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The Pebble Blog

The gigantic Pebble copper and gold prospect in Southwest Alaska is one of the touchiest topics in Alaska today.

In this blog, I'll track news that is significant or interesting about the Pebble project. I'll also try to generate discussion and information sharing about some of the claims and counterclaims about the project, and mining in general.

Please keep your comments courteous and on topic. If you violate the ADN comment policy, your posts will be deleted.

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About Elizabeth Bluemink ebluemink@adn.com

I've been writing about mining in Alaska since 2004 and without a doubt, it is one of the most interesting topics that I cover at the Daily News. I've been a newspaper reporter for the past 10 years. In the Deep South, I specialized in reporting about environmental conflicts and pollution cleanups. For two years, I covered commercial fishing, mining and logging in Southeast Alaska. In my current job as a Daily News business reporter, I write about mining, tourism, Native corporations and other businesses.

A legislative legal opinion on Clean Water 3/Ballot Measure 4

Posted by Elizabeth Bluemink

Posted: June 5, 2008 - 5:14 pm

I'm attaching a June 3 Legal Services analysis of Clean Water 3 that was requested by Rep. Paul Seaton on behalf of one of his constituents. (I mistakenly called it Clean Water 1 last night.)

Here's a few of the statements from the legal analysis.

"No existing statute or regulation is directly amended or repealed by the initiative. The initiative could change how the existing state statutes and regulations may apply to large scale mining operations."

How much regulatory standards may change is "not clear" due to the "ambiguity of the initiative's language."

"In this instance due to the ambiguity of the language, the ballot summary, arguments and analysis presented to the electorate ... in conjunction with the language of the ballot measure may guide how the initiative is understood by the electorate and consequently what a court may hold is the legal effect of the initiative of the state's regulation of water quality."

And, "litigation concerning its meaning is likely."

Attachment	Size
Ballot_Initiative.pdf	1.26 MB

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3 June 14, 2008 - 9:31am | Victor67

Initiative garbage.

If one is interested in reading the “Alaska clean water initiative 3”

http://www.elections.state.ak.us/petitions/07wtr3.pdf

Significantly, just last week, the top legal advisor to the Alaska Legislature wrote that this measure is highly ambiguous, its affect on existing mines is unknown, and it could 'prohibit prospective large scale mining operations' in Alaska.

The state should spend some time and money determining what all the ramifications are and inform the public of their findings. How else will one know the consequences of their vote?

Of the 78 “toxic pollutants” listed in the initiative one must wonder if the sponsors have a clue as to what most of them are? What the existing background levels for these watersheds are. What makes them believe that existing regulations do not include all of the mentioned “toxic pollutants”?

Pitting one industry against another is a common fear tactic used to stop productivity and one must realize this fear tactic cares nothing for the facts, science or other ramifications.

If the sockeye salmon were “endangered” I am sure the proponents would have jumped on that bandwagon, but since there are so many sockeye to “protect” they have chosen to use that fact for their platform instead.

This initiative would arbitrarily override science-based processes and standards established through proper legislation and reflected in extensive laws governing permitting and mining that are in place today. The ADF&G plays a major role in the permitting process as do EPA and DEC. Anyone who has ever attempted permitting any kind of mine now has a new definition of the word “rigorous”.

Every potential mining proposal should have the right to be heard based on it’s own merit and not defeated by overreaching blanket prohibitions before the proposal can even be heard.

The initiative is deceptive and ambiguous so serious questions remain as to what the true effects of the measure will be.

Whether one is for or against the Pebble mine being developed is beside the point. The method of using this initiative to stop the project is inappropriate and, if passed, will be disastrous to Alaska and the mining industry. The Pebble prospect should be heard based on it’s own merit as an individual project.

Gillam and company think they are pretty clever calling the initiative "Clean water" when it has nothing to do with clean water or fish but only intended to stop mining in Alaska. They think Alaskans have an IQ of 32 I guess. Their dishonesty is repulsive.

Thank you for your time.

June 14, 2008 - 12:01pm | Sockeyemark

I think it has everything to do with CLEAN WATER

of course it is aimed at the mining industry. Their processes use these chemicals, I'm sure that's how they came up with the list.
We Alaskans want our water kept clean, if it puts a burden on the mining industry then so be it. Frank Murkowski signed a bill 2 years ago to let the mining industry dump this list of chemicals in the tidal mixing zones of salmon producing rivers. That is our great Government watching out for the state of Alaska. Was probably one of the stupidest things he did, but it happened with virtually no fan fair.
The Clean Water initiatives will raise the bar in how we deal with large scale mines in Alaska. Specially since they obviously have had our Governor in their back pocket at one time. Though I think Sarah will hopefully turn the mixing zones deal around.
Yes, dishonesty is repulsive and the mining industry is not immune to it.

June 18, 2008 - 9:12am | Victor67

Not about clean water

The statement "of course it is aimed at the mining industry. Their processes use these chemicals, I'm sure that's how they came up with the list."

This absurd statement simply shows how much you know about the mineral extraction process.
Mixing zones are also a seperate subject and have nothing to do with this initiative.

2 June 9, 2008 - 9:15pm | NoBob

How the meaning of Water 3 will be determined

I hate being the only commenter--I don't want to drive others away. Anyway, I think it is important for people to understand how the meaning of Water 3 will be determined--should it pass.

A law like this relies on an administrative agency to implement it. Most state statutes passed by the legislature, for example AS 46.03.070 which I have referred to before, specifically refer to the implementing department. Not so here, but DEC is the likely candidate.

So what will happen is that DEC will look at this new law . . . They will promulgate regulations based on it or they will decline to promulgate regulations or they will issue a permit that considers it or refuse to issue a permit based on it. Someone will object and then sue.

When the aggrieved party sues, their case will be against DEC, not the mine.

Now when a court considers the action of an administrative agency like DEC, the standard most often applied is "abuse of discretion." DEC decides in the first instance whether to do the regs or permit. The court decides if they are out of line.

This makes a difference. DEC will get the first crack at what this means. And in the case of several arguable interpretations--as Bullard mentions--they will get deference in the eyes of the court.

Now when DEC makes a legal determination like this, they rely on their lawyers. This is the office of the Attorney General. And, guess what! The AG has already issued one opinion on what this means--and said it means the same thing as existing law.

Hopefully this makes sense. The bottom line is that Water 3 means nothing in the law (not politics) except something with a load of spelling and punctuation errors is now on the books.

June 10, 2008 - 9:41pm | PuckFebble

Just curious

I think you fail to underestimate the amount of trust Alaskans have(and for good reason) the strength of the permitting process here, the enforcement of those laws, and the disaster mitigation that would follow the unthinkable happening such as a tailings dam failure.
It has only came to the attention of the average person when the proposal comes at such a critical area to an already existing successful industry.
Passing HB134 ought to be a priority for the mining industry, sacraficing Pebble for the rest of the industry seems wise to me.

As to why you think the lead agency will be the DEC when it is DNR that is the lead agency involved in mining regulation? I know they work closely together, but considering CW3 targets specifically large scale mining. I would think the main agency is DNR. But you appear to be knowledgable. So explain to us please, how the often quoted Alaska Code seen below is already covers CW3.
CW3 is much more specific, and is less up to interpretation that the current law says.

Sec. 46.03.070. Pollution standards.

After public hearing, the department may adopt standards and make them public and determine what qualities and properties of water indicate a polluted condition actually or potentially deleterious, harmful, detrimental, or injurious to the public health, safety, or welfare, to terrestrial and aquatic life or their growth and propagation, or to the use of waters for domestic, commercial, industrial, agricultural, recreational, or other reasonable purposes.

June 11, 2008 - 7:49am | NoBob

DEC would administer

Water 3 because Water 3 addresses water quality standards and DEC is the agency that does that. They have the expertise. It would be senseless to set up a parallel water quality regulatory agency in another department. (But, good Lord knows our system isn't beyond doing something senseless.)

The statute and regulations are a package that regulate water discharges from all sources. You need to look at all of them to understand the system. The actual numbers--e.g., how many ppb of this or that--are found in the regs. There are no numbers in AS 46.03.070 and there are no numbers in Water 3. What will the Water 3 numbers be? Perhaps that's the issue, but it sure isn't being discussed. So far we just have the AG's thought that they will be the same as current law. Perhaps it is telling that the proponents of Water 3 have offered nothing in this regard.

June 12, 2008 - 12:21am | PuckFebble

Interesting

I would also like to see specific numbers as well. The problem is that our laws concerning this have no teeth. Fines have proven to be nothing but operating expenses. I always get a kick out of it though when the Pebble folks come to town and spout about how if there is overwhelming opposition to the mine it wont get permitted, and if it does end up polluting they will get shut down. This has turned out to be bogus in practice.

Personally if it were up to me, which I prefer to keep things simple and straight forward. Three violations of water quality permits in a certain period of time, and the mine loses its permits, and reclamation bond(which as of 12/07 was 11million at Red Dog) Then it either gets resold, or reclaimed.
Also, a very novel idea is one that former Senate President Rick Halford testified to concerning HB 134. Which he basically suggested that the state make a law where the development companies aquire no court enforcable rights until all the permits are in place. Because what the "let the process take place" argument really is, another way of saying, let us get far enough in the process where it would become very expensive and litigious to stop any mine for a reasonable cause.

1 June 5, 2008 - 9:01pm | NoBob

Interesting read . . .

I assume you meant Clean Water 3. Among the parts I liked were the repeated gigging of the initiative authors' spelling errors. But there was some substance too.

It's telling the number of times the opinion says that this bill is incredibly vague and that its meaning is impossible to determine. Why do we have this? (I explained in my comments on the previous thread, of course.)

To me it is just short of sickening that something like this will appear on the ballot to be added to a statute (AS 46.03.070) that is both more specific and broader--all to the effect of causing legal confusion. This initiative is cheap political tactics masquerading as high principle. It is only the incompetence of the mining industry that keeps the mask from being ripped off. (Of course I only refer to the industry's hacks and flacks and this has no bearing on engineers who design mines!)

The bottom line of the memo is ironic. Bullard suggests that a court will decide what this means by looking at how it is pitched to the public. Good grief! The mining companies seem to be saying that it's horrible. Gillam's flack, Hackney, says it's just about Pebble and no big deal and says he just wants to apply standards to salmon (which is a lie, because he knows perfectly well that existing law applies to salmon). So how is a court supposed to sort this out? It strikes me that there are serious due process issues here.

Sure there will be litigation. But I can't imagine that it will be much more than a day after the two year limit expires that the legislature takes this stinking corpse off the books.

Here I will add something that legislative counsel didn't consider. In the normal course, initiatives that say the same thing as existing law are not allowed on the ballot. I don't expect that to be the case this time. Neither industry nor the state has argued the 'same law' point and industry has not made it part of their appeal. I am not sure why. Perhaps their lawyer was on vacation when the first opportunity passed. Perhaps they are afraid of losing the issue before the ballot. But they will have to face the meaning of this thing eventually--that is if it passes. I just scratch my head.

June 9, 2008 - 6:40am | minewatcher

question

All that being said, do you think Ballot Measure #4 will pass?

June 9, 2008 - 8:06am | NoBob

I don't know

I hope not. When these "only about Pebble" people came out guns blazing against Red Dog, they shot themselves in the foot. Now even super-anti-Pebble Ted Stevens is against #4. They've lost momentum, but we won't know the real shape of this until after the supreme court rules.

June 10, 2008 - 10:00pm | PuckFebble

Red Dog

Argument is now bunk. The Red Dog people, especially the folks at NANA need to take a big step back from thier propoganda campaign about how clean they think thier mine is. They are turning this into a more divisive issue than this needs to be among the respective regional corporations. There is already a divide among Bristol Bay. There is a growing one between NW & SW Alaska.
Clean Water 3, specifically adresses this in Section 3. Which says:
Section 2 of this Act does not apply to existing large scale metallic mineral mining operations that have received all Federal, State, and Local permits, authorizations, licenses, and approvals, on or before the effective date of this act, OR TO FUTURE OPERATIONS OF EXISTING FACILITIES AT THOSE SITES.

Red Dog, Fort Knox, and a bunch of others that are currently in operation will not be effected by this. Why are the pro-mining zealots continuing to lie about this fact?

June 11, 2008 - 9:56am | asrcp9

"...OR TO FUTURE OPERATIONS

"...OR TO FUTURE OPERATIONS OF EXISTING FACILITIES AT THOSE SITES."

So when a mine wants to build a new building necessary for the mine's development that has already been established, and this building or facility will help in maintaining the environmental quality of the surrounding area or maybe even improve the quality, this initiative won't allow this to happen because of the initiative's lack of looking towards the future.

June 11, 2008 - 11:51pm | PuckFebble

Did you miss...

The part where it said it does not apply to existing mines?

June 12, 2008 - 8:12am | asrcp9

Yes, I did, but it doesn't

Yes, I did, but it doesn't clearly exempt expansions to the already existing mine. Which does occur through out a mine's existence.

June 11, 2008 - 7:30am | NoBob

Tell me about Aqqaluk

Ore will run out at the main Red Dog pit in a couple of years. They are now trying to permit the adjacent Aqqaluk deposit so they can continue mining. Is that covered? How do you know?

June 11, 2008 - 11:56pm | PuckFebble

Being that

Red Dog already has those necessary permits, so I would assume no, by reading BM4. Red Dog as a mine, and its facilities already exist. I interpret this to mean that they are exempt.
I am curious though as to why you would be willing to allow discharges from a mine that are toxic, considering people live downstream from the mine and use it for thier subsistence and drinking water uses.

June 12, 2008 - 9:37am | NoBob

Aqqaluk is not permitted

It is adjacent, but is that the same site? One could argue . . . And lawyers will argue. And judges might decide. When someone writes "divisive" (to use the sponsor's word) laws of uncertain meaning, there will be unforeseen consequences. Or perhaps they are foreseen but veiled.

Existing law doesn't allow toxic discharges from a mine. DEC aquatic life and drinking water standards apply to discharges. I support the existing law. It's tested, it's rational, and it's part of a nationally accepted system.

The initiative is divisive and poorly written. There are two spelling errors and two punctuation errors in the first operative sentence. The AG found that words had to be added for it to make sense.

The initiative sponsor (Hackney) says that discharges were not regulated--just as you suggest. You need to be educated. This is simply untrue. People like Hackney know this. They shouldn't be spreading this lie to others.

June 12, 2008 - 8:03pm | PuckFebble

Hi There,

Ah lawyers, cant live with them, well, cant live with them!
Speaking only for the lawyers employed by mineral exploitation companies, right now they are arguing it would apply to them and cause a great shutdown of thier industry, and prevent the development of the Aqqaluk site. But I will bet a pound of the best salmon strips in Bristol Bay that if BM4 were to pass, they would use the same basic argument I did to say that the measure doesnt apply to Red Dog and any expansion there. They surely will make sure they can have thier cake and eat it to.

June 11, 2008 - 6:01am | pmjusa

Propoganda?

The propaganda now is that this issue is being spun as “divisive” instead of substantive by Pebble opponents. (This is especially ironic coming from you.) Initiative supporters also said CW1 wouldn’t create a mining shutdown. “Pale Green” Patrick Flatley assured me at the Sportsman’s Show RRC booth that the initiatives would ONLY effect Pebble – even offered me a beer if I could find otherwise. (C’mon Patrick, admit it. It’s laughable that Pebble opponents wanted to pull CW1 on account of it’s being “divisive.” Surely the RRC pays you enough to afford a cold brewski. Petition them for a raise! ;)

Red Dog spokesmen won’t take a position on Pebble. Why should they? They should be proud of what they’ve accomplished. They also know if CW3 passes, mining opponents can accomplish the same thing as CW1, and they will be open to frivolous lawsuits come permit renewal time. (Kivalina’s frivolous lawsuit settlement will only further etch the memory.) Then Alaskans will start to feel the expense of the mining shutdown and the true cost of this deceptive, pseudo-democratic initiative process.

The Pebble Partners continue to inspire confidence in their project by explaining it and offering support to those with environmental concerns, to get involved. Really explaining it and not trying to misrepresent it to influence votes. Not by doing as you have, divisively maligning nearly all mining companies, their associates, profits, etc. and inciting mob mentality to diminish their honest efforts. (The mob eventually shoots itself in the foot.) It is businesses like that that create jobs and make benefits possible. Sure, reasonable regulation is necessary, but not choking rules provoked by vilification.

June 12, 2008 - 12:13am | PuckFebble

Hi There...

PMJ, I hope all is well with you. Im gonna just respond paragraph to paragraph to keep in simple.

1. Firstly, I dont base my opinions on those of the RRC. I wouldnt know Patrick Flatley if he walked in the door right now. I was pointing to the already existing divide that has been caused by Pebble, and the growing one that is happening between NW and SW AK. Surely you have heard the phrase divide and conquer. Well that is practice Pebble is clearly using.

Red Dog spokespeople not taking an opinion on Pebble? Well maybe they havent directly. But the full page ads in the Bristol Bay Times, the blocks of TV ads, the upright hostility showed by NANA and Red Dog towards anyone opposing Pebble would show that they have a clear opinion and agenda, they need not come out and say it to make it obvious to everyone.

The Pebble Partners and inspiring? HA! They inspire communities and families being torn apart. I have been to every meeting PP has offered in my community. It has been nothing but propaganda, promises, half truths and flat out lies. Sean McGee and Paul Henry consistently dodged important questions, they were hostile to some audience members, including a disabled individual. If Pebble wants any credibility, they better start with changing the hacks they have sent out recently. Nothing like having a Canadian and an ill-tempered Irishman come tell us in Bristol Bay what is good for us and the salmon we rely on.

As for maligning all mining operations and the companies, I have only mentioned the worst examples in the world, which also happen to be the ones wanting to develop Pebble. What a horrible coincidence. Allowing these companies to develop Pebble is like letting a child molester work in the school, because they promise not to do it again.

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A legislative legal opinion on Clean Water 3/Ballot Measure 4