Aqueous storage heads to committee
April 25, 2019
Despite written opposition, the Haines Borough Assembly chambers overflowed with impassioned testimonies Tuesday evening in support of a draft ordinance that would ban underwater storage of hazardous material within 1 mile of any surface water.
More than 20 fishermen, conservationists and business operators asked the assembly to support the ordinance, proposed by assembly member and fisherman Will Prisciandaro earlier this month.
The ordinance would set environmental regulations on industries using hazardous material near waterways by prohibiting “aqueous storage,” commonly used by the mining industry.
Hazardous materials are defined under Alaska statute as “waste that exhibits the characteristic of toxicity, persistence, or carcinogenicity.”
Mining operations typically store leftover waste material, finely ground rock often mixed with toxic elements called tailings, immersed in water in large, open-air structures called tailing dams. The tailings dams remain after mining has ended.
Constantine Metal’s mineral exploration site 35 miles upstream of Haines is more than 10 years of exploration to search for zinc and copper that would constitute a viable mine site. Last week, the company applied for two management permits with state agencies to advance to the stage of sub-surface exploration.
Supporters of the ordinance worry that a breeched tailings dam would pollute the watershed they rely on for food, fishing, tourism and their livelihood.
“I’ve lived here my entire life and there’s been a lot of changes,” Steve Fossman said. “I think the one thing I would take away is, you gotta keep the watersheds clean both short term and long term.”
Prisciandaro said the Chilkat Valley is prone to earthquakes, heavy rainfall and avalanches that could break open a tailings dam and release toxic waste into the watershed, as was the case with Mount Polley mine in British Columbia in 2014.
Mount Polley failed due to an unstable foundation built on glacial layers beneath the dam, according to an analysis report conducted by an independent review panel afterwards.
“When an aqueous storage structure needs to be maintained in perpetuity, the risk for failure is inherently greater than zero,” Meredith Pochardt said, “That’s just too great for me to feel comfortable with.”
Mine operations on state land are permitted by Alaska Department of Natural Resources and Alaska Department of Environmental Conservation.
Advocates of the ordinance said they can’t rely on the state to protect local waters. “We can’t count on state and federal agencies to protect our waters,” said Russ Lyman.
Testimony in opposition to the ordinance, in person and in writing, took issue with the vague language and the ordinance’s unintended consequences on other industries, such as the Haines Borough fuel dock and Delta Western’s fuel terminal.
“I think we need a lot more definition put in it to figure out what it means on the hazardous side,” Jack Smith said. “Does it mean your boat fitting in the water with a full fuel tank? Is that hazardous? It’s unclear to me.”
George Campbell submitted written testimony that the ordinance “can and will affect every home in the Haines Borough.”
“Every business depends upon aqueous storage. Our electricity depends upon water storage for hydropower or we switch to environmentally awful diesel,” he wrote.
Long-time construction company owner, Roger Schnabel, said he has experienced state agencies’ ability to regulate.
“To believe that (federal agencies) are shortsighted or don’t have the power to regulate, I challenge that, because I’ve been living with them and having to work with them for 10 years now,” he said.
The assembly voted 5-1 to send the ordinance to the Government Affairs and Services Committee to further define language, set volume limits, and address unintended consequences.
Assembly member Brenda Josephson voted against sending the measure to committee, saying the ordinance would have “debilitating effects on businesses in Haines” and is “outside of our authority to be mini environmental protection agencies.”
Assembly member Tom Morphet said he agreed with Josephson that the assembly may not have the expertise to regulate hazardous waste storage.
“While we may not have the expertise, we have the willingness,” Morphet said. “Unfortunately, we live in a time that the state and federal agencies that we trust to protect us are owned by an interest that has no interest in protecting us, so we have to protect ourselves here. They make the same amount of money if they protect the Chilkat River or not.”
Assembly member Sean Maidy said that, when the Haines Borough Assembly didn’t have the expertise to take on marijuana ordinance drafting, they found it.
“I think going off of someone’s ordinances, like Juneau’s mining ordinances, maybe we start with that and we can see what we can work with from there,” Maidy said.
Josephson said that the ordinance would not shut the mine down.
“Nowhere have I said I’ve introduced it to shut down the mine,” Prisciandaro said. “The ordinance is an environmental regulation.”
Liz Cornejo, Constantine’s vice president of external affairs, cautioned assembly members to read the Supreme Court case ruling, which ultimately begged the question: Is it legal for a local municipality to impose more stringent regulations on a potential mine permitted by state and federal agencies?
After the Lake and Peninsula Borough passed a “Save Our Salmon” voter initiative that would have prohibited mining impacts to salmon-spawning streams, the Pebble mine developer and the state went to court against the borough. The Alaska Supreme Court in 2015 ruled that the borough could not have veto power over mining projects on state land. The justices held that the Department of Natural Resources had vested power on “all matters affecting exploration, development, and mining” of state resources.
Josephson asked Haines Borough attorney Brooks Chandler if it is legal for a borough to institute regulations more stringent than government agencies permit.
“This particular ordinance is an environmental regulation which applies to a wide range of activities, so it’s not illegal on its face,” Chandler said. “Whether it can achieve its goal is doubtful in my opinion, based on state statute as interpreted by the Supreme Court.”
“There’s a significant risk if the state says we’re going to allow this and the borough says we’re not, that the borough would end up on the short side of the stick based on existing precedent,” Chandler said.
But the Pebble mine case differs from the proposed ordinance in its scope and intent.
“We’re not squarely doing what the Supreme Court said you can’t do,” Chandler told the CVN. “The approach that we’re taking has not been strictly prohibited. I can’t say there’s no room for local regulation of a mine.”
“Can a local government have a permit process for a mine that would in effect give them veto power over the mine? The answer is no,” Chandler said. “Can a local government have an environmental regulation which impacts how a mine is developed? The answer has not been given, but the analysis used in the Pebble mine case identified a significant risk that the state allowing it would trump a local regulation.”
Chandler said the difference between a permit process and an environmental regulation would be “something that is project-specific” versus a regulation, “a general law that applies across the board.”
“There’s never been a case in Alaska where a local mining ordinance sets environmental rules has been directly challenged,” he said. “To the extent that this (ordinance) got pushed to (the Supreme Court), it would be the precedent for Alaska.”