On January 11, 2017, the US Environmental Protection Agency (EPA) published a proposed rule pursuant to Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or Superfund), mandating extensive and costly financial assurance requirements applicable to the hardrock mining and mineral processing industry. On the same day, EPA also announced plans to commence rulemaking to consider similar requirements for additional classes of facilities in the petroleum and coal, chemical manufacturing, and electric power generation, transmission and distribution sectors. Both proposals derive from a series of lawsuits culminating in a “sue and settle” order of the DC Circuit Court of Appeals affirming a schedule agreed to between EPA and various environmental groups to issue financial assurance regulations.

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