Amicus Curiae Brief — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990)

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IN THE

Supreme Court of the United States

COEUR ALASKA, INC.,

Petitioner,

Vv.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

STATE OF ALASKA,

Petitioner,

V.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

NATIONAL MINING ASSOCIATION, ET AL.

IN SUPPORT OF PETITIONERS

HAROLD P. QUINN, JR. CHRISTOPHER T. HANDMAN*

KAREN BENNETT DOMINIC F. PERELLA

NATIONAL MINING HOGAN & HARTSON L.L.P.

ASSOCIATION 555 Thirteenth St., N.W.

101 Constitution Ave., N.W. Washington, D.C. 20004

Washington, D.C. 20001 (202) 637-5719

(202) 463-2652

*Counsel of Record Counsel for Amici Curiae

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

— a i

TABLE OF CONTENTS

Page

py Fhe iy 6 gy | nnn ill

STATEMENT OF INTEREST. ...............cc..ccccccccccccscees 1

SUMMARY OF ARGUMENT................cccccccccoccscsscccees 4

[ETE ESSE REESE A Na DEE Sn a 8

I. MINES HAVE LONG _ USED

TAILINGS PONDS TO DISPOSE

OF NATURAL MINING BYPROD-

UCTS, AND REGULATORS HAVE

LONG PERMITTED THIS ACTIV-

ITY UNDER SECTION 404.........00.00000 8

A. Tailings And Related Mining By-

products Are Nothing More Than

CL Ee 8

B. American Mines Long Have Dis-

posed Of Tailings In Securely Im-

pounded Tailings Ponds..........................00- 9

C. For At Least 30 Years, Federal

Agencies Have Applied Effluent

Limitations Only To Discharges

From Tailings Ponds, Not To De-

posits Into Tailings Ponds ....................... 10

Il. EVEN IF THE ACT WERE

AMBIGUOUS ON THE TREAT-

MENT OF TAILINGS SLURRY,

THE AGENCIES’ RESOLUTION OF

THE ISSUE WOULD STILL BE

EMINENTLY REASONABLE ...................... 14

il

TABLE OF CONTENTS—Continued

Page

Ill. THE NINTH CIRCUITS READING

OF THE ACT WOULD MAKE IT

NEARLY IMPOSSIBLE FOR MANY

MINES TO LEGALLY STORE

ee SEED ticinachnctinnernsncieiensennineieinns 19

CONCLUSION

Cases:

Bragg v. West Virginia Coal Ass'n, 248

fh 8: ana ee 9

Chevron U.S.A. Inc. v. NRDC, 467

'f 2 Seen 7, 15, 16

Kentuckians for the Commonwealth

ill

TABLE OF AUTHORITIES

v. Rivenburgh, 317 F.3d 425 (4th Cir.

SrEUITTtiE iieth osechsiinissiateiehbaastiniiaiheadiclaasblicigndiadatsinlibsadinaiiids 2, 3, 20

Mylan Labs., Inc. v. Thompson, 389 F.3d

| ETE eee ae 16

National Ass’n of Home Builders v. De-

fenders of Wildlife, 127 S. Ct. 2518

a iislassiahdaiidltihiidalsicieisniasinsenienaieneusiiabadihincnnes 16, 17

National Mining Ass'n v. Fowler, 324

ee Se ls EEE: ME inctisincsccsssdccvpsdionienessnes 2

Rapanos v. United States, 547 U.S. 715

ahahaha illeedigidsaainh ai ioabaeedgicbabilial 20, 21

Statutes:

ee ele MIEN iditiaritecniennconnaciins 6, 7, 10, 14, 15, 17

TTT 15

Ee earner Ean 15, 16

33 U.S.C. § 1316........cccccccececeee. 6, 7, 10, 14, 15, 17.

Se te HI ichignihicsdnnisincatinionsunibsinitaligets 15, 16

Eee ase rene aie passim

I passim

Sy NE. Or III i cchiitivinihsninabiadigninciinepsenteients 17, 18

iV

TABLE OF AUTHORITIES—Continued

Page

Be Ne: Or IED vitscidinvsincasnsianinniecniinnsndtindbcpnentiti 18

Rule:

Be ea is Se eentiscniccsesinnnnsanpisnimnalaninaneinseioniimiinaannte 1

Regulations:

I i sansscccipisencsasiinsiininnnnianmninitteite 11, 18

I IID isn dccsininacitadenndecuhinnineineinnatie 13, 17

I criteteciiniendviicsnnindinicntidcdanecncinidititiy 18

40 C.F.R. § 230.10(a).........cecccesccsecececcesesseecseseeeees 18

TO vcircnccnonicntennisnsinimennetanasunaien 18

ee iicitininnennitnpacedininnininiaanacisins a, =

ee iiiteeitntsncennsiscnnstiiiaicicnetsisecemieimenienn 21

I inclines ielcccriccinnischbenhsnssmnndeiiessebiamaetiae 21

ee i te IE drinbcdiccinnsvtiesntincnnindasssinnes seinen 21

scsesiensinnsmninsaniiounaseiiei 21

I cleitictinnitansiinnsnsniannsinitenieunapinauciiin 11

a ie ee riiiticencninsntctnniccsinenscssinns 11, 21

ek EE TET RINT 21

65 Fed. Reg. 21,292 (Apr. 20, 2000) ............. 12, 17

67 Fed. Reg. 31,129 (May 9, 2002) ..................... 13

Other Authorities:

Army Corps of Engineers, Alaska Dis-

SELLE NESTE enero aD 19, 20

Vv

TABLE OF AUTHORITIES—Continued

Army Corps of Engineers, Record of De-

cision and Permit Evaluation (Mar.

Bay, FIED ccccecvnesenssncnsinmmnesennnenininiiniiiansanss

Army Corps of Engineers & EPA, Re-

sponse to Comments Document for

Final Rule Amending the EPA’s and

Corps’ CWA § 404 Definitions of “Fill

Material” and “Discharge of Fill Ma-

ROPERS GN i SIE seesrtibnirnrntictiininctiinnreenees

Army Corps of Engineers & EPA, Memo-

randum Of Agreement Concerning the

Determination of Mitigation Under

the Clean Water Act Section 404(b)(1)

Guidelines (Feb. 7, 1990), reprinted

at 55 Fed. Reg. 9210, 9211 (Mar. 12,

ID cncccsssescsinvesntensenanannnniomuasitibeniniientess

Coeur Alaska, Inc. Kensington Project:

Slate Creek Lakes Tailings Storage

Facility Report on Water Quality

Monitoring (Feb. 20038)......................220+5

David W. Love & Allen Gellis, What De-

cision Makers Should Know About

Arroyos in New Mexico (2001)................

EPA, Copper Mining and Production

i a i

EPA, Development Document for Final

Effluent Limitations Guidelines and

New Source Performance Standards

for the Ore Mining and Dressing

Point Source Category, EPA No.

440/1-82/061 (Nov. 1982)................. eee

Page

vi

TABLE OF AUTHORITIES—Continued

EPA, EPA’s Detailed Comments on the

Kensington Gold Project (Aug. 2004) ......

EPA, Kensington Gold Mine Project:

Technical Assistance Report for the

U.S. Army Corps of Engineers Alaska

I, IE ssc ceitadicnsonnesscconsonediie

EPA, Record of Decision for Section 402

NPDES Permit (June 28, 2005) ..............

EPA, Technical Resource Document: Ex-

traction and Beneficiation of Ores

and Minerals, EPA 530-R-94-013

EEE ESE Se

Knight Piesold Consulting, Coeur

Alaska, Inc. Kensington Project:

Slate Creek Lakes Tailings Storage

Facility Report on Water Quality

Monitoring (Feb. 20038)................ccc0ece000e

National Mining Association, The Eco-

nomic Contributions of the Mining

Industry in 2005 (2007) .....................2++-++

Surface Mining (Bruce A. Kennedy, 2d

ee Sa

Page

IN THE

Supreme Court of the United States

Nos. 07-984 & 07-990

COEUR ALASKA, INC.,

Petitioner,

v.

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

STATE OF ALASKA,

Petitioner,

ws

SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

NATIONAL MINING ASSOCIATION, ET AL.

IN SUPPORT OF PETITIONERS

STATEMENT OF INTEREST!

The National Mining Association (“NMA”) is a na-

tional trade association that represents all aspects of

' Pursuant to Supreme Court Rule 37.6, amici note that no

counsel for a party authored this bricf in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than amici curiae, their members, or their counsel made a

the niining industry, including producers of most of

America’s coal, metals, and industrial and agricul-

tural mimerals; manufacturers of mining and min-

eral-proceasing machinery and supplies; bulk trans-

porters; financial and engineering firms; and other

businesses related to mining. The mining industry

produces vital resources needed to fuel our economy

and manufacture virtually all commodities sold in

domestic and foreign markets. In 2005, the U.S.

mining industry produced $78.4 billion of finished

mineral, metal, and fuel products. These products

were in turn used to create an additional $2 trillion

worth of consumer and industrial goods. See Na-

tional Mining Association, The Economic Contribu-

tions of the Mining Industry in 2005, at 3 (2007).2

The NMA works with Congress and regulatory

officials to promote practices that foster the envi-

ronmentally sound development and use of mineral

resources. It also participates in litigation raising

issues of concern to the mining community, see, e.g.,

National Mining Ass’n v. Fowler, 324 F.3d 752 (D.C.

Cir. 2003), and has been involved in cases, like this

one, in which parties have attempted to challenge

the jurisdiction of the Army Corps of Engineers (the

“Corps”) to issue permits for “fill material” under the

Clean Water Act. See, e.g., Kentuckians for the

monetary contribution to its preparation or submission. The

parties have consented to the filing of this brief. All petitioners

and respondents except the United States have done so via

consent letters filed directly with the Clerk; a copy of the

United States’ consent letter is being filed with the Clerk

together with this brief.

2 Available at www.nma.org/pdf/pubs/mining_economic_

report.pdf.

Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir.

2003).

Amici the Alabama Coal Association, Arizona Min-

ing Association, Coal Operators and Associates,

Colorado Mining Association, Illinois Coa! Associa-

tion, Idaho Mining Association, Indiana Coal Coun-

cil, Kentucky Coal Association, Nevada Mining

Association, New Mexico Mining Association, North-

west Mining Association, Ohio Coal Association,

Pennsylvania Coal Association, Utah Mining Asso-

ciation, and West Virginia Coal Association repre-

sent the interests of the coal and mining industries

at the state level. Their goals are to provide effective

industry leadership, enhance the industry’s ability to

compete, and educate citizens about the wise use of

America’s energy and mineral resources.

The amici have a substantial interest in this case.

The Ninth Circuit held below that mines must obtain

Section 402 effluent-discharge permits from the

Environmental Protection Agency (“EPA”), instead of

a Section 404 “fill” permit from the Corps,? anytime

the excess rock and dirt produced by their operations

happens to contain a substance covered by one of

EPA’s myriad effluent limits. The Ninth Circuit's

rule is wrong not just because of its counter-textual

interpretation of the Act; it is also wrong because it

ignores the practical realities of mining that both the

Corps and EPA carefully considered in fashioning

the “fill” rule. As petitioners have correctly ex-

plained, fill material produced by mines will often

contain some substance regulated by EPA’s effluent

3 Sections 402 and 404 are codified at 33 U.S.C. §§ 1342 and

1344, respectively.

limits, whether it be process water or bits of the

mined metal itself. By its very nature, this volumi-

nous fill material could never qualify for a permit

under Section 402, which is designed to regulate

discharges measured in parts per million, not in

millions of tons. As a result, some mines—those

whose topographical or environmental settings make

storage within waters the only feasible method of

disposal—may well be left without any legal way to

stere the huge quantities of excess rock their opera-

tions produce.

Braushimg aside the considered judgments of the

Corps and EPA—and ignoring 30 years of industry

practsce—the Ninth Circuit announced a rule that

threatens the economic vitality of both the mining

industry and the communities in this Nation that

rely on that industry. Were this Court to endorse the

Ninth Circuit’s approach, many mines would be

forced to cease operations because they could not, as

a practical matter in many areas of the country,

dispose of the tailings all mines inevitably generate.

Such closures would jeopardize the economics of the

States in which these mines operate and the liveli-

hoods of the many men and women they employ.

This Court should reverse the ruling below.

SUMMARY OF ARGUMENT

1. Respondents Southeast Alaska Conservation

Council, the Sierra Club, and Lynn Canal Conserva-

tion (collectively “SEACC”) would have this Court

conceive of the mine discharge at issue here as

“process wastewater” that just happens to have some

particles of solid material floating in it. SEACC

Brief in Opposition (““SEACC BIO”) 10; id. at 4 n.2.

That is wrong—and the inaccuracy is no small

matter. On the contrary, recognizing exactly what

will be discharged into Lower Slate Lake is critical in

understanding how the Clean Water Act’s mutually

exclusive permitting regimes under Sections 402 and

404 operate.

The Ninth Circuit recognized, and no party dis-

putes, that the mine “tailings” placed in Lower Slate

Lake would be largely solid—a slurry composed of 55

percent earth and crushed rock by weight. Pet. App.

6a. These solid materials also would be massive:

1,440 tons of tailings would be placed in the lake

each day, enough to raise the lake bottom by 50 feet

over the life of the project. Jd. The tailings therefore

fall squarely within the regulatory definition of “fill”

jointly promulgated by the Corps and EPA in 2002—

a regulation that, as petitioners correctly note, has

not been challenged in this litigation. For that

reason the mine is subject to the Section 404 permit-

ting scheme designed by Congress to govern the

placement of fill in jurisdictional waters.

SEACC hinges its contrary argument on the fact

that the fill material happens to contain a compo-

nent—process wastewater—that, standing alone, is

subject to an effluent limit. But solid rock tailings

that would otherwise qualify as “fill” do not lose that

status merely by dint of some additional water.

After all, whether deposited in the lake in dry or

slurry form, the solid-rock tailings will satisfy the

regulatory definition of “fill”: They will raise the

elevation of the lake bottom. As petitioners correctly

explain, the Act’s plain language creates an entirely

separate regulatory scheme for “fill” and leaves the

relevant agencies (EPA and the Corps) discretion to

define the term. Coeur Alaska Br. 32-39. Since the

discharge at issue is squarely within the definition of

“fill” that those agencies promulgated, and since that

definition is not challenged here, this Court should

reverse the Ninth Circuit’s decision below.

2. But even if SEACC were correct that the lan-

guage of Sections 301 and 306 requires all dis-

charges—even those of “fill’—to comply with effluent

limits, that would only create a conflict in the Act;

Sections 301 and 306 would be at war with Section

404. SEACC has offered no reason why the expert

agencies are not entitled to reasonably resolve that

purported conflict. Indeed, they plainly are. And

that is exactly what they did by jointly adopting the

“fill” rule.

Under that definitive regulation, the agencies

deemed tailings slurry—a mostly solid substance

that the agencies knew full well often contains

process wastewater—to be “fill” governed by the

Section 404 permitting regime. That choice makes

good sense. After all, tailings typically are deposited

in secure impoundments designed to hold massive

quantities of earth and rock. As a result they act like

fill material: They raise the bottom elevation of the

entire impounded water body and replace water with

dry land. They thus are most naturally regulated

under Section 404, regardless of the components the

earth and rock might contain. At the same time,

EPA and the Corps pay proper homage to Section

402 and its effluent limits: The agencies ensure that

tailings do not cause impurities in other jurisdic-

tional waters—those whose bottom elevations are not

being altered—by treating any water that escapes

from the impoundments as a source subject to Sec-

tion 402. This is an eminently reasonable resolution

of any tension between Sections 301 and 306 on the

one hand and Section 404 on the other. Thus even if

this Court deems the Act ambiguous on the question

whether “fill” containing an effluent may be regu-

lated under Section 404, it should uphold the agen-

cies’ reasonable resolution of that question under

Chevron step two. See Chevron U.S.A. Inc. v. NRDC,

A467 U.S. 837, 842-845 (1984).

3. SEACC’s proposed approach to the regulation of

fill containing effluent materials is not only wrong as

a legal matter but also entirely unworkable. Tailings

and other related mining byproducts, such as the

“overburden” produced by surface mines, naturally

contain. any number of matcrials—from iron to

manganese to “suspended solids’—that are the

subject of effluent limitations. And when mines

store these solid byproducts, they must do so in

massive quantities—amounts that far exceed the

strict parts-per-million limitations on effluent dis-

charges that regulations applicable under Section

402 establish. ‘lhe upshot of SEACC’s proposed rule,

in short, is to effectively (1) outlaw tailings ponds

altogether and (2) render next to impossible the

placement of run-of-the-mill mining byproducts, such

as earth and rock, in water bodies. Such a rule, if

endorsed by this Court, could shutter a number of

American mines. After all, in many areas of the

country—particularly where much of the land is

dotted with wetlands and streams or crisscrossed

with ephemeral drainages deemed to be “waters of

the United States’—the only feasible way to store

mining materials is to place them in waters that the

Corps and EPA have traditionally considered juris-

dictional under the Clean Water Act.

ARGUMENT

I. MINES ‘HAVE LONG USED TAILINGS

PONDS TO DISPOSE OF NATURAL

MINING BYPRODUCTS, AND REGU-

LATORS HAVE LONG PERMITTED THIS

ACTIVITY UNDER SECTION 404.

A. Tailings And Related Mining Byprod-

ucts Are Nothing More Than Earth And

Rock.

Mining operations dislodge large amounts of rock

and earth, only a small percentage of which contain

ore.‘ The initial process of separating ore-containing

rock from the rest is called “beneficiation.” See EPA,

Technical Resource Document: Extraction and

Beneficiation of Ores and Minerals, EPA 530-R-94-

013, at 1-16 (Aug. 1994).5 After beneficiation is

complete, the ore-containing rock is shipped off for

further processing; the material left behind is known

as “tailings.” Tailings are, as the Ninth Circuit

acknowledged, nothing more than ground-up rock

and earth. Pet. App. 4a. And they frequently have

a muddy consistency because beneficiation often

involves combining the mined rock and earth with

water and chemicals in order to separate out ore-

bearing materials. See EPA, Development Document

4 With copper mines, for example, "[t]he amount of

marketable copper produced is small compared to the original

material mined. *** Several hundred metric tons of ore must

be handled for each metric ton of copper metal produced, thus

generating large waste quantities.” EPA, Copper Mining and

Production Wastes, available at http://www.epa.gov/

rpdweb00/tenorm/copper.html.

5 Available at www.epa.gov/osw/nonhaz/industrial/special/

mining/techdocs/gold/goldch1 .pdf.

for Final Effluent Limitations Guidelines and [ew

Source Performance Standards for the Ore Mining

and Dressing Point Source Category 18-26, EPA No.

440/1-82/061 (Nov. 1982) (“1982 Development Docu-

ment”).6 Some of that water remains mixed in the

tailings after the process is complete, leaving the

tailings in semi-solid or “slurry” form. See SER 295-

296 (Knight Piesold Consulting, Coeur Alaska, Inc.

Kensington Project: Slate Creek Lakes Tailings

Storage Facility Report on Water Quality Monitoring

8-9 (Feb. 2003)).?

B. American Mines Long Have Disposed Of

Tailings in Securely Impounded Tailings

Ponds.

The mining process thus leaves mine operators

with massive quantities of muddy, ground-up rock to

dispose of. And while some of these tailings can be

reinserted into the mine, many tons cannot. That is

because “rock taken from its natural state and

broken up naturally ‘swells,’ perhaps by as much as

15 to 25%.” Bragg v. West Virginia Coal Ass’n, 248

F.3d 275, 286 (4th Cir. 2001). Mines therefore rely

on storage facilities to hold the excess tailings.

The conventional storage method for at least the

last 30 years has been to build a “tailings pond.” A

tailings pond is made by (1) creating an embankment

or a containment dam by encircling or crossing an

existing body of water, and then (2) pumping the

tailings slurry into the impounded area for storage.

6 Available at http://nepis.epa.gov/EPA/htm)/Pubs/pubtitle

OAR. htm.

7 “SER” refers to the Supplemental Excerpts of Record filed

in the Court of Appeals.

10

The tailings-pond method has several advantages.

First, in some cases it avoids the creation of huge,

unsightly mountains of tailings—mounds that can

grow as high as 300 feet. Second (and as discussed

further infra at 19-22), it may be the only feasible

disposal technique in large portions of the country

where the landscape is heavily dotted with wetlands,

streams, or ephemeral drainages. And third, be-

cause the impoundment is securely walled off, it

ensures that the solids and minerals in the tailings

will not flow into a nearby water supply.

C. For At Least 30 Years, Federal Agencies

Have Applied Effluent Limitations Only

To Discharges From Tailings Ponds, Not

To Deposits Into Tailings Ponds.

For many years, the EPA and the Corps have con-

sistently taken a bifurcated approach to tailings

ponds. On the one hand, they have authorized

tailings deposits into the tailings ponds as “fill”

under Section 404. On the other hand, they have

applied Section 402 and its effluent limits’ to any

subsequent release of liquids from those tailings

ponds that might reach non-impounded waters.

This regulatory dividing line makes good sense.

Tailings are enormous in volume and are largely

made up of rock. They cannot be assimilated into

bodies of water like the microscopic effluents regu-

lated under Section 402 can. Tailings instead dis-

place water and create either dry land or a water

body of a different size and shape. They therefore

fall squarely into the regulatory definition of “fill

material” that triggers Section 404 permitting:

8 See 33 U.S.C. §§ 1311, 1316.

11

material that “has the effect of * * * [rjeplacing any

portion of a water of the United States with dry

land” or “[cJhanging the bottom elevation of any

portion of a water of the United States.” 33 C.F.R.

§ 323.2(e). And because they are largely solid, the

tailings cannot possibly meet Section 402’s associ-

ated effluent limitations, which typically cap mineral

and solids contents in water at some small number of

parts per million. See, eg., 40 C.F.R. § 440.104(a).

These limitations, in short, were never meant to

apply to tailings.

1. The EPA and the Corps have recognized for

more than 30 years that mine operators, so long as

they comply with Section 404, may cordon off small

bodies of water and use them to store wet tailings as

fill material in isolation from other water bodies.

Throughout that time, the EPA and the Corps have

likewise recognized that Section 402 and its associ-

ated effluent limitations do not apply to the dis-

charge of tailings into those isolated tailings ponds.

Rather, Section 402 comes into play only if there is a

discharge of pollutants from the tailings-storage

facility into downstream waters.

The agencies have consistently hewed to this regu-

latory division of labor. In 1985, the Corps issued a

Section 404 permit that authorized the Red Dog

mine in Alaska to place lead and zinc tailings into an

impoundment made from wetlands and a creek. See

SER 836, 978-979. Even though the tailings were

discharged as slurry, and even though there is an

effluent limitation for discharges from lead and zinc

mines, see 40 C.F.R. § 440.104, only a Section 404

permit was required for deposits into the tailings

pond. Discharges from the tailings pond to adjacent

12

non-impounded waters, however, were subject to

Section 402. See SER 836. Likewise, in 1994 the

Corps issued a Section 404 permit for the Fort Knox

gold mine’s tailings impoundment, established in a

creek and adjacent wetlands. Jd. at 837, 983-991.

This tailings pond also did not require a Section 402

permit. Id. at 837.9

2. This same regulatory approach to tailings ponds

continued through the more recent EPA and Corps

rulemaking. In the 2000 document proposing the

current definition of “fill material,” for instance, the

agencies discussed a common technique by which

excess coal-mining residue (“overburden”) is placed

in valley streams, with dammed “sedimentation

ponds” built downstream to catch and isolate any

runoff from the fill. See 65 Fed. Reg. 21,292, 21,295

(Apr. 20, 2000). The agencies wrote that the fill and

the sedimentation ponds “should be regulated under

CWA section 404” while any effluent subsequently

“discharged into waters of the U.S. from sedimenta-

tion ponds” would require Section 402 permits. Jd.

at 21,295-96 (emphasis added). The final regulations

confirm this approach in clear terms. The promul-

gating document stated that “EPA has never sought

to regulate fill material under effluent guidelines,”

® SEACC has suggested that from 1982 “until 2005, the

Corps never issued a single permit to discharge process waste-

water from a froth-flotation mill—or from any other source

subject to EPA effluent limitations—into navigable waters.”

SEACC BIO 1. Not so. As Coeur Alaska’s opening brief

explains, the Corps has time and again authorized Section 404

permits for mine tailings even when an EPA effluent limitation

existed that would have applied had the discharged material

not otherwise qualified as “fill material.” Coeur Alaska Br. 40-

43.

13

67 Fed. Reg. 31,129, 31,135 (May 9, 2002) (emphasis

added), and the regulations themselves define “dis-

charge of fill material” to include “placement of

overburden, slurry, or tailings or similar mining-

related materials.” 33 C.F.R. § 323.2(f); 40 C.F.R.

§ 232.2 (emphases added).

Finally, the Corps and EPA’s longtime approach

was never altered during the decade-long review of

the Kensington project. In 1994, the EPA wrote that

an earlier Coeur plan, which proposed building a

tailings impoundment in a creck, implicated Section

402 in only one respect: “whether or not * * * a

discharge from the impoundment would meet appli-

cable effluent limits.” See SER 446 (EPA, Kensing-

ton Gold Mine Project: Technical Assistance Report

for the U.S. Army Corps of Engineers Alaska District

v (Oct. 1994)) (emphasis added). In August 2004, the

EPA likewise wrote that certain Section 402 re-

quirements applied not to the tailings pond itself, but

only to “discharge from” the pond “into East Fork

Slate Creek.” See SER 427 (EPA, EPA’s Detailed

Comments on the Kensington Gold Project (Aug.

2004)) (emphasis added). In June 2005, the EPA

wrote that a Section 402 permit was required only

for “discharge from the tailings storage facility.” See

SER 536 (EPA, Record of Decision for Section 402

NPDES Permit 3 (June 28, 2005)) (emphasis added).

And in March 2006, the Corps noted that the dis-

charge of water to the downstream Slate Creek—but

not the discharge of wet tailings into the tailings

pond—was subject to a Section 402 permit. See SER

556 (Army Corps of Engineers, Record of Decision

and Permit Evaluation 2 (Mar. 29, 2006)). Thus,

until the Ninth Circuit’s decision in this case, both

regulators and the industry enjoyed a clear under-

14

standing of how the Clean Water Act applies to

tailings ponds: Section 404 applies to the discharge

of tailings into segregated impoundments, while

Section 402 applies to the discharge of pollutants or

impurities into downstream waters.

II. EVEN IF THE ACT WERE AMBIGUOUS ON

THE TREATMENT OF TAILINGS SLURRY,

THE AGENCIES’ RESOLUTION OF THE

ISSUE WOULD STILL BE EMINENTLY

REASONABLE.

Amici agree with petitioners and with the federal

respondents that the Clean Water Act’s plain lan-

guage is dispositive: The Act creates a bifurcated

permitting scheme and mandates that any material

falling within the definition of “fill” be regulated by

the Corps pursuant to a Section 404 permit. See

Coeur Alaska Br. 22-29; accord Brief for the Federal

Respondents Supporting Petitioners 13-14 (“SG

Brief’) (“The text, purpose, and structure of both the

Act and the 2002 fill rule * * * make clear that

discharges of ‘fill material’ are subject only to the

Section 404 permitting process.”). However, even if

this Court were to reject that interpretation, and

even if it were to further agree with SEACC that

Sections 301 and 306 mandate that all discharges—

even those constituting “fill’—meet effluent limits,

that would not support the result reached by the

Ninth Circuit below. Instead, it would simply create

a statutory ambiguity; the agencies entrusted to

fulfill Congress’s commands would be left to reconcile

conflicting statutory mandates. In that circumstance

the Court should defer to the expert agencies’ resolu-

tion of the issue—a resolution that is clear, that is of

long standing, and that reasonably balances the

15

concerns that led Congress to create two separate

permitting regimes in the first place.

1. SEACC argues that Sections 301(e) and 306(e)

of the Act apply even to “fill,” thus banning the

placement of much fill material in jurisdictional

waters unless that fill material can meet the Act’s

effluent limits—limits it could never possibly meet.

SEACC BIO 16-24. Petitioners and the Solicitor

General have cogently explained why this argument

is fallacious, see SG Brief 23-24 (explaining why the

word “and” in Section 30l(a), a key to SEACC’s

argument, cannot bear the weight SEACC would

assign to it); id. at 25 (debunking SEACC’s reliance

on Section 306(e)), and amici agree with their analy-

sis. But even if SEACC’s argument were correct, it

would not follow that the Ninth Circuit’s decision

below—resolving the case in SEACC’s favor at Chev-

ron step one—was the right one. Instead, one would

be left with an irreconcilable statutory conflict be-

tween Section 404, which authorizes the Corps to

issue permits for placement of any and all “fill,” and

Sections 301 and 306, which (as SEACC reads them)

would forbid the Corps from issuing Section 404

permits for placement of many kinds of fill. '°

This conflict is precisely the sort of statutory ambi-

guity that may be resolved by expert agencies—and

whose resolution thereby is entitled to judicial defer-

ence. As this Court explained just last year, when

one statutory command would “implicitly abrogate or

repeal” another and “[a]n agency cannot simultane-

ously obey the differing mandates” of the two, the

10 Even SEACC agrees that the Act does not require mines to

seek both Section 402 and Section 404 permits for placement of

fill. SEACC BIO 19.

16

court is “left with a fundamental ambiguity that is

not resolved by the statutory text.” National Ass'n of

Home Builders v. Defenders of Wildlife, 127 S. Ct.

2518, 2534 (2007). The Court therefore looked to the

relevant agencys authoritative interpretation;

finding that interpretation “reasonable in light of the

statute's text and the overall statutory scheme,” the

Court held that it was “entitled to deference under

Chevron.” Id. Indeed, this principle—that an

agency's resolution of warring statutory mandates is

analyzed under Chevron—is not open to serious

dispute. The courts have long approached statutory-

conflict questions in just this way. See, e.g., Mylan

Labs., Inc. v. Thompson, 389 F.3d 1272, 1281 (D.C.

Cir. 2004) (noting that “the FDA was called upon to

construe the statutes so as to resolve * * * two con-

flicts” and holding that “the FDA did so in a way that

reflects a permissible construction of the applicable

FDCA provisions and therefore satisfies Chevron”).

2. This well-established principle of agency law

should resolve the case in petitioners’ favor even if

the Court rejects petitioners’ plain-language argu-

ment and even if the Court further agrees with

SEACC that Sections 301(e) and 306(e) have some

bearing on the matter at hand. After all, here, as in

National Association of Home Builders, the relevant

agencies “cannot simultaneously obey the differing

mandates” of Section 404 on the one hand and

SEACC’s vision of Sections 301 and 306 on the other.

127 S. Ct. at 2534. Here, as in National Association

of Home Builders, the expert agencies have offered

an authoritative resolution of the purported statu-

tory conflict, deciding after notice and comment that

the term “fill” includes “slurry” and “tailings,” both of

which the agencies well knew often include effluents

17

otherwise governed by Section 402. 33 C.F.R.

§ 323.2(f); 40 C.F.R. § 232.2. And here, as in Na-

tional Association of Home Builders, the agencies’

interpretation is “reasonable in light ui the statute’s

text and the overall statutory scheme.” 127 S. Ct. at

2534. That is so because, as described supra at 8-10,

tailings and tailing slurry are largely solid dis-

charges that replace waters with massive quantities

of dry land and that are placed at “specified disposal

sites.” 33 U.S.C. § 1344(a). They therefore squarely

implicate the concern that animated Congress’s

decision to create a separate Section 404 permitting

scheme in the first place—namely, a concern for “the

loss of a portion of the water body itself.” 65 Fed.

Reg. 21,293 (Apr. 20, 2000). At the same time, the

agencies have made sure to hew to Congress’s goal of

cleaner jurisdictional waters by applying Section 402

to discharges from fill placements and therefore

ensuring that these placements do not affect down-

stream water bodies. See supra at 10-14. This is a

wholly sensible approach to any tensions between

Sections 301, 306, and 404.

3. SEACC’s apparent concern with this resolution

is that mines will bypass the EPA’s effluent-

discharge limits by mixing pollutants with a trace

amount of tailings, calling it “fill,” and indiscrimi-

nately releasing the combination into America’s

waterways. But this concern is chimerical; the

agencies’ approach to tailings is much more sensible

than that. For at least 30 years, the EPA and the

Corps have required that tailings be deposited in

“specified disposal sites.” 33 U.S.C. § 1344(a). In the

tailings context, these typically have been secure,

impounded tailings ponds that prevent the liquid

components of the deposit from commingling with

18

surrounding waters. The tailings ponds accept huge

quantities of crushed rock and dirt that indisputably

change the bottom elevation and thus fall comforta-

bly within the agencies’ definition of “fill material.”

See 33 C.F.R. § 323.2(e). The Ninth Circuit’s quest

for a limiting principle was therefore unnecessary.

Tailings ponds are well-regulated phenomena that

bear no resemblance to the environmentally apoca-

lyptic vision of companies dumping polluted water

into open rivers and lakes and calling it “fill” based

on some microscopic elevation change. Fill is never

disposed of in the manner SEACC envisions.

Moreover, it is important to recognize that Section

404 permits are not up for grabs for all comers. To

the contrary, Congress mandated that the Corps

must follow guidelines jointly promulgated by the

EPA and the Corps. See 33 U.S.C. § 1344(b). Known

as the 404(b)(1) Guidelines, these standards require

the Corps to determine (i) whether impacts of a

proposed discharge on waters of the United States

have been avoided to the maximum extent practica-

ble; (i) whether any remaining impacts have been

minimized; and (iii) whether the discharger should

compensate for unavoidable losses through restora-

tion, creation, enhancement, or preservation of

aquatic resources. See 40 C.F.R. §§ 230.5; 230.10(a),

(d); 230.70-77. As the EPA and the Corps have

recognized, the 404(b)(1) Guidelines ensure that

mining operations “avoid adverse impacts and offset

unavoidable adverse impacts.” Army Corps of Engi-

neers & EPA, Memorandum Of Agreement Concern-

ing the Determination of Mitigation Under the Clean

Water Act Section 404(b)(1) Guidelines (Feb. 7, 1990),

reprinted at 55 Fed. Reg. 9210, 9211 (Mar. 12, 1990).

SEACC’s implication that the agencies’ resolution of

19

this issue is unreasonable because it will allow mines

to make end-runs around the Act is therefore unwar-

ranted. If the Court deems the Act ambiguous, it

should defer to the agencies’ eminently reasonable

regulation laying out the dividing line between their

respective jurisdictions.

Ill THE NINTH CIRCUIT'S READING OF

THE ACT WOULD MAKE IT NEARLY

IMPOSSIBLE FOR MANY MINES TO

LEGALLY STORE THEIR TAILINGS.

Finally, it should be emphasized that this Court’s

decision is of great practical import to America’s

mines and the communities they serve (and employ).

That is because the Ninth Circuit’s ruling effectively

adopts by judicial fiat a categorical ban on an estab-

lished industry practice that—if outlawed—would

make it virtually impossible, or at least extraordinar-

ily burdensome, for some mines to legally dispose of

tailings and other excess rock and dirt from their

mining operations.

1. In large swaths of the nation where a significant

proportion of American mines are located—Alaska,

the mountain West, the Southwest, and portions of

the Midwest and Appalachia—the terrain surround-

ing ore deposits is covered with wetlands, streams, or

dry washes and arroyos. In Alaska, for example, 170

million acres, or 43 percent of the State, consist of

wetlands. See Corps, Alaska District Website.!!

Similarly, in the Appalachian Mountains—stretching

from Pennsylvania to Alabama and running through

Kentucky, Virginia, and West Virginia—the bottom

'! Available at http://www.poa.usace.army.mil/hm/default.

htm.

20

of mountain hollows are the only stable locations

that mines have to place excess rock. As a basic

matter of topology, these hollows naturally form

streams, which in turn are regulated as waters of the

United States under the Clean Water Act. See

generally Kentuckians, 317 F.3d 425. And in the

Southwest, the terrain is crisscrossed with a network

of small ephemeral washes and arroyos that may be

deemed to be waters of the United States. Although

the washes are dry during most of the year, they

carry runoff after storms. See David W. Love &

Allen Gellis, What Decision Makers Should Know

About Arroyos in New Mexico (2001).'2 Given the

mammoth scope of mining operations in this part of

the country, it is virtually impossible to construct a

tailings impoundment—even one that is essentially a

“dry stack”—without filling one or more of these

ephemeral streams or washes.

Needless to say, mining operations throughout the

country—from Alaska to Appalachia and many areas

in between—will often have “no practicable alterna-

tive” but to store tailings in impoundments created

by walling off an existing pond, stream, or other

wetland. JA 93a (Army Corps & EPA, Response to

Comments Document for Final Rule Amending the

EPA’s and Corps’ CWA § 404 Definitions of “Fill

Material” and “Discharge of Fill Material” (May 3,

2002)). Given the broad reach of the Act, which

extends not just to traditional navigable waters but

also perhaps to all wetlands and streams with such a

“significant nexus” to navigable waters as to affect

their “integrity,” Rapanos v. United States, 547 U.S.

12 Available at http://geoinfo.nmt.edu/geoscience/hazards/

arroyos. html.

21

715, 781 (2006) (Kennedy, J., concurring in the

judgment), most such wetlands and streams are

subject to federal permitting requirements.

2. The panel’s statutory construction renders tail-

ings ponds unpermittable in a wide range of situa-

tions. That is because the EPA has promulgated

effluent limitations for a vast number of substances

commonly present in the excess rock and dirt from

mines located throughout the country. For example,

process water from froth-flotation mills is governed

by effluent limitations not just for gold mining, but

also for the mining of copper, lead, zinc, silver, and

molybdenum. 40 C.F.R. § 440.104(b)(1). Likewise,

coal processing operations are governed by effluent

limitations capping the iron, manganese, and “total

suspended solids” that may be present in the dis-

charge. See id. § 434.22. Phosphate mines are

governed by an effluent limitation that caps the total

suspended solids that may be present in process

water from those operations. See id. § 436.182. And

the list goes on. See generally id. pts. 434, 440.

Under the panel’s reading of the Act, the tailings

produced by all such mines would be subject to

effluent limitations, even though they cannot possi-

bly meet those limitations. After all, a half-solid

tailings deposit will never meet a “total suspended

solids” limit designed for microscopic particles meas-

ured in parts per million.'*

The bottom line is that, under the Ninth Circuit's

approach, many mines could no longer use the long-

accepted tailings-pond technology. And because it is

topographically impossible or exorbitantly cost-

19 See 40 C.F.R. § 440.104(a).

22

prohibitive to avoid a “water[ ] of the United States”

in areas like Alaska, the mountain West, the South-

west, and portions of the Midwest and Appalachia, a

decision by this Court affirming the Ninth Circuit

might well make it impossible, or nearly so, for these

mines to legally dispose of their tailings. That result

would not only undermine 30 years of industry

practice; it would jeopardize a vital industry and the

economies of the States in which these mines play

such an important role. “Since prehistoric times,

mining has been integral and essential to man’s

existence.” Surface Mining 1 (Bruce A. Kennedy ed.,

2d ed. 1990). That is as true now as ever. In these

challenging economic times, and in an era when

mining for minerals critical to our economy and

national security is of paramount importance to so

many Americans, the Court should not endorse a

rule with such ruinous potential.

CONCLUSION

For the foregoing reasons, and those in petitioners’

briefs, the Court should reverse the decision below.

Respectfully submitted,

HAROLD P. QUINN, JR. CHRISTOPHER T’. HANDMAN*

KAREN BENNETT DOMINIC F’. PERELLA

NATIONAL MINING HOGAN & HARTSON L.L.P.

ASSOCIATION 555 Thirteenth St., N.W.

101 Constitution Ave., N.W. Washington, D.C. 20004

Washington, D.C. 20001 (202) 637-5719

(202) 463-2652

*Counsel of Record

Counsel for Amici Curiae

National Mining Association, et al.