Earthjustice is challenging a permit that lets Coeur d'Alene Mines Corporation dump toxic waste into a lake, killing all fish for at least the 10-year life of the permit. The U.S. Army Corps of Engineers issued the permit after redefining language in the law so that toxic wastewater could be considered legally permitted fill. If allowed to go forward, the Kensington gold mine would be the first mine to kill a U.S. lake using the new, weakened dumping standard.
The Army Corps' new interpretation contradicts what the law actually says, argued Earthjustice attorney Tom Waldo, assisted by Eric Jorgensen, managing attorney in Juneau for Earthjustice.
"The plain language of the Clean Water Act simply prohibits the discharge authorized by the Corps of Engineers," Waldo told the three-judge Ninth Circuit Court of Appeals panel. The argument revolves around a gold extraction process that creates 210,000 gallons per day of a toxic waste slurry. Kensington chose lake dumping despite the availability of disposal methods less damaging to the environment.
Attorneys representing mine developers and the federal government said the slurry is legal fill in their view of the law, but one of the three Circuit Court judges challenged their interpretation.
Judge Procter Hug, Jr. noted that the fill was actually 70 percent water and questioned how water could be considered fill material. He wondered if the Clean Water Act could allow a discharge that would kill an entire lake's fish population.
Picking up on the judge's comments, Waldo pointed out that there is no precedent for this kind of permit. Out of court, the attorney expressed concern that if allowed to proceed, this mining operation would set a precedent, potentially spurring growth of such operations elsewhere in Alaska or the lower-48 states.
The court took the appeal under advisement.
The mine site is in Berners Bay, about 35 miles northwest of Juneau. The disputed permit would fill Lower Slate Lake, a 23-acre wooded, sub-alpine lake in the Berners Bay watershed.
Earthjustice is representing the Southeast Alaska Conservation Council, Lynn Canal Conservation, and the Sierra Club in the case.