Appeals court orders EPA to issue rules on mining cleanups

WASHINGTON – The Environmental Protection Agency was ordered Friday to begin issuing long-overdue rules aimed at stopping mining companies from declaring bankruptcy to avoid pollution cleanups.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the EPA must begin the rulemaking process for the hard-rock mining industry before the end of this year. The EPA agreed to take the actions listed in the order after it was sued in 2014 by six environmental groups.

At issue is a 35-year-old edict under the federal Superfund program that requires polluters to show they have the financial resources to cover the costs of cleaning up ongoing contamination from their operations as well as any potential spills of hazardous materials.

The court said mining companies often claim insolvency rather than paying cleanup costs, sheltering profits while leaving taxpayers to foot the bill. By making it more difficult to dodge responsibility for leaving behind toxic messes, the court said companies will be more likely to invest in minimizing pollution on the front end to avoid future liabilities.

After writing the rules for mining companies, the EPA could go through a similar process for other industries, including chemical manufacturing, electric power generation, and petroleum and coal products manufacturing.

“Decades of EPA inaction has laid the intolerable burden of toxic cleanup on the nation’s most vulnerable communities,” said Lisa Evans, a lawyer at the environmental group Earthjustice, which filed the lawsuit. “Today’s court decision fixes this inequity by closing loopholes that will force irresponsible companies to set aside money to clean up the messes they make — a lesson we learn in kindergarten — and act responsibly.”

EPA spokeswoman Laura Allen said the agency is reviewing the court’s order.

The ruling comes five months after an EPA cleanup crew accidentally unleashed millions of gallons of contaminated wastewater at an idled gold mine in Colorado, turning rivers in three Western states a sickly shade of yellow. The Gold King Mine had shut down decades before, its owners leaving it behind to become filed with a toxic stew of leaking groundwater such potentially harmful minerals as arsenic.

Once EPA writes the new recommendations, the mining industry will have the opportunity to comment on them before they become final and then potentially challenge the rules in court.

Luke Popovich, spokesman for the National Mining Association, said the industry is disappointed the ruling.

“Mining companies already have significant financial obligations already committed through state and federal mining reclamation and closure programs,” Popovich said. Those existing requirements address environmental risks at mine and mineral processing sites, he said, negating the need for a separate financial assurance program.


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