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.
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:
- Energy & Mineral Law Foundation’s Special Institute on Mine Safety and Health Law on September 24th in Las Vegas, NV
- National Mining Association’s Mine Expo September 26-28 in Las Vegas, NV
- Environmental Law Institute’s Annual Awards Dinner on October 18 in Washington, DC
- Alaska Mining Association’s 2016 Fall Convention & Trade Show November 6-12 in Anchorage, AK
- American Exploration & Mining Association’s 2016 Annual Meeting Exposition & Short Courses December 5-9 in Reno, NV
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.
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
UPDATE: Quickly following on the heels of the Wyoming federal district court’s order striking down the Bureau of Land Management’s (BLM) hydraulic fracturing rules, the state governments of North Dakota, Wyoming, Colorado, and Utah have now moved to dismiss the pending Tenth Circuit appeal of the district court’s preliminary injunction order. Those state government indicated in their brief that they had unsuccessfully attempted to reach out to counsel for the BLM and the environmental groups who filed that appeal, but expected those parties will oppose the dismissal motion.
Separately, the BLM and the intervening environmental groups each filed notices seeking to directly appeal the district court’s June 21 order and judgment striking the BLM’s rules to the Tenth Circuit. While it remains unclear exactly how this matter will now proceed on appeal, it seems likely that the Tenth Circuit will combine or consolidate all of these appeal issues in one way or another.
As we’ve previously reported, a Wyoming federal court issued a preliminary injunction order last year that temporarily halted the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands. Since that time, the case has split into two proceedings: the Wyoming court moved forward with conducting a full legal analysis of the BLM’s final rule, while several environmental groups who had intervened in the lawsuit appealed the preliminary injunction order to the Tenth Circuit Court of Appeals. This week we received some clarity on one of those proceedings, while the other remains pending.
District Court Strikes Down BLM Final Rule
On June 21, the Wyoming court struck down the BLM’s final rule, finding the agency lacked the legal authority to promulgate those regulations.
In his order, Judge Scott Skavdahl premised his opinion on whether Congress delegated requisite authority to the BLM to regulate hydraulic fracturing on public lands, and “not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States.” Ultimately, Judge Skavdahl held, a federal agency “may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.”
Widely anticipated on both sides of the aisle, on May 12, 2016, the U.S. Environmental Protection Agency (“EPA”) released final regulations to curb emissions of methane and volatile organic compounds (“VOC”) from additional new, modified, and reconstructed sources in the oil and gas industry. The Final Rule, titled, ‘Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources’ (“Final Rule”), amends the new source performance standards (“NSPS”) for the oil and natural gas source category. This action follows EPA’s publication of proposed regulations in August 2015, and is extremely significant because it is the first instance of such regulation of VOC and methane emissions by the EPA. In addition to yesterday’s announcement, the EPA is completing final Control Techniques Guidelines for reducing VOC emissions from existing oil and gas sources in ozone nonattainment areas, which are expected to be released later this spring.
Background: The Climate Action Plan
Over the past few years, the Obama Administration has taken an aggressive stance on climate change regulation, and the Final Rule is the Administration’s most recent action to specifically address methane and short-lived climate pollutants. In June 2013, the Administration released the Climate Action Plan which directed the EPA and other federal agencies to develop a comprehensive regulatory scheme to reduce methane emissions. In March 2014, as a follow-up to the Climate Action Plan, the Obama Administration issued the Climate Action Plan: Strategy to Reduce Methane Emissions.
On May 4, 2016, a coalition of environmental organizations (“Plaintiffs”) filed suit against the U.S. Environmental Protection (“EPA”) in U.S. District Court for the District of Columbia to compel the EPA to promulgate revised regulations and guidelines for the disposal, storage, transportation, and handling of oil and gas wastes. Environmental Integrity Project et al. v. Gina McCarthy (Case No. 1:16-cv-00842). In the Complaint, Plaintiffs state that the Resource Conservation and Recovery Act (“RCRA”) requires the EPA to review and revise regulations for drilling wastes every three years. 42 U.S.C. § 6912(b). According to Plaintiffs, the EPA last conducted a review of the regulations in 1988, but has since failed to update the regulations. Further, the EPA has not updated the guidelines for state solid waste management plans as required under RCRA.
The environmental organizations are the Environmental Integrity Project, Natural Resources Defense Council, Earthworks, Responsible Drilling Alliance, San Juan Citizens Alliance, West Virginia Surface Owners’ Rights Organization, and the Center for Health, Environment and Justice. Continue Reading
On May 2, 2016, the Colorado Supreme Court issued opinions in two separate cases challenging local bans on hydraulic fracturing (“fracking”). A win for the oil and gas industry in the state, the Supreme Court held that the challenged fracking bans were preempted by state law in both cases. These decisions highlight the legal principle or doctrine of “preemption” – if state law allows a process, like fracking, a local government is not permitted to ban or outlaw it.
In City of Fort Collins v. Colorado Oil and Gas Association (No. 15SC668, 2016), the Colorado Oil and Gas Association, an industry trade association, sued the City of Fort Collins seeking a declaratory judgment that Fort Collins’ moratorium on fracking was preempted by state law. In November 2013, the citizens of Fort Collins approved a citizen-initiated ordinance that placed a moratorium on “hydraulic fracturing and the storage of its waste products within the City of Fort Collins or on lands under its jurisdiction for a period of five years, without exemption or exception, in order to fully study the impacts of this process . . .” Opinion, at 5. In finding that the State of Colorado has an interest in regulating fracking, the court held that Fort Collins’ fracking moratorium “renders the state’s statutory and regulatory scheme superfluous” because it prevents oil and gas operators from complying with state law that permits and regulates fracking. “In doing so, the moratorium materially impedes the effectuation of the state’s interest in the efficient and responsible development of oil and gas resources.” Id. at 14.
Ready or not, California’s new Sustainable Groundwater Management Act (“SGMA”) is here and mine operators should be vigilant in monitoring and actively participating in developments under the law. Previously, the use of groundwater was largely unregulated. Now local agencies are in the driver’s seat when it comes to addressing a very complex problem: managing groundwater to ensure sustainability.
Earlier this week, environmental consultant Bob Anderson, of Geosyntec and Stoel Rives attorneys Wes Miliband and Tom Henry hosted a webinar about the implications of SGMA for mine operators. You can view a recording of the webinar here. Below are a few key take away points for operators as they tackle SGMA.
The Compliance Timeline is Aggressive
SGMA requires the formation of local Groundwater Sustainability Agencies (“GSAs”) that must assess conditions in their local water basins and adopt locally-based groundwater sustainability plans (“GSPs”). GSAs have already started to form and will be developed by June 30, 2017. Operators should investigate the proposed GSAs affecting their sites. The Department of Water Resources has developed a useful interactive map showing the proposed GSAs. Operators and the general public have the opportunity to be involved in the formation of GSAs and preparation of GSPs. Continue Reading
The Bureau of Land Management (“BLM”) recently filed a Motion for Summary Judgment in a lawsuit brought by a coalition of environmental activists who have challenged the BLM’s Resource Management Plan (“RMP”) for public lands and minerals in California managed by the Bakersfield Field Office. The activists asked a California federal judge to strike down the BLM’s RMP, claiming that the BLM never considered the effect of “unconventional drilling methods,” such as hydraulic fracturing on the land.
The BLM responded by pointing out that hydraulic fracturing is not a new, unproven technology and has been routinely used in California for over 50 years. It is estimated that only 25% of new wells in the Bakersfield planning area are expected to undergo hydraulic fracturing. Furthermore, the BLM noted that 98% of new wells on federal mineral lands in the planning area are projected to be drilled on existing leases that have been producing for over 30 years and not on pristine, undisturbed lands.
The activists claimed that the BLM failed to take a “hard look” at the environmental impacts associated with fracking as required by the National Environmental Policy Act (“NEPA”). However, any claim that the BLM did not comply with NEPA in developing the RMP is particularly weak under these facts. The BLM developed a comprehensive, 1,000-page environmental impact statement (“EIS”). Additionally, before issuing a final decision, BLM commissioned an independent review of well stimulation technologies in California to ensure that its EIS accurately reflected the potential impacts of fracking. And finally, the independent review concluded that overall, the direct environmental impacts of well stimulation practice are relatively limited in California. Continue Reading
The Alaska DNR is requesting public comments on its mining regulations for establishing and maintaining mining claims – 11 AAC Chapter 86. These regulations (as well as related regulations at 11 AAC 82 and 11 AAC 88) establish or address many of the requirements for locating claims on state lands, performing assessment work, paying rent, filing production royalty returns, and paying production royalties to DNR. DNR’s authority regarding at-risk state claims and offshore mining rights also comes under these regulations. DNR has not proposed draft regulations but is asking the public to provide comments on issues that should be addressed in any revised regulations. Please consider submitting a proposed revision in redline or drafting a proposed new regulation, accompanied by an explanation of the issue the proposal is meant to address.
Comments can be submitted by email or mail through April 29, 2016. For more information from DNR, visit the DNR Notice of Public Scoping. This is a unique opportunity to help shape DNR’s mining regulations. If you have any questions or would like assistance in preparing comments, please contact Veronica Keithley, Ramona Monroe, or Joe Perkins in Stoel’s Anchorage office.