Usibelli coal permits are valid

PALMER — Having reviewed the facts — and having taken nearly three years to do it — the federal government last week decided to penalize not Usibelli Coal Mine but the state’s Department of Natural Resources for a permitting problem mine critics pointed out.

This particular detail is a piece of a larger battle over mining in the coal hills near Sutton that began Dec. 20, 2011, when the federal Office of Surface Mining Reclamation and Enforcement sent what is called a 10-day notice to the state saying that, based on complaints from the Chickaloon Village Traditional Council, Earthjustice and the Trustees for Alaska, the state needed to explain the validity of Usibelli’s permits.

The permits were issued to a different company — Idemitsu Alaska — and then were transferred when the coal leases were sold to a second company — North Pacific Mining Corporation — before finally winding up with Usibelli.

Along the way, the permits were supposed to be invalidated if mining didn’t commence in five years. The state argued that the permits were implicitly renewed when the state didn’t decide to revoke them.

In a letter responding to the state’s assertions, Robert C. Postle, manager of OSMRE’s Program Support Division, said that’s not OK.

“We reject DNR’s argument that it is acceptable practice to implicitly decide to extend the time to commence mining. Although the record indicates that there might have been grounds to justify some of the extensions, neither we, the public, nor the permittees themselves, have any way of ascertaining the rationale behind DNR’s decisions,” Postle wrote.

He said that the permits don’t just disintegrate automatically when they pass this kind of deadline but, rather, DNR is required to take an action to revoke it.

Moreover, federal law doesn’t favor shutting down operations in this type of situation — Postle actually called such a potential move “draconian.”

“I do not think the appropriate remedy here is to close down Usibelli’s ongoing operation,” Postle writes. “The appropriate remedy is to require DNR to follow appropriate procedures.”

He said that he would ask DNR to work with him on an “action plan” for how to make sure this kind of lapse doesn’t happen in the future.

“We will work with them to make sure that our process is followed and is clear to us and to the public,” Russell Kirkham, Coal Regulation Program Manager with DNR, said in a phone interview Thursday afternoon.

The issue is actually one that opposition groups have raised in appealing DNR’s decision to renew Usibelli’s permits so Kirkham said he couldn’t get into the department’s positions on the underlying renewal issues.

As for Usibelli — the coal mining company put out a statement lauding the federal decision.

“After three years of careful review, OSMRE has concluded that, in fact, UCM’s permits are valid and that there is not cause for taking action against Usibelli (as the citizen groups suggested),” Lorali Simon wrote in an e-mailed statement on the matter.

She said that the mine is moving forward.

“UCM will work towards further development of the Wishbone Hill coal mine,” Simon wrote. “UCM completed a feasibility study on the project in 2011. Market conditions have softened since that time, however, UCM is still committed to developing Alaska’s coal resources in the Mat-Su Borough. We are reviewing the 2011 feasibility study to identify a mine project that fits today’s coal market demands.”

The Chickaloon Village Traditional Council, by contrast, said it was “disappointed” by the decision.

“What that decision from OSM(RE) is saying, to me, is that yes the state was in error because they were not actually following the rules and making sure that the permits and the work that was being done is valid and yeah that’s wrong but we’re not going to do anything about it,” said Lisa Wade, Health and Social Services Director for traditional council.

She said the tribe wants to have a meeting with OSMRE to talk about the tribe’s concerns about the project, something that federal agencies are supposed to do when it comes to federal decisions that impact tribes. She said that OSMRE has made and canceled two prior meetings already.

“We’re right now looking at what our next options are. There is an appeals process but we’re hoping that we can have consultations with OSM before we have to take that step,” Wade said.