Document NG2R009zw9Ox4o01rj0mM7e0E

To: Jackson, Ryan[jackson.ryan@epa.gov] From: Nolan, Rich Sent: Wed 11/29/2017 7:51:54 PM Subject: AGs Letter Siqn On ILtrtol no action recommendation 11 29 2017.pdf AGs letter 17cv1906 Sierra Club v. EPA ED_O01523_00000636-00001 November 29, 2017 SENT VIA FEDEX (OVERNIGHT) The Honorable Scott Pruitt, Administrator United States Environmental Protection Agency 1747 Pennsylvania Avenue, NW Suite 800 Washington, DC 20006 Dear Administrator Pruitt: As the chief legal officers of our respective states, we write today to urge the United States Environmental Protection Agency ("EPA") to publish a "no action" decision on the proposed rule entitled "Financial Responsibility Requirements Under CERCLA 108(b) for Classes of Facilities in the Hardrock Mining Industry," 82 Fed. Reg. 3388 (Jan. 11, 2017)by the upcoming December 1, 2017 court ordered deadline. In short, the proposed rule amounts to unlawful executive overreach and is precisely the sort of unnecessary, duplicative , and punitive regulation that President Trump has committed to curtailing. For many of the undersigned states, the mining sector is a key employer and revenue generator. However, all of the undersigned states care about federalism, the rule of law, and unnecessary economic burdens. According to EPA's own Regulatory Impact Analysis, this regulation, if adopted, would impose an estimated $7.1 billion in new financial obligations for affected facilities without creating any new or significant environmental protections. See 82 Fed. Reg. at 3392. Further, EPA's own figures suggest that facilities would incur annual costs of $171 million. See 82 Fed. Reg. at 3393. Numerous stakeholders have warned that such excessive cost burdens will serve to discourage domestic mineral production and industry investment. As a result, indirectly increasing the United States's reliance on metals and minerals from foreign countries and negatively impacting the local economies of our states, which depend on high-paying mining industry jobs and tax revenue that the sector garners. Additionally, the process by which the regulation was proposed was fundamentally flawed a nd is yet another disturbing example of EPA's failure to engage in required consultation with states at the rule development phase, a scenario with which we have, unfortunately, become all too accustomed over the past eight years. There is overwhelming ev idence in the adminis trative record that the regulation is unnecessary, duplicative, and potentially impermissibly preempts state regulatory programs, including state mine bonding programs, which already effectively protect against the environmental risks underlying the 108(b) proposal. Stakeholders ranging from state governors to mining companies to land management 17cv1906 Sierra Club v. EPA ED_001523_00000637-00001 The Honorable Scott Pruitt November 29, 2017 Page 2 agencies emphasized that the EPA failed to adequately account for existing state and federal programs that have financial assurance componen ts designed to ensure an operator's ability to cover the costs associated with releases or threatened releases of hazardous substances from their facilities at all phases of mining, including reclamation, closure, and post-closure. The D.C. Circuit was cl ear in its consent decree that although final action on the financial assurance regulations must be taken by December 1, 2017, EPA may decide, based on the input of stakeholders during the comment period, not to issue a rule at all. In re Idaho Conservati on League, 811 F.3d 502, 5 14 (D.C. Cir. 2016) ("[T]he proposed joint order `does not require EPA to promulgate a new, stricter rule! At most, it `merely requires that EPA conduct a rulemaking and then decide whether to promulgate a new rule -- the content of which is not in any way dictate d by the [proposed order on consent]. . . (alteration in original) (emphasis omitted) (citation omitted)). Based on the foregoing and in the face of overwhelming evidence that the mining industry does not warrant a CERCLA 108(b) program, we reiterate our request that EPA publish a notice of final action withdrawing the proposed rule. Sincerely, Steve Marshall Attorney General of Alabama Mark Brnovich Attorney General of Arizona Leslie Rutledge Attorney General of Arkansas Cynthia H. Coffman Attorney General of Colorado Pam Bondi Attorney General of Florida Jeffrey M. Landry Attorney General of Louisiana 17cv1906 Sierra Club v. EPA ED_001523_00000637-00002 The Honorable Scott Pruitt November 29, 2017 Page 3 Timothy C. Fox Attorney General of Montana Marty J. Jackley Attorney General of South Dakota Adam Paul Laxalt Attorney General of Nevada W. Kenneth Paxton, Jr. Attorney General of Texas R. Michael DeWine Attorney General of Ohio Sean D. Reyes Attorney General of Utah Mike Hunter Attorney General of Oklahoma Patrick J. Morrisey Attorney General of West Virginia L Alan M. Wilson Attorney General of South Carolina Brad D. Schimel Attorney General of Wisconsin 17cv1906 Sierra Club v. EPA ED_001523_00000637-00003 The Honorable Scott Pruitt November 29, 2017 Page 4 Peter K. Michael Attorney General of Wyoming Cc via US MAIL: The Honorable Mick Mulvaney, Director Office of Management and Budget 725 17th Street, NW Washington, DC 20503 Ms. Neomi Rao, Administrator Office of Information and Regulatory Affairs C/o: Office of Management and Budget 725 17th Street, NW Washington, DC 20503 17cv1906 Sierra Club v. EPA ED_001523_00000637-00004