Last week, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced a new initiative to strengthen enforcement of its current respirable crystalline silica standards.  Crystalline silica is a common mineral found in sand, stone, concrete, and other materials.  When disturbed by cutting, grinding, or crushing, it becomes airborne and respirable, capable of posing increased risk of diseases like silicosis, coal workers’ pneumoconiosis, or “black lung,” and certain cancers. The enforcement initiative goes into effect immediately and serves as interim measure ..read more

The Alaska Department of Natural Resources (DNR) has issued a notice of proposed amendments to the regulations regarding surface coal mining in Title 11 of the Alaska Administrative Code (AAC). The DNR proposes to implement program amendments from the federal Office of Surface Mining Reclamation and Enforcement required to maintain the state’s primacy over the coal program pursuant to the Alaska Surface Coal Mining Control and Reclamation Act. The DNR will readopt all sections within 11 AAC 90.02 – 11 AAC 90.911 into the AAC. These regulations will no longer be adopted by reference in 11 AAC 9 ..read more

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 regulations that would establish a process and standards for how the USFWS will conduct exclusion analyses under Section 4(b)(2) of the ESA. Before the Weyerhaeuser decision, the USFWS took the position that a decision not to exclude an area was entirely di ..read more

State of Alaska Governor Mike Dunleavy has issued COVID-19 Disaster Order of Suspension No 2, suspending a long list of statutory and regulatory provisions. The list of suspended statutes includes AS 38.05.850 which authorizes the state to grant easements and rights-of-way for roads, pipelines, and other facilities associated with the extraction of minerals. Under such authorizations, payment due dates are suspended and no late fees will be charged. The Order suspends each statute or regulation until 11:59 p.m. on May 11, 2020, unless otherwise noted. Also, the Division of Mining, Land and Wat ..read more

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 ..read more

The Alaska Oil and Gas Conservation Commission (AOGCC) has proposed a repeal of regulation changes in 20 AAC 25. of the Alaska Administrative Code. Specific regulations proposed for repeal are as follows: 20 AAC 25.037 well control requirements for other drilling and completion operations; 20 AAC 25.047 reserve pits and tankage; 20 AAC 25.225 potential of gas wells; 20 AAC 25.245 common production facilities; 20 AAC 25.260 illegal production; 20 AAC 25.528 open pit storage of oil; and 20 AAC 25.320 filing of forms. AAOGC intends for the repeal to eliminate outdated or duplicative regulations ..read more

The Federal Mine Safety and Health Review Commission (“Commission”) announced that it intends to withdraw its simplified proceedings rule effective November 25, 2019. The Commission’s Federal Register announcement is found here. The simplified proceedings were originally published in a final rule by the Commission on December 28, 2010. The Commission’s intention was to streamline its increasing caseload by making the administrative process more efficient for the simplest cases, sharply limiting discovery and implementing compressed timeframes for proceedings. The Commission also expected that ..read more

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. DNR is seeking feedback on whether and how the department could revise the current regulatory framework related to providing public notices for certain land management issues, with the goal of clarifying and ..read more

On Monday, September 30, the Mine Safety and Health Administration (MSHA) reinstated an Obama-era rule imposing heightened requirements for health and safety workplace examinations in surface metal and nonmetal mines. The reinstatement represents yet another volley in an already protracted regulatory process spanning two presidential administrations and multiple lawsuits. The 2017 Obama-era rule, marking one of the administration’s final acts, required that: workplace exams had to be completed before miners begin work in the area examined; operators had to notify miners in the affected areas o ..read more