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DC Circuit Dismisses CERCLA Financial Assurances Challenges

In a significant victory for the mining industry, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit recently dismissed challenges filed by six environmental groups of EPA’s decision not to require financial assurances for hardrock mining facilities under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), according to Mark Ellis, president of The Industrial Minerals Association – North America (IMA-NA).

In its final rule, issued in February 2019, EPA ultimately agreed with those opposed to the rule proposed during the Obama Administration, including IMA-NA, and decided that the hardrock mining industry sector does not present Superfund risk of sufficient degree and duration to merit financial responsibility requirements.

The court concluded that EPA’s decision was entitled to “Chevron” deference because the applicable CERCLA provisions addressing the “risk” to be addressed were ambiguous and EPA’s interpretation of that ambiguity was reasonable. Nothing in 42 U.S.C. §9608(b) [section 108(b) of CERCLA] mandates EPA to promulgate financial assurance requirements for the hardrock mining industry, thereby authorizing EPA to decline to do so.

The court also concluded that EPA’s decision was not arbitrary and capricious.  EPA recognized that existing federal and state programs have minimized the need for EPA’s expenditures to respond to CERCLA-like releases and reduced the risk of federally financed response actions to a low level.

The court also found that EPA’s consideration of economic impacts was reasonable and deferred to its analysis. Finally, the court concluded that EPA did not act arbitrarily and capriciously by choosing not to promulgate financial assurances for the hardrock mining industry because refraining to do so was always a foreseeable possibility.

The case is subject to a petition by a rehearing of the full court, but such petitions are not favored, Ellis said.