EPA Takes First Step In Closing Mining Cleanup Loophole

Move comes as pollution from mining operations comes under increased scrutiny


Jan Hasselman, Earthjustice, (206) 343-7340

Mining companies may soon have to clean up their act, now that the U.S. Environmental Protect Agency has taken a first step in closing a loophole in hazardous waste laws.

Late Friday, the EPA filed documents singling out the hardrock mining industry as the first to start posting bonds to cover the cost of toxic cleanups — a first step in closing a loophole that, for more than 25 years, has made it easy for operators to skip out on costly cleanups by declaring bankruptcy. The EPA chose to start with the mining industry because of the long history of environmental damage caused by mining, which has resulted in Superfund “mega-sites” that pollute vast areas of the western U.S. and cost taxpayers billions to clean up.

The action stems from a February court victory by environmental groups in which a U.S. District Court gave EPA a deadline to identify industries that fall through this loophole. Attorneys Lisa Evans and Jan Hasselman with the public interest law firm Earthjustice represented the Sierra Club and environmental groups in New Mexico, Nevada, and Idaho.

“Without financial assurance regulations, mine operators have walked away from sites contaminated with cyanide, lead, arsenic, mercury and other toxins,” Hasselman said. “EPA has taken an important first step towards correcting this longstanding environmental problem while saving taxpayers billions of dollars at the same time.”

The news comes as pollution generated by the mining industry comes under increased scrutiny following a June 22 Supreme Court decision over pollution from a gold mine in Alaska. And this week, Department of Interior Secretary Ken Salazar and others will testify before a Senate committee on efforts to reform the nation’s 1872 mining law.

“This development comes at a crucial time for communities impacted by Nevada’s mining industry,” said John Hadder, executive director of Great Basin Resource Watch. “The gold mine bankruptcies from the 1990s left our state riddled with contaminated sites. We hope to soon benefit from the stronger protections brought by closing this loophole.”

The Environmental Protection Agency (EPA) ranks the mining industry as the nation’s top toxic polluter, reporting more toxic releases annually than any other industry. The industry generates more than 2 billion pounds of toxic waste each year and has polluted more than 40 percent of western watershed headwaters. The recent notice documents both the incredible toxic legacy from mining as well as the costs to the taxpayers from mining companies that go bankrupt and leave the public paying the clean up costs.

“We hope that polluters take notice of this move by EPA,” said Kathy Andria, Waste & Recycling chair of the Illinois chapter of Sierra Club. “We want to make sure companies have the cash to pay for any problems that could arise in the future. More importantly, we hope that money will serve as an incentive for them to act responsibly and keep surrounding communities and water resources safe.”

Perhaps the most far-reaching example of irresponsible mining operations is Asarco, which declared bankruptcy in 2005. The century-old mining and smelting company left behind 94 Superfund sites in 21 states, with a total cleanup cost estimated at more than $1 billion, far more than the $62 million trust the company set aside for cleanup.

In Idaho, Asarco is among mining companies responsible for contamination spread across the 1,500-square-mile Coeur d’Alene River basin. Cleanup work is likely to last for generations. EPA has estimated the cost of the first 30 years at $359 million.

The Idaho Conservation League is also watching prospective cleanup costs mount from 17 contaminated sites caused by phosphate mining.

“We’re heartened by EPA’s acknowledgement of the responsibility that mining companies have and hope that it will eventually help relieve taxpayers of a financial burden and keep our rivers and streams clean,” said Justin Hayes, Program Director of the Idaho Conservation League.

Today’s action of identifying the industries that will be subject to regulation is only the first step in closing the bankruptcy loophole. In the Sierra Club’s lawsuit, the court held off from setting a deadline for the issuance of the regulations themselves, and the Obama administration is maintaining its position that the court has no authority to set one. The case is likely to return to the court for additional resolution.  

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