MAC: Mines and Communities

US Supreme Court backs potential poisoning of lake

Published by MAC on 2009-07-07

Last year, a Canadian province confirmed its ban on the dumping of mine wastes into fresh water lakes. See:

It was a welcome move in the right direction, since the federal Canadian government has endorsed the practice over the past couple of years.

However, similar caution doesn't seem to apply across the Canadian-US divide, where a mining company has won out against vociferous warnings, made by environmentalists and judges, of a potential disaster.

Court OKs dumping gold mine waste in lake


Associated Press

22nd June 2009

WASHINGTON (AP) -The Supreme Court on Monday upheld a federal permit to dump waste from an Alaskan gold mine into a nearby lake, even though all its fish would be killed. Environmentalists feared the ruling could weaken protection of other lakes, streams and waterways from mining waste.

By a 6-3 vote, the justices said a federal appeals court wrongly blocked on environmental grounds the Army Corps of Engineers waste disposal permit for the Kensington gold mine 45 miles north of Juneau. The mine, which had been closed since 1928, has been awaiting a resumption of operation, pending approval of the waste disposal issue.

The court ruling clears the way for as much as 4.5 million tons of mine tailings - waste left after metals are extracted from the ore - to be dumped into Lower Slate Lake in the Tongass National Forest and about 3 miles from the mine, instead of being disposed of in a special tailings pond.

The court, in its majority opinion written by Justice Anthony Kennedy, said that the Army Corps was correct in agreeing with the mining company that the waste should be considered "fill material" and not subject to more stringent Environmental Protection Agency standards under the federal Clean Water Act.

The Army Corps issued the permit in 2005, three years after the Bush administration broadened the definition of fill material so that waste, including some contaminated materials, can be dumped into waterways.

Kennedy cited an EPA memorandum of understanding that the EPA acknowledged agreement with the Army Corps that its more stringent requirements do not cover fill material. He wrote that the court should "accord deference to the agencies' reasonable decision" that such fill material be regulated by the Army Corps, and not the EPA.

In a dissenting opinion, Justice Ruth Bader Ginsburg said it is "neither necessary or proper" to interpret the waterway protection law "as allowing mines to bypass EPA's zero-discharge standard by classifying slurry as fill material." She argued the lower court had been correct in concluding that the use of waters as "settling ponds for harmful mining waste" was contrary to the federal Clean Water Act.

Environmentalists, who had sued to halt the mining company's waste disposal plan, said dumping 200,000 gallons a day of mining waste water - containing aluminum, copper, lead, mercury and other metals - has dire implications not only for the Alaska lake, but possibly other lakes and waterways.

"If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their water can potentially do the same to any water body in America," said Trip Van Noppen, president of EarthJustice, which had participated in the litigation.
Rob Cadmus of the Southeast Alaska Conservation Council said there were better ways to dispose of the mine waste such as dry land storage. But the mining company argued that the alternative would have been to put the material into nearby wetlands, which it maintained was more environmentally harmful.

Officials of the Idaho-based Coeur d'Alene Mine Co., owner of the Alaska mine, said the decision was the last hurdle to building the tailings facility so that mining activities can begin.

The court ruling "confirms that this thoroughly studied permit and plan is the best environmental choice" for disposal of the mine's waste, said Tony Ebersole, the company's director of corporate communications. Company lawyers said in court arguments that after mining activities are halted the lake will be restocked.

"The lake will be as good or better as a fishery than it is today," Ebersole said. He said the mine will have "huge future economic impact" creating 300 construction jobs and 370 direct and indirect jobs linked to operations.

Sen. Lisa Murkowski, R-Alaska, welcomed the court ruling and said it "resolved the most significant obstacle to the creation of hundreds of direct and indirect jobs and a major boost for the economy of Juneau and Southeast Alaska."

The disposal plan had been approved by various state agencies and a federal district court. But the 9th U.S. Circuit Court of Appeals in San Francisco in 2007 blocked the permit, saying the dumping violated EPA requirements, prompting the mining company and the state of Alaska to take the matter to the Supreme Court.

Joining Kennedy in approving the disposal plan were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Stephen Breyer and Samuel Alito Jr.
In addition to Ginsburg, dissenting were Justices John Paul Stevens and David Souter.

On the Net:

U.S. Supreme Court:
Southeast Alaska Conservation Council:
Coeur Alaska Inc.:

Lake-Destroying Mining Operation OK, High Court Rules

Talk Radio News Service

22nd June 2009

The Supreme Court today blessed a gold mining operation in Alaska that is virtually guaranteed to kill all the wildlife in a nearby lake - although the mining company promises it will later "reclaim" the lake, filling it with organic material to make it an even better wildlife habitat.

The Environmental Protection Agency and the U.S. Army Corps of Engineers had already approved the project, which was being disputed by a coalition of Alaskan environmental groups. In upholding the agencies' approval, the Court upheld its familiar rule that federal agencies are entitled to deference.

The case stemmed out of a proposal by Couer Alaska to reopen the Kensington Gold Mine, near Juneau, which had been closed since 1928. Couer hoped to make the mine profitable by using a technique called "froth flotation" to pull gold-bearing minerals to the top of a tank of roiling water. Couer would then dispose of the crushed rock and water slurry in the Lower Slate Lake, three miles away in the Tongass National Forest. The slurry would almost completely fill the 23-acre lake, currently 51 feet deep at its maximum, transforming it into a 60-acre lake about one foot deep. In the process, all the fish and fauna in the lake would die.

The alternative, Coeur argued, was to place the slurry on nearby wetlands, creating a pile that would rise twice as high and cover three times the area of the Pentagon. This would permanently destroy dozens of acres of wetlands.

Couer needed federal approval before it could proceed with its plan. Two separate provisions of the Clean Water Act (CWA) seemed to give authority over the discharge of slurry to both the U.S. Army Corps of Engineers, which has jurisdiction over the creation of wetlands, and the Environmental Protection Agency, which is responsible for monitoring levels of waste in the water.

The Army Corps approved the gold mining plan, finding it was the "least environmentally damaging" way to dispose of the slurry, and that the damage would only be temporary, since in the future the reclaimed lake will be an even better wildlife habitat. The EPA declined to veto the Corps permit.

The permit was challenged by the Southeast Alaska Conservation Council (SEACC), a coalition of 12 Alaskan environmental groups. According to SEACC, the Army Corps did not have the authority to approve the mining operation because a section of the CWA forbids even tiny solid waste discharges - and that includes the slurry discharge, 30% of which is solid waste. The company and the federal government argued that another section of the CWA grants the Army Corps blanket authority to permit the discharge of the slurry.

In light of the ambiguities in the CWA, the Court looked to the agencies' interpretation - and found that the agencies had resolved the problem "in a reasonable and coherent way." An internal EPA memo explained that the prohibition on solid waste discharge applies not to the initial discharge of slurry into the lake, but to any further discharge into downstream waters.
The Army Corps had the sole authority to grant the permit, the Court ruled, because the slurry would fall under the regulations for "fill material," which is solely under the jurisdiction of the Army Corps, not the EPA.

Three justices dissented, arguing that the use of waters as "settling ponds" for harmful mining waste runs "antithetical to the text, structure and purpose of the Clean Water Act."

The case was Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984/07-990).

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