“To ensure mining corporations, and not taxpayers, pay to clean up their own multi-billion dollar messes EPA needs to look at the fiasco unfolding right now as coal mining companies go bankrupt and threaten to leave taxpayers with the cleanup bill,” said report author Stu Levit of the Center for Science in Public Participation. He continued, “To guarantee mine clean-up, before metal mining begins EPA must require that operators put up a meaningful clean-up bond or cash equivalent, not just a company’s promise.”

Although the metal mine rules are currently under development, the US does have experience with coal mine clean-up through the Interior Department’s coal mine clean-up agency, the Office of Surface Mining Reclamation and Enforcement. As of 2016, this agency claims to be ‘holding’ $3.86 billion in self-bonds; these are company promises, not real money. Over $2.4 billion of these self-bonds were issued by companies currently in bankruptcy.

EPA’s draft rules for metal mining will be released for public comment by December 1, 2016. Making Polluters Pay makes concrete recommendations to ensure these rules protect taxpayers from the risk of covering costly metal mine clean-ups, including:

EPA must not allow “self-bonding” or corporate guarantees.

Sites that require water treatment for more than one hundred years, or “in perpetuity,” must be prioritized.

The detailed calculation of the financial assurance must be accurate and complete.

Deductions for engineering controls must be clearly demonstrated to reduce the estimated costs of clean-up and financial assurance.

Public review at all phases of the financial assurance process must be an integral part of the rules.

CERCLA is the nation’s law for the cleanup of hazardous substances. One provision of this law—section 108(b)—requires EPA to ensure that companies that could potentially create future toxic sites remain financially capable of cleanup. After a lawsuit, the federal D.C. Circuit Court of Appeals required EPA to write rules to implement section 108(b) to prevent the common problem of companies creating toxic sites and then declaring bankruptcy, leaving taxpayers to foot the bill for cleanup and often causing the cleanup of dangerous sites to be delayed indefinitely.

“Properly written, these rules will protect the public from mine waste disasters like the Gold King spill that polluted the Colorado River watershed last summer,” said Earthworks’ Northwest Program Director Bonnie Gestring. She continued, “By requiring mine owners to financially guarantee mine clean-up ahead of time, mine cleanups won’t languish until they turn into crises.”