The beginning of Skagway’s FOIA request to ADEC.
The municipality of Skagway has sent Freedom of Information Act requests to two state agencies, asking to see any correspondence from January 2015 to February 2016 related to the Skagway Ore Terminal. The borough wants more information regarding recent decisions about violations and regulations at the ore terminal.
The FOIA requests went to the Alaska Department of Environmental Conservation, or DEC, which has oversight of contamination at the ore terminal, and the Alaska Industrial Development and Export Authority, or AIDEA, which owns the ore terminal, located on municipality-owned land.
Lead contamination from former operations has plagued the tidelands around the ore basin for decades. Cleaning it up and renovating the port are major goals for Skagway leaders.
What prompted the FOIA requests? Skagway technical consultant Chad Gubala says it has to do with the institutional controls DEC establishes at contaminated sites such as the ore terminal. Institutional controls are conditions the state puts in place when contaminants remain after a site goes through some clean-up. That happened at the ore terminal uplands in 1989.
DEC is now planning to ‘formalize’ those controls. Sally Schlichting is the unit manager with the DEC Contaminated Sites Program. She says, the controls put in place around the 1989 uplands clean-up were never formalized, and DEC wants to remedy that.
“Since the site is in operation and there’s people there actively running a facility, it’s a good time to formalize those and make sure all the stakeholders are aware of those institutional controls and reading from the same page, so to speak,” Schlichting said.
But Gubala says the formalized controls seem like a ‘reinterpretation’ of the historical restrictions.
“The original institutional control appear to be very clear cut with regards to there being an impermeable cap over the entire contaminated area,” Gubala said. “The new institutional controls seem to redefine what that area is and appear to make allowance for other types of discharges.”
Schlichting says the controls are a combination of the regulations that have been in place for years and standard conditions DEC implements for all contaminated sites.
But the municipality chose to send out FOIA requests, Gubala says, to see if there is something else behind DEC’s move to formalize controls. He wonders if it has anything to do with recent transgressions on the part of the ore terminal operator. Last spring, DEC inspector Bruce Wanstall cited Mineral Services Inc. with a notice of violation for unpermitted water discharges into infiltration galleries. He also cited MSI with a notice of contamination.
Borough Manager Scott Hahn says the municipality wants to learn more about those decisions and whether they influenced the finalized controls.
“Basically the [institutional controls] are something you need for site like this, but the [institutional controls] decision was probably greatly affected by the NOC and NOV (notice of contamination and notice of violation) activity they took last year,” Hahn said.
Schlichting rejected that assertion. She says, the notice of violation had no impact on DEC formalizing the controls. And she says the notice of contamination was ‘a mistake’ that DEC rescinded.
“It was a misunderstanding and it’s not how the program operates,” Schlichting said. “We don’t issue notices of contamination. So it didn’t follow protocol.”
“That’s the first time I’ve heard that,” said Hahn. “I don’t think it was a mistake, it can be rescinded I suppose but you can’t change the facts of what the regulator observed.”
Another complaint from the municipality has to do with lack of local input. Gubala says the landowner should have been consulted before DEC sent out the finalized controls. But Schlichting says the controls are final. She says the municipality had input back in 1989 when the original regulations were put in place.
Schlichting had no comment on the FOIA requests, which were sent Feb. 29.
Hahn hopes the requests will answer the municipality’s questions about DEC’s recent actions.
So far, he has received no response from DEC or AIDEA. In the meantime, the municipality has not signed off on the institutional controls, and the borough has asked for their finalization to be delayed until they can get more information.
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