Story last updated at 1/21/2009 - 11:41 am
JUNEAU - Attorneys representing owners of the Kensington Mine in Southeast Alaska and the environmental group Earthjustice argued before the U.S. Supreme Court on Jan. 12 on the issue of whether to allow the deposit of mine tailings into a nearby lake.
A decision in the case is expected by late spring. The court's interpretation of the U.S. Clean Water Act could set a precedent for how mining waste is disposed of in waterways nationwide, including the proposed Pebble Mine in Southwest Alaska.
Regardless of the decision, the mine is expected to begin operations in 2009.
Attorney Tom Waldo, who argued the case on behalf of the Southeast Alaska Conservation Council, Lynn Canal Conservation and the Juneau Group of the Sierra Club, argued that the case represents an assault on the Clean Water Act, and could result in lakes and streams being used for mine tailings dumps.
Theodore Olson, an attorney representing Coeur Alaska Inc., a subsidiary of Coeur D'Alene Mines Corp., argued that the waste could be more accurately defined as "fill," and that after the life of the mine itself, the lake could be restocked, resulting in a larger lake with more fish.
Olson told the justices that the new lake would have more life than before. Supreme Court Justice David Souter called that logic "Orwellian" and said the U.S. Army Corps of Engineers, which granted a permit for the mine, was "defining away the problem" by calling the wastewater discharge fill. "It seems Orwellian to say there are rigorous environmental standards," Souter said.
Other justices noted that the alternative to dumping tailings into the lake would destroy wetlands, creating a huge stack of tailings. Environmentalists said that given seismic activity in the area, the land-based tailings pile would be a safer alternative than the lake.
The proposed underground gold mine is located near Berners Bay, 45 air miles north of Juneau, within the Tongass National Forest. Berners Bay is an area known for its fisheries, wildlife, recreation opportunities and wild lands. The Southeast Alaska Conservation Council acknowledged that there are about 1,000 fish, primarily Dolly Varden trout, in the lake, and because of its remote location, the lake is not a prime fishing site, but said road building activity in the area related to the mine has added turbidity to lake waters, so that the fish are already being harmed.
Over the life of the mine, about 4.5 tons of tailings could be placed, action from which the lake would not recover, Waldo said. Environmentalists would prefer the alternative of a land-based depository for the tailings, which they feel would be safer for the environment, Waldo said in a teleconference call following court arguments.
Coeur d'Alene officials were not immediately available for comment.
Mine officials have argued that the tailings are inert sandy material and that nearly half of the tailings created by mine production would be recycled back into mine operations.
Corps officials first issued a permit for waste disposal of tailings at the proposed mine in 2005, giving permission to dump the wastes into Lower Slate Lake.
Environmental groups sued, arguing violations of the Clean Water Act. The EPA had agreed to a regulatory change in the case defining "fill" as "tailings or similar mining-related materials."
Since 1982, federal law has prohibited new gold mines from discharging waste into rivers or lakes; yet the Corps permit would allow such discharges.
The Associated Press contributed to this story.