Of interest to mineral projects, the U.S. Fish and Wildlife Service (USFWS) continues to attempt to revise some of its Endangered Species Act (ESA) implementing regulations to align with the relatively recent decision from the Supreme Court in Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv. (139 S. Ct. 361 (2018)). Today, it proposed new
Reversing 30-Year Policy, U.S. DOJ Says Settlements Can No Longer Include Supplemental Environmental Projects (SEPs)
This post was co-authored by Beth Ginsberg & Krista McIntyre.
The U.S. Department of Justice (U.S. DOJ) recently issued a memorandum stating that settlements, including consent decrees, entered by the Environmental Protection Agency (EPA) and other federal agencies can no longer include a Supplemental Environmental Project (SEP), unless the SEP is expressly authorized by Congress. Companies and individuals accused of violating environmental laws and permits, like Clean Air Act and Clean Water Act permits, commonly agree to perform SEPs to fund projects that go beyond compliance instead of paying a higher cash penalty to the U.S. Treasury. Going forward, companies, individuals, and local governments will no longer have SEPs as a settlement option.
To support this policy reversal after more than 30 years, U.S. DOJ cites to the Miscellaneous Receipts Act, which grants only Congress the authority to decide how to appropriate federal funds. The U.S. DOJ views SEPs as federal funds, and, in U.S. DOJ’s opinion, the EPA and other federal agencies lack the authority to divert those funds to third party recipients and to select the projects that should receive the funds. The power of the purse rests squarely with Congress. “[W]ith SEPs, money otherwise destined for the Treasury finds its way to another destination, not at the insistence of Congress, where the Constitution puts that authority, but instead at the insistence of an administrative agency, or a non-federal entity, or some combination thereof.”
Continue Reading Reversing 30-Year Policy, U.S. DOJ Says Settlements Can No Longer Include Supplemental Environmental Projects (SEPs)
Alaska DNR Issues Notice of Public Scoping for Possible Appeal Regulations Revisions
The Alaska Department of Natural Resources (DNR) is soliciting public comment regarding potential regulation revisions involving the process for filing and handling appeals and requests for reconsideration under 11 AAC 02.
No specific regulations are being proposed at this time. Rather, DNR is seeking public input and suggestions before the department begins drafting proposed regulations.
With Mining Law Segregation on 10 Million Acres to Expire in Three Months, Interior Forms Sage-Grouse Review Team
Late Wednesday Secretary of the Interior Zinke signed Secretarial Order 3353 establishing a Sage-Grouse Review Team to review the Obama Administration’s 2015 amendments to federal land use management plans. To avoid listing the greater sage-grouse under the Endangered Species Act, those plan amendments had proposed that over 10 million acres of “sagebrush focal areas” on public lands in six western states be withdrawn from mineral location and entry under the General Mining Law for up to 20 years. The new Sage-Grouse Review Team’s work will include recommending changes to the amended plans that “give appropriate weight to the value of energy and other development on public lands within BLM’s overall multiple-use mission.” Comprised of representatives from various Department of the Interior agencies and working with the U.S. Forest Service and state agencies, the Sage-Grouse Review Team is to provide a written report on or before August 6, 2017.
Continue Reading With Mining Law Segregation on 10 Million Acres to Expire in Three Months, Interior Forms Sage-Grouse Review Team
North Dakota’s UIC Class VI Primacy Wait is Almost Over
The U.S. Environmental Protection Agency (EPA) is poised to approve North Dakota’s application for primary enforcement authority over the underground injection of CO2 for geologic sequestration in that state. Nearly four years after North Dakota became the first state to seek primacy from EPA over carbon sequestration wells – known as Underground Injection Control (UIC) Class VI wells – EPA just published the proposed rule to effect this delegation on Friday. 82 Fed. Reg. 22,949 (May 19, 2017). The 60-day public comment period on the proposed delegation ends on July 18, 2017.
Continue Reading North Dakota’s UIC Class VI Primacy Wait is Almost Over
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.
Continue Reading EPA Proposes to Require $7+ Billion of Financial Assurances from U.S. Hardrock Mining Industry Under CERCLA Section 108(b)
Alaska Department of Natural Resources Seeks Input on Mining Regulations – Comments Due 4/29/16
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,
Financial Assurance Requirements are on the Horizon for Hard Rock Miners
On January 29, 2016, the U.S. Court of Appeals for the District of Columbia Circuit ordered the Environmental Protection Agency (“EPA”) to finalize the long-awaited “financial assurance” regulations under section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The hard rock mining industry is first in line to be subject to the new requirements.
The D.C. Circuit’s order is the result of a case brought by several environmental groups against the EPA seeking to force the EPA to put into effect the so-called “financial assurance regulations.”
In enacting CERCLA in 1980, Congress directed the EPA to ensure that companies remain financially capable of cleaning up contaminated sites. These financial assurance rules were intended to prevent companies from creating toxic sites and then becoming financially unable to clean them up, often causing the cleanup to be delayed for years.
In the intervening thirty years since CERCLA took effect, the EPA made little progress toward promulgating any financial assurance regulations, that is, until a court ruling in 2009 (brought by many of the same groups) ordered them to start. Pursuant to the 2009 ruling, the EPA published a notice in the Federal Register designating the hard rock mining industry as its priority for the development of financial responsibility requirements. In making this determination, the EPA cited a heightened “risk” associated with hard rock mining which increases the likelihood of releases of hazardous substances.
Continue Reading Financial Assurance Requirements are on the Horizon for Hard Rock Miners
Miners and States take Notice, the EPA is Updating its CERCLA Financial Responsibility Requirements
The U.S. Environmental Protection Agency (“EPA”) has recently announced that it would take steps to finalize rules establishing financial responsibility requirements for hard rock mines under section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).
Section 108(b) gives the EPA the authority to require certain facilities to have some type of financial security mechanism in place – such as a bond or insurance policy – that can be used to pay for spills or cleanups should a mining or mineral processing company declare bankruptcy or be otherwise unable to conduct necessary response activities. CERCLA requires the financial responsibility to be consistent with the degree of risk associated with the production, transportation, treatment, storage or disposal of hazardous substances.
In 2009, the EPA published a notice in the Federal Register designating the hard rock mining industry as its priority for the development of financial responsibility requirements. In making this determination, the EPA cited a heightened “risk” associated with hard rock mining which increase the likelihood of releases of hazardous substances.
The framework for the new regulations assigns financial responsibility amounts based on a facility’s characteristics (i.e., open pits, waste rock, tailings, heap leach, process ponds, water management, and operations, maintenance and monitoring). Natural resources damages and health assessment costs would be separate fixed amounts imposed on each facility. The financial responsibility requirements are intended to be separate and distinct from other federal closure and reclamation bonding requirements imposed under other statutes.
Continue Reading Miners and States take Notice, the EPA is Updating its CERCLA Financial Responsibility Requirements
EPA Announces Plan for Rulemaking to Reduce Methane Emissions from the Oil and Gas Industry
Today, the Environmental Protection Agency (“EPA”) announced a new goal to cut methane emissions from the oil and gas industry. (See White House Fact Sheet.) The EPA’s goal is to reduce methane emissions from the oil and gas sector by 40-45% from 2012 levels by 2025. The proposed regulations will set standards to reduce methane and volatile organic compounds (“VOC”) emissions from “new and modified oil and gas production sources, and natural gas processing and transmission sources.” The EPA will issue a proposed rule in summer 2015, and will issue a final rule as early as next year, in 2016.
Today’s announcement furthers the “Strategy to Reduce Methane Emissions” issued in March 2014, which is an initiative under the Obama Administration’s Climate Act Plan. Further, the EPA previously published standards for VOC emissions from the oil and gas industry in 2012 which aim to protect public health and the environment while permitting expansion of oil and gas production.Continue Reading EPA Announces Plan for Rulemaking to Reduce Methane Emissions from the Oil and Gas Industry
New State Oil-By-Rail Regulations Take Effect, While Rail Capacity Is Squeezed
As we reported earlier, consideration of proposed federal rulemaking concerning crude oil-by-rail transportation recommended by the Pipeline and Hazardous Material Safety Administration and Federal Railroad Administration is underway, and, after receiving more than 3,000 submissions, the comment period closed on September 30. Nevertheless, and despite the possibility of preemption challenges in litigation, state