H. Josef Hebert
Court OKs dumping gold mine waste in lake
WASHINGTON — A mining company was given the go-ahead by the Supreme Court on Monday to dump waste from an Alaskan gold mine into a nearby 23-acre lake, although the material will kill all of the lake’s fish.
The court said that the federal government acted legally in declaring the waste left after metals are extracted from the ore as “fill material” allowing a federal permit without meeting more stringent requirements from the U.S. Environmental Protection Agency under the Clean Water Act.
Alaska Gov. Sarah Palin called the decision “great news for Alaska” and said it “is a green light for responsible resource development.” The Kensington gold mine 45 miles north of Juneau will produce as many as 370 jobs when it begins operation.
But environmentalists feared the ruling could lead to a broader easing of requirements on how companies dispose of their mining waste.
“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.
By a 6-3 vote, the Supreme Court said a federal appeals court wrongly blocked on environmental grounds the Army Corps of Engineers’ waste disposal permit for the mine project. The Alaska mine, which had been closed since 1928, now plans to resume operation and will dump about 4.5 million tons of mine tailings — waste left after metals are extracted from the ore — into the lake located three miles away in the Tongass National Forest.
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 the more stringent EPA requirements.
The 2005 permit was issued three years after the Bush administration broadened the definition of fill material so that waste, including some contaminated materials, can be dumped into waterways.
“We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful,” wrote Kennedy. He said the court should “accord deference to the agencies’ reasonable decision” on the matter.
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 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.
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. The waste deposits are expected to raise the lakebed 50 feet to the current lake surface level and eventually triple its size to 60 acres. The lake contains a variety of common fish that are not expected to survive, according to court documents.
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. But the 9th U.S. Circuit Court of Appeals in San Francisco in 2007 blocked the permit.
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.
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On the Net:
U.S. Supreme Court: www.supremecourtus.gov
Southeast Alaska Conservation Council: www.seacc.org
Coeur Alaska Inc.: www.kensingtongold.com
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