Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

In reviving a closed Alaska gold mine using a “froth flotation” technique, petitioner Coeur Alaska, Inc., plans to dispose of the resulting waste material, a rock and water mixture called “slurry,” by pumping it into a nearby lake and then discharging purified lake water into a downstream creek. The Clean Water Act (CWA), inter alia, classifies crushed rock as a “pollutant,” §352(6); forbids its discharge “[e]xcept as in compliance” with the Act, §301(a); empowers the Army Corps of Engineers (Corps) to “issue permits … for the discharge of … fill material,” §404(a); and authorizes the Environmental Protection Agency (EPA) to “issue a permit for the discharge of any pollutant,” “[e]xcept as provided in [§404],” §402(a). The Corps and the EPA together define “fill material” as any “material [that] has the effect of … [c]hanging the bottom elevation” of water, including “slurry … or similar mining-related materials.” 40 CFR §232.2. Coeur Alaska obtained a §404 permit for the slurry discharge from the Corps and a §402 permit for the lake water discharge from the EPA.

      Respondent environmental groups (collectively, SEACC) sued the Corps and several of its officials under the Administrative Procedure Act, arguing that the CWA §404 permit was not “in accordance with law,” 5 U. S. C. §706(2)(A), because (1) Coeur Alaska should have sought a CWA §402 permit from the EPA instead, just as it did for the lake water discharge; and (2) the slurry discharge would violate the “new source performance standard” the EPA had promulgated under CWA §306(b), forbidding froth-flotation gold mines to discharge “process wastewater,” which includes solid wastes, 40 CFR §440.104(b)(1). Coeur Alaska and petitioner Alaska intervened as defendants. The District Court granted the defendants summary judgment, but the Ninth Circuit reversed, holding that the proposed slurry discharge would violate the EPA’s performance standard and §306(e).

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