On Monday, June 22, 2009, the Supreme Court, in Coeur Alaska Inc. v. Southeast Alaska Co., 2009 WL 1738643 (2009), held that the Army Corps of Engineers (the “Army Corps”) has authority to issue a permit for the discharge of mined rock slurry from a gold mine into an Alaskan lake as fill material under Section 404 of the Clean Water Act (“CWA”), and that the Environmental Protection Agency (“EPA”) is not required to regulate the mined rock as a pollutant under Section 402 of the CWA.
In 2005, the Army Corps. issued a permit to Coeur Alaska Inc. (“Coeur”) with respect to reopening the Kensington Gold Mine, north of Juneau, Alaska. Couer’s plans included use of a “froth flotation” technique that churns mined rock in tanks of water, causing gold-bearing materials to float to the surface. Once the gold is skimmed off the top, a mixture of crushed rock and water is left behind. This mixture, known as slurry, is typically disposed of in tailing ponds. Coeur proposed an alternative disposal method that would involve pumping 4.5 million tons of slurry into Lower Salt Lake and then discharging purified lake water into a downstream creek. The Army Corps approved of Coeur’s plan and issued a fill permit under Section 404 of the Clean Water Act.
Environmental groups challenged the permit by arguing that EPA, and not the Army Corps, had authority to issue the permit. The environmental groups claimed that the Army Corps permit violated the CWA’s new source performance standards (“NSPS”) which prohibit the “discharge of process wastewater to navigable waters from mills that use the froth-flotation process” for mining gold. 40 CFR §440.104(b)(1). The U.S. District Court of Alaska found for the Army Corp by holding that the permit was properly issued under the CWA. The Ninth Circuit Court of Appeals reversed and blocked the permit, holding that the discharge was “prohibited by clearly applicable and specific performance standards.” 486 F.3d 638 (9th Cir. 2007).
In a 6-3 decision, the Supreme Court found that the agencies’ permitting authority under the CWA was mutually exclusive, with the Army Corps’ authority extending over permits for the discharge of “dredged or fill material” and the EPA’s authority applying to permits for the discharge of “any pollutant,” except where the permit is for the disposal of fill material. Consequently, the Court established that the Army Corps had sole authority to issue permits to discharge slurry because slurry is a type of “fill material.” Both agencies define “fill material” as material changing the bottom elevation of water and “discharge of fill material” to include “placement of … slurry, or tailings or similar related materials.” 40 CFR § 232.2.
The dissent touted the CWA’s “text, structure, and purpose” as a mandate to adhere to EPA’s pollution-control requirements. It argued that the pollution-control mandate was intended to be read throughout the CWA and adherence to the mandate was one of the main reasons the EPA and not the Army Corps, should have jurisdiction over the permit process to dispose of slurry.
- Further reading: Justices Say Waste Can be Dumped in Lake (NYTimes)
