US Supreme Court Issues Decision That Benefits Mountaintop Mining

The US Supreme Court has upheld a central tenet of mountaintop mining - the ability of the Corps of Engineers to regulate disposal of fill material in waters of the United States. In Couer Alaska, Inc. v. Southeast Alaska Conservation Council the Court considered whether the Corps or EPA had responsibility for regulating the discharge of gold mining waste generated by a "froth flotation" technique into a lake. Couer Alaska had a 404 permit (named for the Clean Water Act section that governs discharges of fill material to lakes, streams and wetlands) for the discharge into the lake, and a 402 (the NPDES section of the Act) permit for the discharge from the lake to the stream that drained it. Couer and the permitting agencies took the position that the discharge to the lake was of fill material, since it was largely solids, and that it didn't have to meet NPDES permit requirements until the point where the lake discharged into the downstream creek. SEACC took the position that Couer was violating the Clean Water Act for 2 reasons - a NPDES permit was required for the initial discharge of solids into the lake, and Section 306 of the CWA, relating to new source performance standards, prohibits discharge of process wastewater, including solid wastes. The Supreme Court ruled that the Corps and not EPA had authority to regulate the discharge of slurry into the lake, and that the Corps permit did not have to implement the new source performance standards of Section 306 in the Section 404 permit.



Mountaintop mines also discharge fill into headwater streams, and similar arguments have been made in WV and in the 4th Circuit that such discharges require NPDES permits instead of 404 wetlands fill permits. Challengers to the 404 permits have lost in the past, and this Supreme Court decision appears to have put this issue to rest. However, one can expect the Obama administration to consider revising the regulations on which the Supreme Court relied in reaching its decision, and there is a bill pending in Congress to accomplish the same end.



Here is a more thorough discussion of the case from Steve Jones and Laura Fandino of the Marten Law Firm, as well as articles from the LA Times and the NY Times. Earthjustice is outraged, as you might expect.