Mining and Mineral Operations Enforcement Update

Historically, the mining and mineral operations industries have been responsible for considerable environmental degradation over almost two centuries of reckless practices. Today, the industry still generates more toxic and hazardous waste than any other industry sector and there are more than 120 mining sites on the Superfund National Priorities List with more added every year. To date, the EPA has spent more than $2.4 billion to cleanup mining and mineral processing sites so it should come as no surprise that the agency is making it a priority to reign in mining industry polluters and enforce compliance nationwide.

In general, the mining and mineral processing industry is subject to a broad range of laws and regulations including the Clean Air Act (CAA), Clean Water Act (CWA), Resource Conservation and Recovery Act (RCRA), the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Toxic Substances Control Act (TSCA) Title III. The EPA and other agencies also have specific regulations and programs to address asbestos, radioactive mining wastes and abandoned mine lands.

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The EPA’s National Enforcement Initiative for the mining and mineral processing sector focuses primarily on preventing water pollution, including drinking water, and also on phosphoric acid  and other high-risk hazardous waste operations in the industry.

In 2013, the EPA announced it would renew the National Enforcement Initiatives across the board, including in the mining and mineral processing industry, through 2016, giving the agency another three years to reach its goals. From 2003 until 2012 the EPA inspected 230 mineral processing facilities and “addressed” 130, meaning the facilities were  inspected and are/were either under a judicial or administrative  enforcement order requiring compliance or were found to have no significant violations. Over the same time period, 40 inspections were performed at phosphoric acid facilities with seven of those addressed.

Although the EPA has not yet tallied it’s enforcement activities for all of 2013, a review of enforcement actions for the past 12 months suggests it was a pretty busy year for mining enforcement. Among the many enforcement activities was the December 12, 2013 announcement of the largest amount ever awarded in a U.S. bankruptcy proceeding for governmental environmental claims and liabilities. The case included several companies involved in mining and other operations and their attempts to fraudulently protect their assets from “85 years of environmental and tort liabilities.” The U.S. District Court for the Southern District of New York awarded damages between $5.2 billion and $14.2 billion, which will be used to clean up contamination at sites across the country.

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According to EPA’s Assistant Administrator, Office of Enforcement and Compliance, Cynthia Giles, “The Court’s decision makes a strong statement that companies should take responsibility for the toxic pollution they cause. Those that manipulate their assets and leave American taxpayers to foot the bill to clean up their mess will be held accountable.”

One area of special concern under the EPA’s Enforcement Initiative umbrella is the disproportionate effects on over-burdened communities and children in low-income areas impacted by mining and mineral processing industry wastes. The EPA recently reported that mining and mineral processing industry violations have resulted in polluted drinking water wells requiring alternative water supplies, costly removal of lead-contaminated soil from residential yards, toxic spills resulting in fish kills in waterways, and other negative impacts on these communities.

Tomorrow we will look at several of the more common regulatory violations cited during 2013 in the mining and minerals processing operations sectors.