The Nickel Report

The Mining Law of 1872 allows people to prospect for valuable minerals on public lands. Prospectors can “locate” or “stake” mining claims. In 1999, the Bureau of Land Management (BLM) proposed a regulation to limit mining claimants from locating more than one mill site for each mining claim. Later, in 2003, BLM promulgated a Final Rule withdrawing the proposed 1999 regulation. In a decision filed on June 25, 2024, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s decision to uphold the 2003 Final Rule.

As recently reported on the Hunton Retail Law Resource blog, Washington State became the first-in-the-nation to pass an almost complete ban on the manufacture and sale of cookware containing lead in March 2024. Starting in January 2026, HB 1551 sets the maximum lead content level for cookware and cookware components at five (5) parts per million (ppm). The law is both broad in scope and stringent in its lead limit, making it important for entities that sell cookware or offer cookware for sale in the state of Washington to begin thinking about compliance now. 

The Chevron doctrine – the bedrock principle of administrative law under which courts afforded deference to administrative agency interpretations in the face of statutory ambiguity – is no more.  On June 28, 2024, the U.S. Supreme Court issued a long-anticipated decision that addresses the authority of regulatory agencies to dictate policy and the extent to which courts will exercise their own judgment as to the meaning of a statute and how that may bound agency decisions. 

The Division of Mine Reclamation (DMR) has announced it will be taking “heightened efforts” to enforce regulatory compliance under the California Surface Mining and Reclamation Act (SMARA), the state’s comprehensive surface mining and reclamation program.  DMR’s objective is to “enable the highest standards of regulatory compliance and equity”.

Earlier this month, the US Department of Energy (DOE) released the first National Definition of a Zero-Emissions Building. DOE intends for this definition to set forth “standardized, consistent, and measurable minimum criteria” that can be adopted by public and private entities to support the transition for buildings toward zero emissions. The release of the definition follows on the heels of DOE’s National Blueprint for the Buildings Sectors, published in April. The Blueprint sets forth actions with the aim of reducing greenhouse gas emissions from US buildings 65% by 2035 and 90% by 2050 from a 2005 baseline, with cross-cutting goals of equity, affordability, and resilience. While this definition serves only as non-binding guidance, it may influence other regulatory and industry standards as buildings move toward decarbonization.  

Within the first five months of 2024, the United States Environmental Protection Agency (EPA) finalized two rules under section 6(a) of the Toxic Substances Control Act (TSCA) that would impose extensive bans and restrictions on uses of chrysotile asbestos and methylene chloride. Aside from a 2019 EPA rule prohibiting the manufacturing (including importing), processing, and distributing in commerce of methylene chloride for consumer paint and coating removal, these are the first two broadly applicable risk management rules that EPA has promulgated since Congress amended TSCA in 2016 to manage unreasonable risks to human health or the environment through broad restrictions on existing chemicals.

On May 28, the Biden Administration released a joint policy statement and a set of principles for voluntary carbon markets.  The statement provides an additional signal of the Administration’s support for voluntary carbon markets as a means of encouraging decarbonization efforts, while the principles put the weight of the Administration behind specific concepts underpinning the credibility of voluntary carbon credits and voluntary credit markets.

On May 1, the Council on Environmental Quality (CEQ) published the final Phase 2 rule overhauling the National Environmental Policy Act (NEPA) implementing regulations. The final rule, titled the “Bipartisan Permitting Reform Implementation Rule” (Phase 2 Rule), will apply to all actions starting the NEPA processes beginning after July 1, 2024, and the agencies have discretion to apply to NEPA reviews that are currently underway.

Back in October of 2023, we provided a list of “Frequently Asked Questions” and answers regarding the US Environmental Protection Agency’s (EPA’s) final reporting rule for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA). As of May 8, 2024, many companies are facing a one-year countdown to the deadline for submitting their reports to EPA. To help you prepare for this impending deadline, we are providing a second installment of “Frequently Asked Questions” and answers about EPA’s rule.

On April 19, 2024, the US Environmental Protection Agency (EPA) released a pre-publication copy of its much-anticipated final rule adding two per- and polyfluoroalkyl substances (PFAS) to the list of “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). The rule will be effective 60 days after publication in the Federal Register.