An administrative court decision concerning the wastewater disposal plan for the proposed Palmer Project near Haines is being appealed by both sides. The case will next be heard in state Superior Court.
Constantine Metals is exploring the potential for a hard-rock mine at the project, in the upper Chilkat watershed. As part of the next phase of operations, the company wants to dig a mile-long tunnel to serve as access for its core sampling effort.
Digging the exploratory tunnel would itself have a sizable environmental impact: the company estimates it would release hundreds of thousands of gallons of wastewater a day in the ground above Glacier Creek. That water could contain elevated levels of copper, manganese, zinc, selenium and nitrates, according to Constantine’s data.
The Alaska Department of Environmental Conservation issued a waste management permit to the company, allowing the wastewater from the tunnel to be discharged into the ground through perforated pipes eight feet deep.
The Chilkat Indian Village, which is downstream from the Palmer Project, joined a coalition of environmental groups in appealing the issuance of that permit. The plaintiffs said the public process was inadequate, and a federal wastewater permit was needed. They also claimed malfunction risks posed by avalanches, landslides or freezing weren’t adequately taken into account, and the method used to assess the baseline water quality levels in Glacier Creek was flawed and would allow the company to discharge pollutants into the watershed.
This summer, then-DEC Commissioner Jason Brune ruled to uphold the permit, but conceded on that fourth point.
Erin Colon, an attorney with the law firm EarthJustice representing the village and the environmental groups, explained what that concession means.
“In his August decision, Commissioner Brune agreed that the Division of Water had failed to comply with law, by issuing a permit that would allow the water pollution levels to grow worse than what Alaska water quality standards are,” Colon said.
The ruling stated the DEC will have to take public input into consideration.
Environmentalists say natural contaminant levels in Glacier Creek vary seasonally, spiking in the spring during snowmelt. In the original permit, the DEC set those spiked levels as year-round allowable concentrations. The environmental groups protested that this would allow large amounts of pollutants to be released into the stream. The plaintiffs welcomed the court’s agreement on this point.
But Constantine did not, and the company has filed an appeal in state Superior Court to keep those higher limits in place.
The village and the environmental groups are opposing this appeal.
CIV vice president Jones Hotch Jr. said the company’s move shows a desire to avoid the public process, and a disregard for water quality in the Chilkat valley. He said much is at stake.
“We could lose a big part of our traditional way of life — our subsistence, our fishing for our salmon, Hotch said. It’s a very vital part of our food.”
At the same time, some of the groups are filing their own appeal to the administrative court’s ruling. They say the public process was lacking, and that a federal permit was needed.
Colon said the appeals and cross appeals will all likely be heard at the same time.
“It’s somewhat up to the discretion of the court how to manage the case, but the appeal and cross-appeal are closely related,” she said.
Colon said the legal filing, followed by written and then oral arguments, could take up to a year and a half. She said as things stand, Constantine can move forward with construction but is not allowed to discharge any water.
Colon said the legal situation may appear convoluted, but the issue is straightforward.
“The broader, bigger picture, this case is about how well Glacier Creek and the surrounding groundwater should be protected from the wastewater discharge from Constantine’s mineral exploration tunnel,” she said. “And also, relatedly, how transparent DEC’s decision making about that should be.”
Constantine did not respond to a request for comment.
Correction: An earlier version of this story inaccurately stated that DEC will have to do more tests of the natural contaminant levels in Glacier Creek before Constantine Metals is allowed to discharge any wastewater. The ruling mandates only the agency takes public input into consideration.