Letter from federal agency fires up coal foes

SUTTON — A letter in which a federal agency appears ready to reverse state permitting decisions has opponents of coal mining in the Valley celebrating and a company that wants to mine here decrying what it says is the federal government bullying the state.

“The Obama administration is trying to bully the state of Alaska by second-guessing permitting decisions that were made 16 years ago,” Lorali Simon, Usibelli’s vice president for external affairs, says in a press release.

On the other side, the Chickaloon Native Village, Friends of Mat-Su and a coalition of concerned nearby homeowners applaud the federal government for putting the state on notice that the permit will be invalidated unless some new information sways the Office of Surface Mining.

“This is a clear affirmation by OSM that the state and Usibelli Coal Mine have not been doing their due diligence to protect the health of our communities,” Tim Leach, conservation director for Friends of Mat-Su, says in a competing press release.

The tribe also weighed in on the development.

“It’s shameful that DNR refused to enforce their own permit requirements,” the tribe’s secretary, Penny Westing says in yet a third press release.

All of this revolves around a letter the Office of Surface Mining sent to the state, Usibelli and interested parties on July 19. The letter says that the state could send more information to the feds by July 29, but judging by the record, it appears as though Usibelli doesn’t have a valid permit and no valid permits to mine Wishbone Hill have even existed since 1996.

Back in 1996, the permit belonged to NPMC, or the North Pacific Mining Corp. Under Alaska law, according to the OSM letter penned by Kenneth Walker, one of the office’s field managers, mining permits covered five years and gave an option to renew for another five.

But, if the NPMC didn’t start mining in three years that permit was invalid unless NPMC could prove it didn’t start mining either because it was tied up in litigation or couldn’t start “for reasons beyond the control and without the fault or negligence of the permittee.”

The contention from Friends of Mat-Su, the tribe and homeowners was that the permit died in 1996 after NPMC failed to begin mining operations in time. OSM sided with the opposition, noting that nothing in the record shows either the state or NPMC addressing specifically why mining operations didn’t start.

“The decision thus cannot be viewed as lawfully granting an extension,” Walker wrote.

Since that permit is not valid, it couldn’t have been extended in 2002 and 2006 like Usibelli and the state say it was.

“Neither UCM nor DNR seem to have made the showings or findings required … to justify an extension of time to commence mining,” Walker wrote. “DNR approved renewals for UCM in January 2002 and again in November 2006. DNR’s documentation for these renewal actions provides no evidence that UCM requested an extension of time to commence surface coal mining operations or that DNR found that an extension was justified due to litigation that precluded mining activities or threatened economic loss or for reasons beyond UCM’s control and without its fault or negligence.”

The state contends that by approving the extension of the permit at the end of the five years, it had “implicitly granted” an extension to Usibelli of that three-year deadline to start mining. Walker said he could find nothing in state laws or regulations allowing that kind of an implicit deadline extension.

Walker’s letter isn’t the final word, but it will be if the state can’t convince him he’s wrong.

Meanwhile, Simon described OSM’s reasons for potentially declaring the permit invalid “technicalities.” She said that the bigger issue here is that the state issued a permit and the federal government is stepping in to second-guess a decision previously left up to the state, albeit with federal oversight.

“That’s the larger policy issue here, the infringement on states rights,” Simon said.

She also noted that federal agencies had overseen all of the previous permit renewals and allowed them to proceed.

“Other administrations under different presidents have reviewed our permit renewals. It is this administration that is very anti-development, very anti-coal,” she said.

Walker’s letter only contemplates an order halting mining operations and requiring a new permit. There is no talk of fines. Simon said she hasn’t heard any either.

“If someone begins coal mining activities, just like any other activities, without having a valid permit I would expect there would be some kind of a penalty,” she said. “But we have been operating under a valid permit and the state of Alaska continues to defend our valid permit.”

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.