Not Your Father’s Mine: The Rosemont Copper Mine and Dry Stack Tailings

Abstract

This Article concerns dry stack tailings of the proposed Rosemont Copper Mine to be located in the Santa Rita Mountains, about thirty miles southeast of Tucson, Arizona. Because the Rosemont Copper Mine proposal includes provisions for a dry stack tailings facility, this research explores the efficiency of dry stack tailings in general, including identifying mines that have employed dry stack tailings and information regarding the success or problems caused by dry stack tailings at these mines. In addition to examining issues involved in dry stack tailings, this Article also examines Coeur Alaska, Inc.’s successfully implemented Kensington Gold Mine, located about forty miles northwest of Juneau, Alaska, in the Tongass National Forest. In 1998, the EPA issued a Record of Decision for the Kensington Mine, approving a project plan that included a dry stack tailings facility. That project ultimately did not go forward. A second proposal, which was essentially a scaled-down version of the 1998 proposal, received approval in a 2004 EPA Record of Decision. However, the dry stack tailings facility had been eliminated from the second proposal, which now relied on a liquefied tailings storage facility. Liquefied tailings storage facilities, considered the industry norm, are cheaper than dry stack tailings facilities to manage and operate. However, with regard to environmental impacts, liquefied tailings facilities are much more precarious in the long term due to abiding toxicity once cleanup and restoration are undertaken, if and when such cleanup and restoration actually takes place. This Article asks, at what point in the process were the dry stack tailings eliminated from the Kensington plan? The Article then seeks to identify reasons why. The Kensington Gold Mine is significant in relation to the Rosemont Copper Mine because of precedent that was set in litigation brought by the Alaska Earthjustice office, which opposed the Kensington mine plan that included liquefied tailings. The focus of this litigation, which was ultimately decided by the U.S. Supreme Court in favor of Coeur *31 Alaska,1 was the permit provided to the Kensington mine that allowed the company to use Lower Slate Lake, a navigable waterway teeming with aquatic wildlife, as the liquefied tailings storage facility for the mine. The litigation focused on the Earthjustice legal team’s contention that the permit violated the Clean Water Act. While the Ninth Circuit held that the permit, allowing a navigable, live, aquatic body to be used as a tailings storage facility, was a violation of the Clean Water Act, the Supreme Court held in a six-to-three decision that it did not. The comparison of these two mines, one proposed, the other implemented, while by no means conclusive in terms of the prospects for the Rosemont mine, will hopefully elucidate some potential issues with respect to the ultimate direction the Rosemont mine may take if it goes forward.