Coeur Alaska v. SEACC
Kensington Mine Tailings
Impoundment Litigation
Robert A. Maynard
Perkins Coie LLP
Phone: 208-343-3434
Email: rmaynard@perkinscoie.com
Map
SITE OVERVIEW
Upper Slate Lake
Lower Slate Lake
Fish Barrier
Slate Creek
Slate Creek Cove
SLATE CREEK COVE DOCK
Slate Creek Cove
Slate Creek Cove Dock
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. 07984, 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.
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.
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.
Clean Water Act statutory provisions (cont.):

Section 402—Except 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."
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.
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]
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.
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.
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.
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)