Supreme Court Holds US Army Corps of Engineers Appropriate Agency to Regulate Discharge of Fill Material

Supreme Court Holds US Army Corps of Engineers Appropriate Agency to Regulate Discharge of Fill Material

By a 6-3 vote, the US Supreme Court ruled that the US Army Corps of Engineers had the authority under the Clean Water Act (CWA) to grant permission to a gold mining company (Coeur Alaska Inc.) to dump waste material into a lake near Juneau. (Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 2009 U.S. LEXIS 4730 (U.S. June 22, 2009)) 
The CWA provides two distinct permitting programs. Under the CWA, the Army Corps has the authority to issue permits to regulate fill material but the US Environmental Protection Agency (EPA) has the authority to issue permits to regulate pollutants. A discharge is not subject to regulation under both programs.
 
At issue in the case was whether the discharge from the gold mine, a rock and water mixture called "slurry," should be permitted under the CWA by the Army Corps as fill material or by the EPA under the CWA effluent guidelines as a pollutant.
 
The Army Corps had issued a permit to Coeur Alaska Inc., treating the mine tailings as "fill material," which is defined in the agencies' joint regulation and includes slurry, tailings or similar mining-related materials. (40 CFR §232.2)
The Ninth Circuit U.S. Court of Appeals invalidated the Army Corps' permit and found that Coeur Alaska's request should have been considered by the EPA rather than the Army Corps.
On Monday, June 22, the Supreme Court overturned the appellate court ruling and validated the previously issued permits.  Justice Anthony M. Kennedy wrote the majority opinion and found “that because the slurry Coeur Alaska wishes to discharge is defined by regulation as ‘fill material,’ . . . Coeur Alaska properly obtained its permit from the Corps of Engineers . . . rather than from the EPA.”
In a dissenting opinion, Justice Ruth Bader Ginsburg said it is "neither necessary nor proper to read the statute as allowing mines to bypass EPA's zero-discharge standard by classifying slurry as 'fill material.'"
The Supreme Court's decision has cleared the way for completion of the Kensington gold mine tailings facility. The mine has been closed since 1928 but now has plans to begin production in the second half of 2010.