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Federal Court Rules Against EPA on WOTUS Applicability Date

Posted By Ariel Hill-Davis, Friday, August 17, 2018

Yesterday, the United States District Court in South Carolina issued a nationwide injunction against the Environmental Protection Agency's (EPA) Waters of the United States (WOTUS or the 2015 rule) Applicability Date Rule. The court found that the EPA violated rule-making procedures in finalizing a rule to push the implementation date of the 2015 rule back to 2020. The Applicability Rule was the EPA's attempt to ensure continuity of standards across the country while the new definition is finalized, in the face of the Supreme Court decision which overturned the nationwide stay of the 2015 Rule. Thursday's decision, in effect, creates a regulatory patchwork related to the WOTUS. There are 26 states that will now operate under the 2015 Rule, while 24 states still have injunctions against the 2015 Rule. 

The EPA is currently in the process of finalizing the full repeal of the 2015 Rule, but the ruling in South Carolina creates a situation of extreme regulatory uncertainty related to the Clean Water Act. Additionally, there is still the slim possibility that WOTUS could be repealed legislatively as the Banks Amendment is attached to the House Farm Bill. The Farm Bill will be going through conference this fall, so there is a chance, albeit a small one, that the repeal could happen legislatively rather than through the EPA. IMA-NA and other stakeholders are working to get decisions as quickly as possible. 

This court decision could cause serious problems for companies, organizations, and individuals working through a permitting process in any of the 26 states now functioning under the 2015 Rule. If you already are holding water permits in these 26 states, this will not cause immediate impacts, but the process is likely going to become more complicated and difficult as states are forced to comply with the old WOTUS rule. Below is the list of the 26 states impacted by yesterday's decision. 

  1. California
  2. Connecticut
  3. Delaware
  4. Florida
  5. Hawaii
  6. Illinois
  7. Iowa
  8. Louisiana
  9. Maine
  10. Maryland
  11. Massachusetts
  12. Michigan
  13. Minnesota
  14. New Hampshire
  15. New Jersey
  16. New York
  17. Ohio
  18. Oklahoma
  19. Oregon
  20. Pennsylvania
  21. Rhode Island
  22. Tennessee
  23. Texas
  24. Vermont
  25. Virginia
  26. Washington

Tags:  Clean Water Act  court  EPA  injunction  Regulations  wotus 

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Court Rules Against 2015 WOTUS Rule

Posted By Ariel Hill-Davis, Monday, June 11, 2018

On Friday, June 8th, a federal judge in Georgia granted a preliminary injunction against the Obama administration's 2015 Waters of the United States rule. The ruling issued by Judge Lisa Godbey Wood for U.S. District Court for the Southern District of Georgia found that the 11 states, which filed the suit, have a substantial likelihood of winning their claims against the 2015 rule. The states included in the ruling are Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky. These 11 states join the 13 states granted a preliminary injunction against the 2015 rule by the U.S. District Court for North Dakota Southeastern Division. Friday's decision means the 2015 WOTUS rule is effectively blocked in half the country.

This decision is important for several reasons, despite the fact the country is not currently operating under the 2015 WOTUS rule due to the applicability rule issued by the Trump Administration. The applicability rule, pushes the implementation date of the 2015 rule back to 2020, to buy Administrator Pruitt's EPA time to draft, propose and finalize their own interpretation of Waters of the United States. There are currently several challenges to the applicability rule and should one win, it would mean the 2015 rule could go into effect.  Judge Godbey's ruling will make these legal challenges to the applicability rule more difficult for proponents of the 2015 rule to win. This was also the first District Court ruling since the Supreme Court decided in January to give primacy to District Courts on WOTUS challenges.

As IMA-NA has repeatedly stated, the process of finalizing a more common sense WOTUS rule, based on cooperative federalism is going to be long and drawn out. Each action taken by the EPA is going to trigger legal challenges, so it is important to note the courts continue to rule against the 2015 rule as it builds a record in our favor. Below you can read the statement from the Waters Advocacy Coalition on Judge Godbey's ruling. 

 

“Today’s court ruling is validation for the thousands of farmers, ranchers, and small business owners across the country who have been speaking out against the 2015 WOTUS rule as too broad, confusing, and crippling to their livelihoods,” said Waters Advocacy Coalition spokeswoman Stephanie Genco. “Americans deserve a common-sense WOTUS rule that doesn’t require a team of lawyers and consultants to navigate a maze of federal regulations before building on their own property or plowing a field on their farms. While the 2015 Rule is now stayed in 25 states all together, the other half of the country is still in limbo. That is why the Waters Advocacy Coalition will continue to call on the Environmental Protection Agency and the Army Corps of Engineers to withdraw the unlawful 2015 rule and release a revised definition of Waters of the United States that affirms the intent of Congress under the Clean Water Act and provides a regulatory structure that supports both clean water and clear rules.”

 

Tags:  court  district court  injunction  legal  Regulations  wotus 

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MSHA Publishes Revised Final Workplace Examination Rule

Posted By Ariel Hill-Davis, Monday, April 9, 2018

MSHA published its revised final "Examinations of Working Places in Metal and Nonmetal Mines" rule in today's Federal Register. This final action amends a rule MSHA issued in January 2017.

The revised rule requires that:

  • A competent person examines each working place for adverse conditions. The working place must be examined at least once each shift, before work begins or as miners begin work in that place.
  • The operator must initiate appropriate corrective action.
  • The operator must promptly notify miners in the affected area if the adverse conditions are not corrected before miners are potentially exposed.
  • The operator must withdraw all persons from the affected area if the adverse condition may present an imminent danger.
  • The operator must create a record before the end of the shift, which must include:
    • The name of the person conducting the examination;
    • The location of all areas examined;
    • A description of each adverse condition identified that is not corrected promptly; and
    • The date when the described condition is corrected.
  •  The operator must make the record available to MSHA and the miners’ representatives.

 

MSHA will hold a series of six public meetings around the country to inform and educate the mining community about the requirements of the final rule.

  • May 1          Bloomington, IL
  • May 15        Birmingham, AL
  • May 17        Pittsburgh, PA
  • May 22        Reno, NV
  • May 24        Dallas, TX
  • May 31        Denver, CO

To read the final rule click here

To get more information on the public meetings click here

Tags:  examinations of working places  final rule  MSHA  Regulations  rulemaking  safety  safety and health 

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IMA-NA Comments on Draft List of Critical Minerals

Posted By Ariel Hill-Davis, Monday, March 19, 2018

On February 16th, the Department of Interior published their Draft List of Critical Minerals. This Draft List is the next step in implementing President Trump's goals set in Executive Order 13817, “A Federal Strategy To Ensure Secure and Reliable Supplies of Critical Minerals,” issued on December 20, 2017. The Executive Order recognizes the importance of mineral commodities generally, but specifically certain mineral commodities vital to the security and prosperity of the United States. The Secretary of the Interior’s Draft List of Critical Minerals (“Draft List” or “List”) similarly recognizes the importance of mineral commodities generally, with a particular focus on 35 minerals or mineral material groups currently considered critical. 

It is important to note that the Draft List includes barite as a critical mineral. IMA-NA is clearly supportive of the inclusion of barite on the List, but also sees the development of a standard methodology for evaluating our mineral supply chain as a big step in the government prioritizing mineral resources. 

Click here to read IMA-NA's comments

Tags:  administration  barite  critical minerals  department of interior  DOI  minerals science  president  Regulations  Trump 

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Small Business Administration Regulatory Reform Roundtable Schedule

Posted By Ariel Hill-Davis, Thursday, March 1, 2018

As part of the Administration's ongoing efforts to reduce the regulatory burden on businesses, the Small Business Administration (SBA) is conducting a series of Regional Regulatory Reform Roundtables across the country. These Roundtables will provide another forum for the SBA to hear directly from small businesses about what regulations concern them the most. In March, the SBA will be convening meetings in the following cities:

· Detroit, Michigan;
· Milwaukee, Wisconsin;
· San Antonio, Texas;
· Houston Texas; and
· Philadelphia, Pennsylvania.

 

Below you can find the information for each Roundtable as well as the links to RSVP. IMA-NA continues to be engaged in the conversation, highlighting regulations that impact our industry; but we encourage IMA-NA members to take advantage of the opportunity to speak directly to the SBA in your communities. 

Regulatory Reform Roundtables– March 2018 Schedule of Events

 

Tuesday, March 13th — Detroit, Michigan 

8:30 am – 12:30 pm Regulatory Reform Roundtable

Woodward Ballroom at the Embassy Suites by Hilton Detroit Southfield, 28100 Franklin Road, Southfield, MI 48034

Information and Registration link

 

Friday , March 16th — Milwaukee, WI 

8:30 am - 12:30 pm Regulatory Reform Roundtable

Schlitz Park, 1555 N Rivercenter Dr., Conference Room #3, Milwaukee, WI 53212

Information and Registration link

*SBA Administrator Linda McMahon will be in attendance

 

Monday, March 19th — San Antonio, TX 

8:30 am – 12:30 pm Regulatory Reform Roundtable

UTSA Downtown Campus, Durango Building, SBDC Training Room, 501 W. Cesar Chavez Blvd., San Antonio, Texas, 78207

Information and Registration link 

 

Tuesday, March 20th — Houston, TX 

8:30 am – 12:30 pm Regulatory Reform Roundtable

Marriott West Loop by the Galleria, 1750 West Loop S., Houston, Texas, 77027

Information and Registration link

 

Thursday, March 22nd — Philadelphia, PA 

8:30 am – 12:30 pm Regulatory Reform Roundtable

Paul Peck Alumni Gallery at Drexel University, 32nd and Market Streets, Philadelphia, PA 19104

Information and Registration link

Tags:  administration  Regulations  regulatory agenda  SBA  Small Business Administration  Trump 

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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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FERC Rejects Proposed Rule to Reinvigorate Coal and Nuclear Production

Posted By Ariel Hill-Davis, Wednesday, January 10, 2018

On January 8th, the Federal Energy Regulatory Commission (FERC or the Commission) unanimously rejected Secretary of Energy Perry's proposal for new regulations that would favor nuclear and coal powered energy production. Secretary Perry proposed the "Grid Reliability and Resilience Pricing" rulemaking as a way to address our national electric grid's reliability, but the move was seen as a way to help the two energy sectors that have been struggling recently. In the proposal, FERC was asked to favor power plants capable of storing a 90-day fuel supply on site, unlike renewable energy or natural gas plants. IMA-NA and NISA joined other stakeholders in asking FERC to reject the proposal on the grounds it would interfere with market forces by propping up older and less efficient plants that are struggling to compete with new energy sources. Specifically, this move would have handicapped the growing natural gas industry in the United States. Natural gas is a growing industry and one that provides low cost energy across the country for industrial, commercial, and individual consumers. IMA-NA is pleased with FERC's decision to reject this proposal.  It should be noted though, that the Commission initiated a new rule to look at the resilience of the electric grid in a more "holistic fashion". FERC has requested regional transmission operators submit information and materials to help the Commission decide what, if any, course of action is necessary to improve the resilience of the grid. Operators have 60 days to submit materials. 

To read the decision click here

To read the comments IMA-NA & NISA signed onto click here

Tags:  DOE  energy  FERC  natural gas  Regulations  Secretary Perry 

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IMA-NA Comments on ESA Mitigation Policies

Posted By Ariel Hill-Davis, Tuesday, January 9, 2018

On January 5th, IMA-NA and NISA submitted comments to the US Fish & Wildlife Service (FWS or Service) in response to the request for comments on the Service's current Endangered Species Act (ESA) mitigation policies. The request comes as each Department and Agency is reviewing regulations to carry out President Trump's Executive Order on Reducing Regulation and Controlling Regulatory Costs. The Service was specifically looking at the change in the mitigation policy under President Obama to recommend or require "net conservation gain" as the standard for mitigation plans. IMA-NA and NISA submitted comments urging the Service to remove the "net conservation gain" standard as it creates the opportunity for the costs of mitigation plans to grow exponentially without a clear outline of the limitations. Along with other industry groups we also feel the standard creates greater confusion and a lack of consistency for the implementation of mitigation programs across the country. Additionally, the Waters Advocacy Coalition (WAC) submitted comments urging the removal of "net conservation gain" from the FWS standards because it is inconsistent with the "no net loss" standard set by the Clean Water Act section 404 permitting rules. WAC argues "net conservation gain" could greatly disrupt and delay the permitting process due to the inconsistency.

To read the IMA-NA and NISA comments click here

To read the Waters Advocacy Coalition comments click here

Tags:  comments  CWA  ESA  FWS  mitigation policy  Regulations  WAC 

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