In a recent decision...

...the United States Supreme Court upheld the authority of the United States Army Corps of Engineers (the Corps) to issue permits for the discharge of slurry, a by-product of the mining technique referred to as “froth flotation.” Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S.Ct. 2458 (2009). Overturning the Court of Appeals for the Ninth Circuit, the Supreme Court determined that slurry is, in fact, “fill material” as defined by the Clean Water Act (the CWA or the Act), and, in accordance with the CWA, the disposal of such material shall be regulated by the Corps without regard to the strict limitations imposed by the Environmental Protection Agency (the EPA) for the disposal of pollutants. Id. at 2463.

The defendant in the case, Coeur Alaska, Inc. (Coeur Alaska), attempted to revitalize an 80-year-old gold mine in Juneau using the “froth flotation” technique whereby the mine’s crushed rock would be mixed with certain chemicals, resulting in the separation of valuable minerals. Id. at 2463-2464. One of the considerations in developing this plan, as is common in most mining operations, was what to do with the mixture of crushed rock and chemicals, referred to as slurry, once the valuable minerals were extracted. Coeur Alaska determined that the most cost-efficient and environmentally-friendly method of disposal would be to deposit the slurry into a nearby lake. Id. Upon approval by the Corps to implement its plan, several environmental activist groups filed suit against Coeur Alaska alleging that the mining company did not comply with the CWA. Id. at 2463.

The Supreme Court’s decision was not a difficult one as the language of the CWA and the regulations that accompany the Act clearly give the Corps the authority to issue permits for the discharge of slurry. However, the Appalachia Restoration Act, which was introduced in the Senate in March, 2009, proposes to change the definition of “fill material” to exclude slurry. S. 696, 111th Cong. (2009). Although no major congressional action has been taken, the Bill presents another potential challenge for companies like Coeur Alaska in the development of their mining operations.

The following post was written by staff member Meghan Jackson.