1. SEACC v. USACOE A Case Study for the Env. & Nat. Resources Section November 19, 2008

2. Cast of characters:  Southeast Alaska Conservation Council sued  U.S. Army Corps of Engineers over  a CWA Sec. 404 Permit issued for Mine Tailings Disposal at Kensington Mine owned by  Coeur Alaska, Inc., a subsidiary of  Coeur d’Alene Mines (Idaho)

3. Case Status:  Now Before U.S. Supreme Court on Petitions for Certiorari filed by State of Alaska and Coeur (but not USACOE!)  Alaska v. SEACC, Case No. 07-990.  Our Brief Filed: September 17, 2008.  Argument Expected: January 2009.

4. CWA Permits come in two flavors: NPDES permits, and “Dredge and fill” permits.

5. NPDES permits are : Issued by EPA (or authorized state). Under CWA Sec. 402. For discharge of “pollutants” (a defined term).

6. Dredge and fill permits are: Issued by Army COE. Under CWA Sec. 404. For discharge of “fill material” (not a defined term).

7. Historical Context: CWA itself doesn’t define “fill material.” For years, EPA and COE had different definitions of “fill material”. “Effects test” v. “Primary purpose”. Confusion reigned.

8. 2002 Rule-Making: EPA and COE adopted revised definition of “fill material”, which specifically includes: “Placement of … slurry, tailings, or similar mining-related materials.” Also followed the “effects test.”

9. Kensington Mine First, EPA and COE developed and issued the “Regas memo”. Then, COE issued § 404 Permit for placement of tailings (as “fill”) into Lower Slate Lake. EPA issued NPDES permit for discharge from the lake, to stream.

18. Environmental Groups Sued Challenging § 404 Permit under APA, arguing that disposal of mine tailings at Kensington requires a § 402 Permit from EPA instead.

19. Plaintiffs' Theory: 2002 rule-making is more complicated … EPA’s effluent guidelines for mining industry trump new definition of “fill material.”

20. Decisions Below District Court upheld permit, but  Ninth Circuit Court of Appeals reversed.  Held that Coeur needed to get an NPDES permit from EPA instead.  486 F. 3 d 638 (2007)

21. Problem: Coeur can’t get an NPDES Permit, because tailings cannot comply with Effluent Guidelines promulgated by EPA for the mining industry. 40 CFR 440.104

22. Why is 402 Permit Harder? Because EPA’s ELGs prohibit discharge of “process waste water” in excess of net precipitation, and also limit Total Suspended Solids to 30 mg/L. Mine tailings are a slurry: half-solid, half-water. Under EPA’s regulations, mine couldn’t discharge that slurry to waters of U.S.

23. “ Waters of the U.S.”  Defined at 40 C.F.R. 122.2 to include wetlands.  Around half of surface of Alaska is waters of the U.S.  Therefore large mines almost always need a CWA permit for tailings disposal.  No way to limit Ninth Circuit’s ruling to lakes.

24. Is Sec. 404 Permit less protective?  COE has more flexibility than EPA’s ELGs offer.  But Sec. 404 permits are subject to 404(b)(1) Guidelines.  Guidelines jointly developed by EPA & COE.  Codified at 40 CFR Part 230.

25.  Guidelines require COE to select least environmentally damaging alternative. 40 CFR Part 230.10(a) Temporary loss of lake v. permanent loss of wetlands. EPA even has veto power over COE’s decision! See 33 USC § 1344 (c) EPA did not veto COE’s permit for Kensington tailings.

26. State’s Theory  Sec. 404 Permits are separate program,  Subject to separate requirements,  Not including EPA’s effluent guidelines.  If you have a 404 permit, you don’t need a 402 permit as well.  40 CFR 122.3(b)

27. Statutory Analysis  Too complicated to present here.  Interplay between various CWA sections.  Also relies on history of “CWA Compromise”  Our brief and SEACC’s brief are available!

28. Back-Up Theory: Failure to give “Chevron deference”!  *see Chevron USA v. NRDC 467 US 837 (1984)

29. EPA + USACOE Agreed that “Fill Rule” Governed, + Tailings = Fill Material.  Ninth Circuit gave no deference to agencies, finding CWA itself was clear.

30.  But CWA doesn’t define “fill material”.  Agencies’ regulations did instead.  Court should extend Chevron-style deference to agencies’ interpretation of CWA itself + implementing regulations (under Seminole Rock.)

31. Relevance Outside Mining Context?  If EPA’s Effluent Guidelines for another industry could cover constituents present in fill material,  Then this decision is a problem.  Example: “valley-fill” coal mining.  See Amicus brief of Nat’l Mining Assoc.

32. Contact Information:  Cam.Leonard@alaska.gov  (907) 451-2811