5/18/2018 CERCLA, Amigos Bravos

41 Pages·2017·0.41 MB·English

by  Gordon Sommers

______________________________________________________________________________) ________________
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 1 of 41
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
)
IDAHO CONSERVATION LEAGUE, )
EARTHWORKS, SIERRA CLUB, ) No. 18—1141
AMIGOS BRAVOS, GREAT BASIN
RESOURCE WATCH, and
)
COMMUNITIES FOR A BETTER )
ENVIRONMENT, )
)
UNITED STATES COURTOFAPPEALS
)
Petitioners FOR DISTRICTOFCOLUMBIACIRCUIT
)
v. FILED MAY 1 62018
)
SCOTT PRUITT, Administrator, U.S. )
Environmental Protection Agency, and
U.S. ENVIRONMENTAL )
PROTECTION AGENCY,
Respondents.
PETITION FOR REVIEW
Pursuant to section 113(a) ofthe Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9613(a), the All Writs Act,
28 U.S.C. § 1651(a), and Rule 15(a) ofthe Federal Rules ofAppellate Procedure,
Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin
Resource Watch, and Communities for a Better Environment petition this Court for
review ofa final action issued by Respondents Scott Pruitt and the U.S.
Environmental Protection Agency, at 83 Fed. Reg. 7556 (Feb. 21, 2018) and
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 2 of 41
entitled “Financial Responsibility Requirements Under CERCLA Section 108(b)
for Classes of Facilities in the Hardrock Mining Industry.”
Respectfully submitted this 16th day of May, 2018.
Amanda W. Goodin
Jan E. Hasselman
Jamini Parekh (Pending Admission)
EARTHJUSTICE
705 Second Avenue, Suite 203
Seattle, WA 98104-1711
[phone] | Phone
[phone] | Fax
[email protected]
[email protected]
[email protected]
Attorneys for Petitioners
Idaho Conservation League, Earthworks,
Sierra Club, Amigos Bravos, Great Basin
Resource Watch, and Communities For A
Better Environment
2
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 3 of 41
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
)
IDAHO CONSERVATION LEAGUE, )
)
EARTHWORKS, SIERRA CLUB, No.
18-1141
)
AMIGOS BRAVOS, GREAT BASIN
)
RESOURCE WATCH, and
)
COMMUNITIES FOR A BETTER )
ENVIRONMENT, )
)
)
Petitioners,
)
)
v.
)
)
SCOTT PRUITT, Administrator, U.S. )
Environmental Protection Agency, and )
)
U.S. ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents. )
)
CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and Circuit Rule 26.1, Petitioners make the
following disclosures:
Idaho Conservation League: Idaho Conservation League has no parent
companies, and no publicly held company has a ten percent or greater ownership
interest in Idaho Conservation League.
Idaho Conservation League, a corporation organized and existing under the
laws of the state of Idaho, is a national non-profit organization dedicated to
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 4 of 41
ensuring adequate protections for clean water and air, healthy families and Idaho’s
unique way of life.
Earthworks: Earthworks has no parent companies, and there are no
publicly held companies that have a ten percent or greater ownership interest in
Earthworks.
Earthworks, a corporation organized and existing under the laws of the
District of Columbia, is a national non-profit organization dedicated to protecting
communities and the environment from the adverse impacts of mineral and energy
development while promoting sustainable solutions.
Sierra Club: Sierra Club has no parent companies, and no publicly held
company has a ten percent or greater ownership interest in the Sierra Club.
Sierra Club, a corporation organized and existing under the laws of the state
of California, is a national non-profit organization dedicated to the protection of
our communities and the planet.
Amigos Bravos: Amigos Bravos has no parent companies, and no publicly
held company has a ten percent or greater ownership interest in Amigos Bravos.
Amigos Bravos, a corporation organized and existing under the laws of the
state of New Mexico, is a national non-profit organization dedicated to preserving
the ecological and cultural integrity of New Mexico’s water and communities.
2
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 5 of 41
Great Basin Resource Watch: Great Basin Resource Watch has no parent
companies, and no publicly held company has a ten percent or greater ownership
interest in Great Basin Resource Watch.
Great Basin Resource Watch, a corporation organized and existing under the
laws of the state of Nevada, is a national non-profit organization dedicated to
protecting the health and well-being of the land, air, water, wildlife and human
communities of the Great Basin from the adverse effects of resource extraction and
use.
Communities for a Better Environment: Communities for a Better
Environment has no parent companies, and no publicly held company has a ten
percent or greater ownership interest in Communities for a Better Environment.
Communities for a Better Environment, a corporation organized and existing
under the laws of the state of California, is a national non-profit organization
dedicated to preventing and reducing pollution and building green, healthy and
sustainable communities and environments.
//
//
3
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 6 of 41
Respectfully submitted this 16th day of May, 2018.

Amanda W. Goodin
Jan E. Hasselman
Jamini Parekh (Pending Admission)
EARTHJUSTICE
705 Second Avenue, Suite 203
Seattle, WA 98104-1711
[phone] | Phone
[phone] | Fax
[email protected]
[email protected]
[email protected]
Attorneys for Petitioners
Idaho Conservation League, Earthworks,
Sierra Club, Amigos Bravos, Great Basin
Resource Watch, and Communities For A
Better Environment
4
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 7 of 41
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
)
IDAHO CONSERVATION LEAGUE, )
)
EARTHWORKS, SIERRA CLUB, No.
18-1141
)
AMIGOS BRAVOS, GREAT BASIN
)
RESOURCE WATCH, and
)
COMMUNITIES FOR A BETTER )
ENVIRONMENT, )
)
)
Petitioners,
)
)
v.
)
)
SCOTT PRUITT, Administrator, U.S. )
Environmental Protection Agency, and )
)
U.S. ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents. )
)
CERTIFICATE OF SERVICE
I hereby certify that I have served the foregoing Petition for Review and
Rule 26.1 Disclosure Statement on Respondents by sending a copy via First Class
Mail to each of the following addresses on this 16th day of May, 2018.
Scott Pruitt
EPA Headquarters 1101A
United States Environmental Protection Agency
William Jefferson Clinton Federal Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 8 of 41

Jeff Sessions
United States Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Correspondence Control Unit
Office of General Counsel (2311)
United States Environmental Protection Agency
William Jefferson Clinton Federal Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

Heather Murphy
Litigation Assistant
Earthjustice
2
USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 9 of 41
7556 Federal Register/Vol. 83, No. 35/Wednesday, February 21, 2018/Rules and Regulations
ENVIRONMENTAL PROTECTION A. Overview of Section 108(b) and Other A. Executive Order 12866: Regulatory
AGENCY CERCLA Provisions Planning and Review and Executive
B. History of This Rulemaking Order 13563: Improving Regulation and
40 CFR Part 320 C. Recent Litigation Under Section 108(b) Regulatory Review
D. Hardrock Mining Priority Notice B. Executive Order 13771: Reducing
[EPA–HQ–SFUND–2015–0781; FRL–9971– E. Hardrock Mining Proposed Rule Regulation and Controlling Regulatory
50–OLEM] IV. Statutory and Record Support for This Costs
Final Rulemaking C. Paperwork Reduction Act
RIN 2050–AG61 A. Statutory Interpretation D. Regulatory Flexibility Act
B. Evaluation of the Administrative Record E. Unfunded Mandates Reform Act
Financial Responsibility Requirements 1. Reports on Risk Posed by Hardrock F. Executive Order 13132: Federalism
Under CERCLA Section 108(b) for Mining Facilities G. Executive Order 13175: Consultation
Classes of Facilities in the Hardrock 2. Federal and State Regulatory and Coordination With Indian Tribal
Mining Industry Requirements Governments
a. Federal Environmental Statutes H. Executive Order 13045: Protection of
AGENCY: Environmental Protection b. Federal Reclamation Laws Children From Environmental Health
Agency (EPA). c. Other Existing Regulatory Requirements and Safety Risks
3. Risk of Payments From the Fund I. Executive Order 13211: Actions That
ACTION: Final action. C. Comments Supporting a Final Significantly Affect Energy Supply,
Rulemaking Distribution, or Use
SUMMARY: The Environmental Protection D. Comments Opposing a Final J. National Technology Transfer and
Agency (EPA or Agency) is announcing Rulemaking Advancement Act
its decision to not issue final regulations 1. Comments Regarding Appropriateness of K. Executive Order 12898: Federal Actions
on its proposed regulations for financial Information Used To Address Environmental Justice in
responsibility requirements applicable a. Use of Information Not Relevant to the Minority Populations and Low-Income
to hardrock mining facilities that were Mines To Be Regulated Under the Rule Populations
published on January 11, 2017. b. Use of Data That Did Not Directly L. Congressional Review Act
This decision is based on the record Demonstrate Risk at Current Hardrock I. Executive Summary
Mining Operations
for this rulemaking. This final
2. Comments That EPA Failed To Consider A. Overview
rulemaking is the Agency’s final action
Relevant Information
on the proposed rule. EPA is announcing its decision on its
a. Comments Providing Information on the
DATES: This final action is effective on Role of Federal and State Programs and proposed regulations for financial
March 23, 2018. Protective Mining Practices in Reducing responsibility requirements applicable
ADDRESSES: EPA has established a Risks at Current Hardrock Mining to hardrock mining facilities that were
Operations published on January 11, 2017. EPA has
docket for this action under Docket ID
(1) Examples of Federal Programs decided not to issue final regulations
No. EPA–HQ–SFUND–2015–0781. All
(2) Examples of State Programs because the Agency has determined that
documents in the docket are listed on b. Comments Providing Information on final regulations are not appropriate.
the https://www.regulations.gov Reduced Costs to the Taxpayer Resulting
This decision is based on EPA’s
website. Although listed in the index, From Effective Hardrock Mining
interpretation of the statute and analysis
some information is not publicly Programs and Owner or Operator
of its record developed for this
available, e.g., Confidential Business Responses
Information (CBI) or other information E. Evidence Rebutting EPA’s Site Examples rulemaking. EPA has analyzed the need
1. Example of Sites Now Not Relevant to for financial responsibility based on risk
whose disclosure is restricted by statute.
the Mines To Be Regulated Under the of taxpayer funded cleanups at hardrock
Certain other material, such as
Rule mining facilities operating under
copyrighted material, is not placed on
2. Example Reflecting Reassessment of modern management practices and
the internet and will be publicly Costs to the Taxpayers Based on modern environmental regulations, i.e.,
available only in hard copy form. Additional Information
the type of facilities to which financial
Publicly available docket materials are 3. Example Where Program Requirements
responsibility regulations would apply.
available electronically through https:// Were Subsequently Modified To Address
That risk is identified by examining the
www.regulations.gov. the Problem
F. Information Regarding Financial management of hazardous substances at
FORFURTHERINFORMATIONCONTACT: Responsibility Instrument Availability such facilities, as well as by examining
Office of Resource Conservation and V. Decision to Not Issue the General Facility federal and state regulatory controls on
Recovery, Mail Code 5303P, Requirements of Subparts A Through C that management and federal and state
Environmental Protection Agency, 1200 in This Final Rulemaking financial responsibility requirements.
Pennsylvania Avenue NW, Washington, VI. Obstacles to Developing and With that focus, the record demonstrates
DC 20460; Barbara Foster, (703) 308– Implementing Section 108(b) Financial that, in the context of CERCLA section
7057, [email protected]; or Responsibility Requirements for 108(b), the degree and duration of risk
Michael Pease, (703) 308–0008, Hardrock Mining Facilities associated with the modern production,
A. Potential Disruption of State, Tribal, or
[email protected]. Local Mining Programs transportation, treatment, storage or
SUPPLEMENTARYINFORMATION: B. Challenges To Determine the Level of disposal of hazardous substances by the
Financial Responsibility hardrock mining industry does not
Table of Contents
C. Concerns Regarding Costs and Economic present a level of risk of taxpayer
I. Executive Summary Impacts of the Proposed Rule funded response actions that warrant
S2 A. Overview 1. Overall Concerns Regarding Cost and imposition of financial responsibility
E
UL B. Purpose of the Regulatory Action Economic Impact requirements for this sector. This
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B2P Action Responsibility Instrument Availability evaluation of the record for the
V9H II. Authority E. Challenges To Identify the Facility proposed rule, and the public comment
BB III. Background Information VII. Statutory and Executive Order Reviews received by EPA.
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USCA Case #18-1141 Document #1731736 Filed: 05/16/2018 Page 10 of 41
Federal Register/Vol. 83, No. 35/Wednesday, February 21, 2018/Rules and Regulations 7557
The decision not to issue final the classes for which it would first for section 108(b) regulations.7Instead,
regulations will address the concerns of develop financial responsibility the proposed rule would have
those federal and state regulators and requirements based on consideration of considered other programs only after
members of the regulated community many factors, including factors financial responsibility requirements are
who commented that the proposed unrelated to modern facilities, such as imposed, as a means to reduce such
requirements were unnecessary and legacy contamination, and factors not requirements. EPA now believes that it
would, therefore, impose an undue demonstrating risk, in and of is appropriate to consider such
burden on the regulated community. themselves, such as Toxic Release programs at the outset, when evaluating
This decision will provide assurance to Inventory (TRI) reports under both the degree and duration of risk
state regulators who were concerned Superfund Amendments and associated with the production,
that the proposed requirements would Reauthorization Act of 1986 (SARA) transportation, treatment, storage, or
be disruptive of state mining programs. section 313. disposal of hazardous substances as
This decision also will address the On January 11, 2017, the Agency well as when evaluating the risk of
information provided by the insurance published proposed financial taxpayer financed response costs.
industry regarding the lack of responsibility requirements applicable EPA’s final action on the proposed
availability of financial instruments that to hardrock mining facilities.4The rule is a decision not to promulgate it.8
meet the requirements of section proposal identified two goals for section As explained below, EPA has
108(c)(2). This decision is based on the 108(b) regulations—the goal of reconsidered whether the rulemaking
record for this rulemaking, and does not providing funds to address CERCLA record supports the proposed rule in
affect the process for site-specific risk liabilities at sites, and the goal of light of the Agency’s interpretation of
determinations, or determinations of the creating incentives for sound practices the statute, the Agency’s evaluation of
need for a particular CERCLA response, that will minimize the likelihood of the record, and the information and data
at individual sites, nor does this need for a future CERCLA response. As received through public comment. As a
decision affect EPA’s authority to take discussed below, EPA now believes that result of this reconsideration, EPA has
appropriate CERCLA response actions. these goals have been met for the determined that the rulemaking record
Decisions on risk under other hardrock mining classes of facilities. it assembled does not support imposing
environmental statutes would continue The proposal identified for public financial responsibility requirements
under those statutes. This final comment a range of options and under section 108(b) on current
rulemaking is the Agency’s final action supporting information, as described in hardrock mining operations. This
on the proposed rule. the proposed rule preamble.5The determination is based on information
in the record on the degree and duration
B. Purpose of the Regulatory Action proposed rule set forth, in proposed 40
of risk posed by modern production,
CFR part 320, subparts A through C,
Section 108(b) of the Comprehensive transportation, treatment, storage or
requirements for a comprehensive
Environmental Response, disposal of hazardous substances at
financial responsibility program under
Compensation, and Liability Act mining sites operating under modern
section 108(b) that would be applicable
(CERCLA), also known as Superfund, regulations that demonstrates that
to hardrock mining facilities as well as
directs EPA to develop regulations that financial responsibility requirements are
to future industry sectors for which
require classes of facilities to establish not necessary to address the risk of
requirements under section 108(b) are
and maintain evidence of financial taxpayer financed response actions at
later developed. In addition, the
responsibility consistent with the degree hardrock mines. EPA has reconsidered
proposed rule set forth, in proposed part
and duration of risk associated with the its assessment of the risks posed by
320, subpart H, requirements
production, transportation, treatment, hardrock mining operations presented
specifically applicable to hardrock
storage, or disposal of hazardous in the proposed rule, and determined
mining facilities.
substances. The statute further requires that that assessment did not adequately
EPA provided information and
that the level of financial responsibility consider the degree to which existing
analysis demonstrating releases and
be established to protect against the federal and state regulatory programs
potential releases of hazardous
level of risk the President, in his and improved mining practices at
substances at hardrock mining facilities.
discretion, believes is appropriate, modern mines reduce the risk that there
EPA also discussed the relationship of
based on factors including the payment would be unfunded response liabilities
section 108(b) to other federal law and
experience of the Fund. The President’s at currently operating mines.
to state law.6However, despite making
authority under this section for non- Furthermore, EPA notes that even under
a commitment to do so in the notice
transportation-related facilities has been the analysis in the proposed rule, the
entitled ‘‘Identification of Priority
delegated to the EPA Administrator.1
Classes of Facilities for Development of
In a Federal Register notice dated July 774 FR 37219 and n. 50.
CERCLA Section 108(b) Financial
28, 2009,2EPA identified the classes of 8EPA has made editorial changes to this
facilities within hardrock mining3as Responsibility Requirements’’ (2009 document from the prepublication version,
Priority Notice), published on July 28, including replacing various references to the action
2009, in the development of the being a ‘‘final rule,’’ in accordance with the Office
1See E.O. 12580, 52 FR 2923 (January 23, 1987). of the Federal Register’s (OFR) interpretations of its
proposed rule the Agency did not
2Identification of Priority Classes of Facilities for implementing regulations (1 CFR 5.9 and parts 21
Development of CERCLA Section 108(b) Financial consider other federal and state and 22), the Federal Register Act (44 U.S.C. chapter
Responsibility Requirements, 74 FR 37213, July 28, programs when determining the need 15) and Document Drafting Handbook. OFR
2009. regulations, however, expressly disclaim a legal
S2 3For purposes of this final rulemaking, EPA effect from these publication requirements. ‘‘In
RULE ifnaccilluitdieess iwnictlhuidne tdh ein t etrhme d‘‘ehfainrditrioocnk omf itnhiant gt’e’r tmhe CE4RFCinLaAn cSieaclt Rioens p1o0n8s(bib) ifloitry C Rlaesqsueisr eomf Fenactsi lUitinedse irn pprreesacmribbliensg, erfefgeucltaivtieo dnast geos,v aeurnthinogri htye acditiantgiosn, s, and
with developed for purposes of the Priority Notice, that the Hardrock Mining Industry, 82 FR 3388, January similar matters of form, the Administrative
OD is, facilities that extract, beneficiate, or process 11, 2017. Committee does not intend to affect the validity of
PR metals (e.g., copper, gold, iron, lead, magnesium, 5See 82 FR 3388, January 11, 2017. any document that is filed and published under
B2 molybdenum, silver, uranium, and zinc), and non- 682 FR 3402–03 (concluding that section 108(b) law.’’ 1 CFR 5.1(c). Accordingly, these editorial
H
V9 metallic non-fuel minerals (e.g., asbestos, gypsum, applies even when a facility is subject to financial changes do not affect the legal status of the action
BB phosphate rock, and sulfur). responsibility requirements under federal law). as a final regulation under CERCLA.
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