On June 22 the Supreme Court handed down a 6-3 decision that makes lakes and other waterways across the country vulnerable to being used as waste dumps for mining operations and other industrial processes. The case involved the Kensington mine, a gold mine north of Juneau, Alaska. The owner of the mine, Coeur Alaska, was awarded a permit by the Army Corps of Engineers that allows the company to deposit mine tailings into Lower Slate Lake as long as the mine operates, killing all aquatic life in the lake. The company promises to restore the lake to its former state, a process that would take several decades if it is possible at all.
Earthjustice sued to block the permit, arguing that it is in blatant violation of the Clean Water Act and that other methods are available for disposing of the tailings.
The Clean Water Act says all waters of the US should be fishable and swimmable, but here the mine makes no bones that dumping its waste into the lake will kill every single last fish in the lake.
The trial court said the permit was OK, the appeals court said it was illegal, and now the Supreme Court has sided with the mining company.
The situation arose because of a rule change put forward by the Bush administration, which allows mining concerns and others that produce waste that is a combination of liquids and solids ("slurry") to classify the waste as "fill," as in dirt that is used to create a levee or footing for a bridge.
Toxic-metal-containing slurry, like that produced by the Kensington mine, has always been regulated under a different rule that, for 30 years, has made the disposal of such waste in public waterways illegal, which is the clear intent of the Clean Water Act.
As Earthjustice president Trip Van Noppen said in a statement when the decision was announced, "The good news is that the problem is reversible. It was caused by a Bush administration rule reversing 30 years of successful regulation under the Clean Water Act. We call on President Obama to act immediately to repeal this rule and restore the original intent of the Clean Water Act." Congress can also act to reverse this decision, and a bill is now pending that would do just that. Today it may be a remote Alaskan lake, tomorrow it could be a lake near you.
In the meantime, the Obama administration should immediately rescind the dumping permit. This same mine has submitted alternative tailings dumping plans in the past showing alternatives are clearly available.