Specific Matters — Legal
1996 to Present
National Copper Producer
Concentrator and Smelter
Represent the client in the permitting of its copper concentrating and primary copper smelting facility under Title V of the federal Clean Air Act. Represent the client in proceedings to implement a consent order resolving the facility’s liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), including the development of a remedial investigation/feasibility study (RI/FS) work plan and delineation of CERCLA jurisdiction over operations at the facility. Was instrumental in the reversal of an Environmental Protection Agency (EPA) proposal to designate the area of the facility as being in nonattainment of the primary National Ambient Air Quality Standard (NAAQS) for lead and secured a state recommendation of unclassifiable for the area. Advise and represent the client before the D.C. Circuit Court of Appeals in litigation against the new primary NAAQS for sulfur dioxide. Represent the client in proceedings regarding the applicability of Maximum Achievable Control Technology (MACT) to emissions at the facility.
National Copper Producer
Indian Country Operations
Represented the client in administrative proceedings and proceedings under Chapter 11 of the Bankruptcy Code regarding the client’s copper mining operations on fee land and in Indian Country. Represented the client in mine plan reclamation proceedings before the Bureau of Land Management (BLM); a proceeding before the Bureau of Indian Affairs (BIA) regarding the sufficiency of reclamation bonds under the client’s lease agreements pursuant to the Indian Allotted Lands Mining Act, Mineral Leasing Act and Long-Term Leasing Act; litigation of the Indian landowners’ claims on the reclamation bonds; litigation of the bonding company’s collateral demands against the client; a proceeding to secure alternative reclamation assurance; and bankruptcy litigation, including estimation and settlement, of the federal government’s and Indian landowners’ unsecured environmental and natural resources claims against the client. Currently advise the client on permitting and other activities necessary to implement the bankruptcy settlement agreement. Advise the client on water rights claims and the negotiation of a mineral development agreement under the Indian Mineral Development Act.
International Copper Producer
Mill Closure and New Mine
Advise and represent the client in proceedings to resolve liability for an inactive mill and permit the development of a world class copper deposit in eastern Arizona, including amendments of an areawide aquifer protection (APP) permit to close historic waste rock and tailings facilities discharging to groundwater in accordance with best available demonstrated control technology (BADCT); implementation of compliance schedule items in the areawide APP; remediation of historic smelter-affected soil under the state’s voluntary remediation program (VRP); general and individual aquifer protection permitting, solid waste facility planning and reclamation planning of new overburden and waste rock storage facilities and tailings impoundments; proceedings to secure a pollutant discharge elimination system (PDES) permit and individual APP for the discharge of treated mine water and storm water into surface waters and groundwater; defense of the PDES and APP permits in administrative review proceedings; proceedings to establish the total maximum daily load (TMDL) of pollutants into surface waters adjacent to the mine facility, allocate individual loads among dischargers and plan corresponding response actions; underground injection control (UIC) permitting; and air pollution control permitting under state and county Title V and area source regulations. Advise the client regarding future proceedings necessary to implement the environmental and natural resources clearance provisions of land exchange legislation currently pending before the United States Congress. Advise the client regarding, and draft, proposed legislation and rules affecting the client’s operations.
Tribal Cement Manufacturer and Aggregate Miner
Permitting and Program Development
Advise and represent the client, an enterprise division of a federally recognized Indian tribe, in environmental and natural resources permit and enforcement proceedings. Represented the client in the air pollution control permitting of two cement kiln expansions under prevention of significant deterioration (PSD) rules; PDES and aquifer protection permitting of process and storm water discharges at the cement manufacturing facility; and air pollution control permitting of three aggregate mines and mills located on the client’s reservation. Advise the client in air pollution control enforcement proceedings regarding its cement and fly ash transloading facilities off the reservation; environmental compliance proceedings under permits and leases governing its fly ash recycling facilities; Clean Water Act Section 404 jurisdictional delineation and permitting of the aggregate mines; the establishment and maintenance of mining claims and corresponding reclamation proceedings for the client’s limestone quarry and gypsum mine; and the acquisition, maintenance and development of mining claims on federal lands recently designated as areas of critical environmental concern (ACEC) and subject to withdrawal consideration proceedings. Represented the client in a proceeding to secure a patented mining claim (one of only two issued in Arizona over the last twenty years). Assist the client in the development of tribal environmental ordinances and policies affecting enterprise divisions and non-Indian businesses operating on the reservation. Advise the client on the leasing of reservation land to non-Indian operators of concrete and asphalt plants under the Indian Long-Term Leasing Act and related National Environmental Policy Act (NEPA) proceedings before the BIA.
Regional Gold Producer
Mine Planning and Litigation
Represent the client in proceedings to resolve its potentially responsible party status under CERCLA and secure the permits necessary to operate a gold mine and mill subject to the proceedings. Represented the client in litigation before the Interior Board of Land Appeals that overturned the BLM’s rejection of a notice of intent to conduct exploration tunneling and counsel the client on remand.
Regional Uranium Producer
Acquisitions and Permitting
Represent the client in the acquisition and entitlement of uranium claims and interests before federal, state and local authorities. Advise the client on the permitting and regulatory compliance of several exploration projects, four operating uranium mines and ore storage facilities. Assist the client in the permitting and zoning of a planned uranium mill and proceedings to license the client as a transporter of “source material.”
National Copper Producer
Two Mines and a Mill
Advise the client on the maintenance and protection of mining claims under the General Mining Laws and split estate laws and concerning water rights appurtenant to fee land. Advise the client in proceedings to expand the mines and mill, including mine planning and reclamation under 43 C.F.R. Subpart 3809 and state reclamation and aquifer protection laws. Advise the client in corresponding administrative proceedings under the Federal Land Policy and Management Act (FLPMA), NEPA, Endangered Species Act, National Historic Preservation Act and Section 404 of the Clean Water Act.
National Oil and Gas Producer
Leasing and Unitization
Represented the client in the negotiation and drafting of agreements to unitize and operate helium and carbon dioxide gas fields in eastern Arizona; the acquisition and execution of oil and gas leases in the southwestern United States; and proceedings to secure permits necessary to operate the leases.
International Petroleum Refiner and Transporter of Refined Petroleum Products
NEPA Litigation
Represented the client in multi-year NEPA litigation concerning the client’s right of way applications to construct a refined petroleum products pipeline from Bloomfield, New Mexico across federal lands (including two national forests), state lands and private lands to Salt Lake City, Utah.
Regional Electricity Provider
Facility Acquisition
Performed an environmental due diligence and permitting feasibility assessment of the client’s planned acquisition of a majority interest in an electrical generating station.
Mine Property Investor
Claims Maintenance and Litigation
Represent the client in the negotiation of mineral exploration, option and purchase agreements with parties owning fee, patented and claimed mineral interests.
Regional Financial Institution
Lending Due Diligence
Advised the client, a subsidiary of an international bank, regarding loans collateralized by environmentally distressed property and loans to industrial manufacturers.
International Manufacturer of Fluid Transfer Equipment
Commercial Law and Litigation
Advise and represent the client, a manufacturer and distributor of blowers, valves, vacuum pumps, compressors and related equipment, in the negotiation and drafting of purchase, sale and employment contracts; dispute resolution under the Uniform Commercial Code; real property leases; litigation regarding the infringement of its franchise and trademark; and compliance with environmental laws applicable to its manufacturing facilities.
National Home Builder
Acquisition and Development
Performed due diligence and negotiated contractual provisions to shift CERCLA liability in the client’s purchase and residential development of a large historic cement manufacturing facility in southern Nevada.
Ball Bearing Manufacturer
Voluntary Remediation
Represent the client in proceedings before state regulators, water providers and holders of groundwater rights concerning the client’s voluntary remediation of soil and groundwater contamination caused by an historic ball bearing manufacturing facility. Also represent the client in negotiations to share the cost of the remediation with responsible parties.
Unincorporated Community
Land Exchange Litigation
Represented a northern Arizona community in successful administrative and judicial NEPA, FLPMA and zoning litigation against a land exchange that would have facilitated a 2,000-room hotel resort on the southern flank of the Grand Canyon.
Scrap Metal Recycler
Special Waste Litigation
Developed the litigation strategy and drafted the court briefs that defeated an Arizona Department of Environmental Quality (ADEQ) compliance order that could have resulted in a shut-down of the client’s scrap metal recycling facility. Subsequently secured an award to the client of over $164,000 in attorney fees, which was precedent-setting against the ADEQ.
International Copper Producer
Mine Acquisition
Prepared a licensing feasibility study and environmental due diligence report to support the client’s acquisition of a large historic copper mine in northern Arizona and provided post-acquisition advice on the natural resources and environmental permitting of the mining operation.
Regional Aggregate Miner
Floodplain Mining
Represented the client in legislative and administrative proceedings regarding county flood control district ordinances, proposals to channelize watercourses for aggregate mining and related Section 404 permitting.