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Oct. 17, 2023 |  By: Allison Kite - Missouri Independent

Proposed Missouri silica sand mine loses appeal of its denied permit

mine

By Allison Kite - Missouri Independent

A plan to build a silica mine in southeast Missouri suffered yet another setback on Tuesday when an appeals court ruled state regulators were within their authority to deny the project a permit. 

The Missouri Court of Appeals for the Eastern District sided with the Missouri Mining Commission, which denied NexGen Silica a permit in January because it submitted an incomplete application. 

“NexGen’s permit application did not identify all parties with any interest in the land and did not contain the written consent of all parties prior to approval of the mining permit by (the Missouri Department of Natural Resources),” the unanimous ruling says.

NexGen Silica had planned to mine silica sand, which is commonly used for fracking, near Hawn State Park in Ste Genevieve County. News of the project sparked blowback in the community. Residents feared the operation would kick up toxic sand, pollute their drinking water and keep the community up all night with bright lights and traffic.

But NexGen has struggled to obtain — and keep — permits for the project. 

The Missouri Department of Natural Resources initially granted NexGen a land reclamation permit last year despite the missing information in its application that the appeals court noted in its Tuesday ruling. 

But Operation Sand, a group formed by residents near the proposed mine, challenged the permit, arguing it was incomplete and the Missouri Department of Natural Resources hadn’t adequately scrutinized the application. 

Operation Sand prevailed. The state’s Administrative Hearing Commission recommended the decision to grant NexGen a permit be reversed, and the Missouri Mining Commission followed suit. NexGen appealed that decision, resulting in Tuesday’s denial.

NexGen’s attorney did not immediately return an email seeking comment. A NexGen employee’s email had seemingly stopped functioning, and the company’s website was offline.

It wasn’t immediately clear whether the company would try again to obtain a permit.

In May, the company wrote to the Missouri Department of Natural Resources to withdraw its request for a water permit, which was also challenged by Operation Sand. 

Operation Sand’s attorney, Stephen Jeffery, said his clients would be happy to hear the appeals court’s decision.

At the same time, NexGen is suing Ste Genevieve County over a law prohibiting new mines close to schools, towns, churches and other sites important to the community and environment. That lawsuit is still pending. 

The proposed mine also attracted criticism last year because the state didn’t require an environmental review before issuing the initial land reclamation permit. 

Residents flooded the Missouri Department of Natural Resources when it allowed public comments on the permit, fearing the mine would harm their drinking water, native wildlife and Hawn State Park.

One person who wrote to the department said: “If there is even a chance of it contaminating our water, using up our water table or affecting anyone’s health (including the wildlife) why allow it? Why chance it? There’s too much at stake here.”

The department said, at that time, that the statute gave the agency little flexibility in whether to decline permit applications. And it doesn’t require an environmental review.