DC Circuit: EPA must make rules to stop companies from filing bankruptcy to avoid pollution cleanup
The Environmental Protection Agency has been ordered by a federal appeals court to issue long awaited, long-overdue rules to end the practice of mining companies declaring bankruptcy to avoid cleaning up pollution, the Associated Press reports.
The ruling (PDF) issued Friday by the U.S. Court of Appeals for the District of Columbia Circuit says the EPA must begin the rulemaking process before the end of the year, and regulated industries will have opportunity for input. The case, In re Idaho Conservation League, et al., was brought by six environmental groups in 2014.
The matter extends further back. The issue concerned a requirement made 35 years ago under the EPA’s Superfund program for companies to show they can afford to clean up ongoing contamination as well as deal with any additional contamination from accidents.
In February 2009, a federal judge ordered the EPA to develop rules to ensure that that financial requirement was being followed. The agency then had no specifics for establishing the requirements for a rule, NBC News reported at the time.
Then in July of that year, the agency said it would develop assurance requirements for various types of mining industries, according to the Joint Motion for an Order on Consent (PDF) filed today by the D.C. Circuit.
But in January 2010, the EPA issued an advance notice of proposed rulemaking for several industries such as chemicals, petroleum and coal that did not mention hard-rock mining. The plaintiffs in the current suit petitioned for a writ of mandamus to force the EPA to issue such rules for the hard-rock mining industry as well.
The appeals court said Friday that companies often avoid paying for cleanups by declaring bankruptcy and taxpayers end up paying for it. Stricter rules to prevent that, it said, would give the companies incentive to minimize pollution.
Lisa Evans, a lawyer for Earthjustice, the environmental group that sued the EPA, told the Associated Press: “Decades of EPA inaction has laid the intolerable burden of toxic cleanup on the nation’s most vulnerable communities. Today’s court decision fixes this inequity by closing loopholes that will force irresponsible companies to set aside money to clean up the messes they make—a lesson we learn in kindergarten—and act responsibly.”
An EPA spokeswoman said the agency is reviewing the order and declined further comment.
A spokesman for the National Mining Association, Luke Popovich, said existing requirements under state and federal requirements provide enough assurance of cleanup capabilities: “Mining companies already have significant financial obligations already committed through state and federal mining reclamation and closure programs.”
The AP report notes that the ruling comes five months after an EPA crew working to clean up the area accidentally loosed millions of gallons of contaminated waste water in Colorado from the defunct Gold King Mine, turning three rivers yellow. It is unclear how the cleanup from that contamination will be funded.
