Anchorage Daily News

The Supreme Court today upheld a federal permit for a company to dump rock waste from a new Alaska gold mine into a nearby lake.

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By a 6-3 vote, the justices reversed a federal appeals court decision that the waste disposal permit for the Kensington gold mine 45 miles north of Juneau violated the federal Clean Water Act.

The court ruling clears the way for as much as 4.5 million tons of mine tailings -- a slurry of rock waste, water and trace contaminants left after gold is extracted from the ore -- to be deposited into Lower Slate Lake in the Tongass National Forest and about three miles from the mine.

Filling the lake with tailings would kill its resident fish -- the Dolly Varden and threespine stickleback -- but the lake could be restocked with fish after the mine closed, according to the Army Corps of Engineers, which approved the controversial waste disposal permit.

The Southeast Alaska Conservation Council decried the ruling, saying it will open the door for the nation's lakes and streams to be used as mine tailings "dumps." SEAC, the Sierra Club and Lynn Canal Conservation were the groups that sued the government over the waste-disposal permit.

Dennis E. Wheeler, chief executive of Coeur d'Alene Mines Corp., which is developing Kensington, said the ruling "confirms that the thoroughly studied and permitted plan is lawful and the best environmental choice." He said the decision clears the way for a tailings facility to be built so that the gold mining can begin. Production could begin in the second half of next year, Wheeler said.

The court, in its majority opinion written by Justice Anthony Kennedy, said that the Army Corps of Engineers was correct in agreeing with the mining company that the waste should be considered as "fill material" and not subject to more stringent Environmental Protection Agency standards under the federal Clean Water Act.

The Army Corps issued the permit in 2005, three years after the Bush administration broadened the definition of fill material so that waste, including some contaminated materials, can be put into waterways.

Kennedy cited an EPA memorandum of understanding that the EPA acknowledged agreement with the Army Corps that its more stringent requirements do not cover fill material. He wrote that the court should "accord deference to the agencies' reasonable decision" that such fill material be regulated by the Army Corps, and not the EPA.

In a dissenting opinion, Justice Ruth Bader Ginsburg said it is "neither necessary or proper" to interpret the waterway protection law "as allowing mines to bypass EPA's zero-discharge standard by classifying slurry as fill material." She argued the lower court had been correct in concluding that the use of waters as "settling ponds for harmful mining waste" was contrary to the federal Clean Water Act.

Environmentalists said dumping 200,000 gallons a day of mining waste water -- containing aluminum, copper, lead, mercury and other metals -- has dire implications not only for the Alaska lake but possibly other lakes and waterways.

"If a mining company can turn Lower Slate Lake in Alaska into a lifeless waste dump, other polluters with solids in their water can potentially do the same to any water body in America," said Trip Van Noppen, president of EarthJustice, which had participated in the litigation.

Rob Cadmus of the Southeast Alaska Conservation Council said there are better ways to dispose of the mine waste such as dryland storage. But the mining company argued that the alternative would have been to put the material into nearby wetlands, which it maintained was more environmentally harmful.

Officials of the Idaho-based Coeur d'Alene said the decision was the last hurdle to building the tailings facility so that mining activities can begin.

The court ruling "confirms that this thoroughly studied permit and plan is the best environmental choice" for disposal of the mine's waste, said Tony Ebersole, the company's director of corporate communications. Company lawyers said in court arguments that after mining activities are halted the lake will be restocked.

But Tony Ebersole, Coeur's director of corporate communications, said that after the mining ends and the lake is restocked, "the lake will be as good or better as a fishery than it is today."

He said the mine will have "huge future economic impact," creating 300 construction jobs and 370 direct and indirect jobs linked to operations.

Coeur estimates the underground mine has potential for 125,000 ounces of annual gold production, which is significantly smaller that Alaska's largest gold mines, which are in the Interior. Kensington is expected to operate for 10 to 15 years.

Sen. Lisa Murkowski, R-Alaska, welcomed the court ruling and said it "resolved the most significant obstacle to the creation of hundreds of direct and indirect jobs and a major boost for the economy of Juneau and Southeast Alaska." The disposal plan had been approved by various state agencies and a federal district court. But the 9th U.S. Circuit Court of Appeals in San Francisco in 2007 blocked the permit, saying the dumping violated EPA requirements, prompting the mining company and the state of Alaska to take the matter to the Supreme Court.

Joining Kennedy, in approving the disposal plan were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Stephen Breyer and Samuel Alito Jr.

In addition to Ginsburg, dissenting were Justices John Paul Stevens and David Souter.

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