Robert A. Maynard Perkins Coie LLP Phone: [phone] Email: [e-mail]

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Coeur Alaska v. SEACC Kensington Mine Tailings
Impoundment Litigation

• Robert A. MaynardPerkins Coie LLPPhone
  208-343-3434Email rmaynard_at_perkinscoie.com

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Map
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SITE OVERVIEW
Upper Slate Lake
Lower Slate Lake
Fish Barrier
Slate Creek
Slate Creek Cove
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SLATE CREEK COVE DOCK
Slate Creek Cove
Slate Creek Cove Dock
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Supreme Court Affirms Corps of Engineers Clean
Water Act "Fill Material" Permitting of Mine
Tailings Disposal

• In a June 22, 2009 decision, Coeur Alaska, Inc.
  v. Southeast Alaska Conservation Council, Inc.,
  No. 07-984, the Supreme Court upheld the use of a
  U.S. Army Corps of Engineers federal Clean Water
  Act section 404 "fill material" permit to
  authorize the disposal of crushed rock "tailings"
  slurry from an Alaska mine mill into an
  impoundment constructed in a small natural lake.

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• In its 6-3 decision, the Court concluded that
  the Corps and the Environmental Protection Agency
  reasonably
• interpreted ambiguous provisions of the Clean
  Water Act and
• their own regulations in issuing the section 404
  permit for the placement of the tailings in the
  lake impoundment,
• given its clear effect of filling the lake, and
• applying strict section 402 NPDES effluent limits
  at the outlet of the impoundment to protect water
  quality downstream. 

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Clean Water Act statutory provisions

• Section 301(a) Except as in compliance with this
  section and sections 302, 306, 307, 318, 402,
  and 404 of this title, the discharge of any
  pollutant by any person shall be unlawful.
• Section 306(e) . . . After the effective date of
  standards of performance promulgated under this
  section, it shall be unlawful for any owner or
  operator of any new source to operate such source
  in violation of any standard of performance
  applicable to such source.

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Clean Water Act statutory provisions (cont.)

• Section 402Except as provided in . . . Section
  404 . . . the EPA Administrator may . . .
  issue a permit for the discharge of any pollutant
  . . . upon condition that such discharge will
  meet . . . all applicable requirements under
  sections 301, 302, 306, 307, 308, and 403 . . .
  .
• Section 404 (a) The Secretary of the Army
  Corps . . . may issue permits . . . for the
  discharge of dredged or fill material into the
  navigable waters at specified disposal sites . .
  . (b) through the application of guidelines
  developed by the EPA Administrator, in
  conjunction with the Secretary of the Army
  Corps the "404(b)(1) guidelines"
• The statute does not define "fill material."

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Clean Water Act Regulations

• 33 CFR 323.2 and 40 CFR 232.2 (the 2002 "Fill
  Rule")
• (e)(1) Except as specified in paragraph (e)(3) .
  . . , the term fill material means material
  placed in waters of the United States where the
  material has the effect of (i) replacing any
  portion of a water of the United States with dry
  land or (2) Changing the bottom elevation of any
  portion of a water of the United States.
• . . .
• (e)(3) The term fill material does not include
  trash or garbage.
• (f) The term discharge of fill material . . .
  Generally includes, without limitation, the
  following activities . . . placement of
  overburden, slurry, or tailings or similar
  mining-related materials . . . .
• 40 CFR 122.3 The following discharges do not
  require NPDES Section 402 permits . . . .
  discharges of dredged or fill material into
  waters of the United States which are regulated
  under section 404 of CWA.

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Clean Water Act Regulations (cont.)

• 40 CFR 440.104 New Source Performance Standards
  (NSPS).
• (b)(1) Except as provided in paragraph (b) of
  this section limited exceptions for net
  precipitation etc., there shall be no discharge
  of process wastewater to navigable waters from
  mills that use the froth-flotation process . . .
  for the beneficiation of copper, lead, zinc,
  gold, silver, or molybdenum ores . . . .

Process wastewater is defined broadly in EPA
regulations to encompass water coming into
contact with ore or milling materials
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Fill Effect of the Kensington tailings slurry

• The tailings slurry from the Kensington mill is
  30 solid ground leftover rock by volume, and 70
  water.
• The solid tailings for placement in the Lower
  Slate Lake impoundment total 4.5 million tons.
• The placement will raise the bottom elevation of
  the lake approximately 50 feet and enlarge it
  from 23 to 62 acres.

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• The Coeur Alaska decision should bring greater
  certainty to the Clean Water Act regulatory
  regime for mining and other enterprises subject
  to both sections 402 and 404 permitting.

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• The decision may stand as broader precedent and
  interest regarding court deference to informal as
  well as formal federal agency interpretation and
  application of technical, often ambiguous
  statutes and regulations that the agency
  administers.

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Court deference to federal agency interpretation
of statutes and regulations that the agency
administers

• Chevron (Chevron USA v. NRDC) deference to an
  agency's (formal) interpretation of an ambiguous
  statute
• Auer (Auer v. Robbins) deference to an agency's
  interpretation of its own regulations (unless
  plainly erroneous or inconsistent with the
  regulation)
• Meade (U.S. v. Meade Corp.) deference to an
  agency's (informal) interpretation of an
  ambiguous statute and its own ambiguous
  regulation (where Chevron deference may not
  otherwise apply) (?? -- Scalia, concurring, Slip
  Op. at 2)
• "Coeur Alaska" same as Chevron, except in name
  (??--Scalia, concurring, Slip Op. at 2)