Court OKs Aquatic Ecosystem Destruction

The Supreme Court recently 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: http://www.supremecourtus.gov

Southeast Alaska Conservation Council: http://www.seacc.org

Coeur Alaska Inc.: http://www.kensingtongold.com

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