Kensington decision creates palpable sense of enthusiasm

Posted: Thursday, July 02, 2009

This past Tuesday, I attended a gathering of very happy people at the Hangar Ballroom in downtown Juneau, a party to celebrate the U.S. Supreme Court's recent decision to uphold the fill discharge permit issued by the Army Corps of Engineers for the Kensington Mine project north of Juneau.

I have been to more events than I can count in the Hangar Ballroom, but I can't remember one with such a palpable sense of enthusiasm and merriment.

The Kensington Mine is an indispensable part of an economically healthy future for Juneau. Without its jobs and the revenues they'll generate, the recent trend of population shrinkage and economic deterioration would almost certainly continue unabated. Thunder Mountain High School might not have enough students to remain open, and property values would stagnate or fall. With the high court's decision in favor of the mine, hopefully these bad things will not come to pass.

The U.S. Supreme Court's 6-3 decision is a fairly entertaining read for a 49-page legal opinion. The legal issues were narrow, dealing with competing interpretations of two different sections of the Clean Water Act.

Federal statutes and regulations, and agency memoranda interpreting these laws, are dense and difficult to read, but the actual questions asked here were simple: whether the Corps or the Environmental Protection Agency has regulatory authority over the proposed disposal of mine tailings, and whether the Corps acted lawfully in issuing its permit.

The Kensington Mine operation will involve the removal of large amounts of rock from a network of underground tunnels. This rock will be crushed and the gold it contains separated out for processing. What's left over will be a water and rock mixture, or "slurry," which will be impounded in Lower Slate Lake, where the rock will settle on the floor. The water flowing out of the lake will be treated so it is clean upon discharge.

The permit the Corps issued under Section 404 of the Clean Water Act accepted as fact that the slurry is rock fill and thus not subject to Section 402 of the Act, which would give the EPA authority over its discharge as a pollutant.

The EPA never sought to regulate the slurry discharge as a pollutant. It was the environmental groups who sued in pursuit of an interpretation of the law that would force the EPA to regulate the slurry as a pollutant.

That will not happen now because the environmentalists' reading of the law was wrong in the eyes of the nation's highest court. There was an ambiguity in the Clean Water Act that has been resolved: The law of the land is that slurry is fill, not a pollutant.

The second question, whether the Corps acted lawfully, turned on whether the tailings disposal plan was the least damaging, practical means of accomplishing the task. The Corps assessed the alternatives and permitted the lake plan because it didn't believe placing a pile of tailings on wetlands twice as high and nearly three times the size of the Pentagon would cause less damage to the environment.

This makes sense to me, as it did to the high court, but apparently it didn't to the environmental groups.

Those who pursued the Kensington case all the way to the U.S. Supreme Court may now wish they had not done so, because legal precedents now exist that other mines will justifiably rely on in their operations.

Certainly circumstances are different at Lower Slate Lake than elsewhere in the United States, and the tailings disposal plan at Kensington might not be the best idea in different circumstances. But the state of Alaska and Coeur had no choice but to fight back in order to make Kensington happen and the decision now is what it is.

At Tuesday's party, I saw many Juneau residents who have long advocated publicly for the mine. That day the boat that transports Kensington Mine workers came back from Berners Bay early so they could be there for the celebration. Across the entire crowd I saw smiling, happy faces that showed optimism and belief in a bright future.

A scary cloud of uncertainty has been lifted by virtue of the Kensington decision, and all Juneau residents, even those who have opposed the mine, will benefit.

I hope the environmental groups will accept their losses, and open their minds to the good things that will come from having the Kensington Mine open and operating as soon as possible, with a target date of the middle of next year.

• Ben Brown is a lifelong Alaskan living in Juneau.

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