On June 24, the
Supreme Court ruled in a 6–3 decision that the discharge of 210,000 gallons of
mining waste did not violate the Clean Water Act (CWA). On the surface, the
decision sounds counterintuitive. After all, how could dumping a couple hundred
gallons of potentially toxic mining waste into a 23-acre lake outside Juneau,
Alaska, not impact water quality and thus run counter to the intent of the CWA?
After all, according the EPA’s own Web site, the CWA is “the cornerstone of surface water quality
protection in the United States.” (Emphasis added).
In the majority
opinion, Justice Anthony Kennedy explained the court’s decision as preordained
due to changes in the CWA at the hands of the Bush Administration, which in 2002
changed the original definition of “fill material” in the act in order to allow
for the discharge of contaminated mining waste. Justice Kennedy argued that the
court must “accord deference” to the Army Corps of Engineers’s interpretation of
the act, but Justice Ruth Bader Ginsburg noted in her dissent that equal
deference should be paid to the intent and purpose of the CWA itself which, she
argued, plainly states that waterways cannot be used for waste disposal.
The mining
company is promising to pretreat its wastewater prior to dumping, and as the
former editor of Onsite Water
Treatment (www.onsitewater.com),
I know that the careful and judicious treatment of wastewater can result in
almost pristine discharge. But onsite wastewater treatment cannot be taken
lightly, and without knowledge of exactly what system the mining company will
install, I cannot say with any authority whether its efforts will be successful
or if the lake will turn into a stew of toxic runoff unfit for any plant or
animal life.
So what do you
think? Should the court have stuck by the original intent of the CWA, or should
the mining company be given the benefit of the doubt? Can successful wastewater
treatment expand our notions of water quality protection and open up new
resources in the process, or will unmonitored and poorly executed treatment
systems doom our waterways?