Supreme Court Hears Important Clean Water Act Case Today

Will mining company be allowed to bury lake in wastes?


John McManus, Earthjustice, (510) 550-6707


The Supreme Court heard oral arguments today in a case that will decide the fate of a remote Alaskan Lake — and potentially waterways across the country as well.

The specific issue at hand is whether, under the Clean Water Act, Coeur Alaska’s Kensington gold mine near Juneau can pump 200,000 gallons per day of a toxic wastewater slurry directly into the Lower Slate Lake in the Tongass National Forest. The dumping, which would take place over 10 to 15 years, would eventually deposit 4.5 million tons of solids in the lake, killing nearly all aquatic life in the lake. The Bush administration is trying to permit this waste dumping based on an unprecedented interpretation of a Clean Water Act rule change in 2002 that purports to allow some industries to dump their wastes in waters.

Now the Supreme Court will decide whether to uphold a ruling by the 9th Circuit Court of Appeals that Kensington’s permit to dump the waste is in clear violation of the Clean Water Act.

“The intent of the Clean Water Act is to keep our waters safe for drinking, fishing, and swimming,” said Tom Waldo of Earthjustice, who argued the case on behalf of the conservation groups. “Filling a lake with toxic waste violates both the letter and spirit of the law. And if they can do it in Lower Slate Lake, they could do the same in any other water body. The precedent of this case is critical.”

“Mining companies have operated for years without having to dump their toxic tailings into a lake,” stated Rob Cadmus with the Southeast Alaska Conservation Council.  “Even at the Kensington mine itself, more environmentally sound methods of dry land disposal are practical and able to get a permit.” 

As originally written, the Clean Water Act allowed “fill material” to be put into waters for constructive purposes such as the creation of levees, seawalls and the like. 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 virtually any solid material, including waste and contaminated materials, could be dumped into waterways. In the Kensington Mine case, the Bush administration expanded its interpretation of the rule to allow dumping of toxic, chemically processed slurries directly into lakes and other water bodies, a practice that had long been prohibited by EPA rules.

“To have toxic materials put into a lake upheld by a dam subject to failure due to its location adjacent to a known fault line is unacceptable,” says Mark Rorick, Chair of the Juneau Group of the Sierra Club. “If the dam being proposed to hold the waste in the lake breaks, toxic material would be washed into the Berners Bay ecosystem.”

Today’s case is being closely watched by Alaska Natives and fishermen in the Bristol Bay region of Alaska where the proposed Pebble mega mine plans 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.

“The health, quality of life and economies of communities should not be put at risk simply because mining companies don’t want to spend the money to dispose of their waste safely,” said Ed Hopkins, Director of the Sierra Club’s Environmental Quality Program. “Hopefully, the Supreme Court will not allow the Kensington Mine to pump millions of gallons of tailings into Slate Lake. But no matter how this case is resolved, it’s essential that this misguided ‘fill’ rule be reversed before more of our waters are lost. The Obama administration and Congress can and should act to reverse it as soon as possible.”  

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