The Supreme Court ruled today that the Clean Water Act permits a mining company to pump hundreds of thousands of gallons per day of a toxic wastewater slurry into an Alaskan lake, killing its fish and aquatic life. The ruling has dire implications for other waterways across the country, but the Obama administration and Congress may act promptly to ensure lakes, rivers, streams, and wetlands are not destroyed by industrial waste dumping.
The Supreme Court’s 6-3 decision reverses a May 2007 ruling by the 9th Circuit Court of Appeals, which found the mining company’s permit in clear violation of the Clean Water Act.
"If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their wastewater can potentially do the same to any water body in America," said Earthjustice president Trip Van Noppen. "The good news is that the problem is reversible. It was caused by a Bush administration rule reversing thirty 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."
"The purpose of the Clean Water Act is to keep America’s waters safe for drinking, fishing, and swimming," added Tom Waldo of Earthjustice, who argued the case on behalf of three conservation groups. "The Clean Water Act was intended to halt the practice of using lakes, rivers, and streams as waste dumps. Today’s decision does not achieve these purposes."
The permit allows the Coeur d’Alene Mines Corporation’s Kensington gold mine near Juneau to pump over 200,000 gallons per day of a toxic wastewater slurry directly into Lower Slate Lake in the Tongass National Forest. The dumping, which will take place over ten years, will eventually deposit 4.5 million tons of solids in the lake, killing nearly all its aquatic life. The Bush administration approved the waste dumping permit after issuing a new rule in 2002 allowing industries to dump their solid wastes in waters.
"Mining companies have operated for years without having to dump toxic tailings into lakes," stated Rob Cadmus with the Southeast Alaska Conservation Council. "Even at the Kensington mine, more environmentally sound methods of dry land disposal are practical and able to get a permit."
The Clean Water Act allows "fill material" to be put into waters for constructive purposes such as the creation of levees, seawalls, and the like, under permits issued by the Army Corps of Engineers. For decades the regulatory definition of "fill material" expressly excluded waste, meaning the Army Corps could not permit waste dumps in waters. In 2002 the Bush administration changed the definition of "fill" so that most solid material, including waste and contaminated materials, could be placed into waterways. In the Kensington Mine case, the Bush administration expanded its interpretation of the rule, through an informal EPA memo that was never subject to public notice or comment, to allow dumping of toxic, industrial wastewater slurries directly into lakes and other water bodies, a practice that had long been prohibited by EPA rules. The Court based its ruling on this informal memo.
This rule change can be reversed with a new rule issued by the Corps and EPA, by legislation, or by revising the informal EPA memo. A bill already introduced in this Congress by Representatives Frank Pallone (D-NJ) and Dave Reichert (R-WA) would, if passed, accomplish this task. The Clean Water Protection Act, H.R. 1310, has 151 cosponsors.
"As this case has shown, it is essential that the misguided ‘fill’ rule be reversed before more of our waters are lost and the communities and economies that depend on them are harmed. President Obama’s administration and Congress can and should act to reverse it as soon as possible," said Carl Pope, Sierra Club Executive Director.
Today’s decision is of great interest to Alaska Natives and fishermen in the Bristol Bay region of Alaska, hundreds of miles from Lower Slate Lake. There, the proposed Pebble mega mine has proposed to dump waste into the headwaters of salmon streams that support the world’s largest wild sockeye salmon fishery. Also watching closely are communities in Appalachia, where mountaintop removal coal mining operations have already buried more than 1,200 miles of streams under mining waste.
Earthjustice and Public Citizen Litigation Group represent the Southeast Alaska Conservation Council, Sierra Club, and Lynn Canal Conservation in the lawsuit.