Court OKs dumping Alaska gold mine waste in lake
chatnoir
Court OKs dumping Alaska gold mine waste in lake
by The Associated Press Tuesday June 23, 2009, 7:30 AM
WASHINGTON -- 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 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.