Chilkat Valley News - Serving Haines and Klukwan, Alaska since 1966

The Alaska Division of Water again approved Constantine Mining’s wastewater discharge plan for underground mineral exploration at the Palmer Project, an exploratory mining operation upriver from Haines and Klukwan.

The division initially approved the plan last May but in response to concerns raised this summer by the Chilkat Indian Village of Klukwan (CIV), Alaska Department of Environmental Conservation (DEC) commissioner Jason Brune vacated approval last month and remanded it for further review.

In addition to re-approving construction of the wastewater system, the division determined last week that Constantine’s plan doesn’t require a more stringent permit under the federal Clean Water Act — a question that had been under remand since the company applied for a state waste management permit three years ago. Constantine has been issued a state permit to discharge wastewater from underground mineral exploration operations scheduled to begin next year.

The question for the Division of Water was whether Constantine’s plan to discharge wastewater into the ground near Glacier Creek — with potentially toxic levels of minerals and chemicals used for blasting — could result in the “functional equivalent” of discharging pollutants directly into the creek.

The U.S. Supreme Court ruled in 2020 — in County of Maui v. Hawaii Wildlife Fund — that discharging pollutants into the ground requires a permit under the Clean Water Act if those pollutants enter surface water in such a way that “the discharge reaches the same result through roughly similar means.”

In an “Updated Response to Comments” published Oct. 4, the Division of Water said wastewater discharge at the Palmer Project would not be the “functional equivalent” of direct discharge into surface waters.

The state considered seven factors that the Supreme Court said to use when evaluating whether an indirect discharge counts as a “functional equivalent,” including transit time from ground to surface water, distance traveled, dilution of the pollutant and the nature of the material through which the pollutant travels.

In particular, state engineers determined the subsurface materials and groundwater in the Glacier Creek watershed, along with Constantine’s plan to treat water before discharging it, would prevent its discharge from being functionally equivalent to discharging directly into the creek.

“Considering the seven factors of functional equivalency identified by the Supreme Court, dye study results, technical analysis conducted on the hydrology of the area, environmental conditions of the project area, system design and effluent treatment, and unlikeliness of pollutants of concern reaching WOTUS (Waters of the United States) in measurable concentrations, DEC concludes that a CWA 402 (Clean Water Act Section 402) permit is not required for the discharge approved under this permit,” the division said.

The state did not directly address the conclusions of a report commissioned by CIV and conducted by California State University East Bay professor Jean Moran, who gave expert testimony in the Maui case.

In April Constantine submitted a revised permit application for a new wastewater discharge system designed for underground mineral exploration. Along with the new plan, Constantine submitted results from dye tracer studies, which scientists contracted by Constantine interpreted to suggest the location of the new wastewater diffuser would have less of an impact on Glacier Creek.

In her report, Moran said that Constantine did not present enough data to conclude that the new discharge location would have less of an impact on Glacier Creek and that a lack of data leaves uncertainty about the extent of connection between the discharge location and the creek.

During the dye studies, dye introduced underground where Constantine planned to discharge waste in its original 2019 permit application was detected at a sampling site in Glacier Creek during phase 1 of the study. No dye introduced at the new discharge location was detected in surface water during phase 2 of the study.

Moran’s report raises questions about whether the state has enough information to draw relevant conclusions about the connection between the planned discharge location and the creek and to know to what degree pollutants would be diluted in the groundwater before they enter the stream.

The state, in its response to comments, relied on the data presented by Constantine to determine that Constantine’s discharge would not connect to surface waters in a way that would be subject to the Clean Water Act.

“The Phase 2 dye tracer results indicate that either the discharge from the LAD is not connected to the dye tracer monitoring locations or that the dye was substantially diluted below detection limits by groundwater,” the state wrote.

This statement diverges from Moran’s assertion that “of the possible reasons for non-detections of dye during Phase 2, the notion that discharge from the second location does not impact Glacier Creek and its tributaries is among the least likely.”

Moran said the difference in results between phases 1 and 2 was more likely explained by a difference in water levels between the two phases or insufficient sampling coverage than by a lack of connection between groundwater and surface water.

The state determined Constantine’s new discharge location is “better situated” than the old one “due to the greater travel distance before reaching” surface waters. This conclusion contrasts with Moran’s opinion that the claim that the new discharge location would have less of an impact on Glacier Creek “is too strong considering the evidence presented.”

The Division of Water did not respond to several questions about Moran’s report, including how the state concluded that Constantine’s discharge would not be a “functional equivalent” if Moran is correct in saying that the available data leaves uncertainty about the extent of connection between the discharge location and Glacier Creek.

“The Division’s evaluation included Dr. Moran’s report and determined the report was not in conflict with our remand decision,” wrote the state’s Wastewater Discharge Authorization Program Manager Gene McCabe in an email to the CVN.

Southeast Alaska Conservation Council community organizer Shannon Donahue said even though the division was directed by DEC commissioner Brune to consider Moran’s report, “they’re not really heeding what she said about the lack of data and the likely connectivity.”

“They’re arbitrarily constraining the analysis. They’re just looking at what Constantine says,” she said.

Donahue said she continues to be concerned by a lack of public process. The state initially approved construction of the new wastewater discharge system in May without notifying the public or requesting public comment, citing department regulations. Last month Brune remanded that decision for further review.

The question there hinges on whether Constantine had applied last April for a revised permit, which would require a public comment period, or a permit amendment, which wouldn’t.

Administrative code requires a new permit if an applicant proposes a change that “might result in an increase in emissions or discharges or might cause other detrimental environmental impacts.” The state classified Constantine’s submission as an application for a permit amendment because it determined the new plan wouldn’t cause additional negative environmental effects.

DEC administrative code says public notice or hearings “will not be provided” for permit amendment applications.

CIV, in an August request for an adjudicatory hearing, challenged the state’s decision, arguing that the new discharge plan could result in “other detrimental environmental impacts” because unlike the initial discharge system, the new one would cross Hangover Creek and would have a higher maximum outflow capacity.

The division last week concluded that the new plan approval “will not result in an increase in discharge or cause detrimental impacts” but “will reduce pollutant discharge and environmental harm.”

The state pointed to the active wastewater treatment included in Constantine’s updated plan. The state said active treatment, which would adjust PH levels and use flocculation to remove potentially toxic particles, would reduce the concentration of pollutants compared to the original plan, which used only settling ponds as treatment.

The state did not respond to a question about whether CIV was correct to assert that the new plan for the discharge system to cross Hangover Creek could potentially result in “other detrimental environmental impacts.”

“The Division asserts its decision is well supported in law, in fact and is protective of public health and the environment,” McCabe wrote to the CVN.

Earthjustice lawyer Erin Colón said she disagreed with the state’s interpretation of the Supreme Court’s ruling in Maui, but she declined to comment on specifics, citing her involvement with CIV and conservation groups on the issue. “We’re working with clients and partners to evaluate next steps,” Colón said.

A person directly and adversely affected by a DEC decision has 20 days to request an informal review and 30 days to request an adjudicatory hearing.

“Surface construction work remains on track to support underground exploration development in 2023,” Palmer Project manager Ernie Siemoneit said in a written statement to the CVN. “We will continue to follow State and Federal requirements to finalize the necessary permits and authorizations for underground exploration work.”

Constantine did not answer questions about Moran’s analysis of the data presented by the company.