Archives: Mining & Natural Resources

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D.C. Circuit Holds US EPA Cannot Stay Implementation of Methane Rule Issued by Obama Administration

On July 3, 2017, the US Court of Appeals for the D.C. Circuit vacated US EPA’s decision to stay implementation of portions of a final rule concerning methane and other greenhouse gases.  In Clean Air Council v. Pruitt, a three-judge panel held that US EPA lacked authority under the Clean Air Act to stay the … Continue Reading

Squire Patton Boggs Helps Secure a Victory for the State of Colorado at the US Supreme Court

On June 26, the US Supreme Court denied New Mexico’s petition seeking to institute an original action against Colorado for the 2015 Gold King Mine spill. An original action in the US Supreme Court is a lawsuit between states. Invoking that rarely used procedure, New Mexico sought to hold Colorado liable for the Gold King Mine spill.  … Continue Reading

US Mine Safety & Health Administration’s Newly-Issued Workplace Examination Rule Withdrawn Pending OMB Review and Approval

In the final days of the Obama Administration, the US Mine Safety and Health Administration (MSHA) released the much anticipated “Examinations of Working Places in Metal and Nonmetal Mines” final rule amending 30 CFR Sections 56.18002 and 57.18002.  The final rule was published in the Federal Register on January 23, 2017 with an effective date … Continue Reading

President Obama’s Public Land and Coastal Drilling Withdrawals; Could They Be Overturned By The Trump Administration?

As his administration drew to a close, President Obama invoked his executive authority to set aside large swaths of the Western US and the Atlantic and Arctic Oceans from future development.  On December 28, 2016, President Obama established the Bears Ears and Gold Butte National Monuments in Utah and Nevada, respectively, setting aside nearly 1.5 million … Continue Reading

Superfund Financial Assurance Rules: Chemical, Coal, Petroleum & Electric Power Industries Face Upcoming US EPA Rulemaking

On December 1, 2016, the US EPA Administrator signed two documents about financial assurance – effectively bonding for facility cleanup – under Superfund for several industry sectors. The longer document with the shorter deadline concerned the hard rock mining and mineral processing industries, proposing specific costly rules, on which comments are due around March 13.  … Continue Reading

US EPA Proposes Rules Governing Financial Responsibility for Hard Rock Mines & Processing Facilities

On December 1, 2016, US EPA Administrator Gina McCarthy complied with a court order and signed a proposed Superfund rule to require facilities in the hard rock mining industry to provide financial assurance for cleanup and related environmental costs, as required by Section 108(b) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). 42 … Continue Reading

Recent Developments in Oil Pollution Act Litigation

Congress enacted the Oil Pollution Act in 1990 following the Exxon Valdez oil spill in order to strengthen the federal government’s ability to prevent and respond to oil spills. As this law continues to evolve, particularly in the wake of the 2010 Deepwater Horizon spill, the Environmental Law Institute convened a panel of experts to discuss … Continue Reading

Ohio Appellate Court Affirms Appropriation of Private Land for Propane/Butane Pipeline

Late last month the Seventh District Court of Appeals in Ohio upheld the appropriation of private land for a pipeline that will carry pure propane and pure butane, ruling that such fractionated natural gas liquids still constitute “petroleum” under Ohio’s eminent domain laws.  The case is now on appeal to the Ohio Supreme Court, but … Continue Reading

MSHA Releases “Safest Year in Mining History” Stats and Vows to Keep Inspector Boots on the Ground to Stave Off October’s “Deadliest Month” Trend

According to data released on October 11, 2016 by the US Department of Labor’s Mine Safety and Health Administration (MSHA), the fiscal year of 2016 was the “safest year in mining history.” Assistant Secretary of Labor for Mine Safety and Health, Joseph A. Main, announced at the National Mine Health and Safety Academy in Beaver, West Virginia that between … Continue Reading

SPB Attorneys Address Bankruptcy and Successorship Issues Related to Mine Safety and Health (MSHA) Enforcement

As the mining industry continues to feel the impacts of low commodity prices, bankruptcy and successorship issues have become increasingly relevant.  Historically, bankruptcy has provided for the purchase of an insolvent entity’s assets without the third-party purchaser incurring the undue risks of taking on the debtor’s liabilities.  Indeed, this very mechanism has allowed for new … Continue Reading

Health & Safety Retaliation Cases are Very Much Alive: Current Trends in OSHA and MSHA Whistleblower Laws and Regulations

What was recently a hot topic within the regulatory community, conversations about Occupational Safety & Health Administration (OSHA) and Mine Safety & Health Administration (MSHA) whistleblower, retaliation, and discrimination claims have seemingly fallen by the wayside.  But don’t be fooled.  Two recent developments demonstrate that these US Department of Labor agencies continue to find novel … Continue Reading

US District Court Strikes Down BLM Rule for Hydraulic Fracking on Federal and Tribal Land

On June 21, 2016, the US District Court for the District of Wyoming set aside the US Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on federal and Native American lands, finding that BLM lacked Congressional authority to promulgate the regulations.  “Congress has not delegated to the Department of Interior the authority to regulate … Continue Reading

US Mine Safety and Health Administration Proposes New Workplace Examination Rule; Requests Information Regarding Exposure of Underground Miners to Diesel Exhaust

On June 8, 2016, the US Mine Safety and Health Administration (MSHA) published the following two documents in the Federal Register, seeking information and comments from industry stakeholders: (1) a proposed rule addressing “Examinations of Working Places in Metal and Nonmetal Mines (MNM)”; and (2) a Request for Information (RFI) on “Exposure of Underground Miners to Diesel Exhaust.” … Continue Reading

US Mine Safety and Health Administration Holds Stakeholders’ Meeting to Discuss Safety, Compliance, and Next Steps

On May 12, 2016, the US Mine Safety and Health Administration (MSHA) held a stakeholders’ meeting entitled “Improving Compliance: Reemphasizing Rules to Live By and the Exam Rule.”  The meeting discussed the current status of safety and compliance in the mining industry and future plans that MSHA has for outreach and enforcement of safety standards.  Key points … Continue Reading

UK Fracking – Picking Up Energy or Still on Go Slow?

On 11 April 2016, the Environment Agency granted the necessary environmental permits to allow the UK-based company Third Energy UK Limited to carry out hydraulic fracturing, or “fracking” as it has become known, for shale gas at the so-called KM8 Well, an existing borehole in North Yorkshire.  Despite opposition, the Environment Agency maintains that the … Continue Reading

Citing Climate Change, US Regulations Expand Protection for the Critical Habitats of ESA-Listed Species

On March 14, 2016, two new federal rules went into effect that could change the way in which the Endangered Species Act (ESA) is implemented throughout the United States. The U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) finalized these rules to update the regulatory provisions on which the agencies … Continue Reading

Despite Best Efforts, US EPA Faces 2016 Deadline for New Financial Assurance Rules

US EPA has agreed to promulgate financial assurance rules for hard rock mining companies by December 1, 2017.  Specifically, the agencies requirements will apply to facilities which extract or process metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc).  The financial assurance requirements will obligate companies performing environmental cleanup to provide a … Continue Reading

US Departments of Justice and Labor To Increase Criminal Prosecutions of Worker Safety Laws

On December 17, 2015, the US Departments of Labor (“DOL”) and Justice (“DOJ”) signed a memorandum of understanding in an effort to more effectively prosecute workplace safety crimes under the Occupational Safety and Health Act (“OSH Act”), the Mine Safety and Health Act (“Mine Act”), and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”).  … Continue Reading

Liquidator Dumps $40 Million Mining Liability on Western Australia Taxpayers

Taxpayers in Western Australia have been left to foot the bill after Jirsch Sutherland, liquidator for the Kimberley Diamond Company Pty Ltd (“KDC”), used a legal loophole to handball expensive mining leases back to the Department of Mines and Petroleum (“DMP”). Care and maintenance costs for KDC’s Ellendale diamond mine amount to $100,000 (AUD) a … Continue Reading

Republicans and Democrats Push for Hardrock Mining Reform in the Wake of Colorado Mine Spill

Congress is moving quickly on multiple fronts in response to the August 2015 spill at the abandoned Gold King Mine in Colorado.  Republicans in the House held a hearing on a package of mining reform bills proposed by Rep. Lamborn (R-CO), Rep. Hice (R-GA), and Rep. Hardy (R-NV) that would, respectively, promote private sector remediation … Continue Reading

Obama Administration Encourages Private Investment in Natural Resources Mitigation

The Obama administration recently released a presidential memorandum (Memorandum)—a tool the executive branch uses to direct the actions of government officials and federal agencies—designed to encourage private and non-profit sector investment in natural resources restoration and public-private partnerships. The Memorandum aims to instill a policy of first avoiding and then minimizing adverse effects to natural resources. … Continue Reading

US Supreme Court Holds that Agencies Are Not Required to Comply With Notice and Comment Requirements When Revising Interpretative Rules

This month, in Perez v. Mortgage Bankers Association, the US Supreme Court overturned the D.C. Circuit’s Paralyzed Veteran doctrine, rejecting nearly 20 years of precedent requiring federal agencies to abide by notice-and-comment rulemaking procedures when they substantially alter an “interpretive” rule. However, the decision also hints that even broader changes may be afoot.  Writing in … Continue Reading

MSHA Launches Aggressive Fatality Prevention Initiative in US Metal /Non-Metal Mines

The Mine Safety and Health Administration (MSHA) is rolling out an aggressive fatality prevention initiative in response to a spike in fatalities at metal and non-metal (MNM) mines over the last sixteen months.  Since October 2013, 37 MNM miners have lost their lives, more than double the number of MNM fatalities in the previous three … Continue Reading

Coal Processor Regulated By US Mine Safety and Health Administration Says Third Circuit

When asked for comment on the recent opinion by the U.S. Court of Appeals for the Third Circuit in Shamokin Filler Co. v. Fed. Mine Safety and Health Review Comm’n, which held that a coal processor was subject to the jurisdiction of the Mine Safety and Health Administration (MSHA) instead of the Occupational Safety and Health Administration (OSHA),  Squire Patton … Continue Reading
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