Eliminating wasteful and unnecessary regulations has been a cornerstone of President-elect Donald Trump’s campaign and transition to the White House. Manufacturers are encouraged by the prospect of a more balanced regulatory approach that streamlines requirements and removes duplicative policies that do not enhance public safety or environmental protection.
One regulation that deserves a closer look by the incoming Trump administration is the just-published proposed rule requiring additional financial assurances for the hard rock mining sector. The proposed rule, written under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), could require billions of dollars of additional financial assurances for miners of things like gold, silver, iron and copper—critical materials for countless manufactured products. This would represent billions of dollars that cannot be used for research and development, investing in new processes and projects or used to spur economic growth and create new jobs. And, according to the Environmental Protection Agency (EPA), this will be just the first of several policies potentially tying up huge amounts of capital for chemical manufacturers, the petroleum industry and electric utilities.
These policies are intended to ensure there are ample funds available for an environmental cleanup in the unlikely event of a hazardous substance release—certainly a worthy objective. The problem is this law was written by Congress in 1980, and while the EPA never acted to adopt a regulation under this section of CERCLA, states and other agencies stepped in to fill the void making this action, 37 years later, unnecessary. As noted by the Western Governors’ Association in an August 17, 2016, letter to current-EPA Administrator Gina McCarthy,
“All western states in which mining occurs have staff dedicated to ensuring that ongoing mine operations develop and follow appropriate reclamation plans. It is in Western states’ legal and economic interest to assure hardrock mining facilities are designed, constructed and operated to minimize risks to the environment and ensure reclamation objectives will be completed. State regulators ensure proper mine closure on both private and public lands, and they coordinate with federal land management agencies to ensure financial assurance is adequate.”
The existence of state policies to address what the EPA is duplicating in this proposed rule is not limited to Western states; state policies exist across the country, from states like Minnesota to Florida.
What makes these proposed new requirements all the more troubling is the rushed nature in which they were developed—the result of a lawsuit by activists and then an insufficient court-ordered rulemaking schedule. This followed by a wholly lacking 60-day comment period by the EPA for the public to review and comment on this highly technical rule. The incoming Trump administration should extend the comment period to at least 120 days and then file a motion with the court seeking a more reasonable rulemaking schedule—until at least 2019. This would provide the Trump administration adequate time for a thorough review of the existing state and federal policies and to better understand the existing safety measures and technologies that are utilized on a daily basis at modern mining sites. The National Association of Manufacturers believes a thorough and adequate rulemaking process will result in a conclusion that additional assurances are not necessary.
Getting the EPA’s proposed financial assurance rules right and eliminating any duplication with existing policies would be a big win for the administration, mining, manufacturers and the economy.
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