On December 1, 2016 the Environmental Protection Agency (EPA) proposed a new rule to mandate Superfund Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry. As a member of the Industrial Minerals Association-North America (IMA-NA), NISA opposes the promulgation of the new rule. The Association believes the proposal places unnecessary and costly burdens on the entire industrial minerals industry, including industrial sand producers, and is incongruent with the degree of actual environmental risk posed by our members’ operations. Further, NISA believes the proposed rule is redundant relative to other existing financial responsibility requirements placed on the industry, and feels the definition of those covered by the proposed rule is confusing and vague.
Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) gives EPA the authority to require certain classes of facilities establish and maintain evidence of financial responsibility. According to EPA, this financial responsibility demonstrates the owner or operator's ability to cover the costs associated with releases or threatened releases of hazardous substances from their facilities. Facilities subject to the proposed rule would be required to demonstrate financial responsibility using one or more of the following financial responsibility instruments: a letter of credit; insurance; trust fund; or surety bond.
In July 2009 EPA identified certain hardrock mining and mineral processing facilities as its first priority for the development of financial responsibility requirements under CERCLA section 108(b). EPA research indicated the hardrock mining and mineral-processing industry typically operates on a large scale, and, in some situations, subsequent exposure of humans, organisms, and ecosystems to hazardous substances occurs on a similarly large scale. EPA also stated that hardrock mining facilities generate an enormous volume of waste, which may increase the risk of hazardous substance release.
Contrary to the EPA’s current justifications for this proposal, industrial sand mining and processing, in fact, use few chemicals and toxins and the likelihood of any one mine becoming a Superfund site is extraordinarily low. This fact was demonstrated by EPA itself when it issued a June 29, 2016 memorandum titled Mining Classes Not Included in Identified Hardrock Mining Classes of Facilities (Hoffman memo) where it recommended that virtually all industrial minerals, including industrial sand, facilities not be included in this rulemaking. NISA along with IMA-NA strongly believes all industrial minerals facilities should be excluded from this rulemaking.
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