Mines in Alaska undergo extensive federal and state permitting processes with federal and state regulators, after which is the inevitable litigation in which mine opponents ask the court to determine whether the federal and state regulators got it right.
The City and Borough and Juneau Mining Ordinance (49.65.130 (f)) adds two other steps to the permitting process. First, it requires CBJ staff to determine whether the federal and state regulators properly applied federal and state law. Second, it requires CBJ staff to determine that the applicant will meet CBJ air and water quality standards:
“The application review shall include the following determinations: whether air and water quality will be maintained in accordance with federal, state and City and Borough laws, rules and regulations …”
As Rich Moniak correctly observed in his column on Sunday, May 7, the CBJ staff does not have the expertise to second guess federal and state regulators in determining whether federal and state air and water quality standards have been met.
Moreover, there are no separate, independent CBJ air and water quality standards for the staff to apply. The CBJ currently relies on federal and state standards. So, on what basis does CBJ staff make this determination?
Not only would these layers of CBJ staff review cause delay in an already slow federal and state process, they set up extra opportunities for litigation. For example, what if the federal and state regulators determine that federal and state standards have been met, but CBJ staff determines the contrary? Even if the CBJ staff determines that federal and state regulators properly applied federal and state standards the CBJ could be sued by a mine opponent for that finding.
The CBJ should rely on federal and state regulators to do their job, which they will almost certainly have to defend in court. Another review by CBJ staff adds nothing but cost, delay and another opportunity for litigation. The mining ordinance needs to be changed.
• Dan Fabrello has lived in Southeast Alaska for 45 years in the communities of Zarembo Island, Wrangell, Ketchikan and Juneau.
