There was bad news - and potentially very bad news - for the environment and water quality on Friday. A
federal court decision (PDF) is allowing a gold mine to dump millions of tons of mine tailings into a freshwater lake just north of Juneau, Alaska.
A federal district judge rejected a legal challenge by three environmental groups (Southeast Alaska Conservation Council, Sierra Club, and Lynn Canal Conservation) of a permit granted by the US Army Corps of Engineers to Coeur Alaska, a subsidiary of the international mining corporation Coeur d'Alene Mines, to dispose approximately 4.5 million tons of tailings into Lower Slate Lake, a freshwater lake that empties through a creek into Berners Bay, a wildlife-rich and ecologically sensitive area about 45 miles north of Juneau.
A legitimate question is how, over 30 years after the Clean Water Act was passed, does a mining corporation get to dump tailings directly into a freshwater lake? Wasn't the Act passed to prevent this sort of thing from happening? The answer to the first question is that the Bush administration, through the Corps of Engineers, has redefined mine tailings as "fill" in its regulations. Under the Clean Water Act it is permissible under certain conditions to dump "fill" into bodies of fresh water.
In general, permitting for the discharge of effluents is vested in the EPA, the granting of which must meet strict standards. Congress has, however, carved out an exception, vesting primary permitting authority in the Corps for the disposal of "dredged or fill material" into navigable waters at specified disposal sites. [Court decision, page 8]
To be fair, the processing method for the ore is not cyanide leaching, one of the worst kinds of mining. Therefore the central issue of this case - the toxicity of the tailings - was not
obvious. However, it is a common anticipation (admitted even by Coeur Alaska) that
most aquatic life in Lower Slate Lake will be lost during mining operations, primarily due to being covered with the discharged material. [Court decision, page 4]
It is also true that the tailings will be toxic at the time of discharge.
Tests on the tailings show that they will not generate an acid discharge or metals leachate. While the pH around the discharge pipe is expected to be toxic to the aquatic environment, it is anticipated this will dissipate very rapidly. [Court decision, page 4]
Interesting to note is that the mine has not applied for a mixing zone permit, which usually is needed when effluent is toxic, turbid, or otherwise harmful, but is expected to dilute once discharged into the water.
You can read the detailed argument given by the district judge in the rest of the decision, but I will elaborate as follows. The Clean Water Act did not expressly define "fill material," which leaves it up to the EPA to do so in its regulations. A pro-mining EPA such as the current one would obviously be inclined to establish regulations that define fill material as broadly as possible, and a broad definition is exactly what came about. "Discharge of fill material" under 33 C.F.R. § 323.2(f) (Corps) or 40 C.F.R. § 232.2 (EPA) includes "placement of overburden, slurry, or tailings or similar mining-related materials." One of the plaintiffs' arguments was that including mine tailings in the definition of fill material violated the CWA, but the judge rejected it by arguing that the specific sections cited by the plaintiffs in the CWA were "inapplicable" if the permit nonetheless accorded with Section 404 of the Act. As I understand it, it is kind of like the regulations turning the power of definition granted them by the CWA back on the Act itself to trump other sections that seek to prohibit this kind of definitional chicanery on the part of federal regulators in charge of interpreting the statutes.
Disturbing is the fact that the mine tailings
are toxic, and were admitted to being toxic in the court decision. So the assertion that they are simply "fill material" is dubious at best and a clear transgression on the progress the U.S. has made in safeguarding clean water since the Industrial Revolution.
The scary thing about this decision is that it could have a foot-in-the-door effect for future mining operations to use fresh water as dumping sites in order to make more profit. (It's worth keeping in mind, for this case, that Coeur Alaska originally had a permit for a dry-stack tailings disposal facility in the 1990s, but found that dumping the mine's waste directly into a freshwater lake was much cheaper - and suddenly potentially permissible once the Bush administration took office.) As the
press release from the plaintiffs reminds us,
The Kensington Mine will be the first mine in a generation allowed to dispose of its waste in a lake or stream.
[snip]
If the decision allowing the use of Lower Slate Lake as a waste dump at the proposed Kensington Mine stands, it will set a major precedent, state-wide and nation-wide, for future mines. Allowing a mining company to dump tailings in a lake at Kensington could have a strong effect on approval for the massive, controversial Pebble mine near Bristol Bay, which [even] Senator Ted Stevens [!] and many Alaskans oppose because of the harm it could do to the $100-million-dollar fisheries there.
This unfortunate decision could have a ripple effect when combined with the current ramping up of mining activity across the US, such that the future of our clean water, the many victories for water quality that have been won through tireless organizing by many evironmental groups and concerned citizens, could be despoiled.