MiningWeek Online
March 12, 2004 Volume 10, Issue 10

This Week's Issue:

• Appeals court overturns lower court ruling on challenge to CERCLA
• Eight projects selected by DOE to capture and store carbon dioxide from power plants
• Glamis Gold reports appeal of Marigold Mine Record of Decision
• James H. Davis, well-known coal executive, dies in WV
• Leavitt, Evans to speak at NMA spring board meeting next week
• NMA welcomes JCH Insurance as new member
• Newsbits

An appeals court has overturned a lower court ruling barring a challenge to the constitutionality of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund).

The District of Columbia Circuit Court of Appeals ruled March 2 that while CERCLA’s Section 113(H) bars pre-enforcement review of agency action sunder Sections 104 and 106(a), the bar does not apply to a challenge to the constitutionality of the statute on its face.

The case involved is General Electric v. EPA – GE is a potentially responsible party (PRP) at a number of Superfund sites. However, the company did not choose to challenge a site-specific EPA Section 104 response action or any particular Section 106(a) unilateral administrative order.

The federal District Court for the District of Columbia held that GE could not challenge the constitutionality of CERCLA because Section 113(h) of the statute deprived the court of subject matter jurisdiction.

The appellate court noted that, under CERCLA, pre-enforcement review of specific EPA orders and actions is precluded. Furthermore a PRP that fails to obey an EPA Unilateral Administrative Order (UAO) can be fined up to $27,500 per day and be forced to pay up to three times EPA’s actual costs in cleaning up a site. These penalties would be incurred prior to the PRP having any right to seek judicial review of the agency’s Section 104 actions and Section 106(a) orders.

The plain language of the statute, however, shows that a pre-enforcement “facial challenge” of constitutionality is not the type of action Congress intended to prohibit, the court said. Instead, Congress wanted to speed the cleanup of hazardous waste sites by barring pre-enforcement review of specific agency actions and orders, including challenges to the constitutionality of those actions and order. However, Congress did not intend to bar challenges to the constitutionality of the statute, as opposed to agency actions under the statute, the court ruled.

The D.C. Circuit remanded the case to the lower court “to address the merits of GE’s facial due process claim.”

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Eight projects selected by DOE to capture and store carbon dioxide from power plants

Four of the projects will focus on advanced separation techniques to capture carbon dioxide and hydrogen from fossil fueled power plants – two of these will study high-temperature membranes; one will investigate a new carbon dioxide absorbent; and one will look at nanoscale materials as separation agents on a scale approximately 40,000 times smaller than the width of a human hair.

Three of the remaining projects will focus on advanced subsurface technologies and geochemical methods for sequestering carbon. Sequestration with these methods could offer permanent disposal of carbon dioxide by forming geologically stable rock-like structures called mineral carbonates, DOE said.

The eighth project falls under the technical area, “novel niches,” which include unique concepts involving carbon dioxide recycling and products, DOE said.

The eight projects were awarded to the University of Minnesota’s Department of Chemical Engineering and Materials Science; University of New Mexico’s Center for Micro-Engineered Materials, with collaboration from T3 Scientific; Department of Chemical and Biomolecular Engineering at the University of Notre Dame; UOP LLC, the University of Michigan and Northwestern University; Harvard University, with collaboration from Columbia University, Carnegie-Mellon University and the University of California at Santa Cruz; Center for Solid State Science at Arizona State University; Department of Geology and Planetary Science at the University of Pittsburgh; and the Faculty of Engineering at the University of Georgia Research Foundation.

The projects support the Bush administration’s Global Climate Change Initiative.

For more information, visit www.fossil.energy.gov/news/techlines/04/tl_novelapproaches_sel.html.

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Glamis Gold reports appeal of Marigold Mine Record of Decision

Western Exploration holds private lands adjoining the expansion area. “The appeal alleges the potential for future harm to these lands from the placement of heap leach pads or waste dumps, and requests that these facilities be moved to other areas on the Marigold property,” Glamis said. “The appellant has requested that the Record of Decision be stayed while its appeal is considered.

Glamis said each of the arguments set out in the appeal “have previously been rejected by the BLM during the comment periods on Glamis’ operating plan. Glamis believes the appeal is factually and legally without merit and intends to vigorously assist the BLM in defense of the Record of Decision,” the company said. “Work on the Millennium expansion is continuing as planned.”

BLM authorized the plan of operations amendment expanding gold mining operations at Marigold in February 2004. The mine is located approximately three miles south of Valmy in Humboldt County, NV. It was analyzed in a Final Supplemental Environmental Impact Statement in December 2003.

BLM said the expansion would disturb approximately 1,474 acres and would include expansion of two existing open pits and an existing waste rock storage area and ancillary facilities; and create five new open pits, two new heap leach facilities, a new waste rock storage area, and new ancillary facilities within the project area.

The Marigold Mine produced 94,796 ounces of gold in 2003 and is projected to produce 110,000 ounces in 2004. Glamis produced a total of 230,294 ounces of gold in 2003 and has projected a 15 percent increase in 2004 gold production based on higher production at Marigold and the successful startup of the El Sauzal gold project in Mexico.

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James H. Davis, well-known coal executive, dies in WV

Mr. Davis was a graduate of Princeton University and the University of Virginia Law School who served as a partner in Preston and Davis from 1953 to 1965; Spillman, Thomas, Battle & Klostermeyer from 1965 to 1986; and counsel of Campbell, Wood, Bagley, Emerson, McNeer & Herndon from 1987 to 2003.

He was a member of the West Virginia House of Delegates from 1961 to 1962, and the West Virginia Senate from 1963 to 1966. From 1987 to 2004, he served as president of Dingess-Rum Properties Inc. He also was an honorary trustee for the Eastern Mineral Law Foundation; coal lawyer of the year in 2002; a life member of the American Law Institute; a fellow of the American Bar Association; chairman of the West Virginia Judiciary Council from 1973 to 1981; president of the West Virginia Bar Association from 1985 to 1986; Kanawha County Bar Association; chairman of the National Council of Coal Lessors from 1980 to 2004; and chairman of the West Virginia Manufacturers Association from 1973 to 1975. Mr. Davis is survived by his wife Ouida Caldwell Davia; two sons and a daughter-in-law; one brother; and five granddaughters.

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Leavitt, Evans to speak at NMA spring board meeting next week

Administrator Leavitt will provide comments on new EPA initiatives at the board breakfast and Secretary Evans will speak at the board luncheon. Following meetings on Capitol Hill, NMA and its board will host a congressional reception at the association’s headquarters building.

NMA appreciates the sponsorship of its member companies Joy Global Inc. for the breakfast, RAG American Coal Holding, Inc. for the luncheon and AIG Environmental, Bucyrus International, Inc., DBT America Inc., Dyno Nobel and JCH Insurance for the reception.

For additional information, members should contact Martha Anderson at manderson@nma.org, or 202-463-2632.

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NMA welcomes JCH Insurance as new member

NMA is pleased to welcome JCH Insurance as its latest new member. The company is a full service insurance brokerage serving the mining, energy, and environmental industries.

JCH has developed creative solutions to secure reclamation bonds for mining clients in the current tight surety market. The company says innovative approaches, such as the JCH Insurance Backed Bond program, have been critical to several recent mergers and acquisitions within the U.S. mining industry.

For other operators, the program has replaced existing surety bonds and provided better operational flexibility and enhanced cash flow. In addition to its specialty environmental programs, JCH also places all general insurance products necessary for mining and energy owners and operators.

For information regarding JCH’s program and services please call Michael Herrmann 303-883-8606 or Marshall Koval 206-660-0836. The company’s web site is www.jchinsurance.com.

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Newsbits

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