Document MGmVXrem22yrEmZn28XNzJQnz

Message From: Sent: To: Subject: Wagner, Kenneth [/0=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=048236AB99BC4D5EA16C139B1B67719C-WAGNER, KEN] 5/30/2017 9:30:57 PM Sayer, Matthias, EMNRD [MatthiasL.Sayer@state.nm.us] RE: Oklahoma City Matthias: Thanks for the note and information. I have forwarded on to our Policy folks for the specific issues for incorporation into the comments. Hope all is well. Ken Kenneth E. Wagner Senior Advisor to the Administrator For Regional and State Affairs Environmental Protection Agency 202-564-1988 office | Personaf Matters / Ex. 6 i wagner.kenneth@epa.gov From: Sayer, Matthias, EMNRD [mailto:MatthiasL.Sayer@state.nm.us] Sent: Friday, May 19, 2017 4:41 PM To: Wagner, Kenneth <wagner.kenneth@epa.gov> Subject: RE: Oklahoma City Ken, I write to thank you for the time your staff took this week to meet and discuss the CERCLA 108(b) rulemaking in Denver--if you are able, please pass our appreciation along to Patrick Davis and others who were in attendance (I do not have contact info) for their time and patience. It was generally the consensus opinion that the time was well-spent and that the dialogue was productive. Regarding the rule, I understand that EPA is currently receiving comment, which no doubt will require significant time in the trenches to review and address--God's speed on that endeavor (insert wide-eyed emoticon). We intend to contribute what will hopefully be useful material for the Agency's consideration. As EPA considers its path forward, I did want to briefly discuss its decision to publish or not publish a final rule. From some of the comments made this week it appears that EPA or at least certain staff are operating under the belief that the D.C. Circuit's January 2016 Order obligates the Agency to publish a final rule on financial responsibility for the hardrock mining sector. That is not the case. The Court order did require that EPA publish a proposed rule by December 1, 2016, however, it did not order EPA to publish a final rule, rather, it ordered EPA to publish a final action on the rule by December 1, 2017. The court made clear in its discussion denying intervention to the mining association that it remains EPA's discretion whether to publish a final rule under CERCLA 108(b) on hardrock mining financial responsibility. As stated by the court: Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00178881-00001 "the proposed joint order "does not require EPA to promulgate a new, stricter rule." id. at 1324. At most, it "merely requires that EPA conduct a rulemaking and then decide whether to promulgate a new rule . . . The timeline in the joint motion requires that EPA commence a rulemaking with respect to hardrock mining by December 1, 2016, and provide "notice of its final action" by December 1, 2017... EPA retains "discretion to promulgate a rule or decline to do so" even for the hardrock mining industry. See Perciasepe, 714 F.3d at 1325 n.7; see also 5 U.S.C. 551(13). The joint motion on consent states that "[njothing in this Joint Motion should be construed to limit or modify the discretion accorded EPA by CERCLA or the general principles of administrative law." Joint Mot. 6. It neither resolves the substance of any rulemaking nor even which classes of hardrock mining facilities will be regulated. See 2nd Decl. of Barnes Johnson, Dir. of Office of Res. Conservation and Recovery, Envtl. Prot. Agency, Ex. 1, at 1 (Aug. 25, 2015) ("framework"for hardrock mining rules). In other words, nothing about this particular order on consent makes it any more likely than in Perciasepe, 714 F.3d at 1324-25, that proposed intervenors will be subject to regulation, much less suffer concrete harm to their interests, cf. Fund for Animals v. Norton, 322 F.3d 728, 733-34 (D.C. Cir. 2003). Because the order sought in the joint motion on consent merely "prescribes a date by which regulation could occur," proposed intervenors have not established Article III standing." See page 17 of the attached decision. In any event, I am likely telling you what you already know. To the extent EPA determines to move forward with a rule, we do hope, as we will communicate in our comment, that an exemption scheme be incorporated into the rule allowing those states with active, robust hardrock bonding programs, which provide necessary coverage for CERCLA-related risks, to be exempted from the federal rule. We look forward to continuing to work with EPA on this issue. Thank you again for your time and attention. Matthias Matthias Sayer Deputy Cabinet Secretary New Mexico Energy Minerals & Natural Resource Department Office: 505.476.3200 Fax: 505.476.3220 NEW MEXICO m ____ I ns&rtiy, MlrW&S gfstf HUirtl R' w,jr;s D spArtsr CONFIDENTIALITY NOTICE: This e-mail, including all attachments is for the sole use of the intended recipients] and may contain confidential and/or privileged information. Any unauthorized review, use, copying, disclosure or distribution is prohibited, unless specifically provided under the New Mexico Inspection of Public Records Act. If you are not the intended recipient, please contact the sender at once and destroy all copies of this message. From: Wagner, Kenneth [mant:oiwagner,kennet:h@epa.gov1 Sent: Thursday, May 11, 2017 11:07 PM Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00178881-00002 To: Sayer, Matthias, EMNRD <Matthiasl.Sayer@st3te.nm.us> Subject: Re: Oklahoma City Matthias: I agree. I will look to schedule something soon as I was with Wyoming and Colorado for full days this week. In the meantime, feel free to call anytime. Ken Kenneth E. Wagner Senior Advisor to the Administrator For Regional & State Affairs US Environmental Protection Agency O __2o2;:5 988 _P_e_rs_o_n_a_l_M_a_t_te_r_s_/_E_x_. _6 i ) W3gner.kenneth@epa.gov On May 10, 2017, at 1:12 PM, Sayer, Matthias, EMNRD <M3tfhi3 sLSayer@sfate.nm.us> wrote: Ken, Great to meet you this last weekend in Oklahoma City. Looking forward to your and the Administrator's successes and to working with you on a number of important issues. To that end, there are a number of items we would be interested in discussing and look forward to hopefully seeing you in Santa Fe sometime soon. Matthias Matthias Sayer Deputy Cabinet Secretary New Mexico Energy Minerals & Natural Resource Department Office: 505.476.3200 Fax: 505.476.3220 <image001.png> CONFIDENTIALITY NOTICE: This e-mail, including all attachments is for the sole use of the intended recipients] and may contain confidential and/or privileged information. Any unauthorized review, use, copying, disclosure or distribution is prohibited, unless specifically provided under the New Mexico Inspection of Public Records Act. If you are not the intended recipient, please contact the sender at once and destroy all copies of this message. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00178881-00003