Oil Transportation and Suction Dredge Mining Legislative Topics in Washington Too

Following up on last week’s post about Oregon legislative proposals, here are some of the mineral-related bills currently pending in the Washington State Legislature:

Oil and Gas

SB 5462 and HB 1611 – These two almost identical bills are follow-ups to the Oil Transportation Safety Act that was enacted in Washington two years ago. Among other things, SB 5462 and HB 1611 would (i) require that railroads transporting crude oil and petroleum products demonstrate financial ability to pay for a “worst case spill”; (ii) obligate refineries to account for different types of crude oil in their emergency planning and training; (iii) impose a public notice requirement if a refinery proposes to export more than 10% of its annual production; (iv) allow the Department of Ecology to share confidential information regarding oil transportation with elected local officials responsible for emergency response agencies; (v) levy oil spill response and administration taxes on crude oil and petroleum products delivered via pipeline to bulk oil terminals; and (vi) give the state’s Energy Facility Site Evaluation Council (EFSEC) jurisdiction over crude oil pipelines that are at least five miles (rather than the current 15 miles) long.  Continue Reading

Mineral-Related Bills Pending Before Oregon Legislature

The Oregon Legislature’s 2017 session officially kicked off last week. A variety of mineral-related bills have been introduced.  Here are some of the ones to follow:

Mining

SB 3 – SB 3 is primarily focused on suction dredge mining.  It would build on the 2013 enactment of a moratorium, currently in effect until 2021, on the use of motorized equipment engaged in small-scale precious metal mining of placer deposits (i) within and upstream of spawning habitat for salmon and bull trout, and (ii) 100 yards upland from such areas if water quality could be impacted.  SB 3 would wrap Pacific lamprey spawning habitat into the moratorium, but would eliminate the prohibition on upland use of such equipment starting in 2019.  Instead, the use of such equipment, regardless of the size of the operation, within 100 yards upland of any river’s ordinary high water line would be subject to the Department of Geology and Mineral Industries’ (“DOGAMI”) existing exploration and operating permit programs, including the associated reclamation requirements.  Starting in 2021, suction dredge mining would be permanently prohibited in a wide variety of locations unless the mining concerned a federal mining claim and the prohibition would violate federal law.  In those areas where suction dredge mining was allowed, it would require a removal-fill permit issued by the Department of Environmental Quality (“DEQ”) rather than the Department of State Lands.  SB 3 would also provide that the surface mining exclusion certificate required under ORS 517.753 only applies to commercial sand, gravel, and crushed stone operations. Continue Reading

New MSHA Rule on Workplace Safety Examinations for Mines “Trumps” Regulatory Freeze, for Now

On January 23, and for the first time in nearly 40 years, the Mine Safety and Health Administration (“MSHA”) issued new rules governing the way in which metal/non-metal mine operators must conduct their regular workplace examinations. A Final Rule on “Examinations of Working Places in Metal and Nonmetal Mines” was published in the Federal Register on Monday, January 23, and will become effective on May 23, 2017.

Hours after the new President took office on January 20, however, his Chief of Staff ordered the withdrawal of all regulations finalized by the Obama administration but not yet published in the Federal Register.  The directive seemed to include the workplace exam rule, which was scheduled to be published in the Federal Register the next business day, January 23.  However, the instruction from the White House came after the decision deadline for the Federal Register’s January 23 issue, and the new MSHA rules were published as planned.  For that reason, the Labor Department’s current position is that the workplace examination rules were not affected by the memorandum and that the May 23 effective date remains in place. However, a new Assistant Secretary for Mine Safety and Health has not yet been named, so it is possible that the incoming head of MSHA will take steps to amend the rules or even withdraw them entirely.

The new rules, which will replace the current version of 30 C.F.R. §§ 56/57.18002, require that a competent person designated by the mine operator examine each working place at the mine at least once per shift. Although the timing of the examinations is flexible, depending on what is necessary to ensure miners’ safety, they must be completed before miners begin work in the areas subject to the rule.  For the first time, examiners must note on the examination record any adverse conditions they find that cannot be addressed immediately, and miners must be notified about those adverse conditions before they start work.

The rules also impose new recordkeeping requirements on mine operators. Exam records must include the name of the examiner, the date the examination was carried out, the locations that were looked at and, as noted, any adverse conditions that were found.  Operators must also record the date on which corrective action was taken – but not what action was taken, or who made the fix.  As has always been the case, mine operators must keep examination records for one year, but now they must make them available (and provide copies) to both MSHA inspectors and representatives of miners upon request.

To learn more about the new rules, please see our legal alert.

EPA Proposes to Require $7+ Billion of Financial Assurances from U.S. Hardrock Mining Industry Under CERCLA Section 108(b)

Last week the EPA officially published its proposal to impose over $7 billion of financial assurance requirements on the owners and operators of currently active or idle hardrock mines and mineral processing facilities. 82 Fed. Reg. 3388 (Jan. 11, 2017).  These proposed requirements are intended to cover estimated response costs, natural resource damages, and health assessment costs for which an owner or operator could be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) should a hazardous substance release occur.  The EPA estimates that 221 hardrock mining facilities would be subject to these proposed requirements, which would be in addition to financial assurance already required by other federal or state agencies for things such as closure and reclamation.  The deadline for submitting comments on the EPA’s proposal is March 13, 2017.Capture

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Sage Grouse Update: BLM Issues Draft Environmental Impact Statement (DEIS) on Proposed Withdrawal of 10 Million Acres

On the last business day of 2016 the BLM released the DEIS on its proposed 20-year withdrawal of approximately 10 million acres of “sagebrush focal areas” (SFAs) in six western states from mineral location and entry under the General Mining Law.  At the same time, the BLM temporarily “segregated” almost 400,000 more acres in Nevada that the State of Nevada has proposed as a substitute for nearly 500,000 acres within SFAs considered by the State to have high mineral potential or limited sage-grouse habitat.  As described in our article last year in the American Bar Association’s mining newsletter, the BLM started this process in September 2015 as a key part of the justification for not listing the greater sage-grouse under the Endangered Species Act.  (That article also describes what the BLM’s proposal means for mining on these lands in Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, and the multiple lawsuits that have been filed challenging the federal government’s actions.)

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Draft Resource Management Plan Amendment Released for Central California Federal Lands

On January 6, 2017, the federal Bureau of Land Management (“BLM”) issued a notice of Draft Resource Management Plan Amendment (“DRMP Amendment”) and Draft Environmental Impact Statement (“DEIS”) for oil and gas leasing and development on federal lands administered by the BLM, Central Coast Field Office (“Planning Area”).  82 Fed. Reg. 1754 (Jan. 6, 2017).  The DRMP Amendment and DEIS describe and analyze alternatives for the planning and management of leasing and development in the Planning Area, as required by the National Environmental Policy Act and the Federal Land Policy and Management Act.  The BLM administers approximately 284,000 acres of surface estate and 793,000 acres of federal mineral estate within the Planning Area.

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In Effort to Increase Both Transparency and Safety, PHMSA Releases Civil Penalty Framework

The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued a General Policy Statement for civil penalties (“Penalty Framework”) on October 17, 2016.  The Penalty Framework allows a respondent in a PHMSA enforcement case to request a proposed civil penalty calculation related to its case, and provides a penalty range with corresponding factors used in calculating the penalty amount.  Prior to publishing the Penalty Framework, the PHMSA only provided its civil penalty framework upon request.

In imposing a civil penalty, the PHMSA must consider five factors:

(1) The nature, circumstances and gravity of the violation, including adverse impact on the environment;

(2) The degree of the respondent’s culpability;

(3) The respondent’s history of prior offenses;

(4) Any good faith by the respondent in attempting to achieve compliance; and

(5) The effect on the respondent’s ability to continue in business.

49 U.S.C. § 60122.

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Pipeline Operators Take Note: PHMSA Issues Interim Emergency Pipeline Safety Rules – Should You Be Concerned?

On October 3, 2016, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”), within the U.S. Department of Transportation, released a new rule on its authority to issue emergency orders for pipeline safety.  The Interim Final Rule, titled “Pipeline Safety: Enhanced Emergency Order Procedures,” comes as a result of the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (“PIPES”).  PIPES was signed into law by President Obama in June 2016 and allows the PHMSA to impose emergency restrictions, prohibitions, and safety measures on gas or hazardous liquid pipeline facilities to address safety concerns.

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ICYMI: Litigator Willa Perlmutter Establishes Mine Safety Practice at Stoel Rives

Willa Perlmutter Stoel Rives MSHA Attorney

In case you missed it, Stoel Rives LLP welcomed Willa B. Perlmutter to the firm’s Natural Resources group this past July. Willa is based in our Portland office, but is serving our clients from Alaska to California and all points east—above ground and beneath. She is accustomed to working effectively and efficiently with in-house counsel and business representatives of mining companies at both the corporate and plant level.

Previously with Crowell & Moring in Washington, D.C., Willa counsels mine operators and other industrial clients on compliance under the Mine Safety and Health Act, represents them during government and internal investigations, and defends them against administrative enforcement actions issued by various regulatory agencies such as MSHA and OSHA. Willa understands the needs of mining industry clients, having focused on mine safety law for the past two decades. She represents clients whose businesses span the spectrum of mined materials, including metals/non-metals, industrial materials and coal. Her extensive litigation experience provides even greater depth to the services we can offer our clients. Further, our clients will benefit from the positive and constructive relationships Willa has cultivated with policymakers and operational staff at MSHA and OSHA.

You can catch up with Willa at the following industry events:

Stoel Rives’ Mining Industry team is highly experienced in advising mine owners and operators across the entire spectrum of legal concerns changing the ways businesses locate, extract and use minerals. As lead counsel for aggregate, base and precious metal, industrial mineral and coal mines, the team provides environmental, permitting, land use, health and safety, labor and employment, IP, litigation, transactional and financing counsel. With their depth of industry experience, the team members are able to develop creative and practical solutions for their clients’ increasingly complex issues.

Industry Groups Push Back Against Environmental Activists in Suit Over Oil & Gas Waste Disposal Regs.

As we discussed earlier, environmental activists have asked the Environmental Protection Agency (“EPA”) to update its oil and gas drilling waste disposal rules under the Resource Conservation and Recovery Act (“RCRA”).  The groups sought to force the EPA’s hand by suing the EPA in an attempt to get a court order requiring the EPA to update its regulations.

Under RCRA, non-hazardous solid waste, which includes oil and gas production waste, is governed by Subtitle D. Subtitle D focuses on state and local governments as the primary regulating entities for the management of non-hazardous solid waste. It establishes minimum federal technical standards and guidelines for state solid waste regulations.  The EPA is required to review and approve state Subtitle D waste disposal programs to ensure that they meet the minimum standards.

Section 2002(b) of RCRA requires the EPA to review and, if necessary, revise at least once every three years the Subtitle D regulations. The activists have asked the EPA to revise its Subtitle D regulations and set clear requirements to govern the storage and disposal of oil and gas waste amid a “patchwork of [state] requirements with varying protections.” Continue Reading

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