COMMISSIONERS
Jim Berlow Program Implementation and Information Division Office of ResourceConservation and Recovery U .S. Environmental Protection Agency 1200 PennsylvaniaAvenue, N.W. (5303 P) Washington, DC 20004 Dear Mr. Berlow: GOV DAVID A PATERSON New York. Chairman GOV MARTIN O'MALLEY Maryland. Treasurer GOV BOB RILEY Alabarna GOV MIKE BEEBE Arkansas GOV PAT QUINN Illinois GOV MITCHELL E DANIELS Indiana GOV STEVEN L. BESHEAR Kentucky GOV BOBBY JINDAL Louisiana GOV JA Y NIXON Missouri GOV BEVERLY EAVES PERDUE North Carolina We arewriting as a follow up to a briefing that we received from you on July 7 concerning EP

A's CERCLA 1

08(b) rulemaking for the hardrock mining sector. There were several concernsfrom the statesfollowing the briefing that I want to bring to your attention. Most of theserelate to EP A's "Approach to Analysis" and "Significant Issues",

GOY JOHN HOEYEN NorthDakota

GOY TED STRICKLAND Ohio

GOY BRAD HENRY Oklahoma GOY EDW ARD G RENDELL Pennsylvania One of the most important issuesis the type of systemor approachbeing designedby EP

A to ensureimplementation of the Section 1 08(b) program. We understandthat one option under consideration by EP A is a single financial responsibility number that is applicable to an entire classof facilities. Our experience is that such a broad brush approachgenerally does not work well for mining operations andthat any financial responsibility program must be tailored to site specific conditions. It might be possible to develop a checklist ofkey componentsthat should be included in a financial responsibility program, but each mine will require a separateand independent analysis to determine the appropriate amount andtype of financial assurance, basedon a number of factors. Many state regulatory programs applicable to hardrock mines already contain many of these factors and we would be happy to discussthem with you in detail. GOY MARK SANFORD South Carolina
GOY PHIL BREDESEN Tennessee GOV RICK PERRY Texas In this regard, we believe that EP A should consider, aspart of its rulemaking, whether the hardrock mining sector should be considered a separateclassof facilities that are already permitted and bonded by stateregulatory authorities. For instance, many of the statestie their financial assurance programs to approved plans that addressreclamation, closure and post-closure obligations. In some cases, these requirements may cover more than the EP A program. Where the statesare not regulating thesefacilities, then EP A could exercise its 1

08(b) authority and establish separate financial responsibility requirements. However, where the stateshave programs in place that are no less stringent than what EP A might otherwise require, those programs should take precedenceand be deferred to by EP A. This approach would recognize that stateregulation effectively mitigates the "degree and duration of risk" associated

with that industry. SeeCERCLA Sec. lO8(b)(1). CiOV ROBERT F MCI)ONNELL Virginia GOV JOE MANCHIN III West Virginia
ASSOCIATE MEMBERS GOY SEAN PARNELL Alaska

GOY BILL RITTER Colorado GOY BILL RICHARDSON New Mexico GOY GARY R HERBERT Utah GOV DAVE FRJ::UDENTHAl Wyoming , EXECUTIVE DIRECTOR GREGORY CONRAD 445-A Carlisle Drive. Hemdon. V A 20170 Phone: 703/709-8654 Fax: 703/709-8655 Web Address: www.imcc.isa.us E-Mail: gconrad@imcc.isa.us or bbotsis@imcc.isa.us July 15,2010We understandthat EP A hashad one of its contractors looking at stateregulatory programs to detennine the types of financial responsibility programs that may already address EP A's "risky practices/classes." Nearlyall of the stateson the July 7 conference call had not been contactedby EP

A's contractor andthere was concern about whether EP A is receiving the correct information about our programs. Some stateshave also requestedmeetings with EP A to discussthe matter but have not yet had the opportunity to meet. IMCC would be willing, in this regard, to arrangefor a meeting between EP A and the mining statesto discussthis information in detail. Given the overlap with federal programs administered by the Bureau of Land Management andthe U.S. Forest Service, we believe it would be appropriate to include them in such a meeting aswell. Another significant issue raised during the briefing was the topic of preemption. The stateshave serious concernsabout how andthe degreeto which the preemption provision at Section 114 of CERCLA would be applicable to existing statefinancial assurance programs. If a mining operation was in compliance with EP A's financial responsibility requirements and was therefore deemedno longer subject to staterequirements basedon the preemption theory, such a result would undermine the effectiveness of significant components of stateregulatory programs. One example provided during the briefing involved a stategroundwater protection program that, without effective statefinancial assurance as a part thereof, would be significantly undermined. This will likely be repeatedin other statesaswell. Similarly, where a state's program covers more componentsthan the EP A program but is preempted by the latter, the result would be the gutting of the state's reclamation and closure plans, especially asthese aretied to financial obligations. It should be noted that statefinancial assurance programs may be structured so asto comingle funds for different obligations (reclamation, closure and post-closure), which in turn may result in a larger aggregateamount that would be available to the regulatory authority asneeded. This arrangementwould be distinctly different than what EP A appearsto be considering, whereby smaller amountswould be limited to more narrowly defined purposes,particularly if divided between stateand federal programs. The end result would be reduced environmental protection, increasedregulatory complexity, and a greater likelihood that some issuesand concernscould go unaddressed. During the briefing, EP A mentioned that it has developed infonnation on 51 statemining financial assurance

programs in 40 statesthat could be affected by preemption. We would be very interested in receiving and reviewing this infonnation. We would also be interested in reviewing any "model program" that EP A might consider developing to addressfinancial responsibility, particularly asthat program would interrelate with existing staterequirements. There were several other questions raised following the briefing including: What if a state's financial responsibility requirements are more stringent than EP A's? What happensin the caseof a forfeiture where there is sharedfinancial responsibility? What is the role ofBLM and the Forest Service with regard to EPA's proposed rulemaking, especially on public lands? .

.

-2. Are there mines currently regulated by the statesthat already would fall into the "highest

level of risk" aspresently defined by EP A under Section 1

08(b)? Has EP A allowed enoughtime in its proposed rulemaking timetable to adequately consider and addressall of the issuesthat attendthe rulemaking, particularly the state/federalinterplay regarding financial responsibilities requirements? .

In general,the statesbelieve that they currently have financial responsibility programs in place that areworking well and that should not be preempted by any program developed by EP A pursuant to Section 1

08(b) of CERCLA. While we recognize the fact that the statescannot be delegatedauthority under CERCLA, we assertthat EP A can defer to existing stateprograms that are aseffective as EPA's soon-to-be developed program. In this regard, we attach a resolution recently adoptedby the Western Governors' Association that addresses this issue. We believe that the best option for EP A to pursue at this point is the designation of those facilities that are already regulated by the statesas a separateclassof facilities that do not require EP A intervention. We welcome the opportunity to pursuethis option with you further.

&::A--A..1 A ..1 r:r:{:;;':'c::;-- Executive Director
cc. Ben Lesser

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