My turn: Lawsuit essential to protect clean water

Army Corps treading on dangerous ground with mine test case

Posted: Sunday, January 14, 2007

"One really stupid lawsuit" is how attorney Eric Twelker recently described the Kensington Mine litigation on this page. (My Turn, Jan. 10.) Perhaps because he is not actually involved in the litigation, his column misrepresents the case in many respects. And the name-calling is not a constructive way to address a serious challenge facing Juneau.

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The lawsuit challenges a permit issued by the U.S. Army Corps of Engineers authorizing Coeur Alaska to discharge 210,000 gallons per day of a tailings slurry into Lower Slate Lake. This slurry is the waste product of the chemical and physical milling process used to extract the gold ore. The discharge would kill all the fish and most other aquatic life in the lake for at least the duration of mining activity, and recovery of the "lake" (in its drastically altered form) would take several decades.

This permit violates the Clean Water Act. The lawsuit is necessary to protect lakes, rivers and streams not only in Alaska, but throughout the nation.

Before passage of the Clean Water Act in 1972, mining companies frequently dumped their tailings in the nearest lake or river, often with catastrophic consequences for those water bodies, for fish, and for human health.

In the United States, however, this outdated practice has been illegal for decades ... or so we thought. Before the Kensington Mine, the Army Corps had never issued a permit authorizing the discharge of mine tailings into "navigable waters," the legal term for most lakes, rivers and streams.

In fact, in 1982, the Environmental Protection Agency adopted regulations specifically prohibiting this practice for all new gold mines and those of five other metals. The EPA studied the mining industry nationwide and concluded that the discharge of mine tailings into navigable waters was unnecessary, because feasible alternatives existed and were already in use at most mines.

More recently, for the Kensington Mine specifically, the EPA determined that disposal of tailings on dry land would be the environmentally preferable alternative. Other mines, including Greens Creek, use this method. The Southeast Alaska Conservation Council has consistently said it is possible to "do it right" at the Kensington with a properly designed tailings disposal facility.

Unfortunately, the Army Corps has chosen the Kensington Mine as its test case to reverse decades of settled law and return us to the day when mines could dump their tailings in clean lakes, rivers and streams. The Corps' legal theory is not limited to Slate Lake but could apply to any water body.

Far from a "stupid lawsuit," the case brought by SEACC and others is a vital challenge to an unprecedented agency action threatening clean water around the country.

The case has drawn significant national and statewide attention. Several parties submitted "friend of the court" briefs supporting SEACC's position, including members of Congress, Native residents of Southwest Alaska concerned about the proposed Pebble Mine, conservation organizations, and Oxfam America, a hunger and poverty relief organization concerned about the social and economic effects of irresponsible mining practices.

Five judges in the U.S. Court of Appeals have now reviewed the case and concluded that SEACC is likely to prevail. Most recently, a three-judge panel upheld a previous order halting further construction of tailings disposal facilities at Slate Lake. The judges wrote, "SEACC has shown a likelihood of success on the merits because it has argued persuasively that the Corps' permit to Coeur Alaska violates the Clean Water Act."

Although the court has not yet issued a final decision, it has signaled a "likelihood" that Coeur Alaska will have to find another method to dispose of its waste. The best thing for the community of Juneau is to avoid name-calling and begin a civil, public conversation about responsible and legal ways to restore Slate Lake and to dispose of the tailings at the Kensington Mine.

• Tom Waldo is an attorney in the Juneau office of the nonprofit law firm Earthjustice. He represents SEACC, Lynn Canal Conservation and the Sierra Club in the Kensington Mine lawsuit.

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