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Lawsuit targets federal approval of Mat-Su coal mine permits

  • Author: Zaz Hollander
  • Updated: September 28, 2016
  • Published March 19, 2015

WASILLA -- A coalition of environmental groups this week sued the federal Office of Surface Mining Reclamation and Enforcement, saying the agency erroneously supported invalid state permits for the Wishbone Hill coal mine near Sutton.

The lawsuit was filed Wednesday in U.S. District Court in Anchorage by Castle Mountain Coalition, Cook Inletkeeper, Alaska Center for the Environment, Alaska Community Action on Toxics and the Sierra Club.

The mine, about 8 miles north of Palmer, was originally permitted in 1991 but has yet to produce any coal. Usibelli Coal Mine acquired Wishbone Hill permits in 1997. Along with strip mining, Usibelli's plans call for a coal-washing plant, rock crusher and, at full production, 12 trucks making trips three times each per night to Port MacKenzie.

The Alaska Department of Natural Resources' mining division last October approved Usibelli's request for five-year permit renewals.

The groups argue the permits actually expired in 1996 and the Office of Surface Mining violated federal laws by not forcing the state to require a new permit process.

The federal office, which falls within the U.S. Department of the Interior, was created by Congress in 1977 with a mission to balance domestic coal production with protection of the environment.

Among other things, the lawsuit seeks a court ruling terminating the Usibelli permits.

The suit marks the latest legal salvo -- all of them as yet unsuccessful -- in the battle against the project but does not stop progress on the mine.

Usibelli spokeswoman Lorali Simon, calling the lawsuit a "non-story," said exploration could start this summer.

"What part of 'no' don't they understand? They have advanced this argument for over three years in a variety of state and federal forums including the court and it has been rejected every time," Simon said by phone from Juneau on Thursday. "They simply refuse to accept the legitimacy of Alaska's permitting process."

The Castle Mountain Coalition has 380 supporters, most with property in Chickaloon, Sutton or Palmer, according to the complaint. The other groups have 600 members from the Valley and more supporters.

The groups contend a new permit process is necessary given the major demographic and environmental changes happening in the mine area. Few homes surrounded the Wishbone Hill site when the permit was first approved 24 years ago, but now nearly 900 people live within a half-mile along Buffalo Mine and Soapstone roads.

"We're really concerned about air quality especially with the shifts in weather and the community growth that's more than doubled in the Matanuska Valley," said Shawna Whaley, a 38-year-old Chickaloon resident and Castle Mountain Coalition board member. "Transportation is a huge issue -- we're already battling semis on the road and to add coal trucks on top of that is a major concern."

Usibelli is operating on two permits originally issued in 1991 to a different company and renewed multiple times despite no activity at the site until 2010, when Usibelli started work on a haul road and other preparatory work. State and federal law generally require that mining start within three years of a permit, though extensions can be granted.

A U.S. District judge in 2012 dismissed a previous lawsuit against Usibelli over charges the company was operating without valid permits after ruling the suit should have been filed in state court and that the state should have been named as a party.

Despite questioning the legality of the Usibelli permits, the federal Office of Surface Mining in November found Usibelli was not operating without a permit after a three-year investigation. The agency acknowledged, however, that the state failed to respond appropriately when prior companies didn't start mining soon enough.

The lawsuit challenges that November decision, saying the Office of Surface Mining was responsible as the lead oversight agency to hold the state and the company accountable.

"In this case, we think they overlooked what their law is requiring and so wanted to make the point at the national level where it will get an interpretation so everyone is clear about how mining operations need to operate under the law," said Vicki Clark, with Trustees for Alaska.

The head of the federal mining office's western region said he couldn't comment on litigation.

Usibelli is still weighing plans for the mine's summer season against slumping coal prices, company spokesperson Simon said.

The state's permit renewal comes with conditions, including additional environmental monitoring before active work on facilities or mining can start, according to Russ Kirkham, manager of Alaska's coal regulatory program.

Trustees for Alaska as well as another group, Earthjustice, filed administrative appeals of Usibelli's permit renewals, Kirkham said. Those decisions are before the Natural Resources commissioner and a hearing officer, and Kirkham said he didn't have a timeframe for a decision.

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