The D.C. Circuit Court today confirmed that the U.S. Environmental Protection Agency (EPA) will not require hard-rock mine operators to obtain financial assurances to ensure they can foot the bill for cleanup costs in the event of toxic disasters or hazardous spills. Under the hard-rock mining financial assurances rule proposed by the Obama administration, mine operators would have had to secure bonds or other financial instruments to address hazardous releases and remediation. Yet the rule was swiftly halted once President Trump’s political appointees were installed at the EPA. The mining industry is the nation’s leading source of toxic pollution, according to the EPA’s toxic release inventory.

Today’s court opinion dismisses a challenge to the EPA’s 2018 decision to scrap the proposed rule by taking “no action.” The EPA issued the proposed rule after over a decade of litigation challenging the agency’s failure to comply with the federal Superfund law, which mandated EPA to issue bonding requirements for this high-risk industry. Earthjustice filed suit, on behalf of the Idaho Conservation League, Earthworks, the Sierra Club, Amigos Bravos, Great Basin Resource Watch and Communities for a Better Environment, in May 2018 against then-EPA administrator Scott Pruitt challenging EPA’s decision to take “no action.” 

The Trump administration is actively working to reinterpret laws to cut out protections for human health and the environment, and to give regulated industries a pass on cleaning up after themselves. Unfortunately, the Court’s decision clears the way to further such efforts.

Earthjustice and clients reacted to today’s ruling by vowing to continue to work for stronger protections for communities who still live near land poisoned by mining operations. These communities face elevated health risks due to a toxic-cleanup backlog at hard-rock mines that are now Superfund sites. 

For decades, the hard-rock mining industry has been responsible for more taxpayer-funded cleanup than any other industry. According to Toxic Release Inventory reports, the industry releases an average of 1.7 billion pounds per year of hazardous substances, accounting for 47 percent of all releases. Examples of lasting contamination abound: Repeated spills from the Tyrone Mine in New Mexico contaminated aquifers and surface water, and groundwater seepage that will require water treatment in perpetuity. A 2008 spill at Arizona’s Morenci Mine increased concentrations of copper and zinc more than two miles downstream, and the cumulative impacts of its many recent spills have impacted surface waters, wildlife and migratory birds. And catastrophic dam failures — like what occurred at South Carolina’s Brewer Gold Mine in 1990 when a dam break spilled over 10 million gallons of cyanide solution, and killed fish for nearly 50 miles downstream — remain a looming threat from contemporary mining practices.

Public records reviewed by Earthjustice attorneys in the course of litigation revealed that the decision to reverse the hard-rock mining financial assurances rule was made behind closed doors at the EPA, and without public notice, following heavy influence from mining industry representatives who stood to benefit financially if the rule was eliminated. 

“The proposed regulation would have made this polluting mining industry responsible for cleaning up its own hazardous messes. It also would have made hard-rock mining safer by encouraging mining companies to act more cautiously when handling hazardous waste,” said Jaimini Parekh, associate attorney at Earthjustice. “We will continue pursuing every possible avenue for stronger regulation and safer mining practices. This industry should not be allowed to poison groundwater, spill acidic mining wastes into waterways, or expose communities and workers to toxic wastes and then burden taxpayers with cleaning up the mess.”

“Innocent taxpayers and working families should never be the backstop to foot the bill for irresponsible mining companies that can’t clean up their messes, but that’s exactly what today’s ruling allows EPA to do. We will keep fighting to hold hard rock mining companies accountable for their toxic legacy,” said Sierra Club Grand Canyon Chapter Director Sandy Bahr. 

“This decision is a big loss for taxpayers and clean water,” said Bonnie Gestring, northwest program director for Earthworks. “It allows the mining industry to continue to side step their clean-up responsibilities, leaving American families with the burden of polluted water and clean-up costs.”

“Today’s decision is a blow to clean water and the safety and well-being of New Mexican communities,” said Rachel Conn, projects director for Amigos Bravos. “Unfortunately this decision means it will continue to be business as usual, with mining companies polluting water and making messes, and taxpayers cleaning up after them.”

“We’re extremely disappointed in the court’s ruling on financial assurances and the hard-rock mining industry,” said Justin Hayes, executive director of the Idaho Conservation League. “Polluting companies should be held accountable for their own actions, instead of burdening hard-working families and taxpayers — especially when public health and safety are threatened by toxic and hazardous waste.”

Related:

• Read the court decision.
• Earthjustice analysis: EPA Worked with Mining Industry to Abandon Rule Protecting Taxpayers from Toxic Cleanup Costs