AEMA Requests Extension of Comment Period Relating to Proposed CERCLA 108(b)

January 25, 2017

Re:  Request for 120-Day Extension of Comment Period Relating to Proposed “Financial Responsibility Requirements Under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry,” 82 Fed. Reg. 3388 (Jan. 11, 2017).

Dear Mr. Benton:

American Exploration & Mining Association (AEMA) respectfully requests an extension of 120 additional days, or until July 10, 2017, to the 60-day public comment period currently established by EPA for its proposal, “Financial Responsibility Requirements Under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry,” which was published in the Federal Register on January 11, 2017 (82 Fed. Reg. 3388). AEMA (formerly Northwest Mining Association) is a 122-year old, 2,000 member national association representing the minerals industry with members residing in 42 states. AEMA is the recognized national voice for exploration, the junior mining sector, and maintaining access to public lands, and represents the entire mining life cycle, from exploration to reclamation and closure. More than 80% of our members are small businesses or work for small businesses. Most of our members are individual citizens. AEMA participated as a Small Entity Representative (SER) in the highly flawed SBREFA SBAR Panel process for this proposed rule. More time is required to allow for meaningful public comment on EPA’s sweeping regulatory proposal.

EPA’s proposed rule is a major rulemaking by any measure. In its Regulatory Impact Analysis EPA estimates the proposed rule will require hardrock mining companies to incur up to $171 million per year in new financial assurance costs. Preliminary analysis by our members indicates that this estimate is far too low, and that the cost of compliance will likely lead to the loss of significant minerals production, thousands of jobs and substantial investment capital in the hardrock-mining sector for years to come.

EPA’s proposed rule also is extraordinarily lengthy and complex. The proposal spans 124 pages in the Federal Register. Background documents in the docket for the rule comprise more than 2,000 additional pages, and the universe of relevant materials is far larger because EPA has cross-referenced additional documents in the index to the docket that now total 75,000 more pages (more than 20,000 were added today). Moreover, expert analyses are required to evaluate many aspects of the proposed rule, including the validity of the complex statistical model that EPA has used to generate a formula for determining financial assurance obligations, the appropriateness of the credit criteria EPA has proposed for its financial assurance formula, and the availability of financial instruments to satisfy the proposed requirements. For all of these reasons, EPA quite correctly has designated this rulemaking as a “Tier 1” rule—a category reserved for “the most important, complex, precedent setting and scrutinized rules.”  Declaration of Barnes Johnson ¶ 34 (“Johnson Decl.”), In re Idaho Conservation League, No. 14-1149, Doc. #1523367 (Nov. 19, 2014).

Yet EPA has provided only 60 days for public comment on this major proposal. EPA typically provides such a limited comment window only for noncontroversial proposals that do not involve a significant number of background documents (if any).[1] By contrast, EPA typically affords the public significantly more time to comment on major proposed rulemakings like this one, and has often granted liberal extensions. For example, EPA provided the public with 165 days to comment on its Clean Power Plan rule to regulate carbon emissions from power plants, granting a 45-day extension to a 120-day initial comment period.[2] And EPA recently “solicited comments for over 200 days” on a rulemaking to redefine “waters of the United States” for purposes of the Clean Water Act.[3]

Certainly, far more than 60 days are required to comment on a proposal that (1) is built on tens of thousands of pages of background documents, (2) has as its centerpiece a complex statistical model for calculating financial assurance, and (3) will unquestionably impose many hundreds of millions of new costs annually on the hardrock mining industry. EPA should therefore extend the comment period an additional 120 days until July 10, 2017, to allow for meaningful comment on its far-reaching proposal.


Laura Skaer, Executive Director

[1] See, e.g., Hazardous Waste Export-Import Revisions, 80 Fed. Reg. 63,284 (proposed Oct. 19, 2015) (providing 60 days for comment on proposed rule to update existing regulations concerning the import and export of hazardous wastes);  Hazardous Waste Generator Improvements, 80 Fed. Reg. 57,918 (proposed Sept. 25, 2015) (providing 60 days for comment on a proposed rule to update hazardous waste generator regulations).

[2] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,707 (Oct. 23, 2015).

[3] Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054, 37,057 (Jun. 29, 2015).

Downloadable PDF available here: AEMA request for extension of comment period