FINANCIAL ASSURANCE FOR HARDROCK MINING: EPA AND CERCLA

Murphy discusses the financial assurance for hardrock mining. The section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) imposes a mandatory duty on Environmental Protection Agency (EPA) to require financial assurances from hardrock mining operators. EPA's duty comes with significant discretion as to how it establishes financial assurance amounts and which instruments it accepts. When exercising this discretion, EPA must be cognizant of the potential preemptive effect of section 114(d), the nature and economic role of the industry, and the normative question underlying financial assurance requirements.