D.C. Circuit Victory on Nationwide Mining Rule


On July 19, 2019, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a unanimous Opinion agreeing with intervenors and EPA that a first-of-a-kind rulemaking under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was not legally necessary or appropriate.  That rulemaking threatened to impose burdensome and misguided “financial responsibility” requirements across the mining industry, including at facilities that produce key fertilizers like phosphate and potash.  Gallagher & Kennedy attorneys Chris Leason and Andrew Dudley represented The Fertilizer Institute (TFI) as a commenter in the rulemaking, and then as an intervenor in the D.C. Circuit litigation.  The D.C. Circuit ultimately agreed with the positions that TFI had expressed for years:  EPA had ample evidence to reject the contemplated “financial responsibility” requirements because they overlooked modern mining practices and the robust state and federal environmental regulatory programs that already govern mining facilities.