Klukwan, conservation groups appeal mining wastewater decision
November 10, 2022
The Chilkat Indian Village of Klukwan (CIV) and several conservation groups have appealed a recent state decision to approve a revised wastewater discharge plan at the Palmer Project, an exploratory mining operation northwest of Haines and Klukwan.
In the appeal request, lawyers with Earthjustice argued that Constantine Mining, which operates the Palmer Project, needs a permit under the federal Clean Water Act, not only a state permit, to discharge wastewater in the Glacier Creek watershed.
Constantine obtained a state Waste Management Permit in 2019, but after environmental groups and a local resident argued that a stricter Clean Water Act permit was necessary, state water division officials remanded the issue for further review. Last month the Division of Water concluded that Constantine’s plan is not subject to the Clean Water Act because, officials said, it involves discharging wastewater into the ground in a way that’s not a “functional equivalent” to discharging directly into surface waters. The U.S. Supreme Court ruled in 2020 that a “functional equivalent” discharge requires a federal permit.
Constantine amended its original discharge plan last spring, proposing to add active treatment and dispose of wastewater in a different location, where scientists contracted by the company said discharge would cause less of an impact — a conclusion that a hydrogeologist commissioned by CIV disputed in a report submitted to the state. The Division of Water approved Constantine’s new plan, but Alaska Department of Environmental Conservation (DEC) commissioner Jason Brune vacated that approval in September after CIV raised concerns about a lack of public notice and potential environmental impacts.
Upon further review, the division again approved the company’s plan in October, saying the new discharge system would pollute less than the original design and that the state didn’t give public notice of the approval per department regulations.
Now CIV and a slew of organizations including Lynn Canal Conservation, Takshanuk Watershed Council and Southeast Alaska Conservation Council are appealing the division’s October decision and requesting a hearing.
“We would like all governments to work together to protect Jilḵáat Aani Ḵa Héeni (Chilkat River watershed) for safety and health of all people. This is not an unreasonable request,” CIV Vice President Jones P. Hotch Jr. said in a press release.
In a 30-page filing submitted last week, they contested four aspects of the state’s approval, including whether the Clean Water Act applies, whether the Division of Water should have given public notice of its approval last spring and whether the state has followed rules on water quality standards and whether it has properly addressed environmental concerns about Constantine’s plan.
Earthjustice lawyer Erin Colón said part of the request is for DEC to vacate Constantine’s current state permit and to hold a public comment period for the company’s revised wastewater discharge plan.
According to Colón, DEC conditionally approved the request for a hearing but the final decision will be up to the department’s Officer of Administrative Hearings and must be made by mid-December.
If a hearing is granted, an administrative judge will hear cases from both sides and will make a recommendation to the commissioner for final say. At that point, affected parties could file a lawsuit and take the issue to court.
Investors in Constantine Metal Resources, the company that operates the Palmer Project as the minority partner in a joint venture with Japan-based Dowa Metals & Mining, two weeks ago approved the company’s acquisition by another junior exploration company, American Pacific Mining. Constantine’s chief executive Garfield MacVeigh said in an August paid commentary in the CVN that the company’s leadership team would stay intact and would continue working with local contractors.