On January 11, 2017, the Environmental Protection Agency’s proposed rule for financial assurance requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act for the hardrock mining industry was published in the Federal Register, triggering a 60-day comment period. 82 Fed. Reg. 3388 (Jan. 11, 2017).

Comments are due on Monday, March 13, 2017. It is anticipated that those in the hardrock mining industry and trade organizations will seek an extension of the comment period. However, any party interested in commenting should consider requesting an extension of the comment period for additional time to review and comment on the proposed rule and the expansive number of supporting documents.

During the public comment period, EPA will be hosting a public webinar to specifically discuss the financial assurance formula on January 30, 2017 at 2:00-3:00 PM EST. Those interested can access information on the webinar at this link. EPA also hosted a public webinar on January 10, 2017 providing an overview of the proposed rule’s provisions. In the discussion, EPA indicated its interest in further comments from the financial community regarding the instruments being proposed and the availability of financial instruments to meet the requirements of the program contemplated under the proposed rule.

Aside from the financial community, other industries, including the chemical manufacturing industry (NAICS 325), the petroleum and coal products manufacturing industry (NAICS 324), and the electric power generation, transmission and distribution industry (NAICS 2211), should also consider commenting on the proposed rule because EPA simultaneously published a Notice of Intent to proceed with rulemakings for these industries. 82 Fed. Reg. 3512 (Jan. 11, 2017). EPA is currently not accepting comments on this notice. However, because the proposed rule for the hardrock mining industry contemplates a new program for the regulation of financial assurance under CERCLA 108(b), these other identified industries could expect potential similar regulatory coverage if the proposed rule becomes final. A previous update, EPA Is All In on Mine Bonding, offers further information and background on the proposed rule.

Given the upcoming administration transition, there is the possibility that the proposed or final rule may be significantly delayed or altered, or Republican lawmakers could amend CERCLA 108(b), effectively killing the rule. The rule faces significant opposition from lawmakers on key Congressional committees as well as from the Western Governors Association and the industry.

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