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COEUR ALASKA, INC. v. SOUTHEAST ALASKA CONSERVATION COUNCIL et al.

Country/Territory
United States of America
Type of court
National - higher court
Date
Jun 22, 2009
Source
UNEP, InforMEA
Court name
Supreme Court of the United States
Seat of court
Washington D.C.
Judge
Kennedy, Roberts, Thomas, Breyer, Alito, Scalia. Ginsburg, filed a dissenting opinion, in which Stevens and Souter joined.
Reference number
07-984
Language
English
Subject
Environment gen., Mineral resources
Keyword
Mining Effluent waste (industrial sources) Effluent waste water/discharge
Abstract
In reviving a closed Alaska gold mine using a "froth flotation" technique, petitioner Coeur Alaska, Inc., planned 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. 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). 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). Coeur petitioned for and was granted review by the United States Supreme Court. Overturning the decision of the Ninth Circuit Court of Appeals, the Supreme Court disagreed with all of SEACC’s arguments. The Supreme Court framed the issues in this manner: whether the [CWA] gives authority to [USACE], or instead to the [EPA], to issue a permit for the discharge of … slurry” and “whether, when [USACE] issued that permit, the agency acted in accordance with law. As to the first issue of what permit was required, the Court found that both the statute and the regulations forbid the “EPA from exercising permitting authority that is provided to” USACE pursuant to Section 404. Thus, the Court reasoned that if USACE has authority to regulate the slurry discharge, then the EPA does not have any authority over the discharge. The Court found that the statute and the regulations supported the much simpler question of “is the substance to be discharged fill material or not?” The answer to that question would determine whether USACE or EPA had jurisdiction over the discharge. Therefore, the Court held that USACE was the proper agency in this case to grant the permit. The second issue presented the Court with an interpretation problem. Both the statute and the regulations were silent on whether the new source performance standards had to be applied by USACE when issuing a 404 permit. Thus, the Court looked to an internal memorandum of the EPA interpreting Section 306’s applicability to Section 404 and whether that interpretation was reasonable. The memorandum reasoned that “because the discharge does not require an EPA permit …, the EPA’s performance standard does not apply to the discharge.” The memorandum made two important points on the limitations of this statement: 1) this applies in cases where the discharge occurs in a closed body of water, and 2) “when a discharge has only an ‘incidental filling effect,’ the EPA’s performance standard continues to govern that discharge.” Because this interpretation was reasonable and not clearly erroneous, the Court deferred to the EPA’s interpretation and held that USACE properly issued the 404 permit. Although the court had addressed all of the applicable issues in this case, the Court went on to address one more question: “whether the CWA contemplated that both agencies would issue a permit for a discharge.” The Court found that “a two-permit regime is contrary to the statute and the regulations.” Therefore, a discharge of fill material requires a 404 permit only, not an NPDES permit.
Full text
COU-157276.pdf