A few years ago, Bush changed the law to legalize the dumping of waste into our streams and lakes. For years, federal agencies unlawfully issued permits to allow the dumping of MTR mining waste into Appalachian streams. After environmental groups obtained injunctions to stop this practice, Bush changed the rules to create a new standard for a new permit to authorize the use of our waterways as waste sites.
As shown in the picture, Bush has moved from Appalachian streams to a lake in one of our national forests on the West Coast. In one of the first cases to adjudicate Bush's new rule, the court held that even if the mining waste appears to qualify for one of Bush's new easy permits, if the EPA has issued certain water quality standards that govern the waste, then the mining company must obtain one of those stricter permits that Bush tried to circumvent with his new rule.
The Tongass National Forest is a beautiful temperate rainforest with lakes, rivers, glaciers and an abundance of wildlife, including eagles, bears, and salmon. This video focuses on the problem of clear-cut logging, but shows "breath-taking vistas" of our national forest:
Lower Slate Lake is located at the base of Lions Head Mountain and is surrounded by forest and wetlands. The Auk Kwaan, the "original settlers of Juneau ...consider Lions Head Mountain sacred because it contains the spirits of their shamans."
Lower Slate Lake flows into Slate Creek, which drains into Berners Bay a few miles downstream, as shown in the Google Earth photo.
The bay supports local commercial and sport fisheries, provides commercial catches of shrimp and crab, and is home to abundant wildlife including herring, eagles, Steller sea lions, seals, humpback whales, bears, moose, and wolves.
Berners Bay also has cultural significance for the Auk Kwaan because the bay area has "ancient village sites," which may include burial sites.
However, this discharge would have transformed the lake into a mining waste disposal site, killing the aquatic life. It would ordinarily be a no-brainer that a company can not simply discharge waste into a lake. After all, the CWA was enacted for the purpose of protecting the biological and chemical integrity of our waterways. In fact, when Congress passed the CWA, one of its "principal concerns" was that it was simply "unacceptable" for our waterways to be used for waste disposal.
The use of our waterways for waste disposal is the purpose and effect of Bush's new rule. The CWA has 2 primary permitting regimes: The easy § 404 permit or the stricter § 402 permit, which may require compliance with technological water quality standards. In order to legalize waste dumping into our lakes, Bush changed the "fill material" test, which determines whether a discharger needs the more stringent § 402 permit or the easy § 404 permit. Under Bush's new rule, "fill material" is defined as material placed in US waters which has the effect of filling the US waters by either "replacing any portion of a water of the United States with dry land" or "changing the bottom elevation of any portion of a water of the United States." Bush also changed other rules so that "fill material" expressly includes mining waste, slurry, tailings or similar mining-related material. It is a tautological standard essentially saying that if dumping mining waste into a lake or stream would have the effect of filling up partially or wholly that lake or stream, then the mining company can get a § 404 permit to make the waste dump legal.
The use of this lake as a waste site may appear permissible because the facts mirror the language of Bush's new rule. The proposed waste disposal plan involved piping 210,000 gallons of slurry containing 1,440 tons of mine tailings each day to the bottom of the lake in the form of slurry. Over the 10-15 year life of the mine, approximately 4.5 million tons of tailings would be dumped in the lake, raising the bottom elevation of the lake 50 feet while also transforming the lake into a toxic waste dump that kills the fish and aquatic life:
The discharge ultimately will raise the bottom of the lake 50 feet to its current high water mark and nearly triple its surface area. Coeur Alaska and the Corps admit that the discharge and settling of tailings into the lake will kill all of the fish and nearly all other aquatic life, primarily due to their being covered by the discharged material. In addition, the toxicity of the tailings may have lasting effects on the lake and may have a negative effect on its ability to sustain aquatic life in the future. As a result, the extent to which aquatic life could eventually be restored is unclear.
Despite knowing the extent of environment degradation, the Corps issued a § 404 permit for the killing of this lake precisely because the dumping of waste into the lake would have the effect of filling the lake with waste, as set forth in Bushie's new rules for fill material. As the court stated:
The discharge of wastewater containing tailings from Coeur Alaska's froth-flotation mill operation facially meets the Corps' current regulatory definition of "fill material" because it would have the effect of raising the bottom elevation of the lake. Accordingly, under this interpretation, the discharge would be subject to the permit process governed by § 404 of the Clean Water Act.
This is where the court's opinion goes downhill for Bush.
The court held that even if the discharge appears to qualify for a Bush § 404 permit because the discharge will fill the lake with waste, there is a second question to answer in order to determine if the waste discharge truly qualifies for a Bush § 404 permit. If the EPA has an effluent limitation or performance standard, which are generally water quality standards, governing the waste material to be discharged, then the mining company must obtain the stricter § 402 permit, the permit that Bush's rules were designed to avoid.
Fortunately, the EPA had earlier issued a performance standard for froth-flotation mills, which unequivocally prohibits any discharge from this type of processing into US waters. Thus, the court vacated the permit issued by the Corps because it violated these performance standards.
This case will most likely be appealed. However, Bush can not claim that the 9th Circuit issued a wacky liberal opinion. When Bush's new fill material rule was under consideration in 2000, the EPA and the Corps wanted to include an exception as to when Bush's new rule would not apply. That exception is essentially the ruling by this court that mining waste material that otherwise qualifies for a § 404 Bush easy permit must obtain the stricter § 402 permit when the waste material is subject to effluent or performance guidelines.
Bush team deleted this proposed exception because the mining industry was worried that the exception would be applied to exclude mining waste which included constituent elements that constituted pollutants subject to existing effluent limitations:
Again, these were the concerns of the NMA and other mining companies. In their comments, the NMA said they saw "a potential ambiguity arising . . . whereby discharged material that has the effect of replacing portions of waters of the U.S., or substantially raising the bottom elevation for such waters, could conceivably result in attempts to be excluded from § 404 coverage simply due to the presence of constituents in the material that would be literally pollutants for which [effluent limits] exist if such constituents were discharged in waste water (i.e., mine drainage or process water) subject to § 402 permitting requirements."
Now, the 9th Circuit has brought back to life the very rule that the mining industry did not want.
What does this mean for MTR mining? Unfortunately, EPA has not promulgated a performance standard for MTR mining waste. However, what if the EPA has promulgated standards or restrictions that govern any of the constituent elements of the mining waste, such as the toxic chemicals found in Appalachian streams.
Finally, it should be noted that 14 members of Congress filed an amici brief in this case to argue "persuasively that the adoption of these regulations by the Corps and EPA violates the purposes and plain language of the Clean Water Act by allowing waste material to be dumped into lakes, rivers, and other waters of the United States."
Lower Slate Lake flows into 
