By Jenna Kunze
The Alaska Department of Environmental Conservation’s forthcoming decision to approve or revoke Constantine Metal Resources’ waste management permit is delayed, in part because of a U.S. Supreme Court verdict that has the potential to change federal permitting law.
DEC will also consider the results of a tracer dye test it requested Constantine to conduct in late October to evaluate potential seepage between a proposed waste water discharge location and the nearby surface waters, according to spokesperson Laura Achee.
The permit issued in July by the Division of Water remains in effect during the remand, Achee said. She added: “The company has informed DEC that they do not expect to need to discharge under the permit until the next summer’s construction season.
Earlier this year, Constantine— a Canadian mineral exploration company operating 35 miles north of Haines— sought state agency permits to blast a one-mile-long tunnel into the mountainside for year-round drilling and exploration. The company plans to store the wastewater from the tunnel in settling ponds, then eventually pump it underground. A state waste management permit would regulate that.
In July, DEC approved the permit, but environmentalists requested an informal review of the decision, primarily on the basis that the company did not prove that wastewater discharged underground won’t connect to a nearby tributary of the Chilkat River. If pollutants seep into navigable waterways, Constantine is required to apply for a more stringent federal permit that limits pollutants discharged into navigable watersheds under the Clean Water Act
At the U.S. Supreme Court last week, justices heard a case that has the potential to set a new precedent: What constitutes a discharge point, and does the Clean Water Act apply when pollutants meet U.S. waters indirectly?
In Hawaii, Maui County was injecting treated sewage underground into wells, where the wastewater later mixed with groundwater and seeped into the Pacific Ocean. Environmentalists sued the county, saying the Clean Water Act should regulate the discharges. The county argued that since the groundwater delivered pollutants into the ocean, not the wells, the Clean Water Act didn’t apply.
During oral arguments on Nov. 6, Supreme Court justices grappled with analogies.
Justice Stephen Breyer said that treating land as the conveyance into the ocean provided an “absolute road map” for polluters to skirt regulations. “What happens if you just take the pipe and you decide what we’ll do is going to end the pipe 35 feet from the river or from the ocean? You know perfectly well it’ll drip down around it (and) will be carried out into the navigable water,” Breyer said.
Justice Samuel Alito spoke about the implications for homeowners with faulty septic tanks.
“And then it turns out some things are leaching out of the septic tank 10 years later and making its way into waters of the United States, that they would be violating the Clean Water Act for lack of a permit,” he said.
David Henkin, a lawyer for environmental groups suing the county, likened the groundwater conveyance to a car carrying groceries.
“When you buy groceries, you say they came from the store, not from your car, even though that’s the last place they were before they entered your house,” he said. “Likewise, the millions of gallons of treated sewage entering the Pacific Ocean off West Maui every day come from petitioner’s wells under any understanding of the term.”
The 9th U.S. Circuit Court of Appeals sided with environmentalists, which held that the pollutants from the “point source” ultimately ended up in the U.S. surface waters. The Maui County Council voted to settle the lawsuit brought by environmental groups. But in October, Maui Mayor Michael Victorino rejected settling the lawsuit, writing in a statement that “the best interests of our residents, our visitors, and the environment will be best served by having this case settled by the Supreme Court.”
In September, DEC remanded Constantine’s waste management permit for further evaluation. Division of Water acting director Amber LaBlanc said in a statement, “Staff will evaluate the applicability and potential implications of the 9th Circuit Court … ruling with regard to the appropriate wastewater discharge permit strategy.” That decision — to uphold, modify, or revoke the current permit — was originally slated for release in December, six months before the deadline for the Supreme Court to release its decision. This week, the agency said there is no time limit on its decision.
Alaska Clean Water Advocacy Director Gershon Cohen, who originally raised the issue of precedent set by the 9th Circuit Court of Appeals case in April during the review process, said DEC and Constantine have a choice to make.
“If Constantine and DEC decide to again pursue the groundwater discharge permit and it is reissued, given the 9th Circuit decision on essentially the same issue, it’s likely the permit will be struck down,” he said. “A (Supreme Court) decision reaffirming or overruling the 9th Circuit will not be public until late spring or early summer, so Constantine will be going into their 2020 building season without the permit authority to build the infrastructure described in their plan of operations. Their other option is to apply for a surface water discharge permit now, as required by law.”
Liz Cornejo, Constantine spokesperson, said the company will continue to cooperate with DEC during the permit review. “The permit remains valid during this review period and we have initiated the required monitoring program in advance of any construction work,” she said. “Construction of the underground ramp (tunnel) will not begin and no water discharge will occur until we have DEC support and approval.”
Cornejo did not comment on the Supreme Court case or its potential impacts on the DEC review “out of respect for the regulatory and judicial system.”