Mining and property rights groups, with the state of Alaska, have asked the Supreme Court to review the case and reinstate the waste permit.
The Ninth Circuit’s ruling came in May of 2007 in a suit brought by Earthjustice on behalf of the Southeast Alaska Conservation Council, the Sierra Club, and Lynn Canal Conservation challenging the waste permit.
After losing its permit at the Ninth Circuit, the mining company, Coeur Alaska, submitted a revised plan in January 2008 calling for a different kind of disposal plan that would spare the lake. On the same day, it submitted, with Alaska, a petition asking the high court to review the case. The Forest Service recently announced that the agency hopes to complete the environmental review process for the alternative, less damaging, waste disposal plan by late summer or early fall.
"Modern mines have never been allowed to dump tailings into lakes," said Earthjustice attorney Tom Waldo. "The fact that Coeur Alaska is moving forward with an alternative waste disposal plan that doesn’t call for the lake’s destruction proves that there are viable alternatives. The Supreme Court should let stand the Ninth Circuit’s decision, which simply maintains the status quo."
Since passage of the Clean Water Act in 1972, new mines have been prohibited from using lakes, rivers, and streams as waste dumps for mine tailings. The permit originally given to Coeur Alaska represented a radical departure from these water protections.
"It is unfortunate that Coeur Alaska won't let go of its proposal to use a lake as a waste dump when its alternative paste tailings plan is the best, and fastest, option for getting this mine into production in an environmentally sound way," said Rob Cadmus of the SoutheastAlaska Conservation Council.
In making its ruling, the Ninth Circuit had to decide whether mine tailings, a toxic slurry generated from processing the ore, should be regulated as "fill material" or as any other industrial effluent. The latter are regulated by the Environmental Protection Agency. An EPA regulation forbids dumping effluents from a froth flotation mill, which is what Kensington has built, in U.S. waters. Fill material, however, is regulated by the U.S. Army Corps of Engineers and has historically included material used to fill waterbodies for construction purposes, such as the building of a bridge or breakwater.