Laws & Coal

The Alaska Constitution Article 08: Natural Resources
Article 8 is quoted often by Dan Sullivan, the Alaska State Department of Natural Resources Commissioner.

AAC stands for Alaska Administrative Code, the text of most codes can be found online. However, the comprehensive regulations for 11 AAC 90 are not available with the rest of the codes.

244 pages of Coal regulations (11 AAC 90) are available at DNR's Coal web site most recently modified April 24th, 2009.


Authority: AS 27.21.030
Please follow the above link and check out how this statute AS 27.21.030(12) mentions "accept, receive, and administer grants, gifts, or other money".

Another interesting section of AS 27.21.080 is about renewing permits states an "opponent of renewal of a permit has the burden of proving that the permit should not be renewed".

Side notes on some permits:

Did you know that the Coal lease/permits Usibelli purchased from another mining company for Wishbone Hill in the 1990's had NO EXPIRATION DATES.

The DEC Air Quality Construction Permit was issued in 1990 to previous companies and also has no expiration date.


Copied from Alaska Administrative Code:

AAC Editor's note: The sections adopted by reference by 11 AAC 90.001(a) have been filed by the lieutenant governor. Copies of those sections are available from the Division of Mining, Land and Water, Department of Natural Resources. The history note for 11 AAC 90.001 reflects amendments to the entire chapter, including 11 AAC 90.002 - 11 AAC 90.911, even though those sections are not printed in full in the Alaska Administrative Code. Under the authority of AS 44.62.125 (b)(6) and 44.62.180(1), the Department of Law has corrected the original effective date of 11 AAC 90.001, and therefore of the entire chapter, to read 5/2/83. That is the effective date specifically prescribed for these regulations by sections 5 and 6, ch. 29, SLA 1982, but 12/31/82 was mistakenly used when this regulation was first distributed in Register 84.

Local Planning Commission volunteers were asked to resign after drafting Resolutions to regulate and protect our community. This letter from DNR was sent to the MSB Assembly.

DEPARTMENT OF NATURAL RESOURCES
DIVISION OF MINING, LAND & WATER -- MINING SECTION
550 WEST 7TH AVENUE, SUITE 920
ANCHORAGE, ALASKA 99501-3514
PHONE: (907) 269-8621
FAX: (907) 269-8930

Matanuska Susitna Borough Assembly
350 E. Dahlia Ave Palmer, Alaska 99645

Dear Assembly Members:

December 22, 2010

The Borough Planning Commission has put forth two resolutions, 10-31 and 10- 32, dealing with coal mining issues in the Borough. During the planning commission’s presentation at the Joint Assembly/Planning Commission Meeting on October 26 it was alleged that the Alaska Surface Coal Mining Control and Reclamation Act (ASCMCRA) does not address issues such as noise, dust, light or other issues not specifically addressed in the ASCMCRA performance standards.

The DNR wants to reassure the Assembly that the DNR does indeed have authority to address such issues stemming from coal mining operations or other such mining operations in the State. In addition to the comprehensive regulations (11 AAC 90) and statutes (AS 27.21) governing all aspects coal mining and related activities, the regulations recognize that the state needs the authority to address environmental issues not directly mentioned in regulations. This allows the DNR to address various conditions found in Alaska.

The state is willing to work with the Assembly, the community, and the developer in adopting additional standards that will minimize and mitigate the potential adverse environmental impacts of mining to the local citizenry. For instance, the DNR previously dealt with noise and light issues with respect to development of the True North/Fort Knox mine near Fairbanks. Under AMCMCRA, this can be accomplished through technical amendments to the existing mine permit and pursuant to 11 AAC 90.127(2).

Russ Kirkham, Coal Program Manager, and I are available to discuss how we can move forward in addressing these issues.

Sincerely,

Rick S. Fredericksen
ADNR Mining Section Chief

cc:
R.Kirkham
D. Mylius
E. Fogels

“Develop, Conserve, and Enhance Natural Resources for Present and Future Alaskans.”


Coal Resolution 10-31
MATANUSKA-SUSITNA BOROUGH
PLANNING COMMISSION RESOLUTION NO. 10-31

A RESOLUTION OF THE MATANUSKA-SUSITNA PLANNING COMMISSION RECOMMENDING ASSEMBLY ADOPT THE STATEMENT OF PRINCIPLES FOR OPEN-PIT MINING OPERATIONS WITHIN THE MATANUSKA-SUSITNA BOROUGH, AND CREATE PROCEDURES FOR BOROUGH COMMENTS REGARDING OPEN PIT COAL MINING.

WHEREAS, the Matanuska-Susitna Borough Economic Development Strategic Plan requires the development of infrastructure to support coal mining operations to be compatible with area communities; and
WHEREAS, the May 25, 2010 legal memorandum on “MSB Regulation of Surface Coal Mining and Reclamation” expresses the view that “the ability of the Matanuska-Susitna Borough to regulate surface coal mining operations has been pre-empted by the State of Alaska; and
WHEREAS, AS 27.21.260 requires that the State Department of Natural Resources decisions regarding surface coal operations “shall…reflect the planning activities of federal, state, and municipal government”; and
WHEREAS, AS 27.21.140 states, “A person who is or may be adversely affected by the issuance or revision of a permit or a federal, state or municipal agency may file written comments, objections to the permit, or revisions with the commissioner within 30 days after the last publication of the notice required in AS 27.21.130 and may include with the comments or objection a request for an informal conference”; and
WHEREAS; the May 25, 2010 legal memorandum states that “in a case where DNR did not exercise its jurisdiction to fully regulate a coal operation, the Alaska Supreme Court ordered that they must do so” and

WHEREAS; the Matanuska-Susitna Borough, with a population of 88,379 according to (2009 population estimates), is the second most populated area in the state; and
WHEREAS; large coal fields exist within the borough near developed residential areas; and
WHEREAS; the proximity of its residential neighborhoods to potential open pit coal operations make land use conflicts in the Borough unique, and calls for unique standards for the operation of mines; and
WHEREAS; significant state, borough and non-profit funds have been spent on stream reclamation and habitat renewal to restore and enhance fish populations; and
WHEREAS; an April 2, 2010 study of the “Ecological Integrity of Streams Related to Human Cancer Mortality Rates: shows that “Coal mining was significantly associated with ecological disintegrity and higher cancer mortality” and
WHEREAS; other medical literature shows multiple adverse effects of open pit coal mining and coal transportation, including cancer, asthma, other lung diseases, high blood pressure and kidney diseases affecting adjacent communities; and
WHEREAS; a Health Impact Assessment (HIA) is a tool which facilitates the evaluation of health concerns within the environmental planning process; and
WHEREAS; HIA’s are in wide use internationally, supported by the Center for Disease Control, and many banks require an assessment of health impacts as part of their criteria for funding industrial proposals; and
WHEREAS; the “Statement of Principles” calls for a Health Impact Assessment to accompany new open pit mining applications; and
WHEREAS; the Borough is responsible for using whatever local control available to it to protect the health, safety and welfare of its residents, and to minimize land use conflicts; and
NOW, THEREFORE, BE IT RESOLVED, that the Matanuska-Susitna Planning Commission does hereby recommend the Matanuska-Susitna Borough Assembly adopt the “Statement of Principles for Open Pit Coal Mining Operations Within the Matanuska-Susitna Borough;” and
BE IT FURTHER RESOLVED that the Assembly direct the Planning Commission to recommend written findings through a public hearing process based upon the “Statement of Principles” for every application for an open pit coal mining permit, and then delivered to State Department of Natural Resources, the Department of Environmental Conservations, and any other relevant agency; and
BE IT ALSO FURTHER RESOLVED, that where a proposed open pit mine is in conflict with the “Statement of Principles”, that the borough staff request an informal conference with representatives of Department of Natural Resources, as allowed under AS 27.21.140.

ADOPTED by the Matanuska-Susitna Borough Planning Commission this 4th day of October, 2010.


_______________________________
MARK MASTELLER, Chair




ATTEST:


JUDY E. THOMPSON, Planning Clerk


Coal Resolution 10-32
MATANUSKA-SUSITNA BOROUGH
PLANNING COMMISSION RESOLUTION NO. 10-32

A RESOLUTION OF THE MATANUSKA-SUSITNA PLANNING COMMISSION RECOMMENDING ASSEMBLY LOBBY THE ALASKA STATE LEGISLATURE FOR CHANGES IN STATE LAW WHICH WOULD CLARIFY THE BOROUGH’S LOCAL CONTROL OVER LAND USE STANDARDS RELATED TO OPEN-PIT COAL MINING AND THE TRANSPORTATION OF COAL IN THE BOROUGH.

WHEREAS; the Matanuska-Susitna Borough Economic Development Strategic Plan requires the development of infrastructure to support coal mining operations to be compatible “with area communities;” and
WHEREAS; the Matanuska-Susitna Borough, with a population of 88,379 according to (2009 population estimates), is the second most populated area in the state; and
WHEREAS; medical literature shows that coal mining and coal transportation have multiple adverse effects on adjacent communities, including cancer, asthma, other lung diseases, high blood pressure and kidney diseases; and
WHEREAS; large coal fields exist within the borough near high population areas that were opened up for residential development by state action; and
WHEREAS; coal from the various coal fields will necessarily be transported directly through well-populated areas of the borough; and
WHEREAS; in response to a comment regarding light and noise pollution related to a coal exploration application, the Department of Natural Resources (DNR) representative stated, “This comment is beyond DNR’s scope of review of the proposed exploration renewal under 11 AAC 90. The Mat-Su Borough has its own ordinances and policies that it enforces on a community by community basis that reflects the values of the community. [Applicant] may require local or additional permits from the Mat-Su Borough, which is beyond the DNR’s scope and jurisdiction.”
WHEREAS: the May 25, 2010 legal memorandum on “MSB Regulation of Surface Coal Mining and Reclamation” expresses the view that “the ability of the Matanuska-Susitna Borough to regulate surface coal mining operations has been pre-empted” by the State of Alaska, and
WHEREAS; “MSB Regulation of Surface Coal Mining and Reclamation” seems to be in conflict with DNR’s statements regarding Borough jurisdiction over coal mining operations, and
WHEREAS; AS 27.10.010 (d), which deals with mining operations other than surface coal mining states “This chapter does not alter or diminish the authority of another state agency, a state corporation, the University of Alaska, or a municipality under its laws and regulations”;
WHEREAS; adding the language “This chapter does not alter or diminish the authority of another state agency, a state corporation, the University of Alaska, or a municipality under its laws and regulations’; to the Alaska Surface Coal Mining Control and Reclamation Act would clarify the borough’s jurisdiction over land use planning related to surface coal mining and the transportation of coal in the Borough; and
NOW, THEREFORE, BE IT RESOLVED, that the Matanuska-Susitna Planning Commission does hereby recommend the Matanuska-Susitna Borough Assembly lobby the Alaska State Legislature to include the language “This chapter does not alter or diminish the authority of another state agency, a state corporation, the University of Alaska, or a municipality under its laws and regulations” in the Alaska Surface Coal Mining Control and Reclamation Act (AS 27.21.010-999).

ADOPTED by the Matanuska-Susitna Borough Planning Commission this _____ day of _________, 2010.


_______________________________
MARK MASTELLER, Chair




ATTEST:


JUDY E. THOMPSON, Planning Clerk