Legislature(2007 - 2008)CAPITOL 120
05/09/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB232 | |
| HB172 | |
| HJR17 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| HJR 17 | |||
| + | HB 172 | TELECONFERENCED | |
| + | HB 232 | TELECONFERENCED | |
| + | TELECONFERENCED |
HJR 17 - KENSINGTON MINE APPEAL 2:28:47 PM CHAIR RAMRAS announced that the final order of business would be HOUSE JOINT RESOLUTION NO. 17, Encouraging Coeur Alaska, Inc., to pursue all legal options to resolve the issues presented in Southeast Alaska Conservation Council v. United States Army Corps of Engineers on behalf of itself and consistent with the state's efforts to enforce its rights as a state over its resources; and requesting the United States Court of Appeals for the Ninth Circuit to adjudicate those matters that come before the court in a fair and impartial manner so that the state's natural resources can be developed in a timely and lawful manner. [Before the committee was CSHJR 17(RES).] The committee took an at-ease from 2:28 p.m. to 2:32 p.m. 2:32:01 PM REPRESENTATIVE CRAIG JOHNSON, Alaska State Legislature, sponsor, explained that HJR 17 calls upon Coeur Alaska, Inc., to pursue all the legal options up to and including the U.S. Supreme Court. He said that the Kensington Gold Mine went through all the state and federal permitting processes. After a lawsuit was filed, the U.S. District Court for the District of Alaska ruled in favor of the mine, allowing it to proceed, but the 9th Circuit Court of Appeals is in the process of overturning that ruling. He offered his belief that this is not a mining issue, but a resource issue that is being held up in court. He encouraged everyone to protect the state's rights and the permitting process; since Alaska is a resource development state, this resolution encourages the owners of the Kensington mine to pursue the permits, in order to protect the right to develop Alaska's resources. REPRESENTATIVE JOHNSON said the House Resources Standing Committee removed some of the language in HJR 17 that was not friendly to the 9th Circuit Court of Appeals. He said he is not opposed to revisiting the language relating to the court that was omitted by the House Resources Standing Committee. He felt it was important to send a message that Alaska is a state that will stand up for its rights. He concluded by saying that this is "more about states rights than holes in the ground or anything else." He encouraged Coeur Alaska to pursue all legal options. REPRESENTATIVE SAMUELS referred to page 2, lines 10-12, of HJR 17, and asked if that was the only [language] that was taken out of CSHJR 17(RES). REPRESENTATIVE JOHNSON indicated that the language on page 2, lines 18-21, of HJR 17, and the names of the heads of the other states and territories that the 9th Circuit Court of Appeals has jurisdiction over were also removed. 2:36:31 PM MARK RORICK, Chair, Juneau Chapter, Sierra Club, said he was not going to argue against HJR 17. However, the Sierra Club is confident with the merits of the [decision by the 9th Circuit Court of Appeals with regard to the Kensington mine] and the Sierra Club is willing to argue those merits in any venue. He offered his belief that the [U. S. Supreme Court] would not accept the [Kensington mine] case, but if the court should, he is confident the Sierra Club's stance would prevail. He commented that he is not aware of any 9th Circuit Court of Appeals environmental decision regarding the Tongass National Forest that has been overturned since his involvement with the Sierra Club. He noted that [the 9th Circuit Court of Appeals] refused to hear a case on coal fired plants, even though the appeal was supported by the coal industry and the Bush Administration. MR. RORICK offered to examine some of the other Kensington mine issues. First, he addressed the assumption that mine waste disposal in Lower Slate Lake is environmentally sound, or preferable. He offered his belief that having tons of mine waste impounded in a natural drainage above Berners Bay, behind a dam subject to possible failure, in an earthquake zone, is not environmentally acceptable or preferable. He noted that there has been quite a bit of speculation regarding settlement and negotiations [between the plaintiffs and the Kensington mine owners]; however, to his knowledge, there are not any negotiations presently occurring. He added that suggestions have been presented to petition the 9th Circuit Court of Appeals to delay the decision [regarding the Kensington mine]. He reported that the Sierra Club has no basis to negotiate the allowable use of Lower Slate Lake as a mine waste storage facility. He emphasized that the Sierra Club is willing to have a continuing dialogue regarding other waste disposal methods, and the Sierra Club is assuming that any dialogue would be concurrent with the public process to analyze a new operating plan. He expressed his desire that the proposed disposal plan meet "legal muster" and is "the best possible legal option environmentally." MR. RORICK continued, addressing the issue of jobs at the Kensington mine. He offered his belief that this issue is a concern for everyone. He said he struggles daily with the possible impact and regularly questions his personal motives. He said he perceives that there is no evidence that Coeur Alaska will walk away from the Kensington mine project as a result of this [court decision]. More than half of the 400 jobs currently offered at the Kensington mine are construction jobs, and mine construction is now 80 percent complete. He said he believed the dry stack method of disposal will most likely create more construction and operating jobs. He summarized, expressing his sincere hope that should Coeur Alaska need to scale back during the new permitting process, this would have minimal impact on the work crew. 2:42:38 PM REPRESENTATIVE LYNN asked if both the local and the national chapters of the Sierra Club have taken a position opposite to HJR 17. MR. RORICK explained that the Sierra Club is a volunteer-run organization and nearly all of these special matters are initiated at the local chapter level. He continued, stating that it would be very unusual for those at the national level to override a local chapter. He emphasized that he is in continual contact with the national organization of the Sierra Club, and there would not be a national override in this case. REPRESENTATIVE LYNN asked whether the national chapter has commented on HJR 17. MR. RORICK reiterated that the national chapter is very much aware of the issue. He relayed that he has corresponded with the aide to the executive director of the Sierra Club, as well as Sierra Club representatives in Washington, DC, and they consider it to be an extremely important case, one they are not willing to back away from. REPRESENTATIVE LYNN asked if funding was raised locally or nationally. MR. RORICK emphasized that the Sierra Club chapters have very small budgets because the national budget is spread very thin. He explained that budget distribution is based on membership, and he surmised the Juneau chapter budget is less than an average Juneau household income. He offered his belief there is no outside money to prosecute this case. REPRESENTATIVE SAMUELS asked whether Mr. Rorick is a volunteer or a paid employee of the Sierra Club. MR. RORICK replied that he is a volunteer. 2:45:12 PM [Chair Ramras turned the gavel over to Vice Chair Dahlstrom.] ROB CADMUS, Organizer, Water Quality and Mining, Southeast Alaska Conservation Council (SEACC), explained that SEACC is a coalition of 17 volunteer citizen conservation groups extending from Yakutat to Ketchikan, whose mission is to protect the extraordinary natural resources of southeast Alaska while ensuring their wise and sustainable use. He pointed out that there are a lot of important issues at stake with the Kensington mine, including jobs and responsible use of Alaska's natural resources. He emphasized that the better people can understand all the issues, the better they can all make wise decisions regarding those issues. MR. CADMUS reported that SEACC has worked on the Kensington mine issue for more than 20 years, through two full permitting processes. He reviewed some of this history, noting that in 1998, Kensington received a fully permitted plan for a dry stack tailings facility; yet, Coeur Alaska decided not to take that option, and instead redesigned its plan, which is currently being discussed. He noted that SEACC has participated in each step of this permitting process. In 2002, SEACC warned both Coeur Alaska and the permitting agencies that the plan to use Lower Slate Lake as a tailings facility violated the [federal] Clean Water Act, putting Juneau's clean water at risk, and setting a dangerous precedent for both Alaska and the United States. MR. CADMUS explained that this lawsuit challenges a permit issued by the United States Army Corps of Engineers (USACE) to allow the daily discharge of about 210,000 gallons of chemically processed mine tailings into a lake. This discharge would kill all the fish and aquatic life in the lake. He reported that prior to the Kensington mine permit, the USACE had never issued a permit allowing the discharge of mine tailings into a U. S. lake, because in 1982, the Environmental Protection Agency (EPA) adopted specific regulations prohibiting such practices for gold mines. The EPA, after a nationwide study, concluded that the discharge of mine tailings into navigable waters is unnecessary, because there are feasible alternatives already being used. MR. CADMUS noted that the EPA determined that it was environmentally preferable to use a dry lands disposal method for the tailings at the Kensington mine. He offered his belief that Coeur Alaska chose to ignore these EPA determinations, and instead changed their tailings disposal plan, gambling that no one would challenge this new design. He continued, noting that the Kensington mine must now redesign a legal tailings facility that protects the waters of Berners Bay. In 1998, Coeur Alaska had all the necessary permits for a dry stack tailings facility, the same method used at both Greens Creek mine and Pogo mine. He affirmed that SEACC would prefer the dry stack method. [Vice Chair Dahlstrom returned the gavel to Chair Ramras.] MR. CADMUS, in summary, stated that the Alaska constitution requires development of the state's natural resources to the benefit of all Alaskans, and there is little or no value to the state and to the country if this is not done correctly at the Kensington mine. He said he believes cutting corners today will only create bigger problems in the future. He reminded the committee that the legacy of mining is not a good one; too many people and too many communities have been devastated by the toxicity of mine waste to take lightly what Coeur Alaska is trying to implement. He encouraged the committee to instead use HJR 17 to meet the Alaska constitutional mandate which states development be done for the benefit of all Alaskans, and this would include the protection of Alaska's clean water. He asked the committee to encourage Coeur Alaska to use all legal options, including a redesign of its tailings disposal, to fully protect Alaska's clean water. 2:50:04 PM REPRESENTATIVE SAMUELS asked whether SEACC would support the mine wholeheartedly if it had a dry stack tailings facility. MR. CADMUS replied that SEACC is willing to be involved in the planning of a dry stack tailings facility. He noted that SEACC would want to ensure that a dry stack tailings facility was done properly and located in the correct area. He reminded the committee that SEACC did not oppose Coeur's earlier proposal for a dry stack tailings facility. REPRESENTATIVE SAMUELS voiced his concern that there would also be a lawsuit against the dry stack tailings facility, causing a delay in the development of the Kensington mine. He inquired whether SEACC has broad opposition to this mine. MR. CADMUS responded that SEACC does not have broad opposition to the mine; the concern is for the protection of clean water. He offered that SEACC is willing to work with Coeur Alaska on options for tailings disposal, especially dry stacking. REPRESENTATIVE LYNN asked Mr. Cadmus if he or any member of SEACC were a professional mining engineer or geologist. MR. CADMUS replied that he is a water quality expert, and SEACC does consult with mining geophysicists to obtain expertise. REPRESENTATIVE GRUENBERG asked if [SEACC] presented expert testimony in the lawsuit with USACE. MR. CADMUS responded that SEACC staff and hired professional experts presented technical information and expert advice in their briefings throughout the permitting process. REPRESENTATIVE GRUENBERG asked Mr. Cadmus whether his support of dry tailings disposal and subsequent support of the mine, depends on the final plans. MR. CADMUS replied this is correct since, in principle, SEACC feels that dry stack tailings in an appropriate location are the "way to go." He again reminded the committee that SEACC did not oppose the dry stack tailings facility in the 1997 plan. REPRESENTATIVE SAMUELS asked if SEACC opposed anything in the 1997 plan. MR. CADMUS explained that SEACC did not oppose anything specific with the Kensington mine, the objection was to the environmental analysis regarding the cumulative effect to Berners Bay. He commented that the Juneau Access Project, the Kensington mine, the proposed hydro project, and the proposed ferry terminal were not analyzed together, instead each was analyzed separately. REPRESENTATIVE SAMUELS asked if litigation was used to slow down these projects. MR. CADMUS replied that it was not. REPRESENTATIVE SAMUELS asked Mr. Cadmus to define "water quality expert," and how his expertise differed from the other experts who reviewed the Kensington mine plan. MR. CADMUS responded that he could not claim an expertise. He relayed that the fundamental issue is that a mine has never before been allowed to dump its waste into a water body of the United States. 2:56:02 PM REPRESENTATIVE SAMUELS repeated his earlier request to define "water quality expert," and to explain Mr. Cadmus' qualifications versus those of the USACE water quality expert, who arrived at a different conclusion. REPRESENTATIVE GRUENBERG objected as Mr. Cadmus never testified he was an expert during the litigation. MR. CADMUS replied that he earned a masters degree in water body and wetland restoration. He indicated that his contact with other agency water quality experts affirmed his high regard for their expertise, and he felt he had no superior knowledge of the subject. REPRESENTATIVE SAMUELS remarked that he assumed a conflict existed since USACE issued a permit and SEACC contested the permit, so there must have been legitimate debate. 2:58:27 PM TOM BRICE, Juneau Business Agent, Laborers Local 942, offered some history of the Kensington mine. He relayed that Coeur Alaska awarded the construction contract for the Jualin mine site to Alaska Interstate Construction LLC (AIC) in late June, 2005, and by mid July 2005, Laborers Local 942 had employees working at the site. He said that there is an Alaska native shareholders preference in the labor contract with AIC. Since the initial contract, Laborers Local 942 has dispatched more than 60 people to that job, and more than 30 percent of these are Alaska Native. He observed that since the fall of 2005, there has been an ongoing debate about mine tailings. He offered his belief that Coeur Alaska "has gone to the table" to address these concerns, but the proffered agreement was not accepted by the "environmentalist board." He said he perceives that the mine tailings dispute places those mine labor jobs at risk. He conveyed these jobs pay a "living wage" which allow workers to make house and car payments, receive health benefits, and secure a strong retirement to support them when, after 15-20 years of "working construction and their bodies are ready to give up, [they've] got something to fall back on." He asked the committee to remember the impact of this lawsuit on "real working Alaskans ... so they can have the American Dream." MR. BRICE urged the committee's support of HJR 17. 3:01:26 PM HAYWARD COOLY, Laborers Local 942, speaking on behalf of other employees at [Kensington mine], offered his belief that [AIC] pays the highest into retirement, for jobs which will continue for the next 30 years with the passage of HJR 17. He stated that this proposed bill can directly affect the workers and their families, and indirectly affect the lives of "shop owners and real estate agents." He offered his support of HJR 17. 3:02:37 PM STEVE BORELL, Executive Director, Alaska Miners Association (AMA), added a few comments to the AMA's letter of support the committee members had in their packets. He offered his belief that Coeur Alaska has been upfront and straightforward with the community and the environmental groups during the more than 20 years of permitting for this project, and has made numerous concessions and changes to its plans to address issues. He also offered his belief that environmental organizations had previously commented against dry stack tailings, yet now the environmental organizations are speaking in favor of this method. Coeur Alaska did not (indisc.) this method when the price of gold went down, instead Coeur redesigned the project. He said he believes that one of the benefits of the redesign was the use of a "low productive lake" for a tailings impoundment which will ultimately increase the size of the lake and create a better fish habitat. MR. BORELL, reflecting on the concern for earthquakes in the area, reported that these types of dams are extremely strong and described the dam containment to be consolidated tailings under less than 30 feet of water. He compared the proposed dam to the local dams built for electricity production, noting that these dams have been functioning for more than 100 years. He allowed that Coeur Alaska, in response to concerns of chemical use, had committed to ship bulk concentrate from the mine rather than process on site. He asserted that this change will eliminate 24 "value added processing" jobs locally. MR. BORELL offered his belief that currently the real issue is that the 9th Circuit Court of Appeals "is out of touch." He charged that almost 90 percent of 9th Circuit Court of Appeals decisions have been overturned by the U.S. Supreme Court. He referred to the decision by the U.S. District Court of Appeals for the District of Alaska, Southeast Alaska Conservation Council v. United States Army Corps of Engineers, in which the judge reviewed the permits, concluding that there was compliance with the law. He expressed his desire that should the U.S. Supreme Court accept an appeal of Southeast Alaska Conservation Council, it would agree with the District Court. 3:08:45 PM REPRESENTATIVE LYNN asked for an explanation of dry stack tailings. MR. BORELL explained that dry stack tailings disposal puts the tailings material through a filter press, squeezes out as much water as possible, about 70 percent, and then places the concentrate into a lined landfill. When the tailings deposit is complete, a capping material is compacted on top of the tailings. He offered his opinion that the net effect to the area would be a significantly smaller and less costly alternative should Kensington mine be allowed to use Lower Slate Lake to deposit the tailings, instead of the dry stack method. He attempted to assure the committee that the tailings are not toxic because there is a very low level of chemical use in the floatation process [which is the process prior to the press process mentioned above]. He relayed that the water in the tailings impoundment does meet water quality standards, but the issue with Southeast Alaska Conservation Council is whether the tailings can be placed into a wetland. He commented that the USACE and the Environmental Protection Agency (EPA) came to an agreement regarding the initial placement of the tailings such that so long as the water does not run off into a river or the ocean, the USACE would be the regulators. He explained that water does not need to meet the water quality standards until it leaves the impoundment. REPRESENTATIVE SAMUELS asked for an explanation of the permitting process to help determine why so many different water quality experts came to such different conclusions. MR. BORELL offered that Mr. Fogels could better describe the process, however, he understood that Coeur Alaska presented a plan, the State of Alaska, the USACE, and the EPA reviewed the plan, then each side voiced concerns, adjusted designs, and adjusted requirements until all the parties agreed that this was a technically do-able process. He surmised that upon the conclusion of this process, all the parties involved with this discussion agreed that Lower Slate Lake was the best alternative. 3:15:07 PM EDMUND FOGELS, Acting Deputy Commissioner, Office of the Commissioner, Anchorage Office, Department of Natural Resources (DNR), in response to a question, said he doesn't consider himself to be a water quality expert but rather a mine permitting expert with a BA in Environmental Sciences, and he has worked for DNR on large mine projects for over 12 years, as well as general mining projects and issues for more than 20 years. In response to a request, he explained that because the Kensington mine permitting process was complicated, he will only speak to the last cycle. He explained that this was the third attempt to permit and get the Kensington mine going. He reported that Coeur Alaska first discussed the proposed project with state agencies and received the agencies feedback, including what permits were required. He conveyed that the most important aspect for a large mine project is the federal Environmental Impact Statement (EIS), because the mine would need key permits from the USACE and the EPA. He explained that the EIS is a large, thorough environmental analysis of the potential impacts of the mine, and this EIS took about three and a half years to complete. MR. FOGELS continued to explain that all the necessary state authorizations and processes could be "piggybacked" onto the EIS process. He summarized that upon completion of the EIS, including the reviews of the geochemistry of the tailings and the water quality results, the experts agreed the project was environmentally sound and the impacts acceptable. The state agencies then used that EIS as the basis for their decision making process. He repeated that the EIS was the key, and offered his belief that this EIS, undertaken by numerous experts, was a very thorough analysis of all the facets of the project, and that the agencies were very comfortable with their analyses that the tailings going into Lower Slate Creek Lake were "relatively benign," that the water quality coming off the lake would "meet clean water standards," and that the lake could be reclaimed in another generation to be at least as productive, if not more so, than it was prior to mining. 3:20:00 PM REPRESENTATIVE HOLMES asked if either the state or the attorney general's office had any role in this litigation. CAMERON LEONARD, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Fairbanks), Department of Law (DOL), responded that the state was not originally named as a defendant, but the state has since intervened as a defendant and has actively defended the federal permits in front of the U.S. District Court and the 9th Circuit Court of Appeals. REPRESENTATIVE HOLMES commented that each member has in their packet a resolution by the City and Borough of Juneau (CBJ) entitled "A Resolution Urging a Negotiated Settlement of the Kensington Gold Mine Litigation" which is a request by the city for a return to mediation. She asked for a response regarding why the state is encouraging further litigation, as opposed to encouraging mediation. She offered her belief that mediation could result in a faster, cheaper settlement. MR. LEONARD responded that he was instructed to not take a position on the resolution. He said he was aware of the CBJ resolution, but was not aware that any mediation or settlement discussions were currently taking place. REPRESENTATIVE ANDREA DOLL, Alaska State Legislature, said that the district as a whole favors the mine, wants to have the employment and economic benefit of the mine, and wants it to be successful. She emphasized that there is also a tremendous desire to protect Berners Bay and to build the mine in an "environmentally conscious way." She offered her belief that Representative Holmes made a good observation that it would be so advantageous for the parties to come together for mediation. She concluded that she had not taken sides, but that the need is to proceed in an "environmentally conscious" manner. CHAIR RAMRAS, after asking if there was any further testimony, closed public testimony on HJR 17. 3:24:18 PM CHAIR RAMRAS moved to adopt HJR 17 as the working document. REPRESENTATIVE HOLMES objected, relaying that CSHJR 17(RES) had removed sections of the proposed resolution that did not speak to the underlying intention of the resolution, which is to encourage the mining company to pursue further litigation. She offered her belief that the sections deleted from HJR 17 were inflammatory, did not actually help the resolution, and would be counterproductive if the real intent is to move the mine project forward. 3:25:59 PM A roll call vote was taken. Representatives Ramras, Samuels, Dahlstrom, and Lynn voted in favor of adopting HJR 17 as the working document. Representatives Holmes and Gruenberg voted against it. Therefore, HJR 17 was adopted by a vote of 4-2. 3:26:55 PM REPRESENTATIVE LYNN moved to report HJR 17 out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE HOLMES objected. She explained that it is her belief that there was not a full discussion on encouraging litigation rather than encouraging mediation, and that the discussion was not concluded. She emphasized that she also feels the language of HJR 17 contains unnecessary and inflammatory language which does not speak to the intent. 3:27:59 PM A roll call vote was taken. Representatives Ramras, Lynn, Samuels, and Dahlstrom voted in favor of reporting HJR 17 from committee. Representatives Gruenberg and Holmes voted against it. Therefore, HJR 17 was reported out of the House Judiciary Standing Committee by a vote of 4-2.
| Document Name | Date/Time | Subjects |
|---|