Kensington case hinges on Clean Water Act

A Panel of three judges from the 9th Circuit Court of Appeals in San Francisco heard arguments Dec. 4 for and against tailings disposal plans for Kensington gold mine near Juneau. The U.S. Army Corps of Engineers, the U.S. Forest Service and mining company Coeur Alaska are fighting a lawsuit brought in 2005 by the Southeast Alaska Conservation Council, the Sierra Club and Lynn Canal Conservation that opposes the Corps' 404 permit approving the use of Lower Slate Lake as a tailings impoundment.

In August, U.S. District Judge James Singleton in Anchorage dismissed the lawsuit, ruling that Congress had empowered the Environmental Protection Agency and the Corps of Engineers to coordinate their jurisdictions and adopt regulations.

"The Corps properly issued the permit to Coeur Alaska Inc. under (section) 404 of the Clean Water Act," Singleton wrote. But the environmental groups didn't give up, and now the case is being heard again - this time by a court that has a reputation for being liberal-leaning.

"Section 301 is the cornerstone of the Clean Water Act and it prohibits, or it says that the discharge of any pollutant by any person shall be unlawful, except as in compliance with section 306 and other sections of the Clean Water Act," said Juneau-based attorney Tom Waldo from Earthjustice, representing the plaintiffs. "Section 306, in turn, says that it shall be unlawful to operate any new source in violation of an applicable new source performance standard."

New-source performance standard adopted in '82

The EPA adopted a new-source performance standard in 1982 specifically applicable to mills that use the froth flotation process for the beneficiation of gold ore, the process that has been proposed for use at Kensington, Waldo told the court. "In furtherance of a congressional goal of eliminating all discharges to the navigable waters by 1985, EPA adopted a zero discharge limitation, no discharge of processed wastewater to navigable waters, and that was based on a review of mines across the country that concluded that these kinds of discharges are not necessary," Waldo said.

"So the plain language of 301 and 306, together with the performance standard, simply prohibit the discharge that the Corps of Engineers purported to authorize here," he added.

Up until a couple of years ago the Corps of Engineers would have refused to issue the 404 permit for Kensington, but the agency recently adopted a new interpretation of the Clean Water Act, Waldo said. "The agencies now argue that if a pollutant meets the agencies' definition of fill material then all it needs is a section 404 permit and it's exempt from sections 301, 306 and other provisions of the Clean Water Act," Waldo told the court.

Section 404 states that permits for the discharge of dredged or fill material into the navigable waters of the United States at specified disposal sites may be issued after public hearings, if the discharge of the material causes minimal adverse environmental effects. In 2002 the Corps of Engineers and the EPA redefined fill material in an effort to better coordinate the two agencies' work.

"In the fill rule the Corps of Engineers and EPA jointly adopted a very broad definition of fill material, it includes anything that raises the bottom elevation of a water body, which covers any discharges that have suspended solids, and EPA has adopted a lot of effluent limitations for sources that include suspended solids," Waldo said. "So the question arose in this regulation, what would you do with a pollutant that both meets the definition of fill material, and is subject to effluent limitations adopted by EPA?" The agencies stated that discharges subject to effluent limitations would continue to be governed under section 402 of the Clean Water Act, Waldo pointed out.

Justice argues discharge meets definition of fill

The Kensington discharge meets the definition of fill material, attorney John Stahr from the U.S. Department of Justice, representing the Corps of Engineers, told the court. "As part of the discharge there is a component containing processed wastewater which does meet the definition of processed wastewater, but I think you need to go back to the statute and not the regulations to determine the statutory construction issue here, and in that respect, section 404 governs the discharge of two pollutants only, dredge material and fill material, and 402 governs discharges of all other pollutants. In that respect, then, they each impose their own separate protective regimes," Stahr said.

The judges asked Stahr how the Corps of Engineers could have concluded that section 402 of the Clean Water Act wasn't applicable to Kensington, since the tailings discharges would kill all the fish in Lower Slate Lake. Stahr replied that when mining operations end, the tailings will be capped and re-vegetated and fish will be reintroduced to the lake. The judges also noted that 70 percent of the tailings by volume would be water, indicating that perhaps they should be permitted under effluent limitations. Stahr replied that the tailings are 55 percent water by weight.

"I think the plain language weighs in favor of the government's interpretation here under the permitting provisions themselves, and the provisions outside of the permitting provisions upon which plaintiffs rely do not get them where they want to go," Stahr said. "Even if we don't win on plain language, I think the agencies are entitled to deference here under the fill rule, the plain language of the fill rule," he added.