Mining

Hardrock mining companies around the world face environmental, reclamation, public lands and electric supply issues of every stripe. Since the early 1970s, those companies have relied on Goodwin’s experienced mining practice to overcome those challenges. We have also been heavily involved in negotiating and providing advice with respect to mergers and acquisitions and complex financing transactions.

Environmental, Reclamation and Public Lands Work

Our lawyers regularly:

• Litigate CERCLA actions (including natural resources damages claims) brought by governmental entities and PRPs against our hardrock mining clients
• Advise our mining clients of their rights and obligations under all of the major federal and State environmental, public lands and reclamation laws, including RCRA, CERCLA, the Clean Water Act,
• NEPA, the Federal Land Policy and Management Act, the General Mining Laws, the Community Right to Know Act, the Toxic Substances Control Act and Western State reclamation laws
• Defend our mining clients in enforcement proceedings brought by EPA and states
• Design and implement comprehensive environmental management systems, audit protocols and employee training programs for our mining clients, both with respect to U.S. mining facilities and those located abroad
• Participate in administrative rulemakings, and subsequent judicial challenges, involving regulations affecting mining companies proposed or adopted by the Department of the Interior, the Environmental Protection Agency and the Army Corps of Engineers
• Advise and represent mining clients in connection with federal and State legislative activities, including in the area of CERCLA and RCRA reform, reclamation bonding, and Mining Law reform
• Assist clients, including through the conduct of due diligence investigations, in connection with mergers, acquisitions, financings, and other corporate transactions 
• Advise mining companies of their due diligence and reporting obligations under the Sarbanes Oxley Act, the Dodd-Frank Act and other SEC requirements

Our lawyers have been involved, through preparation and submission of comments, negotiations with agencies, and subsequent judicial challenges, with every significant environmental regulation affecting the hardrock mining industry that has been proposed over the past 30 years by the Department of the Interior or the Environmental Protection Agency. We are currently participating, on behalf of several multinational hardrock mining companies and trade organizations, in EPA rulemakings dealing with the Definition of Solid Waste under RCRA, legitimacy criteria that should be applied to recycling of wastes under Subtitle C of RCRA, the scope of EPA jurisdiction under the Clean Water Act and the need for increased financial assurance requirements from hardrock mining companies pursuant to Section 108(b) of CERCLA. We are also involved in advising our mining clients with respect to the Department of Interior’s recent proposal to list the sage grouse as a threatened species under the Endangered Species Act. 

Our lawyers have also represented the mining industry or individual hardrock mining companies in connection with every significant legislative proposal by the Congress since the early 1980s relating to environmental obligations or liabilities of hardrock mining companies. Over the past several years, we have been heavily involved in Congressional attempts to “reform” the Mining Law of 1872; to adopt “Good Samaritan” legislation that would waive or relax the requirements and liabilities under federal and State environmental laws for mining companies with no prior involvement at an abandoned mining site that seek to remediate that site in whole or in part; and to ban the export of mercury. 

We litigated the first CERCLA lawsuit to go to trial involving a mining company, and were successful on appeal in overturning the trial court’s rulings against our client. Colorado v. Idarado Mining Company, 916 F. 2d 1486 (10th Cir. 1990). We currently represent:

• A U.S.-based multinational mining company in connection with enforcement proceedings initiated by EPA for alleged violations of the RCRA hazardous waste program in Nevada. This matter involves cutting-edge issues relating to the application of the RCRA Bevill Amendment to secondary streams from air pollution control facilities associated with beneficiation activities.
• The parent of another U.S.-based multinational mining company in connection with a litigation filed by the Department of Justice in Utah involving RCRA Bevill Amendment and CERCLA issues, and we recently challenged the proposed NPL listing of the site in question before the D.C. Circuit.
• A multinational mining company based in Asia in connection with natural resources damages claims arising out of a mine site in New Mexico formerly owned in part by that company’s subsidiary. 

Electric Supply

With electric energy costs frequently hardrock mining’s second-largest cost of production after only human resources, we are often called on to provide assistance with securing economic electric supply for mining and processing projects. Among other things, we have provided representation to hardrock mining clients with respect to:

• Permitting generation and transmission facilities
• Transmission and wholesale rate, tariff and service issues at the Federal Energy Regulatory Commission
• Retail rate, tariff and service issues at state public utility commissions
• Negotiation of power purchase and transmission and electric service agreements
• Electric industry restructuring issues
• Administrative rulemaking and legislation

Mergers and Acquisitions and Financing Transactions 

We have increasingly become involved in recent years in negotiating and implementing mergers, acquisitions, sales, financings and other corporate work for Asian and South American mining companies seeking to enter or exit the U.S. market. We recently have represented: 

• A multinational mining company based in Asia in connection with its sale of a one-third partnership interest in copper mining and associated facilities located in New Mexico
• A major Chilean copper producer in connection with purchase of an Australian copper mining company, and in subsequent efforts to divest itself of certain U.S. properties obtained during the acquisition