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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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EPA Update - Sue & Settle and WOTUS

Posted By Ariel Hill-Davis, Wednesday, October 25, 2017

Last week, EPA Administrator Scott Pruitt announced a significant change in policy at the Agency. Secretary Pruitt's Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, is aimed at ending the practices of setting regulatory deadlines and/or committing to undertake discretionary actions that are not required by statute through settlements with outside 3rd parties. Throughout the last Administration, environmental groups found great regulatory success by suing the EPA over purported failures to issue regulations by the dates required in the underlying statute or in a manner consistent with law. This practice became known as "Sue & Settle" and resulted in substantial regulatory action being undertaken due to settlement agreements rather than necessity. Under the new Directive the EPA must comply with the following guidelines when negotiating settlements:

The Agency Must:

  • Publish any notices of intent to sue the Agency within 15 days of receiving the notice;
  • Publish any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court within 15 days of receipt;
  • Reach out to and including any states and/or regulated entities affected by potential settlements or consent decrees;
  • Publish a list of consent decrees and settlement agreements that govern Agency actions within 30 days, along with any attorney fees paid, and update it within 15 days of any new consent decree or settlement agreement;
  • Forbidden from entering into any consent decrees that exceed the authority of the courts;
  • Exclude attorney’s fees and litigation costs when settling with those suing the Agency;
  • Provide sufficient time to issue or modify proposed and final rules, take and consider public comment; and
  • Publish any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.

To read the full Directive click here.

 

Waters of the US

The Waters Advocacy Coalition (WAC), of which IMA-NA and NISA are members, submitted comments to the Army Corps of Engineers related to the ongoing work of theDepartment of Defense Regulatory Reform Task Force. In accordance with Executive Order No. 13,777, each Department is currently reviewing existing regulations to determine which are unnecessary or overly burdensome, as currently written. WAC took the opportunity to submit comments to the record related to the 2015 redefinition of Waters of the United States. The comments are another avenue for the Coalition to work on correcting the overly expansive definition of Waters of the United States that was finalized in 2015. 

To read the comments click here

 

Finally, the EPA is continuing to conduct the sector specific listening sessions to solicit feedback on what a new redefinition of Waters of the United States should look like, ways the 2015 rule is flawed, and what a reasonable interpretation of jurisdictional scope should be. This Monday, EPA hosted the only in person listening session for small business entities. IMA-NA attended the meeting and is pleased to report back that the vast majority of oral comments offered were critical of the 2015 rule and in favor of a substantial redrafting.

The mining sector listening session is being held next Tuesday, October 31st, at 1pm EST. If you have not done so already please register to attend and contact Ariel Hill-Davis to coordinate comments.

 IMA-NA will also be offering written comments to the docket, which are due by November 28th. 

Tags:  comments  environment  EPA  Regulations  settle  sue  wotus 

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IMA-NA Urges Faster Confirmation of EPA Nominees

Posted By Ariel Hill-Davis, Tuesday, October 3, 2017

IMA-NA and NISA joined other industry groups in urging the Senate Committee on Environment and Public Works (EPW) to move forward expeditiously with the confirmations of the four EPA Assistant Administrators currently on the Committee's calendar. The Trump Administration still have a vast number of important positions within each Agency and Department that remain unfilled. While these positions remain vacant, or filled temporarily by career staff, the agencies are largely unable to move forward on important issues facing the nation. Tomorrow, October 4th, at 10am EST the EPW will be holding their hearing on the following nominees:

  • Michael Dourson, for EPA Assistant Administrator, Office of Chemical Safety & Pollution Prevention;
  • Matthew Leopold, for EPA Assistant Administrator, Office of the General Counsel;
  • David Ross, for EPA Assistant Administrator, Office of Water; and
  • William Wehrum, for EPA Assistant Administrator, Office of Air & Radiation.

You can watch the hearing live here

To read the industry letter urging swift confirmation of the nominees click here

Tags:  administration  Agency  confirmation  Department  EPA  hearing  nominee 

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Comments on EPA Asbestos Scoping Document

Posted By Mark Ellis, Monday, September 25, 2017

IMA-NA filed comments last week on EPA’s draft document, Scope of Risk Evaluation for Asbestos.  The scope document will be used in assessing the risks of asbestos under the Toxic Substances Control Act (TSCA).  The document will be central to EPA’s approach in conducting problem formulation, the next step in the process of the required risk evaluation for asbestos.  The IMA-NA comments stress the importance of EPA applying proper mineral science and up-to-date information whenever it addresses the generic term “asbestos.”  Significant and unnecessary confusion is inevitable if it does not.  The comments highlight instances where EPA inappropriately identified non-asbestiform mineral varieties of the six regulated forms of “asbestos” in the scope document as if they, too, were asbestos.  Specific nomenclature and analytical techniques were identified to assist EPA in making the necessary distinctions.

The comments (without the attachments), are attached below.

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Tags:  asbestos  EPA  risk assessment  scope document  TSCA 

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EPA Announces Public Meetings to Discuss the Definition of “Waters of the United States”

Posted By Ariel Hill-Davis, Tuesday, August 29, 2017

Following the EPA's announced proposal, in July, to withdraw the Obama Administration's "Waters of the US" (WOTUS) rule, the Agency will be working on a new proposal to define the jurisdictional reach of the Clean Water Act. Two weeks ago, the EPA and the Army Corps of Engineers announced the extension of the comment period on the proposal and then yesterday announced a series of public meetings throughout the fall to solicit stakeholder input. There will be ten public teleconferences held to solicit recommendations from different sectors for how to redefine the Waters of the US. In addition to the teleconferences there will be one in-person meeting for small entities, held in conjunction with the Small Business Administration. The mining sector meeting will be held on Tuesday, October 31 from 1-3pm EST. 

In addition to IMA-NA's ongoing work on our industry coalition and individual comments, staff will be participating in the meetings and encourages members to participate as well. 

To read more about the meetings and register click here.

 

Tags:  Army Corps of Engineers  EPA  Regulations  wotus 

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IMA-NA Files Comments on Nanomaterial Reporting Guidance

Posted By Mark Ellis, Tuesday, July 18, 2017

Last week IMA-NA filed comments on EPA’s draft guidance for reporting chemical substances when manufactured or processed as nanoscale materials.  The guidelines ultimately adopted are intended to implement the January 12, 2017 final rule.  IMA-NA pointed out that certain industrial minerals, principally phyllosilicates, form sheets capable of meeting the reportable nanoscale material size range of 1-100 nm in at least one dimension.  IMA-NA stressed that these materials are naturally occurring and their nanoscale sheet-forming capacity is inherent in the minerals themselves.  While EPA couples the size criterion with a requirement that the material also must exhibit unique and novel properties, IMA-NA regards the latter criterion as vague and recommended that it be defined as discontinuous change in chemical reactivity, electrical or catalytic properties.

The cover letter and comments are attached.


 Attached Files:

Tags:  EPA  guidance  nano  nanoscale  reporting  TSCA 

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IMA-NA Comments on CERCLA §108(b)

Posted By Mark Ellis, Wednesday, July 12, 2017

IMA-NA filed comments yesterday on EPA's CERCLA §108(b) notice of proposed rulemaking.  This rulemaking would establish financial assurance requirements for Superfund liability at individual hardrock mining facilities.   These financial assurances have the potential to be extremely costly . . . as in millions of dollars per industrial minerals facility.  The IMA-NA comments are specific to the industrial minerals sector.  IMA-NA also have been participating in a coalition of other hardrock mining trade associations, as well as trade associations representing industry sectors that EPA has indicated it likely next would subject to CERCLA §108(b) financial responsibility requirements (e.g., chemicals manufacturing, petroleum and coal products manufacturing, electrical power generation, transmission and distribution).  The coalition comments also are attached for your information.

 

Both the IMA-NA and coalition comments are attached.


Download File (PDF)

 Attached Files:

Tags:  CERCLA  Comments  EPA  Regulations 

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