[00:00:03] Speaker 00:
Case number 14-1149, Henry Idaho Conservation League at L. Ms.

[00:00:08] Speaker 00:
Gooden for the petitioners, Mr. Sullivan for the respondents, and Mr. Julia Amato for a moving intervener in NMA.

[00:00:18] Speaker 04:
All right, Ms.

[00:00:19] Speaker 04:
Gooden, good morning.

[00:00:25] Speaker 01:
Good morning.

[00:00:27] Speaker 01:
May it please the court?

[00:00:28] Speaker 01:
My name is Amanda Gooden, and I represent Petitioner's Idaho Conservation League.

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I would like to reserve four minutes of my time for rebuttal.

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30 years ago, Congress directed EPA to issue financial assurance rules to reduce the harm from releases of hazardous substances.

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Congress intended these rules to provide a powerful incentive for best practices and to ensure that when releases do occur, they're cleaned up quickly and thoroughly.

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EPA has found that for four industries, their involvement with hazardous substances poses very high risks, but EPA still hasn't issued rules.

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I'd like to address three issues this morning.

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I'll start by addressing the threshold jurisdictional question of standing.

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Turning to the merits, I'll address EPA's clear duty to issue these rules.

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And third, to why EPA's delay is unreasonable under the track factors.

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Turning to the jurisdictional question first, we have standing because EPA's failure to issue these rules causes our members harm.

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Congress required these rules because they create a powerful financial incentive for facilities that handle these toxins to do it safely and to reduce releases, and that will directly benefit our members.

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For example, Mark Romines, one of our declarants, lives just down the street from a coal plant in Kentucky.

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The toxic coal ash from the open storage pit blows down his street and he breathes it every day.

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The plant also releases contaminated water from the retention pond into the river and so he can't swim there anymore.

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EPA has failed to issue financial assurance rules that would apply to that plant and plants like it across the country and would provide a powerful incentive for that facility to reduce their releases.

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You argue a lot about the Congressional and EPA findings about the relationship between financial assurance rules and changes in polluting behavior.

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But I think our Florida Audubon decision said we can't rely on general congressional statements like that.

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We need to have a particularized showing that for a particular plaintiff, that general principle will manifest itself.

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So with respect to Mr. Robeson, one of the declarants that you have here,

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He talks about the impending, it seems to be an impending operation with the Midas Gold Mining Company.

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What showing is there about the likelihood that that mining project by Midas Gold Mining will go forward?

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And then if it is that financial assurance regulations will be needed specifically as to Midas Gold Mining,

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to change their behavior or ensure protection for environmental harm?

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Well, Your Honor, so the Midas Project has already taken several steps.

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They are pursuing that actively.

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That's kind of vague.

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I need some, maybe, concretes for standing.

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What does it mean, pursuing it actively?

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Pursuing it

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actively as in they're studying still whether they're going to do the mining or they started mining?

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They started exploration.

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They haven't started the actual project yet.

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So we have several declarants that speak to hard rock mining and there are different stages of the process for each of these projects.

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With the MIDAS project, it's at the exploration stage.

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For Mr. Weber in Utah, that project is ongoing, has been for some time and will continue.

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I'm going to tie you down to Robison.

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Which one do you have that has evidence about the financial status of an ongoing operation or certainly impending operation by Midas or some other company so that we could have an appreciation for?

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particularizing the general congressional concern that you rely on.

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Your Honor, to show exactly what a specific facility will do in response to these rules really requires knowing what EPA is going to put in these rules ultimately.

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So we need to know what practices EPA will attach higher assurances to.

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We think those should be the riskier practices and what practices EPA will attach lower assurances to.

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And with that knowledge, then, that will give facilities a powerful incentive to avoid the practices.

[00:05:02] Speaker 06:
That doesn't seem to help you on standing.

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That seems to sound like you're saying we can't even figure out if there's going to be injury causation redressability until we know how this rule issues.

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I would have thought you would have said, let's assume the rule is what we think it should be, and it will at least impose financial assurance requirements in some form.

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And for purposes of standing analysis, this court does assume that we're correct on the merits.

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And for a case where we're seeking a procedure such as this one, we don't have to connect the procedure that we're seeking to the substantive outcome.

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So we can't show what rule EPA is going to issue.

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But if, for example, let's take the pole plant in Kentucky that Marco and Lyons lives near.

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They have their ash stored in a jar.

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enormous uncovered pit down the street from the subdivision.

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If EPA issues a rule, as we will urge, that puts a very high price on that activity and then puts a much lower price on safer storage practices,

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then that plant is going to have a powerful incentive to change the way they store that ash in a way that directly benefits Mr. Romines.

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And that's true for each of the facilities.

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We still have to speculate about how that third party would exercise its judgment in response to those incentives.

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So how do you distinguish Florida Audubon, which made that same point with respect to tax credits?

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Your honor, Flora Audubon, I think, presented a very different fact pattern.

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There was a rule that governed fuel producers.

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And plaintiffs came in and said they had standing based on farmers that were going to do something differently.

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And the court said, this chain of causation between the fuel producers that the rule regulates and the farmers, who you have to go through multiple parties to get to any changes in their behavior, the court said that's just too attenuated.

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Here, we are arguing that the facilities

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that the rule applies to will respond to that rule.

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And this court has... What evidence do you have that will respond to that rule?

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We have... In a way that will reduce the pollution that your members are concerned about?

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Well, we have the fact that Congress intended this rule to have that effect.

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We have the fact that... You said that's not going to work enough, so what do you have particularized?

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We have the fact that EPA also concedes that this is what the rules are intended to do.

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We have the fact that even the interveners here have conceded that these rules will have that effect.

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And we have this court's precedent, which has frequently looked to, frequently recognized that third parties will behave in their financial best interests.

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Where have the interveners conceded that they will change their behavior in a way that reduces pollution risk?

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some regulation, financial assurance regulation is promulgated?

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They haven't said specifically that they'll reduce their pollution, but they have conceded that these rules will have a powerful effect on their members.

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I would direct this court to the National Mining Association's motion to intervene at pages five to six, where they say that these rules, if they are astringent, would have a direct operational impact on hard rock mining operations, also in their appendix of exhibits at page 206, fate stamped,

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They said that these rules could cause some facilities to defer or forego opportunities to begin new mines or extend the life of existing mines.

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I would also point to Bates Stamp page 304 in their appendix, where they recognize their principal legislative purpose of these rules is to incentivize facilities to manage and store their hazardous substances safely.

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I would also note that this court in Abigail Alliance, 469 F3 129, had no problem assuming that third parties would act in their own pecuniary best interests.

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The court found it to be a hardly speculative exercise in naked capitalism.

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And in two cases that have been decided since we submitted our briefing, Airlines for America, DC Circuit case number 141143, and Teton Historic Aviation Foundation,

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DC Circuit case number 135039, this court had no problem crediting basic economic principles as part of the standing analysis and found that it could assume that third parties would act in their own financial best interests.

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I would also note that this court has already held in National Wildlife Federation v. Hodel, which is cited in our briefing, that environmental groups had standing to challenge inadequate bonding for surface mining.

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And this court explicitly considered the causation prong of the standing analysis and rejected many of the same arguments that the interveners raised here.

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Can you tell me what the procedural posture was of National Wildlife Federation?

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Was it a mandamus action?

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It was not a mandamus action.

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It was a challenge to the substance of that rule.

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So at that point the rule was before the court.

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And interveners argued that an environmental group did not have standing to challenge the bonding.

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Was it a 12b6 or a summary judgment stage for the standing argument?

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I believe it was a summary judgment stage, but I would have to check.

[00:10:01] Speaker 06:
I don't know.

[00:10:03] Speaker 06:
Are summary judgment mandamus the same for purposes of the showing you have to make as to standing?

[00:10:10] Speaker 06:
You obviously have to do less at the 12b6 stage, feeding summary judgment at least enough to create a question of fact.

[00:10:19] Speaker 06:
Mandamus seems almost like a final release stage, so you should have to actually prove by preponderance the fact that that was in the standing.

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Is that your understanding of how this works?

[00:10:29] Speaker 01:
I would agree with that, Your Honor.

[00:10:31] Speaker 01:
But again, I would emphasize that this is a case where we're alleging a proceed harm from a failure to comply with a required procedure.

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And so we simply can't show what EPA's final rule will say.

[00:10:43] Speaker 01:
I do want to turn to your point on Florida Audubon with congressional statements.

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We do have in Friends of the Earth be Laid Law statements from the United States Supreme Court that we do give credit to this type of legislative determination.

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And the type of statement that this court didn't credit in Florida Audubon was a very different type of congressional statement.

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At issue there was a rule

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And an individual member of Congress was speculating not as to legislation, but as to this rule, what its effects might be for distant farmers, more jobs in the American heartland.

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And this court said that's not the type of statement that we are going to credit, especially because it runs counter to common sense and counter to economic principles that we do credit.

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And here we have, precisely the opposite, we have an enacted piece of legislation and history showing that Congress intended this legislation to have a certain effect.

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That is far more similar to Friends of the Earth, and there the Supreme Court said that we do credit those types of statements.

[00:11:40] Speaker 01:
Turning to the merits, EPA has a clear duty to issue these rules based on its findings of risk.

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The language in the statute is clear.

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EPA shall issue financial assurance rules consistent with the degree and duration of risk posed by different industries.

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And EPA shall prioritize rules for industries that pose the highest risk of injury.

[00:12:02] Speaker 06:
Why don't we address the fact?

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Again, I just don't know.

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How do we deal with the fact?

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You've got a really strong case, 30 years, and this thing never seems to move from the back burner to the front burner.

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There's always some other priority.

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And yet, Congress recently

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looked at this very statutory provision, the statutory requirement, and kind of said, well, when you get around to it, also give us 90 days advance notice, and x and y. I talked to x and y and looked at x and y. Does that factor into mandamus analysis at all, or statutory construction analysis at all?

[00:12:42] Speaker 01:
Well, Your Honor, what Congress did is basically request the agency show its work.

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EPA already has to consider the availability of insurance, all of these other factors, as it develops these rules.

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And Congress said, we think those are really important, so we'd like to see it, too, please, 90 days in advance.

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What Congress didn't do is actually amend the provision in the circular requiring these rules.

[00:13:04] Speaker 01:
And now if Congress wants to remove this requirement, it certainly can.

[00:13:07] Speaker 06:
Well, I understand that.

[00:13:09] Speaker 06:
You know, it seems an awfully long time after they were supposed to do this.

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And one would have expected Congress to go.

[00:13:18] Speaker 06:
In addition to show your work, come on already.

[00:13:21] Speaker 01:
Well, I think reading too much into congressional silence is a bit dangerous because Congress fails to act all the time for reasons, who knows?

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When they act, of course, that's what then the agency must follow.

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But when they fail to change a law, I don't think that we should read into that, that in fact,

[00:13:42] Speaker 01:
they intended EPA to continue to delay.

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If they wanted to take these rules off the agency's agenda, they could have done that, but they didn't.

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So I think with the provision that we have, they do have a clear duty to act.

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On EPA's clear duty, I would direct this court to the Supreme Court's opinion in Massachusetts v. EPA.

[00:14:03] Speaker 01:
EPA has taken the position here that it hasn't yet decided whether it's going to issue these rules for three of the industries.

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It may yet find their unnecessary EPA claims.

[00:14:13] Speaker 01:
But in Massachusetts v. EPA, the Supreme Court considered very similar arguments from EPA.

[00:14:18] Speaker 01:
EPA said that it could choose not to regulate greenhouse gas emissions based on political considerations, the existence of other regulatory schemes, other criteria that are nowhere in the statutory provision of issue there.

[00:14:30] Speaker 01:
And the court said no, you must regulate or not based on whether this pollutant endangers human health and welfare because that is what is in the statute.

[00:14:39] Speaker 01:
So to here, we have a statutory provision that says EPA shall regulate based on the degree and duration of risk.

[00:14:46] Speaker 01:
So where EPA finds risk, it then must regulate.

[00:14:48] Speaker 01:
And EPA has found risk here for each of these four industries.

[00:14:54] Speaker 01:
Turning finally to the track factors, EPA's 30-year delay is unreasonable.

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I would particularly like to highlight here that EPA has given itself multiple self-imposed deadlines, and each one it has missed.

[00:15:06] Speaker 01:
The horizon continues to recede.

[00:15:08] Speaker 01:
Without this court's intervention, this process threatens to drag on for decades more.

[00:15:14] Speaker 01:
I see that I'm almost out of time.

[00:15:15] Speaker 06:
Unless this... There was a requirement, or a promise that they were going to

[00:15:22] Speaker 06:
Do you have an outline?

[00:15:23] Speaker 06:
I wasn't quite sure what it was in April 2015.

[00:15:25] Speaker 06:
That was one of the steps that they had promised activity by.

[00:15:29] Speaker 06:
Do you know whether that's happened?

[00:15:32] Speaker 01:
I do not, Your Honor.

[00:15:33] Speaker 01:
They have given dates in their regulatory updates, their regulatory agendas for issuing a proposed rule.

[00:15:41] Speaker 01:
And that's what they've published multiple times and pushed back multiple times.

[00:15:45] Speaker 01:
I do know that we certainly do not have even a proposed rule for any industry yet.

[00:15:51] Speaker 05:
So we're the court to get over the first two hurdles and reach the third.

[00:15:59] Speaker 05:
What is the nature of the precise relief you're seeking in the way of mandamus?

[00:16:06] Speaker 01:
Well, Your Honor,

[00:16:08] Speaker 01:
Initially, in our petition, we asked for final rules by January 1, 2016.

[00:16:12] Speaker 01:
I admit that that is now just around the corner and would likely be a very difficult deadline for the agency to meet.

[00:16:18] Speaker 01:
In EPA's briefing, they have said that for the Hard Rock mining rule, they expect to have it substantially drafted by December of this year.

[00:16:26] Speaker 01:
And then they've said that they need 90 days to give Congress advance notice.

[00:16:30] Speaker 01:
So we think they should be able to publish a proposed rule by no later than April 1st of the following year.

[00:16:39] Speaker 01:
They've said they need three years to go from a proposed rule to a final rule.

[00:16:42] Speaker 01:
We think that's unreasonable.

[00:16:44] Speaker 01:
We think they should do that in one year.

[00:16:46] Speaker 01:
They go from proposed to final and complicated rulemaking all the time.

[00:16:50] Speaker 01:
Now that is just for the Hard Rock Mining Rule.

[00:16:51] Speaker 01:
For the other three rules, they haven't really given us much to work with.

[00:16:56] Speaker 01:
But when they initially, after they published their 2010 Federal Register Notice saying that there were these risks associated with these industries, in May of that year,

[00:17:06] Speaker 01:
They anticipated it would take them 16 months to issue a proposed rule.

[00:17:11] Speaker 01:
So hopefully they've done something since then, and it will now take them less than 16 months.

[00:17:16] Speaker 01:
But we think 16 months at the outside for a proposed rule for those three industries, and then a year to final for those as well.

[00:17:24] Speaker 01:
That's based on the agency's own estimates of how long it would take.

[00:17:29] Speaker 05:
And you say, given the track record, it's unlikely it will meet those deadlines.

[00:17:37] Speaker 01:
absent intervention from this court, we think these deadlines will just get pushed back and back.

[00:17:41] Speaker 01:
And in fact, the schedule I've just outlined for the other three rules is not a schedule the agency is claiming now it will meet.

[00:17:48] Speaker 01:
It said it may consider thinking about these rules again at some point in the distant future, if not giving us any kind of schedule.

[00:17:56] Speaker 05:
So you're saying April 2016 for hard rock mining, and what are you saying as to the other three

[00:18:08] Speaker 01:
I would say 16 months from the date of this court's order because that is what EPA itself estimated it would take.

[00:18:17] Speaker 01:
16 months for a proposed rule and then a year after that for final because a year from proposed to final should be reasonable, should be doable based on other rules that are even more complex than this one.

[00:18:30] Speaker 04:
Have we ever done that before?

[00:18:31] Speaker 04:
I mean, have we ordered an agency

[00:18:37] Speaker 04:
It seems to me that what we say is report back to us on a periodic basis, where you are, and so forth.

[00:18:45] Speaker 01:
Well, Your Honor, yes, this Court has taken the report back to us approach.

[00:18:50] Speaker 01:
And we would be open to that here as well.

[00:18:52] Speaker 01:
But we need some sort of schedule that they're reporting back on.

[00:18:56] Speaker 01:
We may get around to these never.

[00:18:57] Speaker 01:
It's not a schedule they can report back on.

[00:19:00] Speaker 01:
If they come back every six months and say we're still doing nothing, that doesn't get us anywhere.

[00:19:05] Speaker 01:
An alternative option would be for EPA to submit a proposed schedule for these rules, the rationale for that, and an opportunity for us to respond.

[00:19:13] Speaker 01:
And then this court could require EPA to periodically update it on its progress.

[00:19:18] Speaker 01:
We are open to that as well, but a never schedule is not one that works.

[00:19:25] Speaker 04:
All right.

[00:19:25] Speaker 04:
We'll give you some time in reply.

[00:19:27] Speaker 03:
Thank you.

[00:19:28] Speaker 04:
Mr. Sullivan?

[00:19:38] Speaker 07:
please the court good morning my name is John Sullivan I'm with the United States Department of Justice and I represent the United States EPA in this matter and with me at a council table is Rob Sokovia he's with the Office of General Counsel of EPA and

[00:19:56] Speaker 07:
Your Honor, the petition for mandamus should be denied for two reasons.

[00:20:00] Speaker 07:
First, as Judge Millett was focusing on, the petitioners have not shown standing.

[00:20:04] Speaker 07:
And second, the petitioners have also failed under the track factors to show that the timing of EPA's promulgation of these regulations is unreasonable, much less so egregious as to warrant the extraordinary remedy of mandamus.

[00:20:19] Speaker 04:
And what would be egregious if 30 years isn't?

[00:20:24] Speaker 04:
Pardon me, Your Honor.

[00:20:24] Speaker 04:
What would be egregious if 30 years is not?

[00:20:28] Speaker 07:
Well, Your Honor, the EPA has done a lot to deal with the financial assurance requirements under CERCLA.

[00:20:35] Speaker 07:
And EPA actually started trying to promulgate these rules in 1983 and realized that they didn't have the personnel or the contractor funding to do it.

[00:20:45] Speaker 07:
And, of course, it was the beginning of the program.

[00:20:46] Speaker 07:
They also had competing priorities.

[00:20:49] Speaker 06:
Yes, Your Honor, I'm pleased to report that EPA has completed the proposed rule framework and they are now in the process.

[00:21:06] Speaker 07:
The rule framework is basically the way different things in the rule are going to function.

[00:21:13] Speaker 07:
For example, the way they will handle preemption, or the way they will handle risk assessing, or the way they will handle class designation.

[00:21:23] Speaker 05:
So it's an outline of work to be done?

[00:21:25] Speaker 07:
Pardon me, Your Honor?

[00:21:26] Speaker 05:
Is it an outline of work to be done?

[00:21:30] Speaker 07:
No, actually, Your Honor, it's the outline or structure of the way the rule is going to work.

[00:21:36] Speaker 05:
So it is a draft of the notice of proposed rulemaking?

[00:21:40] Speaker 07:
I don't know if it's an actual draft of the notice, but it is a draft of the structure of the rule.

[00:21:46] Speaker 05:
I can't understand what it is, from what you're telling me.

[00:21:50] Speaker 05:
I'm trying to put it in a box we're familiar with.

[00:21:52] Speaker 05:
I read Mr. Johnson's declaration, and I can't find any boxes.

[00:21:58] Speaker 07:
OK.

[00:22:00] Speaker 07:
To be honest, I don't know what the substance of the structure of the rule is, but... Countable.

[00:22:05] Speaker 07:
Pardon me?

[00:22:06] Speaker 05:
You don't know the substance of this framework?

[00:22:09] Speaker 07:
I do not yet know.

[00:22:11] Speaker 05:
So how do we know that it's anything that shows anything more than Mr. Johnson's declaration?

[00:22:23] Speaker 07:
Well, actually, Your Honor, EPA is going to be sending the proposed structure out for public comment by various interest groups

[00:22:31] Speaker 07:
And in fact, it recently... What is a proposed structure?

[00:22:35] Speaker 05:
I don't understand.

[00:22:36] Speaker 05:
Tell me, does it say part A of our rule is going to propose 1, 2, 3, or does it say...

[00:22:50] Speaker 07:
It is the set of concepts of how the rule is going to work from identifying facilities based on risk to estimating costs.

[00:22:59] Speaker 05:
But Mr. Johnson's declaration went through all that.

[00:23:02] Speaker 07:
Yes.

[00:23:03] Speaker 05:
So that's an outline and a framework.

[00:23:06] Speaker 07:
Yeah.

[00:23:06] Speaker 05:
I mean, it's essentially... And so how does this differ?

[00:23:08] Speaker 07:
Well, it's essentially going to be how these things work.

[00:23:11] Speaker 07:
For example, how do you estimate costs at a contaminated site?

[00:23:15] Speaker 05:
They've been studying that for 30 years.

[00:23:17] Speaker 07:
Well, they have prepared that.

[00:23:20] Speaker 07:
They had different options for that.

[00:23:22] Speaker 07:
And they apparently have decided on a proposed option for that.

[00:23:25] Speaker 07:
And they're now going to seek comment from the mining industry and stakeholders and cities and states because of the preemption issue in the work.

[00:23:35] Speaker 05:
They haven't done this already?

[00:23:36] Speaker 07:
They have finished the structure of the rule, and they are now in the process of reaching out to various groups.

[00:23:46] Speaker 06:
What do you mean reaching out?

[00:23:47] Speaker 06:
Is this being published for public comment, or are you cherry picking who you share it with?

[00:23:51] Speaker 07:
They are going to be sharing it with the different interest groups like me.

[00:23:54] Speaker 06:
I'm sorry, they're cherry picking?

[00:23:56] Speaker 06:
Is that going to be general public disclosure?

[00:23:57] Speaker 07:
Well, when the rule is published, Your Honor, they will submit a public notice.

[00:24:01] Speaker 06:
I'm talking about for this rule outline.

[00:24:04] Speaker 07:
Well, this is going to be various interest groups that we've actually identified in the briefing.

[00:24:09] Speaker 07:
For example, states and local government, the mining industry, the insurance and financial industries, other interest groups.

[00:24:19] Speaker 06:
What about petitioners?

[00:24:20] Speaker 07:
Oh, other interest groups too, yes.

[00:24:22] Speaker 07:
We will be communicating with them.

[00:24:23] Speaker 06:
When?

[00:24:23] Speaker 07:
And the purpose is to get their feedback.

[00:24:27] Speaker 07:
I know that, I don't know exactly with them, probably soon, I know they just sent letters out to targets in the insurance industry, and I know that between late May and early August, EPA plans to start the small business interest outreach program under the SBREFA statute.

[00:24:46] Speaker 05:
So what you are representing to us today is that all of the factors that are outlined in Mr. Johnson's declaration, none of them

[00:24:56] Speaker 05:
have been completed?

[00:24:59] Speaker 07:
No, they actually have developed.

[00:25:01] Speaker 05:
No, you're talking about reaching out to the states, reaching out to the localities, reaching out to the affected industries.

[00:25:09] Speaker 05:
What you're telling me now is they're going to send out, or as Judge Millett's question elaborated, you have identified certain interest groups and parties that you're going to ask for their comments on this framework

[00:25:24] Speaker 05:
which you're telling me is not a draft of a proposed rule.

[00:25:28] Speaker 07:
It's not the actual draft of the rule, but it's a draft of, or the actual language of the rule, but it's a draft of how the rule will work.

[00:25:35] Speaker 05:
And so, for example, on the issue of... You don't think that Congress made clear how the rule is supposed to work?

[00:25:41] Speaker 07:
Well, that's a big problem.

[00:25:43] Speaker 07:
Congress didn't make clear how the rule is supposed to work.

[00:25:45] Speaker 05:
But Congress gave you, said, build me a house.

[00:25:49] Speaker 05:
And the question is, what kind of house are you going to build?

[00:25:52] Speaker 05:
And now Mr. Johnson tells me they've been working with the architects, the engineers, all of these different people, all these years.

[00:26:02] Speaker 05:
But they still don't have any answers.

[00:26:04] Speaker 07:
Well, actually, they have a proposed structure of what they want to do with the rule, and they want to get feedback from the industry about it.

[00:26:11] Speaker 05:
But I'm just asking, have you personally read this structure?

[00:26:15] Speaker 05:
Have you seen it?

[00:26:16] Speaker 07:
I have not seen the substance of the rule yet.

[00:26:17] Speaker 05:
All right, that's all I need to know.

[00:26:19] Speaker 05:
And it's not in the record.

[00:26:20] Speaker 07:
It's not, because it was just completed at the end of April.

[00:26:24] Speaker 05:
Well, we didn't get any notice, any Rule 26, 28J letters saying there was something new relevant to this case.

[00:26:32] Speaker 07:
No, we did not submit anything like that.

[00:26:34] Speaker 05:
And the only date we had was this April 2015 date, which you have now represented to Judge Millett.

[00:26:41] Speaker 05:
And this court, EPA, has done what it said it was going to do.

[00:26:45] Speaker 07:
Yes, Your Honor.

[00:26:46] Speaker 06:
So does that mean you're on target for meeting the rest of the schedule you outlined?

[00:26:49] Speaker 07:
Yes, we're on target for meeting the August of 2016 schedule for the proposed rule for the hard rock mining industry.

[00:26:57] Speaker 05:
And the reason it's going to take that long is because you want to get industry and other interest comments.

[00:27:04] Speaker 05:
on this outline?

[00:27:06] Speaker 07:
Yes, we believe it's very important because it's going to affect a lot of small businesses.

[00:27:11] Speaker 07:
There are some serious preemption possibilities because many states now have mining regulations with financial assurance.

[00:27:18] Speaker 05:
But you know, Council, in this day and age when we have computers, we have information systems, we're not back in the horse and pony age.

[00:27:28] Speaker 05:
It's been 30 years.

[00:27:31] Speaker 05:
And it's amazing to me that you're telling us here today that you have not read or not even seen the very document that is supposed to assure this court that the agency is moving forward appropriately.

[00:27:49] Speaker 07:
Well, Your Honor, all I can say is I haven't seen it yet, but I know I've been in communication with the EPA about assisting them with outreach to stakeholders, including the mining industry and petitioners council.

[00:28:02] Speaker 06:
Why wouldn't that outreach have been part of what was done for the last 30 years?

[00:28:06] Speaker 06:
I guess I'm curious as to why this outreach is now.

[00:28:09] Speaker 07:
Because right now, EPA has a structure of the way it wants to run this rule.

[00:28:15] Speaker 07:
The language of CIRCLE is very vague as to how we do things.

[00:28:19] Speaker 07:
Like, what is a facility that should be regulated, and how do you assess risk?

[00:28:23] Speaker 06:
Agencies live and breathe vagueness and statutes.

[00:28:27] Speaker 06:
That's your operating area.

[00:28:28] Speaker 06:
So it was vague.

[00:28:30] Speaker 06:
That hasn't changed in 30 years.

[00:28:33] Speaker 07:
No, it has not changed in 30 years, but US EPA has actually addressed financial assurance in many ways that directly deal with financial assurance in surplus and in rip rough for treatment storage and disposal facilities.

[00:28:46] Speaker 07:
So for many facilities today, in fact many cleanups today, any cleanup going on today with a consent decree or with a unilateral order already has financial assurance in place.

[00:28:57] Speaker 05:
I know, so this is simplistic, and I can hear the responses, but I've been on this court long enough to know that if you said we want you to do X, parties will either tell you we are already doing X or we're not doing X. But the agency has to define what is X, and usually it's a measurement.

[00:29:20] Speaker 05:
And all the parties will come in with a lot of explanations as to why that's too simplistic a question.

[00:29:26] Speaker 05:
but I'm back to, will the house ever get built?

[00:29:29] Speaker 05:
And Mr. Johnson's declaration gives me no assurance whatsoever.

[00:29:36] Speaker 07:
Well, EPA is committed to proposing this rule by its internal schedule of August 2016.

[00:29:42] Speaker 05:
So if the court thought that that assertion by counsel that the agency is committed is insufficient, what would you propose

[00:29:53] Speaker 05:
in the way of a schedule.

[00:29:54] Speaker 05:
You heard what counsel said in response to my question, assuming we get over the first two hurdles.

[00:30:00] Speaker 07:
Yes, Your Honor.

[00:30:02] Speaker 07:
We believe that the schedule that EPA has proposed... It proposed no schedule as to the three other industries it's identified.

[00:30:12] Speaker 07:
We have not yet, Your Honor, and EPA has not yet... So what would you propose?

[00:30:16] Speaker 07:
For the other three industries?

[00:30:17] Speaker 05:
Yes.

[00:30:18] Speaker 07:
Your Honor, I would have to talk to EPA and brief that.

[00:30:21] Speaker 05:
Surely, surely.

[00:30:22] Speaker 05:
Surely, in preparing for argument, somebody anticipated Judge Rogers would ask.

[00:30:32] Speaker 07:
I'm quite serious.

[00:30:34] Speaker 05:
For the other industries, first of all, let me say this court, of which I was a member, has directed the agency to move expeditiously

[00:30:44] Speaker 05:
and made it very clear what the consequences would be if it did not.

[00:30:49] Speaker 05:
And the agency responded, not quite as quickly as the court might have anticipated, but it did respond.

[00:30:56] Speaker 05:
And we had evidence of that.

[00:30:59] Speaker 05:
Now we have nothing.

[00:31:03] Speaker 07:
Well, all I can do is give you my word, and if that's not good enough, that's all I can do right here.

[00:31:07] Speaker 05:
But Your Honor... The agency has given the court its word in other cases, too.

[00:31:13] Speaker 05:
But we had something to back it up.

[00:31:16] Speaker 07:
Well, I believe actually online now there should be evidence of EPA's communications with the insurance industry, which would back up what I'm saying.

[00:31:24] Speaker 05:
Well, Mr. Johnson's declaration says they've had communications all these years.

[00:31:31] Speaker 07:
Well, not the communications that I'm talking about.

[00:31:33] Speaker 07:
EPA has targeted certain industries, certain contacts within the insurance industry about financial assurance availability.

[00:31:42] Speaker 05:
So since you had these conversations with EPA, what would you suggest to the court would be a reasonable schedule to anticipate for the agency to promulgate notices of proposed rulemaking for all these four industries?

[00:32:01] Speaker 05:
Well, for the hard rock mining industry, I would say that by August of 2019, 39 years later, we would have a final rule.

[00:32:11] Speaker 07:
August 2016 for the proposed rule, and August of 2019 for the final rule for hard rock mining.

[00:32:17] Speaker 05:
And what would you propose as the three other industries?

[00:32:26] Speaker 07:
Your Honor, I'm sorry.

[00:32:26] Speaker 07:
We don't have a schedule for those other three, but I'd also say EPA is not yet to- Do you have a framework?

[00:32:31] Speaker 07:
We don't have a framework for the other industries because EPA hasn't even determined whether rules are necessary for those industries.

[00:32:36] Speaker 05:
Oh, I understand that, but it has to make a decision at some point, doesn't it?

[00:32:41] Speaker 07:
Yes, it will.

[00:32:41] Speaker 05:
And you're representing to this Court today that EPA is unable to make any estimation of when it might reach a decision as to whether to do anything?

[00:32:54] Speaker 07:
At this point, they have not because they're focusing on the hard rock mining rule, which has been a very difficult rule for the structural purposes.

[00:33:02] Speaker 05:
But EPA has very difficult issues all the time.

[00:33:07] Speaker 05:
Very complex industries, very complex air, water issues that Congress has directed the agency to address.

[00:33:18] Speaker 05:
And it is astounding, let me just say, that the representations to this court today

[00:33:24] Speaker 05:
are as vague and open-ended as they are 30 years after Congress gave the agency an instruction.

[00:33:37] Speaker 07:
Yes, Your Honor.

[00:33:37] Speaker 07:
I mean, this is the best we have today.

[00:33:40] Speaker 05:
And so what about the future?

[00:33:42] Speaker 05:
That's what I'm focused on.

[00:33:44] Speaker 05:
And you can't give me anything as to the future either?

[00:33:47] Speaker 07:
Well, yes, I can.

[00:33:48] Speaker 05:
No, you've given me 2019 for hard rock.

[00:33:50] Speaker 07:
For the hard rock mining rule.

[00:33:51] Speaker 05:
For the other rules.

[00:33:52] Speaker 07:
EPA isn't even required to do these rules under surplus for the other industries.

[00:33:56] Speaker 05:
Well, we know, but the agency has made some determinations.

[00:33:59] Speaker 05:
They've made determinations, Your Honor.

[00:34:01] Speaker 05:
Excuse me.

[00:34:01] Speaker 05:
It has three steps.

[00:34:03] Speaker 05:
It's already made findings as to the harm being caused.

[00:34:09] Speaker 05:
Now it has to decide, for example, is state regulation sufficient?

[00:34:15] Speaker 05:
So we don't need to do anything.

[00:34:17] Speaker 07:
That may be true, Your Honor.

[00:34:19] Speaker 05:
Ask the states to tell you what they're doing and say you want that by June.

[00:34:25] Speaker 07:
They have been researching all the state.

[00:34:27] Speaker 05:
No, but counsel, do you see what I'm getting at?

[00:34:30] Speaker 05:
We can stretch this thing out for the next hundred years.

[00:34:33] Speaker 05:
And that's what Mr. Johnson's declaration tells me.

[00:34:36] Speaker 05:
He's got three alternative approaches.

[00:34:38] Speaker 05:
He's going to review those, et cetera.

[00:34:41] Speaker 05:
And then Congress every now and then will say, you know, we want a report.

[00:34:44] Speaker 05:
We want to see what you're doing.

[00:34:47] Speaker 05:
Don't you think that something more needs to be given to the court under these circumstances?

[00:34:52] Speaker 05:
Well, Your Honor, I think that in terms of the Hard Rock Mining Rule, we are just in the point of going for outreach because we do have... See, I'm going to have expected a response from EPA that says, we're doing so many other rule makings in various areas, and we have covered 90% of the problem.

[00:35:12] Speaker 05:
And the states have covered 6% of the remainder of the problem.

[00:35:17] Speaker 05:
So what we're dealing with here is only a 4% problem in my hypothetical.

[00:35:22] Speaker 05:
But I don't even get a sense of that from the papers that are before the court.

[00:35:29] Speaker 07:
Well, this rule actually is a lot different from the other rules that EPA has dealt with that you've talked about, like Clean Air Act, Clean Water Act, or RITRA, because it's going to be EPA and EPA alone that has to administer it.

[00:35:42] Speaker 07:
In most of the other programs, states administer it.

[00:35:44] Speaker 07:
So the whole cost of this rule hits EPA, and it's going to cut back EPA Superfund budget.

[00:35:51] Speaker 07:
And EPA is actually concerned

[00:35:53] Speaker 07:
that when the rules are implemented, that it's going to have to cut back on their cleanups because of the cost of this rule.

[00:36:00] Speaker 05:
Do you know what's happened in other cases when statutory requirements have been ignored and courts have not been able to get responses from the agencies?

[00:36:18] Speaker 07:
Well, Your Honor, EPA is committed to proposing.

[00:36:21] Speaker 05:
Are you aware?

[00:36:22] Speaker 05:
I mean, there are very serious consequences here.

[00:36:25] Speaker 07:
Yes, EPA is aware of that.

[00:36:28] Speaker 07:
And EPA takes this rule making very seriously.

[00:36:29] Speaker 05:
And I don't think the court would enjoy, in any sense of the word, getting to that point.

[00:36:40] Speaker 05:
But surely you have to give us something

[00:36:45] Speaker 05:
to avoid that type of drastic action.

[00:36:50] Speaker 07:
Well, Your Honor, what I can say today is that the schedule we proposed for the Hard Rock Mining Rule, EPA, is on top of that schedule and is doing exactly what it says.

[00:36:58] Speaker 05:
So if the court asked for a schedule as to the three other industries, from what you're telling me, EPA would file a piece of paper that says we can't do that because we haven't made up our mind whether to do anything.

[00:37:12] Speaker 07:
EPA would have to evaluate a schedule and propose it to me.

[00:37:16] Speaker 07:
At this point, I don't know what that schedule would be for those other industries.

[00:37:20] Speaker 05:
You just told me that they couldn't do that because they haven't made up their minds whether they're going to do anything.

[00:37:26] Speaker 07:
Well, they could provide dates by which they would make up their minds as to whether they believe it's necessary to issue rules for those other industries.

[00:37:36] Speaker 07:
But they haven't even reached that decision yet.

[00:37:38] Speaker 07:
They haven't reached the decision whether they believe those other industries warrant this type of regulation.

[00:37:45] Speaker 07:
Because financial assurance, it doesn't automatically come into the super fund to benefit the super fund, but it immediately costs the super fund.

[00:37:54] Speaker 07:
EPA has a very tight budget.

[00:37:56] Speaker 07:
This program is going to be totally administered by EPA.

[00:37:59] Speaker 07:
It's going to be very costly.

[00:38:01] Speaker 07:
And when people provide financial assurance out there, EPA can't touch that money unless a facility that doesn't want to become a Superfund site does become a Superfund site.

[00:38:11] Speaker 07:
And then that entity has to default.

[00:38:14] Speaker 07:
Only then will that money benefit the Superfund.

[00:38:17] Speaker 07:
So it's highly speculative to EPA right now.

[00:38:20] Speaker 07:
And that's what it's concerned about, that EPA will even benefit.

[00:38:24] Speaker 07:
from the financial assurance rules.

[00:38:26] Speaker 07:
EPA hopes it will, but the Superfund may not benefit, at least in the short term, from these rules.

[00:38:33] Speaker 07:
And therefore, EPA is concerned that it will undermine the main purpose of CERCLA, and that is to clean up sites.

[00:38:39] Speaker 06:
Is that Congress's judgment?

[00:38:40] Speaker 06:
Isn't that Congress's judgment at the end of the day?

[00:38:42] Speaker 06:
They've said, do this.

[00:38:44] Speaker 06:
They're the ones in charge of funding.

[00:38:45] Speaker 06:
And it's not as though we can go, golly gee,

[00:38:48] Speaker 06:
looks like a bad call by Congress, let's ignore it.

[00:38:51] Speaker 06:
I mean, it just seems to me that argument isn't for us.

[00:38:54] Speaker 06:
EPA has access to members of Congress, and they need to explain that to them.

[00:38:58] Speaker 06:
But so far, for 30 years, Congress hasn't changed its mind.

[00:39:02] Speaker 06:
And in fact, last year said, we still mean it.

[00:39:07] Speaker 07:
Well, Congress

[00:39:11] Speaker 07:
My interpretation of what Congress said is a little different, but it is what it is.

[00:39:14] Speaker 06:
Do you think anything they said authored your deadlines?

[00:39:17] Speaker 07:
Well, I think the big concern is, is there really financial assurance out there?

[00:39:20] Speaker 06:
They know how to fix a statute, if they don't, if they want to.

[00:39:23] Speaker 06:
We can't combine unwritten meaning from what they said.

[00:39:27] Speaker 06:
They put rules in there for going forward.

[00:39:30] Speaker 06:
Now, most of it seemed to be stuff you should, as I said, show your work, stuff you should have already been doing for the last 30 years.

[00:39:35] Speaker 07:
Well, for example, Congress, the actual words of Congress was, we will have

[00:39:39] Speaker 07:
insurers, policing insurers as they manage hazardous substances.

[00:39:43] Speaker 07:
But CERCLA required that the General Accounting Office back in the 80s do a study of the insurance industry and they concluded that there was no insurance for pollution.

[00:39:52] Speaker 07:
So where is financial assurance going to come from?

[00:39:56] Speaker 07:
That's something that EPA is studying right now with the insurance industry and that's something that Congress seems concerned about each year.

[00:40:04] Speaker 07:
Is there really financial assurance available?

[00:40:07] Speaker 07:
Right now, we don't know, but we're studying that.

[00:40:10] Speaker 06:
I thought you said that you're requiring financial assurance in all your consent decrees.

[00:40:14] Speaker 07:
We do.

[00:40:15] Speaker 06:
Okay, then you must know where this financial assurance comes from.

[00:40:18] Speaker 07:
A lot of times it comes from self-insurance, or you have PRP groups that put money into a trust fund.

[00:40:25] Speaker 06:
I mean, so you have ideas for financial assurance and they're already being implemented, so this argument that you don't have any idea where financial assurance will come from, I guess I'm not understanding it.

[00:40:34] Speaker 07:
That's not what I'm saying, you're right.

[00:40:36] Speaker 07:
I'm saying is we're trying to investigate is there really in the financial industry and in the insurance industry, is it there?

[00:40:41] Speaker 07:
Is there financial assurance available for pollution risks?

[00:40:44] Speaker 07:
At this point, we're investigating it.

[00:40:46] Speaker 07:
We don't know.

[00:40:47] Speaker 07:
And the General Accounting Office back in the 80s found that it wasn't there.

[00:40:51] Speaker 07:
And so Congress is asking EPA, you better make sure that there is financial assurance out there.

[00:40:56] Speaker 07:
And so we are investigating it.

[00:40:58] Speaker 06:
Is this outline or framework that you did in April a publicly available document?

[00:41:04] Speaker 07:
When you're disclosing it to certain... Not yet, Your Honor, but when the document goes out for comment by stakeholders, it will be.

[00:41:12] Speaker 06:
I thought you said it had already been sent out to the insurance companies.

[00:41:14] Speaker 07:
No, we sent letters out to the insurance industry to try to start a dialogue with them about issues relating to financial assurance.

[00:41:21] Speaker 07:
And I believe that is listed on the Internet.

[00:41:23] Speaker 06:
You don't have anything more than soon for when that will be available?

[00:41:29] Speaker 07:
Well, I do know, for example, that the goal for the small business interests is between late May and August.

[00:41:36] Speaker 07:
That's the goal for starting that process.

[00:41:39] Speaker 07:
So there will be something done by at least that time.

[00:41:42] Speaker 06:
And that's just sending the framework out.

[00:41:44] Speaker 06:
And yet you still think it would be a good time for that to come back and respond to it and have a draft rule by a year later?

[00:41:53] Speaker 07:
Well, we'll have a draft rule done by later this year or probably early next year for interagency review.

[00:42:03] Speaker 07:
So the structure they have can be used to develop the wording of the rule.

[00:42:10] Speaker 07:
The structure is the concepts of how they're going to handle everything in the rule.

[00:42:14] Speaker 07:
And once they do that, they can put it into words.

[00:42:16] Speaker 07:
But what they really want now are comments from the stakeholders and especially states that could have preemption issues here with their regulatory programs for mines.

[00:42:27] Speaker 07:
So that's what we're trying to do right now, Your Honor.

[00:42:29] Speaker 06:
Can you tell me why John Robeson's declaration doesn't establish standing?

[00:42:34] Speaker 06:
It seems very particularized.

[00:42:35] Speaker 06:
He talks about not just backwards harm, but forthcoming harm, risk, impending minding action that's going to compound existing environmental degradation.

[00:42:50] Speaker 06:
And real concerns in this area, because it's happened again and again and again, that after that damage happens, there's nobody there to pay for the cleanup.

[00:42:57] Speaker 07:
Well, yes, Your Honor, I can.

[00:42:59] Speaker 07:
First of all, in the Stibnite mine, EPA itself has done cleanups at that site by issuing orders.

[00:43:06] Speaker 06:
I'm talking about the Stibnite mine.

[00:43:06] Speaker 06:
I'm talking about the environmental harm, substantial risk of environmental harm that Minus Gold Company is going to create as it goes forward with its own exploration of mining activities.

[00:43:20] Speaker 07:
Well, if Midas Gold goes forward, and right now my understanding is their plans are on hold because of citizen interest groups out there, but if you assume that their activity goes on, their activity will largely be on Forest Service land, and the Forest Service now has mining regulations that include financial assurance.

[00:43:39] Speaker 07:
And Mr. Robinson admits that and doesn't say why those regulations won't provide for financial assurance.

[00:43:46] Speaker 06:
He says those bonds have not been enough in the past.

[00:43:49] Speaker 07:
Well, based on what's going on now, he hasn't shown why they won't be good in the future, and EPA is going to be... How do you ever show they won't be good in the future, other than saying it wasn't good enough the last three times?

[00:44:00] Speaker 07:
Well, right now, we don't even know if Midas Gold is going to do anything, because they haven't discovered any gold.

[00:44:06] Speaker 07:
So it's highly speculative whether Midas Gold is going to mine in.

[00:44:11] Speaker 06:
They're investing an awful lot of resources in exploration and they've done enough studies to figure out that they're going to have to have

[00:44:20] Speaker 06:
ongoing water cleansing processes in this area, so it seems not speculative to me.

[00:44:27] Speaker 07:
Well, at this point, we don't know.

[00:44:29] Speaker 07:
If you assume that they're going to do something, then they will be subject to the Forest Service regulations, and EPA will be communicating with the Forest Service about the hard rock mining rule in the near future to coordinate the efforts.

[00:44:42] Speaker 07:
And that's one of the things that Congress wants EPA to do, coordinate with the Forest Service.

[00:44:47] Speaker 07:
So it's even possible that if Midas Gold does decide to mine, they could be subject to the hard rock mining rules here that EPA is working on.

[00:44:57] Speaker 06:
Or, depending upon the consultation- Sounds like a good argument for him having standing, right?

[00:45:01] Speaker 06:
They're actually in a position to be- they're substantially invested in this area, and they're the ones who would likely be subject to any financial assurance regulation that you put out there.

[00:45:12] Speaker 07:
Well, first of all, we don't know whether they're going to do anything.

[00:45:16] Speaker 07:
I think right now it's highly speculative as to whether they're actually going to mine and whether there will be any sort of financial assurance problem.

[00:45:22] Speaker 07:
In all probability, they will have to provide financial assurance, at least under the Forest Service regulations.

[00:45:28] Speaker 06:
Does the exploration process itself create risk of environmental harm in an area where there's already a lot of contamination in the water and the rocks?

[00:45:38] Speaker 07:
I mean, they could in very small quantities.

[00:45:42] Speaker 07:
Your Honor, the main problem with mines is that once they operate over time, the waste areas are so huge.

[00:45:49] Speaker 07:
So the simple exploration, in my understanding, what MIDUS is doing is they're actually going to be exploring waste rock piles to see if there's sufficient gold in those waste rock piles so that they could extract it.

[00:46:01] Speaker 06:
So they're actively now engaged in exploration activities in that waste rock area?

[00:46:06] Speaker 07:
My understanding is that they have not, it was put on hold because of citizen groups' opposition to their activities.

[00:46:15] Speaker 06:
That's my understanding of what's going on.

[00:46:17] Speaker 06:
The exploration process was put on hold.

[00:46:18] Speaker 07:
My understanding is that their exploration process has been put on hold because of that.

[00:46:23] Speaker 07:
Exactly what the status is today, I'm not sure.

[00:46:25] Speaker 07:
But we don't know if they will ever do work.

[00:46:28] Speaker 07:
They may decide it's not economical.

[00:46:30] Speaker 07:
We just don't know at this point, Your Honor.

[00:46:32] Speaker 07:
But at bare minimum, they will be subject to the Forest Service regulations, and EPA will be communicating with them.

[00:46:38] Speaker 07:
And to the extent any of their work is on state land,

[00:46:41] Speaker 07:
There are state regulations now in place for mining and for financial assurance that were not in place when Superfund was passed back in 1980.

[00:46:52] Speaker 04:
Thank you, Your Honors.

[00:47:06] Speaker 02:
May it please the court, my name is Michael Giannato and I'm here on behalf of the National Mining Association.

[00:47:13] Speaker 02:
I'm happy to answer any questions you have off the bat, but if there are none at the outset, I'd like to focus my limited time on two issues.

[00:47:21] Speaker 02:
One is that there is, that mandamus should not issue here because there is no... Don't you need to argue whether you have a right to even intervene before you can talk to us about the merits?

[00:47:32] Speaker 02:
Well, I think we do have a right to intervene, Judge Millett.

[00:47:36] Speaker 02:
EPA, I'm sorry, the petitioners here are asking for specific relief.

[00:47:41] Speaker 06:
They're not asking that EPA... Is it your position that EPA could walk away from this?

[00:47:47] Speaker 06:
interest in issuing a hard rock mining rule?

[00:47:53] Speaker 06:
I thought that was your position.

[00:47:54] Speaker 02:
I think that is correct, but the position of petitioners is that EPA cannot do that, and they have to issue a rule for hard rock mining.

[00:48:04] Speaker 02:
is determined by the claim that is being made.

[00:48:08] Speaker 02:
And so if the petitioners prevail, there will be these extra financial assurance burdens on us.

[00:48:14] Speaker 02:
And the petitioners stated when they were arguing, look, we've admitted these will have great incentives.

[00:48:20] Speaker 02:
I don't think they will.

[00:48:21] Speaker 02:
But the burdens they will impose on us are unnecessary financial burdens, because right now, modern mining and financial assurance is only going to apply to current and future operations.

[00:48:31] Speaker 06:
Where did you and your motion to intervene

[00:48:34] Speaker 06:
established standing.

[00:48:37] Speaker 02:
I think in our motions convened and the attached affidavits.

[00:48:40] Speaker 06:
They were attached to your reply?

[00:48:41] Speaker 02:
They were attached to the reply brief.

[00:48:43] Speaker 06:
So on the other side, nobody had any chance to address those in their briefing?

[00:48:48] Speaker 06:
I mean I thought it was pretty established in this court and in the law generally that if you want to intervene you need to establish standing and you're supposed to do that in your opening documents so that other people have a chance to respond.

[00:49:00] Speaker 06:
And so I'm not sure what we're supposed to do with your application which the motion itself does not do anything to establish standing and the reply

[00:49:08] Speaker 06:
I guess you're correct, you put declarations there, but we don't normally entertain arguments raised... But the motion of Freeport, for instance, attached the declaration of Mr. Cobb, and that's an NMA member.

[00:49:20] Speaker 02:
And so we relied on that in part two.

[00:49:22] Speaker 06:
Well, then maybe Freeport gets to intervene, but I don't see how that lets the National Mining Congress intervene.

[00:49:26] Speaker 02:
Your Honor, my understanding is that when standing is pretty much obvious, which we thought it was here, we didn't have to submit affidavits.

[00:49:33] Speaker 02:
And we did it out of an abundance of caution.

[00:49:35] Speaker 06:
I guess it's hard to say how it's obvious if your merits argument is rule.

[00:49:39] Speaker 06:
What rule?

[00:49:39] Speaker 06:
They don't have to do any rule.

[00:49:41] Speaker 06:
They're not committed to any regulation of us at all.

[00:49:44] Speaker 02:
That is our argument.

[00:49:45] Speaker 02:
But the petitioner's argument is they have to have a rule.

[00:49:47] Speaker 02:
And it will apply to the mining industry.

[00:49:49] Speaker 02:
And so we think it's fairly obvious that it's going to apply to some or all of our members.

[00:49:54] Speaker 02:
And that's why we did not submit affidavits with the original petition.

[00:49:59] Speaker 02:
We frankly didn't think they would challenge our standing.

[00:50:01] Speaker 02:
But in any event, we submitted them out of an abundance of caution with the reply brief so the court could see that, in fact, we do have a direct and substantial interest in this because we believe that if petitioners prevail and EPA has to regulate hard rock mining, that will impose increased burdens on us.

[00:50:28] Speaker 02:
Can I continue?

[00:50:31] Speaker 02:
In terms of duty, I'm talking about duty as to the mining industry.

[00:50:36] Speaker 02:
There's nothing in 108B that says that EPA has to regulate the mining industry, and I think the petitioners agree with that.

[00:50:42] Speaker 02:
There's nothing in the legislative history that says you gotta go after mining.

[00:50:46] Speaker 02:
But the petitioner's argument is that the duty was created when EPA in 2009 announced that the mining industry poses dangers and we're gonna go after them.

[00:50:57] Speaker 06:
I think they say the duty is to identify

[00:51:00] Speaker 06:
the absolute first priority area that they want to address.

[00:51:05] Speaker 06:
They had to come forward and identify that first area of focus for these financial assurance regulations.

[00:51:10] Speaker 06:
And yeah, the statute said, you guys figure out what the right one is.

[00:51:14] Speaker 06:
It didn't say mining versus petroleum versus chemicals.

[00:51:17] Speaker 06:
It said, go find the one

[00:51:20] Speaker 06:
that needs to be regulated first.

[00:51:22] Speaker 06:
And they said that's hard rock mining.

[00:51:24] Speaker 02:
And we think they're wrong.

[00:51:25] Speaker 02:
We think they're wrong on the dangers, as we've explained in the brief.

[00:51:29] Speaker 06:
And if a rule ever issues in our lifetimes, you'll be able to challenge that rule on exactly the arguments you're making now.

[00:51:38] Speaker 06:
It seems a bit premature to say in advance of

[00:51:43] Speaker 06:
even a notice of proposed rulemaking, that you're injured, that we should be addressing these arguments?

[00:51:50] Speaker 02:
Well, I think you shouldn't be addressing these arguments, but I think we should be able to argue that when they issue a proposed rule.

[00:51:57] Speaker 02:
And they should be able to decide, once they get the comments, once they consult with us, with the states, with the BLM, with the Forest Service, with everyone, that they made a mistake.

[00:52:06] Speaker 02:
and that in fact there is no danger here from current and future mines.

[00:52:10] Speaker 02:
There is no need for financial assurance.

[00:52:13] Speaker 02:
There is no need for regulations consisting with a degree and duration of risk and say, so we're not going to regulate the mining industry.

[00:52:19] Speaker 05:
So let me ask you, are your members prepared promptly to fully inform

[00:52:24] Speaker 05:
EPA, of all the things you have just said?

[00:52:29] Speaker 02:
Absolutely.

[00:52:30] Speaker 05:
And have you been in that position for the last 30 years?

[00:52:33] Speaker 02:
Well, Your Honor, they only identified hard rock mining in 2009.

[00:52:37] Speaker 02:
That's when they first started.

[00:52:39] Speaker 02:
They didn't identify anyone.

[00:52:40] Speaker 02:
And even though they didn't ask for comments, after they identified comments, after they identified hard rock mining, we did submit comments.

[00:52:47] Speaker 02:
They didn't ask for it, but we did.

[00:52:48] Speaker 02:
The National Mine Association did.

[00:52:51] Speaker 05:
So you've been available

[00:52:53] Speaker 05:
at least since 2009, to provide EPA with all the information it would need to make a decision about rulemaking.

[00:53:05] Speaker 02:
We've been available and have tried to contact the agency.

[00:53:08] Speaker 05:
So is that a yes answer?

[00:53:10] Speaker 02:
Yes.

[00:53:11] Speaker 06:
Not just available, I mean you said you, I mean I saw you actually sent in a lengthy, I think it was you, maybe it was one of your members sent in lengthy submissions to EPA discussing these issues about current coverage, current assurances, why you don't need to be regulated.

[00:53:27] Speaker 06:
They've already got that in their files.

[00:53:28] Speaker 02:
They have that and they haven't officially responded, although in the Johnson affidavit he mentions

[00:53:34] Speaker 02:
that they've gotten comments along those lines.

[00:53:36] Speaker 02:
And that's one of the things they have to work through, whether there really is a need here for this.

[00:53:41] Speaker 06:
When did you send that in?

[00:53:42] Speaker 06:
When was that sent in, 2009 or 2010?

[00:53:45] Speaker 02:
It was sent in.

[00:53:45] Speaker 02:
They asked for comments on the other three industries.

[00:53:48] Speaker 06:
No, no, I'm talking about them.

[00:53:50] Speaker 06:
You said after they came out and said, you think we have to go after hard rock mining first, and then you all, Swayaspanti, sent in what was a very in-depth, in my view, I'm not an expert, but in-depth

[00:54:00] Speaker 02:
It was in the winter of 2009, 2010, that time period.

[00:54:05] Speaker 02:
I don't know exactly when, but it was around then.

[00:54:07] Speaker 02:
It was pretty shortly after they had announced the hard rock mining as the priority.

[00:54:11] Speaker 06:
So they've had a wealth of information from you all already since 2009?

[00:54:16] Speaker 02:
They have, Your Honor.

[00:54:18] Speaker 02:
And we've been willing to meet with them, and we're still willing to meet with them.

[00:54:21] Speaker 02:
And we want to make sure this is done right.

[00:54:23] Speaker 02:
But one of the things we want to make sure of is that this court does not do something like say, you've got to regulate the mining industry.

[00:54:32] Speaker 02:
I think that that you cannot do because they can decide they were wrong after they review our comments, after they hear from everybody else.

[00:54:40] Speaker 02:
And they can decide there is no risk here, or no significant enough risk, or there's adequate financial assurance from other agencies.

[00:54:48] Speaker 02:
And that's very important.

[00:54:49] Speaker 02:
And we think the evidence that we've put in shows that.

[00:54:53] Speaker 02:
And what they've relied on are legacy money, old money, not current, future money.

[00:54:58] Speaker 05:
Sort of the notion that the past is a predictor of the future.

[00:55:03] Speaker 05:
There's no indication all of your members are going out of business, is there?

[00:55:07] Speaker 02:
There is no indication that we're going out of business, and the past is not a prediction of the future.

[00:55:12] Speaker 05:
I understand that, but I mean history, just high school history, mining and hard rock mining has been going on in this country for a long time.

[00:55:23] Speaker 05:
And there's no representation that this type of work is about to cease.

[00:55:31] Speaker 02:
Correct, Your Honor.

[00:55:33] Speaker 02:
It's not about to cease.

[00:55:34] Speaker 02:
But nowadays, before you can start a mine, you have to submit a detailed application to the state or the Federal Land Management Agency.

[00:55:43] Speaker 02:
You have to go through the NEPA process if it's on federal land.

[00:55:47] Speaker 05:
But you see, you heard me when I was asking counsel.

[00:55:51] Speaker 05:
EPA hasn't made that type of argument to the court.

[00:55:56] Speaker 02:
That's why we propose to intervene, Your Honor.

[00:55:59] Speaker 05:
Yes, I understand that point.

[00:56:01] Speaker 05:
We don't have anything before us to support this analysis.

[00:56:08] Speaker 05:
What we have is Mr. Johnson's declaration.

[00:56:14] Speaker 02:
No, Your Honor, you have the mining appendix, which has the comments that we submitted to EPA.

[00:56:19] Speaker 05:
We have your comments, but as you say, you're still waiting to hear from EPA.

[00:56:27] Speaker 02:
That's right.

[00:56:29] Speaker 06:
Have you sent any additional, I mean you can always send information to an agency, have you sent any additional information since 2009 for that submission?

[00:56:37] Speaker 02:
I think different members of the mining industry have and some have met with EPA work groups or whatnot to work through things and we want to meet with them.

[00:56:47] Speaker 02:
EPA has to set up this small business advisory panel, advocacy panel I think it's called, and 81% of the mining companies that will be subject to these rules if they are promulgated are small miners.

[00:57:01] Speaker 02:
and we've tried to work with them to set up that panel.

[00:57:05] Speaker 02:
I think people are waiting for EPA to have some sort of framework so that we can help them more.

[00:57:10] Speaker 05:
Well, EPA says it has a framework.

[00:57:14] Speaker 05:
We don't know what it is, but they say they have a framework.

[00:57:19] Speaker 05:
And what's mind-boggling is the type of argument that's being made when surely a framework

[00:57:30] Speaker 05:
even taking into account changing times, is something that you would assume any management person would have developed almost from the beginning.

[00:57:44] Speaker 02:
I can't speak for you.

[00:57:45] Speaker 05:
I know you can't.

[00:57:46] Speaker 05:
And I hope you will convey to your members the difficulty that this situation places the court in, where we have a statute that Congress has passed

[00:58:01] Speaker 05:
and the agency has had a number of decades to respond.

[00:58:11] Speaker 02:
Yeah, I understand, Your Honor.

[00:58:12] Speaker 02:
Again, I point out that for Hard Rock Mining, they only identified that industry five years ago, five and a half years ago.

[00:58:19] Speaker 02:
Now that, I'm not saying five and a half years is a short time.

[00:58:24] Speaker 02:
But from our point of view, our concern is that if the agency gets rushed through this, it may reach the wrong decision.

[00:58:32] Speaker 05:
For instance, when they identified mining... But, Counsel, you told me they've had your information from your members since 2009.

[00:58:41] Speaker 05:
to use the word rush in that context is difficult to understand.

[00:58:49] Speaker 02:
Yes, Your Honor, but once they come up with a framework and Mr. Sullivan said they're gonna share it with the industry, so hopefully they will and we'll get a chance to comment on it.

[00:58:58] Speaker 05:
But you understand my point about if you have the data, you can look at it and you might decide we don't need to do anything.

[00:59:08] Speaker 05:
But that's not what EPA is telling us now.

[00:59:12] Speaker 05:
They're telling us they are, as far as I heard counsel today, and in the brief, and in Mr. Johnson's declaration, they're proposing to have a proposed rule by the end of this year.

[00:59:28] Speaker 05:
Although I heard that slip a little in counsel's statement, but still,

[00:59:33] Speaker 05:
That's the representation to the court.

[00:59:36] Speaker 02:
I thought the representation was a proposed rule by August 2016, so about a year and a quarter from now.

[00:59:42] Speaker 06:
I think you said for internal governmental discussion.

[00:59:46] Speaker 02:
Correct.

[00:59:47] Speaker 02:
But Your Honor, our view is that once they do look at our comments, and we don't know if they have,

[00:59:51] Speaker 02:
And once they hear from us, they can still change their mind and say we're not going to... Of course they can change their mind.

[00:59:56] Speaker 02:
Well, that's not what the petitioners are asking for.

[00:59:58] Speaker 02:
They're saying, they want an order saying they can't change their mind.

[01:00:01] Speaker 05:
No, petitioners say, let's hear from the agency.

[01:00:03] Speaker 05:
Let's do something consistent with this instruction from Congress.

[01:00:08] Speaker 05:
And you're representing that your industry, not your industry, excuse me, your members have provided EPA with all of the information that it needs to make a decision

[01:00:20] Speaker 05:
And EPA apparently agrees because it's telling us it's ready to get this proposed rule.

[01:00:28] Speaker 02:
We've provided the agency with information showing that mining doesn't pose dangers or significant dangers, and that they're taken care of by existing financial assurance.

[01:00:39] Speaker 02:
We don't know whether EPA's given that any credence or looked at it, but at some point, if they propose a rule and we think they're wrong, we can submit comments.

[01:00:47] Speaker 02:
And if they don't accept our comments and we still think they're wrong, we can be back in this court saying they're arbitrary.

[01:00:53] Speaker 05:
So let's get started.

[01:00:56] Speaker 02:
And that's what they've been doing, according to the Johnson Affidavit, they've been doing various things.

[01:01:00] Speaker 02:
But again, I'm not here to speak for EPA.

[01:01:02] Speaker 02:
I just want to make sure there's enough time so that we can be heard before them and they can change their minds if we convince them that they're incorrect on a structure of a rule.

[01:01:11] Speaker 02:
Like even if they decide to go forward, they're going to propose a rule structure and what financial assurance mechanisms and in what amounts.

[01:01:19] Speaker 02:
And we're going to want to comment on that.

[01:01:21] Speaker 06:
Because even if we believe there should be some regulation.

[01:01:26] Speaker 06:
subject to a lot of regulations, including I guess, or service or BLM, financial assurance requirements.

[01:01:33] Speaker 06:
How much time period were you given to comment on those rules when they were first created?

[01:01:37] Speaker 02:
The BLM rules that are now in existence were promulgated, I believe, at the end of 2000.

[01:01:46] Speaker 02:
I don't remember the exact comment period, but there was a whole NRC study before that.

[01:01:52] Speaker 02:
I don't know if you... I was cited our briefs in 1998, and there were a lot of efforts, both in Congress and Interior, and this was developed

[01:02:04] Speaker 02:
with a lot of consultations before the rule was even proposed, that there was a lot of consultations.

[01:02:08] Speaker 06:
Well, it seems like they're doing a lot of that here, and so I think it was just an ordinary comment period for that rule.

[01:02:14] Speaker 02:
Correct.

[01:02:15] Speaker 02:
It might have been extended because it was a major rule or something, but, you know, I don't know if it was 60 days or 120 days or whatever it was.

[01:02:22] Speaker 02:
Not three years.

[01:02:22] Speaker 02:
No, it was not three years, Your Honor.

[01:02:24] Speaker 02:
It was not three years.

[01:02:26] Speaker 02:
I just want to run out of time, but I want to comment on the Robson declaration, because you mentioned it.

[01:02:35] Speaker 02:
You know, part of his declaration deals with a wholly abandoned old mine, and financial assurance can't do anything about that.

[01:02:40] Speaker 02:
I'm more concerned about the forward-looking part.

[01:02:42] Speaker 02:
Well, you asked if the past was prologue to the future, and I don't think it is.

[01:02:46] Speaker 02:
My understanding right now is that

[01:02:49] Speaker 02:
at that mine site Midas Gold wants to prospect, which is even before exploration.

[01:02:56] Speaker 02:
And I don't think they're even doing that yet.

[01:02:58] Speaker 02:
But before they can explore, and certainly before they can mine, and unlike what happened in the past with Bunker Hill,

[01:03:06] Speaker 02:
They are going to have to submit a proposed plan of operations to the Forest Service.

[01:03:11] Speaker 02:
They're going to have to submit proposed plans to show how they're going to protect the environment, the monitoring they're going to do.

[01:03:17] Speaker 02:
They're going to have to have a bond to make sure they can clean it up afterwards.

[01:03:21] Speaker 02:
The process will go through NEPA because it's the Forest Service, and they will have to make sure, or they will have to take all precautions to make sure that nothing's going to go wrong if it doesn't come before it.

[01:03:36] Speaker 06:
He says, you say, but he says, bond, shmon.

[01:03:40] Speaker 06:
It's never been enough in the past.

[01:03:42] Speaker 06:
Look around Idaho.

[01:03:44] Speaker 06:
It's littered with pollution from companies that had bonds.

[01:03:47] Speaker 06:
And so saying that, I don't know how you can say they'll have to have every single assurance there when, I assume the whole reason Congress wanted EPA to do this is it didn't think these other mechanisms by themselves were sufficient.

[01:03:59] Speaker 06:
And Mr. Robinson says it hasn't been sufficient in the past.

[01:04:03] Speaker 02:
I think he points to one side in particular.

[01:04:05] Speaker 02:
The rest he just mentions are historic mines.

[01:04:07] Speaker 02:
He doesn't mention whether they're bonded or not.

[01:04:09] Speaker 06:
Historic mines where bonds and other assurance mechanisms were not enough.

[01:04:13] Speaker 02:
They were not enough then, and the regulations weren't enough then to prevent catastrophes from happening.

[01:04:20] Speaker 02:
The regulations are now sufficient.

[01:04:23] Speaker 02:
The bonding is sufficient.

[01:04:24] Speaker 02:
They have the burden of proof on standing, and they haven't satisfied it.

[01:04:30] Speaker 04:
Thank you very much.

[01:04:40] Speaker 01:
Thank you, Your Honor.

[01:04:41] Speaker 01:
I'll be brief.

[01:04:43] Speaker 01:
The idea that other rules out there are adequate to solve this problem is just wrong.

[01:04:49] Speaker 01:
As Judge Millett has pointed out, this is for Congress to decide that EPA needs to enact these rules, even though there are already other rules that provide small amounts of inadequate assurance for a patchwork of sites.

[01:05:01] Speaker 01:
But Congress at EPA needs to issue these.

[01:05:03] Speaker 01:
So that's the bottom line.

[01:05:05] Speaker 01:
I would also say that EPA's own findings, EPA has found that current assurances are not adequate

[01:05:10] Speaker 01:
particularly in the case of mines, to cover groundwater remediation and surface water remediation.

[01:05:15] Speaker 01:
This is often very expensive, very complicated.

[01:05:17] Speaker 01:
Some mining sites require water treatment in perpetuity.

[01:05:21] Speaker 01:
And EPA's findings, which are cited in our briefs, are that current assurances don't cover that kind of work.

[01:05:26] Speaker 01:
And that's the problem we're trying to address here.

[01:05:28] Speaker 06:
Can you address just briefly how Mr. Robinson's declaration satisfies Clapper's requirements?

[01:05:37] Speaker 01:
Susan B. Anthony, I think the Supreme Court said that it was either certainly impending or substantially likely.

[01:05:44] Speaker 06:
And I think that... How do we know it's substantially likely if we aren't clear yet on whether Midas is going to do anything at all?

[01:05:52] Speaker 01:
I think Midas is at the exploration stage, and we do think that if they are finding gold there, that they are going to continue mining.

[01:05:59] Speaker 01:
But I would again say that that's not the only declaration we've submitted.

[01:06:02] Speaker 01:
So for example, Mr. Weber's declaration, they are currently mining.

[01:06:05] Speaker 01:
They have been for some time.

[01:06:07] Speaker 01:
They are continuing to mine.

[01:06:09] Speaker 01:
So Midas, it's true because they haven't actually gotten to the point that they have started a full-fledged operation.

[01:06:14] Speaker 01:
You can see how there would be some questions there.

[01:06:17] Speaker 01:
But the mine in Bingham County that Mr. Weber discusses,

[01:06:21] Speaker 01:
They are currently mining there.

[01:06:22] Speaker 01:
There's no question that they're going to continue.

[01:06:24] Speaker 01:
No one has offered any suggestion that they're going to shut their doors tomorrow.

[01:06:27] Speaker 06:
Is that current mining operation already subject to financial assurance requirements?

[01:06:33] Speaker 01:
They are not under circulation, Your Honor.

[01:06:35] Speaker 06:
No, but under other things.

[01:06:36] Speaker 06:
So is there a showing, again, of substantial likelihood that the existing financial assurance obligations won't be enough in that case?

[01:06:47] Speaker 06:
Or is it your view that we don't have to, under season Anthony or Clapper, just trying to navigate these?

[01:06:52] Speaker 06:
It's a difficult area to have to articulate the injury.

[01:06:57] Speaker 06:
When you're trying to force regulation, it's obviously a little bit harder to show.

[01:07:05] Speaker 06:
It doesn't mean it can't be shown.

[01:07:07] Speaker 01:
Your Honor, in National Wildlife Federation v. Hodel and also in Sierra Club v. EPA 129, F3rd 137 at page 139, this Court said that the existence of alternate regulatory schemes

[01:07:22] Speaker 01:
does not defeat standing to challenge an agency's failure to issue a separate regulatory scheme, even if it addresses the same problem that Congress required.

[01:07:30] Speaker 01:
So Congress saw a need for a different regulatory scheme.

[01:07:32] Speaker 06:
The Supreme Court and Clapper seem to have a different view of when there's alternative ways of skinning the cat, as it were.

[01:07:39] Speaker 06:
I'm sorry, Your Honor?

[01:07:40] Speaker 06:
In Clapper, they thought the Supreme Court, which is more recent, thought that it was

[01:07:46] Speaker 06:
alternative ways of doing the same thing and that had varying on what understanding could be shown because there were different ways of getting the information, listening in on foreign communications.

[01:07:57] Speaker 01:
Well, Your Honor, we've shown that the, or at least Mr. Weber has alleged and nobody has contested that the existing reclamation plan at the Bingham County line has not been adequate.

[01:08:08] Speaker 01:
He's alleging that the Great Salt Lake is incredibly contaminated, that the wildlife that relies on that habitat is suffering, that he's unable to view it because of the contamination.

[01:08:19] Speaker 01:
We're saying that the bond they've got out there is not doing the job.

[01:08:22] Speaker 01:
That mine is continuing to release an enormous amount of hazardous substances, and that's continuing to injure Mr. Weber.

[01:08:29] Speaker 01:
I would like to briefly address the National Mining Association's argument that the agency can still change its mind.

[01:08:37] Speaker 01:
That doesn't have to issue these rules.

[01:08:40] Speaker 04:
All right, but make it quick.

[01:08:42] Speaker 01:
Oh, sorry.

[01:08:43] Speaker 01:
EPA, like any other federal agency, can change its mind where that change is supported by evidence in the record, where that change is rational, and where the agency offers some explanation for that change.

[01:08:54] Speaker 01:
We seriously doubt whether they could meet that bar here, given what they've already found.

[01:08:59] Speaker 01:
But right now, that question's academic.

[01:09:00] Speaker 01:
We have findings from the agency that there is serious risk.

[01:09:04] Speaker 01:
And they have not retreated from those findings.

[01:09:06] Speaker 01:
And so they do have to issue rules.

[01:09:08] Speaker 01:
I'm out of time.

[01:09:09] Speaker 01:
Unless the court has further questions, we ask the court grant the petition for rudiment DMS.

[01:09:13] Speaker 01:
All right.

[01:09:14] Speaker 01:
Thank you.