The entrance tunnel and water treatment facility for the Kensington Gold Mine against Lion Head Mountain near Juneau, Alaska can be seen. (AP Photo/Coeur Alaska, File) 

We had a comment on the Coal Tattoo a few weeks back that  asked what relevance an ongoing U.S. Supreme Court case out of Alaska had to the fight in Appalachia over mountaintop removal coal mining.  The reader, Red Desert, cited a story in the L.A.  Times about the case.

I’ve read a fair amount on this case, and followed some of these issues on The Pebble Blog, by my friend Elizabeth Bluemink at the Anchorage Daily News.

But to get some better information for Coal Tattoo readers, I’ve enlisted my first guest blogger, lawyer Derek Teaney  of the Appalachian Center for the Economy and the Environment. Here’s Derek’s take on the Alaska case:

I believe the 2004 rule change referenced in the LA Times article regarding the Alaska gold mine case currently pending before the  United States Supreme Court must be the same rule change that the Bush administration used to overturn Judge Haden’s ruling regarding the “fill rule.” That was a 2002 rule change, however, and the LA times identifies it as a 2004 change. Far be it for me to suggest that the LA Times is inaccurate, but I can’t think of any other rule change that would have enabled the Alaska gold mine to proceed as planned.

Basically, the fill rule change allowed the Army Corps of Engineers to issue “fill” permits for things that it never could before.  The Corps was supposed to be able to issue these permits for things like…the Burnsville Dam.  In other words, something that had the purpose of constructing something (arguably) useful in the water.  The old rule prohibited fill permits where the purpose was to dispose of waste.  For example, you couldn’t build a dam out of old chicken bones or refrigerators…or gold mine tailings or coal mining overburden.

The 2002 rule change went from a purpose based test (why are you buildingit?) to an effects-based test (what effect does it have on the water?).  The new rule allows fill permits if the effect is to raise the bottom elevation of the water.

Under the old rule, the gold mining company in Alaska would never have been able to get a fill permit from the Army Corps to fill in Lower Slate Lake. Furthermore, it couldn’t get a water pollution permit from EPA because EPA has set a zero discharge standard for gold mine tailings.

Under the new rule, because the gold mine tailings have the effect of raising the bottom elevation of Lower Slate Lake, the Army Corps claims it can issue a fill permit, notwithstanding EPA’s prohibition of the discharge of gold mine tailings into waters.  In other words, when the gold mines got an answer they didn’t like from Mommy (EPA), they went to Daddy (the Corps) to see what it would say.

The case before the Supreme Court look more at the tension between the two agencies that implement the Clean Water Act–the Army Corps with its fill permits and the EPA with its pollution permits–than it does at the fill rule itself.  The difference between the Alaska gold mine case and a valley fill is that EPA has flat out prohibited gold mine tailings–there is no “zero discharge” rule for coal mining overburden.

It is difficult to predict what effect the forthcoming Supreme Court decision will have on coal mining.  The Justices could reach out and say something about the legality of the fill rule, but I doubt that is likely considering the composition of the Court.  Rather, I expect them to narrowly decide the question about which agency gets to trump the other here–EPA with its zero discharge rule or the Army Corps with its effects-based fill rule.

Whatever effect that the case might have on coal mining is likely to be upstream from impoundments, such as those for sediment at the toe of a valley fill or those in a stream to create a slurry impoundment.  Although EPA has no rule regarding overburden, it has a rule similar to the zero gold tailings discharge rule regarding discharges from coal mines.  It is not a zero discharge rule, but it does place strict limits on pollutants in discharges from mines–limits that aren’t met upstream of impoundments. When the decision comes out, I expect regulators, industry officials, and environmentalists are all going to lock themselves in a room (separately, of course, to avoid hurt feelings) and try to figure out what it all means.

The least complicated answer is in the United States House of Representatives right now.  Over one hundred members of Congress have sponsored the Clean Water Protection Act, which would undo the 2002 fill rule change, rendering whatever the Supremes have to say on this question moot.

[Readers: If you want more information on the case,  the American Bar Association provides copies of briefs filed with the court, the Cornell University School of Law summarizes the case, and there's more from Scotus Wiki and from Scotusblog. And in the interest of full disclosure, Derek's boss, Joe Lovett, wrote an amicus brief filed previously with the 9th U.S. Circuit Court of Appeals on behalf of members of Congress who argued against the corps' permitting policies. That brief is here.  And before anybody complains about me letting someone from one side guest blog -- rest assured, I have plans in the future to bring in a variety of voices for guest-blogging on Coal Tattoo. In fact, if you have a particular expertise, and would like to guest blog on an issue, let me know and we can discuss it. Have a good weekend, Ken.]

This entry was posted on Saturday, March 28, 2009 at 10:06 am and is filed under Legal actions, Mountaintop Removal, Water pollution. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.