SEACC v. USACOE
A Case Study for the
Env. & Nat. Resources
Section
November 19, 2008
Cast of characters:
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Southeast Alaska Conservation Council
sued
U.S. Army Corps of Engineers
over
a CWA Sec. 404 Permit issued for Mine Tailings
Disposal at Kensington Mine
owned by
Coeur Alaska, Inc., a subsidiary of
Coeur d’Alene Mines (Idaho)
Case Status:
Now Before U.S. Supreme Court on Petitions
for Certiorari filed by State of Alaska and
Coeur (but not USACOE!)
 Alaska v. SEACC, Case No. 07-990.
 Our Brief Filed: September 17, 2008.
 Argument Expected: January 2009.
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CWA Permits come in two flavors:
NPDES permits,
and “Dredge and fill” permits.
NPDES permits are:
Issued by EPA (or authorized state).
Under CWA Sec. 402.
For discharge of “pollutants”
(a defined term).
Dredge and fill permits are:
Issued by Army COE.
Under CWA Sec. 404.
For discharge of “fill material”
(not a defined term).
Historical Context:
CWA itself doesn’t define “fill
material.”
For years, EPA and COE had different
definitions of “fill material”.
“Effects test” v. “Primary purpose”.
Confusion reigned.
2002 Rule-Making:
EPA and COE adopted revised
definition of “fill material”,
which specifically includes:
“Placement of … slurry, tailings, or
similar mining-related materials.”
Also followed the “effects test.”
Kensington Mine
First, EPA and COE developed and
issued the “Regas memo”.
Then, COE issued § 404 Permit for
placement of tailings (as “fill”) into
Lower Slate Lake.
EPA issued NPDES permit for
discharge from the lake, to stream.
Environmental Groups Sued
Challenging § 404 Permit under APA,
arguing that disposal of mine tailings
at Kensington requires a § 402 Permit
from EPA instead.
Plaintiffs' Theory:
2002 rule-making is more complicated
…
EPA’s effluent guidelines for mining
industry trump new definition of “fill
material.”
Decisions Below
District Court upheld permit, but
 Ninth Circuit Court of Appeals reversed.
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Held that Coeur needed to get an NPDES
permit from EPA instead.
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486 F. 3d 638 (2007)
Problem:
Coeur can’t get an NPDES Permit,
because tailings cannot comply with
Effluent Guidelines promulgated by
EPA for the mining industry.
40 CFR 440.104
Why is 402 Permit Harder?
Because EPA’s ELGs prohibit discharge of “process
waste water” in excess of net precipitation, and also
limit Total Suspended Solids to 30 mg/L.
Mine tailings are a slurry: half-solid,
half-water.
Under EPA’s regulations, mine couldn’t discharge
that slurry to waters of U.S.
“Waters of the U.S.”
Defined at 40 C.F.R. 122.2 to include
wetlands.
 Around half of surface of Alaska is waters of
the U.S.
 Therefore large mines almost always need a
CWA permit for tailings disposal.
 No way to limit Ninth Circuit’s ruling to lakes.
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Is Sec. 404 Permit less protective?
COE has more flexibility than EPA’s ELGs
offer.
 But Sec. 404 permits are subject to 404(b)(1)
Guidelines.
 Guidelines jointly developed by EPA & COE.
 Codified at 40 CFR Part 230.
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Guidelines require COE to select least
environmentally damaging alternative.
40 CFR Part 230.10(a)
Temporary loss of lake v. permanent loss of wetlands.
EPA even has veto power over COE’s decision! See 33
USC § 1344 (c)
EPA did not veto COE’s permit for Kensington tailings.
State’s Theory
Sec. 404 Permits are separate program,
 Subject to separate requirements,
 Not including EPA’s effluent guidelines.
 If you have a 404 permit, you don’t need a 402
permit as well.
 40 CFR 122.3(b)
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Statutory Analysis
Too complicated to present here.
 Interplay between various CWA sections.
 Also relies on history of “CWA Compromise”
 Our brief and SEACC’s brief are available!
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Back-Up Theory:
Failure to give “Chevron deference”!
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*see Chevron USA v. NRDC
467 US 837 (1984)
EPA + USACOE Agreed that “Fill Rule”
Governed,
+ Tailings = Fill Material.
 Ninth Circuit gave no deference to agencies,
finding CWA itself was clear.
But CWA doesn’t define “fill material”.
 Agencies’ regulations did instead.
 Court should extend Chevron-style deference
to agencies’ interpretation of CWA itself +
implementing regulations (under Seminole
Rock.)
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Relevance Outside Mining Context?
If EPA’s Effluent Guidelines for another
industry could cover constituents present in fill
material,
 Then this decision is a problem.
 Example: “valley-fill” coal mining.
 See Amicus brief of Nat’l Mining Assoc.
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Contact Information:
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Cam.Leonard@alaska.gov
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(907) 451-2811