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EPA Worked with Mining Industry to Abandon Rule Protecting Taxpayers from Toxic Cleanup Costs

May 13, 2019
By
Jaimini Parekh Associate Attorney
Office

Email records reveal industry’s heavy hand in eliminating an EPA rule requiring financial accountability.

The mining industry played a key role in persuading the Environmental Protection Agency to reject a proposed rule that would have protected the public from toxic mining disasters, an Earthjustice review of thousands of agency records and emails has revealed.

Under federal Superfund law, the EPA must establish rules requiring industries with a track record of hazardous pollution to demonstrate their ability to cover the cost of toxic cleanups. In early January, 2017, EPA issued a proposed insurance requirement that would have made operators of the riskiest hard-rock mines responsible for their own cleanup costs. Known as the hard-rock mining financial assurances rule, this regulation sought to provide incentives for safer mining practices and to minimize the potential for new toxic mining disasters.

Yet in January of 2018, the Trump administration suddenly abandoned this proposed rule, which was on track to be finalized and would have soon taken effect. This abrupt reversal marked a return to business as usual, with taxpayers footing the bill for hazardous spill cleanups from dangerous mine sites.

Throughout the western United States, abandoned copper, gold and other hard-rock mines have sat polluted for decades after valuable minerals were extracted, leaching acid mine drainage and posing extreme health risks by releasing cancer-causing chemicals into waterways. In some cases, the hazardous abandoned mines even created cyanide plumes in groundwater, poisoning nearby residential drinking water supplies. When mine operators lack the funds to remediate these hazards, as if often the case, the cost burden shifts onto taxpayers — often to the tune of hundreds of millions or even billions of dollars for a single abandoned mine site.

On behalf of Idaho Conservation League, Earthworks, Amigos Bravos, Sierra Club, Great Basin Resource Watch, and Communities for a Better Environment, Earthjustice filed a lawsuit in May of 2018 challenging this handout to industry. The D.C. Circuit heard oral argument in March of 2019, and a ruling from the court could come any day.

In early 2019, Earthjustice also filed a Freedom of Information Act request seeking EPA records on internal decision-making surrounding the hard-rock mining rule.   

The trove of documents returned in response belies a pattern of pressure from the mining industry and Trump appointees leading to EPA’s decision to halt the rule.

Records show Trump appointees to the EPA determining that the rule should be halted, and EPA regulators exchanging frequent, amiable messages with mining industry representatives who stood to benefit financially if the rulemaking effort was abandoned.

Below are some notable findings from the trove of documents released as a result of Earthjustice’s FOIA request. (Agency documents released refer to the hard-rock mining financial assurances rule as the CERCLA 108(b) proposed rule.)

  • The proposed rule was in the Trump transition team’s crosshairs from the start. EPA emails from late November 2016 indicate early interest in the proposed rule from Trump’s “landing team.” A calendar invite shows members of Trump’s transition team met with EPA officials for a daylong briefing on December 9, 2016. The hard-rock mining financial assurances rule was one of seven major agenda topics set by the newly installed Trump landing team, in a meeting that also covered the Paris Climate Agreement; the Clean Power Plan; Flint, Michigan and several other topics. A later email from the Small Business Administration to political appointees – including George Sugiyama, a former lobbyist for the National Mining Association – indicated that the hard-rock mining rule was an issue of “major significance.” 
  • EPA resolved to take “no action” as early as February 2017, months before public comments on the proposed rule were due: Email records from February of 2017 suggest newly installed Trump appointees to the EPA decided to reverse course on the rule long before reviewing public comments, which is normally an important part of the federal rulemaking process. An email exchange between David Schnare, a climate denier appointed to Trump’s EPA beachhead team who previously worked at a think tank funded by the Koch Brothers; Charles Dankert of the White House Office of Management; and Donald Benton, then-senior White House Advisor to the EPA, shows Dankert urging Schnare to suggest “recommended actions” on proposed EPA rules long before the agency finished accepting public comments. An excel spreadsheet dated Feb. 23, 2017, following this email exchange, lists the “recommended action” on the hard-rock mining rulemaking as “no action.” This suggests EPA appointees determined at the outset [A1] to scrap the proposed rule, before the agency even conducted its formal rulemaking process. Former EPA Administrator Scott Pruitt did not announce to the public that the agency would take “no action” until December 1, 2017.
  • EPA sought public comment on the proposed rule without notifying the public of its change in position: Other emails show that EPA considered re-noticing the proposed rule for public comment, in light of its new decision to issue a “no action” rule. Correspondence between EPA and representatives working on behalf of Asarco LLP and Freeport McMoran, mining interests, also indicate that industry not only knew about EPA’s change in position but pushed EPA officials to re-notice the proposed rule for public comment to comply with administrative law. Ultimately, however, the agency decided to leave the public in the dark.
  • Hecla Mining Company urged Scott Pruitt to abandon the rule: Then-Administrator Scott Pruitt received one comment letter directly, from Hecla Mining Company, which was forwarded to him by his secretary on March 16, 2017. The letter recommended withdrawing the proposed rule.
  • EPA borrowed from industry language to draft its formal decision on the rulemaking: Internal EPA emails from September 2017 include a draft outline of a “no action” finding that includes language lifted directly from industry comments submitted to the agency. EPA staffer William Nickerson even noted in an email about the decision draft that he drew from “[American Exploration & Mining Association] comments where I could.”
  • Email correspondence suggests cozy relationships between regulators and industry: Frequent communications between EPA officials and business representatives indicate a cordiality with business. Agency staffer’s emails included requests to grab coffee and references to industry representatives as “friends.” 
  • The American Mining & Exploration Association successfully lobbied EPA to delay issuance of the proposed rule until the tail end of the Obama administration: An email exchange in late October of 2017 reveal that industry efforts to quash the hard-rock mining financial assurances rule occurred during the Obama Administration as well. Laura Skaer, Executive Director of American Exploration & Mining Association, was lauded by another lobbyist colleague in an email to EPA, which stated: “Laura virtually single-handedly prevented implementation of an unnecessary and duplicative financial assurance rule that would have severely undercut the mining industry in the U.S.”

All of the records referenced above, and a timeline of meetings between the EPA and industry, can be found here.