August 3, 2009
Mr. Richard Jackson
U.S. Army Corps of Engineers
Box 6896
Elmendorf Air Force Base, AK 99506-6898
Reference Number: POA-1990-592-M6
Dear Mr. Jackson:
The Resource Development Council (RDC) is writing to encourage the U.S. Army Corps of Engineers to move forward without further delay to conclude the public comment period and complete minor modifications to the Kensington Project 404 Permit. Given the Supreme Court’s recent decision validating the 404 Permit and the 9th Circuit Court’s lifting its injunction stopping work on the Lower Slate Lake (LSL) tailings facility, RDC urges the Corps to promptly allow construction to resume immediately.
RDC is a statewide, non-profit, membership-funded organization founded in 1975. The RDC membership is comprised of individuals and companies from Alaska’s oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to link these diverse interests together to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.
RDC has been tracking the Kensington Project from its inception and filed an Amicus Brief before the Supreme Court in support of Coeur Alaska’s efforts to develop the gold prospect. Over the years, RDC has submitted numerous comment letters and given testimony on the project. RDC staff has also visited the site. In its 34 years of existence, RDC has been engaged in multiple development projects, both large and small, spanning all of Alaska’s resource development sectors, including oil, gas, mining, tourism and fishing. It is difficult to find another project that has gone through as much scrutiny and multiple environmental impact statements with millions of dollars spent on environmental studies and engineering plans.
The project’s permit has been studied for over ten years, has undergone multiple public comment periods, has been approved by all state and federal agencies, defended by the Corps and the Environmental Protection Agency (EPA) in the Supreme Court, and is now poised to finally be completed, allowing Kensington to provide immediate benefits to Southeast Alaska. Coeur Alaska has endured a lengthy and exhaustive legal and regulatory process to reach a solution that will allow the project to co-exist safely with its surrounding environment.
RDC believes the facts and the law clearly support the validity of the current 404 Permit and its finding that the tailings disposal method is the environmentally-superior option. The Corps should not delay the project further by accepting the EPA’s suggestion to re-evaluate the permit and study yet another alternative method to handle the tailings. EPA’s request is unreasonable, wasteful of government and corporate resources and is unlikely to result in a better tailings disposal method. The Supreme Court validated the current tailings disposal plan as the environmentally-preferred option for the mine in a decisive decision. A new EPA review at this point would result in yet another substantial delay, another winter without jobs for many Alaskans and potentially jeopardize the project and its many economic benefits to Southeast Alaska.
Given the Supreme Court’s decision which specifically recognized the exhaustive review of alternatives undertaken in the permitting process leading to the 404 Permit for the LSL tailings facility, RDC is disappointed the EPA is contemplating another tailings disposal option. This new option has the appearance of a bureaucratic maneuver to circumvent the Supreme Court’s ruling and ultimately stifle Coeur Alaska’s ability develop the mine.
The Corps’ March 29, 2006 Revised Record of Decision (affirmed by the Supreme Court) and accompanying 404(b)(1) evaluation offer a detailed discussion on why the LSL disposal option is environmentally-preferred. In addition, the Final Environmental impact Statement provides further details of the evaluation that occurred during the extended process.
It is extremely important to recognize that after mine closure and reclamation, LSL will boast substantially better habitat for fish and aquatic life than currently exists. In addition, under the LSL option, only 0.4 acres of wetlands will be lost over the long term, compared to a loss of 102 acres of wetlands and a permanent eight-story high tailings pile under the Paste Tailings Facility (PTF) option now apparently being advanced by the EPA.
Unfortunately, the EPA appears to be developing “new” information to force the reopening of an administrative process that has been exhausted. The EPA claims three changes have occurred since the issuance of the permit that require the reopening of the permitting process for the mine. RDC believes all three of the issues raised are neither “new” information, nor significant. The issues raised by the EPA do not warrant re-evaluation of tailings disposal alternatives. To do so at this stage would undercut the finality and certainty of the Supreme Court’s ruling by inviting months of additional analysis, likely resulting in substantial delays from a new wave of challenges and appeals.
The assertion that the settlement discussions over the PTF constitutes “new” information is legally without merit. The PTF was a potential option discussed and evaluated in the context of reaching a compromise while the LSL alternative was bogged down in litigation. In this context, it was not itself a substantial change in circumstances, nor was a PTF significant new information, due to its similarity to the fully-analyzed and already-rejected dry stack option. The State of Alaska, in its July 29, 2009 comments, explained that the PTF is merely a variant of the dry stack option. The State noted the Corps is not required to evaluate every conceivable variant of every project plan. “The Corps cannot reasonably determine that refinement or variations of an alternative, in response to an incorrect decision of an intermediate court that is later reversed by the Supreme Court, is sufficient reason to revisit the original alternatives analysis,” the State said. “To do so at this state would open the door on this and any other project for any agency – or third party litigant – to assert or suggest, at any time and well after the fact, that there are other variants of alternatives that are significant and require supplemental consideration.”
Prior to Coeur Alaska’s withdrawal of the PTF from further consideration, EPA did not indicate that PTF was the preferable option, or that it could be permitted. During the environmental assessment process for PTF, EPA indicated in its technical comments that it considered PTF to be inferior to the dry stack option that had already been rejected by the Corps. Only after the Supreme Court decision upholding the Corps permit that rejected the dry stack option did EPA apparently choose to advocate PTF as “new” and “environmentally preferable.” Moreover, after considering the Corps findings, the EPA did not veto the Corps permit. The Court itself noted that by declining to exercise its veto, the EPA in effect deferred to the judgment of the Corps. Were EPA to exercise its veto now, such action would destroy any confidence and trust the regulated community has in the finality of the Corps’ 404 permitting. For a more detailed discussion on these issues, please see the attached letters from the State and Senators Murkowski and Begich.
Also attached is a compelling July 28, 2009 letter from the Central Council of Tlingit and Haida Indian Tribes of Alaska, which clearly articulates concerns the Council has with the EPA on the Kensington Project. The letter also points out that tribal citizens of Southeast Alaska were the beneficiaries of a highly successful affirmative action program by Kensington to recruit, train and hire Alaska Natives, other minorities and other Alaskan residents. Until the litigation halted construction on the project, hundreds of tribal families enjoyed support from family members working on the project. Since construction was halted, the letter noted tribal citizens have been without work. The Council assured EPA it would not trade jobs for pollution. Because the mine is located in the ancestral homelands of the Tlingit and Haida, Elders have met with Coeur Alaska and agency officials for extensive discussions on mining plans. The Council is confident that all of its cultural, environmental and subsistence concerns have been adequately addressed. “If we thought this mine would harm our traditional way of life or harm our ancestral lands and resources, we would be its most vigorous opponents,” the letter stated. “But we are not, we agree with and support the permit previously issued which approved the use of the Lower Slate Lake Tailings Option, a decision recently upheld by the U.S. Supreme Court.”
It is imperative that the Corps’ 404 permit not be delayed by unnecessary re-evaluation. The Southeast Alaska economy is already highly stressed, and the multi-year delay caused by litigation to this project has only made matters worse for local communities. Further delays in the resumption of construction at Kensington will only aggravate the economic hardships now being experienced by local residents.
As you know, Alaska’s economy is highly dependent on the development of its natural resources. This is especially the case in Southeast Alaska, where the federal government controls most of the land base, and where opportunities for a diversified economy are fewer than in other areas of the state. Projects like Kensington would boost the Southeast Alaska economy and benefit local residents. The mine would be a major pillar of the region’s economy, employing 200 people over the long term, with an estimated $15 million annual payroll. In addition, the mine is projected to account for an additional 499 indirect or induced jobs, boosting total payroll to nearly $36 million. Total tax revenues to the state and local governments is estimated at $10 million annually, with an additional $1.4 million annually in property taxes. In Juneau, the mine would be the second largest private-sector employer.
In conclusion, Coeur has already invested over $300 million in the project and has completed nearly all permitted construction, except for the LSL tailings facility. Given the recent court ruling, the lifting of the 9th Circuit injunction, and the completion of an exhaustive permitting process, to require additional unwarranted reviews now would set a terrible precedent and render future permitting decisions unreliable. Although the EPA estimates a new analysis would take eight months, at a minimum it would result in yet another lost construction season, hurting both Coeur Alaska and local residents awaiting the economic benefits of the project. Moreover, we believe the delay would likely last much longer, especially considering the fact that the permit would be vulnerable to appeals and more litigation, further straining the economic viability of the project.
RDC joins the Tlingit and Haida community, the City and Borough of Juneau, the State of Alaska and the Alaska congressional delegation in urging the Corps to promptly approve the Lower Slate Lake Tailings option, allowing construction to begin immediately. Thank you for your consideration of these comments.
Sincerely,
Resource Development Council for Alaska, Inc.
cc: Colonel Koenig
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