Show us the money … for mining cleanups

February 26, 2009 by Ken Ward Jr.

This just in from a federal court in California…

A new ruling will require the U.S. Environmental Protection Agency to finally close a loophole that for more than 25 years made it easy for mining companies to skip out on costly cleanups by declaring bankruptcy.

The ruling, by the U.S. District Judge William Alsup of the Northern District of California, concerned EPA’s failure to issue “financial assurances” standards to require polluting industries to be financially able to clean up contaminated and dangerous mining sites.

“By not promulgating financial assurance requirements, EPA has allowed companies that otherwise might not have been able to operate and produce hazardous waste to potentially shift the responsibility for cleaning up hazardous waste to taxpayers,” Alsup wrote in a 15-page decision issued Wednesday.

When the Superfund law was passed in 1980, lawmakers gave EPA three years to start putting financial assurance regulations in place. More than 25 years later, these regulations remain unwritten. Under Alsup’s ruling, EPA has until May 4 to identify the industries that will be first subject to these financial assurance requirements.

“This victory paves the way for the new administration to correct a longstanding environmental problem while saving taxpayers billions of dollars at the same time,” said Earthjustice attorney Lisa Evans. “New standards will push companies that deal with toxic substances towards more responsible practices.”

Evans and Earthjustice attorney Jan Hasselman argued the case on behalf of the Sierra Club and environmental groups in New Mexico, Nevada, and Idaho in the case.

The ruling does not directly affect the coal industry, where the separate Surface Mining Control and Reclamation Act governs reclamation bonds. As we’ve seen, SMCRA bonding programs for abandoned coal mines have a huge set of problems all their own. (See WVDEP wants 3 1/2 years (!?!) to give itself a permit)

But the ruling could impact coal-fired power plants, responsible for generating 131 million tons of toxic coal ash per year. This industry has been in the spotlight over the last few months, following the disastrous collapse of a waste impoundment in Tennessee.

The industries probably most affected are hardrock and phosphate mining. The Seattle Post-Intelligencer has detailed the many terrible messes left by hardrock mining in the west, and Earthjustice has more about this industry here.

Federal government officials have spent millions of dollars on mine-site cleanups, and the financial assurances in place by operators who walked away from those sites haven’t come close to covering the costs, according to recent Government Accountability Office reports.

2 Responses to “Show us the money … for mining cleanups”

  1. Steve Taber says:

    The article is a little misleading. If you actually read the Court’s ruling, you would see that Judge Alsup did NOT order EPA to promulgate financial assurance regulations. At least not yet. The Court states in the “conclusion” of the opinion that “Defendant EPA must identify and publish notice of classes as specified in Section 108(b)(1) [of CERCLA] by May 4, 2009.” That is it. The Court said that all other issues, including whether the EPA has to promulgate financial assurance regulations, will be held in abeyance “pending EPA’s publication of notice of classes of facilty as the Court believes this will shed light on the merits of the other challenged duties under Section 108(b).” While this is a step in the right direction, the goal – an order requiring the EPA to promulgate financial assurance regulations – still has not been reached. For a full legal analysis of this case, go to

  2. Ken Ward Jr. says:

    Thanks, Steve, for that clarification. You’re probably right that my post over-stated the effect of the ruling.

    And thanks also for bringing your excellent blog to my attention, and to the attention of Coal Tattoo readers.
    Ken Ward Jr.

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