On Wednesday the Bureau of Land Management (BLM) will auction helium stored in its Cliffside Field underground storage facility in west Texas (aka the Federal Helium Reserve).  This annual auction under the Helium Stewardship Act of 2013 is part of a privatization effort that began back in 1996 and will culminate with the BLM divesting itself of that facility by 2021.  At the same time, concerns about helium supply are again rising, as production from Qatar, which accounts for 25% of global helium supply, was interrupted last month by an economic boycott in the region.  These events are prompting Congress to consider changing the nearly century-old treatment of helium under the Mineral Leasing Act of 1920.
Continue Reading Reconsidering Helium Production on Federal Lands Amid Privatization of Federal Helium Reserve

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

In one of the most sweeping proposals since the creation of the Pipeline and Hazardous Materials Safety Administration (“PHMSA”), the agency has announced proposed regulations to update requirements relating to gas gathering and transmission lines.  We find that there are four main areas our readers definitely should be aware of.

First, the proposed regulations would add new assessment and repair criteria for gas pipelines.  Most notably, the proposal will subject thousands of miles of pipelines built before 1970 to verification and testing requirements. These older pipelines had previously been exempt from such requirements.  This new requirement would mean that operators of older pipelines will need to make safety assessments on pipelines which were largely unregulated.  This may be challenging and costly for operators given the lack of records and age of many of these pipelines.

Second, the proposal also expands the agency’s definition of a “gathering line” that is subject to the new safety standards, potentially embracing pipelines previously classified as unregulated production lines. This is an expansive extension of federal authority into oil and gas production areas that have previously been regulated by individual state agencies and state law.
Continue Reading Proposed Rules Coming Down the Pipeline for Gas Gathering and Transmission Lines

Minerals are part of virtually all the products we use every day, acting as the raw materials for manufacturing processes or as the end products themselves. Not surprisingly, minerals also are used in the energy generation that we rely on every day.  Emerging energy technologies like wind, solar and nuclear heavily rely on minerals to

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

On January 20, Congressmen Rob Bishop and Jason Chaffetz unveiled a “discussion draft” of the Utah Public Lands Initiative Act. The proposed bill undertakes the difficult task of balancing economic development and conservation on public land in the State of Utah.

Congressmen Bishop and Chaffetz began working together on the bill in February 2013. Since that time, more than 120 different stakeholders have submitted more than 65 detailed proposals regarding land management in eastern Utah. Altogether, their offices have held more than 1,200 meetings with local and tribal leaders, interested parties, and subject matter experts.

The bill is organized in two parts: “Division A” covers land protection and conservation and “Division B” covers recreation and economic development opportunities.

Division A creates forty-one new wilderness areas covering 2,274,373 acres of federal land. Wilderness is a legal designation designed to provide long-term protection and conservation of public lands. Wilderness areas are protected and managed so as to preserve the area’s natural surroundings in an unimpaired condition. Generally, motor vehicles and mechanical transport are prohibited in wilderness areas. However, the proposed bill makes certain exceptions for maintaining grazing facilities and access to water resource facilities.
Continue Reading Utah Congressmen Unveil Landmark Public Land Bill

On October 8, the National Wildlife Federation (“NWF”) fulfilled its promise to sue the U.S. Department of Transportation (“DOT”). The lawsuit alleges that for 20 years the DOT has allowed pipelines to operate illegally by failing to issue regulations under section 311(j) of the Clean Water Act (“CWA”), which requires pipeline operators to submit plans

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

On July 28, 2015, the National Wildlife Federation (“NWF”) filed an intent to sue notice against the Department of Transportation (“DOT”), arguing the DOT has not properly approved pipeline projects for more than 20 years.

The legal action carries nationwide implications: Every U.S. oil pipeline that intersects a navigable water may soon be subject to additional regulations.

Specifically, NWF contends that DOT has failed to issue regulations under section 311(j) of the Clean Water Act (“CWA”), requiring an owner or operator of a pipeline to prepare and submit a facility response plan (“FRP”) detailing response actions to be taken in the event of a worst-case discharge of oil or hazardous substances into waters of the United States.
Continue Reading Pipeline Operators Take Heed – Threatened Enviro Lawsuit May Lead to Greater Regulatory Requirements