[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Notices]
[Pages 37213-37219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16819]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-SFUND-2009-0265; FRL-8931-7]
RIN 2050-AG56


Identification of Priority Classes of Facilities for Development 
of CERCLA Section 108(b) Financial Responsibility Requirements

AGENCY: Environmental Protection Agency (EPA)

ACTION: Priority notice of action.

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SUMMARY: Section 108(b) of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) of 1980, as amended, 
establishes certain regulatory authorities concerning financial 
responsibility requirements. Specifically, the statutory language 
addresses the promulgation of regulations that require classes of 
facilities to establish and maintain evidence of financial 
responsibility consistent with the degree and duration of risk 
associated with the production, transportation, treatment, storage, or 
disposal of hazardous substances. CERCLA Section 108(b) also requires 
EPA to publish a notice of the classes for which financial 
responsibility requirements will be first developed. To fulfill this 
requirement, EPA is by this notice identifying classes of facilities 
within the hardrock mining industry for which the Agency will first 
develop financial responsibility requirements under CERCLA Section 
108(b). For purposes of this notice, hardrock mining facilities include 
those which extract, beneficiate or process metals (e.g., copper, gold, 
iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non-
metallic, non-fuel minerals (e.g., asbestos, gypsum, phosphate rock, 
and sulfur).

FOR FURTHER INFORMATION CONTACT: For more information on this notice, 
contact Ben Lesser, U.S. Environmental Protection Agency, Office of 
Resource Conservation and Recovery, Mail Code 5302P, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460; telephone (703) 308-0314; or (e-mail) 
[email protected]; or Elaine Eby, U.S. Environmental Protection 
Agency, Office of Resource Conservation and Recovery, Mail Code 
5304P,1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
(703) 603-844; or (e-mail) [email protected].

SUPPLEMENTARY INFORMATION:

A. How Can I Get Copies of This Document and Other Related Information?

    This Federal Register notice and supporting documentation are 
available in a docket EPA has established for this action under Docket 
ID No. EPA-HQ-SFUND-2009-0265. All documents in the docket are listed 
on the http://www.regulations.gov Web site. Although listed in the 
index, some information may not be publicly available, because for 
example, it may be Confidential Business Information (CBI) or other 
information, the disclosure of which is restricted by statute. Certain 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, 
EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the 
Superfund Docket is (202) 566-0270. A reasonable fee may be charged for 
copying docket materials.

B. Table of Contents

I. Introduction
II. EPA's Approach for Identifying Those Classes of Facilities for 
Which Requirements Will Be First Developed
III. Identification of Classes of Facilities in Hardrock Mining
IV. Hardrock Mining--Releases and Exposure to Hazardous Substances
V. Hardrock Mining--Severity of Consequences Resulting From Releases 
and Exposure to Hazardous Substances
VI. EPA's Consideration of Additional Classes of Facilities for 
Developing Financial Responsibility Requirements
VII. Conclusion

I. Introduction

    Section 108(b), 42 U.S.C. 9608 of the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, 
requires in specified circumstances that owners and operators of 
facilities establish evidence of financial responsibility. 
Specifically, it requires

[[Page 37214]]

the promulgation of regulations that require classes of facilities to 
establish and maintain evidence of financial responsibility consistent 
with the degree and duration of risk associated with the production, 
transportation, treatment, storage, or disposal of hazardous 
substances. The section also instructs that the President: \1\
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    \1\ Executive Order 12580 delegates this responsibility to the 
Administrator of the U.S. Environmental Protection Agency (``EPA'' 
or ``the Agency'') for non-transportation related facilities. 52 FR 
2923, 3 CFR, 1987 Comp., p. 193.

    * * * identify those classes for which requirements will be 
first developed and publish notice of such identification in the 
Federal Register.\2\
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    \2\ 42 U.S.C. 9608 (b)(1).

    EPA is publishing this notice to fulfill its obligations under 
CERCLA Section 108(b) to identify those classes of facilities, owners, 
and operators (herein referred to as classes of facilities) for which 
financial responsibility requirements will first be developed.
    For the reasons that follow, the Agency has identified classes of 
facilities within the hard-rock mining industry as its priority for the 
development of financial responsibility requirements under CERCLA 
Section 108(b). For purposes of this notice only, hardrock mining is 
defined as the extraction, beneficiation or processing of metals (e.g., 
copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and 
zinc) and non-metallic, non-fuel minerals (e.g., asbestos, gypsum, 
phosphate rock, and sulfur).\3\ (See Section VI of this notice for a 
discussion of EPA's consideration of additional classes of facilities 
for developing financial responsibility requirements under Section 
108(b) of CERCLA.)
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    \3\ See memorandum to Jim Berlow, USEPA from Stephen Hoffman, 
USEPA and Shahid Mahmud, USEPA. Re: Mining Classes Not Included in 
Identified Classes of Hardrock Mining. June 2009.
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II. EPA's Approach for Identifying Those Classes of Facilities for 
Which Requirements Will Be First Developed

    In accordance with CERCLA Section 108(b) EPA worked to determine 
which classes of facilities it should identify as its priority. CERCLA 
Section 108(b) directs the President to ``identify those classes for 
which requirements will be first developed and publish notice of such 
identification [.]'' However, this simple sentence does not spell out a 
particular methodology by which the identification is to be made. While 
EPA views this statutory ambiguity as allowing substantial discretion 
in making the identification, EPA looked to the rest of CERCLA Section 
108(b) to inform its exercise of this discretion.
    Examination of CERCLA Section 108(b) as a whole reveals repeated 
references to the concept of ``risk.'' The first sentence of paragraph 
(b)(1) refers to ``requirements * * * that classes of facilities 
establish and maintain evidence of financial responsibility consistent 
with the degree and duration of risk'' and the last sentence states 
that ``[p]riority in the development of such requirements shall be 
accorded to those classes of facilities * * * which the President 
determines present the highest level of risk of injury.'' Paragraph 
(b)(2) also states that ``[t]he level of financial responsibility shall 
be initially established, and, when necessary, adjusted to protect 
against the level of risk which the President in his discretion 
believes is appropriate * * * .'' Accordingly, EPA chose to look for 
indicators of risk and its related effects to inform its selection of 
classes for which it would first develop requirements under CERCLA 
Section 108(b). As a practical method of doing so, EPA reviewed 
information contained in a number of studies, reports, and analyses. 
This review pointed to numerous factors EPA should consider. For 
example, typical elements in evaluating risk to human health and the 
environment include: the probability of release, exposure, and 
toxicity.\4\ While some of the considerations reflect these basic 
elements of risk evaluation, others relate more closely to the severity 
of consequences that result when those risks are realized, such as the 
releases' duration if not prevented or quickly controlled as a result 
of economic factors and the exposures that can result. Therefore, EPA 
has chosen to evaluate the following factors: (1) Annual amounts of 
hazardous substances released to the environment; (2) the number of 
facilities in active operation and production; (3) the physical size of 
the operation; (4) the extent of environmental contamination; (5) the 
number of sites on the CERCLA site inventory (including both National 
Priority List (NPL) sites and non-NPL sites); (6) government 
expenditures; (7) projected clean-up expenditures; and (8) corporate 
structure and bankruptcy potential.
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    \4\ ``Risk Assessment in the Federal Government: Managing the 
Process.'' National Research Council. National Academy Press, 
Washington, DC. 1983.
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    Toxicity is reflected in the designation of substances as CERCLA 
hazardous substances. Current releases of hazardous substances, number 
of operating facilities, the physical size of an operation, the extent 
of environmental contamination, and the number of sites on the CERCLA 
site inventory (non-NPL sites and NPL sites) are factors that can 
relate to the probability of a release of a hazardous substance, as 
well as the potential for exposure. These are discussed in detail, in 
Section IV of this notice. Government expenditures, projected clean-up 
costs, and corporate structure and bankruptcy potential can relate to 
the severity of the consequences as a result of releases and exposure 
of hazardous substances. These are discussed in Section V of this 
notice.
    EPA's review of all these factors, as reflected in the information 
presented in this notice and included in the docket, makes it readily 
apparent that hardrock mining facilities present the type of risk that, 
in light of EPA's current assessment, justifies designating such 
facilities as those for which EPA will first develop financial 
responsibility requirements pursuant to CERCLA Section 108(b).\5\
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    \5\ Today's identification of hardrock mining is not itself a 
rule, and does not create any binding duties or obligations on any 
party. Additional research, outreach to stakeholders, proposed 
regulations, review of public comments, and finalization of those 
regulations are needed before hardrock mining facilities are subject 
to any financial assurance requirements.
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III. Identification of Classes of Facilities in Hardrock Mining

    For purposes of this notice, EPA has included the following classes 
of facilities under the general title of hardrock mining: facilities 
which extract, beneficiate or process metals (e.g. copper, gold, iron, 
lead, magnesium, molybdenum, silver, uranium, and zinc) and non-
metallic, non-fuel minerals (e.g. asbestos, gypsum, phosphate rock, and 
sulfur).\6\ As explained below, hardrock mining facilities share common 
characteristics, and are thus being identified as a group. At the same 
time, those facilities included in the definition above differ such 
that ``hardrock mining facilities'' are properly considered to 
encompass multiple ``classes'' of facilities. The various classes in 
this notice's definition of hardrock mining are involved in two general 
activities: (1) The extraction of an ore or mineral from the earth; and 
(2) using various beneficiation activities and processing operations to 
produce a targeted material product, such as a metal ingot. The 
operations that comprise hardrock mining (i.e., extraction, 
beneficiation, and then processing) are all part of a sequential 
process of converting

[[Page 37215]]

material removed from the earth into marketable products, even though 
the intermediate and end products differ. Extraction, beneficiation or 
processing of ores and minerals can involve similar processes across 
types of mining, as discussed below.
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    \6\ EPA notes that this notice does not affect the current 
Bevill status of extraction, beneficiation and processing wastes as 
codified in 40 CFR 261.4(b)(7).
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    However, hardrock mining is also properly considered to encompass 
multiple ``classes'' that represent a range of activities and 
marketable products. Extraction differs from beneficiation and both 
differ from processing, and depending upon the product sought, 
different types of processes are used. Extraction, also called mining, 
is the removal of rock and other materials that contain the target ore 
and/or mineral. The physical processes used to accomplish this vary, 
but are nonetheless often shared across different types of mining. 
These physical processes include surface, underground, and in-situ 
solution mining. Overburden and waste rock are removed during surface 
and underground extraction processes in order to gain access to the 
ore. Overburden and waste rock are disposed of in dumps near the mine. 
The dumps may or may not be lined or covered. In-situ mining involves 
the recovery of the metal from the ore by circulating solutions through 
the ore in its undisturbed geologic state and recovering those 
solutions for processing. The principal environmental protection 
concern with in-situ mining is the control and containment of the leach 
solutions.
    Typically the next step after extraction, beneficiation involves 
separating and concentrating the target mineral from the ore. There 
are, however, many different ways in which beneficiation can occur. 
Beneficiation activities generally do not change the mineral values 
themselves other than by reducing (e.g. crushing or grinding) or 
enlarging (pelletizing or briquetting) particle size to facilitate 
processing, but can involve the introduction of water, other 
substances, and chemicals (including hazardous substances). A common 
beneficiation technique is flotation. Froth flotation involves adding 
forced air and chemicals to an ore slurry causing the target mineral 
surfaces to become hydrophobic and attach to air bubbles that carry the 
target minerals to the top of a floatation vessel. The surface froth 
containing the concentrated mineral is removed, and thus separated from 
the other waste minerals. The remaining waste minerals are called 
tailings. Leaching, another beneficiation technique, involves the 
addition of chemicals to ores or flotation concentrates in order to 
dissolute the target metal. For example, solvents, such as sulfuric 
acid are used to leach copper and sodium cyanide is used to leach gold. 
Following leaching, the leftover waste product is called spent ore (in 
heap leaching) or tailings (in other types of leaching). There are 
various other beneficiation techniques and intermediate processes that 
are used and not described here. However, flotation and leaching are 
the most common techniques used in the mining industry. Tailings from 
beneficiation are disposed in a variety of ways, most commonly in 
tailing ponds. Design of tailings ponds differ and may or may not 
include liners, seepage control, surface water diversions, and final 
covers. Regardless, many tailings ponds require long-term management of 
waste and the impoundment dam.
    Processing is the refining of ores or mineral concentrates after 
beneficiation to extract the target material. As with beneficiation, 
there are many different ways of processing the ores or mineral 
concentrates. For example, mineral processing operations can use 
pyrometallurgical techniques (the use of higher temperatures as in 
smelting), to produce a metal or high grade metallic mixture. Smelting 
generates a waste product called slag. Slag is initially placed 
directly on the ground to cool, and is often subsequently managed into 
a wide range of construction materials (e.g., road bed or foundation 
bedding).
    Both because of the ways that the facilities covered by this notice 
fit together, and because of the range of activities that they cover, 
EPA believes hardrock mining is properly identified as a group and 
considered to include multiple classes of facilities.

IV. Hardrock Mining--Releases and Exposure to Hazardous Substances

    As discussed above, evaluations of risk typically include 
considerations of the probability of a release, including its potential 
scale and scope, the exposure potential and toxicity. EPA research 
indicates that the hardrock mining industry typically operates on a 
large scale, with releases to the environment and, in some situations, 
subsequent exposure of humans, organisms, and ecosystems to hazardous 
substances on a similarly large scale. Indeed, EPA estimates that the 
hardrock mining industry is responsible for polluting 3,400 miles of 
streams and 440,000 acres of land.\7\ The U.S. Forest Service (USFS) 
estimates that approximately 10,000 miles of rivers and streams may 
have been contaminated by acid mine drainage from the metal mining 
industry.\8\
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    \7\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites: 
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at: 
http://www.epa.gov/tio/pubisd.htm.
    \8\ U.S. EPA 2004. ``Nationwide Identification of Hardrock 
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005. Accessed at: http://epa.gov/oig/reports/2004/20040331-2004-p-00005.pdf.
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    The Agency examined its 2007 Toxic Release Inventory (TRI), and 
this data revealed that the metal mining industry \9\ (e.g., gold ore 
mining, lead ore and zinc ore mining, and copper ore and nickel ore 
mining) releases enormous quantities of toxic chemicals, at nearly 1.15 
billion pounds or approximately 28 percent of the total releases by 
U.S. industry that is required to report under the TRI program.\10\ 
\11\ This overall percentage has remained relatively stable since 2003, 
ranging from 25 percent (1.07 billion pounds) of total releases in 2004 
to 29 percent (1.26 billion pounds) of total releases in 2006. In 2007, 
the majority of releases of hazardous substances from the metal mining 
industry were to the land, with additional releases to both the air and 
surface waters. Additional releases of hazardous substances were 
reported to TRI from metal processing facilities (e.g., primary 
smelting of copper) with significant releases to the air and land.
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    \9\ Metal mining industry is defined as NAICS Code 2122 (Metal 
Mining).
    \10\ U.S. EPA 2009. Toxic Release Inventory, 2007 Updated Data 
Releases, as of March 19, 2009.
    \11\ TRI estimates include all on-site and off-site releases to 
the land, air and surface water, including those disposed of in RCRA 
Subtitle C hazardous waste land disposal units and Safe Drinking 
Water Act (SDWA) permitted underground injection (UIC) wells. 
However, less than one percent of hazardous substances are managed 
in this manner. Thus, the data demonstrates the enormous volume of 
hazardous chemical releases reported to TRI by the metal mining 
industry and is an indication of the high volume of hazardous 
substances it manages, and the industry's potential for posing 
health and environmental risk.
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    The potential for releases of and exposure to hazardous substances 
is also reflected in the number of active facilities operating in the 
U.S. While estimates of the number of active mining facilities vary, in 
2004, EPA estimated that there were 1,000 metal and non-metal mineral 
mines and processing facilities in the U.S. Furthermore, many mining 
facilities have been in operation for decades and can exceed thousands 
of acres in size.\12\ Since large mines may be operated for decades, 
this can extend the time frame for potential releases and exposure of 
hazardous substances. At individual facilities, hardrock mining 
operations

[[Page 37216]]

may disturb thousands of acres of land and impact watersheds including, 
to varying degrees, effects on groundwater, surface water, aquatic 
biota, aquatic and terrestrial vegetation, wetlands, wildlife, soils, 
air, cultural resources, and humans that use these resources 
recreationally or for subsistence.\13\
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    \12\ National Research Council. 2005. Superfund and Mining 
Megasites: Lessons from the Coeur d'Alene River Basin. The National 
Academies Press, Washington, DC. Accessed at: http://www.nap.edu/catalog.php?record_id=11359.
    \13\ National Research Council. 1999. Hardrock Mining on Federal 
Lands. National Academies Press. Washington, DC.
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    Hardrock mining facilities also generate an enormous volume of 
waste, which may increase the risk of releases of hazardous substances. 
Annually, hardrock mining facilities generate between one to two 
billion tons of mine waste.\14\ This waste can take a variety of forms, 
including mine water, waste rock, overburden, tailings, slag, and flue 
dust and can contain significant quantities of hazardous substances. 
The 2007 TRI data demonstrate that hardrock mining facilities reported 
large releases of many hazardous substances, including ammonia, 
benzene, chlorine, hydrogen cyanide, hydrogen fluoride, toluene, and 
xylene, as well as heavy metals and their compounds (e.g., antimony, 
arsenic, cadmium, chromium, cobalt, copper, lead, manganese, mercury, 
nickel, selenium, vanadium and zinc).\15\ Similarly, the National 
Research Council (NRC) has indicated that hazardous substances of 
particular concern include heavy metals, ammonia, nitrates, and 
nitrites.\16\
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    \14\ U.S. EPA 2004. ``Cleaning Up the Nation's Waste Sites: 
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at: 
http://www.epa.gov/tio/pubisd.htm.
    \15\ See Memorandum to the Record: Toxic Release Inventory (TRI) 
Releases from Hardrock Mining Operations. June 2009.
    \16\ National Research Council. 1999. Hardrock Mining on Federal 
Lands. National Academies Press. Washington, DC. Also, EPA conducted 
a preliminary review of the Records of Decisions (RODs) for a 
selected group mining NPL sites. These substances were found to be 
common contaminants at these sites. Accessed at http://books.nap.edu/catalog.php?record_id=9682.
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    These releases, in some cases, have lead to ground and surface 
water contamination from acid mine drainage and metal leachate, and air 
quality issues resulting from heavy metal-contaminated dust or 
emissions of gaseous metals from thermal processes.\17\ Acid mine 
drainage is the formation and movement of acidic water which dissolves 
and transports metals into the environment. This acidic water forms 
through the chemical reaction of surface water (rainwater, snowmelt, 
pond water) and shallow subsurface water with rocks (e.g., waste rock, 
tailings, mine walls) that contain sulfur-bearing minerals, resulting 
in the production of sulfuric acid. Metals can be leached from rocks 
that come in contact with the acid, a process that may be substantially 
enhanced by bacterial action.\18\ The resulting acidic and metal-
contaminated fluids may be acutely or chronically toxic and, when mixed 
with groundwater, surface water and soil, may have harmful effects on 
humans, fish, animals, and plants.\19\ When acid mine drainage occurs, 
it is extremely difficult and often expensive to control and often 
requires long-term management measures.\20\ Air, land and water 
contamination may also result when waste rock dumps, tailings disposal 
facilities and open pits are not maintained properly and there are 
releases of hazardous substances to the environment.\21\ Additional 
risks can occur with the use of cyanide in gold mining operations, 
including the possible release of cyanide into soil, groundwater, and/
or surface waters or catastrophic cyanide spills.\22\ Contaminants of 
concern at uranium mines include radionuclides. Due to the volume of 
the hazardous substances generated and released and the potential for 
long-term management of acid mine drainage, the cause for concern is 
only heightened.
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    \17\ U.S EPA. 2004. ``Cleaning Up the Nation's Waste Sites: 
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at: 
http://www.epa.gov/tio/pubisd.htm.
    \18\ U.S. EPA. 1997. ``EPA's National Hardrock Mining 
Framework.'' Accessed at: http://www.epa.gov/owm/frame.pdf.
    \19\ U.S. EPA 2009. Accessed at: http://www.epa.gov/nps/acid_mine.html.
    \20\ The conventional approach to treating contaminated ground 
or surface water produced through acid drainage involves an 
expensive, multi-step process that pumps polluted water to a 
treatment facility, neutralizes the contaminants in the water, and 
turns these neutralized wastes into sludge for disposal. U.S. EPA. 
Profile of the Metal Mining Industry. September 1995. See also: 
Lind, Greg. 2007. Testimony to the Subcommittee on Energy and 
Mineral Resources of the Committee on Natural Resources, U.S. House 
of Representatives, One Hundred Tenth Congress. Serial No. 110-46.
    \21\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites: 
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at: 
http://www.epa.gov/tio/pubisd.htm.
    \22\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites: 
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at: 
http://www.epa.gov/tio/pubisd.htm.
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    Other studies and EPA's analysis of NPL data also underscores the 
risk of hardrock mining facilities. The NPL is a list of national 
priorities among the known or threatened releases of hazardous 
substances, pollutants or contaminants throughout the U.S. The Hazard 
Ranking System (HRS), the scoring system EPA uses to assess the 
relative threat associated with a release from a site, is the primary 
method used to determine whether a site should be placed on the 
NPL.\23\ The HRS takes into account the three elements of environmental 
and human health risk: (1) Probability of release; (2) exposure; and 
(3) toxicity. EPA generally will list sites with scores of 28.50 or 
above. The HRS is a proven tool for evaluating and prioritizing the 
releases that may pose threats to human health and the environment 
throughout the nation. In 2005, the NRC noted that at the largest 
mining sites, or mega sites (i.e., those with projected cleanup costs 
exceeding $50 million), ``wastes* * * are dispersed over a large area 
and deposited in complex hydrogeochemical and ecologic systems that 
often include human communities and public natural resources.'' \24\\\ 
For example, a molybdenum mine located near Questa, New Mexico, began 
operations in 1919 and some underground mining operations are still in 
operation today. The mine's operational capacity is reportedly 20,000 
tons of ore processed at the facility per day, although it does not 
typically operate at capacity. The site stretches over approximately 
three square miles of land. Across this large area, operations include 
an underground mine, a milling facility, a nine-mile long tailings 
pipeline and a tailing disposal facility. There is also an open pit and 
waste rock dumps at the mine site, which were created during open-pit 
mining operations. Other problems at the site include subsidence areas 
with a surface depression from active underground operations.\25\
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    \23\ U.S. EPA. 2007. ``Introduction to the Hazard Ranking System 
(HRS).'' Accessed at: http://www.epa.gov/superfund/programs/npl_hrs/hrsint.htm.
    \24\ National Research Council. 2005. Superfund and Mining 
Megasites: Lessons from the Coeur d'Alene River Basin. The National 
Academies Press, Washington, DC. Accessed at: http://www.nap.edu/catalog.php?record_id=11359.
    \25\ USEPA Administrative Order on Consent for Molycorp RI/FS 
(2001). Molycorp is proposed for listing on the NPL. More 
information is at http://www.epa.gov/region6/6sf/pdffiles/0600806.pdf.
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    In 2004, EPA's Office of Inspector General (OIG) examined 156 
hardrock mining sites that are part of the CERCLA site inventory and 
concluded that ecological and environmental risks are often 
substantial. For the 82 Non-NPL sites that were evaluated, 64 percent 
had a current high or medium ecological/environmental risk, while the 
percentage of sites that were found to have low risk was only 13%. 
Another 23% had an unknown level of risk.\26\
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    \26\ U.S. EPA 2004. ``Nationwide Identification of Hardrock 
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005, Figure 4.2. Accessed at: http://epa.gov/oig/reports/2004/20040331-2004-p-00005.pdf.
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    In support of this notice, EPA examined not only sites listed on 
the

[[Page 37217]]

NPL, but also sites proposed (including sites with Superfund 
alternative approach agreements in place) and deleted from the NPL.\27\ 
As of April, 2009, approximately 90 hardrock mining sites have been 
listed on the NPL, and another 20 facilities have been proposed for 
inclusion on the list.\28\
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    \27\ A significant number of response actions have been taken by 
several Federal agencies at hardrock mining facilities under CERCLA 
removal and emergency response authorities. Those actions were not 
evaluated for purposes of this Notice because of the lack of 
immediately available data. EPA alone took non-NPL removal actions 
at 99 mining sites between 1988 and October 2007. Provided to GAO 
for GAO 2008, ``Hardrock Mining: Information on Abandoned Mines and 
Value and Coverage of Financial Assurance on BLM Land.'' GAO-08-
574T. Other Federal agencies also use non-NPL removal authorities to 
address releases from mining sites. Accessed at: http://www.gao.gov/highlights/d08574thigh.pdf.
    \28\ Provided to GAO for GAO 2008, ``Hardrock Mining: 
Information on Abandoned Mines and Value and Coverage of Financial 
Assurance on BLM Land.'' GAO-08-574T. Accessed at: http://www.gao.gov/new.items/d08574t.pdf. and updated to reflect sites 
finalized on the NPL in 2008 and 2009. The 2008 and 2009 NPL updates 
can be found at: http://www.epa.gov/superfund/sites/npl/status.htm.
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V. Hardrock Mining--Severity of Consequences Resulting From Releases 
and Exposure to Hazardous Substances

    The severity of the consequences impacting human health and the 
environment as a result of releases and exposure of hazardous 
substances is evident by analyzing a number of factors. Specifically, 
the past and estimated future costs associated with protecting public 
health and the environment through what is often extensive and long-
term reclamation and remediation efforts, as well as corporate 
structure and bankruptcy potential. This information also plays a 
significant role in leading EPA to conclude that classes of facilities 
involved in hardrock mining should be the first for which financial 
assurance requirements are developed under CERCLA Section 108(b).
    The severity of consequences posed by hardrock mining facilities is 
evident in the enormous costs associated with past and projected future 
actions necessary to protect public health and the environment, after 
releases from hardrock mining facilities occur. In other words, the 
documented expenditures reflect efforts to correct the realized risks 
from hardrock mining facilities. As noted earlier, these facilities 
release large quantities of hazardous substances, often over hundreds 
of square miles and, in some instances, have resulted in groundwater 
and surface water contamination that requires long-term management and 
treatment. Remediation of these hardrock mining facilities has 
therefore been historically costly. EPA's past experience with these 
sites leads it to conclude that hardrock mining facilities are likely 
to continue to present a substantial financial burden that could be met 
by financial responsibility requirements. These enormous expenditures 
have been documented in a United States Government Accountability 
Office (GAO) study, and EPA's own data confirm the large amounts of 
money spent by the Federal government alone. The GAO, in its report 
``Current Government Expenditures to Cleanup Hard Rock Mining Sites,'' 
reported that in total, the Federal government spent at least $2.6 
billion to remediate hardrock mine sites from 1998 to 2007. EPA spent 
the largest amount at $2.2 billion, with the USFS, the Office of 
Surface Mining, and the Bureau of Land Management spending $208 
million, $198 million, and $50 million, respectively.\29\ EPA's 
expenditure data show that between 1988 and 2007, for mining sites with 
response actions taken under EPA removal and remedial authorities 
(including sites proposed, listed, and deleted from the NPL and sites 
with Superfund alternative approach agreements in place), approximately 
$2.7 billion was spent.\30\ \31\ Of this total, $2.4 billion was spent 
at the 84 sites listed as final on the NPL list at that time.\32\
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    \29\ U.S. Government Accountability Office. 2008. ``Information 
on Abandoned Mines and Value and Coverage of Financial Assurance on 
BLM Land. GAO-08-574T. Accessed at: http://www.gao.gov/highlights/d08574thigh.pdf.
    \30\ Moreover, EPA's cost data likely underestimates true 
cleanup costs, because they do not include costs borne by the States 
and potentially responsible parties. These costs only reflect 
expenditures to date. To reach construction completion, many sites 
will require additional, substantial remediation efforts. In 
addition, sites with acid mine drainage may require water quality 
treatment in perpetuity. Lind, Greg. 2007. Testimony to the 
Subcommittee on Energy and Mineral Resources of the Committee on 
Natural Resources, U.S. House of Representatives, One Hundred Tenth 
Congress. Serial No. 110-46.
    \31\ U.S. EPA. 2007. Superfund eFacts Database. Accessed: 
October 24, 2007; U.S. Environmental Protection Agency. 2007 
Comprehensive Environmental Response, Compensation, and Liability 
Information System (CERCLIS). Provided to GAO for their report, GAO 
2008, ``Hardrock Mining: Information on Abandoned Mines and Value 
and Coverage of Financial Assurance on BLM Land.'' GAO-08-574T. 
Accessed at: http://www.gao.gov/highlights/d08574thigh.pdf.
    \32\ U.S. EPA. 2007. Superfund eFacts Database. Accessed: 
October 24, 2007; U.S. Environmental Protection Agency. 2007 
Comprehensive Environmental Response, Compensation, and Liability 
Information System (CERCLIS). Provided to GAO for their report, GAO 
2008, ``Hardrock Mining: Information on Abandoned Mines and Value 
and Coverage of Financial Assurance on BLM Land.'' GAO-08-574T, 
http://www.gao.gov/new.items/d08574t.pdf.
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    Estimated costs of remediation for all hardrock mining facilities 
from several sources have generally been in the range of billions of 
dollars. EPA has estimated that the cost of remediating all hardrock 
mining facilities is between $20 and $54 billion. EPA's analysis showed 
that if the total Federal, State, and potentially responsible party 
outlays for remediation were to continue at existing levels ($100 to 
$150 million annually), no more than eight to 20 percent of all cleanup 
work could be completed within 30 years.\33\ In another analysis based 
on a survey of 154 large sites, EPA's OIG projected that the potential 
total hardrock mining remediation costs totaled $7 to $24 billion. OIG 
calculated that this amount is over 12 times EPA's total annual 
Superfund budget of about $1.2 billion from 1999 to 2004.\34\ The 
annual Superfund budget from 2004 through 2008 remained consistent with 
OIG's assessment, at approximately $1.25 billion.\35\ \36\
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    \33\ U.S. EPA. 2004. ``Cleaning Up the Nation's Waste Sites: 
Markets and Technology Trends.'' EPA 542-R-04-015. Accessed at: 
http://www.epa.gov/tio/pubisd.htm.
    \34\ U.S. EPA 2004. ``Nationwide Identification of Hardrock 
Mining Sites.'' Office of Inspector General. Report No. 2004-P-
00005. Accessed at: http://epa.gov/oig/reports/2004/20040331-2004-p-00005.pdf.
    \35\ Appropriation amounts reflect an average of the 
discretionary appropriation amounts in the President's Budget or 
Operating Plan between 2004 and 2008.
    \36\ No single source provides information on estimated future 
reclamation and remediation costs for hardrock mining facilities. In 
addition, for those estimates that do exist, remediation costs are 
often folded in with other reclamation activities, such as 
correcting safety hazards and landscaping, which leaves the amount 
attributable to remediation unknown. See U.S. EPA. 2004. ``Cleaning 
Up the Nation's Waste Sites: Markets and Technology Trends.'' EPA 
542-R-04-015. Accessed at: http://www.epa.gov/tio/pubisd.htm.
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    Common corporate structures and interrelated corporate failures 
within the hardrock mining industry increase the likelihood of 
uncontrolled releases of hazardous substances being left unmanaged, 
increasing risks. To begin with, mine ownership is typically complex, 
with individual mines often separately incorporated.\37\ The existence 
of a parent-subsidiary relationship can present several risks. First, 
corporate structures may allow parent

[[Page 37218]]

corporations to shield themselves from liabilities of their 
subsidiaries.\38\ In a 2005 study, the GAO cited mining facilities as 
an example of businesses at risk of incurring substantial liability and 
transferring the most valuable assets to the parent that could not be 
reached for cleanup.\39\
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    \37\ For example, one mining company's 2008 SEC 10-K filing 
noted that its segments included ``The Greens Creek unit, a 100%-
owned joint venture arrangement, through our subsidiaries Hecla 
Alaska LLC, Hecla Greens Creek Mining Company and Hecla Juneau 
Mining Company. We acquired 70.3% of our ownership of Greens Creek 
in April 2008 from indirect subsidiaries of Rio Tinto, PLC.'' From 
this description, it appears that ownership of the mine has involved 
multiple subsidiaries, under both its current owner and under the 
previous ownership.
    \38\ See U.S. v. Bestfoods, 524 U.S. 51, 61 (1998) (``[i]t is a 
general principle of corporate law * * * that a parent corporation * 
* * is not liable for the acts of its subsidiaries.'')
    \39\ U.S. Government Accountability Office. 2005. 
``Environmental Liabilities: EPA Should Do More to Ensure That 
Liable Parties Meet Their Cleanup Obligations.'' Report to 
Congressional Requesters. GAO-05-658, pp. 21-24. Accessed at: http://www.gao.gov/highlights/d05658high.pdf.
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    Second, many mining interests are located outside of the U.S. 
According to one report, six of the top ten mining claim owners in the 
U.S. are multi-national corporations with headquarters outside the 
U.S.\40\ Such multi-national corporations can be difficult to hold 
responsible for contamination in the U.S. because of the difficulties 
of locating and then obtaining jurisdiction over the ultimate parent 
company.
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    \40\ Environmental Working Group. 2006. ``Who Owns the West?'' 
Accessed at: http://www.ewg.org/mining/claims/index.php.
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    This is of particular concern since the hardrock mining industry 
has experienced a pattern of failed operations, which often require 
significant environmental responses that cannot be financed by 
industry.\41\ The pattern of failed operations has been well 
documented. GAO investigated 48 hardrock mining operations on U.S. 
Department of Interior (DOI), Bureau of Land Management (BLM) Federal 
lands that had ceased operations and not been reclaimed by operators 
since BLM began requiring financial assurance under its regulations. Of 
the 48 operations, 30 cited bankruptcy as the reason for completing 
reclamation activities.\42\ Numerous other examples exist of 
bankruptcies in the hardrock mining industry that resulted in or will 
likely require significant Federal responses, such as:
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    \41\ EPA notes that there are several potential explanations for 
these failures, such as a boom and bust cycle in the price of 
commodities, the finite life of a particular ore body or the 
possibility that closure or reclamation obligations exceed the 
remaining value of the operation, in addition to factors that can 
cause bankruptcies in other sectors. However, regardless of the 
cause, the fact remains a large number of bankruptcies and 
abandonments have occurred.
    \42\ U.S. Government Accountability Office. 2005. Hardrock 
Mining: BLM Needs to Better Manage Financial Assurances to Guarantee 
Coverage of Reclamation Costs. GAO-05-377. Accessed at: http://gao.gov/products/GAO-05-377.
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     When the owner/operator filed for bankruptcy in 1992, it 
left the Summitville mine in Colorado with serious cyanide 
contamination and acid mine drainage. In 1994, the site was listed on 
the NPL. In 2000, EPA estimated that the remediation cost at the mine 
would be $170 million.\43\ As of October 2007, EPA had spent 
approximately $192 million in cleanup costs.\44\
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    \43\ U.S. Environmental Protection Agency. 2000. Liquid Assets 
2000: America's Water Resources at a Turning Point. EPA-840-B-00-
001. Accessed at: http://www.epa.gov/water/liquidassest.pdf.
    \44\ U.S. Environmental Protection Agency. 2007. Superfund 
eFacts Database. Accessed: October 24, 2007.
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     In 1999, another mining company filed for bankruptcy, 
leaving more than 100 million gallons of contaminated water and 
millions of cubic yards of waste rock at the Gilt Edge Mine in South 
Dakota.\45\ EPA listed the site on the NPL in 2000 and estimated at 
that time the present value remediation costs to be $50.3 million.\46\ 
Even this estimate, however, does not include water collection and 
treatment costs that will be handled under additional remediation 
plans. As of October 2007, EPA expenditures at this site exceeded $56.1 
million.\47\
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    \45\ CDM. 2008. Final Feasibility Study Report for the Gilt Edge 
Superfund Site, Operable Unit 1 (OU1). Prepared for EPA, Region 
VIII. May 2008.
    \46\ U.S. EPA 2008. Record of Decision for the Gilt Edge 
Superfund Site Operable Unit 1 (OU1). Accessed at: http://www.epa.gov/region8/superfund/sd/giltedge/RODGiltEdgeVolumeOne_Text.pdf.
    \47\ U.S. EPA. 2007. Superfund eFacts Database. Accessed: 
October 24, 2007.
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     In 1998, operators of the Zortman Landusky mine in Montana 
filed for bankruptcy. Numerous cyanide releases occurred during 
operations which have affected the community drinking water supply on a 
nearby Tribal reservation. Acid mine drainage has also permeated the 
ground and surface waters. The projected cleanup costs at the site are 
estimated to be approximately $85.2 million, of which only $57.8 
million will be paid for by the responsible party. State and Federal 
authorities are projected to pay the remaining $27.4 million for 
cleanup.\48\
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    \48\ U.S. Government Accountability Office. 2005. Hardrock 
Mining: BLM Needs to Better Manage Financial Assurances to Guarantee 
Coverage of Reclamation Costs. GAO-05-377. Accessed at: http://gao.gov/products/GAO-05-377.
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     A large mining company filed for bankruptcy in 2005. The 
company has estimated the total environmental claims filed against it 
to have been in excess of $5 billion. Recently approved settlements 
with the U.S. and certain State governments involving environmental 
clean-up claims, when combined with settlements already approved by the 
bankruptcy court for environmental clean-up claims, provide for allowed 
claims and payments in the bankruptcy in an amount in excess of $1.5 
billion and involve in excess of 50 sites. EPA and DOI estimate their 
combined claims in the bankruptcy at the largest of these sites, an NPL 
site located in Idaho and Eastern Washington, to be in excess of $2 
billion.\49\
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    \49\ Asarco, LLC, et al. U.S. Bankruptcy Court Southern District 
of Texas. May 15, 2009, Case No. 05-21207, Docket No. 11343.
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    Taking all this information into account, EPA concludes that 
classes of facilities within the hardrock mining industry are those for 
which EPA should first develop financial responsibility requirements 
under CERCLA Section 108(b), based upon those facilities' sheer size; 
the enormous quantities of waste and other materials exposed to the 
environment; the wide range of hazardous substances released to the 
environment; the number of active hardrock mining facilities; the 
extent of environmental contamination; the number of sites in the 
CERCLA site inventory, government expenditures, projected clean-up 
costs and corporate structure and bankruptcy potential.

VI. EPA's Consideration of Additional Classes of Facilities for 
Developing Financial Responsibility Requirements

    The Agency believes classes of facilities outside of the hardrock 
mining industry also may warrant the development of financial 
responsibility requirements under CERCLA Section 108(b). Therefore, the 
Agency will continue to gather and analyze data on additional classes 
of facilities, beyond the hardrock mining industry, and will consider 
them for possible development of financial responsibility requirements. 
In determining whether to propose requirements under CERCLA Section 
108(b) for such additional classes of facilities, EPA will consider the 
risks posed and, to do so, may take into account factors such as: (1) 
The amounts of hazardous substances released to the environment; (2) 
the toxicity of these substances; (3) the existence and proximity of 
potential receptors; (4) contamination historically found from 
facilities; (5) whether the causes of this contamination still exist; 
(6) experiences from Federal cleanup programs; (7) projected costs of 
Federal cleanup programs; and (8) corporate structures and bankruptcy 
potential. EPA also intends to consider whether financial 
responsibility requirements under CERCLA Section 108(b) will 
effectively reduce these risks. While the Agency recognizes that data 
for some of these factors may be unavailable or limited in

[[Page 37219]]

availability, it plans to consider whatever data are available.
    As part of the Agency's evaluation, it plans to examine, at a 
minimum, the following classes of facilities: hazardous waste 
generators, hazardous waste recyclers, metal finishers, wood treatment 
facilities, and chemical manufacturers. This list may be revised as the 
Agency's evaluation proceeds. EPA is currently scheduled to complete 
and publish in the Federal Register a notice addressing additional 
classes of facilities the Agency plans to evaluate regarding financial 
responsibility requirements under CERCLA Section 108(b) by December 
2009, and, at that time, will solicit public comment.

VII. Conclusion

    Based upon the Agency's analysis and review, it concludes that 
hardrock mining facilities, as defined in this notice, are those 
classes of facilities for which EPA should identify and first develop 
requirements pursuant to CERCLA Section 108(b). EPA will carefully 
examine specific activities, processes, and/or metals and minerals in 
order to determine what proposed financial responsibility requirements 
may be appropriate. As part of this process, EPA will conduct a close 
examination and review of existing Federal and State authorities, 
policies, and practices that currently focus on hardrock mining 
activities.\50\
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    \50\ As part of developing proposed and final rules the Agency 
will consider whether hardrock mining facilities which have a RCRA 
Part B permit or are subject to interim status under RCRA Subtitle C 
and already are subject to RCRA financial assurance and facility-
wide corrective action requirements need to also be subject to the 
financial responsibility requirements under Section 108(b) of 
CERCLA. In addition, EPA is aware and will consider in its 
development of proposed and final rules, that mining on Federal land 
triggers either the Bureau of Land Management's (BLM) Part 3809 
regulations (43 CFR Part 3809) and the Forest Service's Part 228 
regulations (36 CFR Part 228), both have financial responsibility 
requirements that cover reclamation costs. Many States also have 
reclamation laws.

    Dated: July 10, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9-16819 Filed 7-27-09; 8:45 am]
BILLING CODE 6560-50-P