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Senate Confirms Andrew Wheeler as 2nd at EPA

Posted By Ariel Hill-Davis, Friday, April 13, 2018
Yesterday the Senate confirmed Andrew Wheeler as Deputy Administrator of the Environmental Protection Agency (EPA) by a vote of 53-45. Democratic Senators Manchin (WV), Heitkamp (ND), and Donnelly (IN) broke party lines to vote in favor of Andrew Wheeler.  Neither Senator Duckworth (IL) nor Senator McCain (AZ) were in town to vote. Wheeler has been one of several controversial nominees President Trump has put forward to lead the EPA. The controversy stems from Wheeler's previous work both for as Chief of Staff for Senator Inhofe, a vocal climate change skeptic, and his work as a lobbyist for Murray Energy, a coal company. As Deputy Administrator Wheeler will be Administrator Pruitt's second in command of the EPA. Critics argued Wheeler's existing relationships made him unfit to help lead the agency in charge of protecting the environment. He was nominated in November and was voted out of the Senate Committee on Environment and Public Works (EPW) in February. This Administration continues to have many vacancies in important roles throughout the government. IMA-NA is happy to see Andrew Wheeler confirmed and hopes this allows the EPA to continue its important work unrestricted by gaps in staffing. 

Tags:  Administration  Andrew Wheeler  confirmation  EPA  nomination  Pruitt 

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Final Agency Action on CERCLA 108(b) Rulemaking

Posted By Mark Ellis, Wednesday, February 21, 2018
Updated: Wednesday, February 21, 2018

Through a Federal Register notice published today, EPA took final agency action on its rulemaking under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) with respect to the hardrock mining industry.  EPA decided not to issue final regulations because the agency determined that final regulations are not appropriate.  EPA analyzed the need for financial responsibility based on the risk of taxpayer funded cleanups at hardrock mining facilities under modern management practices and modern environmental regulations, i.e., the type of facilities to which financial responsibility regulations would apply.  EPA determined that the degree and duration of risk associated with modern production, transportation, treatment, storage or disposal of hazardous substances does not present a level of risk of taxpayer funded response actions that warrant imposition of financial responsibility requirements for this sector.  The several billion dollars in financial assurance estimated under the proposed rule at a cost of hundreds of millions of dollars would have severely impacted the mining industry in the U.S.  Today’s Federal Register notice is the agency’s final action on the proposed rule.  Environmental groups may challenge the agency’s final action, but given the broad discretion granted the EPA under the statute they will face an uphill battle.

A copy of the Federal Register notice is attached.


Download File (PDF)

Tags:  108(b)  CERCLA  EPA  hardrock mining  Superfund 

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President Trump Releases FY19 Budget Proposal & Congress Passes 2-Year Budget

Posted By Ariel Hill-Davis, Monday, February 12, 2018

This morning President Trump released his Administration's budget proposal for FY19. The Administration's budget comes on the heels of the passage of Congress's 2-year budget package. President Trump signed the deal into law Friday morning following it's passage late Thursday night. Congress's package raises budget caps by $300 billion in the next two years, increases the debt ceiling and includes nearly $90 billion in disaster relief for hurricane-ravaged Texas, Florida and Puerto Rico. Of the $300 billion, roughly $165 would go to the Pentagon with $131 billion earmarked for non-defense programs. 

President Trump's budget lays out plans for a $3.6 trillion in deficit reduction over 10 years while simultaneously directing more funding to the Department of Defense. In many ways the FY19 budget proposal is similar to the FY18 proposal. It is interesting to note the Administration is pushing a focus on infrastructure across it's budget proposal, most likely as a way to sync the budget requests up with the infrastructure package. Below are some specific points of interest from the proposal, as each Department holds listening sessions IMA-NA staff will keep you updated on aspects of importance.

EPA

  • The Administration is asking for a further reduction of 34% in funding for the EPA. This would cap the Agency's budget at $5.4 billion for FY19. 
  • There is an emphasis on water infrastructure programs, to provide clean drinking water and provide necessary updates on wastewater infrastructure.
  • There is an increased focus on cooperative federalism as a way to improve EPA's enforcement efforts. This also includes a return to the EPA's core mission, and the continued defunding of "lower priority programs". 

Department of Commerce

  • The Administration is asking for $9.8 billion for the DOC, which would be an increase of 6% over FY17 enacted funding.
  • There is increased funding for the International Trade Administration to "allow ITA to conduct robust investigations into alleged trade violations, aggressively advocate for U.S. businesses facing tariff and non-tariff barriers abroad, and increase the capacity to closely review proposed foreign investments in U.S. businesses."
  • DOC's focus will continue to be promoting free and fair trade which has been a cornerstone of President Trump's vision for the country. 

Department of Labor

  • The Administration is asking for $9.4 billion for DOL, a $2.6 billion or 21-percent decrease from the 2017 enacted level.
  • The President is asking for a budget of $376 for MSHA in FY19. The number is consistent with the FY18 request from the Administration.
  • There is a renewed focus on using DOL funding to help move the needle on workforce development. There is $200 million flagged for increasing apprenticeship programs, language to reform Job Corps, and simplify and consolidate existing federal workforce development programs. 

Department of Interior

  • The Administration is requesting $11.3 billion for DOI, which is a $2.2 billion or 16-percent decrease from the 2017 enacted level.
  • The DOI will continue to focus on the President's call for Energy Dominance, working to manage development of public lands, increase revenues, and streamlining permits.
  • There is a focus on infrastructure in this request, noting that DOI manages an infrastructure portfolio valued at over $300 billion and much of it is in need of maintenance and investment.
  • Secretary Zinke gained the President's support to massively reorganize the Department. The budget asks for $18 million to fund the internal restructuring of DOI.
  • Funding for USGS is being cut by approximately $218 million overall, but the Administration asked for an increase of $11.5 million for the Minerals and Energy Resources Program.

To look at the President's Budget Proposal click here

Tags:  administration  budget  commerce  department of interior  EPA  msha  usgs 

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EPA and Corps Finalize WOTUS Applicability Date

Posted By Ariel Hill-Davis, Wednesday, January 31, 2018

Today, the EPA and Army Corps of Engineers announced they have finalized the WOTUS applicability date proposal. The importance of the finalization of this extension of the applicability of the 2015 WOTUS rule cannot be understated. Last week's Supreme Court ruling opened the possibility for the 2015 Rule to go into effect, once the 6th District's nationwide stay was lifted.  Since the nationwide stay was issued, waters have continued to be protected under the pre-existing WOTUS definition and state rules, and the government has issued over 21,000 determinations establishing federal jurisdiction under the pre-existing WOTUS definition.  Luckily Administrator Pruitt and the EPA had the foresight to issue a proposal to push the applicability of the 2015 Rule for two years, while the EPA and Army Corps of Engineers propose and finalize a new version and interpretation of "waters of the US". Just last week the applicability proposal was sent over to OMB for review and there was a question whether the Administration would be able to finalize the applicability date in time.

This rule is a prudent and measured step to preserve the status quo and provide regulatory continuity for all stakeholders while EPA and the Corps engage in rulemaking to consider whether to repeal the 2015 rule and, if so, how to replace the 2015 Rule with a new well-founded, protective, and clear definition of WOTUS.

IMA-NA and our coalition partners are pleased by the EPA’s and the Corps’ quick action to avoid needless regulatory uncertainty and legal risk for mining and farming operations, developers, small businesses, and other land owners.  Absent this action by the agencies, the result would be months of additional litigation, regulatory chaos, and legal risk for countless land owners. 

To read the Final Rule click here

To read the Press Release click here

Tags:  Army Corps of Engineers  Clean Water Act  EPA  Regulations  Regulators  WOTUS 

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EPA Announces Withdrawal of "once-in, always-in" policy

Posted By Ariel Hill-Davis, Monday, January 29, 2018

On Friday, the EPA announced the withdrawal of a decades old classification policy under the Clean Air Act. The policy of "once-in, always-in" has been the standard for designating sources of air emissions as either "major sources" or "area sources", since 1995. The EPA defines the two classifications in the following manner: 

a “major source” as a one that emits, or has the potential to emit, 10 tons per year of any hazardous air pollutant, or 25 tons per year or more of any combination of hazardous air pollutants. Sources with emissions below this threshold are classified as “area sources.” Different control standards apply to the source depending on whether or not it is classified as a “major source” or an “area source.”

The policy of "once-in, always-in" meant that if sources crossed the threshold into the major source designation, the facility could never be considered an area source again. Stakeholders have argued this policy disincentivizes companies from working towards lowering their emissions once they've been classified as "major sources". The ability for companies and facilities to bring their emissions down to lower levels and have their status reflect those efforts is a positive step in providing more regulatory flexibility. The EPA hopes this will incentivize emissions reductions and will reduce regulatory inefficiency and burden. Opponents of this decision hold the opinion this change in policy is simply loosening air emissions standards for polluters. 

IMA-NA is supportive of EPA's ongoing work to update and revise their regulatory framework to provide commonsense policies that balance environmental protections with good business practices.

To read the press release click here

Tags:  clean air act  environment  EPA  Regulations  regulatory agenda 

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Supreme Court Rules on the Waters of the US Case

Posted By Ariel Hill-Davis, Monday, January 22, 2018

This morning the Supreme Court issued their ruling in the Waters of the US case related to which courts have jurisdictional primacy in challenges to the Clean Water Act. The Court was of the unanimous opinion that challenges must be reviewed in federal district courts first rather than in the appeals courts. The promulgation of the 2015 Clean Water Rule set off litigation across the country in both district and appeals courts. The Supreme Court decision provides clarity on where to go to resolve disputes. The choice of court is significant because it affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings.

The court found in favor of the National Association of Manufacturers, who brought the suit along with several states, industrial stakeholders, and some environmental groups. The Administration and some other environmental groups were on the losing side of this decision. This outcome complicates the current push to repeal and replace the 2015 Rule. With this ruling the 6th District's nationwide stay is thrown into question. While EPA Administrator Pruitt took action to prevent the immediate implementation of the 2015 Rule, in the event of this decision from the Supreme Court, next steps are uncertain at this point. The EPA issued a proposal in December to add a so-called applicability date to the regulation, meaning it could not be enforced until 2020. This proposal should theoretically provide the EPA enough time to finish and finalize a new version of the Clean Water Rule, without the 2015 Rule being enforceable in the interim. As we have been from the beginning IMA-NA and the Waters Advocacy Coalition will remain engaged as the next steps become clearer.

To read the Supreme Court opinion click here

Tags:  Clean Water Act  EPA  regulation  Regulations  SCOTUS  supreme court  wotus 

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CERCLA 108(b) Financial Assurances Not Warranted

Posted By Mark Ellis, Monday, December 4, 2017

On December 1, EPA Administrator Scott Pruitt signed a Federal Register notice to inform the public of EPA’s decision not to issue final regulations imposing financial responsibility requirements on the hardrock mining industry.  EPA concluded that based on its interpretation of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund) and its analysis of the rulemaking record before it, based on its January 11, 2017 notice of proposed rulemaking, that any final regulations are not appropriate.

EPA analyzed the need for financial responsibility based on the risk of taxpayer-funded cleanups of hardrock mining facilities operating under modern management practices and modern environmental regulations.  The Agency concluded that the degree and duration of risk associated with the modern production, transportation, treatment, storage or disposal of hazardous substances by the hardrock mining industry does not present a level of risk of taxpayer-funded response actions that warrant imposition of financial responsibility requirements for this sector.

The CERCLA 108(b) rulemaking was IMA-NA’s highest regulatory priority this year.  The proposed rule had the potential to impose millions of dollars of unneeded financial responsibility requirements on individual industrial minerals facilities.  IMA-NA congratulates EPA on making the proper decision based on the statute and the rulemaking record before it.

A pre-publication version of the final action pending publication in the Federal Register is attached.


Download File (PDF)

Tags:  108(b)  CERCLA  EPA  final agency action  financial assurances  financial responsibility requirements  Superfund 

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Senate Releases FY18 Interior and Environment Appropriations Bill

Posted By Ariel Hill-Davis, Tuesday, November 21, 2017

On Monday, November 20th, the Senate Committee on Appropriations released the Chairman's recommendations for the FY18 budgets for the Department of the Interior, Environment, and Related Agencies.  The bill contains many expected recommendations including, cuts to the Environmental Protection Agency (EPA) and U.S. Fish and Wildlife Service (FWS), and some notable differences from President Trump's proposed budget such as, maintaining FY17 funding levels for the National Endowments for the Arts and Humanities and increasing funding for Indian Affairs. The understood desire is to restore the EPA and affiliated agencies to a more traditional understanding of the mission to clean up the environment.  Additionally, the bill leans towards funding for programs that encourage infrastructure investment and responsible land development.

Of particular note is the preservation of funding for the US Geological Survey (USGS) at FY17 levels and in fact, a slight increase in funding for the Minerals Resources programs. As a member of the Minerals Science and Information Coalition (MSIC), IMA-NA has been active in fighting for renewed investment in the important work at USGS, which has been steadily decreased for the last 30 years. We commend the Committee's decision and Senator Murkowski's particular commitment to the investment in minerals science. 

To read the press release from the Committee click here 

To read the full proposal click here

Tags:  appropriations  budget  DOI  environment  EPA  minerals science  MSIC  Senate 

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EPA Proposes Delay in WOTUS Implementation Pending Supreme Court Decision

Posted By Ariel Hill-Davis, Thursday, November 16, 2017

Today, Secretary Pruitt signed a proposal to further delay the effective date of the 2015 Waters of the US (WOTUS) rule for 2 years. This proposal is geared towards ensuring the 2015 WOTUS rule does not go into effect in the event the Supreme Court (SCOTUS) decision in National Association of Manufacturers v. Department of Defense, is that WOTUS-related legal challenges must first go through district courts rather than jumping straight to the appellate level. A decision that challenges must pass through district courts first would effectively overturn the 6th Circuit's nationwide stay.  Thirteen states would still be under a stay issued by a judge out of North Dakota, but in theory the 37 remaining states would find themselves needing to abide by the 2015 WOTUS rule. Secretary Pruitt's action ensures the EPA has time to finalize the withdrawal of the 2015 rule and the new definition of Waters of the US. The EPA is currently working on a timeline to have a final proposal for the new rule by the end of 2018, while an ambitious goal officials have reassure IMA-NA and other industry leaders that the Agency is on track. 

To read the EPA announcement and Proposal click here

Tags:  Clean Water Act  EPA  Regulations  wotus 

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Senate Confirms Two More Nominees

Posted By Ariel Hill-Davis, Wednesday, November 15, 2017

Today, the Senate voted to confirm David Zatezalo, by a vote of 52-46, as the Assistant Secretary of Labor for Mine Safety and Health. David Zatezalo comes to MSHA from the coal industry, having worked his way up to President and CEO of Rhino Resources before retiring in 2014. This confirmation marks an important step in continuing to full staff the new Administration. As with many of the other Departments and Agencies, the lack of an Assistant Secretary limited MSHA's ability to proactively pursue President Trump's agenda in mine safety and health. IMA-NA is looking forward to working with Assistant Secretary Zatezalo, introducing him to the world of industrial minerals, finding opportunities to promote mine safety and, strengthening the IMA-NA/MSHA Alliance.  

The confirmation of Assistant Secretary Zatezalo is the second recent confirmation. Last Thursday, the Senate confirmed William Wehrun, by a party line vote of 49-47, to be the Assistant Administrator for EPA’s Office of Air and Radiation. Wehrun is the first EPA Assistant Administrator to make it through the confirmation process. President Trump's nominees for the EPA have been more controversial due to their ties with industry and therefore have been caught up in the confirmation process.  At this point there are 5 nominees for important roles within the EPA that still need to be confirmed. 

• Susan Bodine, for EPA Assistant Administrator, Office of Enforcement and Compliance Assurance
• Michael Dourson, for EPA Assistant Administrator, Office of Chemical Safety and Pollution Prevention
• Matthew Leopold, for EPA Assistant Administrator, Office of General Counsel
• David Ross, for EPA Assistant Administrator, Office of Water
• Andrew Wheeler, for EPA Deputy Administrator

IMA-NA is happy to see the Senate confirm two more important positions within the Administration and continue to urge action on the rest of the nominees.

Tags:  confirmation  Congress  EPA  MSHA  nominee 

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