Letter: Governors reiterate concerns, request extension of comment period for Financial Responsibility Requirements under CERCLA

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February 21, 2017

Barbara Foster
Program Implementation and Information Division
Office of Resource Conservation and Recovery
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue N.W.
Mail Code:  5303P
Washington, D.C.  20460

Re: Comment period extension request – 82 FR 3388; Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry

Dear Ms. Foster:

The Western Governors’ Association (WGA) represents Governors from 19 western states and three U.S.-flag islands. The Association is an instrument of the Governors for bipartisan policy development, information-sharing and collective action on issues of critical importance to the western United States. Many western states rely on the hardrock mining industry for economic development and employment. These states have staff dedicated to mine permitting and compliance. Such staff are committed to ensuring hardrock mining facilities are designed, constructed and operated in a manner that minimizes risks to the environment and ensures proper site reclamation.

The Environmental Protection Agency’s (EPA) proposed rule, Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hardrock Mining Industry (Proposal), to establish financial assurance regulations for the hardrock mining industry, will negatively affect state economies.  It may also hamper existing, effective state financial assurance programs.  

WGA has outlined western states’ concerns regarding the Proposal several times over the past year. Our August 17, 2016, comments submitted in response to the agency’s federalism assessment for its then-planned rule detail WGA’s positions. In summary, Western Governors are concerned about a lack of substantive state engagement during rule development, potential preemption of existing state regulations, EPA’s citation of four 2011 state letters as evidence of non-preemption, and shortcomings of a May 18, 2016, state/EPA Federalism Consultation meeting in Washington, D.C. Many of these concerns could have been alleviated had EPA worked collaboratively with state partners during rule development.  

Western Governors request that EPA reexamine the necessity of the Proposal, particularly in light of existing and effective state and federal programs. We request further that, should EPA opt to pursue financial assurance regulation for the hardrock mining industry, the agency work collaboratively with western states to review the provisions and definitions contained in the Proposal. Doing so will help avert duplication or preemption and ensure that an EPA rule works in tandem with – and not counter to – existing programs.

Additionally, the current 60-day comment period is inadequate and will not provide for thoughtful and complete analysis of the Proposal and its impact on the mining industry and state financial assurance programs. Given the expansive nature of the Proposal, the existing state and federal programs implicated, and the need to review supplementary information including EPA’s formula for calculation of financial assurance amounts, Western Governors request a 120-day comment period extension. Thank you for your consideration.


Steve Bullock
Governor, State of Wyoming
WGA Chair

Dennis Daugaard
Governor, State of South Dakota
WGA Vice Chair

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