Robert A. MaynardPerkins Coie LLP

Phone: 208-343-3434Email: rmaynard@perkinscoie.com

Coeur Alaska v. SEACC

Kensington Mine Tailings Impoundment Litigation

Map

Slate Creek Cove

Slate Creek Cove

Slate CreekSlate

Creek

Fish Barrier

Fish Barrier

Lower Slate Lake

Lower Slate Lake

Upper Slate Lake

Upper Slate Lake

SITE OVERVIEW

Slate Creek Cove DockSlate Creek Cove Dock

SLATE CREEK COVE DOCK

Slate Creek CoveSlate Creek Cove

Supreme Court Affirms Corps of Engineers Clean Water Act "Fill Material" Permitting of Mine

Tailings Disposal

In a June 22, 2009 decision, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Inc., No. 07-984, the Supreme Court upheld the use of a U.S. Army Corps of Engineers federal Clean Water Act section 404 "fill material" permit to authorize the disposal of crushed rock "tailings" slurry from an Alaska mine mill into an impoundment constructed in a small natural lake.

In its 6-3 decision, the Court concluded that the Corps and the Environmental Protection Agency reasonably

• interpreted ambiguous provisions of the Clean Water Act and • their own regulations in issuing the section 404 permit for the

placement of the tailings in the lake impoundment,• given its clear effect of filling the lake, and • applying strict section 402 NPDES effluent limits at the outlet of

the impoundment to protect water quality downstream. 

Clean Water Act statutory provisions:

Section 301–(a) Except as in compliance with this section and sections [302, 306, 307, 318, 402, and 404] of this title, the discharge of any pollutant by any person shall be unlawful.

Section 306—(e) . . . After the effective date of standards of performance promulgated under this section, it shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.

Clean Water Act statutory provisions (cont.):

Section 402—Except as provided in . . . [Section 404] . . . the [EPA] Administrator may . . . issue a permit for the discharge of any pollutant . . . upon condition that such discharge will meet . . . all applicable requirements under sections [301, 302, 306, 307, 308, and 403] . . . .

Section 404 – (a) The Secretary [of the Army; Corps] . . . may issue permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites . . . (b) through the application of guidelines developed by the [EPA] Administrator, in conjunction with the Secretary [of the Army; Corps] [the "404(b)(1) guidelines"]

The statute does not define "fill material."

Clean Water Act Regulations

33 CFR 323.2 and 40 CFR 232.2 (the 2002 "Fill Rule"):

(e)(1) Except as specified in paragraph (e)(3) . . . , the term fill material means material placed in waters of the United States where the material has the effect of: (i) replacing any portion of a water of the United States with dry land; or (2) Changing the bottom elevation of any portion of a water of the United States. . . .

(e)(3) The term fill material does not include trash or garbage.

(f) The term discharge of fill material . . . Generally includes, without limitation, the following activities: . . . placement of overburden, slurry, or tailings or similar mining-related materials . . . .

40 CFR 122.3: The following discharges do not require NPDES [Section 402] permits: . . . . discharges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA.

Clean Water Act Regulations (cont.)

40 CFR 440.104 New Source Performance Standards (NSPS).

(b)(1) Except as provided in paragraph (b) of this section [limited exceptions for net precipitation etc.], there shall be no discharge of process wastewater to navigable waters from mills that use the froth-flotation process . . . for the beneficiation of copper, lead, zinc, gold, silver, or molybdenum ores . . . .

[Process wastewater is defined broadly in EPA regulations to encompass water coming into contact with ore or milling materials]

Fill Effect of the Kensington tailings slurry

The tailings slurry from the Kensington mill is 30% solid ground leftover rock by volume, and 70% water.

The solid tailings for placement in the Lower Slate Lake impoundment total 4.5 million tons.

The placement will raise the bottom elevation of the lake approximately 50 feet and enlarge it from 23 to 62 acres.

The Coeur Alaska decision should bring greater certainty to the Clean Water Act regulatory regime for mining and other enterprises subject to both sections 402 and 404 permitting.

The decision may stand as broader precedent and interest regarding court deference to informal as well as formal federal agency interpretation and application of technical, often ambiguous statutes and regulations that the agency administers.

Court deference to federal agency interpretation of statutes and regulations that the agency administers:

Chevron (Chevron USA v. NRDC) – deference to an agency's (formal) interpretation of an ambiguous statute

Auer (Auer v. Robbins) – deference to an agency's interpretation of its own regulations (unless plainly erroneous or inconsistent with the regulation)

Meade (U.S. v. Meade Corp.) – deference to an agency's (informal) interpretation of an ambiguous statute and its own ambiguous regulation (where Chevron deference may not otherwise apply) (?? -- Scalia, concurring, Slip Op. at 2)

"Coeur Alaska" – same as Chevron, except in name (??--Scalia, concurring, Slip Op. at 2)