk typically include considerations of
the probability of a release, including its
potential scale and scope, the exposure
potential and toxicity. EPA research
indicates that the hardrock mining
industry typically operates on a large
scale, with releases to the environment
and, in some situations, subsequent
exposure of humans, organisms, and
ecosystems to hazardous substances on
a similarly large scale. Indeed, EPA
estimates that the hardrock mining
industry is responsible for polluting
3,400 miles of streams and 440,000
acres of land.7 The U.S. Forest Service
(USFS) estimates that approximately
7 U.S. EPA. 2004. ‘‘Cleaning Up the Nation’s
Waste Sites: Markets and Technology Trends.’’ EPA
542–R–04–015. Accessed at: https://www.epa.gov/
tio/pubisd.htm.
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10,000 miles of rivers and streams may
have been contaminated by acid mine
drainage from the metal mining
industry.8
The Agency examined its 2007 Toxic
Release Inventory (TRI), and this data
revealed that the metal mining
industry 9 (e.g., gold ore mining, lead
ore and zinc ore mining, and copper ore
and nickel ore mining) releases
enormous quantities of toxic chemicals,
at nearly 1.15 billion pounds or
approximately 28 percent of the total
releases by U.S. industry that is required
to report under the TRI program.10 11
This overall percentage has remained
relatively stable since 2003, ranging
from 25 percent (1.07 billion pounds) of
total releases in 2004 to 29 percent (1.26
billion pounds) of total releases in 2006.
In 2007, the majority of releases of
hazardous substances from the metal
mining industry were to the land, with
additional releases to both the air and
surface waters. Additional releases of
hazardous substances were reported to
TRI from metal processing facilities
(e.g., primary smelting of copper) with
significant releases to the air and land.
The potential for releases of and
exposure to hazardous substances is
also reflected in the number of active
facilities operating in the U.S. While
estimates of the number of active
mining facilities vary, in 2004, EPA
estimated that there were 1,000 metal
and non-metal mineral mines and
processing facilities in the U.S.
Furthermore, many mining facilities
have been in operation for decades and
can exceed thousands of acres in size.12
Since large mines may be operated for
decades, this can extend the time frame
for potential releases and exposure of
hazardous substances. At individual
facilities, hardrock mining operations
8 U.S. EPA 2004. ‘‘Nationwide Identification of
Hardrock Mining Sites.’’ Office of Inspector
General. Report No. 2004–P–00005. Accessed at:
https://epa.gov/oig/reports/2004/20040331-2004-p00005.pdf.
9 Metal mining industry is defined as NAICS Code
2122 (Metal Mining).
10 U.S. EPA 2009. Toxic Release Inventory, 2007
Updated Data Releases, as of March 19, 2009.
11 TRI estimates include all on-site and off-site
releases to the land, air and surface water, including
those disposed of in RCRA Subtitle C hazardous
waste land disposal units and Safe Drinking Water
Act (SDWA) permitted underground injection (UIC)
wells. However, less than one percent of hazardous
substances are managed in this manner. Thus, the
data demonstrates the enormous volume of
hazardous chemical releases reported to TRI by the
metal mining industry and is an indication of the
high volume of hazardous substances it manages,
and the industry’s potential for posing health and
environmental risk.
12 National Research Council. 2005. Superfund
and Mining Megasites: Lessons from the Coeur
d’Alene River Basin. The National Academies Press,
Washington, DC. Accessed at: https://www.nap.edu/
catalog.php?record_id=11359.
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may disturb thousands of acres of land
and impact watersheds including, to
varying degrees, effects on groundwater,
surface water, aquatic biota, aquatic and
terrestrial vegetation, wetlands, wildlife,
soils, air, cultural resources, and
humans that use these resources
recreationally or for subsistence.13
Hardrock mining facilities also
generate an enormous volume of waste,
which may increase the risk of releases
of hazardous substances. Annually,
hardrock mining facilities generate
between one to two billion tons of mine
waste.14 This waste can take a variety of
forms, including mine water, waste
rock, overburden, tailings, slag, and flue
dust and can contain significant
quantities of hazardous substances. The
2007 TRI data demonstrate that
hardrock mining facilities reported large
releases of many hazardous substances,
including ammonia, benzene, chlorine,
hydrogen cyanide, hydrogen fluoride,
toluene, and xylene, as well as heavy
metals and their compounds (e.g.,
antimony, arsenic, cadmium,
chromium, cobalt, copper, lead,
manganese, mercury, nickel, selenium,
vanadium and zinc).15 Similarly, the
National Research Council (NRC) has
indicated that hazardous substances of
particular concern include heavy
metals, ammonia, nitrates, and
nitrites.16
These releases, in some cases, have
lead to ground and surface water
contamination from acid mine drainage
and metal leachate, and air quality
issues resulting from heavy metalcontaminated dust or emissions of
gaseous metals from thermal
processes.17 Acid mine drainage is the
formation and movement of acidic water
which dissolves and transports metals
into the environment. This acidic water
forms through the chemical reaction of
surface water (rainwater, snowmelt,
pond water) and shallow subsurface
water with rocks (e.g., waste rock,
13 National Research Council. 1999. Hardrock
Mining on Federal Lands. National Academies
Press. Washington, DC.
14 U.S. EPA 2004. ‘‘Cleaning Up the Nation’s
Waste Sites: Markets and Technology Trends.’’ EPA
542–R–04–015. Accessed at: https://www.epa.gov/
tio/pubisd.htm.
15 See Memorandum to the Record: Toxic Release
Inventory (TRI) Releases from Hardrock Mining
Operations. June 2009.
16 National Research Council. 1999. Hardrock
Mining on Federal Lands. National Academies
Press. Washington, DC. Also, EPA conducted a
preliminary review of the Records of Decisions
(RODs) for a selected group mining NPL sites. These
substances were found to be common contaminants
at these sites. Accessed at https://books.nap.edu/
catalog.php?record_id=9682.
17 U.S EPA. 2004. ‘‘Cleaning Up the Nation’s
Waste Sites: Markets and Technology Trends.’’ EPA
542–R–04–015. Accessed at: https://www.epa.gov/
tio/pubisd.htm.
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tailings, mine walls) that contain sulfurbearing minerals, resulting in the
production of sulfuric acid. Metals can
be leached from rocks that come in
contact with the acid, a process that
may be substantially enhanced by
bacterial action.18 The resulting acidic
and metal-contaminated fluids may be
acutely or chronically toxic and, when
mixed with groundwater, surface water
and soil, may have harmful effects on
humans, fish, animals, and plants.19
When acid mine drainage occurs, it is
extremely difficult and often expensive
to control and often requires long-term
management measures.20 Air, land and
water contamination may also result
when waste rock dumps, tailings
disposal facilities and open pits are not
maintained properly and there are
releases of hazardous substances to the
environment.21 Additional risks can
occur with the use of cyanide in gold
mining operations, including the
possible release of cyanide into soil,
groundwater, and/or surface waters or
catastrophic cyanide spills.22
Contaminants of concern at uranium
mines include radionuclides. Due to the
volume of the hazardous substances
generated and released and the potential
for long-term management of acid mine
drainage, the cause for concern is only
heightened.
Other studies and EPA’s analysis of
NPL data also underscores the risk of
hardrock mining facilities. The NPL is a
list of national priorities among the
known or threatened releases of
hazardous substances, pollutants or
contaminants throughout the U.S. The
Hazard Ranking System (HRS), the
scoring system EPA uses to assess the
relative threat associated with a release
from a site, is the primary method used
to determine whether a site should be
18 U.S. EPA. 1997. ‘‘EPA’s National Hardrock
Mining Framework.’’ Accessed at: https://
www.epa.gov/owm/frame.pdf.
19 U.S. EPA 2009. Accessed at: https://
www.epa.gov/nps/acid_mine.html.
20 The conventional approach to treating
contaminated ground or surface water produced
through acid drainage involves an expensive, multistep process that pumps polluted water to a
treatment facility, neutralizes the contaminants in
the water, and turns these neutralized wastes into
sludge for disposal. U.S. EPA. Profile of the Metal
Mining Industry. September 1995. See also: Lind,
Greg. 2007. Testimony to the Subcommittee on
Energy and Mineral Resources of the Committee on
Natural Resources, U.S. House of Representatives,
One Hundred Tenth Congress. Serial No. 110–46.
21 U.S. EPA. 2004. ‘‘Cleaning Up the Nation’s
Waste Sites: Markets and Technology Trends.’’ EPA
542–R–04–015. Accessed at: https://www.epa.gov/
tio/pubisd.htm.
22 U.S. EPA. 2004. ‘‘Cleaning Up the Nation’s
Waste Sites: Markets and Technology Trends.’’ EPA
542–R–04–015. Accessed at: https://www.epa.gov/
tio/pubisd.htm.
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placed on the NPL.23 The HRS takes
into account the three elements of
environmental and human health risk:
(1) Probability of release; (2) exposure;
and (3) toxicity. EPA generally will list
sites with scores of 28.50 or above. The
HRS is a proven tool for evaluating and
prioritizing the releases that may pose
threats to human health and the
environment throughout the nation. In
2005, the NRC noted that at the largest
mining sites, or mega sites (i.e., those
with projected cleanup costs exceeding
$50 million), ‘‘wastes* * * are
dispersed over a large area and
deposited in complex hydrogeochemical
and ecologic systems that often include
human communities and public natural
resources.’’ 24 For example, a
molybdenum mine located near Questa,
New Mexico, began operations in 1919
and some underground mining
operations are still in operation today.
The mine’s operational capacity is
reportedly 20,000 tons of ore processed
at the facility per day, although it does
not typically operate at capacity. The
site stretches over approximately three
square miles of land. Across this large
area, operations include an
underground mine, a milling facility, a
nine-mile long tailings pipeline and a
tailing disposal facility. There is also an
open pit and waste rock dumps at the
mine site, which were created during
open-pit mining operations. Other
problems at the site include subsidence
areas with a surface depression from
active underground operations.25
In 2004, EPA’s Office of Inspector
General (OIG) examined 156 hardrock
mining sites that are part of the CERCLA
site inventory and concluded that
ecological and environmental risks are
often substantial. For the 82 Non-NPL
sites that were evaluated, 64 percent
had a current high or medium
ecological/environmental risk, while the
percentage of sites that were found to
have low risk was only 13%. Another
23% had an unknown level of risk.26
In support of this notice, EPA
examined not only sites listed on the
23 U.S. EPA. 2007. ‘‘Introduction to the Hazard
Ranking System (HRS).’’ Accessed at: https://
www.epa.gov/superfund/programs/npl_hrs/
hrsint.htm.
24 National Research Council. 2005. Superfund
and Mining Megasites: Lessons from the Coeur
d’Alene River Basin. The National Academies Press,
Washington, DC. Accessed at: https://www.nap.edu/
catalog.php?record_id=11359.
25 USEPA Administrative Order on Consent for
Molycorp RI/FS (2001). Molycorp is proposed for
listing on the NPL. More information is at https://
www.epa.gov/region6/6sf/pdffiles/0600806.pdf.
26 U.S. EPA 2004. ‘‘Nationwide Identification of
Hardrock Mining Sites.’’ Office of Inspector
General. Report No. 2004–P–00005, Figure 4.2.
Accessed at: https://epa.gov/oig/reports/2004/
20040331-2004-p-00005.pdf.
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NPL, but also sites proposed (including
sites with Superfund alternative
approach agreements in place) and
deleted from the NPL.27 As of April,
2009, approximately 90 hardrock
mining sites have been listed on the
NPL, and another 20 facilities have been
proposed for inclusion on the list.28
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V. Hardrock Mining—Severity of
Consequences Resulting From Releases
and Exposure to Hazardous Substances
The severity of the consequences
impacting human health and the
environment as a result of releases and
exposure of hazardous substances is
evident by analyzing a number of
factors. Specifically, the past and
estimated future costs associated with
protecting public health and the
environment through what is often
extensive and long-term reclamation
and remediation efforts, as well as
corporate structure and bankruptcy
potential. This information also plays a
significant role in leading EPA to
conclude that classes of facilities
involved in hardrock mining should be
the first for which financial assurance
requirements are developed under
CERCLA Section 108(b).
The severity of consequences posed
by hardrock mining facilities is evident
in the enormous costs associated with
past and projected future actions
necessary to protect public health and
the environment, after releases from
hardrock mining facilities occur. In
other words, the documented
expenditures reflect efforts to correct the
realized risks from hardrock mining
facilities. As noted earlier, these
facilities release large quantities of
hazardous substances, often over
hundreds of square miles and, in some
instances, have resulted in groundwater
and surface water contamination that
requires long-term management and
27 A significant number of response actions have
been taken by several Federal agencies at hardrock
mining facilities under CERCLA removal and
emergency response authorities. Those actions were
not evaluated for purposes of this Notice because
of the lack of immediately available data. EPA alone
took non-NPL removal actions at 99 mining sites
between 1988 and October 2007. Provided to GAO
for GAO 2008, ‘‘Hardrock Mining: Information on
Abandoned Mines and Value and Coverage of
Financial Assurance on BLM Land.’’ GAO–08–
574T. Other Federal agencies also use non-NPL
removal authorities to address releases from mining
sites. Accessed at: https://www.gao.gov/highlights/
d08574thigh.pdf.
28 Provided to GAO for GAO 2008, ‘‘Hardrock
Mining: Information on Abandoned Mines and
Value and Coverage of Financial Assurance on BLM
Land.’’ GAO–08–574T. Accessed at: https://
www.gao.gov/new.items/d08574t.pdf. and updated
to reflect sites finalized on the NPL in 2008 and
2009. The 2008 and 2009 NPL updates can be found
at: https://www.epa.gov/superfund/sites/npl/
status.htm.
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treatment. Remediation of these
hardrock mining facilities has therefore
been historically costly. EPA’s past
experience with these sites leads it to
conclude that hardrock mining facilities
are likely to continue to present a
substantial financial burden that could
be met by financial responsibility
requirements. These enormous
expenditures have been documented in
a United States Government
Accountability Office (GAO) study, and
EPA’s own data confirm the large
amounts of money spent by the Federal
government alone. The GAO, in its
report ‘‘Current Government
Expenditures to Cleanup Hard Rock
Mining Sites,’’ reported that in total, the
Federal government spent at least $2.6
billion to remediate hardrock mine sites
from 1998 to 2007. EPA spent the largest
amount at $2.2 billion, with the USFS,
the Office of Surface Mining, and the
Bureau of Land Management spending
$208 million, $198 million, and $50
million, respectively.29 EPA’s
expenditure data show that between
1988 and 2007, for mining sites with
response actions taken under EPA
removal and remedial authorities
(including sites proposed, listed, and
deleted from the NPL and sites with
Superfund alternative approach
agreements in place), approximately
$2.7 billion was spent.30 31 Of this total,
$2.4 billion was spent at the 84 sites
listed as final on the NPL list at that
time.32
Government Accountability Office. 2008.
‘‘Information on Abandoned Mines and Value and
Coverage of Financial Assurance on BLM Land.
GAO–08–574T. Accessed at: https://www.gao.gov/
highlights/d08574thigh.pdf.
30 Moreover, EPA’s cost data likely
underestimates true cleanup costs, because they do
not include costs borne by the States and
potentially responsible parties. These costs only
reflect expenditures to date. To reach construction
completion, many sites will require additional,
substantial remediation efforts. In addition, sites
with acid mine drainage may require water quality
treatment in perpetuity. Lind, Greg. 2007.
Testimony to the Subcommittee on Energy and
Mineral Resources of the Committee on Natural
Resources, U.S. House of Representatives, One
Hundred Tenth Congress. Serial No. 110–46.
31 U.S. EPA. 2007. Superfund eFacts Database.
Accessed: October 24, 2007; U.S. Environmental
Protection Agency. 2007 Comprehensive
Environmental Response, Compensation, and
Liability Information System (CERCLIS). Provided
to GAO for their report, GAO 2008, ‘‘Hardrock
Mining: Information on Abandoned Mines and
Value and Coverage of Financial Assurance on BLM
Land.’’ GAO–08–574T. Accessed at: https://
www.gao.gov/highlights/d08574thigh.pdf.
32 U.S. EPA. 2007. Superfund eFacts Database.
Accessed: October 24, 2007; U.S. Environmental
Protection Agency. 2007 Comprehensive
Environmental Response, Compensation, and
Liability Information System (CERCLIS). Provided
to GAO for their report, GAO 2008, ‘‘Hardrock
Mining: Information on Abandoned Mines and
Value and Coverage of Financial Assurance on BLM
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Estimated costs of remediation for all
hardrock mining facilities from several
sources have generally been in the range
of billions of dollars. EPA has estimated
that the cost of remediating all hardrock
mining facilities is between $20 and $54
billion. EPA’s analysis showed that if
the total Federal, State, and potentially
responsible party outlays for
remediation were to continue at existing
levels ($100 to $150 million annually),
no more than eight to 20 percent of all
cleanup work could be completed
within 30 years.33 In another analysis
based on a survey of 154 large sites,
EPA’s OIG projected that the potential
total hardrock mining remediation costs
totaled $7 to $24 billion. OIG calculated
that this amount is over 12 times EPA’s
total annual Superfund budget of about
$1.2 billion from 1999 to 2004.34 The
annual Superfund budget from 2004
through 2008 remained consistent with
OIG’s assessment, at approximately
$1.25 billion.35 36
Common corporate structures and
interrelated corporate failures within
the hardrock mining industry increase
the likelihood of uncontrolled releases
of hazardous substances being left
unmanaged, increasing risks. To begin
with, mine ownership is typically
complex, with individual mines often
separately incorporated.37 The existence
of a parent-subsidiary relationship can
present several risks. First, corporate
structures may allow parent
Land.’’ GAO–08–574T, https://www.gao.gov/
new.items/d08574t.pdf.
33 U.S. EPA. 2004. ‘‘Cleaning Up the Nation’s
Waste Sites: Markets and Technology Trends.’’ EPA
542–R–04–015. Accessed at: https://www.epa.gov/
tio/pubisd.htm.
34 U.S. EPA 2004. ‘‘Nationwide Identification of
Hardrock Mining Sites.’’ Office of Inspector
General. Report No. 2004–P–00005. Accessed at:
https://epa.gov/oig/reports/2004/20040331-2004-p00005.pdf.
35 Appropriation amounts reflect an average of the
discretionary appropriation amounts in the
President’s Budget or Operating Plan between 2004
and 2008.
36 No single source provides information on
estimated future reclamation and remediation costs
for hardrock mining facilities. In addition, for those
estimates that do exist, remediation costs are often
folded in with other reclamation activities, such as
correcting safety hazards and landscaping, which
leaves the amount attributable to remediation
unknown. See U.S. EPA. 2004. ‘‘Cleaning Up the
Nation’s Waste Sites: Markets and Technology
Trends.’’ EPA 542–R–04–015. Accessed at: https://
www.epa.gov/tio/pubisd.htm.
37 For example, one mining company’s 2008 SEC
10–K filing noted that its segments included ‘‘The
Greens Creek unit, a 100%-owned joint venture
arrangement, through our subsidiaries Hecla Alaska
LLC, Hecla Greens Creek Mining Company and
Hecla Juneau Mining Company. We acquired 70.3%
of our ownership of Greens Creek in April 2008
from indirect subsidiaries of Rio Tinto, PLC.’’ From
this description, it appears that ownership of the
mine has involved multiple subsidiaries, under
both its current owner and under the previous
ownership.
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corporations to shield themselves from
liabilities of their subsidiaries.38 In a
2005 study, the GAO cited mining
facilities as an example of businesses at
risk of incurring substantial liability and
transferring the most valuable assets to
the parent that could not be reached for
cleanup.39
Second, many mining interests are
located outside of the U.S. According to
one report, six of the top ten mining
claim owners in the U.S. are multinational corporations with headquarters
outside the U.S.40 Such multi-national
corporations can be difficult to hold
responsible for contamination in the
U.S. because of the difficulties of
locating and then obtaining jurisdiction
over the ultimate parent company.
This is of particular concern since the
hardrock mining industry has
experienced a pattern of failed
operations, which often require
significant environmental responses that
cannot be financed by industry.41 The
pattern of failed operations has been
well documented. GAO investigated 48
hardrock mining operations on U.S.
Department of Interior (DOI), Bureau of
Land Management (BLM) Federal lands
that had ceased operations and not been
reclaimed by operators since BLM began
requiring financial assurance under its
regulations. Of the 48 operations, 30
cited bankruptcy as the reason for
completing reclamation activities.42
Numerous other examples exist of
bankruptcies in the hardrock mining
industry that resulted in or will likely
require significant Federal responses,
such as:
• When the owner/operator filed for
bankruptcy in 1992, it left the
Summitville mine in Colorado with
serious cyanide contamination and acid
38 See U.S. v. Bestfoods, 524 U.S. 51, 61 (1998)
(‘‘[i]t is a general principle of corporate law * * *
that a parent corporation * * * is not liable for the
acts of its subsidiaries.’’)
39 U.S. Government Accountability Office. 2005.
‘‘Environmental Liabilities: EPA Should Do More to
Ensure That Liable Parties Meet Their Cleanup
Obligations.’’ Report to Congressional Requesters.
GAO–05–658, pp. 21–24. Accessed at: https://
www.gao.gov/highlights/d05658high.pdf.
40 Environmental Working Group. 2006. ‘‘Who
Owns the West?’’ Accessed at: https://www.ewg.org/
mining/claims/index.php.
41 EPA notes that there are several potential
explanations for these failures, such as a boom and
bust cycle in the price of commodities, the finite
life of a particular ore body or the possibility that
closure or reclamation obligations exceed the
remaining value of the operation, in addition to
factors that can cause bankruptcies in other sectors.
However, regardless of the cause, the fact remains
a large number of bankruptcies and abandonments
have occurred.
42 U.S. Government Accountability Office. 2005.
Hardrock Mining: BLM Needs to Better Manage
Financial Assurances to Guarantee Coverage of
Reclamation Costs. GAO–05–377. Accessed at:
https://gao.gov/products/GAO-05-377.
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mine drainage. In 1994, the site was
listed on the NPL. In 2000, EPA
estimated that the remediation cost at
the mine would be $170 million.43 As
of October 2007, EPA had spent
approximately $192 million in cleanup
costs.44
• In 1999, another mining company
filed for bankruptcy, leaving more than
100 million gallons of contaminated
water and millions of cubic yards of
waste rock at the Gilt Edge Mine in
South Dakota.45 EPA listed the site on
the NPL in 2000 and estimated at that
time the present value remediation costs
to be $50.3 million.46 Even this
estimate, however, does not include
water collection and treatment costs that
will be handled under additional
remediation plans. As of October 2007,
EPA expenditures at this site exceeded
$56.1 million.47
• In 1998, operators of the Zortman
Landusky mine in Montana filed for
bankruptcy. Numerous cyanide releases
occurred during operations which have
affected the community drinking water
supply on a nearby Tribal reservation.
Acid mine drainage has also permeated
the ground and surface waters. The
projected cleanup costs at the site are
estimated to be approximately $85.2
million, of which only $57.8 million
will be paid for by the responsible party.
State and Federal authorities are
projected to pay the remaining $27.4
million for cleanup.48
• A large mining company filed for
bankruptcy in 2005. The company has
estimated the total environmental
claims filed against it to have been in
excess of $5 billion. Recently approved
settlements with the U.S. and certain
State governments involving
environmental clean-up claims, when
combined with settlements already
approved by the bankruptcy court for
environmental clean-up claims, provide
for allowed claims and payments in the
43 U.S. Environmental Protection Agency. 2000.
Liquid Assets 2000: America’s Water Resources at
a Turning Point. EPA–840–B–00–001. Accessed at:
https://www.epa.gov/water/liquidassest.pdf.
44 U.S. Environmental Protection Agency. 2007.
Superfund eFacts Database. Accessed: October 24,
2007.
45 CDM. 2008. Final Feasibility Study Report for
the Gilt Edge Superfund Site, Operable Unit 1
(OU1). Prepared for EPA, Region VIII. May 2008.
46 U.S. EPA 2008. Record of Decision for the Gilt
Edge Superfund Site Operable Unit 1 (OU1).
Accessed at: https://www.epa.gov/region8/
superfund/sd/giltedge/
RODGiltEdgeVolumeOne_Text.pdf.
47 U.S. EPA. 2007. Superfund eFacts Database.
Accessed: October 24, 2007.
48 U.S. Government Accountability Office. 2005.
Hardrock Mining: BLM Needs to Better Manage
Financial Assurances to Guarantee Coverage of
Reclamation Costs. GAO–05–377. Accessed at:
https://gao.gov/products/GAO-05-377.
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bankruptcy in an amount in excess of
$1.5 billion and involve in excess of 50
sites. EPA and DOI estimate their
combined claims in the bankruptcy at
the largest of these sites, an NPL site
located in Idaho and Eastern
Washington, to be in excess of $2
billion.49
Taking all this information into
account, EPA concludes that classes of
facilities within the hardrock mining
industry are those for which EPA
should first develop financial
responsibility requirements under
CERCLA Section 108(b), based upon
those facilities’ sheer size; the enormous
quantities of waste and other materials
exposed to the environment; the wide
range of hazardous substances released
to the environment; the number of
active hardrock mining facilities; the
extent of environmental contamination;
the number of sites in the CERCLA site
inventory, government expenditures,
projected clean-up costs and corporate
structure and bankruptcy potential.
VI. EPA’s Consideration of Additional
Classes of Facilities for Developing
Financial Responsibility Requirements
The Agency believes classes of
facilities outside of the hardrock mining
industry also may warrant the
development of financial responsibility
requirements under CERCLA Section
108(b). Therefore, the Agency will
continue to gather and analyze data on
additional classes of facilities, beyond
the hardrock mining industry, and will
consider them for possible development
of financial responsibility requirements.
In determining whether to propose
requirements under CERCLA Section
108(b) for such additional classes of
facilities, EPA will consider the risks
posed and, to do so, may take into
account factors such as: (1) The amounts
of hazardous substances released to the
environment; (2) the toxicity of these
substances; (3) the existence and
proximity of potential receptors; (4)
contamination historically found from
facilities; (5) whether the causes of this
contamination still exist; (6) experiences
from Federal cleanup programs; (7)
projected costs of Federal cleanup
programs; and (8) corporate structures
and bankruptcy potential. EPA also
intends to consider whether financial
responsibility requirements under
CERCLA Section 108(b) will effectively
reduce these risks. While the Agency
recognizes that data for some of these
factors may be unavailable or limited in
49 Asarco, LLC, et al. U.S. Bankruptcy Court
Southern District of Texas. May 15, 2009, Case No.
05–21207, Docket No. 11343.
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availability, it plans to consider
whatever data are available.
As part of the Agency’s evaluation, it
plans to examine, at a minimum, the
following classes of facilities: hazardous
waste generators, hazardous waste
recyclers, metal finishers, wood
treatment facilities, and chemical
manufacturers. This list may be revised
as the Agency’s evaluation proceeds.
EPA is currently scheduled to complete
and publish in the Federal Register a
notice addressing additional classes of
facilities the Agency plans to evaluate
regarding financial responsibility
requirements under CERCLA Section
108(b) by December 2009, and, at that
time, will solicit public comment.
VII. Conclusion
Based upon the Agency’s analysis and
review, it concludes that hardrock
mining facilities, as defined in this
notice, are those classes of facilities for
which EPA should identify and first
develop requirements pursuant to
CERCLA Section 108(b). EPA will
carefully examine specific activities,
processes, and/or metals and minerals
in order to determine what proposed
financial responsibility requirements
may be appropriate. As part of this
process, EPA will conduct a close
examination and review of existing
Federal and State authorities, policies,
and practices that currently focus on
hardrock mining activities.50
Dated: July 10, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9–16819 Filed 7–27–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–8932–9]
Modification of the 1985 Clean Water
Act Section 404(c) Final Determination
for Bayou aux Carpes in Jefferson
Parish, LA
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AGENCY: Environmental Protection
Agency (EPA).
50 As part of developing proposed and final rules
the Agency will consider whether hardrock mining
facilities which have a RCRA Part B permit or are
subject to interim status under RCRA Subtitle C and
already are subject to RCRA financial assurance and
facility-wide corrective action requirements need to
also be subject to the financial responsibility
requirements under Section 108(b) of CERCLA. In
addition, EPA is aware and will consider in its
development of proposed and final rules, that
mining on Federal land triggers either the Bureau
of Land Management’s (BLM) Part 3809 regulations
(43 CFR Part 3809) and the Forest Service’s Part 228
regulations (36 CFR Part 228), both have financial
responsibility requirements that cover reclamation
costs. Many States also have reclamation laws.
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ACTION:
Notice.
SUMMARY: This is a notice of EPA’s
Modification of the 1985 Clean Water
Act Section 404(c) Final Determination
for Bayou aux Carpes to allow for the
discharge of dredged or fill material for
the purpose of the construction of the
West Closure Complex as part of the
larger flood protection project for the
greater New Orleans area. EPA believes
that this Final Determination for
modification achieves a balance
between the national interest in
reducing overwhelming flood risks to
the people and critical infrastructure of
south Louisiana while minimizing any
damage to the Bayou aux Carpes CWA
Section 404(c) site to the maximum
degree possible in order to avoid
unacceptable adverse effects.
DATES: Effective Date: The effective date
of the Final Determination for
Modification was May 28, 2009.
ADDRESSES: U.S. Environmental
Protection Agency, Office of Water,
Wetlands Division, Mail code 4502T,
1200 Pennsylvania Ave, NW.,
Washington, DC 20460. The following
documents used in the Bayou aux
Carpes modification are listed on the
EPA Wetlands Division Web site at
https://www.epa.gov/owow/wetlands/
regs/404c.html: New Orleans District of
the Corps letter dated November 4,
2008, requesting that EPA modify the
Bayou aux Carpes CWA Section 404(c)
designation; Public Notice of Proposed
Determination to modify the Bayou aux
Carpes CWA Section 404(c) designation
published in the Federal Register on
January 14, 2009; April 2, 2009,
Recommended Determination (RD) for
modification of the Bayou aux Carpes
404(c) action; and the May 28, 2009,
Modification of the 1985 Clean Water
Act Section 404(c) Final Determination
for Bayou aux Carpes. Additional
documents that are related to the Bayou
aux Carpes modification can be located
on the U.S. Army Corps of Engineers
New Orleans District Web site at
https://www.nolaenvironmental.gov/
projects/usace_levee/IER.aspx?
IERID=12.
Publicly available document materials
are available either electronically
through https://www.regulations.gov or
in hard copy at the Water Docket, EPA/
DC, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the Water
Docket is (202) 566–2426.
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37219
FOR FURTHER INFORMATION CONTACT: Mr.
Clay Miller at (202) 566–1365 or by email at miller.clay@epa.gov. Additional
information and copies of EPA’s Final
Determination for Modification are
available at https://www.epa.gov/owow/
wetlands/regs/404c.html or https://
www.nolaenvironmental.gov/projects/
usace_levee/IER.aspx?IERID=12.
SUPPLEMENTARY INFORMATION: Section
404(c) of the Clean Water Act (CWA) (33
U.S.C. 1251 et seq) authorizes EPA to
prohibit, restrict, or deny the
specification of any defined area in
waters of the United States (including
wetlands) as a disposal site for the
discharge of dredged or fill material
whenever it determines, after notice and
opportunity for public hearing, that
such discharge into waters of the United
States will have an unacceptable
adverse effect on municipal water
supplies, shellfish beds and fishery
areas (including spawning and breeding
areas), wildlife, or recreational areas.
Congress directed the U.S. Army
Corps of Engineers (Corps) to enhance
the existing Lake Pontchartrain and
Vicinity Hurricane Protection project
and the West Bank and Vicinity
Hurricane Protection project to the 100year level of protection. One section of
this much larger project is within the
Bayou aux Carpes area that is subject to
a 1985 EPA CWA Section 404(c) action
that prohibited the discharge of dredged
or fill material in the Bayou aux Carpes
site south of the New Orleans metro
area. On November 4, 2008, the New
Orleans District of the Corps requested
a modification of the Bayou aux Carpes
CWA Section 404(c) designation to
accommodate discharges to the Bayou
aux Carpes wetlands associated with the
proposed enhanced levee system in
Jefferson Parish, Louisiana.
In evaluating the Corps of Engineers
proposal for modification of the 1985
Bayou aux Carpes CWA Section 404(c)
Final Determination, the key elements
of a Section 404(c) process were
followed. These include a hearing and
opportunity for the public to provide
written comments, preparation and
submittal of a Recommended
Determination proposed by EPA Region
6 to EPA Headquarters, and a Final
Determination for Modification issued
by EPA Headquarters.
Background
On October 16, 1985, EPA issued a
Final Determination pursuant to Section
404(c) of the Clean Water Act restricting
the discharge of dredged or fill material
in the Bayou aux Carpes site, Jefferson
Parish, Louisiana, based on findings that
the discharges of dredged or fill material
into that site would have unacceptable
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]]>Agencies
[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Notices]
[Pages 37213-37219]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16819]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-SFUND-2009-0265; FRL-8931-7]
RIN 2050-AG56
Identification of Priority Classes of Facilities for Development
of CERCLA Section 108(b) Financial Responsibility Requirements
AGENCY: Environmental Protection Agency (EPA)
ACTION: Priority notice of action.
-----------------------------------------------------------------------
SUMMARY: Section 108(b) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980, as amended,
establishes certain regulatory authorities concerning financial
responsibility requirements. Specifically, the statutory language
addresses the promulgation of regulations that require classes of
facilities to establish and maintain evidence of financial
responsibility consistent with the degree and duration of risk
associated with the production, transportation, treatment, storage, or
disposal of hazardous substances. CERCLA Section 108(b) also requires
EPA to publish a notice of the classes for which financial
responsibility requirements will be first developed. To fulfill this
requirement, EPA is by this notice identifying classes of facilities
within the hardrock mining industry for which the Agency will first
develop financial responsibility requirements under CERCLA Section
108(b). For purposes of this notice, hardrock mining facilities include
those which extract, beneficiate or process metals (e.g., copper, gold,
iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non-
metallic, non-fuel minerals (e.g., asbestos, gypsum, phosphate rock,
and sulfur).
FOR FURTHER INFORMATION CONTACT: For more information on this notice,
contact Ben Lesser, U.S. Environmental Protection Agency, Office of
Resource Conservation and Recovery, Mail Code 5302P, 1200 Pennsylvania
Ave., NW., Washington, DC 20460; telephone (703) 308-0314; or (e-mail)
Lesser.Ben@epa.gov; or Elaine Eby, U.S. Environmental Protection
Agency, Office of Resource Conservation and Recovery, Mail Code
5304P,1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
(703) 603-844; or (e-mail) Eby.Elaine@epa.gov.
SUPPLEMENTARY INFORMATION:
A. How Can I Get Copies of This Document and Other Related Information?
This Federal Register notice and supporting documentation are
available in a docket EPA has established for this action under Docket
ID No. EPA-HQ-SFUND-2009-0265. All documents in the docket are listed
on the https://www.regulations.gov Web site. Although listed in the
index, some information may not be publicly available, because for
example, it may be Confidential Business Information (CBI) or other
information, the disclosure of which is restricted by statute. Certain
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
https://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC,
EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the
Superfund Docket is (202) 566-0270. A reasonable fee may be charged for
copying docket materials.
B. Table of Contents
I. Introduction
II. EPA's Approach for Identifying Those Classes of Facilities for
Which Requirements Will Be First Developed
III. Identification of Classes of Facilities in Hardrock Mining
IV. Hardrock Mining--Releases and Exposure to Hazardous Substances
V. Hardrock Mining--Severity of Consequences Resulting From Releases
and Exposure to Hazardous Substances
VI. EPA's Consideration of Additional Classes of Facilities for
Developing Financial Responsibility Requirements
VII. Conclusion
I. Introduction
Section 108(b), 42 U.S.C. 9608 of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) of 1980, as amended,
requires in specified circumstances that owners and operators of
facilities establish evidence of financial responsibility.
Specifically, it requires
[[Page 37214]]
the promulgation of regulations that require classes of facilities to
establish and maintain evidence of financial responsibility consistent
with the degree and duration of risk associated with the production,
transportation, treatment, storage, or disposal of hazardous
substances. The section also instructs that the President: \1\
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\1\ Executive Order 12580 delegates this responsibility to the
Administrator of the U.S. Environmental Protection Agency (``EPA''
or ``the Agency'') for non-transportation related facilities. 52 FR
2923, 3 CFR, 1987 Comp., p. 193.
* * * identify those classes for which requirements will be
first developed and publish notice of such identification in the
Federal Register.\2\
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\2\ 42 U.S.C. 9608 (b)(1).
EPA is publishing this notice to fulfill its obligations under
CERCLA Section 108(b) to identify those classes of facilities, owners,
and operators (herein referred to as classes of facilities) for which
financial responsibility requirements will first be developed.
For the reasons that follow, the Agency has identified classes of
facilities within the hard-rock mining industry as its priority for the
development of financial responsibility requirements under CERCLA
Section 108(b). For purposes of this notice only, hardrock mining is
defined as the extraction, beneficiation or processing of metals (e.g.,
copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and
zinc) and non-metallic, non-fuel minerals (e.g., asbestos, gypsum,
phosphate rock, and sulfur).\3\ (See Section VI of this notice for a
discussion of EPA's consideration of additional classes of facilities
for developing financial responsibility requirements under Section
108(b) of CERCLA.)
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\3\ See memorandum to Jim Berlow, USEPA from Stephen Hoffman,
USEPA and Shahid Mahmud, USEPA. Re: Mining Classes Not Included in
Identified Classes of Hardrock Mining. June 2009.
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II. EPA's Approach for Identifying Those Classes of Facilities for
Which Requirements Will Be First Developed
In accordance with CERCLA Section 108(b) EPA worked to determine
which classes of facilities it should identify as its priority. CERCLA
Section 108(b) directs the President to ``identify those classes for
which requirements will be first developed and publish notice of such
identification [.]'' However, this simple sentence does not spell out a
particular methodology by which the identification is to be made. While
EPA views this statutory ambiguity as allowing substantial discretion
in making the identification, EPA looked to the rest of CERCLA Section
108(b) to inform its exercise of this discretion.
Examination of CERCLA Section 108(b) as a whole reveals repeated
references to the concept of ``risk.'' The first sentence of paragraph
(b)(1) refers to ``requirements * * * that classes of facilities
establish and maintain evidence of financial responsibility consistent
with the degree and duration of risk'' and the last sentence states
that ``[p]riority in the development of such requirements shall be
accorded to those classes of facilities * * * which the President
determines present the highest level of risk of injury.'' Paragraph
(b)(2) also states that ``[t]he level of financial responsibility shall
be initially established, and, when necessary, adjusted to protect
against the level of risk which the President in his discretion
believes is appropriate * * * .'' Accordingly, EPA chose to look for
indicators of risk and its related effects to inform its selection of
classes for which it would first develop requirements under CERCLA
Section 108(b). As a practical method of doing so, EPA reviewed
information contained in a number of studies, reports, and analyses.
This review pointed to numerous factors EPA should consider. For
example, typical elements in evaluating risk to human health and the
environment include: the probability of release, exposure, and
toxicity.\4\ While some of the considerations reflect these basic
elements of risk evaluation, others relate more closely to the severity
of consequences that result when those risks are realized, such as the
releases' duration if not prevented or quickly controlled as a result
of economic factors and the exposures that can result. Therefore, EPA
has chosen to evaluate the following factors: (1) Annual amounts of
hazardous substances released to the environment; (2) the number of
facilities in active operation and production; (3) the physical size of
the operation; (4) the extent of environmental contamination; (5) the
number of sites on the CERCLA site inventory (including both National
Priority List (NPL) sites and non-NPL sites); (6) government
expenditures; (7) projected clean-up expenditures; and (8) corporate
structure and bankruptcy potential.
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\4\ ``Risk Assessment in the Federal Government: Managing the
Process.'' National Research Council. National Academy Press,
Washington, DC. 1983.
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Toxicity is reflected in the designation of substances as CERCLA
hazardous substances. Current releases of hazardous substances, number
of operating facilities, the physical size of an operation, the extent
of environmental contamination, and the number of sites on the CERCLA
site inventory (non-NPL sites and NPL sites) are factors that can
relate to the probability of a release of a hazardous substance, as
well as the potential for exposure. These are discussed in detail, in
Section IV of this notice. Government expenditures, projected clean-up
costs, and corporate structure and bankruptcy potential can relate to
the severity of the consequences as a result of releases and exposure
of hazardous substances. These are discussed in Section V of this
notice.
EPA's review of all these factors, as reflected in the information
presented in this notice and included in the docket, makes it readily
apparent that hardrock mining facilities present the type of risk that,
in light of EPA's current assessment, justifies designating such
facilities as those for which EPA will first develop financial
responsibility requirements pursuant to CERCLA Section 108(b).\5\
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\5\ Today's identification of hardrock mining is not itself a
rule, and does not create any binding duties or obligations on any
party. Additional research, outreach to stakeholders, proposed
regulations, review of public comments, and finalization of those
regulations are needed before hardrock mining facilities are subject
to any financial assurance requirements.
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III. Identification of Classes of Facilities in Hardrock Mining
For purposes of this notice, EPA has included the following classes
of facilities under the general title of hardrock mining: facilities
which extract, beneficiate or process metals (e.g. copper, gold, iron,
lead, magnesium, molybdenum, silver, uranium, and zinc) and non-
metallic, non-fuel minerals (e.g. asbestos, gypsum, phosphate rock, and
sulfur).\6\ As explained below, hardrock mining facilities share common
characteristics, and are thus being identified as a group. At the same
time, those facilities included in the definition above differ such
that ``hardrock mining facilities'' are properly considered to
encompass multiple ``classes'' of facilities. The various classes in
this notice's definition of hardrock mining are involved in two general
activities: (1) The extraction of an ore or mineral from the earth; and
(2) using various beneficiation activities and processing operations to
produce a targeted material product, such as a metal ingot. The
operations that comprise hardrock mining (i.e., extraction,
beneficiation, and then processing) are all part of a sequential
process of converting
[[Page 37215]]
material removed from the earth into marketable products, even though
the intermediate and end products differ. Extraction, beneficiation or
processing of ores and minerals can involve similar processes across
types of mining, as discussed below.
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\6\ EPA notes that this notice does not affect the current
Bevill status of extraction, beneficiation and processing wastes as
codified in 40 CFR 261.4(b)(7).
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However, hardrock mining is also properly considered to encompass
multiple ``classes'' that represent a range of activities and
marketable products. Extraction differs from beneficiation and both
differ from processing, and depending upon the product sought,
different types of processes are used. Extraction, also called mining,
is the removal of rock and other materials that contain the target ore
and/or mineral. The physical processes used to accomplish this vary,
but are nonetheless often shared across different types of mining.
These physical processes include surface, underground, and in-situ
solution mining. Overburden and waste rock are removed during surface
and underground extraction processes in order to gain access to the
ore. Overburden and waste rock are disposed of in dumps near the mine.
The dumps may or may not be lined or covered. In-situ mining involves
the recovery of the metal from the ore by circulating solutions through
the ore in its undisturbed geologic state and recovering those
solutions for processing. The principal environmental protection
concern with in-situ mining is the control and containment of the leach
solutions.
Typically the next step after extraction, beneficiation involves
separating and concentrating the target mineral from the ore. There
are, however, many different ways in which beneficiation can occur.
Beneficiation activities generally do not change the mineral values
themselves other than by reducing (e.g. crushing or grinding) or
enlarging (pelletizing or briquetting) particle size to facilitate
processing, but can involve the introduction of water, other
substances, and chemicals (including hazardous substances). A common
beneficiation technique is flotation. Froth flotation involves adding
forced air and chemicals to an ore slurry causing the target mineral
surfaces to become hydrophobic and attach to air bubbles that carry the
target minerals to the top of a floatation vessel. The surface froth
containing the concentrated mineral is removed, and thus separated from
the other waste minerals. The remaining waste minerals are called
tailings. Leaching, another beneficiation technique, involves the
addition of chemicals to ores or flotation concentrates in order to
dissolute the target metal. For example, solvents, such as sulfuric
acid are used to leach copper and sodium cyanide is used to leach gold.
Following leaching, the leftover waste product is called spent ore (in
heap leaching) or tailings (in other types of leaching). There are
various other beneficiation techniques and intermediate processes that
are used and not described here. However, flotation and leaching are
the most common techniques used in the mining industry. Tailings from
beneficiation are disposed in a variety of ways, most commonly in
tailing ponds. Design of tailings ponds differ and may or may not
include liners, seepage control, surface water diversions, and final
covers. Regardless, many tailings ponds require long-term management of
waste and the impoundment dam.
Processing is the refining of ores or mineral concentrates after
beneficiation to extract the target material. As with beneficiation,
there are many different ways of processing the ores or mineral
concentrates. For example, mineral processing operations can use
pyrometallurgical techniques (the use of higher temperatures as in
smelting), to produce a metal or high grade metallic mixture. Smelting
generates a waste product called slag. Slag is initially placed
directly on the ground to cool, and is often subsequently managed into
a wide range of construction materials (e.g., road bed or foundation
bedding).
Both because of the ways that the facilities covered by this notice
fit together, and because of the range of activities that they cover,
EPA believes hardrock mining is properly identified as a group and
considered to include multiple classes of facilities.
IV. Hardrock Mining--Releases and Exposure to Hazardous Substances
As discussed above, evaluations of risk typically include
considerations of the probability of a release, including its potential
scale and scope, the exposure potential and toxicity. EPA research
indicates that the hardrock mining industry typically operates on a
large scale, with releases to the environment and, in some situations,
subsequent exposure of humans, organisms, and ecosystems to hazardous
substances on a similarly large scale. Indeed, EPA estimates that the
hardrock mining industry is responsible for polluting 3,400 miles of
streams and 440,000 acres of land.\7\ The U.S. Forest Service (USFS)
estimates that approximately 10,000 miles of rivers and streams may
have been contaminated by acid mine drainage from the metal mining
industry.\8\
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\7\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
https://www.epa.gov/tio/pubisd.htm.
\8\ U.S. EPA 2004. ``Nationwide Identification of Hardrock
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005. Accessed at: https://epa.gov/oig/reports/2004/20040331-2004-p-00005.pdf.
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The Agency examined its 2007 Toxic Release Inventory (TRI), and
this data revealed that the metal mining industry \9\ (e.g., gold ore
mining, lead ore and zinc ore mining, and copper ore and nickel ore
mining) releases enormous quantities of toxic chemicals, at nearly 1.15
billion pounds or approximately 28 percent of the total releases by
U.S. industry that is required to report under the TRI program.\10\
\11\ This overall percentage has remained relatively stable since 2003,
ranging from 25 percent (1.07 billion pounds) of total releases in 2004
to 29 percent (1.26 billion pounds) of total releases in 2006. In 2007,
the majority of releases of hazardous substances from the metal mining
industry were to the land, with additional releases to both the air and
surface waters. Additional releases of hazardous substances were
reported to TRI from metal processing facilities (e.g., primary
smelting of copper) with significant releases to the air and land.
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\9\ Metal mining industry is defined as NAICS Code 2122 (Metal
Mining).
\10\ U.S. EPA 2009. Toxic Release Inventory, 2007 Updated Data
Releases, as of March 19, 2009.
\11\ TRI estimates include all on-site and off-site releases to
the land, air and surface water, including those disposed of in RCRA
Subtitle C hazardous waste land disposal units and Safe Drinking
Water Act (SDWA) permitted underground injection (UIC) wells.
However, less than one percent of hazardous substances are managed
in this manner. Thus, the data demonstrates the enormous volume of
hazardous chemical releases reported to TRI by the metal mining
industry and is an indication of the high volume of hazardous
substances it manages, and the industry's potential for posing
health and environmental risk.
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The potential for releases of and exposure to hazardous substances
is also reflected in the number of active facilities operating in the
U.S. While estimates of the number of active mining facilities vary, in
2004, EPA estimated that there were 1,000 metal and non-metal mineral
mines and processing facilities in the U.S. Furthermore, many mining
facilities have been in operation for decades and can exceed thousands
of acres in size.\12\ Since large mines may be operated for decades,
this can extend the time frame for potential releases and exposure of
hazardous substances. At individual facilities, hardrock mining
operations
[[Page 37216]]
may disturb thousands of acres of land and impact watersheds including,
to varying degrees, effects on groundwater, surface water, aquatic
biota, aquatic and terrestrial vegetation, wetlands, wildlife, soils,
air, cultural resources, and humans that use these resources
recreationally or for subsistence.\13\
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\12\ National Research Council. 2005. Superfund and Mining
Megasites: Lessons from the Coeur d'Alene River Basin. The National
Academies Press, Washington, DC. Accessed at: https://www.nap.edu/catalog.php?record_id=11359.
\13\ National Research Council. 1999. Hardrock Mining on Federal
Lands. National Academies Press. Washington, DC.
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Hardrock mining facilities also generate an enormous volume of
waste, which may increase the risk of releases of hazardous substances.
Annually, hardrock mining facilities generate between one to two
billion tons of mine waste.\14\ This waste can take a variety of forms,
including mine water, waste rock, overburden, tailings, slag, and flue
dust and can contain significant quantities of hazardous substances.
The 2007 TRI data demonstrate that hardrock mining facilities reported
large releases of many hazardous substances, including ammonia,
benzene, chlorine, hydrogen cyanide, hydrogen fluoride, toluene, and
xylene, as well as heavy metals and their compounds (e.g., antimony,
arsenic, cadmium, chromium, cobalt, copper, lead, manganese, mercury,
nickel, selenium, vanadium and zinc).\15\ Similarly, the National
Research Council (NRC) has indicated that hazardous substances of
particular concern include heavy metals, ammonia, nitrates, and
nitrites.\16\
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\14\ U.S. EPA 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
https://www.epa.gov/tio/pubisd.htm.
\15\ See Memorandum to the Record: Toxic Release Inventory (TRI)
Releases from Hardrock Mining Operations. June 2009.
\16\ National Research Council. 1999. Hardrock Mining on Federal
Lands. National Academies Press. Washington, DC. Also, EPA conducted
a preliminary review of the Records of Decisions (RODs) for a
selected group mining NPL sites. These substances were found to be
common contaminants at these sites. Accessed at https://books.nap.edu/catalog.php?record_id=9682.
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These releases, in some cases, have lead to ground and surface
water contamination from acid mine drainage and metal leachate, and air
quality issues resulting from heavy metal-contaminated dust or
emissions of gaseous metals from thermal processes.\17\ Acid mine
drainage is the formation and movement of acidic water which dissolves
and transports metals into the environment. This acidic water forms
through the chemical reaction of surface water (rainwater, snowmelt,
pond water) and shallow subsurface water with rocks (e.g., waste rock,
tailings, mine walls) that contain sulfur-bearing minerals, resulting
in the production of sulfuric acid. Metals can be leached from rocks
that come in contact with the acid, a process that may be substantially
enhanced by bacterial action.\18\ The resulting acidic and metal-
contaminated fluids may be acutely or chronically toxic and, when mixed
with groundwater, surface water and soil, may have harmful effects on
humans, fish, animals, and plants.\19\ When acid mine drainage occurs,
it is extremely difficult and often expensive to control and often
requires long-term management measures.\20\ Air, land and water
contamination may also result when waste rock dumps, tailings disposal
facilities and open pits are not maintained properly and there are
releases of hazardous substances to the environment.\21\ Additional
risks can occur with the use of cyanide in gold mining operations,
including the possible release of cyanide into soil, groundwater, and/
or surface waters or catastrophic cyanide spills.\22\ Contaminants of
concern at uranium mines include radionuclides. Due to the volume of
the hazardous substances generated and released and the potential for
long-term management of acid mine drainage, the cause for concern is
only heightened.
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\17\ U.S EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
https://www.epa.gov/tio/pubisd.htm.
\18\ U.S. EPA. 1997. ``EPA's National Hardrock Mining
Framework.'' Accessed at: https://www.epa.gov/owm/frame.pdf.
\19\ U.S. EPA 2009. Accessed at: https://www.epa.gov/nps/acid_mine.html.
\20\ The conventional approach to treating contaminated ground
or surface water produced through acid drainage involves an
expensive, multi-step process that pumps polluted water to a
treatment facility, neutralizes the contaminants in the water, and
turns these neutralized wastes into sludge for disposal. U.S. EPA.
Profile of the Metal Mining Industry. September 1995. See also:
Lind, Greg. 2007. Testimony to the Subcommittee on Energy and
Mineral Resources of the Committee on Natural Resources, U.S. House
of Representatives, One Hundred Tenth Congress. Serial No. 110-46.
\21\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
https://www.epa.gov/tio/pubisd.htm.
\22\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
https://www.epa.gov/tio/pubisd.htm.
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Other studies and EPA's analysis of NPL data also underscores the
risk of hardrock mining facilities. The NPL is a list of national
priorities among the known or threatened releases of hazardous
substances, pollutants or contaminants throughout the U.S. The Hazard
Ranking System (HRS), the scoring system EPA uses to assess the
relative threat associated with a release from a site, is the primary
method used to determine whether a site should be placed on the
NPL.\23\ The HRS takes into account the three elements of environmental
and human health risk: (1) Probability of release; (2) exposure; and
(3) toxicity. EPA generally will list sites with scores of 28.50 or
above. The HRS is a proven tool for evaluating and prioritizing the
releases that may pose threats to human health and the environment
throughout the nation. In 2005, the NRC noted that at the largest
mining sites, or mega sites (i.e., those with projected cleanup costs
exceeding $50 million), ``wastes* * * are dispersed over a large area
and deposited in complex hydrogeochemical and ecologic systems that
often include human communities and public natural resources.'' \24\\\
For example, a molybdenum mine located near Questa, New Mexico, began
operations in 1919 and some underground mining operations are still in
operation today. The mine's operational capacity is reportedly 20,000
tons of ore processed at the facility per day, although it does not
typically operate at capacity. The site stretches over approximately
three square miles of land. Across this large area, operations include
an underground mine, a milling facility, a nine-mile long tailings
pipeline and a tailing disposal facility. There is also an open pit and
waste rock dumps at the mine site, which were created during open-pit
mining operations. Other problems at the site include subsidence areas
with a surface depression from active underground operations.\25\
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\23\ U.S. EPA. 2007. ``Introduction to the Hazard Ranking System
(HRS).'' Accessed at: https://www.epa.gov/superfund/programs/npl_hrs/hrsint.htm.
\24\ National Research Council. 2005. Superfund and Mining
Megasites: Lessons from the Coeur d'Alene River Basin. The National
Academies Press, Washington, DC. Accessed at: https://www.nap.edu/catalog.php?record_id=11359.
\25\ USEPA Administrative Order on Consent for Molycorp RI/FS
(2001). Molycorp is proposed for listing on the NPL. More
information is at https://www.epa.gov/region6/6sf/pdffiles/0600806.pdf.
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In 2004, EPA's Office of Inspector General (OIG) examined 156
hardrock mining sites that are part of the CERCLA site inventory and
concluded that ecological and environmental risks are often
substantial. For the 82 Non-NPL sites that were evaluated, 64 percent
had a current high or medium ecological/environmental risk, while the
percentage of sites that were found to have low risk was only 13%.
Another 23% had an unknown level of risk.\26\
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\26\ U.S. EPA 2004. ``Nationwide Identification of Hardrock
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005, Figure 4.2. Accessed at: https://epa.gov/oig/reports/2004/20040331-2004-p-00005.pdf.
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In support of this notice, EPA examined not only sites listed on
the
[[Page 37217]]
NPL, but also sites proposed (including sites with Superfund
alternative approach agreements in place) and deleted from the NPL.\27\
As of April, 2009, approximately 90 hardrock mining sites have been
listed on the NPL, and another 20 facilities have been proposed for
inclusion on the list.\28\
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\27\ A significant number of response actions have been taken by
several Federal agencies at hardrock mining facilities under CERCLA
removal and emergency response authorities. Those actions were not
evaluated for purposes of this Notice because of the lack of
immediately available data. EPA alone took non-NPL removal actions
at 99 mining sites between 1988 and October 2007. Provided to GAO
for GAO 2008, ``Hardrock Mining: Information on Abandoned Mines and
Value and Coverage of Financial Assurance on BLM Land.'' GAO-08-
574T. Other Federal agencies also use non-NPL removal authorities to
address releases from mining sites. Accessed at: https://www.gao.gov/highlights/d08574thigh.pdf.
\28\ Provided to GAO for GAO 2008, ``Hardrock Mining:
Information on Abandoned Mines and Value and Coverage of Financial
Assurance on BLM Land.'' GAO-08-574T. Accessed at: https://www.gao.gov/new.items/d08574t.pdf. and updated to reflect sites
finalized on the NPL in 2008 and 2009. The 2008 and 2009 NPL updates
can be found at: https://www.epa.gov/superfund/sites/npl/status.htm.
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V. Hardrock Mining--Severity of Consequences Resulting From Releases
and Exposure to Hazardous Substances
The severity of the consequences impacting human health and the
environment as a result of releases and exposure of hazardous
substances is evident by analyzing a number of factors. Specifically,
the past and estimated future costs associated with protecting public
health and the environment through what is often extensive and long-
term reclamation and remediation efforts, as well as corporate
structure and bankruptcy potential. This information also plays a
significant role in leading EPA to conclude that classes of facilities
involved in hardrock mining should be the first for which financial
assurance requirements are developed under CERCLA Section 108(b).
The severity of consequences posed by hardrock mining facilities is
evident in the enormous costs associated with past and projected future
actions necessary to protect public health and the environment, after
releases from hardrock mining facilities occur. In other words, the
documented expenditures reflect efforts to correct the realized risks
from hardrock mining facilities. As noted earlier, these facilities
release large quantities of hazardous substances, often over hundreds
of square miles and, in some instances, have resulted in groundwater
and surface water contamination that requires long-term management and
treatment. Remediation of these hardrock mining facilities has
therefore been historically costly. EPA's past experience with these
sites leads it to conclude that hardrock mining facilities are likely
to continue to present a substantial financial burden that could be met
by financial responsibility requirements. These enormous expenditures
have been documented in a United States Government Accountability
Office (GAO) study, and EPA's own data confirm the large amounts of
money spent by the Federal government alone. The GAO, in its report
``Current Government Expenditures to Cleanup Hard Rock Mining Sites,''
reported that in total, the Federal government spent at least $2.6
billion to remediate hardrock mine sites from 1998 to 2007. EPA spent
the largest amount at $2.2 billion, with the USFS, the Office of
Surface Mining, and the Bureau of Land Management spending $208
million, $198 million, and $50 million, respectively.\29\ EPA's
expenditure data show that between 1988 and 2007, for mining sites with
response actions taken under EPA removal and remedial authorities
(including sites proposed, listed, and deleted from the NPL and sites
with Superfund alternative approach agreements in place), approximately
$2.7 billion was spent.\30\ \31\ Of this total, $2.4 billion was spent
at the 84 sites listed as final on the NPL list at that time.\32\
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\29\ U.S. Government Accountability Office. 2008. ``Information
on Abandoned Mines and Value and Coverage of Financial Assurance on
BLM Land. GAO-08-574T. Accessed at: https://www.gao.gov/highlights/d08574thigh.pdf.
\30\ Moreover, EPA's cost data likely underestimates true
cleanup costs, because they do not include costs borne by the States
and potentially responsible parties. These costs only reflect
expenditures to date. To reach construction completion, many sites
will require additional, substantial remediation efforts. In
addition, sites with acid mine drainage may require water quality
treatment in perpetuity. Lind, Greg. 2007. Testimony to the
Subcommittee on Energy and Mineral Resources of the Committee on
Natural Resources, U.S. House of Representatives, One Hundred Tenth
Congress. Serial No. 110-46.
\31\ U.S. EPA. 2007. Superfund eFacts Database. Accessed:
October 24, 2007; U.S. Environmental Protection Agency. 2007
Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS). Provided to GAO for their report, GAO
2008, ``Hardrock Mining: Information on Abandoned Mines and Value
and Coverage of Financial Assurance on BLM Land.'' GAO-08-574T.
Accessed at: https://www.gao.gov/highlights/d08574thigh.pdf.
\32\ U.S. EPA. 2007. Superfund eFacts Database. Accessed:
October 24, 2007; U.S. Environmental Protection Agency. 2007
Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS). Provided to GAO for their report, GAO
2008, ``Hardrock Mining: Information on Abandoned Mines and Value
and Coverage of Financial Assurance on BLM Land.'' GAO-08-574T,
https://www.gao.gov/new.items/d08574t.pdf.
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Estimated costs of remediation for all hardrock mining facilities
from several sources have generally been in the range of billions of
dollars. EPA has estimated that the cost of remediating all hardrock
mining facilities is between $20 and $54 billion. EPA's analysis showed
that if the total Federal, State, and potentially responsible party
outlays for remediation were to continue at existing levels ($100 to
$150 million annually), no more than eight to 20 percent of all cleanup
work could be completed within 30 years.\33\ In another analysis based
on a survey of 154 large sites, EPA's OIG projected that the potential
total hardrock mining remediation costs totaled $7 to $24 billion. OIG
calculated that this amount is over 12 times EPA's total annual
Superfund budget of about $1.2 billion from 1999 to 2004.\34\ The
annual Superfund budget from 2004 through 2008 remained consistent with
OIG's assessment, at approximately $1.25 billion.\35\ \36\
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\33\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites:
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at:
https://www.epa.gov/tio/pubisd.htm.
\34\ U.S. EPA 2004. ``Nationwide Identification of Hardrock
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005. Accessed at: https://epa.gov/oig/reports/2004/20040331-2004-p-00005.pdf.
\35\ Appropriation amounts reflect an average of the
discretionary appropriation amounts in the President's Budget or
Operating Plan between 2004 and 2008.
\36\ No single source provides information on estimated future
reclamation and remediation costs for hardrock mining facilities. In
addition, for those estimates that do exist, remediation costs are
often folded in with other reclamation activities, such as
correcting safety hazards and landscaping, which leaves the amount
attributable to remediation unknown. See U.S. EPA. 2004. ``Cleaning
Up the Nation's Waste Sites: Markets and Technology Trends.'' EPA
542-R-04-015. Accessed at: https://www.epa.gov/tio/pubisd.htm.
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Common corporate structures and interrelated corporate failures
within the hardrock mining industry increase the likelihood of
uncontrolled releases of hazardous substances being left unmanaged,
increasing risks. To begin with, mine ownership is typically complex,
with individual mines often separately incorporated.\37\ The existence
of a parent-subsidiary relationship can present several risks. First,
corporate structures may allow parent
[[Page 37218]]
corporations to shield themselves from liabilities of their
subsidiaries.\38\ In a 2005 study, the GAO cited mining facilities as
an example of businesses at risk of incurring substantial liability and
transferring the most valuable assets to the parent that could not be
reached for cleanup.\39\
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\37\ For example, one mining company's 2008 SEC 10-K filing
noted that its segments included ``The Greens Creek unit, a 100%-
owned joint venture arrangement, through our subsidiaries Hecla
Alaska LLC, Hecla Greens Creek Mining Company and Hecla Juneau
Mining Company. We acquired 70.3% of our ownership of Greens Creek
in April 2008 from indirect subsidiaries of Rio Tinto, PLC.'' From
this description, it appears that ownership of the mine has involved
multiple subsidiaries, under both its current owner and under the
previous ownership.
\38\ See U.S. v. Bestfoods, 524 U.S. 51, 61 (1998) (``[i]t is a
general principle of corporate law * * * that a parent corporation *
* * is not liable for the acts of its subsidiaries.'')
\39\ U.S. Government Accountability Office. 2005.
``Environmental Liabilities: EPA Should Do More to Ensure That
Liable Parties Meet Their Cleanup Obligations.'' Report to
Congressional Requesters. GAO-05-658, pp. 21-24. Accessed at: https://www.gao.gov/highlights/d05658high.pdf.
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Second, many mining interests are located outside of the U.S.
According to one report, six of the top ten mining claim owners in the
U.S. are multi-national corporations with headquarters outside the
U.S.\40\ Such multi-national corporations can be difficult to hold
responsible for contamination in the U.S. because of the difficulties
of locating and then obtaining jurisdiction over the ultimate parent
company.
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\40\ Environmental Working Group. 2006. ``Who Owns the West?''
Accessed at: https://www.ewg.org/mining/claims/index.php.
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This is of particular concern since the hardrock mining industry
has experienced a pattern of failed operations, which often require
significant environmental responses that cannot be financed by
industry.\41\ The pattern of failed operations has been well
documented. GAO investigated 48 hardrock mining operations on U.S.
Department of Interior (DOI), Bureau of Land Management (BLM) Federal
lands that had ceased operations and not been reclaimed by operators
since BLM began requiring financial assurance under its regulations. Of
the 48 operations, 30 cited bankruptcy as the reason for completing
reclamation activities.\42\ Numerous other examples exist of
bankruptcies in the hardrock mining industry that resulted in or will
likely require significant Federal responses, such as:
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\41\ EPA notes that there are several potential explanations for
these failures, such as a boom and bust cycle in the price of
commodities, the finite life of a particular ore body or the
possibility that closure or reclamation obligations exceed the
remaining value of the operation, in addition to factors that can
cause bankruptcies in other sectors. However, regardless of the
cause, the fact remains a large number of bankruptcies and
abandonments have occurred.
\42\ U.S. Government Accountability Office. 2005. Hardrock
Mining: BLM Needs to Better Manage Financial Assurances to Guarantee
Coverage of Reclamation Costs. GAO-05-377. Accessed at: https://gao.gov/products/GAO-05-377.
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When the owner/operator filed for bankruptcy in 1992, it
left the Summitville mine in Colorado with serious cyanide
contamination and acid mine drainage. In 1994, the site was listed on
the NPL. In 2000, EPA estimated that the remediation cost at the mine
would be $170 million.\43\ As of October 2007, EPA had spent
approximately $192 million in cleanup costs.\44\
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\43\ U.S. Environmental Protection Agency. 2000. Liquid Assets
2000: America's Water Resources at a Turning Point. EPA-840-B-00-
001. Accessed at: https://www.epa.gov/water/liquidassest.pdf.
\44\ U.S. Environmental Protection Agency. 2007. Superfund
eFacts Database. Accessed: October 24, 2007.
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In 1999, another mining company filed for bankruptcy,
leaving more than 100 million gallons of contaminated water and
millions of cubic yards of waste rock at the Gilt Edge Mine in South
Dakota.\45\ EPA listed the site on the NPL in 2000 and estimated at
that time the present value remediation costs to be $50.3 million.\46\
Even this estimate, however, does not include water collection and
treatment costs that will be handled under additional remediation
plans. As of October 2007, EPA expenditures at this site exceeded $56.1
million.\47\
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\45\ CDM. 2008. Final Feasibility Study Report for the Gilt Edge
Superfund Site, Operable Unit 1 (OU1). Prepared for EPA, Region
VIII. May 2008.
\46\ U.S. EPA 2008. Record of Decision for the Gilt Edge
Superfund Site Operable Unit 1 (OU1). Accessed at: https://www.epa.gov/region8/superfund/sd/giltedge/RODGiltEdgeVolumeOne_Text.pdf.
\47\ U.S. EPA. 2007. Superfund eFacts Database. Accessed:
October 24, 2007.
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In 1998, operators of the Zortman Landusky mine in Montana
filed for bankruptcy. Numerous cyanide releases occurred during
operations which have affected the community drinking water supply on a
nearby Tribal reservation. Acid mine drainage has also permeated the
ground and surface waters. The projected cleanup costs at the site are
estimated to be approximately $85.2 million, of which only $57.8
million will be paid for by the responsible party. State and Federal
authorities are projected to pay the remaining $27.4 million for
cleanup.\48\
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\48\ U.S. Government Accountability Office. 2005. Hardrock
Mining: BLM Needs to Better Manage Financial Assurances to Guarantee
Coverage of Reclamation Costs. GAO-05-377. Accessed at: https://gao.gov/products/GAO-05-377.
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A large mining company filed for bankruptcy in 2005. The
company has estimated the total environmental claims filed against it
to have been in excess of $5 billion. Recently approved settlements
with the U.S. and certain State governments involving environmental
clean-up claims, when combined with settlements already approved by the
bankruptcy court for environmental clean-up claims, provide for allowed
claims and payments in the bankruptcy in an amount in excess of $1.5
billion and involve in excess of 50 sites. EPA and DOI estimate their
combined claims in the bankruptcy at the largest of these sites, an NPL
site located in Idaho and Eastern Washington, to be in excess of $2
billion.\49\
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\49\ Asarco, LLC, et al. U.S. Bankruptcy Court Southern District
of Texas. May 15, 2009, Case No. 05-21207, Docket No. 11343.
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Taking all this information into account, EPA concludes that
classes of facilities within the hardrock mining industry are those for
which EPA should first develop financial responsibility requirements
under CERCLA Section 108(b), based upon those facilities' sheer size;
the enormous quantities of waste and other materials exposed to the
environment; the wide range of hazardous substances released to the
environment; the number of active hardrock mining facilities; the
extent of environmental contamination; the number of sites in the
CERCLA site inventory, government expenditures, projected clean-up
costs and corporate structure and bankruptcy potential.
VI. EPA's Consideration of Additional Classes of Facilities for
Developing Financial Responsibility Requirements
The Agency believes classes of facilities outside of the hardrock
mining industry also may warrant the development of financial
responsibility requirements under CERCLA Section 108(b). Therefore, the
Agency will continue to gather and analyze data on additional classes
of facilities, beyond the hardrock mining industry, and will consider
them for possible development of financial responsibility requirements.
In determining whether to propose requirements under CERCLA Section
108(b) for such additional classes of facilities, EPA will consider the
risks posed and, to do so, may take into account factors such as: (1)
The amounts of hazardous substances released to the environment; (2)
the toxicity of these substances; (3) the existence and proximity of
potential receptors; (4) contamination historically found from
facilities; (5) whether the causes of this contamination still exist;
(6) experiences from Federal cleanup programs; (7) projected costs of
Federal cleanup programs; and (8) corporate structures and bankruptcy
potential. EPA also intends to consider whether financial
responsibility requirements under CERCLA Section 108(b) will
effectively reduce these risks. While the Agency recognizes that data
for some of these factors may be unavailable or limited in
[[Page 37219]]
availability, it plans to consider whatever data are available.
As part of the Agency's evaluation, it plans to examine, at a
minimum, the following classes of facilities: hazardous waste
generators, hazardous waste recyclers, metal finishers, wood treatment
facilities, and chemical manufacturers. This list may be revised as the
Agency's evaluation proceeds. EPA is currently scheduled to complete
and publish in the Federal Register a notice addressing additional
classes of facilities the Agency plans to evaluate regarding financial
responsibility requirements under CERCLA Section 108(b) by December
2009, and, at that time, will solicit public comment.
VII. Conclusion
Based upon the Agency's analysis and review, it concludes that
hardrock mining facilities, as defined in this notice, are those
classes of facilities for which EPA should identify and first develop
requirements pursuant to CERCLA Section 108(b). EPA will carefully
examine specific activities, processes, and/or metals and minerals in
order to determine what proposed financial responsibility requirements
may be appropriate. As part of this process, EPA will conduct a close
examination and review of existing Federal and State authorities,
policies, and practices that currently focus on hardrock mining
activities.\50\
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\50\ As part of developing proposed and final rules the Agency
will consider whether hardrock mining facilities which have a RCRA
Part B permit or are subject to interim status under RCRA Subtitle C
and already are subject to RCRA financial assurance and facility-
wide corrective action requirements need to also be subject to the
financial responsibility requirements under Section 108(b) of
CERCLA. In addition, EPA is aware and will consider in its
development of proposed and final rules, that mining on Federal land
triggers either the Bureau of Land Management's (BLM) Part 3809
regulations (43 CFR Part 3809) and the Forest Service's Part 228
regulations (36 CFR Part 228), both have financial responsibility
requirements that cover reclamation costs. Many States also have
reclamation laws.
Dated: July 10, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-16819 Filed 7-27-09; 8:45 am]
BILLING CODE 6560-50-P
