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Alaska's DNR ignores the law on Wishbone Hill mine permits

  • Author: Pete Praetorius
  • Updated: September 28, 2016
  • Published March 24, 2015

It's always a sad day when a group of citizens has to sue their government because it has failed to enforce the laws, which is the case concerning the lawsuit that "targets federal approval of Mat-Su coal mine permits" (ADN, March 20).

A coalition of environmental groups is suing the Federal Office of Surface Mining because OSM has continued to allow the Alaska State Department of Natural Resources to honor a much out-of-date permit to mine coal at Wishbone Hill near Palmer. This permit is currently held by Usibelli, but the permit was first issued in 1991 to Idemitsu Alaska. Idemitsu failed to start mining, and they asked for and received an extension from DNR on Aug. 24, 1994.

According to the law (AS 27.21.070(b)), a company must start to mine within three years of receiving a mining permit. If a company in unable to start mining, they must apply for and receive an extension. An extension can only be granted for the following two reasons: "due to ongoing litigation and based on the assertion that the circumstances were beyond its control and without its fault or negligence." Apparently Idemitsu met this test, because they were granted an extension.

Of course, Idemitsu never did open a mine, and the mine permit was transferred to another company, North Pacific Mining Corp., on Sept. 19, 1995. And then on Jan. 31, 1996, NPMC asked DNR to extend the mining permit because they said they needed more time to secure a partner (with more money). It's worth noting here that NPMC did not, according to OSM, "specifically request an extension of time to commence surface coal mining operations and did not address the requirements of AS 27.21.070(b)."

Apparently, some in DNR agreed that NPMC did not address the requirements of AS 27.21.070(b). A few days after receiving the request from NPMC, Brian McMillen, a staff member at DNR, sent a memo to Jules Tileston, then director of DNR's Division of Mining and Water Management. In his memo, McMillen says, "A related problem is that AS 27.21.07O(b) states the permit terminates if the permittee does not begin mining within three years. This would be the second extension. NPMC's justification is weak when compared to the wording in the statute."

DNR should have rejected NPMC's request for a permit renewal because the company had not met the legal obligation for an extension -- not having enough money to mine is not a valid reason for an extension. But what happened next for nearly 20 years will likely offend those who cling to the belief that our state government, and DNR specifically, unerringly follow our laws.

According to OSM, on Oct. 23, 1996, DNR granted another five-year permit to NPMC with the condition that "should mining not commence within this renewal term, then due to the length of time since the original permit application work was completed, no further renewals will be considered without an extensive review of the original applications and the baseline information they were based on."

DNR's threats were, apparently, quickly forgotten. On Dec. 1, 1997, DNR approved Usibelli's application for a permit transfer from NPMC. And then on April 20, 2001, Usibelli applied for and later received (on Jan. 18, 2002) a permit renewal with no mention of a request for extension of time to commence mining. According to OSM, "DNR's decision (to grant Usibelli a permit renewal) does not reference any request for extension of time to commence mining operations and is silent with regard to granting an extension."

This same disregard for the law on the part of DNR happened again when DNR granted Usibelli yet another five-year permit renewal on Nov. 27, 2006, with no mention of a request for extension of time to commence mining. And like a broken record, OSM states that "DNR's decision does not reference any request for extension of time to commence mining operations and is silent with regard to granting an extension."

So here we are now in 2015, and a mine, first permitted nearly 25 years ago, in 1991, is not up and running. And despite saying in 1996 that no "further renewals (of a permit to mine at Wishbone Hill) will be considered without an extensive review of the original applications and the baseline information they were based on," DNR continues to renew Usibelli's mining permit.

Some might claim that forcing a company to mine within three years of receiving a permit is "over-regulation" and an unnecessary burden on business. However, the opposite is true: First, had DNR enforced the law, those companies without the financial means or legitimate interest in mining would have to forfeit their permit, which would have freed the prospect up for a company serious about mining. Given that Usibelli has said that a mine at Wishbone would be a 12-year operation, this mine could likely have been operated, closed and (presumably) cleaned up by now. Essentially, DNR and Usibelli have illegally prevented another company from coming in and mining.

Second, by requiring a company to mine within three years of receiving a permit, the state and the public are assured that conditions on the ground and regulations governing the permit are current. After 25 years, conditions on the ground near Wishbone Hill are dramatically different from what they were when the permit was first issued. DNR should follow through with what they said back in 1996. Because mining has "not commence(d) within this renewal term (of five years), then due to the length of time since the original permit application work was completed, no further renewals will be considered without an extensive review of the original applications and the baseline information they were based on."

The current permit to mine should be discarded, and Usibelli should have to go through the process of applying for a new permit based on current conditions. Some claim that Alaska's environmental regulations are among the best in the nation. Whether or not this is true, if our laws and regulations are not followed and enforced, they're meaningless.

Pete Praetorius is an associate professor of communications at Matanuska-Susitna College in Palmer.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com

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