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A Dangerous Precedent for Other Mines and Other Industries

The Supreme Court's decision in the Kensington Mine case will have impacts well beyond Alaska's remote Lower Slate Lake. Any industrial facilities with significant components of solids in their wastewater—and there are many—will now be able to potentially dump their waste into nearby lakes, rivers or streams.

The decision has its most obvious effect on ore processing mills like the one at the Kensington Mine at issue in Coeur Alaska. Since 1975, EPA's effluent limits have prohibited mills of this type from discharging their process wastewater directly into water bodies. Under the Court's decision, those limits are no longer effective. All mines will be able to dump their wastewater—or "tailings"—directly into lakes, rivers, streams, or wetlands. An example of immediate concern is the massive proposed Pebble Mine in southwest Alaska, which has proposed to dump its waste into headwater lakes and streams of Bristol Bay, waters that support one of the largest salmon fisheries in the world.

But the same risk now exists for the many industries that, like the ore processing mill at the Kensington Mine, have significant solids in their untreated wastewater. Coal-fired power plants, aluminum smelters, cement manufacturing plants, and large beef cattle feedlots are just a few examples of the many industrial sources whose wastewater may, in the future, be discharged as "fill material" directly into water bodies, exempt from the strict effluent limitations that have long governed them.

The Obama administration can and should act immediately to avoid these threats by repealing the Bush administration's misguided 2002 "fill" rule and making clear that fill material permits may not be used for industrial wastes. There is also a bill pending in Congress—H.R. 1310, the Clean Water Protection Act—that would repeal the Bush "fill material" definition.