Hardrock mining operators are required to perform reclamation activities, primarily as a matter of state law. To ensure funds will be available to perform reclamation in the event an operator defaults on its obligations and declares bankruptcy, financial assurance requirements have emerged. Apart from limited federal regulations (which govern only federal lands), state laws and regulations comprise the universe of financial assurance requirements. In several cases, existing requirements have proven grossly insufficient, and taxpayers have been forced to bear cleanup costs. Many congressional bills have emerged in the past three decades to establish comprehensive federal legislation for hardrock mining and explicitly authorize financial assurance requirements, but each has failed to become law. However, section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contains a provision mandating the promulgation of financial assurance requirements for “classes of facilities” involved in “the production, transportation, treatment, storage, or disposal of hazardous substances,” though the Environmental Protection Agency (EPA), which is responsible for doing so, has yet to issue regulations pursuant to this provision and recently declined to issue regulations it had proposed.

This Note argues that section 108(b) imposes a mandatory duty on EPA to require financial assurances from hardrock mining operators and then seeks to outline the scope of that duty. Part I provides a brief overview of hardrock mining, the General Mining Act of 1872, and existing financial assurance requirements. Part II turns to section 108(b) of CERCLA and examines EPA’s inaction under that provision, as well as EPA’s recent decision not to adopt regulations it had proposed. Part III then examines the scope of EPA’s authority under section 108(b) and the federalism implications thereof.



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