On Friday, February 24, 2023, a Nevada federal judge issued an order in Bartell Ranch LLC et al. v. McCullough et al., rejecting emergency requests for injunction by Plaintiffs, among which are Native American Tribes, various environmental groups, and a rancher to block construction of the Thacker Pass lithium mine, pending their current appeal to the 9th Circuit. The Plaintiffs maintain that the Bureau of Land Management failed to acknowledge concerns about the impacts of the mine and that the permits were illegally granted. The District Court ruled in favor of the Defendants, the Bureau of Land Management and Lithium Nevada Corp., with the Court only requiring a re-approval of permits covering 1,300 of the approximately 6,000-acre mineable area. The Plaintiffs sought an injunction while their appeal to the 9th Circuit is ongoing. However, the Court ruled in favor of the Defendants, ruling that “the requisite strong showing of a likelihood of success on the merits of their appeal” had not been met, opening the door for the project to proceed.
CWA’s Permit Shield Spans SMRCA
Senior Counsel Coty Hopinks-Baul has published an article in Coal Age titled “CWA’s Permit Shield Spans SMRCA”.
In the article, Coty details a recent decision in the case of Southern Appalachian Mountain Stewards v. Red River Coal Co. Inc., where the Fourth Circuit upheld a district court’s dismissal of a citizen suit to enforce…
COVID-19 Planning in the Mining Industry
Avi Meyerstein recently published “Stay Healthy by Taking Smart Action, ” a five-step plan for dealing with COVID-19 in the mining industry in Rock Products Magazine.
MSHA Unveils New Unified Inspection Handbook
Back in November, MSHA head David Zatezalo indicated that MSHA’s initiative to “blur the lines” between coal and M/NM enforcement had ended. As an apparent follow-up, in late December MSHA released a new, unified M/NM and coal inspection handbook, and has now started training investigators on the new handbook.
MSHA Says Its Workplace Examination Rule Is Fully Cooked and Ready to Serve. But Is It?
Avi Meyerstein recently published an article in Rock Products examining the Mine Safety and Health Administration’s 2017 “Final Rule on Examinations of Working Places in Metal and Nonmetal Mines.” Read the article here.
Updates on CERCLA Financial Assurance Requirements for Industry Sectors
D.C. Circuit Upholds USEPA Decision to Not Require Financial Assurance Under CERCLA for Hardrock Mining
We have previously blogged (in June 2019 and 2017) on a proposed rule released during the final days of the Obama Administration which required hardrock mines to provide financial assurance demonstrating they are able to fund the costs associated with the future cleanup of the mines under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the federal statute designed to address releases of hazardous substances and the cleanup of hazardous waste sites nationwide. In December 2017, the USEPA stated its intention not to issue the final rule, finding that there was no need for any CERCLA financial assurance mechanism for operating hardrock mines based on existing federal and state programs as well as modern mining practices. Several environmental organizations filed suit in the U.S. Court of Appeals for the D.C. Circuit, challenging the USEPA’s decision not to issue the rule.…
‘Waters of the United States’ – Different State, Different Definitions
Ali Nelson, Senior Counsel, was featured in Rock Products October edition discussing the litigation surrounding the regulatory definition of ‘Waters of the United States’ and the recent court decisions leading to the application of different definitions in different states.
Wisconsin Indian Tribe Sues Federal Government to Get Involved in Permitting of Mine in Michigan’s Upper Peninsula
The Menominee Indian Tribe of Wisconsin has sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine, arguing that EPA and Corps have failed to take responsibility for reviewing wetland permits for the project. The lawsuit was expected since the Tribe filed a notice…
EPA Abandons CERCLA Financial Responsibility Rule for Mining Industry
A client alert issued today by Husch Blackwell’s environmental practice group details a major reversal of Obama-era policy by the Trump Administration. The EPA announced it will not issue final regulations under CERCLA Section 108(b) imposing financial responsibility requirements on the hardrock mining industry. Abandoning a December 1, 2016 proposed rule, the EPA emphasized that…
Wisconsin Legislators Propose to Repeal State Metallic Mining “Moratorium”
Last week, Wisconsin state legislators introduced a proposal to repeal the so-called “moratorium” on the mining of sulfide ore bodies (i.e., mineral deposits in which nonferrous metals are mixed with sulfide minerals) in Wisconsin. The state law in question was enacted in 1998 over concerns that sulfide minerals exposed during mining activities can react with air and water to form acid drainage which can pollute groundwater and harm lake and stream life.
The moratorium is actually a requirement that prohibits…