Federal judge OKs Kensington disposal method

Posted: Friday, August 04, 2006

A federal judge ruled Thursday that the U.S. Army Corps of Engineers properly issued a permit allowing the Kensington Mine to put its rock waste in a subalpine lake.

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The lawsuit is likely not over yet, but workers at the Kensington mine, 45 miles northwest of downtown Juneau, are pushing forward with construction for a 2007 opening.

Juneau environmentalists said Friday they will appeal U.S. District Judge James Singleton's ruling to the U.S. Ninth Circuit Court of Appeals and may seek an injunction to block Kensington mine developer Coeur Alaska from continuing to build a dam at the lake.

The case has been closely watched around Alaska because of its possible implications for other mine companies that also might seek to put their waste in lakes.

The ruling doesn't protect Alaska's clean water, said Russell Heath, executive director of the Juneau-based Southeast Alaska Conservation Council.

"And, it's a giant step backwards in terms of holding corporations accountable for how they dispose of their waste," Heath said.

Notice of the judge's dismissal of the lawsuit on summary judgment did not reach Juneau until Friday morning. The plaintiffs - SEACC, the Sierra Club and Haines-based Lynn Canal Conservation - have 30 days to appeal.

In his ruling, Singleton deferred to federal agencies' classification of mine waste as fill material. The judge rejected the plaintiffs' contention that the Corps of Engineers' permit violated the federal Clean Water Act.

"It was music to our ears," said Scott Lamb, a spokesman for Coeur d'Alene Mines Corp., the Idaho-based parent company of Coeur Alaska. "In light of the court's decision, we would encourage those who have opposed the project to abandon their efforts."

The Anchorage judge - technically retired from the bench, but still taking on certain cases as judge emeritus - did not specifically address one of the environmentalists' main arguments - that gold mine effluent is subject to a "zero-discharge" rule.

Instead, his decision focused on the definition of fill in federal statutes. The Corps of Engineers had classified Kensington's tailings benignly, as fill. Environmentalists say the tailings contain toxic materials that should not be regulated as fill.

"This court cannot say that the definition of fill material contained in the regulations promulgated by the Environmental Protection Agency and Corps is not a permissible (interpretation) of the statute," Singleton wrote in his court order signed Friday.

Singleton's ruling does not affect any current work at the mine. Kensington workers already have lowered the water level in Lower Slate Lake and they have built adjacent roads in preparation of building a dam on the lake.

As a result of filling Lower Slate Lake with 4.5 million tons of rock waste, or tailings, over the estimated 10 to 15-year life of the mine, all of the fish in the lake - including Dolly Varden and threespine stickleback - are expected to die.

Coeur officials and the Corps of Engineers contend that the lake's fish population will be restored and their habitat improved when the mine is closed.

The Kensington Mine employs 300 workers, about 73 percent of them Alaska residents.

The project has "already contributed significantly to the economy of Southeast Alaska. We look forward to continuing the rapid pace of construction," Lamb said.

In his ruling, Singleton also affirmed a U.S. Forest Service record of decision for the mine, as well as a federal discharge permit issued to Goldbelt, Juneau's urban Native corporation, to build a dock to ferry workers to the mine.

Goldbelt owns about 1,500 acres near the planned dock, at Cascade Point, and expects other opportunities for development - such as housing - will emerge in the future, said Bob Martin, Goldbelt's vice president of operations.

"We aren't going to jump in willy nilly," Martin said.

Gov. Frank Murkowski applauded Singleton's ruling on Friday.

"The Kensington Mine project is critical for creating good-paying jobs and strengthening the economy of Southeast Alaska," Murkowski said in a prepared statement.

• Elizabeth Bluemink can be reached at elizabeth.bluemink@juneauempire.com.

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