Supreme Court Okays Regs Allowing "Fill Material" In Lake

Jun 22: In the U.S. Supreme Court case of Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (Case Nos. 07-984 & 07-990), the High Court ruled in a 6-3 opinion that the Corps of Engineers was the proper agency to issue a permit to discharge mining waste slurry into an Alaskan lake and the permit was valid. The public interest law firm, Earthjustice a party in the case, said the ruling will allow the "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." They said, "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 majority 6-3 ruling was delivered by Justice Kennedy and Justices Roberts, Breyer and Alito joined; and Justice Scalia joined in part. Justice Breyer also filed a concurring opinion. Justice Scalia filed an opinion concurring in part and concurring in the judgment. Justice Ginsburg filed a dissenting opinion and Justices Stevens and Souter joined in the dissent.

The case presents the question of whether the issuance of a permit by the U.S. Army Corps of Engineers violates the Clean Water Act; and begs the question that WIMS asked in a December 2006 article: Can A Lake Be Filled & Fish Killed Under CWA? [See WIMS eNewsUSA Blog posts on this case]. When the lawsuit was first initiated, Earthjustice, expressed concern that if allowed to proceed, the mining operation would set a precedent, potentially spurring growth of such operations elsewhere in Alaska or the lower-48 states.

According to the Supreme Court summary of questions presented in the cases, the Clean Water Act (CWA) provides two separate programs for the permitting of discharges into navigable waters of the United States. Under Section 404 of the Act, the Army Corps of Engineers may issue permits for discharges of “fill material,” subject to the water-quality restrictions imposed by Section 404(b)(1). Under Section 402 of the Act, the Environmental Protection Agency may issue permits for the discharge of all other pollutants, subject to the effluent limitations prescribed under Sections 301 and 306 of the Act. In 2002, after notice and comment, the EPA and the Corps jointly promulgated a regulation defining the statutory term “discharge of fill material” to include “tailings or similar mining-related materials.” Pursuant to its authority under Section 404 to grant permits for the discharge of “fill material,” the Corps granted petitioner a permit to deposit certain mine tailings in a lake.

The Ninth Circuit invalidated that permit even though it acknowledged that the proposed discharge “facially meets the current regulatory definition of ‘fill material.’” Upsetting 35 years of established agency practice, the court of appeals held that the Corps may not issue a Section 404 permit for the discharge of fill material if the fill material in question otherwise would be subject to a Section 301 or 306 effluent limitation.

In its majority opinion, the Supreme Court said the case involved two questions under the Clean Water Act (CWA). The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to U.S. EPA, to issue a permit for the discharge of mining waste slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into the lake in Southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance with the law.

The High Court said, "With regard to the first question, §404(a) of the CWA grants the Corps the power to 'issue permits . . . for the discharge of . . . fill material.'. . . But the EPA also has authority to issue permits for the discharge of pollutants. Section 402 of the Act grants the EPA authority to 'issue a permit for the discharge of any pollutant' '[e]xcept as provided in' §404. 33 U. S. C. §1342(a). We conclude that because the slurry Coeur Alaska wishes to discharge is defined by regulation as 'fill material,' 40 CFR §232.2 (2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under §404, rather than from the EPA, under §402."

On the second question -- "whether the Corps permit is lawful -- the High Court said that the environmental groups argue that the issuance of the permit by the Corps was “not in accordance with law” because EPA regulations forbids mines like Coeur Alaska’s from discharging “process wastewater” into the navigable waters [citing 40 CFR §440.104(b)(1)] while Coeur Alaska and the State of Alaska, and the federal agencies maintain that the Corps permit "is lawful" nonetheless because the EPA’s performance standard do not apply to discharges of "fill material."

Reversing the judgment of the District Court, the Ninth Circuit Court of Appeals held that the EPA’s performance standard did apply to the discharge and the permit from the Corps was unlawful. The High Court reversed and remanded the Ninth Circuit decision.

In essence, rather than build a tailings pond, which is the typical way in which mining waste is handled, Coeur Alaska proposes to use Lower Slate Lake, located some three miles from the mine in the Tongass National Forest. The lake is small -- 800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lakebed 50 feet—to what is now the lake’s surface—and will increase the lake’s area from 23 to about 60 acres.

Section 404(a) of the CWA empowers the Corps to authorize the discharge of “dredged or fill material.” 33 U. S. C. §1344(a). The Corps and the EPA have together defined “fill material” to mean any “material [that] has the effect of . . . [c]hanging the bottom elevation” of water. 40 CFR §232.2. The agencies have further defined the “discharge of fill material” to include “placement of . . . slurry, or tailings or similar mining-related materials.”

The Corps determined that the environmental damage caused by placing slurry in the lake will be temporary. And during that temporary disruption, Coeur Alaska will divert waters around the lake through pipelines built for this purpose. Coeur Alaska will also treat water flowing from the lake into downstream waters, pursuant to strict EPA criteria. Though the slurry will at first destroy the lake’s small population of common fish, that population may later be replaced. After mining operations are completed, Coeur Alaska will help "recla[im]" the lake by "[c]apping" the tailings with about 4 inches of "native material."

In its ruling the majority said, "Because Congress has not 'directly spoken' to the 'precise question' of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case." In the absence of Congressional intent, the High Court then looked at the agencies regulations, which they said were "ambiguous," so they looked at the agencies’ "subsequent interpretation of those regulations." The High Court said, "In an internal memorandum the EPA explained that its performance standards do not apply to discharges of fill material. That interpretation is not 'plainly erroneous or inconsistent with the regulation[s],' and so we accept it as correct."

Responding to the decision, Earthjustice president Trip Van Noppen said, "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. 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."

Access the complete opinion, dissent and concurring opinions (click here). Access a lengthy release from Earthjustice and links to related information (click here). Access the complete 70-page oral argument transcript (click here). Access links to the various party briefs and all amicus briefs in the case (click here). Access the Supreme Court Docket No. 07-984 (click here); and Docket No. 07-990 (click here).