William C. Herz 

 Vice President, 

Scientific Programs 

Capitol View 202.962.0490 

425 Third Street, S.W., Suite 950 202.962.0577 fax 

Washington, DC 20024 www.tfi.org 

April 13, 2011 

Via Electronic Delivery 

Ben Lesser, Senior Advisor

U.S. Environmental Protection Agency 

Office of Resource Conservation and Recovery 

Attention: Docket ID Nos. EPA-HQ-SFUND-2009-0265 

 and EPA-HQ-SFUND-2009-0834 

Mailcode 5305T 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Lesser.Ben@epa.gov 

RE: The Fertilizer Institute’s Comments on EPA’s Proposed Priority 

Identification of Hardrock Mining Facilities for Development of 

CERCLA 108(b) Financial Responsibility Requirements (Docket 

Nos. EPA-HQ-SFUND-2009-0265 and EPA-HQ-SFUND-2009-0834) 

Dear Mr. Lesser: 

The Fertilizer Institute (TFI), on behalf of its member companies, submits these comments in 

response to the U.S. Environmental Protection Agency’s (EPA) notice under Section 108(b) of 

the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 

entitled “Identification of Priority Classes of Facilities for Development of CERCLA Section 

108(b) Financial Responsibility Requirements” (the Notice), 74 Fed. Reg. 37,213 (July 28, 

2009), identifying classes of facilities within the hardrock mining industry for which EPA will 

develop financial responsibility requirements under CERCLA. 

STATEMENT OF INTEREST

TFI represents the nation’s fertilizer industry including producers, importers, retailers, 

wholesalers and companies that provide services to the fertilizer industry. Its membership is 

served by a full-time Washington, D.C. staff in various legislative, educational and technical 

areas as well as with information and public relations programs. 
Ben Lesser, Senior Advisor 

April 13, 2011 

Page 2 

TFI members operate, or rely on, mining operations producing raw materials for fertilizer 

production, including the mining of phosphate rock, which is expressly identified in the Notice 

as “hardrock mining” potentially subject to EPA’s forthcoming financial responsibility 

requirements pursuant to CERCLA § 108. TFI members also operate, or depend on, facilities 

which extract, beneficiate, or process phosphate rock, and thus potentially fall within the scope 

of the Notice. 

Consistent with EPA’s stated need for additional research and outreach with stakeholders,1

 TFI 

provides the following comments on the Notice for EPA’s consideration when developing 

financial responsibility requirements under CERCLA for the hardrock mining industry. 

COMMENTS 

I. EPA Inappropriately Identifies Phosphate Rock Mining, Extraction, 

Beneficiation and Processing as “Hardrock Mining” under the Notice 

In the Notice, EPA defines “hardrock mining” as the “extraction, beneficiation or processing of 

metals,” such as copper, gold, iron, etc., “and non-metallic, non-fuel minerals (e.g., asbestos, 

gypsum, phosphate rock, and sulfur).” 74 Fed. Reg. at 37,214. The inclusion of phosphate 

mining as “hardrock mining,” and its treatment as being similar to metal mining, is not supported 

by the current regulatory treatment and industry understanding that phosphate mining is excluded 

from the definition of hardrock mining, and is not supported by the evidence cited by EPA in the 

Notice. 

In identifying “hardrock mining” facilities as a priority for financial responsibility regulation 

under CERCLA, EPA stated that it evaluated the following factors: (1) annual amounts of 

hazardous substances released to the environment, based on “Toxic Release Inventory” (TRI) 

data; (2) 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 “National Priorities List” (NPL); (6) government expenditures; (7) projected clean-up 

expenditures; and (8) corporate structure and bankruptcy potential. 74 Fed. Reg. at 37,214. 

However, EPA provides no information in the Notice as to how these factors were evaluated for 

individual types of facilities included within its broad definition of “hardrock mining” facilities. 

Notably, “hardrock mining” traditionally has meaning as a category based on how ore is situated 

in its natural setting and does not include phosphate rock. 

In the industry and in other regulatory regimes, phosphate rock mining is excluded from the 

definition of “hardrock mining” facilities. See, e.g., Hardrock Mining and Reclamation Act of 

2009, H.R. 699, S. 796; Bureau of Land Management Mineral Leasing Regulations under 40 

C.F.R. § 3501.5; and 40 C.F.R. Part 60, Subpart LL, Standards of Performance for Metallic 

Mineral Processing Plants (defining a “metallic mineral concentrate” as a concentrate that 

“contains at least one of the following metals in any of its oxidation states and at a concentration 

 

1

 74 Fed. Reg. at 37,214 n.5. 
Ben Lesser, Senior Advisor 

April 13, 2011 

Page 3 

that contributes to the concentrate’s commercial value: Aluminum, copper, gold, iron, lead, 

molybdenum, silver, titanium, tungsten, uranium, zinc, and zirconium.”). Despite this fact, EPA 

appears to equate “hardrock mining” with “metal mining,” without any justification. See 74 Fed. 

Reg. at 37,215. For example, in its discussion of the first factor set forth above (annual TRI 

data), EPA discusses 2007 TRI data and concludes “that the metal mining industry (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 the U.S. industry that is required to report under the TRI program.” Id. It 

appears EPA’s data regarding metal mining is based on metal mining in North American 

Industrial Classification System (NAICS) Code 2122. Id. at 37,215 n.9. This industry code does 

not represent phosphate rock mining, however, which is NAICS Code 2123.2 Further, phosphate 

mining is not even subject to TRI reporting and EPA has denied a petition to include phosphate 

mining in the TRI Program. 61 Fed. Reg. 33,588, 33,591-592 (June 27, 1996) (“[t]wo industries, 

non-metal mining classified in SIC code 14 and wholesale durable goods classified in SIC code 

50, were excluded from further consideration for this action based on a belief that the majority of 

activities conducted by facilities operating in these groups are believed to involve materials that 

are not EPCRA section 313 listed chemicals.”). 

Similarly, EPA relies on the same TRI data to determine that mining operations generate 

significant quantities of waste that may contain and account for releases of hazardous substances; 

of course, these data contain no information on phosphate mining. Id. at 37,316. The error of 

these assumptions is compounded for phosphate mining when EPA discusses the severity of 

consequences of releases from hardrock mining, particularly in light of EPA’s claim that the 

hardrock mining industry has experienced a pattern of failed operations, which often results in 

industry being unable to respond to releases. Id. at 37,218 (citing failures related to traditional 

hardrock mining, not phosphate mining). EPA is improperly associating perceived problems in 

the hardrock mining industry with the phosphate mining industry. 

Ultimately, EPA fails to justify the inclusion of phosphate rock mines within the definition of 

“hardrock mining,” based on industry standards, other regulatory regimes, its past conduct, and 

on the eight factors it has listed.3

 In short, EPA cannot arbitrarily group phosphate mining with 

traditional hardrock mining, based solely on information about the latter. This is particularly true 

when phosphate mining and processing facilities are very different in many ways from metal 

mining facilities. EPA should exclude phosphate rock mining from its proposed CERCLA 

financial responsibility requirements for “hardrock mining.” 

 

2

 Further, metal mining is under Standard Industrial Classification (SIC) Code 10, whereas phosphate mining 

is under SIC Code 14. 

3

 In the Notice, EPA appears to acknowledge that its definition of “hardrock mining” is out of step with 

industry norms and other regulatory regimes governing hardrock mining, as it states that the definition is to be used 

for the “purposes of this [N]otice only.” Id. at 37,214. 
Ben Lesser, Senior Advisor 

April 13, 2011 

Page 4 

II. CERCLA’s Financial Responsibility Requirements 

Do Not Apply to Phosphate Mining Facilities 

CERCLA’s financial responsibility requirements do not apply to facilities that are already 

subject to the financial responsibility requirements under Subtitle C of the Resource 

Conservation and Recovery Act (RCRA), which governs the management of hazardous waste, 

and other federal laws. Specifically, CERCLA Section 108(b) requires EPA to “promulgate 

requirements (for facilities in addition to those under subtitle C of [RCRA] and other Federal 

law) that classes of facilities establish and maintain evidence of financial responsibility . . . .” 42 

U.S.C. § 9608(b)(1). The vast majority of hardrock mining facilities, in general, and phosphate 

mining facilities, in particular, are already subject to financial responsibility requirements under 

other federal laws, such as those related to reclamation under the Federal Land Policy and 

Management Act, as well as comprehensive financial assurance requirements under state law.4 

Thus, under the plain language of Section 108, EPA is not required to promulgate financial 

responsibility requirements for phosphate mining under CERCLA. 

TFI members operating phosphate rock mining and mineral processing facilities are subject to a 

myriad of financial assurance obligations. For example, one TFI member company operates four 

phosphate rock mining and processing facilities in a single state. These four facilities have 

existing financial assurance obligations under multiple state and federal programs (including 

RCRA) directed at remediation and reclamation in amounts totaling $53.2 million, $53.5 million, 

$84.1 million, and $100.9 million, respectively. Another TFI member company with six 

facilities in a single state has existing financial assurance obligations under currently applicable 

state and federal regulations for reclamation and remediation totaling $25.7 million, $81.8 

million, $110.9 million, $185.6 million, $215.7 million, and $395.4 million, respectively. In 

another state, where contamination from phosphate mining has occurred, TFI member companies 

have signed orders with state and federal agencies under CERCLA to address environmental 

concerns, including providing financial assurance. 

The plain language of Section 108(b) evidences Congressional intent only to require financial 

responsibility requirements under CERCLA for facilities that are not already required to do so; 

Congress clearly intended for CERCLA not to impose an unnecessarily duplicative burden on 

facilities that are already required to ensure adequate funds to fully reclaim their facilities and 

respond to environmental contamination. 

III. Even Assuming Regulation Was Appropriate, 

EPA Must Properly Evaluate Risk from Each Industry 

Under CERCLA § 108(b), EPA must quantify the risk associated with the regulated class of 

facilities and adopt financial responsibility requirements “consistent with the degree and duration 

of risk.” 42 U.S.C. § 9608(b)(1). Section 108 does not set forth a specific methodology to be 

used in identifying and prioritizing classes of facilities for application of financial responsibility 

 

4

 See, e.g., Fla. Stat. Ann. § 378.208.1 (requiring mine operator to provide appropriate financial assurance). 
Ben Lesser, Senior Advisor 

April 13, 2011 

Page 5 

regulations. EPA explicitly declined to solicit comments on its methodology for identifying first 

priority facilities. Because this methodology is the first step in determining whether a proposed 

rulemaking is necessary for any class of facilities, including phosphate mining, it should be the 

subject of public notice and comment prior to its use. Specifically, the two overriding 

requirements of the statutory provision at issue are that such regulations address current and 

future (1) environmental risks (i.e., risks of release of hazardous substances), and (2) financial 

risks (impacts to sustainability and viability of the CERCLA Superfund). 42 U.S.C. 

§ 9608(b)(1)-(2). Yet, there is little to no actual evaluation of actual risk in EPA’s methodology 

(which appears to simply be EPA’s list of eight factors). Instead, EPA’s methodology uses 

surrogates for risk, such as TRI data regarding volume, and dramatic leaps in logic, such as its 

statement that toxicity (a factor EPA says is relevant in determining risk) apparently can be 

assumed at some unknown level due to the mere designation of a substance as hazardous. Id. 

Further, EPA stated that exposure is relevant to determining risk, yet its methodology does not 

appear to account for this either. A method based on generalizations regarding volumes and 

unsupported assumptions regarding toxicity is inconsistent with the statute’s focus on risk. 

A. EPA’s Data Do Not Demonstrate Actual Risk 

from Hardrock or Phosphate Mining 

As previously discussed, EPA cites TRI data to support its prioritization of hardrock mining for 

financial assurance regulation in the Notice. 74 Fed. Reg. at 37,215. TRI data, however, is not a 

meaningful source of information for purposes of prioritizing CERCLA § 108(b) regulation, 

which is directed at facilities with the “highest level of risk of injury.” The TRI reporting 

program is a volume-based reporting requirement having no relation to injury risks. Indeed, 

EPA itself has emphasized the limitations of relying on TRI data for risk assessment, noting that 

such information is “not sufficient to determine exposure or calculate potential risks.” See EPA 

2008 TRI National Analysis.5 EPA fails to account for the inadequacy of TRI data in the Notice 

or to explain why those concerns raised in the Agency’s other publications relative to the use of 

TRI data in risk assessments do not apply for the purposes of the Notice. The Notice must, by 

statute, prioritize based on risk levels, yet EPA’s own guidance states that TRI data provide an 

incomplete picture, at best, of potential risks. 

Furthermore, EPA fails to place TRI data in context by ignoring the fact that TRI data from 

traditional hardrock mining facilities includes (and in fact mostly relates to) naturally occurring 

compounds present in the rock excavated and moved by the facility. These naturally occurring 

compounds may appear in the TRI database as large releases; but instead often represent the 

mere movement of overburden or permanent closure of an impoundment system. These closures 

actually further reduce the risk that the public will be exposed to any TRI listed chemicals. 

EPA’s reliance on TRI data and its failure to contextualize and qualify that reliance results in the 

Notice giving a distorted view of the risks associated with mining operations.6

 

5

 http://www.epa.gov/tri/tridata/tri08/national_analysis/index.htm 6

 It also ignores EPA’s own statement that facilities with the largest disposal or other releases “do not 
Ben Lesser, Senior Advisor 

April 13, 2011 

Page 6 

Likewise, EPA also fails to properly evaluate information from the NPL, upon which the Agency 

relies in support of its prioritization of hardrock mining facilities’ “level of risk of injury.” 74 

Fed. Reg. at 37,217. EPA catalogs historic NPL hardrock mining sites in the Notice without 

making any connection between those legacy sites (many of which did not operate under current 

environmental regulatory strictures) and the potential for currently operating mining facilities to 

present a high risk of injury from future releases. In contrast, in its draft financial responsibility 

preliminary reports, EPA acknowledged this problem and altered its analysis of the NPL 

information accordingly. EPA, Draft CERCLA 108(b) Financial Responsibility, Phase I: 

Preliminary Analysis (Feb. 2009). In particular, EPA looked at the NPL sites and then 

performed three screening steps to “eliminate sites that would not likely be among EPA’s highest 

priority.” Id. at 1. The first step was to eliminate 143 facilities initially identified as RCRA 

treatment, storage, and disposal sites because they were already subject to financial assurance 

requirements. Id. at ES-2. EPA then eliminated 177 federal facilities site because they are 

excluded from programs requiring financial assurance and are self-insured. Id. (“EPA believes 

that the existing RCRA regulatory framework is the appropriate mechanism for addressing 

financial assurance responsibilities at these facilities.”). Finally, EPA chose to consider only 

those sites listed after 1990 in a limited attempt to avoid “legacy” contamination when 

identifying sites that still pose threats under modern waste regulations. Indeed, 1990 was chosen 

because at that time much of RCRA’s waste management standards were in place, many state 

programs were well-developed, and liability under CERCLA was understood. EPA did not take 

any of these steps or considerations in the Notice when (a) determining whether to prioritize 

hardrock mining for regulation under Section 108, and (b) figuring out what type of mining was 

appropriate for such regulation. 

B. EPA Should Consider the Impact of 

Current Regulatory Regimes on Risk

To the extent that EPA does evaluate risk in the Notice, it does so in a manner inconsistent with 

its own guidance. In the Agency’s “Risk Characterization Policy” and “Risk Characterization 

Handbook,” EPA emphasizes the importance of assessing risk realistically. EPA fails to 

realistically evaluate risk in the Notice, however, by failing to distinguish between historic 

environmental contamination and current conditions and the impact of current environmental 

protection regulations and mined land reclamation requirements. 

As suggested above, mining facilities, including phosphate mining operations, are subject to 

myriad federal, state, and local regulations requiring state-of-the-art control technologies, 

monitoring, best management practices, and institutional controls to prevent and address 

releases. Applicable federal laws include, but are not limited to, RCRA, the Clean Air Act, the 

Clean Water Act, Toxic Substances Control Act, the Mining Laws, Emergency Planning and 

Community Right-to-Know Act, and the Federal Land Policy and Management Act. Further, 

state laws impose additional, and often more stringent, requirements. The extensive and 

 

necessarily pose the greatest potential risk to the environment.” EPA, Toxic Release Inventory 2006 Public Data 

Release, Key Findings http://www.epa.gov/tri/tridata/tri06/pdr/key_findings_v12a.pdf. 
Ben Lesser, Senior Advisor 

April 13, 2011 

Page 7 

comprehensive regulations governing mining operations minimizes greatly the risk of 

environmental and public harm, and should be considered.7

 

Even sources relied on by EPA support this point. Specifically, EPA relies on several sources in 

the Notice for prioritizing hardrock mining facilities for regulation under CERCLA § 108(b). 

One such source is the National Research Council (NRC) report on hardrock mining. 74 Fed. 

Reg. at 37,215; see also Pub. L. No. 105-277, § 120, 112 Stat. 2681-257 (Oct. 21, 1998) (the 

NRC Report). While EPA cites language in the NRC Report which identifies the potential for 

environmental contamination from hardrock mining facilities, EPA ignores the NRC’s 

conclusion that regulations to address such contamination are “generally in place and 

updated...Therefore, the committee emphasizes that these potential impacts will not necessarily 

occur...[and] the overall structure of federal and state laws and regulations that provide miningrelated environmental protection is complicated but generally effective.” NRC Report at 3 & 27. 

The NRC Report makes explicit that broad new regulatory controls and additional, redundant 

financial assurance requirements are not necessary, given the already complicated and effective 

regulatory regime currently in place. 

CONCLUSION 

TFI appreciates your consideration of these comments on the Notice, and respectfully requests 

that they be given thought as EPA develops financial responsibility requirements under 

CERCLA. To that end, TFI requests that EPA proceed with stakeholder outreach regarding 

(a) the scope and definition of “hardrock mining,” (b) existing financial assurance requirements, 

and (c) risk assessment methodologies, or, at the very least, solicit public comment on the Notice 

and incorporate these comments into any proposed rule relating to regulation of hardrock mining 

facilities under CERCLA § 108. 

Please contact me by telephone at (202) 515-2706 or via e-mail at wcherz@tfi.org if you would 

like to further discuss our comments. 

 

7

 Even if EPA determined that financial responsibility requirements under CERCLA were appropriate for 

phosphate mining (which they are not), given the existing regulatory requirements associated with release 

prevention, remediation, and financial assurance, and the unique regulations and conditions associated with 

phosphate rock facilities, EPA should adopt requirements that are either coextensive with the industries’ existing 

state and federal regulations, or that are triggered only when the existing requirements fail to provide adequate 

guarantees of financial coverage of closure and clean-up costs. Further, consistent with Section 108(b)(2), any such 

requirements should afford the maximum degree of flexibility in terms of financial assurance mechanism (i.e., 

insurance, corporate guarantee, surety bond, letter of credit, or qualification as a self-insurer). 
Ben Lesser, Senior Advisor 

April 13, 2011 

Page 8 

Sincerely yours, 

William C. Herz 

Vice President, Scientific Programs