Legislature(1999 - 2000)
03/03/1999 03:15 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE RESOURCES COMMITTEE March 3, 1999 3:15 p.m. MEMBERS PRESENT Senator Rick Halford, Chairman Senator Robin Taylor, Vice Chairman Senator Pete Kelly Senator Lyda Green MEMBERS ABSENT Senator Jerry Mackie Senator Sean Parnell Senator Georgianna Lincoln COMMITTEE CALENDAR Proposed Chenik Institute Lease - McNeil River State Game Refuge Tulsequah Chief Mine Update PREVIOUS SENATE COMMITTEE ACTION Proposed Chenik Institute Lease - McNeil River State Game Refuge - See Resource Committee minutes dated 2/17/99 Tulsequah Chief Mine Update - No previous testimony WITNESS REGISTER Commissioner Frank Rue Alaska Department of Fish and Game PO Box 25526 Juneau, AK 99802-5526 POSITION STATEMENT: Testified on the proposed Chenik lease issue and on the Tulsequah Chief Mine Update. Deputy Commissioner Marty Rutherford Alaska Department of Natural Resources 3601 C Street, Suite 1210 Anchorage, AK 99503-5921 POSITION STATEMENT: Commented on the proposed Chenik lease issue. Richard LeFebvre, Deputy Director Department of Natural Resources 3601 C Street, Suite 1122 Anchorage, AK 99503-5921 POSITION STATEMENT: Commented on the proposed Chenik lease issue. Mr. Mike Sullivan, Natural Resource Manager Division of Land Department of Natural Resources 3601 C St., Ste. 1122 Anchorage, AK 99503-5947 POSITION STATEMENT: Commented on the Chenik lease issue. Ms. Kerry Howard Division of Governmental Coordination Office of the Governor PO Box 110030 Juneau, AK 99811-0030 POSITION STATEMENT: Testified on the Tulsequah Mine Update. Mr. Mike Conway, Director Division of Air and Water Quality Department of Environmental Conservation 410 Willoughby Ave., Ste 105 Juneau, AK 99801-1795 POSITION STATEMENT: Testified on the Tulsequah Mine Update. ACTION NARRATIVE TAPE 99-12, SIDE A Number 001 CHAIRMAN HALFORD called the Senate Resources Committee meeting to order at 3:15 p.m. Present were Senators Kelly, Green, Taylor, and Halford, Chair. Chairman Halford announced Commissioner Rue of the Alaska Department of Fish and Game (ADF&G) would address the committee on the Chenik Institute lease proposal. COMMISSIONER FRANK RUE, ADF&G, gave the following overview on the status of the Chenik Institute lease proposal and said that ADF&G had not made a decision on any lease at this time. The Department of Natural Resources (DNR) put out a proposal for and received public comment and DNR needs to decide if the facility is compatible with the purpose of the refuge. CHAIRMAN HALFORD asked if the management plan is adopted by the Board of Game. COMMISSIONER RUE understood that the management plan has been adopted by the Commissioner and endorsed by the Board, but said he would have to check. He noted the Board passes regulations if a refuge is also a critical habitat area. In this case, the regulations specifically give the authority to the Commissioner to determine if the facility is compatible with the purpose of the refuge. If the facility is deemed compatible, a fair method must be determined to decide who will occupy the facility. CHAIRMAN HALFORD asked if a management plan is in effect now. COMMISSIONER RUE said one is. CHAIRMAN HALFORD asked if the management plan allows for any commercial facilities. COMMISSIONER RUE explained the management plan does allow for a commercial finding that is compatible with the refuge purpose. CHAIRMAN HALFORD asked if any finding in favor of a commercial facility has been made at this point in time. COMMISSIONER RUE replied, "No official finding and that is what we would have to do, and we've gotten public comment on this proposal and we'll have to make a decision from there." COMMISSIONER RUE said he understood the committee has already reviewed the file with historical information about the stages and the various positions taken on the proposal, and what BLM has, and has not, done. CHAIRMAN HALFORD asked if the applicant has ever paid anyone for his use of this land from 1978 to the present. COMMISSIONER RUE said the applicant may have paid a fee at one time, but he deferred to the ADF&G or BLM for that answer. CHAIRMAN HALFORD indicated the committee was informed the applicant never had a lease or paid any amount to the landowner. COMMISSIONER RUE responded the applicant never had a lease, and he did not believe the applicant paid anything. CHAIRMAN HALFORD asked what process would occur if the State determined that, under the management plan in concert with the Board of Game, a commercial facility was in the best interest of the refuge. Number 96 MS. MARTY RUTHERFORD, Deputy Commissioner of DNR, testified via teleconference from Anchorage that DNR has a variety of options once it has the land such as issuing a permit or letting a lease through a competitive bid. CHAIRMAN HALFORD asked Commissioner Rue and Deputy Commissioner Rutherford if either could recall a memo in which the State sent BLM a notice of non-objection for a trespass activity, and encouraged BLM to issue a lease to a trespass activity prior to transferring the land to the State. Neither could recall and deferred to other staff. MR. MIKE SULLIVAN, Deputy Director, Division of Land, recalled the Perky Pile Airstrip, north of the Alaska Range, when a long-time guide had a facility on federal lands. Before that land was conveyed to the State, DNR asked the federal agency to resolve the occupancy issue. They issued a lease to Mr. Ingalls, the guide, and he thought DNR had provided a letter of non-objection. He clarified the circumstances were slightly different. CHAIRMAN HALFORD asked if Mr. Ingalls' entry was legal at the time he began occupying the land. He noted the standard used in trespass cases 15 or 20 years ago required the occupant to have entered the land legally, but to have had lapsed on their paperwork afterward. MR. SULLIVAN said he could not recall the circumstances surrounding Mr. Ingalls' original occupancy. CHAIRMAN HALFORD asked Commissioner Rue how long he had been the Director of the Habitat Division before he was appointed commissioner. COMMISSIONER RUE replied about seven years. CHAIRMAN HALFORD asked how many times such applications came through the Division of Habitat. COMMISSIONER RUE said at least once. CHAIRMAN HALFORD asked what the Division's position was on that case. COMMISSIONER RUE stated the Division did not support that person getting a right to that piece of land because of the method of occupancy used. He explained that whether the use of that land was compatible with the land is another issue. Number 163 SENATOR TAYLOR asked why Commissioner Rue changed his mind. COMMISSIONER RUE said he wanted to get this issue on the table and work with DNR to make a decision on whether or not to permit a facility and get the land transferred. CHAIRMAN HALFORD asked if the normal process is for BLM to clear the trespass and convey the land to the State. He asked what BLM does if the State determines it does object to the trespass and wants the patent to the land. COMMISSIONER RUE said for 15 years BLM has done nothing, although it wanted to issue a lease. MR. RICHARD LEFEBVRE, Deputy Director, Division of Land, said normally, if the State wants the land conveyed, it is the BLM's responsibility to clear it off. Number 182 DEPUTY COMMISSIONER RUTHERFORD explained BLM has indicated reluctance to address this trespass situation. BLM has clearly communicated that it would like to issue the lease and have the State accept it as is, where is. CHAIRMAN HALFORD asked if Ms. Rutherford knew why. DEPUTY COMMISSIONER RUTHERFORD stated BLM staff says it is a workload issue, but she is not sure that is accurate. SENATOR TAYLOR questioned whether this case is dealing with a person who built a cabin for the sole purpose of bringing his/her family to recreate. COMMISSIONER RUE said no, the applicant has a lodge facility for paying guests. SENATOR TAYLOR said the lodge averages about 16 paying customers per week at $2250 per customer. He asked who is "watching the store" on state lands, especially those places where people move in and set up business on state land with no permit and carry on for 21 years. COMMISSIONER RUE clarified the land is owned by the federal government; it is not state land, yet. SENATOR TAYLOR asked when the state selected that land. DEPUTY COMMISSIONER RUTHERFORD said it was selected in the early 1980's but it was tied up in litigation with the Seldovia Native Association. Two months ago BLM notified the State that the litigation issue had been resolved and that the land was now available for conveyance. CHAIRMAN HALFORD asked what BLM would do if the State objects to any action to legitimize the previous trespass and encourages BLM to expedite title to the State. DEPUTY COMMISSIONER RUTHERFORD said she believes BLM would convey the title and it would be happy to allow the State to resolve the trespass issue. CHAIRMAN HALFORD asked if BLM would convey it in fee simple to the State. DEPUTY COMMISSIONER RUTHERFORD said that is her understanding. SENATOR TAYLOR did not think that method would resolve anything because he does not see any authority within DNR to remove the trespasser either. DEPUTY COMMISSIONER RUTHERFORD maintained the Department does have the authority and ability to address the trespass if the title were conveyed by BLM. SENATOR TAYLOR stated one of DNR's options is to give the trespasser a lease so that he can continue to make money, only now legally. He asked if DNR issued a proposal on November 10, 1998 advocating State approval of the Chenik facility lease to Mr. McBride, which was distributed to state agencies and the public for comment. DEPUTY COMMISSIONER RUTHERFORD replied DNR adopted a preliminary best interest finding to solicit public and agency input; it did not necessarily reflect DNR's next step. SENATOR TAYLOR asked if his statement, "...advocating State approval of the proposed lease," was incorrect. DEPUTY COMMISSIONER RUTHERFORD said the proposal certainly presented that option. SENATOR TAYLOR asked if DNR circulated any information to the public saying, "This is State of Alaska land - this is a trespasser that's been ripping us all off for years - why don't we go out there and burn it down. Did you suggest that to the public and ask for their comments about whether or not trespassers that misuse the State's good graces here on our land or federal land should be prosecuted - should be treated in that fashion?" DEPUTY COMMISSIONER RUTHERFORD said DNR did not, because it always tries to present to the public a proposal as a positive action instead of a negative action, and, depending upon the public's input, DNR determines whether it is appropriate to proceed. CHAIRMAN HALFORD questioned if the land were State land, transferred without any BLM action, whether the granting of any kind of preference lease based on a trespass would be in violation of the Alaska Constitution or statutes. MR. LEFEBVRE replied in this particular case, trespass does not warrant a preference right. CHAIRMAN HALFORD noted the Constitution contains a specific provision about State lands. He asked if granting land to an individual in trespass would violate the Constitution. MR. LEFEBVRE answered, if the lease was granted through a competitive bid process, it would not violate the Constitution, but if DNR dealt solely with the individual, it probably would. CHAIRMAN HALFORD questioned whether the State would be violating the Constitution if it recognizes this trespass as any kind of a prior existing right collected in violation of law. MR. LEFEBVRE responded that is correct because of the preference. DEPUTY COMMISSIONER RUTHERFORD indicated the preliminary best interest finding was on the letter of concurrence to the BLM under the State's 906 K responsibilities, and BLM probably does have the authority to grant a long-term lease. For that reason, DNR wanted to solicit input on any concurrence. She clarified without going through a competitive bid process, the State could not do a conveyance to Mr. McBride. CHAIRMAN HALFORD thought DNR could do nothing short of a competitive process according to the Constitution, but it could get around that restriction by allowing BLM to lease the property before it is conveyed to the State, but it is not in the spirit of what the constitutional prohibition was trying to avoid. SENATOR TAYLOR commented if DNR allows BLM to lease the land before it is conveyed to the State, a preference will essentially exist. DEPUTY COMMISSIONER RUTHERFORD said she agrees that action would not be in the spirit of the Constitution, although she was hesitant to say it would be breaking with DNR's constitutional responsibilities. She pointed out DNR has allowed BLM to provide a lease prior to conveyance to the State for various reasons although she did not believe it would be in the State's best interest to give a lease to Mr. McBride without using a competitive bid process. Number 214 SENATOR TAYLOR referred to a memo sent to Commissioner Rue by Deputy Commissioner Bosworth on November 22, 1996, which proposed that ADF&G reverse its position on this lease issue. On the same day, Commissioner Rue sent a memo to Commissioner Shively stating ADF&G had changed its position. He asked Commissioner Rue if he conferred with any regional supervisors or division directors before changing positions. COMMISSIONER RUE replied Deputy Commissioner Bosworth had reviewed the record and gave him that recommendation. He did not recall whether he spoke to other staff that day, but he spoke to them a number of times over the years. SENATOR TAYLOR remarked Commissioner Rue has addressed similar cases as the Director of the Division of Habitat using a different policy. COMMISSIONER RUE told Senator Taylor he has always had a problem with the way this person got on the land; the record contains a lot of question about intent. He stated he is glad to get this case on the table and out for public review before making a final decision. SENATOR TAYLOR asked assuming BLM does nothing before conveying the land, who would he look to for enforcement of the state's trespass laws. COMMISSIONER RUE replied DNR, and ADF&G if the land is on a refuge. SENATOR TAYLOR asked who would bring the action to physically remove a person from the property. COMMISSIONER RUE replied in the cases he is familiar with, trespass cabins have been posted with a notice of removal of the facility. SENATOR TAYLOR asked if any other structures are located within the McNeil Refuge. COMMISSIONER RUE replied a crew camp and a cook area for visitors are located at the ADF&G site on McNeil River, a structure is located at the Paint River fish ladder and at the Cook Inlet Aquaculture facility, and some old cabins are on federal land at Chenik Lake. CHAIRMAN HALFORD asked what process the federal government uses to resolve trespass situations when it decides to terminate unauthorized use. MR. LEFEBVRE said DNR rarely gets involved with federal trespass actions so he was not familiar with the specific process. CHAIRMAN HALFORD pointed out a letter from the Regional Solicitor of BLM to DNR in 1993 cited 43 CFR, Chapter 2, which directs how unauthorized uses are dealt with. The trespassers are notified of the trespass and are liable to the United States for all of the administrative costs, the fair market value rental of the land for the current year and the past years of trespass. If the trespass is non-willful, somehow by mistake, they are liable for twice the fair market rental value which has accrued since the inception of the trespass up to the last six years; if it's knowing and willful, three times the fair market value of the trespass. He maintained the federal government has a fairly substantial method to protect against trespass, yet BLM is proposing to resolve the Chenik trespass by giving the land away instead of enforcing its own CFR. CHAIRMAN HALFORD thought BLM's approach to this case is incredibly inconsistent and he asked if BLM will have to enforce its trespass rules if the state does not concur with the lease. DEPUTY COMMISSIONER RUTHERFORD said she does not believe BLM has a choice. If DNR said it wanted the trespasser removed, BLM would have to deal with it. SENATOR TAYLOR commented the McNeil River State Refuge was created to protect bears, not to convey land to Mr. McBride. COMMISSIONER RUE repeated that no decision had been made to convey land to Mr. McBride or not. He added that bear viewing is one purpose of the refuge. SENATOR TAYLOR asked how many acres of land the state selected in that area. MR. SULLIVAN answered the surrounding township was about 22,000 to 23,000 acres. CHAIRMAN HALFORD said he hopes the State will defend its land in a consistent way and that the timing on this case has been amazingly coincidental. He concluded by saying he hopes to see some resolution by way of a State position, because the past five Administrations have discouraged any permits to trespassers in any case, even when initial use of the land was legal, to deter others who contemplate unauthorized use of public lands. DEPUTY COMMISSIONER RUTHERFORD thanked the committee and said members' concerns would be considered in the decision. Number 440 CHAIRMAN HALFORD informed committee members the next discussion would be on the Tulsequah Chief Mine update. COMMISSIONER RUE explained the Taku River is an important river for commercial fishermen, sport fishermen, and Juneauites. When the mine proposal came out, the State of Alaska was concerned that the mine be developed in a proper way to protect resources. The British Columbian (BC) government initially involved the State of Alaska in discussions, but when the mine was authorized to proceed, the State of Alaska no longer had an official seat at the table and several outstanding issues had not yet been addressed. Those concerns include water quality issues, mine tailings location issues, and road construction issues. The BC government has asked for Alaskan input on individual permits, but Alaska's request to continue to be included in the process has not been honored. CHAIRMAN HALFORD asked Commissioner Rue to elaborate on the issues of concern. COMMISSIONER RUE explained the mixing zone issue of effluent from the treatment plant into the Tulsequah River is one water quality concern. A second is the location of the tailings pond which is an area with a history of floods, debris torrent, and leakage issues. CHAIRMAN HALFORD asked what will be mined and what the process will be. COMMISSIONER RUE stated the Tulsequah Chiefs' Mine is a gold, silver, zinc and lead mine. He added the EPA and other federal agencies have similar concerns about water quality issues. The Transboundary Waters Treaty allows for Canada and the United States to work out water issues across the border. COMMISSIONER RUE said an additional issue is maintenance of the tailings pond if the mine is closed for a few years due to price fluctuations. Road construction issues include location, proper use of culverts and bridges for fish passage, and road maintenance and saltation. The State felt those issues could be addressed, but it wanted to be at the table. The Governor has requested an International Joint Commission (IJC) referral which will give Alaska a seat at the table. CHAIRMAN HALFORD asked whether EPA has formally requested an IJC. COMMISSIONER RUE explained the IJC came from the U.S. State Department, and he believed the EPA asked for one as well. MS. KERRY HOWARD, Division of Governmental Coordination, said the State of Alaska, EPA, and Department of Interior all requested an IJC referral at about the same time. The State Department has been representing all three interests since the initial request. CHAIRMAN HALFORD asked if the rivers involved are clear water rivers. COMMISSIONER RUE said they are not. CHAIRMAN HALFORD asked if some of the rivers are carrying high silt loads. COMMISSIONER RUE said the Taku River itself has a high silt load, but some of the tributaries come out of lakes, and do not. Number 517 SENATOR TAYLOR asked what the Canadians have not done regarding the issues that Alaska is concerned about during the past four years while Alaska was at the table. He noted the Canadians have made a decision, which is what they were supposed to do, and asked what basis Alaska has to question its decision. COMMISSIONER RUE said the basis is the Transboundary Treaty that requires that both countries discuss transboundary issues. Most of the risks are on the Alaska side. SENATOR TAYLOR asked what basis in Canada's technical data is the cause of concern. He referred to the standards to be met and asked who set the standards. COMMISSIONER RUE replied the questions that ADF&G is primarily concerned with are fish passage under the road. SENATOR TAYLOR asked where in the Canadian documentation and in its permitting process ADF&G found that fish stream blockage would be allowed. COMMISSIONER RUE answered the Canadian government had not approved a particular design of the road so ADF&G was just raising the concern to make sure it was addressed. SENATOR TAYLOR asked if ADF&G asked the Canadian officials directly before getting involved with the State Department. MS. HOWARD replied the State of Alaska had a great deal of confidence in the British Columbia assessment process, but that process determined whether or not the project should succeed; it did not involve a technical level of detail about road construction, tailing design, long term monitoring and maintenance, etc. The lack of detailed information has been the State of Alaska's concern. Typically, Alaska insists on greater detail and more technical information before a project is approved. SENATOR TAYLOR commented the State of Alaska has no basis on which to claim Canada will not protect the resources. MS. HOWARD replied the State's technical experts have disagreed on that point, as have the federal agencies involved in the review. For that reason the state and federal agencies chose to request the International Joint Commission to participate. SENATOR TAYLOR asked Ms. Howard if the Canadian officials or agencies have indicated they might block salmon streams when constructing roads. He commented the Canadians work out the details while building the project which is contrary to the Alaska method of working out every detail before a project can begin. He asked Ms. Howard if she has any expertise in the area of non- compliance by the Canadians regarding environmental standards. MS. HOWARD replied the Kemis and Huckleberry mines have preceded the British Columbia (BC) assessment project; they had significant problems after project approval and permitting. Documented reports discuss problems that resulted from the Canadians sporadic enforcement of the requirements in permit conditions. SENATOR TAYLOR asked where those mines are located. MS. HOWARD replied they are on interior streams in BC. SENATOR TAYLOR questioned whether Alaska's basis for the IJC request was based on a complaint of an environmental law violation on some mine in the interior. COMMISSIONER RUE replied the basis for the IJC request was major issues such as the design and location of the tailings pond. Alaskan officials felt those issues needed resolution before mine development began. SENATOR TAYLOR asked Commissioner Rue if he requested the detailed information on the tailings pond directly from the Canadian agency. COMMISSIONER RUE said yes, but the Canadian agency did not have any. SENATOR TAYLOR asked what the Canadians said the standards would be for the tailings pond. MS. HOWARD replied the Canadian agency said although the tailings impoundment location had been approved without seeing the design of the impoundment, the details would be available at permitting. The EPA, Department of Interior, and State of Alaska were concerned that the Canadian agency selected one out of seven alternative sites before a final design of the tailings impoundment was complete. She remarked the three US agencies thought the Canadians were putting the cart before the horse. SENATOR TAYLOR asked if Ms. Howard was saying the Canadian agency should have reviewed seven detailed tailings impoundment plans before making the site decision. COMMISSIONER RUE interjected the State of Alaska has not had this same level of concern with many mines. Although he agreed the Canadians have the right to do business as it will, the United States has a treaty with Canada about water at the border. TAPE 99-12, SIDE B SENATOR TAYLOR said ADF&G was successful in stopping the AJ Mine. COMMISSIONER RUE disagreed. He asserted ADF&G had a significant enough concern with the mine in Canada, given the resources in the Taku River, ADF&G felt it was important to participate throughout the process. Number 584 SENATOR TAYLOR asked if the Canadians plan to clean up pollution from two old mines on the Taku River since, while they are developing the Tulsequah, road access and equipment will be available. He asked if that action would benefit the fisheries. COMMISSIONER RUE said it could be a benefit. He emphasized ADF&G is not opposing the development of this mine; it only wants to make sure it is not going to have a significant impact on the fisheries resources of the Taku River. SENATOR TAYLOR stated, "You don't think your elevating this thing up to Madeleine Albright did anything to slow this thing down? You're not opposing it, but you just want to slow it down - is that it?" COMMISSIONER RUE replied, "Senator Taylor, we want it to be done right. It's that simple." SENATOR TAYLOR asked where Commissioner Rue gets the arrogant belief that only he knows what is right and the Canadians do not. He noted that attitude assumes the Canadians want it done wrong. COMMISSIONER RUE said Alaska's interest and desire to be involved does not mean anyone is assuming Canada wants to do it wrong. SENATOR TAYLOR commented Alaska agencies have been involved for four years yet no one can pinpoint one thing Canada is going to do that would violate Alaska law. COMMISSIONER RUE responded part of the problem is the Canadian agencies have not decided on a final design and what kind of pollution will be allowed in the Taku River. The potential for violation of standards that Alaskan agencies would find unacceptable exists. Number 569 CHAIRMAN HALFORD asked Commissioner Rue to explain the mixing zone question. COMMISSIONER RUE said a proposed mixing zone is located in a side slough of the Tulsequah River. One issue involves the toxicity of the mixing zone in this location. CHAIRMAN HALFORD asked how close that location is to the Alaska border. MS. HOWARD estimated it is located 15 miles upstream from the border. CHAIRMAN HALFORD asked if the mixing zone could be 15 miles long. COMMISSIONER RUE said he was not sure and that he has seen impacts from mixing zones as far as 30 miles away. CHAIRMAN HALFORD stated if the mixing zone is approved, he would assume the argument would be about whether it is half or one mile long. MS. HOWARD said although the mixing zone is not going to be 15 miles long, the problem surrounds the $3 million fishery that migrates up the stream and spawns near the proposed mixing zone. Alaska does not allow mixing zones in spawning areas. CHAIRMAN HALFORD indicated he questions what right Alaska has to hold Canada to Alaska standards. He noted relative resource values are chosen by evaluators. He added it does not encourage him to help argue the next issue because maybe the Canadians are right. COMMISSIONER RUE explained the treaty with Canada allows Alaska an opportunity to jointly resolve issues that affect resources across the border. He thought this was an appropriate issue to bring to that forum. The treaty recognizes that water and resources do not stop at the boundary and that both countries share a responsibility for those resources. He asserted the State of Alaska's position has been very reasonable. SENATOR TAYLOR asked Commissioner Rue what standard the State of Alaska will hold the Canadian agencies to and whether it will be similar to the effluent limitations placed on Alaska placer miners or the water quality standards that prohibit one from taking one gallon of water from a Fairbanks residence and pouring it into the Yukon River. COMMISSIONER RUE said he has focussed on things like the tailings pond location. He said there wasn't a standard, but rather an issue of risk in placing it in a place that is susceptible to flooding which can go down-stream and wipe out the resource. SENATOR TAYLOR said the tailings here would not comply with the department's current standards. COMMISSIONER RUE said the other standard would be for roads which provides for fish passage. Number 530 MR. MIKE CONWAY, Director, Division of Air and Water Quality, explained that the main concern with the Canadians was to have some confidence there wouldn't be a catastrophic incident that would wipe out the fishery. He said the State made it clear to the Canadians that the United States is not trying to permit the facility. In a technical dialogue, the Department asked what kind of the base-line studies they had done to look at affluents, the background of the water that was already there, and what would the treatment do. It was an information gathering process. We were asking the Canadians what their standard is and they couldn't answer. British Columbia officials have now looked at our mixing requirements and have assured us that they are going to do something similar. The IJC process is what brought that discussion to a head and it wasn't even occurring before. We are not trying to say that they have to meet Alaska standards. The location of the tailings pond has been an EPA issue since they have an official who is a geologist who does tailing sites for a living. Looking at the information BC provided, he had some concerns about the four or five different sites. CHAIRMAN HALFORD asked if the State got the EPA into it or the other way around. COMMISSIONER RUE answered that Department had concerns about the location of the tailings pond because it was in a flood plain and in an area subject to debris torrents. They also wanted to make sure that other possible sites had been looked at thoroughly. SENATOR KELLY asked if they wanted to use barges to bring the tailings down the river and we disagreed. MS. HOWARD explained that they had several options for transshipment - roads down either side of the Taku, a slurry pipeline down the west side of the Taku, barging, and trans shipment over a road in BC. The company withdrew the slurry pipeline and road options early on and were focusing primarily on the barge and roaded option. The applicant ultimately commissioned studies and withdrew the barging option because they felt it wasn't going to be cost effective. SENATOR KELLY asked if they wanted to build a road now. MS. HOWARD replied that they wanted to build a 75 mile road and use existing roads to get to Skagway to use the existing facility there. SENATOR KELLY asked where the ore was shipped. MS. HOWARD replied to various overseas markets. She clarified that parties interested in countries can request a referral to the International Joint Commission (IJC) which is what the Governor has done at this point. There has not been a decision made about whether there will actually be a referral. She explained that the Canadians have completed the assessment process and have received a project certificate. They probably need to receive anywhere from 10 - 20 different provincial and federal permits, but they have at this point, only applied for one - a special use permit. B.C. is about to issue it conditionally based upon further study that will delay action for at least one year. SENATOR KELLY asked if they issue the permits and we still object, what's to stop them from going ahead with the project. COMMISSIONER RUE responded that there isn't anything to stop them. He added that he didn't think we would get an IJC referral, because it had to be a joint agreement which we don't have. SENATOR KELLY asked if there were any environmental problems with the facility at Skagway. COMMISSIONER RUE said he understands that facility has been taken care of. SENATOR KELLY asked if we are slowing down their process. MS. HOWARD answered that it's fair to say that the efforts that have been facilitated through their Department of External Affairs and our State Department since last April through December have slowed them down in terms of allowing some additional detail. However, she keeps in touch with the BC Environmental Manager who is responsible for this and he has said he felt the delay has been good in terms of working up some additional details that were not available. In terms of permitting, the applicant can't do anything until they have their array of permits and that's driven by the applicant. They apply whenever they choose to and so far they have applied for one permit. They will probably stage their permits over the next several years. Factually, this hasn't slowed down anything happening on the ground. SENATOR KELLY asked if we would let them use our port at Skagway if we didn't agree with their tailings pond or some other issue. COMMISSIONER RUE replied that no one had suggested anything like that. He said that they would continue to work together informally to address Alaska's concerns. SENATOR KELLY asked when they were going to start operating. MS. HOWARD replied her guess would be if everything went well, they could begin putting in a temporary road to bring in supplies as early as January, but she did not think a mine would be operable for three to five years, because of BC requirements. Number 391 SENATOR TAYLOR quoted Governor Knowles Press Secretary, Bob King, saying, "A mine like this would never be allowed in the flood plain of a major salmon producing river." He asked what work we did with BC environmental people on the Johnny Mountain Mine or the Snit Property. MS. HOWARD answered that the State had reviewed a number of other Canadian mines, including the Snit and Johnny Mountain, over the last decade and the Tulsequah Chief is the only one where the State has taken a strong position because of the resources and how the project is proposed. SENATOR TAYLOR asked why they didn't elevate any of the other properties. MS. HOWARD replied that the primary reasons had to do with several variables: the location, setting, transboundary river resources and actual design of the mines, themselves. SENATOR TAYLOR asked about the Isiktok which is the largest tributary to the Stikine which is our single largest salmon producing transboundary river that we have in this state. MS. HOWARD agreed and said that the distinguishing feature about the Tulsequah is the fact they were going to put a tailings pond in the flood plain of a transboundary river. SENATOR TAYLOR asked if she knew where the tailings pond was on the Snit or the Johnny Mountain. MS. HOWARD answered that she understands that they are not on a flood plain adjacent to a major transboundary river. Number 364 SENATOR TAYLOR said it was right in the middle of the Craig River drainage. He said he would like the elevated level of protection for the Stikine also. COMMISSIONER RUE volunteered to check on the Isiktok. SENATOR TAYLOR said no one remembers it or knows it, because no one cared. No one from Juneau has a cabin up there to worry about. He suggested they talk to Premier Clark who is real concerned about fish. COMMISSIONER RUE says he understands this and he has watched what has happened to BC's fish resources. "They don't have many left." SENATOR TAYLOR rebutted that it isn't because they developed mines. COMMISSIONER RUE said it was partly because of logging and the more urban development practices there. SENATOR TAYLOR said that in Canada a person is permitted for a project overall and then has to come back for a bunch of other permits at different stages, but Alaska wants all of the permits addressed up front. He asked if we are going to require them to give us the necessary technical background information, so the department will feel comfortable. He asked if we have to be at the table for every single step of this process. COMMISSIONER RUE responded that the department is not concerned with every single issue; there are a couple of key issues that need to be addressed. They couldn't even answer a basic question like, "What is your effluent?" SENATOR TAYLOR interrupted to say they had already been granted an overall permit. An effluent permit would have been a separate permit that would be granted to a separate person who developed that part of the project. COMMISSIONER RUE responded that was correct, but they had already said, "Here's your tailings pile and they didn't even know how it was going to be designed or dealt with." SENATOR TAYLOR replied that they knew it would be designed in a way that would comply with the laws and that's all they needed to know. COMMISSIONER RUE corrected him saying that they were not sure of that at the time they got their authorization. They hadn't done the engineering. He said this is one of the key issues they wanted to stay involved in as they move ahead. He doesn't want to change their process. Number 320 SENATOR TAYLOR asked how far the mine is from downtown Juneau. COMMISSIONER RUE guessed about 20 miles. SENATOR TAYLOR commented that we'd have a hard link road within 20 miles of Juneau. MS. HOWARD clarified that was not the case, the Canadians are planning on putting in a private industrial road from outland to the mine site that is going to have significant restrictions on it. It can only be used by Red Fern Resources. No one else has access. It stops at the mine site and is built to a standard to accommodate mine traffic at this point. SENATOR TAYLOR said he didn't want to shock her, but almost every road in the west was built that way. He commented that probably not paving it or having it torn up would probably be a condition. MS. HOWARD explained that having the road torn up is a condition that BC is imposing. CHAIRMAN HALFORD stated that the committee would have to break soon for another meeting. SENATOR TAYLOR thanked him for bringing up the issue, because Mike Scott, that area's representative in Parliament, wrote to him about his concerns. CHAIRMAN HALFORD said they hadn't heard any testimony from the miners and there had been some consideration of a legislative resolution on the topic. He apologized to the people who still wanted to testify. COMMISSIONER RUE stated that the department would continue to work with B.C. through their process. They weren't going to intervene more than that. They did not want to do the IJC, but they have been very willing to talk to us, he said. CHAIRMAN HALFORD added as long as his focus is what really happens on our side, not maintaining another preservationist area without a road. COMMISSIONER RUE said his focus has been on the fisheries resource and making sure the water quality and fish are there. CHAIRMAN HALFORD adjourned the meeting at 4:30 p.m.
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