Idaho Conservation League v. Andrew Wheeler , 930 F.3d 494 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2019 Decided July 19, 2019
No. 18-1141
IDAHO CONSERVATION LEAGUE, ET AL.,
PETITIONERS
v.
ANDREW WHEELER, ADMINISTRATOR,
U.S. ENVIRONMENTAL PROTECTION AGENCY AND
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
ALBEMARLE CORPORATION, ET AL.,
INTERVENORS
On Petition for Review of Final Action by
the United States Environmental Protection Agency
Amanda W. Goodin argued the cause for the petitioners.
Jan E. Hasselman and Jaimini Parekh were with her on brief.
Patti A. Goldman entered an appearance.
Jeffrey Bossert Clark, Assistant Attorney General, United
States Department of Justice, argued the cause for the
respondents. Jonathan Brightbill, Deputy Assistant Attorney
General, and John E. Sullivan, Attorney, were with him on
brief.
2
Brian T. Burgess argued the cause for the Industry
Intervenors. Michael S. Giannotto, Andrew Kim, Kevin P.
Martin, Keith Bradley, Carolyn L. McIntosh, Kevin A. Gaynor,
Jeremy C. Marwell, Joshua S. Johnson, George A. Tsiolis,
Chris S. Leason, Andrew E. Dudley, Thomas A. Lorenzen and
Preetha Chakrabarti were with him on brief.
Mark Brnovich, Attorney General, Office of the Attorney
General for the State of Arizona, Dominic E. Draye, Solicitor
General at the time the brief was filed, Andrew G. Pappas and
Keith Miller, Associate Solicitors General, Leslie C. Rutledge,
Attorney General, Office of the Attorney General for the State
of Arkansas, Nicholas J. Bronni, Solicitor General, Jeff
Landry, Attorney General, Office of the Attorney General for
the State of Louisiana, Elizabeth B. Murrill, Solicitor General,
Michelle White, Assistant Attorney General, Timothy C. Fox,
Attorney General, Office of the Attorney General for the State
of Montana, Dale Schowengerdt, Solicitor General, Jahna
Lindemuth, Attorney General, Office of the Attorney General
for the State of Alaska, Ashley Brown, Assistant Attorney
General, Cynthia H. Coffman, Attorney General, Office of the
Attorney General for the State of Colorado, Bill Schuette,
Attorney General, Office of the Attorney General for the State
of Michigan, Matthias Sayer, Special Assistant Attorney
General, Office of the Attorney General for the State of New
Mexico, Alan Wilson, Attorney General, Office of the Attorney
General for the State of South Carolina, James Emory Smith,
Jr., Deputy Solicitor General, Sean Reyes, Attorney General,
Office of the Attorney General for the State of Utah, Tyler
Green, Solicitor General, Lara Katz, Special Assistant
Attorney General, Office of the Attorney General for the State
of New Mexico, Adam Paul Laxalt, Attorney General, Office
of the Attorney General for the State of Nevada, Lawrence
VanDyke, Solicitor General, Marty J. Jackley, Attorney
General, Office of the Attorney General for the State of South
3
Dakota, Steven R. Blair, Assistant Attorney General, Erik E.
Petersen and Michael M. Robinson, Senior Assistant Attorneys
General, Office of the Attorney General for the State of
Wyoming, Brad D. Schimel, Attorney General at the time the
brief was filed, Office of the Attorney General for the State of
Wisconsin, Misha Tseytlin, Solicitor General at the time the
brief was filed, and Luke N. Berg, Deputy Solicitor General at
the time the brief was filed, were on joint brief for State
Intervenors’ in support of the respondents. Lee P. Rudofsky,
Solicitor, and Jamie L. Ewing, Assistant Attorney General,
Office of the Attorney General for the State of Arkansas,
Oramel H. Skinner, III, Solicitor, Office of the Attorney
General for the State of Arizona, and Steven C. Kilpatrick,
Assistant Attorney General, Office of the Attorney General for
the State of Wisconsin, entered appearances.
Steven G. Barringer was on brief for the amici curiae
Alaska Miners Association, et al. in support of the respondents.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In January
2017, acting pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42
U.S.C. § 9608(b), the Environmental Protection Agency (EPA)
proposed setting financial responsibility requirements for the
hardrock mining industry. Financial Responsibility
Requirements Under CERCLA § 108(b) for Classes of
Facilities in the Hardrock Mining Industry (Proposed Rule), 82
Fed. Reg. 3388 (Jan. 11, 2017). Other federal agencies, state
agencies and industry representatives submitted comments
opposing the EPA’s proposal as unnecessary due to existing
4
federal and state programs and modern mining practices. The
EPA ultimately agreed with the comments and announced in
February 2018 that it decided not to issue financial
responsibility requirements for the hardrock mining industry.
Financial Responsibility Requirements Under CERCLA
Section 108(b) for Classes of Facilities in the Hardrock Mining
Industry (Final Action), 83 Fed. Reg. 7556, 7556 (Feb. 21,
2018). Following the EPA’s announcement, six
environmental organizations—the Idaho Conservation League,
Earthworks, Sierra Club, Amigos Bravos, Great Basin
Resource Watch and Communities for a Better Environment
(collectively, “Environmental Groups”)—jointly petitioned for
review of the EPA’s decision, arguing that it is contrary to
CERCLA, arbitrary and capricious and procedurally defective.
For the reasons set forth infra, we deny the petition.
I. BACKGROUND
The Congress enacted CERCLA as a “response to the
serious environmental and health risks posed by industrial
pollution.” Burlington N. & Santa Fe Ry. Co. v. United States,
556 U.S. 599, 602 (2009). CERCLA mitigates the harm
caused by industrial pollution by “promot[ing] the ‘timely
cleanup of hazardous waste sites’” and by “ensur[ing] that the
costs of such cleanup efforts [are] borne by those responsible
for the contamination.” Id. (quoting Consol. Edison Co. v.
UGI Utils., Inc., 423 F.3d 90, 94 (2d Cir. 2005)). Specifically,
CERCLA provides the EPA with two mechanisms for doing
so. First, the EPA can take “response actions” to address past
or impending releases of hazardous substances. 42 U.S.C.
§ 9604. The EPA initially finances these response actions
with CERCLA’s Hazardous Substance Superfund (Superfund),
id. § 9611, after which the EPA can initiate cost-recovery
actions against responsible parties, id. § 9607(a). Second, the
EPA can compel responsible parties, via administrative or
5
court order, to undertake and finance response actions directly.
Id. § 9606(a).
To ensure that responsible parties have the wherewithal
either to reimburse the Superfund or to finance their own
response actions, CERCLA mandates that the EPA require
certain classes of facilities identified by the EPA to “establish
and maintain evidence of financial responsibility” by
obtaining, inter alia, insurance, surety bonds or letters of credit.
Id. § 9608(b). 1 The financial responsibility requirements
must be “consistent with the degree and duration of risk
associated with the production, transportation, treatment,
storage, or disposal of hazardous substances.” Id.
§ 9608(b)(1). Moreover, “[t]he level of financial
responsibility shall be initially established, and, when
necessary, adjusted to protect against the level of risk which the
[EPA] in [its] discretion believes is appropriate based on the
payment experience of the Fund, commercial insurers, court[]
settlements and judgments, and voluntary claims satisfaction.”
Id. § 9608(b)(2). CERCLA instructed the EPA to “identify
those classes [of facilities] for which requirements will be first
developed” by 1983, prioritizing “those classes of facilities,
owners, and operators which the [EPA] determines present the
highest level of risk of injury.” Id. § 9608(b)(1).
Twenty-six years after CERCLA’s mandated deadline, the
EPA finally announced in 2009, in response to litigation, its
decision to prioritize financial responsibility requirements for
the hardrock mining industry. Identification of Priority
Classes of Facilities for Development of CERCLA
Section 108(b) Financial Responsibility Requirements, 74 Fed.
1
CERCLA authorizes the President to issue financial
responsibility requirements, 42 U.S.C. § 9608(b), and the President
delegated his authority in relevant part to the EPA, Exec. Order No.
12,580, 3 C.F.R. 193, 194, 198 (1988).
6
Reg. 37,213, 37,213 (July 28, 2009); see Sierra Club v.
Johnson, No. C 08-01409, 2009 WL 482248, at *10 (N.D. Cal.
Feb. 25, 2009). It did not act on its announcement, however,
until the Environmental Groups petitioned for a writ of
mandamus from this Court directing the EPA to issue financial
responsibility requirements for the hardrock mining industry
among others. See In re Idaho Conservation League, 811 F.3d
502, 506 (D.C. Cir. 2016). While the petition was pending,
the parties agreed to a schedule requiring the EPA to issue a
proposed rule for the hardrock mining industry by December
1, 2016 and to take final action by December 1, 2017. Id. at
506–07. In approving the proposed schedule, this Court
emphasized that the EPA “retains ‘discretion to promulgate a
rule or decline to do so.’” Id. at 514 (quoting Defs. of Wildlife
v. Perciasepe, 714 F.3d 1317, 1325 n.7 (D.C. Cir. 2013)).
The EPA published its Proposed Rule on January 11, 2017.
82 Fed. Reg. at 3388. In the Proposed Rule, the EPA reviewed
three reports that examined past and present mining practices,
evidence of exposure to hazardous substances at mining sites
and releases at several recently or currently operating mines.
Id. at 3471–75. Based on the reports, the EPA found
“abundant evidence that hardrock mining facilities continue to
pose risks associated with the management of hazardous
substances at their sites,” id. at 3470, and accordingly proposed
issuing financial responsibility requirements for the industry,
id. at 3388.
The United States Department of the Interior’s Bureau of
Land Management, the United States Forest Service, several
state agencies and industry representatives submitted
comments opposing the Proposed Rule. See Final Action, 83
Fed. Reg. at 7560, 7566. The comments focused on two
alleged deficiencies in the Proposed Rule. First, the
commenters argued that the Proposed Rule “[r]elied on
7
inappropriate evidence, such as data that did not demonstrate
risk, and evidence not relevant to the facilities to be regulated
under the rule.” Id. at 7560. Second, the commenters urged
that the Proposed Rule “failed to consider relevant evidence,”
including “the role of federal and state mining programs and
voluntary protective mining practices in reducing risks at
current hardrock mining operations” as well as “the reduced
costs to the taxpayer resulting from effective hardrock mining
programs, including existing financial responsibility
requirements, and owner or operator responses.” Id. (footnote
omitted).
The EPA ultimately agreed with those opposed to the
Proposed Rule and announced on February 21, 2018 that it had
decided not to issue financial responsibility regulations for the
hardrock mining industry. Id. at 7556 (Final Action). In
particular, the EPA found that existing federal and state
programs as well as modern mining practices reduced the risk
that the EPA would be required to use the Superfund to finance
response actions at currently active mines. Id. The EPA also
explained in its Technical Support Document to the Final
Action why it no longer found persuasive many of the site-
specific case studies contained in the reports relied upon in the
Proposed Rule. Id. at 7581–83; CERCLA Section 108(b)
Hardrock Mining Final Rule Technical Support Document
(TSD) 1–71. In particular, the EPA observed that (1) some of
the sites discussed in the Proposed Rule operated before the
development of modern mining regulatory schemes, rendering
their “legacy contamination” irrelevant in determining modern
mining risks, (2) many of the sites were cleaned up without
Superfund expenditures—through either funds from private
parties or preexisting financial responsibility obligations—and
thus were irrelevant in determining risks of taxpayer funded
cleanups and (3) spills at several of the sites occurred as a result
of problems since addressed by updated state regulations. See
8
id. at 5–6. The Environmental Groups timely petitioned for
review. See 42 U.S.C. § 9613(a) (review must be sought
“within ninety days from the date of promulgation”).
II. ANALYSIS
We have jurisdiction to review regulations the EPA
promulgates under CERCLA. Id. Although it is debatable
whether the EPA’s Final Action qualifies as a “regulation,” 2
we have jurisdiction under the All Writs Act, 28 U.S.C.
§ 1651(a), to review the EPA’s “withdrawal of a proposed
rule . . . in order ‘to support [our] ultimate power of review.’”
Int’l Union, United Mine Workers of Am. v. U.S. Dep’t of
Labor, 358 F.3d 40, 43 (D.C. Cir. 2004) (alteration in original)
(quoting Telecomms. Research & Action Ctr. v. FCC, 750 F.2d
70, 76 (D.C. Cir. 1984)). We may set aside the EPA’s Final
Action if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law” or is “in excess of
statutory jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C. § 706(2)(A), (C). We address in
turn the Environmental Groups’ arguments that the Final
Action rests on an incorrect interpretation of CERCLA, is
2
To assess whether agency action constitutes a “regulation,”
we examine three factors: “(1) the Agency’s own characterization of
the action; (2) whether the action was published in the Federal
Register or the Code of Federal Regulations; and (3) whether the
action has binding effects on private parties or on the agency.”
Molycorp, Inc. v. EPA, 197 F.3d 543, 545–46 (D.C. Cir. 1999). The
first two factors indisputably cut in favor of finding the EPA’s Final
Action to be a regulation—the EPA characterized the Final Action
as a regulation and published it in the Federal Register, 83 Fed. Reg.
at 7556, 7557 n.8. It is unclear, however, whether the Final Action
binds private parties or the Agency because it simply manifests the
EPA’s decision not to promulgate financial responsibility
requirements for the hardrock mining industry.
9
arbitrary and capricious based on the record and is not a logical
outgrowth of the Proposed Rule.
A. Statutory Interpretation
The Environmental Groups mount two statutory
challenges. First, they claim that the EPA wrongly interpreted
“risk” in the operative provisions of 42 U.S.C. § 9608(b) as
limited to the risk of taxpayer funded response actions.
Second, they contend that, regardless of the meaning of “risk,”
CERCLA requires the EPA to promulgate some financial
responsibility requirements for the hardrock mining industry.
We review the EPA’s interpretation of CERCLA under the
familiar Chevron two-step framework, deferring to the EPA’s
interpretation if (1) the statutory text is ambiguous and (2) the
EPA’s interpretation of the text is reasonable. See Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–
845 (1984).
1. § 9608(b) “Risk”
CERCLA’s financial responsibility provision, 42 U.S.C.
§ 9068(b), includes three clauses that use “risk.” First, in the
“general mandate clause,” CERCLA obligates the EPA to
require certain classes of facilities to “establish and maintain
evidence of financial responsibility consistent with the degree
and duration of risk associated with the production,
transportation, treatment, storage, or disposal of hazardous
substances.” 42 U.S.C. § 9608(b)(1) (emphasis added).
Second, in the “prioritization clause,” CERCLA directs the
EPA to prioritize issuing financial responsibility requirements
for “those classes of facilities, owners, and operators which the
[EPA] determines present the highest level of risk of injury.”
Id. (emphasis added). Third, the “amount clause” instructs the
EPA to set financial responsibility requirements in the amount
necessary “to protect against the level of risk which the [EPA]
10
in [its] discretion believes is appropriate based on the payment
experience of the Fund, commercial insurers, court[]
settlements and judgments, and voluntary claims satisfaction.”
Id. § 9608(b)(2) (emphasis added).
The parties agree that § 9608(b), by modifying “risk” with
“of injury” in the prioritization clause, requires the EPA to
consider the risk of harm to human health and the environment
in deciding the classes of facilities for which it should prioritize
issuing financial responsibility requirements. The
Environmental Groups, however, fault the EPA for interpreting
the general mandate and amount clauses as not requiring the
EPA to account for risks to human health and the environment
in deciding whether and to what extent to set financial
responsibility requirements, instead requiring only that the
EPA consider financial risks, such as the “risk of taxpayer
funded response actions.” Final Action, 83 Fed. Reg at 7556,
7567, 7568; accord id. at 7557, 7562 see also id. at 7558
(faulting Proposed Rule for considering “information unrelated
to risks of taxpayer financed costs posed by the current
facilities to which the proposed rule would apply”). 3
Whether the Congress intended “risk” in § 9608(b)’s
general mandate and amount clauses to encompass risks to
health and the environment is ambiguous. Neither party
disputes that the unmodified term “risk” is ambiguous. The
Environmental Groups, however, urge that, because the
Congress used the term “risk” in the prioritization clause and
other provisions of CERCLA to refer to health and
environmental harms, it must have intended to employ the
same meaning in the general mandate and amount clauses.
The Environmental Groups are correct that “[n]ormally, the
3
Although the EPA maintains that it considered human health
and environmental risks in its Final Action, see 83 Fed. Reg. at 7570–
81, its brief claims that CERCLA did not require it to do so.
11
same word appearing in different portions of a single provision
or act is taken to have the same meaning in each appearance.”
Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1437 (D.C. Cir.
1996). The general rule, however, “is defeasible”—that is,
“[i]dentical words may have different meanings where ‘the
subject-matter to which the words refer is not the same in the
several places where they are used, or the conditions are
different.’” Id. (quoting Atl. Cleaners & Dyers, Inc. v. United
States, 286 U.S. 427, 433 (1932)). The text of § 9608(b)
suggests that the Congress may have intended “risk” to have
different meanings in the three clauses. For example, the
Congress included the phrase “of injury” to modify “risk” in
the prioritization clause but omitted it from the other two
clauses. See 42 U.S.C. § 9608(b). Indeed, the Congress used
only financial terms to modify “risk” in the amount clause.
See id. § 9608(b)(2) (considering “the payment experience of
the Fund, commercial insurers, court[] settlements and
judgments, and voluntary claims satisfaction”). Thus, the
general rule that terms carry the same meaning throughout a
statutory provision may not be applicable to § 9608(b), making
the meaning of “risk” in the general mandate and amount
clauses ambiguous. CERCLA’s general purpose provides no
greater clarity. Although CERCLA’s primary purpose is to
address health and environmental harms resulting from
industrial pollution, Burlington N. & Santa Fe Ry. Co., 556
U.S. at 602, § 9608(b) may nonetheless also serve the narrower
purpose of ensuring that the EPA can recover the costs of
cleanup from responsible parties.
We believe the EPA’s interpretation is reasonable. As
noted, the Congress used only financial terms to describe the
relevant “risk” in the amount clause. See 42 U.S.C.
§ 9608(b)(2). It is plausible, as the EPA contends, that the
Congress intended it to consider the same risks in deciding
whether to issue any financial responsibility requirements
12
under the general mandate clause. The structure of § 9608
supports the EPA’s position. Section 9608(a), the immediate
predecessor provision, creates financial responsibility
requirements for vessels to cover their liability to the EPA in
the event of a Superfund-financed cost recovery action. Id.
§ 9608(a). Similarly, § 9608(c), the immediate successor
provision, authorizes the EPA to recover cleanup costs by
asserting claims directly against the providers of financial
responsibility instruments. Id. § 9608(c). Although not
unambiguous, § 9608(a) and § 9608(c) lend support to the
EPA’s reading that the financial responsibility requirements
promulgated under § 9608 relate only to ensuring against
financial risks associated with cleanup costs.
Because § 9608(b)’s use of “risk” in the general mandate
and amount clauses is ambiguous and the EPA’s interpretation
is reasonable, we defer to the EPA’s interpretation that it
should set financial responsibility regulations based on
financial risks, not risks to health and the environment.
2. EPA’s Decision Not to Regulate
The Environmental Groups next argue that whatever
discretion § 9608(b) grants the EPA in setting the amount of
financial responsibility requirements, it does not include the
decision not to promulgate financial responsibility
requirements for the hardrock mining industry. The
Environmental Groups point to § 9608’s use of the obligatory
“shall” in instructing the EPA to promulgate financial
responsibility requirements. See 42 U.S.C. § 9608(b)(1).
The Environmental Groups overstate § 9608(b)’s
mandate. Although the provision directs that the EPA “shall”
promulgate financial responsibility requirements for certain
“classes of facilities,” the provision does not specify which
classes of facilities. See id. The omission leaves discretion
13
in the EPA to determine the classes of facilities for which it
should issue requirements. We said as much in the
Environmental Groups’ previous mandamus action when we
noted that the EPA “retains ‘discretion to promulgate a rule or
decline to do so’” and that the EPA’s decision to undertake a
rulemaking “neither resolves the substance of any rulemaking
nor even which classes of hardrock mining facilities will be
regulated.” In re Idaho Conservation League, 811 F.3d at 514
(quoting Defs. of Wildlife, 714 F.3d at 1325 n.7).
Relatedly, the Environmental Groups argue that the EPA
cannot avoid promulgating financial responsibility
requirements on the ground that requirements already
mandated under other federal and state regulations provide an
adequate guarantee of financial accountability. The
Environmental Groups assert that § 9608(b)(1) requires the
EPA to issue financial responsibility requirements “in addition
to” those required under other federal laws. See 42 U.S.C.
§ 9608(b)(1). The phrase “in addition to,” however, modifies
the types of facilities to be regulated, not the extent of financial
responsibility requirements—that is, the EPA may need to
promulgate financial responsibility requirements “for facilities
in addition to those” covered by other federal statutes, id.
(emphasis added), but the phrase does not place any obligation
on the EPA to issue redundant financial responsibility
requirements. Consequently, nothing in § 9608(b) mandates
the EPA to promulgate financial responsibility requirements
for the hardrock mining industry, authorizing the EPA to
decline to do so.
B. Arbitrary and Capricious Challenges
The Environmental Groups next challenge as arbitrary and
capricious the substance of the EPA’s decision not to issue
financial responsibility requirements for the hardrock mining
14
industry. See 5 U.S.C. § 706(2)(A). An agency acts
arbitrarily or capriciously if it “has relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). In reviewing the
EPA’s decision, we may not substitute our judgment for that of
the EPA. Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971).
A major portion of the Environmental Groups’ arbitrary
and capricious challenge focuses on what they contend is the
EPA’s failure to account adequately for risks to health and the
environment in its Final Action. As discussed, supra Section
II.A.1, however, we defer to the EPA’s interpretation of
CERCLA that it need not consider risks to health and the
environment in deciding whether to issue financial
responsibility requirements. Accordingly, the EPA’s alleged
failure to consider health or environmental risks, if any, does
not render its decision arbitrary or capricious.
The Environmental Groups additionally argue that the
EPA arbitrarily and capriciously ignored certain financial risks
and that it supported its Final Action with a faulty economic
analysis. We are unpersuaded.
1. Financial Risks
The EPA explained why it concluded that existing federal
and state programs and modern mining practices have obviated
the need for new financial responsibility requirements. It first
summarized the extensive regulatory requirements other
federal programs and the states have developed “over the past
15
several decades.” Final Action, 83 Fed. Reg. at 7571; see id.
at 7565–67, 7571–80. In particular, it conducted an in-depth
review of the mining programs of Nevada, New Mexico,
Alaska, Colorado and Montana, which together include
approximately 35% of all hardrock mines. Id. at 7572–77.4
In reviewing the state regimes, the EPA found that they have
comprehensive regulations governing how mines handle
hazardous substances and include their own financial
responsibility requirements. See id. Although the EPA
acknowledged that “the risk of a release is never totally
eliminated,” it concluded that “substantial advances have been
made in the development of mining practices and the
implementation of federal and state regulatory programs to
address releases at hardrock mining facilities.” Id. at 7580.
Indeed, the EPA found that, of the $12.9 billion spent in
response to releases at hardrock mining facilities, only $4
billion came from the Superfund and that the “vast majority”
of that $4 billion targeted legacy contamination, not ongoing
releases. Id. at 7567. Ultimately, the EPA recognized that
existing federal and state programs have minimized the need
for the EPA’s expenditures to respond to “CERCLA-like”
releases and have “reduce[d] the risk of federally financed
response actions to a low level.” Id. at 7565–66. The
remaining “handful of examples of sites where EPA has
incurred response costs, notwithstanding regulation under . . .
4
The EPA also alluded to, but did not discuss, record evidence
regarding the “protectiveness” of the regulatory regimes of Arizona,
Utah, South Dakota and Idaho. Id. at 7572. And the EPA noted
that the record included information about other states that further
supported its conclusion that existing regulations minimized the need
for new financial responsibility requirements. See id. at 7567 &
n.96, 7577 & n.277 (citing the National Mining Association’s
comment and report on state regulatory regimes, including the
regimes of California, Florida, Michigan, Minnesota, Oregon,
Washington and Wyoming); see also id. at 7572 & n.157.
16
state and federal law,” the EPA concluded, are not “an
appropriate basis for regulation” under § 9608(b). Id. at 7567.
The Environmental Groups nonetheless claim that the
EPA ignored several relevant financial risks. First, they assert
that the EPA failed to analyze all of the financial factors listed
in § 9608(b)(2)’s amount clause. The amount clause requires
the EPA to consider “the payment experience of the Fund,
commercial insurers, court[] settlements and judgments, and
voluntary claims satisfaction.” 42 U.S.C. § 9608(b)(2).
According to the Environmental Groups, the EPA myopically
focused on the first of these financial factors—“the payment
experience of the Fund”—without addressing the others. We
believe the Environmental Groups have misread the record and
the EPA’s analysis. The EPA credited some commenters’
concern that commercial insurers would be unwilling to
provide financial responsibility instruments “for the amounts
proposed in the forms specified.” Final Action, 83 Fed. Reg.
at 7583. Moreover, the EPA also expressly considered
“payments made pursuant to settlements and voluntary
response actions.” Id. at 7568; see also id. at 7567–68 &
n.103 (discussing settlement data). It ultimately decided not
to issue financial responsibility requirements for the hardrock
mining industry in large part because many ongoing cleanup
sites are “being paid for by private parties and through existing
financial assurance requirements.” TSD 15. The EPA’s
analysis of the record demonstrates that it considered all of the
financial factors enumerated in § 9608(b)(2)’s amount clause.
Second, the Environmental Groups complain that the EPA
failed to account for the cost of natural resource damage
resulting from hazardous substance spills at mining sites. As
an initial matter, this objection appears to be an attempt to
resuscitate the Environmental Groups’ arguments regarding
risks to health and the environment—arguments foreclosed by
17
the EPA’s reasonable interpretation of “risk” in § 9608(b), see
supra Section II.A.1. Regardless, the EPA discussed the role
of natural resource damages in setting financial responsibility
requirements. Final Action, 83 Fed. Reg. at 7567 n.99, 7569,
7584. It reasonably concluded that “modern regulation of
both process discharges and runoff, as well as reclamation
requirements to control sources of contamination, significantly
address” hardrock mining’s “impacts to natural resources.”
Id. at 7569. The EPA thus did not arbitrarily or capriciously
ignore costs associated with natural resource damage.
Third, the Environmental Groups contend that the EPA
failed to consider that hardrock mining has a higher rate of
bankruptcy than most industries and therefore poses a higher
risk that abandoned hazardous waste will require long-term
remediation efforts. The EPA, however, expressly considered
the consequence of bankruptcies in its Final Action. It
recounted that states have changed their financial responsibility
requirements to account for the risk of bankruptcy and
accordingly determined that existing regulations sufficiently
account for the risks of long-term remediation efforts. See
Final Action, 83 Fed. Reg. at 7569, 7577, 7580. We believe
its analysis of the risk of bankruptcy was neither arbitrary nor
capricious.
As a last note, the Environmental Groups highlight several
mining sites for which they believe existing financial
responsibility requirements are inadequate. Whatever the
merits of the Environmental Groups’ concern regarding the
sites, it does not undermine the reasonableness of the EPA’s
decision not to promulgate additional financial responsibility
requirements for the entire hardrock mining industry. As
noted, the EPA found that only a small fraction of Superfund
funds spent on response actions at hardrock mining sites went
to address active spills at currently operating mines. Id. at
18
7567. We decline to substitute our judgment for the EPA’s on
the question whether a handful of sites with likely minimal
impact on the Superfund justifies industry-wide financial
responsibility requirements. See id.; Citizens to Preserve
Overton Park, Inc., 401 U.S. at 416.
2. Economic Impact Analysis
The Environmental Groups also argue that the EPA
grounded its Final Action on arbitrary economic analysis.
“Notwithstanding the absence of a statutory duty, . . . when an
agency decides to rely on a cost-benefit analysis as part of its
rulemaking, a serious flaw undermining that analysis can
render the rule unreasonable.” Nat’l Ass’n of Home Builders
v. EPA, 682 F.3d 1032, 1039–40 (D.C. Cir. 2012). We
“review such a cost-benefit analysis deferentially.” Id. at
1040.
We find no “serious flaw” in the Final Action’s economic
analysis. There, the EPA explained that the Proposed Rule
would have cost the hardrock mining industry $111 to $171
million per year “to procure third-party instruments.” 83 Fed.
Reg. at 7585. But it also predicted that the Proposed Rule
would have shifted only $15 to $15.5 million “in annual
liability from the federal government to the regulated
industry.” Id. Although the EPA recognized that these two
sets of numbers are “not readily comparable,” it observed that
“the projected annualized costs to industry . . . are a magnitude
of order higher than the avoided costs to the government . . .
sought by the [Proposed Rule].” Id.
The Environmental Groups challenge the EPA’s analysis
as inflating the costs of the Proposed Rule and ignoring its
health and environmental benefits. To start, the
Environmental Groups point out that most of the $111 to $171
million the hardrock mining industry would need to expend to
19
comply with the Proposed Rule represents a transfer of money
from the mining industry to institutions providing financial
responsibility instruments. Excluding the amount of the
transfer, the Environmental Groups explain, would have
yielded a net societal cost of only $30 to $44 million, not $111
to $171 million. The EPA acknowledged as much. Final
Action, 83 Fed. Reg. at 7585 n.321. Importantly, the
Environmental Groups’ critique misses the point of the EPA’s
analysis. The EPA expressly recognized that its estimates of
$111 to $171 million in costs to the hardrock mining industry
and $15 to $15.5 million in savings to the federal fisc are “not
readily comparable.” Id. at 7585. Its acknowledgement
demonstrates that the EPA did not intend to conduct a rigorous
societal cost-benefit analysis. Instead, the EPA compared in
broad strokes the potential impact of the $111 to $171 million
annual bill on the hardrock mining industry—more mine
closures and bankruptcies and stunted mining development due
to lost capital, id.—to the relatively small benefit to the federal
fisc. Such a general comparison is reasonable. Cf. Nat’l
Wildlife Fed’n v. EPA, 286 F.3d 554, 563 (D.C. Cir. 2002)
(rejecting claim that “EPA’s economic analysis was inadequate
because it failed to give sufficient specifics to support the
reasonableness of its conclusions regarding economic impact”
and noting EPA’s “analysis may be general” so long as it
explains its reasoning).
The Environmental Groups also complain that the EPA
failed to account for two benefits of the Proposed Rule’s
financial responsibility requirements—(1) greater incentive for
the mining industry to follow best practices and (2) quicker
responses to hazardous substance releases. As the EPA’s
analysis elsewhere makes clear, existing federal and state
programs impose significant financial responsibility
requirements on the hardrock mining industry, id. at 7571–80,
and thereby already secure these benefits. The EPA therefore
20
need not have considered these benefits as additional reasons
to adopt the Proposed Rule. Reviewing the EPA’s economic
analysis deferentially, we conclude it is neither arbitrary nor
capricious.
C. Logical Outgrowth
As a last resort, the Environmental Groups contend that we
should vacate the Final Action because it is not a “logical
outgrowth” of the Proposed Rule. To satisfy the
Administrative Procedure Act’s notice requirement, 5 U.S.C.
§ 553(b)(3), an agency’s final action must be a logical
outgrowth of its proposed rule. E.g., CSX Transp., Inc. v. STB,
584 F.3d 1076, 1079 (D.C. Cir. 2009). “A final rule qualifies
as a logical outgrowth ‘if interested parties should have
anticipated that the change was possible, and thus reasonably
should have filed their comments on the subject during the
notice-and-comment period.’” Id. at 1079–80 (quoting Ne.
Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 952 (D.C. Cir.
2004) (per curiam)). On the other hand, a final rule is not a
logical outgrowth if “interested parties would have had to
divine [the agency’s] unspoken thoughts, because the final rule
was surprisingly distant from the proposed rule.’” Id. at 1080
(alteration in original) (quoting Int’l Union, United Mine
Workers of Am. v. MSHA, 407 F.3d 1250, 1259–60 (D.C. Cir.
2005)).
Under Circuit and Supreme Court precedent, the EPA’s
Final Action not to adopt financial responsibility requirements
for the hardrock mining industry constitutes a logical
outgrowth of the Proposed Rule because “[o]ne logical
outgrowth of a proposal is surely . . . to refrain from taking the
proposed step,” New York v. EPA, 413 F.3d 3, 44 (D.C. Cir.
2005) (per curiam) (quoting Am. Iron & Steel Inst. v. EPA, 886
F.2d 390, 400 (D.C. Cir. 1989)); accord Long Island Care at
21
Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007) (“Since the
proposed rule was simply a proposal, its presence meant that
the Department was considering the matter; after that
consideration the Department might choose to adopt the
proposal or to withdraw it. As it turned out, the Department
did withdraw the proposal . . . . We do not understand why
such a possibility was not reasonably foreseeable.”). That the
EPA might choose not to promulgate financial responsibility
requirements for the hardrock mining industry has always been
a foreseeable possibility; our decision in the Environmental
Groups’ previous mandamus action expressly recognized that
the EPA “retains ‘discretion to promulgate a rule or decline to
do so.’” In re Idaho Conservation League, 811 F.3d at 514
(quoting Defs. of Wildlife, 714 at 1325 n.7).
Kicking against the goads, the Environmental Groups
maintain that even if the EPA’s decision not to promulgate
financial responsibility requirements for the hardrock mining
industry is a logical outgrowth of the Proposed Rule, its
reasons for changing course are not. Specifically, the
Environmental Groups urge that the Proposed Rule did not put
interested parties on notice that the EPA intended to embrace a
new construction of “risk” in § 9608(b) or to “dramatically
narrow[] the evidence it deemed relevant.” An agency’s
decision to withdraw a proposed rule ordinarily stems from a
changed view of the governing law or underlying facts. See,
e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S. at 163–
65 (Labor Department decided not to adopt proposed rule
because of changed interpretation of governing statute); Ariz.
Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1286 (D.C. Cir. 2000)
(EPA chose not to adopt proposed rule due to intervening issue
regarding tribal immunity). Such a changed view does not
alter whether an agency’s decision to withdraw a proposed rule
is a logical outgrowth of the proposal. See, e.g., Long Island
Care at Home, Ltd. v. Coke, 551 U.S. at 175; Ariz. Pub. Serv.
22
Co., 211 F.3d at 1299. The Proposed Rule contained the
EPA’s preliminary interpretation of § 9608(b) and its
understanding of the data regarding hazardous waste produced
at hardrock mining sites. 82 Fed. Reg. at 3389, 3400. It
adequately put interested parties on notice that the EPA was
planning regulatory action that might, as happened, not
materialize.
For the foregoing reasons, the Environmental Groups’
petition is denied.
So ordered.