Understanding Judge Sullivan's Recommendation for Donlin
The short version: In May 2021, Judge Sullivan recommended that the Alaska Department of Environmental Conservation (ADEC) rescind a certificate that Donlin needs to develop the mine.
What did the Judge say? Under the Clean Water Act, Donlin must receive a Certification of Reasonable Assurance that the proposed project will comply with the state water quality standards. Reasonable certainty does not require a guarantee.
In 2018, ADEC issued a Certification for Donlin. Since then, the Orutsararmiut Native Council (ONC) has challenged the certification and in 2020 asked for an adjudicatory hearing. Judge Sullivan completed the hearing and in his decision stated that ADEC's analysis of the impact of Donlin is flawed and that there cannot be reasonable assurance that the Donlin Gold Mine project will comply with the state's water quality standards.
In his decision, Judge Sullivan states that:
Mercury Levels: The Mine will contribute to higher levels of mercury in the area. Since the neighboring streams around the mine contain high level of mercury, which sometimes already exceed the criteria of 12ng/L, any increase in mercury will likely result in violations of the water quality standard.
Temperature: The Mine will result in increased temperatures in the nearby streams. Increased temperatures will result from the use of dewatering wells will reduce the water table and decrease stream flow and the reduction of vegetation and riparian buffers.
Salmon Habitat: The Mine will decrease the water flow in certain segments of Crooked Creek, which will leave essential fish habitat where salmon spawn dry during winter months. Because salmon will be significantly and detrimentally impacted, there cannot be an assurance that existing uses will be protected.
According to Judge Sullivan, ADEC used "wrong tools" in its analysis, which resulted in different conclusions. Specifically, the judge's decision states that:
1. Regulations on Mercury standards require the use of four-day averages from individual locations that will be impacted by the mine. Instead, ADEC used long-term averages to make its assessment.
2. ADEC included watershed sections not impacted by the mine for its analysis of temperature and impact on salmon habitat. The averages "mask" the impacts in areas near the mine.
What next? Later in May, the ADEC commissioner rejected Judge Sullivan's recommendation and findings and re-approved the certification after finding that substantial evidence supported ADEC's decision to issue the certificate. For more see our post about Donlin's permitting timeline.
