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Court to hear arguments on mine tailings

At issue is regulation of Kensington tailings dumped into Lower Slate Lake

Posted: Monday, January 12, 2009

U.S. Supreme Court justices will hear arguments today before determining how tailings from the proposed Kensington gold mine will be regulated.

The question is whether Kensington tailings dumped into Lower Slate Lake should be regulated as fill, because tailings would raise the bottom of the lake, or classified as discharge from gold extraction. Tailings are the ground-up waste rock leftover after metals are extracted.

Tailings likely fall somewhere in between fill and discharge, but two different permitting standards under the 1972 Clean Water Act govern each. Herein lies the conundrum.

The U.S. Corps of Engineers gave Coeur Alaska Inc. a permit under the "fill" classification. But in 2007, the 9th Circuit Court of Appeals agreed with environmental groups that the U.S. Environmental Protection Agency should have handled the tailings as discharge, which prohibits dumping tailings into the lake. Coeur's permit was then invalidated. Coeur Alaska Inc. is owned by Idaho-based Coeur d'Alene Mines Corp.

The federal government, representing the Corps of Engineers and EPA, says the environmental groups - the Southeast Alaska Conservation Council, the Juneau Group of the Sierra Club and Lynn Canal Conservation, represented by Earthjustice - are wrong.

But the government also opted not to join Coeur Alaska, the state of Alaska and Goldbelt Inc. in their petition to the high court - meaning state officials didn't think the issue was important enough for the court to review.

If Coeur loses, it has another option - albeit a more expensive one - to store the tailings in a paste form in the uplands. That plan is even preferred by the environmental groups, though not by the federal agencies.

The ruling's potential effect on other mines is debated.

Mining groups say a ruling against Coeur could have devastating impacts on Alaska's economy and the mining industry.

Mining accounted for 5,500 jobs in 2007 and for 8 percent of the state's economy, according to industry statistics. Mining jobs averaged $80,000 a year, 90 percent higher than the average pay for all other sectors.

The Red Dog and Fort Knox mines have tailings impoundments that would be threatened, but the mines would have to "cease or delay" operations until brought into compliance, according to the Pacific Legal Foundation, the Alaska Miners Association and the Alaska Forest Association.

The National Mining Association says that because so much of Alaska is wetlands, such a ruling "would make it nearly impossible for many mines to legally store their tailings."

Environmental groups, on the other hand, say mines have alternatives, pointing out Coeur's own plan for a paste tailings facility. They say that mining waste harms the environment and the ruling would allow mines to dump pollutants into bodies of water, but only if the tailings are classified as "fill."

Several members of Congress and a former EPA official who was in charge of redefining "fill," filed briefs saying a ruling for Coeur would mean the most hazardous discharges would have the least stringent controls.

"Congress cannot possibly have intended such a bizarre result," wrote former EPA official G. Tracy Mehan III.

In Alaska, Bristol Bay Alaska Natives and fishermen's groups told the court they worry that a ruling for Coeur and the state will allow the proposed large-scale Pebble gold mine to harm the salmon habitat on which their livelihoods depend.

Once today's arguments are heard, the Supreme Court could release its opinion any time between now and June, when the court's term ends.

• Contact Kate Golden at 523-2276 or e-mail kate.golden@juneauempire.com.



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