Apr. 7, 2006 – Environmentalists in Alaska renewed a court battle against government regulators on Wednesday, seeking to upend a mining permit they say would destroy a pristine lake and stretch a regulatory loophole enabling mining companies to fill water bodies with toxic byproducts.
On Tuesday, environmental groups re-filed their legal complaint against the US Army Corps of Engineers and the US Forest Service over a permit allowing a gold-mining company to dump some 4.5 million tons of waste products into Southeast Alaskaâ€™s Lower Slate Lake over a ten-year period. The Corps had suspended the permit for reevaluation when the groups filed the original complaint last September but reinstated it last week.
The plaintiffs â€“ the Sierra Club, Lynn Canal Conservation and the Southeast Alaska Conservation Council, say the move would undermine the federal Clean Water Act and could open yet another channel for big business to legally destroy water bodies and habitats.
Federal and state regulatorsâ€™ environmental-impact report on the mining project anticipates a loss of the lakeâ€™s entire aquatic habitat during the operation period, along with a total loss of major fish and invertebrate species. The report also predicts that the project would lead to an irrevocable loss of cultural resources, including relics of old mining areas at over a dozen designated historic sites.
Environmentalists say the move would undermine the federal Clean Water Act and could open yet another channel for big business to legally destroy water bodies and habitats.
But in the governmentâ€™s view, these consequences are completely legal.
Federal law restricts the gold-mining industry from contaminating local waters with chemical wastes. The lawsuit argues that the mining project, led by Idaho-based Coeur d' Alene Mines Corporation, takes advantage of the Bush administrationâ€™s recent tweaking of Clean Water Act rules, which effectively frees mining companies from restrictions on toxic dumping in the nation's water bodies.
"The Clean Water Act was created back in the early â€™70s for this very reason," said Kat Hall, an organizer with the Southeast Alaska Conservation Council. "Because industries were dumping their wastes into water bodies, and kids were getting sick, and fish were dying, and people finally said â€˜enough is enough.â€™"
According to the Environmental Protection Agencyâ€™s (EPA) Record of Decision, Coeur would operate an underground mine near Juneau Alaska, processing gold ore at a rate of about 2,000 tons per day. Over the projected 10-year lifespan of the operation, known as the Kensington Gold Project, the mine would produce an estimated 7.5 million tons of toxic, acidic crushed rock waste known as "tailings."
Coeur and the governmentâ€™s preferred waste "storage" site is the 20-acre Lower Slate Lake. Adjacent to one of the stateâ€™s most ecologically vital areas, the lake feeds into a crucial spawning ground for salmon, trout and other aquatic species. Under the Kensington plan, it would be at the receiving end of a constant stream of sludge, which would require the company to install a dam 90 feet tall and 500 feet long just to contain the waste.
A controversial interpretation of an administrative guideline issued in 2002 enables Kensingtonâ€™s sludge to qualify as mine-related "fill material," rather than as toxic pollution.
The company and regulatory bodies contend that the project would have a minimal long-term impact on the lake.
Army Corps spokesperson Tom Findter acknowledged that "there will be a temporary loss of aquatic life in the lake as a result of the mine tailings discharge," but told The NewStandard the damage would be offset because the sludge-filled lake would eventually be reclaimed, and the filling would force it to sprawl out and in effect become a larger aquatic environment.
Coeurâ€™s reclamation program, to be implemented at the end of the ten-year project, includes restoring fish populations to pre-poison levels and re-vegetating the damaged area. Spokesperson Scott Lamb said the company had found that, on balance, this disposal plan had "the lightest environmental footprint of any other potential option."
But in their legal complaint, the environmental groups expressed skepticism that environmental engineering could fully reincarnate a habitat after a decade of deadening pollution. The groups pointed out that the EPAâ€™s limited tests on local waterborne organisms had offered no comprehensive evidence that the residual mine sediment would not negatively impact survival rates.
Though Coeur first floated its lake-dumping plan in the 1990s, it was only recently approved, thanks in part to a loosening of pollution restrictions under the Bush administration. In 2004, EPAâ€™s advisors reviewed various proposals and concluded that the least environmentally damaging option would be to construct an off-site "dry" storage facility, which would not dump into local waters. However, the agency reversed course a few months later, instead deeming the Lower Slate Lake plan as the less environmentally harmful and "economically more attractive" option.
Environmental groups expressed skepticism that environmental engineering could fully reincarnate a habitat after a decade of deadening pollution
But environmentalists argue that the plan is in fact illegal. The EPAâ€™s blessing of the lake depository is based on a controversial interpretation of an administrative guideline issued in 2002, which enabled Kensingtonâ€™s slurry to qualify as mine-related "fill material," rather than as toxic pollution. This would allow the project to circumvent the Clean Water Actâ€™s National Pollution Discharge Elimination System, a set of regulations for industrial water pollutants that explicitly restricts discharges of chemical waste from gold mines like Kensington.
Critics say that if Coeur is allowed to sidestep Clean Water Act regulations, gold-mining companies around the country would have license to use lakes and streams as dumping grounds for their toxic waste.
"If you can do it to a lake near Juneau, you can do it to any lake in Alaska, any lake in the lower 48?" said Demian Schane, an attorney with the environmental law group Earth Justice, which is litigating the case. "Thereâ€™s no bounds to where this could stop."
Earth Justice and other groups fear that if the Coeur obtains its permit, the mining industry could invoke a similar strategy at the Pebble Mine site in Bristol Bay, Alaska, which contains one of the continentâ€™s largest gold deposits. Environmentalists say that water pollution from mining could devastate the areaâ€™s diverse ecosystem, including major salmon spawning grounds.
While the environmental impact assessments have focused on Lower Slate Lake, critics warn that the burden on surrounding areas is potentially more dangerous. Though the lake itself is not a major spawning area, neighboring Berners Bay is a rich wildlife resource, extremely vulnerable to any leeching from the lakeâ€™s dam system or disruption from increased human activity around the mine.
"The issue for us is not only that they are damaging a pristine lake," said Mark Rorick, chair of the Juneau chapter of the Sierra Club, "but they also are producing a time bomb that can go off at any time that threatens Berners Bay if that dam were to fail."
The last several decades have seen numerous incidents of mining-dam failures around the world, according to the industry watchdog WISE Uranium Project. In one high-profile case in 2000, a tailings-dam breach in Kentucky released roughly 250 million gallons of dark sludge and over 150,000 cubic yards of coal waste into surrounding habitats and waterways, leading to massive fish kills and contamination from industrial metals.
Though the Kensington project has resonated among environmental groups across the country, local economic tensions impede the political momentum. Initial construction work has already begun on the site, and surrounding communities are anticipating a few hundred new jobs. Last October, after groups first launched the suit, Juneau city officials joined area business leaders in publicly urging the Southeast Alaska Conservation Council to drop the case.
But Hall said that her group would not be opposed to a mining solution that was within the law. "Yes, jobs are good, economic development is good," she said, "but that shouldnâ€™t come at the expense of, or at the risk to clean water, and our other water bodies throughout the state, and subsistence value, and healthy, wild salmon."
For some, the cost of any mine is too high to justify the long-term risks. "I donâ€™t want our area to become a mining district," said Sylvia Kazimirowicz, a member of the Ekwok Village Council on the Nushagak River in the Bristol Bay area. "You bring one mine in â€“ itâ€™s going to have a whole bunch of other mines come in.â€¦ Thereâ€™s going to be an effect on us who live around here, whoâ€™ve lived here for thousands of years and whoâ€™ve relied on our subsistence foods."
If the mining industry penetrates her indigenous community as it is currently doing in Juneau, Kazimirowicz predicts an environmental assault. "Our native people out here are going to become polluted," she said. "And whatâ€™ll happen to us?"