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This news story originally provided by
Inside Bay Area
Alaskan dispute may have implications for mining
throughout West
By Douglas Fischer, STAFF WRITER
Inside Bay Area
SAN FRANCISCO — What's the price of gold?
To a mining company and the federal government, it's a small
alpine lake in Southeast Alaska.
Coeur Alaska has proposed turning Lower Slate Lake into a dumping
ground for 4.5 million tons of tailing waste expected from the
Kensington gold mine on Alaska's panhandle.
Federal regulators agree that no other place works as well to put
so much waste. They have approved the lake's destruction under new
rules designed to better protect the nation's waterways.
Environmentalists fear the decision instead opens more waterways
to industrial waste. Federal appeals court judges in San Francisco
last week upheld an injunction halting work.
Coeur Alaska promises the lake's rebirth after an estimated 31
tons of gold is mined over the next 10 years.
But environmentalists say the decision marks a considerable
backslide on rules that for 30 years have protected the nation's
lakes and streams from mining, timber and other extractive
industries. They have sued to void the mine's federal permit to use
the lake fortailings.
"Its implications environmentally couldn't be more significant,"
said Joan Mulhern, legislative counsel for Oakland-based
Earthjustice, which represents several environmental groups seeking
to save the 23-acre lake.
"To say you can permanently fill and bury and destroy waters of
the United States for no other reason than to dispose of waste ...
is completely antithetical to the (Clean Water) Act."
The U.S. Environmental Protection Agency counters that nothing in
the law prohibited the mine from using the lake as a dump. Rule
changes approved by President Bush afford the agency greater
latitude in controlling and limiting the damage, said Greg Peck,
chief of staff of the EPA's water division.
"This is the most environmentally protective way to protect these
waters," he said.
Lower Slate Lake's future — and the face of mining in the West,
to hear environmentalists tell it — hinges on what the federal
government considers "fill material."
Fill is subject to less stringent prohibitions than other
industrial waste such as certain mine tailings.
For decades, the U.S. Army Corps of Engineers had a narrow
definition of fill: Any material whose "primary purpose" was to
raise the bottom elevation or replace entirely any body of water.
In other words, if you wanted to fill Lower Slate Lake to create
a golf course, that would be OK. But if you simply needed a home for
4.5 million tons of crushed rock, it would not be allowed in a lake.
The EPA, since 1977, has had a looser definition, one that
considers fill any material "that has the effect" of replacing or
raising the bottom elevation of any water body.
For the EPA, then, both golf course construction and tailings
disposal both have the same effect: They fill the lake.
In 2002, the Bush Administration approved a Clinton-era proposal
to reconcile the two definitions, changing the Corps' version to
match the EPA's.
The EPA believes the rule change affords more protection. Prior
to 2002, applicants seeking to fill wetlands, lakes and other
waterways got haphazardly reviewed, Peck said.
"It's resulting in more consistency, greater effectiveness, more
predictability and better protection for the environment," Peck
said.
But Mulhern notes the move allowed coal mining companies in
Appalachia to push mountaintops into valleys below to get to rich
seams.
And Appalachian miners aren't the only ones with a lot of rock on
their hands.
If the new fill definition applies to Coeur Alaska's mine,
environmentalists fear it could also work for a vastly larger
mineral deposit, called the Pebble prospect, in the remote
headwaters of Alaska's Bristol Bay. The bay is arguably the world's
richest source of wild salmon.
The prospect is one of the largest copper deposits in the world.
To get the ore, miners would sacrifice two large lakes behind the
equivalent of two Hoover dams to hold their tailings, Earthjustice
attorneys said.
Other mines and industries — paper mills, tanning facilities —
could potentially take advantage of the loophole, Mulhern said.
Fourteen members of Congress have expressed concern with the Bush
Administration's position, filing a "friend of the court" brief with
Earthjustice.
Regulators and the company were in court Dec. 4 to defend their
permit before a skeptical federal appeals court.
Lower Slate Lake is tiny by Alaska standards, a 23-acre lake in
the Tongass National Forest that drains into Berners Bay, an
undeveloped habitat for whales, seals and salmon.
The Kensington mine owner, Coeur Alaska, a subsidiary of
Idaho-based Coeur d'Alene Mines Corp., plans to dump almost 1,300
tons a day for 10 years into the lake.
To hold the tailings, the company will build a 90-foot-high dam
across the lake's outlet. Untreated tailings will kill all aquatic
life and are regulated by the Army Corps of Engineers. Flow out of
the lake must be treated to the EPA's standards.
That dichotomy — why one waterway can be sacrificed while another
is protected — clearly puzzled Ninth Circuit U.S. Court of Appeals
Judge Proctor Hug Jr.
"I just have a hard time seeing how the Corps could have reached
this conclusion," he said during oral arguments in San Francisco
last week.
"So it's OK ... to pollute the lake so long as when it leaves the
lake, it doesn't pollute the creek?"
The Corps, replied Justice Department attorney John Stahr, will
"regulate waste material as fill if it serves that purpose."
Coeur Alaska attorney John Berghoff urged the court to consider
the "overall situation." The record is 1,000 pages thick. The mine
is in notoriously swampy southeast Alaska and has been
"exhaustively" reviewed by the state and various federal agencies.
Other alternatives for the tailings pile — wetlands or the ocean —
have worse environmental impacts.
"It is appropriate that the lake serve as an impoundment,"
Berghoff said. "It will be reclaimed."
Contact Douglas Fischer at
dfischer@angnewspapers.com or (510) 208-6425.
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