Legislature(2011 - 2012)BELTZ 105 (TSBldg)
03/02/2012 01:30 PM Senate JUDICIARY
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| Overview: Bonding Requirements for Major Mine Projects | |
| Adjourn |
* first hearing in first committee of referral
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 2, 2012
1:35 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator John Coghill
MEMBERS ABSENT
Senator Joe Paskvan
Senator Lesil McGuire
COMMITTEE CALENDAR
OVERVIEW: BONDING REQUIREMENTS FOR MAJOR MINE PROJECTS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
MARGARET PALMER, Ph.D.
Professor of Entomology and Biology
University of Maryland and
Director, National Science Foundation
National Socio-Environmental Synthesis Center
POSITION STATEMENT: Provided scientific evidence that the
impacts of the proposed Chuitna mining project will be
irreversible and that reclamation to support future salmon
populations is not technologically feasible.
LANCE TRASKY, Owner
Lance Trasky and Associates
Anchorage, AK
POSITION STATEMENT: Testified that he found no scientific
evidence to support the contention that restoration of a strip
mined salmon producing drainage such as the Chuitna is feasible.
DAVID CHAMBERS, Ph.D., P. Geophysics, President
Center for Science in Public Participation (CSP2)
Bozeman, MT
POSITION STATEMENT: Testified on the proposed Chuitna project
and described why restoration of the original hydrologic regime
at a mine site is not typically attempted.
TOM CRAFFORD, Director
Office of Project Management and Permitting
Department of Natural Resources (DNR)
Anchorage, AK
POSITION STATEMENT: Provided an overview of the bonding
requirements for major mine projects along with more specific
information related to the proposed Chuitna mining project.
RUSS KIRKHAM, Geologist
Division of Mining, Land and Water
Department of Natural Resources (DNR)
Anchorage, AK
POSITION STATEMENT: Provided information related to bonding
requirements for major mine projects and specifically the
proposed Chuitna mining project.
ACTION NARRATIVE
1:35:07 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:35 p.m. Present at the call to
order were Senators Coghill, Wielechowski and Chair French.
^Overview: Bonding Requirements for Major Mine Projects
OVERVIEW: BONDING REQUIREMENTS FOR MAJOR MINE PROJECTS
1:35:20 PM
CHAIR FRENCH announced the business before the committee would
be to explore the legal question of how to bond a mining project
that goes through a salmon stream. He explained that he wrote to
Commissioner Dan Sullivan, on January 20, 2011, to ask this
question after the proposed Chuitna coal strip mine came to his
attention and he found that the Alaska Surface Coal Mining
Control and Reclamation Act had a bonding requirement. He
paraphrased the following letter:
PacRim Coal has applied to the Department of Natural
Resources for a permit to mine coal in the Chuitna
watershed. I am writing to you out of concern
regarding one aspect of the permitting process and
that is the setting of a reclamation bond under AS
27.21.160 of the Alaska Surface Coal Mining Control
and Reclamation Act (ASCMCRA).
PacRim's plan for the mine's development would remove
11 miles of Middle Creek, a major tributary of the
Chuitna River and a stream identified by the
Department of Fish and Game as "significant to
salmon." By 'remove' I mean just that: the plan calls
for diverting all of the water out of the streambed,
the removal of more than 300 feet of overburden and
then mining the exposed coal seams.
While there is currently no law on the books that
prohibits mining through a stream - in contrast to the
logging rules which require buffers around salmon
streams - the reclamation bond statute stands as a
significant hurdle for this project to clear. The bond
is in place to make certain that PacRim fulfills its
obligation to complete its reclamation plan. The
difficult issue you face is setting the amount of the
reclamation bond given the absence of any precedent in
Alaska for permitting mining in active salmon streams.
There is some legal precedent, however, on this
particular question. Trustees of Alaska v. Gorsuch,
835 P.2d 1239 (1992) involved several disputes
surrounding a proposal to mine coal in the Chuitna
area by the Diamond Shamrock-Chuitna Coal Joint
Venture, a company related to PacRim. The Trustees
case in part took up the question of whether DNR, in
setting the amount of the reclamation bond, may assume
compliance with the requirements of the reclamation
plan. Drawing from earlier cases, the court concluded
that ASCMCRA requires DNR to base the bond amount on
the assumption that the applicant will violate its
permit terms. 835 P.2d at 1248. This assumption takes
on a greater significance given the difficulty of
PacRim's restoration obligations.
Indeed, many scientists are skeptical of PacRim's
plans. For example, Professor Palmer of the University
of Maryland in her "Report on Chuitna Coal Project of
PacRim Coal" points out that the company will be
attempting to "create a stream after all the natural
flow paths and landscape topography have been
destroyed. This is not even in the realm of anything
that has been scientifically tested and is certainly
not within the realm of what is considered ecological
restoration." The report also notes that "Even with
far less damage to a site, stream restoration projects
that involve channel modification have an extremely
high failure rate."
I hope it is clear from the foregoing that in my view
the project as proposed should not be permitted.
Should you come to a different conclusion, please keep
these considerations in mind as you weigh the amount
of the reclamation bond.
CHAIR FRENCH said he's had an enduring interest in the question
and the committee has the opportunity to hear from scientists
who can offer legislators and the administration some guidance
on the matter.
1:38:22 PM
MARGARET PALMER, Ph.D., Professor of Entomology and Biology,
University of Maryland, and Director, National Science
Foundation, National Socio-Environmental Synthesis Center, said
she was an expert on stream restoration and had experience
dealing with the impacts of surface mining on streams. She
reviewed the proposed mining project in the Chuitna River
watershed and said she would describe irrefutable scientific
evidence that impacts of the project will be irreversible and
that reclamation to support future salmon runs was not
technologically feasible.
DR. PALMER said she would focus on three areas. First, the
examples of reclamation and restoration projects that have been
cited do not demonstrate that restoration at Chuitna is
possible. Second, the project proposes restoration and
reclamation of the Chuitna site to support salmon, but it would
actually require creation of streams and rivers, which is
outside the realm of credible science. Third, the extensive
scientific documentation of failed restoration projects in
watersheds far less impacted than what is proposed for the
Chuitna watershed demonstrate the near zero likelihood of
success for the Chuitna reclamation and restoration.
1:43:20 PM
CHAIR FRENCH asked if she was aware of any project that removed
a stream and created it again after a number of years.
DR. PALMER replied there were no successful examples. She
relayed that she led the project looking at 38,000 river and
stream restorations in the U.S. and not one of those is similar
in scope to what is proposed for the Chuitna watershed. The
Chuitna proposal falls outside the realm of what is
scientifically considered restoration.
SENATOR WIELECHOWSKI asked what PacRim planned to do with the
water in the stream.
DR. PALMER said another scientist will talk about the
hydrological flow paths, but that is part of the problem because
digging through the stream to beneath bedrock will destroy the
flow paths. To begin to answer the question of what will happen
to the water, it will be necessary to determine the current
structure of the groundwater flow paths. Even then it isn't
clear what will happen afterward.
SENATOR WIELECHOWSKI asked for basic numbers as to the size of
the stream.
DR. PALMER replied she didn't know the width, but it's large
enough to support salmon. She said that Mr. Trasky will talk
about the importance of upwelling groundwater to keep the water
warm enough for the salmon eggs to survive through the winter.
There is no guarantee those flow paths can be recreated once
they are disrupted.
1:46:36 PM
DR. PALMER said the failure rate is very high on much simpler
restoration projects, and "What this means is that large-scale
failure at Chuitna is inevitable." Although the field of stream
restoration has advanced significantly in the past 10 years,
numerous studies reflect failures that typically include
inability to restore even the insect community. The current
status of technology for stream reclamation is only useful in
intact water networks and is neither designed nor tested for
situations in which the underlying soils, geology and associated
groundwater flow paths are destroyed.
DR. PALMER offered her view is that there is no evidence that
reclamation of the streams and wetlands in the Chuitna watershed
is feasible. In fact, there is strong evidence that it is not
feasible, based on rigorous science in which much smaller
projects have not led to restoration, particularly of salmonids.
Technology that has been successful in watersheds is for much
more modest projects. She concluded, "You should recognize that
if the watershed is mined as proposed, you will not regain the
salmon populations that frequent the streams now."
1:48:30 PM
CHAIR FRENCH asked her to remind him of her position with the
National Science Foundation (NSF).
DR. PALMER relayed that she was a professor at the University of
Maryland, and recently received a $60 million grant to direct
the new NSF center. It is an international center that hosts
researchers from across the world to do state-of-the-art
research on environmental issues to balance the needs of people
and the environment.
SENATOR WIELECHOWSKI asked if she was saying that the 30 permits
required for this project weren't sufficient to protect the
reclamation of the salmon the stream.
DR. PALMER said that's correct; Alaska has many individual
requirements, but it has no form of comprehensive evaluation and
mitigation plan.
SENATOR WIELECHOWSKI asked if any of the 78 independent
restoration projects went through the extensive National
Environmental Policy Act (NEPA) permitting process.
DR. PALMER replied some of those were done in Europe and
Australia, but the ones that were done in the U.S. did go
through the NEPA process. She added that she had extensive
experience looking at projects in the coal mining regions of
West Virginia and Kentucky, and therefore was familiar with the
kinds of projects that have been attempted.
1:50:44 PM
SENATOR COGHILL asked if her perspective was to protect the
stream at the cost of any human activity.
DR. PALMER clarified that her role was to discuss the scientific
evidence of whether or not salmon restoration was likely under
the present plan. She talked about being pragmatic about making
decisions and balancing the costs and benefits, and being
scientifically honest about what is and is not possible.
SENATOR COGHILL said he was trying to put this in context
because both sides have experts when economic interests clash.
DR. PALMER suggested he look at the evidence that is supported
by peer-reviewed literature. It is evidence from the scientific
community and does not have a specific perspective one way or
the other.
CHAIR FRENCH asked her to explain the meaning of peer-reviewed.
DR. PALMER explained that the concept is that when a scientific
study is written up it is sent to scientific experts in that
field to evaluate anonymously and judge whether or not the
information presented is done in an objective way. To publish
something in peer reviewed literature, it is necessary to make
the original data available. The NSF now has a requirement that
that data be publicly available and posted on a website. This is
very different from a report that is produced for a particular
company that doesn't show data.
1:54:13 PM
SENATOR WIELECHOWSKI noted that the reclamation performance
standards under 11 AAC 97.200-240 require stream channels
disturbed to be reestablished in a stable condition or location.
He asked if she was saying it would be possible to meet the law,
but the stream will essentially be dead, or that it will be
impossible to meet the legal standard.
DR. PALMER said she wasn't an attorney, but she believes the key
word is "stream," and a stable channel does not create a stream
that will support a salmon population.
SENATOR COGHILL asked if she had experience with streams where
spawning occurred when it didn't previously occur, and if this
case might fall into that type of study group.
DR. PALMER replied there are success stories of restoration, but
not when the entire watershed and the source of the water flow
and ground flow patterns have been completely destroyed. This
project proposes going through bedrock down more than 300 feet,
whereas stream restoration deals with surface processes. The
Chuitna project is outside the realm of what is considered
stream restoration for reclamation.
SENATOR WIELECHOWSKI asked if it could be done with an enormous
amount of money.
DR. PALMER said in her judgment it's impossible and she can't
imagine how it will be possible to set a bond level.
CHAIR FRENCH thanked Dr. Palmer and recognized Lance Trasky.
1:57:22 PM
LANCE TRASKY, owner, Lance Trasky and Associates, relayed that
he had 42 years of experience as a fisheries research biologist,
a habitat biologist, and a regional supervisor for the Alaska
Department of Fish and Game (ADF&G), which issues habitat
permits for mining projects. He discussed the difficulty of
establishing a restoration bond for the proposed Chuitna coal
strip mine when neither the scientific literature nor the
exemplar projects support the claim that recreating a wild
Pacific salmon stream and associated drainage has ever been
successful or is even feasible. He continued to say that it is
also unlikely that the spawning channel and rearing ponds
offered as interim mitigation would be successful in maintaining
the salmon runs from the Chuitna River tributaries for 25-50
years.
MR. TRASKY spoke of the substantial runs of all five species of
Pacific salmon that the Chuitna River supports, and described
the first phase of mining that proposes to strip mine 8,000
acres of the three major salmon producing tributaries. In one
tributary 11 miles of surface and subsurface material will be
removed to a depth of 300 feet. Reconstruction will require the
re-creation of both surface features such as wetlands and
subsurface features such as shallow and deep aquifers that
provide critical upwelling groundwater that is critically
important to the winter survival of salmon eggs and larvae in
cold climates. Re-creation of this magnitude has never been done
and probably isn't feasible.
He disagreed with PacRim and DNR's contention that recreating a
productive salmon stream after strip mining is feasible, and
pointed out that the projects they cited were not comparable and
did not support their claim. A number of fisheries biologists
and hydrologists who were involved in these projects were asked
if they were comparable, and they all said no. Only three of the
projects involved salmon streams, and none were strip mined.
Moreover, none of the projects mentioned restoring aquifers or
groundwater, and all were small-scale by comparison. In a 2007
letter to the Environmental Protection Agency (EPA), the
National Marine Fisheries Service (NMFS) said the agency was
unaware of a successful salmon stream restoration of this
magnitude.
He relayed that PacRim proposed to construct a spawning channel
and rearing ponds to replace the lost salmon production for the
25-50 years before a new stream would be created. DNR also cited
the appearance of juvenile salmon in gravel pits adjacent to
Granite Creek on the Kenai Peninsula and two Canadian spawning
channels as confirmation that this method would successfully
replace the lost production. However, the evidence shows that
other Canadian spawning channels and all the spawning channels
that have been constructed in Southcentral Alaska in the past 30
years have failed over time.
CHAIR FRENCH asked him to talk about spawning channels.
MR. TRASKY explained that spawning channels are built when the
spawning habitat is lost, but the rearing habitat appears to be
fine. Sometimes there is upwelling groundwater and it's possible
to dig a channel near an existing spawning stream and pipe water
into the bottom of the new channel where it will upwell and
create natural channels where fish will spawn. This has been
done in Canada after logging has damaged spawning streams and
Cook Inlet Aquaculture Association (CIAA) has built a number of
spawning channels in Cook Inlet over the years. He noted that
the ones in Cook Inlet have all failed over time.
CHAIR FRENCH said he wasn't familiar with Cook Inlet Aquaculture
Association.
MR. TRASKY explained that it uses money generated from fish
taxes to build hatcheries, stock salmon for the sport fishery,
and build habitat. CIAA is quite good at what it does, but it
hasn't had success building spawning channels in Cook Inlet. He
acknowledged that there were juvenile salmon in the gravel pits
adjacent to Granite Creek, but the effort by ADF&G and DOTPF to
convert the Quartz Creek gravel pit on the Sterling Highway to
salmon spawning and rearing habitat has been a failure.
SENATOR WIELECHOWSKI commented that there were salmon in Quartz
Creek near Cooper Landing.
MR. TRASKY agreed there were many salmon in Quartz Creek, but
not in the gravel pit that DOTPF built. ADF&G tried to convert
that into a salmon spawning area and rearing pond but it failed.
It was just like what is proposed for the Chuitna.
SENATOR WIELECHOWSKI asked why they fail.
MR. TRASKY replied the primary reason is insufficient
groundwater in all seasons. In the winter, the fish freeze and
become anoxic. In the summer, the outlet stream dries up
blocking ingress and egress.
SENATOR WIELECHOWSKI asked if he was aware of projects anywhere
in the world where salmon streams were destroyed and
successfully rehabilitated.
MR. TRASKY said not on this scale. He relayed that ADF&G in the
Kenai River region brought fish habitat restoration into Alaska,
but it was small scale to fix a bank. It didn't involve removal
of the entire river drainage down 300 feet, putting the
remaining dirt back in and rebuilding the river on top. That is
the proposal for the Chuitna River.
SENATOR WIELECHOWSKI asked the size of the Chuitna River.
MR. TRASKY provided comparisons that were relevant to the
committee members. The Chuitna River is about the size of the
China River near Fairbanks, larger than Deep Creek on the Kenai
Peninsula and one of its tributaries is similar in size to Ship
Creek in Anchorage.
He continued to say that northern pike have invaded the Chuitna
drainage so any attempt to sustain salmon production by spawning
channels and rearing ponds in this area is unlikely to be
successful. Pike thrive in low gradient environments like the
proposed rearing ponds, and have already extirpated salmon and
trout from other slow moving streams in Southcentral Alaska.
SENATOR WIELECHOWSKI asked about the prevalence of northern pike
in the region.
MR. TRASKY responded that they've wiped out all salmon in
Theodore Creek, which was a highly prolific stream. The best
rearing streams are the low, swampy streams. Silver salmon in
particular go there, but that's what pike like too.
SENATOR WIELECHOWSKI asked why the pike weren't already
decimating the Chuitna.
MR. TRASKY explained that all but the lower part of that stream
is high gradient, which means steep-sloped with fast water,
rapids and pools.
SENATOR WIELECHOWSKI asked if he was saying that the Chuitna
River could not be restored to be high gradient.
MR. TRASKY clarified he was saying that it wouldn't be possible
to sustain the runs by building spawning channels and small
gravel-pit type ponds because the pike will move in and eat
whatever is produced. Pike have not eaten the salmon that
produce in high gradient tributaries.
MR. TRASKY summarized that he had found no independent
restoration experts in Alaska or elsewhere or any scientific
studies or projects to support the contention that
reconstruction of a salmon stream and associated drainage,
confined and unconfined aquifers, and wetlands on top of 300
feet of mine overburden is feasible. Restoration after strip
mining would be far more difficult than a small-scale project to
reroute a stream around a man-made barrier, re-vegetate a bank,
or confine an unstable placer mined grayling stream to a single
channel.
In considering bonding standards for mines like the Chuitna, he
highlighted that all the projects cited were developed in the
Pacific Northwest and British Columbia to halt or reverse the
decline of anadromous salmon runs due to habitat loss. Billions
of dollars were spent with little success. The problem from a
salmon habitat perspective is that the permanent landscape
changes as proposed by the Chuitna strip mine project cannot be
reversed.
He concluded that DNR has considerable discretion in setting
bond amounts, and if the state allows strip mining through a
wild salmon stream at Chuitna, it will set enduring state
policy. He urged the legislature to take a hard look at pursuing
such a precedent because it would require discussions about
placing a value on the loss of a wild Alaska salmon resource in
perpetuity.
2:13:23 PM
SENATOR COGHILL asked about the salmon-spawning range.
MR. TRASKY explained that some of the tributaries are low
gradient; they aren't large salmon producers and pike are
present. There are three streams that will be impacted by the
strip mining initially and another tributary will be impacted in
a later phase. That one produces most of the salmon in the
Chuitna, but together they produce sockeye, silvers and kings.
He reiterated that shallow aquifers are essential to produce
salmon in Alaska, because the flow of warm groundwater keeps the
streams from freezing in the winter. The deeper aquifers that
will be destroyed probably feed parts of the Chuitna much
farther downstream, and perhaps as far away as Beluga. The full
impact of disrupting all that groundwater isn't known, but it is
clear that it is critical because the salmon, eggs, and fry are
there all winter.
SENATOR COGHILL asked if any of the streams were enhanced.
MR. TRASKY said no.
CHAIR FRENCH thanked Mr. Trasky and recognized Dr. David
Chambers.
2:17:01 PM
DAVID CHAMBERS, Ph.D., P. Geophysics, President, Center for
Science in Public Participation (CSP2), said CSP2 is a nonprofit
that provides technical analysis on the environmental impacts of
mining primarily to public interest groups and tribal
governments throughout North America. He said he's worked with
mine reclamation and mine reclamation bonding for a number of
years and it is not restoration. The goal of reclamation is
generally to restore some functional use to land that's been
mined, and he was only familiar with examples that restored
functional surface use for things like wildlife habitat,
grazing, or even industrial use. The land is not necessarily put
back as it was.
He said he was not familiar with any reclamation project that
restored the groundwater regime to pre-mining condition, as is
proposed at Chuitna. A number of technological difficulties
would be encountered in trying to restore up to 300 feet of
water-bearing strata, not the least of which is that the geology
is complicated by the Chuitna and South Pit faults and
associated anticlinal structures. He displayed a visual of the
strata that included zones of coal, groundwater conductors
called aquifers, and strata that restricts the flow of water
called aquitards. The visual did not show the faulting that
could be either conduits or barriers for water.
DR. CHAMBERS said he was fairly certain that the pre-mining
sampling was not sufficient to define the hydrology of the
Chuitna area. That's not required of mining operations today
because the goal is not to restore the hydrologic regime in the
subsurface. The goal of mine reclamation is to put the surface
back in a usable form.
He displayed visuals to illustrate what happens to the strata
during and after strip mining. He explained that to recreate the
original hydrologic regime the backfill material has to be
selectively sorted, selectively replaced and put back the way it
was. That would require an entirely different level of
engineering than what is done now. The current practice is to
push the material back in the hole, pack it down and put some
soil on top so things will eventually grow.
2:22:54 PM
CHAIR FRENCH asked if the backfill material has to be equivalent
to the volume of coal that was removed.
DR. CHAMBERS explained that when rock is mined there is an
expansion factor of 1.5 so there is generally too much material
to put back. Mining also changes the physical characteristics of
the material and it no longer behaves in the same hydrologic or
geochemical way, and things like arsenic and selenium tend to be
mobilized.
2:25:36 PM
DR. CHAMBERS reiterated that he was not aware of any mining
operation where the reclamation goal was to restore the
groundwater regime. It would be very expensive and unprecedented
in terms of trying to bond or estimate the costs, and it was
highly unlikely that it could be done.
CHAIR FRENCH asked him to address why restoring the groundwater
regime matters.
DR. CHAMBERS explained that salmon have different reproductive
requirements than other fish. They need the upwelling
groundwater source to spawn and overwinter their eggs. If the
groundwater regime isn't restored, the spawning habitat is lost.
CHAIR FRENCH asked how much surface area would be disturbed
under this proposal.
DR. CHAMBERS said he didn't recall the exact surface areas of
the lease.
SENATOR WIELECHOWSKI asked if he was saying that the groundwater
regime could be restored if cost weren't an issue, or that it
would be impossible to restore.
DR. CHAMBERS replied he could only offer an opinion since it had
never been tried, but he didn't believe it could be done.
CHAIR FRENCH said his staff pointed out that Mr. Trasky's
testimony was that 8,000 surface acres would be disturbed.
2:28:53 PM
SENATOR COGHILL asked Dr. Chambers if he generally advocates
against mining for environmental reasons.
DR. CHAMBERS said no; the issue with the Chuitna is that it is
not an appropriate place to do strip mining for coal. There are
places in Alaska, like Healy, where this kind of activity can
take place without the same impacts. There may be some salmon in
the Healy area, but nothing like the Chuitna.
SENATOR COGHILL said he wanted it to be a matter of record, and
the answer was well taken.
CHAIR FRENCH thanked Dr. Chambers and recognized the DNR
representatives, Tom Crafford and Russ Kirkham.
2:30:11 PM
TOM CRAFFORD, Director, Office of Project Management and
Permitting, Department of Natural Resources (DNR), introduced
himself and Mr. Kirkham, the head of the coal regulatory program
within DNR. He explained that the PowerPoint would provide
background on mine permitting in general and segue to
reclamation bonding requirements and coal-specific
considerations.
He displayed a map showing the large mining projects in the
state followed by a list of required state and federal permits
and the various state and federal agencies that are involved. He
explained that the state employs a large mine permitting team
approach that brings to the table representatives from the
departments of natural resources, environmental conservation,
fish and game, health and social services, law, transportation
and commerce. AS 27.05.010(b) authorizes DNR to serve as the
lead state agency to coordinate the permitting process. The
federal agencies listed were the [environmental protection,
corps of engineers, fish and wildlife, and marine fisheries.
Federal land managers also become involved if the mine is on
federal land.
MR. CRAFFORD reviewed the duties of the state's large mine
permitting team. This includes the review of the applications
and analysis of the supporting documents. He relayed that the
team has access to technical expertise in geology, hydrology,
engineering, and biology within the state agencies, but it can
also hire outside expertise when necessary. The group of
individuals that is involved in the permitting process does the
inspections and is involved in monitoring the mine projects that
transition into operation.
SENATOR WIELECHOWSKI asked if federal agencies would be involved
in the Chuitna mining project.
MR. CRAFFORD said yes; the Chuitna project is currently in the
Supplemental Environmental Impact Statement (SEIS) process, and
the U.S. Army Corps of Engineer's is leading that process with
participation from a number of other federal agencies.
He explained that the mine permitting process is largely driven
by the National Environmental Policy Act (NEPA), which
establishes procedural requirements for preparing an
Environmental Impact Statement (EIS). The EIS is not a permit;
it's a mechanism for considering the potential impacts from
projects and evaluating alternatives. The EIS or SEIS process is
triggered by the application for a major federal permit. An
application for a wetlands dredge and fill permit from the Army
Corps of Engineers was the trigger for the Chuitna project. He
directed attention to the list of things [slide 7] that have to
be included in the EIS or SEIS. A lead federal agency is
designated and a third-party contractor is selected to manage
the EIS process. Multiple public notice and comment requirements
are embodied within NEPA and the EIS process. The state
coordinates its permitting process with NEPA for efficiency and
ease of understanding for the public.
2:37:16 PM
MR. CRAFFORD directed attention to slide 8 that lists baseline
studies that are required. He said the state and federal
agencies consult with a project applicant in advance to ensure
that the right methodologies are employed and the right
information is collected to inform the permitting process.
CHAIR FRENCH asked if the baseline studies on the quantity and
quality of the groundwater at Chuitna were underway or pending.
MR. CRAFFORD replied much of that baseline work has been done
and the agencies are evaluating the hydrologic model that PacRim
was required to submit. He emphasized the importance of that
information. He deferred to Mr. Kirkham for further information
about the status of that review.
2:39:26 PM
RUSS KIRKHAM, Geologist, Division of Mining, Land and Water,
Department of Natural Resources (DNR), explained that PacRim was
directed to return to the field to collect additional
groundwater data because the agencies weren't satisfied with the
initial collection. This is not an unusual circumstance.
SENATOR COGHILL asked if it's within the scope of the
groundwater baseline study to determine whether or not
restoration is possible.
MR. CRAFFORD explained that the studies that have been done thus
far looked at the groundwater hydrology of both the bedrock
where the coal occurs and the overburden of glacial material,
sediment and soil. The proposal to date has been to handle those
materials selectively with the goal of reestablishing the
hydrology that is primarily within the overburden glacial
materials to the condition pre-mining.
2:41:57 PM
SENATOR WIELECHOWSKI asked if the mining company would be
required to restore to land to its pre-mining condition or just
rebuild channels for streams.
MR. CRAFFORD replied he couldn't say what the ultimate
permitting decisions might be, but "the goal is to reestablish a
hydrologic regime that would restore productivity to the
system." He added that he didn't believe that the visual that
Dr. Chambers displayed was illustrative of what's been proposed
because they are talking about selective handling and
restoration of a near-surface hydrologic regime that would feed
into the streams.
MR. CRAFFORD addressed monitoring plans and environmental
audits. In order for the mining project to move into operation
the air, water, and fish and wildlife monitoring plans would
have to be approved in advance. Environmental audits, conducted
by third-party experts, are typically required every five years
for reissuance of permits. They evaluate the performance of the
operators and the agencies. Financial assurances are revisited
and recalculated based on the audit results.
The coal regulatory program departs somewhat from the
aforementioned audit provisions and timing, but the level of
oversight and the essential components are the same, he said.
He briefly summarized the permitting process.
· Many permits are required and many state and federal
agencies are involved.
· Experienced agency professionals are involved in permitting
and regulation.
· Third-party experts are utilized if agencies don't have the
expertise.
· There are comprehensive analyses of potential
environmental, socioeconomic, and health impacts for each
project.
· Continued air water, and fish and wildlife monitoring is
required.
· Financial assurances are required and regularly updated.
2:45:41 PM
MR. CRAFFORD discussed the underlying philosophy of the
financial assurances, or bonding, for large mine projects. He
said the idea is that the financial assurance will never be less
than the amount required to accomplish the approved reclamation
plan. The bond amount can be increased anytime the mine is shown
to have inadequate financial assurance. The reclamation bonding
requirements for general mining projects are found in AS 27.19.
State reclamation standards apply to state, federal, municipal,
and private land and water that is subject to mining. The bond
is based on a reclamation plan that has to be approved by DNR
prior to mining.
SENATOR COGHILL commented on the profound difference between
reclamation and restoration and asked if the underlying
philosophy of the financial assurance was based on reclamation
and not restoration of the salmon habitat.
MR. CRAFFORD replied the regulations contemplate impacts to the
environment as a consequence of mining. The agencies
collectively have to decide on the reclamation goals and the
acceptable reclamation plan. The Chuitna project calls for
restoration of "basic functionality" to the hydrologic system.
CHAIR FRENCH said he opened the hearing talking about Trustees
of Alaska v. Gorsuch, 835 P.2d 1239 (1992) that dealt with the
proposal to mine coal in the Chuitna area. DNR's position at the
time was that "basing the bonding amount on the assumption that
the applicant will violate the permit terms is unfair and
unnecessary." The court said that DNR's reasoning and
assumptions were fundamentally flawed. The court said, "We
conclude that our coal mining laws requires DNR to base the bond
amount on the assumption that the applicant will violate permit
terms." He asked if the court's finding is absorbed in the
underlying philosophy or if it comes into play somewhere else.
MR. CRAFFORD said he wasn't well versed in that thinking, but
the fundamental idea is that if the applicant is unable to
perform the reclamation, that would violate the terms of their
permits and the agencies would have to take over the
reclamation. Furthermore, the bond amount should be adequate to
allow the agencies to conduct the reclamation.
CHAIR FRENCH said it's probably a topic for future debate.
2:49:55 PM
SENATOR WIELECHOWSKI asked if he had a general comment on the
opinions of the three experts. He understood them to say it
would be impossible to restore the area and that they were
unaware of any salmon habitat on the scale of the Chuitna that
has ever been restored.
MR. CRAFFORD replied he was not qualified to opine on that. He
added that DNR was in a somewhat awkward position because the
commissioner granted reconsideration of a lands and suitable
petition that addresses many of the topics that have been
discussed.
CHAIR FRENCH said he reviewed the commissioner's lengthy
decision and considered making it part of the packet until he
learned that it was under reconsideration.
2:51:38 PM
MR. CRAFFORD read the reclamation standard under AS [27.19.020]
as follows:
A mining operation shall be conducted in a manner that
prevents unnecessary and undue degradation of land and
water resources, and the mining operation shall be
reclaimed as contemporaneously as practicable with the
mining operation to leave the site in a stable
condition.
He said there are also a number of reclamation performance
standards in regulation (11 AAC 97.200-240). He displayed the
following list:
· Return waterborne soil erosion to pre-mining levels within
one year.
· Achieve revegetation, where feasible, within five years
after the reclamation is completed, without the need for
fertilization.
· Topsoil is to be salvaged, stockpiled and protected for
later use in reclamation.
· Surface contours are to be made conducive to natural
revegetation.
· Site shall be reclaimed such that it retains sufficient
moisture for natural revegetation ["or for an alternate
post-mining land use approved under AS 27.19.030(b) on
state, federal, or municipal land, or for the post-mining
land use intended by the landowner on private land."] (11
AAC 97.200(b))
· A miner shall stabilize the reclaimed site to a condition
that will retain sufficient moisture for natural
revegetation
· Pit and quarry walls and subsidence features need to be
made stable.
· Buildings and structures are to be removed unless
authorized to stay.
· Scrap iron, equipment, tools, piping, hardware, chemicals,
fuels, waste, and general construction debris are to be
removed or properly disposed.
· Facilities associated with heap leach facilities are to be
reclaimed.
· Underground openings are to be sealed after closure.
· "A miner shall reclaim a mined area that has potential to
generate acid rock drainage (acid mine drainage) in a
manner that prevents the generation of acid rock drainage
or prevents the offsite discharge of acid rock drainage."
(11 AAC 97.240)
SENATOR WIELECHOWSKI asked if the law requires the miner to just
rechannel and put in a new stream or to rehabilitate the entire
area to near original condition.
MR. CRAFFORD replied the statutes and regulations contemplate
impacts from the mining process. He deferred to Mr. Kirkham for
more detail.
MR. KIRKHAM confirmed that that there will be impacts from
mining. He added that the reclamation plan is based on the
approved post-mining land, which is based on what the landowner
wishes. In Alaska, the reclamation is generally to promote
wildlife. The idea is that the land will function in a way that
is similar to what it was pre mining.
MR. CRAFFORD displayed the following list of requirements and
reclamation plan general elements under 11 AAC 97.310:
· Property descriptions and maps.
· Description of mining plan and schedule.
· Reclamation measures for treatment of:
- Topsoil and revegetation.
- Tailings ponds, reservoirs, dumps, pits, etc.
- Stream replacement.
- Roads, airstrips, and access.
- Buildings.
He said that AS 27.19.040, the reclamation financial assurance
statute, says the bond amount is not to exceed an amount
reasonably necessary to ensure reclamation that is specified in
the reclamation plan. The DNR commissioner establishes the bond
amount, but may enter into a cooperative management agreement
with state and federal agencies as to who holds the bond in a
collective bond amount.
CHAIR FRENCH asked Mr. Crafford to skip ahead to slide 21 that
shows the bond amounts for eight large mines in Alaska. He noted
that the largest bond amount was $304.5 million of the Red Dog
Mine and the smallest was $3.5 million for the Nixon Fork Mine.
He asked if the Red Dog Mine owners put $304.5 million in cash
on deposit to cover the bond amount.
2:55:18 PM
MR. CRAFFORD replied the bond mechanisms are varied and can be
cash, letters of credit, or even bullion. Red Dog bonded with a
letter of credit and the amount is very high because of the high
levels of metal in the system. The post-closure water treatment
is contemplated into perpetuity. Nixon Fork Mine is a small
underground gold mine near McGrath.
SENATOR WIELECHOWSKI asked if DNR had the option to do
restoration work in locations other the mine site.
MR. CRAFFORD confirmed that offsite reclamation and mitigation
efforts are allowed, and the Army Corps of Engineers generally
makes that determination. A variety of mitigation mechanisms are
allowed, including the use of mitigation banks. He noted that
multipliers typically apply to offsite mitigation.
CHAIR FRENCH asked for confirmation that offsite mitigation was
not currently an aspect of the Chuitna mine permit.
MR. CRAFFORD replied the permitting process has not proceeded to
the point that those types of decisions are addressed.
CHAIR FRENCH thanked Mr. Crafford and Mr. Kirkham for the
presentation.
CHAIR FRENCH asked one of the first three witnesses to comment
on the previous testimony to set it in context.
2:58:45 PM
DR. CHAMBERS said a general comment about permitting is that
when someone says a project requires 60 permits the implication
is that it's a comprehensive process. However, the history of
permits and regulations shows that it's a bottom-up process. A
problem occurs and a regulation is written that requires a
permit to make sure that problem doesn't happen again. But
because it's bottom up instead of top down, it's not a
comprehensive process. A project that has 40, 50, or 60 permits
doesn't mean that the whole entity is covered. In addition, no
one entity in the regulatory process has either the
responsibility or the authority to step back and ask if
something makes sense. Each regulatory agency has its own
permits that have very narrow and well-defined limits.
With regard to the proposed Chuitna project, he said it's a
legitimate public policy question to ask if it's worth giving up
11 miles of salmon stream for the coal development. The people
with technical expertise that testified weren't trying to
address that big public policy question. They were looking more
specifically at whether or not restoration is feasible, if
that's a goal of the project. "We're saying we don't see that
that's possible and we don't see any examples anywhere of where
that's done," Dr. Chambers concluded.
CHAIR FRENCH thanked all the participants for the balanced
presentations, and said he didn't envy the commissioner, because
he has an extremely difficult decision to make.
SENATOR COGHILL observed that the testimony was only partially
balanced, because there was no testimony from the parties who
are proposing to invest in the mine.
CHAIR FRENCH said it's a fair observation.
3:02:02 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:02 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Bio's_2012 March 2nd Judiciary Committee Hearing Witnesses.pdf |
SJUD 3/2/2012 1:30:00 PM |
|
| Chambers Testimony on Chuitna Reclamation for AK Senate Juciciary Committee - 2Mar12 (4).pdf |
SJUD 3/2/2012 1:30:00 PM |
|
| Trasky Testimony - Final (1).pdf |
SJUD 3/2/2012 1:30:00 PM |
|
| Palmer Testimony - Final.pdf |
SJUD 3/2/2012 1:30:00 PM |
|
| Trasky_Sullivan_Chuitna Unsuitable Lands Petition.pdf |
SJUD 3/2/2012 1:30:00 PM |
|
| Financial Assurances for Mining Projects - SJUD hearing 2Mar2012.pdf |
SJUD 3/2/2012 1:30:00 PM |
|
| Trustees v. Gorsuch 835 P.2d 1239.pdf |
SJUD 3/2/2012 1:30:00 PM |