More than three months after the state’s division of water approved plans for a revised wastewater discharge system at the Palmer Project, the Alaska Department of Environmental Conservation (DEC) commissioner vacated the division’s decision and remanded it for further review.

The remand, issued Sept. 6, followed a formal request from the Chilkat Indian Village of Klukwan (CIV) for a hearing about the division of water’s decision. CIV and conservation groups have raised concerns about a lack of public process around the state’s construction approval and have intensified calls for stricter permitting requirements for the Palmer Project — an exploratory mixed-metals mining operation about 40 miles northwest of Haines and 15 miles from Klukwan.

DEC commissioner Jason Brune denied CIV’s request for a hearing but remanded two questions for review by the division of water: first, whether the state was required to provide public notice and a public comment period for Constantine’s revised wastewater plan; and second, whether Constantine provided sufficient data to demonstrate that its wastewater would not enter Glacier Creek, a tributary of the Klehini River.

“I think (CIV) raised some interesting points,” Brune told the CVN. “We wanted to make sure there’s transparency there.”

Brune directed the division to make a final decision on the remanded issues by Oct. 6. He also directed the division to resolve by then a review of Constantine’s 2019 waste management permit, which the state remanded three years ago due to questions about how the discharge might interact with and impact the Glacier Creek watershed.

“Construction approval for the wastewater discharge system is not insignificant. The proposed wastewater treatment system allows the Palmer Project to excavate a 1.25-mile-long tunnel to access the ore body, and to discharge wastewater into the ground where the interconnected hydrology of upper Glacier Creek is constantly changing,” CIV vice president Jones Hotch Jr. wrote in a statement to the CVN. “Any contamination of surface waters flowing into the Klehini and Chilkat rivers could permanently harm our community by contaminating the fish and threatening our culture and way of life.”

Brune told the CVN he chose to remand the issues raised by CIV because they are “consistent” with the questions remanded in 2019. In his Sept. 6 decision, Brune said the current issues are best addressed by a remand because they require “the application of technical expertise.”

He also said the decisions stemming from further review would “improve the agency record.” And he told the CVN he wanted to ensure the division makes a “good decision.”

A 2020 U.S. Supreme Court ruling, in County of Maui v. Hawaii Wildlife Fund, mandated that discharges into surface water, either directly or as a “functional equivalent,” require a federal Clean Water Act permit  — a more stringent regulation than the state permit that Constantine has.

In April the company submitted a revised permit application for a new wastewater discharge system designed for underground mineral exploration that’s set to begin next summer. 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.

Dye introduced underground where Constantine planned to discharge waste in its 2019 permit application was detected at a sampling site in Glacier Creek during phase one of the study. No dye introduced at the new discharge location was detected in surface water during phase two of the study.

But a recent report commissioned by CIV concludes that the phase two results were 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 author of the report — California State University East Bay professor Jean Moran, who gave expert testimony in the Maui case — said the claim that the new discharge location would have less of an impact on Glacier Creek “is too strong considering the evidence presented.”

“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 wrote. “Increases in discharge with distance downstream, local groundwater gradients and stream temperature at the Palmer site provide evidence for the connection between groundwater and surface water. That connection is confirmed by the Phase 1 tracer study results.”

In an interview with the CVN, Moran said she has experience designing tracer studies and interpreting their results and that they are a good tool for gathering precise and accurate information. Still, she said “groundwater is kind of mysterious by its nature. We don’t get to see it. The connection between surface water and groundwater can be very challenging to figure out.”

Moran said Glacier Creek is a challenging place for a tracer study because there’s a lot of water in the watershed. It’s also hard to access and to conduct frequent sampling.

While Moran said she would assume ground-to-surface-water connection there, other factors, like dilution in the aquifer, could influence the impacts of discharging wastewater into the ground.

In her report, Moran identified two technical documents that were cited in Constantine’s revised permit application but absent in their submission to the state. Moran said the scope of her opinion was “limited” without the raw data and technical details in those documents.

Hotch said CIV requested the state to review those documents, which he said were “necessary to defend Constantine’s findings that the land application disposal system will not result in contamination of surface water.”

But DEC Wastewater Discharge Authorization Program manager Gene McCabe told the CVN that the state never received or reviewed the documents. McCabe said the division “bases its decisions on the conclusions, recommendations and findings the author of the report submits along with the professional credentials of the author(s). These two reports were not included in the submittal from Constantine, and the Program cannot provide them as we do not have copies.”

In his Sept. 6 decision, DEC commissioner Brune tasked the department with evaluating whether Moran’s report “is appropriate to consider” as it reviews whether Constantine’s proposed design changes “might result in an increase in emissions or discharges, or might cause other detrimental environmental impacts,” and whether they implicate the Maui ruling and necessitate a Clean Water Act permit.

“Chilkat Indian Village (Tlákw Aan-Klukwan) are the original stewards of Jilḵáat Aani Ḵa Héeni since time immemorial. Commissioning independent studies is exercising our sovereignty over these lands and waters,” Hotch said. “CIV is committed to verifying the scientific reports produced by the multinational extraction companies that own and operate the Palmer Project mine site.”

Constantine’s management team declined to comment on the commissioner’s remand and Moran’s report, saying in a written statement to the CVN that the company “is not in a position to comment on this matter while it is being reviewed and decided through DEC’s administrative process.”

Constantine confirmed that construction of the wastewater system had been halted “in conjunction with the vacated construction approval” but declined to comment on the construction timeline and to what extent the commissioner’s decision would impact Palmer Project operations.

The division of water didn’t provide public notice of its decision to approve Constantine’s wastewater plan because it classified the company’s submission as an application for a permit “amendment” rather than a new permit application. Constantine’s updated wastewater management plan includes adding an active water treatment plant, moving the wastewater discharge location, adding piping and repurposing two settling ponds. Per state regulations, the division’s decisions about permit amendments don’t require public notice, but permit applications do.

The state considered Constantine’s revisions a permit amendment “because there is no material risk that the proposed changes will increase discharges or otherwise cause increased environmental harm,” division of water director Randy Bates wrote to Earthjustice lawyer Jeremy Lieb on May 20. The division now, as part of the remand, will review that conclusion.

Constantine is in a joint venture with Japan-based Dowa Metals & Mining. The companies aim to begin underground mineral exploration next year above Glacier Creek. They plan to excavate a tunnel at the base of Saksaia Glacier in search of copper, gold, silver, zinc and barite.

Last month Constantine announced that it would be acquired this fall by American Pacific Mining, another junior exploration company. American Pacific is advancing the Madison copper-gold project in Montana under option to partner with Kennecott Exploration Company, a division of Rio Tinto, one of the world’s biggest mining corporations.