The Alaska Department of Environmental Conservation is remanding a Constantine Metal Resources waste management permit for additional review after a handful of Haines residents and local and out-of-state environmental groups contested the permit approval.
Amber LeBlanc, acting director of the department’s Division of Water, issued her decision on Sept. 9 — about a month after the challengers’ requested an informal review of the division’s decision to issue a wastewater discharge authorization permit.
The legal requirements for a water discharge permit are in dispute, and will depend on a federal court decision in a similar case in Hawaii.
Constantine, a mineral exploration company exploring at the Palmer Project, 35 miles north of Haines, plans to blast a one-mile tunnel to allow for year-round drilling and exploration. The company will need to store associated wastewater in settling ponds and then pump it back into the ground through perforated diffuser pipes at two sites. The state permit would allow that operation.
The permit requires that any wastewater discharge “shall not form a connection with waters of the U.S.” The company didn’t apply for a separate permit that would place limitations on what pollutants can be released from a “point source” discharge. The challengers argue such a permit is required.
Critics of the state wastewater permit cited a 2018 9th U.S. Circuit of Appeals case in Hawaii that ruled in favor of plaintiff Hawai’i Wildlife Fund. The fund argued that wastewater released into groundwater from a reclamation facility in Maui seeps into the ocean, which has hurt aquatic life. Therefore, the facility requires a National Pollutant Discharge Elimination System permit, required by the federal Clean Water Act, the plaintiff said, because water from the “point source” ultimately ends up in U.S. surface waters.
In a statement issued to the news media, Constantine vice president of community affairs, Liz Cornejo said: “Alaska has been operating under EPA guidance” that a pollutant discharge permit is not required for the mining company’s wastewater operation at this time. However, the company agrees with DEC’s decision “that we should not move forward with construction” until the issue is resolved by the U.S. Supreme Court.
It’s unclear if the case will go before the U.S. Supreme Court now that Maui County has settled with the plaintiff.
Clean Water Advocacy director Gershon Cohen cited the 9th Circuit Court Case with DEC after the permit was initially approved in April. He said the law is clear: “The Clean Water Act says if there’s a significant interface between ground water and surface water you have to treat it as a surface water discharge. The 9th Circuit has affirmed that and until the 9th Circuit or the U.S. Supreme Court determine otherwise, that’s the law and DEC needs to follow the law.”
DEC’s Wastewater Discharge Program Manager Gene McCabe said his office has been advised otherwise. “In general, barring case law, discharges to groundwater (does not require) APDES permits. Now there’s … case laws that have made rulings counter to that general ruling to the general federal rule. Our attorney has told us these are specific cases. They’re not to be interpreted broadly.”
Local critics say water pumped through the diffusers proposed by Constantine will seep into U.S. surface waters — nearby Waterfall and Glacier creeks — and should be considered a point-source discharge, thereby requiring an APDES permit.
Constantine noted a connection between ground and surface waters in a 2017 report. “Infiltration testing indicated a hydraulic connection from the upper Waterfall Creek test pit to the lower test pit over a distance of about 100 meters, as evidenced by seepage observed in the lower test pit during the infiltration test in the upper test pit,” a 2017 Constantine report says.
Based on the hydrology in the area, Southeast Conservation Council staff scientist Guy Archibald said that Constantine’s permit application was flawed. “We identified serious flaws in the permit. The flaws in the permit were the direct result of a flawed application by Constantine. My concern is if Constantine can’t write an appropriate application for a small exploration project, I’m concerned how they would handle doing a full-blown mine.”
In her decision, acting director Le Blanc wrote that “staff will evaluate the applicability and potential implications of the 9th Circuit Court … ruling with regard to the appropriate wastewater discharge permit strategy.”
She also said that DEC staff will address “a range of comments” submitted during the public comment period.
LeBlanc said DEC staff will require about three months to complete its review under the remand. Once its complete, LeBlanc has the option to uphold the current permit, with or without modification, or to revoke the permit.