EPA Dodges Suit Over Proposed Mining Regulation

WASHINGTON (CN) — After the Trump administration deep-sixed plans to give hardrock-mining companies a pass on proving their financial ability to tackle cleanup costs in the event of a spill, the D.C. Circuit shot down a challenge Friday to force the regulatory change.

“We defer to the EPA’s [regulatory] interpretation … that it need not consider risks to health and the environment in deciding whether to issue financial responsibility requirements,” U.S. Circuit Judge Karen Henderson wrote for the three-judge panel. “Accordingly, the EPA’s alleged failure to consider health or environmental risks, if any, does not render its decision arbitrary or capricious.”

A mining dumper truck hauls coal at Cloud Peak Energy’s Spring Creek strip mine near Decker, Mont., on April 4, 2013. (AP Photo/Matthew Brown, File)

Environmental groups that brought the challenge accused the administration of dropping the requirements following closed-door meetings with mining-industry representatives.

“Within a month or two that Trump was in office, EPA had already decided that it wasn’t going to do anything about this rule,” said Jaimini Parekh, an associate attorney with Earthjustice, one of the six organizations that brought the case against the EPA.

Responding to Friday’s ruling, Earthjustice noted in a statement that the EPA’s own toxic-release inventory shows that “the mining industry is the nation’s leading source of toxic pollution.”

Left unregulated, Earthjustice warns, the industry will continue to spill acidic mining waste into waterways, exposing nearby communities to dangerous toxins.

“This was a political decision that they later developed a rationale for,” Parekh added.

The Environmental Protection Agency had initially proposed financial-responsibility requirements for the hardrock-mining industry on Jan. 17, 2017 — three days before the inauguration of President Donald Trump.

The administration shelved the proposal in February 2018 after federal and state agencies objected on the basis of redundancy, saying existing programs already provide sufficient protection for areas surrounding mines.

But Earthjustice argues the administration planned all along to give the industry free rein.

“It was at the top of the agenda,” Parekh said. “It was right up there with the Paris Agreement and they put in significant effort to roll it back.”

This assessment, she said, comes after reviewing 12,846 pages of EPA communications on implementing the regulatory change.

The EPA was slow to respond to the organization’s requests for these records, Parekh noted, supplying documents unrelated to the regulatory change within two months of the request but waiting six months before sending Earthjustice relevant documents beginning in October 2018. The agency is still in the process of turning over records to Earthjustice.

Still, Henderson, joined by U.S. Circuit Judges Thomas Griffith and David Sentelle, found the agency took the necessary steps before doing away with the proposed regulation.

“It adequately put interested parties on notice that the EPA was planning regulatory action that might, as happened, not materialize,” Henderson wrote.

As for whether the EPA supported its decision with a faulty economic analysis, Henderson was not persuaded by the evidence of this presented by environmental challengers.

Sandy Bahr, a director at one such organization, blasted the court Friday for allowing companies to remain unaccountable.

“Innocent taxpayers and working families should never be the backstop to foot the bill for irresponsible mining companies that can’t clean up their messes, but that’s exactly what today’s ruling allows EPA to do,” said Bahr, who leads the Sierra Club’s Grand Canyon Chapter.

Assistant Attorney General Jeffrey Bossert argued the case before the D.C. Circuit for the EPA. The Department of Justice did not respond to immediate request for comment.

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