Analysis of Proposed Amendments to the Borough Mining Ordinance Submitted by Peter Freer, Planning Supervisor Community Development 4-28-03
Origin of Proposed Amendments to the Mining Ordinance
Impetus for the currently envisioned amendments to the City and Borough’s large mining ordinance originated at the City and Borough Assembly retreat in January, 2003, where two of the Assembly’s stated goals were to revise the large mine permitting requirements and to facilitate Kensington Mine development. Subsequent to the retreat, revision of the mining ordinance was referred to the Assembly Lands Committee. Lands Committee chairman Randy Wanamaker stated at the February 10th meeting of the committee that, the intent of the committee is to review and amend the ordinance to make it more efficient and not so redundant. The Lands Committee met on seven occasions between February 10 and April 7 to discuss amendments to the mining ordinance. These meetings are listed below. February 10 February 24 March 3 March 10 March 24 April 5 April 7 Information item on mining ordinance revision Action item on mining ordinance revisions Work session on mining ordinance revisions Discussion of mining ordinance revisions Review of options for revising the mining ordinance Public comment on proposed mining ordinance revisions Mining ordinance revisions forwarded to Commission
The Committee’s April 7th action has placed the proposed, revised ordinance before the commission for review at its April 22 regular meeting.
Chronology of the Mining Ordinance
The original City and Borough of Juneau mining ordinance was adopted by the Assembly in July of 1986 and was revised in 1989 to include a requirement for socio-economic impact assessment. The ordinance was in effect when Echo Bay, the company proposing to re-open the Alaska-Juneau gold mine, received a large mine permit in 1993. The issuance of that permit was subsequently held to be invalid by the Alaska Supreme Court in Thane Neighborhood Association vs City and Borough of Juneau due to issues regarding phased permitting. The Kensington Mine has applied for, and received, two large mine permits, first in 1993 and again in 1997. Mine development was suspended because of low commodity prices. Kensington subsequently has revised its operating plan, and the project is currently undergoing review through a Supplemental Environmental Impact Statement. Because the revised operating plan for the mine is subject to NEPA review it would also require a CBJ large mine permit.
CBJ 49.65.190 provides that mining operations occurring in territory annexed to the CBJ (Greens Creek) which have the necessary sate and federal permits, “shall be deemed to have been issued a large mine permit”, the terms of which, “shall be deemed to be the terms of the state and federal permits.” The current ordinance establishes review and permitting procedures to conduct mining exploration; to gain approval to open a mine; to conduct mining operations; and to provide for the release of the required financial warranty at the conclusion of operations following reclamation of the affected surface area. For large mines, the ordinance requires the operator to prepare a socio-economic impact assessment prior to local mine permitting, identifying the reasonably foreseeable and demonstrable impacts of the development.
Proposed Amendments to the Ordinance
The proposed mining ordinance has two substantive changes from the existing ordinance. Each of these changes, summarized immediately below, is the subject of discussion in the “Analysis and Effects” section that follows. The two significant amendments to the ordinance are: 1. Summary approval by the Director of Community Development or the Planning Commission of proposed changes in existing, permitted mining operations not constituting a new land use or separate development. The current code does not provide for summary approval. Under the current code, technical revisions to the operating plan can be can be accomplished under the operator’s existing permit or through a permit amendment. 2. Creation of urban and rural mining districts with a provision that mines in the rural district that will undergo state and/or federal environmental review will not be subject to Chapter 49.65 of the City and Borough Code, but will be permitted as allowable uses with additional conditions. The current code does not contain urban and rural mining districts. All large mines developed in the borough are required to obtain a large mine permit.
Effect and Analysis of the Proposed Changes
Summary Approval of Revisions to Existing Permitted Mining Operations Effect Under the provisions of the current code, a revision to the operating plan of an existing large mine may be accomplished either ? ? under the operator’s existing CBJ permit, or, under an amended permit submitted according to CBJ 49.135.125, .130 and .135.
The proposed amendment provides another option for approval of changes in operating plans at a higher threshold than for “technical” revisions within an existing permit, and at a lower threshold than requiring the submittal of an amended permit. This “middle” option allows for summary approval by the Director of Community Development, subject to approval of the Planning Commission, upon a written determination that certain standards (listed below as i – iv) are met. These conditions are: i. ii. iii. The mine is located entirely outside the roaded service area; The application (for summary approval) is complete; The proposed change in mining operatio ns will have no significant impact within the roaded service area on habitat, sound, screening, drainage, traffic, lighting, safety, dust, surface subsidence, avalanches, landslides or erosion, and; The proposed change in mining operations will undergo environmental review and approval by one or more federal agencies, state agencies or both.
Analysis Several observations can be made on the possible effects of the summary approval amendment. 1. Summary approval may be granted before a state or federal environmental review is completed. Should an environmental review determine that an existing permit must be modified or an additional permit obtained, summary approval could appear premature. 2. Conditions attached to summary approval by the Planning Commission in proposed 49.65.155(b)(2)(C)(ii)(b) are meant to mitigate any spillover effects of rural mines on the roaded service area. As a practical matter, unless the mine is located near the roaded area, the only potential spillover effect of those listed is traffic. Other listed impacts would occur on-site and would not require spillover or off-site mitigation. 3. The term environmental review is undefined. This should be clarified to mean an environmental impact statement, environmental assessment, or an environmental analysis related to re-issuance or further conditioning of a city, state or federal permit. 4. Based on current and historic workloads, it may be difficult to achieve compliance with the 30 plus 20 day timeframe identified for the Director’s determination of Summary Approval.
Permitting Large Mines in the Rural Zone as Allowable Uses Effect Under the provisions of the existing ordinance, large mines developed in the borough must obtain a large mine permit. In issuing prior permits, CBJ has obtained independent reviews to assure that code standards for issuance of the permit are being met. For example, in the most recent large mine permit, issued for the Kensington Mine in 1997, the borough hired a consultant to certify that air and water quality would be maintained in accordance with federal, state and city and borough laws, rules and regulations. The borough also hired consultants during permitting of the AJ mine, to work with staff and the Commission, for the same purpose. Under the proposed revision, mines in the Rural Mining District would not be subject to the requirements of CBJ 49.65 and would be permitted as Allowable Uses. State and federal laws and permits would still apply. The Planning Commission would retain the authority under the proposed CBJ 49.65.to impose the conditions listed in 49.15.320 (f) (1)-(8) for allowable uses, plus additional conditions related to traffic, lighting, safety, noise, dust, visual screening, surface subsidence, avalanches, landslides and erosion. For a mine located in the rural mining district, the permit cannot contain conditions or findings on topics specifically addressed by federal permits, state permits, or both. Analysis Several observations can be made on the possible effects of the amendment. 1. The goal of reducing or eliminating redundant reviews and permits would be accomplished for water quality, air quality, hazardous materials and geo-technical areas such as avalanches and subsidence. 2. Planning Commission discretion would be constrained, to the extent the Commission would possess limited authority to deny an Allowable Use permit. 3. In addition to the items listed as conditions under Allowable Uses in 49.15.320(f) (1)(8), the Planning Commission could impose conditions that are discretely listed in the draft ordinance in proposed 49.65.115(c). These conditions, also listed above, relate to traffic, lighting, safety, noise, dust, visual screening, surface subsidence, avalanches, landslides and erosion. The commission is constrained from imposing additional permit conditions in these areas if these topics are already addressed in state and/or federal permits. Commission discretion is constrained to the extent it may wish to impose conditions it believes to be superior to those already in place. 4. Issuance of an Allowable Use Permit prior to completion of environmental analysis and the issuance of state and federal permits, could appear premature, particularly if the project encounters state and federal permitting difficulties. It is also possible that Commission conditions and state and/or federal permit conditions could be at odds if CBJ approval is granted (with conditions) prior to completion of an EIS or the issuance of state and/or federal permits. In a related sense, if an Allowable Use permit is granted prior to completion of an EIS or the issuance of state and/or federal permits, the commission could be unable to determine whether conditions ought to be applied or not.
5. NEPA review historically has addressed environmental impacts more thoroughly than social and economic impacts. Large projects will differ in their potential impacts on the human environment depending on their location, size and timing, and could, at any given time, produce negative as well as positive impacts. Retaining the ability to undertake more detailed socio-economic assessment may be in the CBJ’s best interests, particularly for projects large or sophisticated enough that a socio-economic impact mitigation agreement is desirable. A socio-economic impact assessment is essentially an information tool that helps determine whether an impact mitigation agreement is required. The assessment can document the cost of reasonably foreseeable and demonstrable adverse impacts of mine operations and establish a factual basis for determining payments for mineinduced demands on CBJ facilities and services. Under the existing mining ordinance, the mitigation agreement is incorporated as part of the CBJ’s large mine permit. No mitigation agreement would be required under the revised ordinance exempting rural mines from the provisions of CBJ 49.65. Socio-economic impact assessment and mitigation should be considered important in the mineral industry. Mines are, by their nature, a time-limited venture because the minerals they extract are non-renewable resources. The closure of a mine, and subsequent loss of employment, can be critical issues for the community. A mitigation plan can help prepare the community to deal with the consequences of mine closure through advance notice and the opportunity to act accordingly with regard to budgets, services and facilities. 6. The CBJ would not require a reclamation bond for large mines in the Rural Mining District, but would rely on federal and state authority for requiring reclamation bonding, in 36CFR 228 and AS 27.19/11AAC97.100 respectively. Federal bonding applies to federal land, while state bonding applies to all lands. While state law sets a reclamation bonding fee of $750 per acre, mining companies operating under state reclamation bonding requirements have all posted significantly higher bond amounts. State and federal agencies typically work cooperatively, where needed, to combine reclamation bonding amounts, so that mining companies need only a single bond. Cost estimating procedures for determining bond amounts are comparable between the state and federal governments. . 7. All lands and waters within the borough are used for recreation. The NEPA process addresses recreation use, and mitigation for recreation impacts can be addressed in the Forest Service plan of operations. Still, this remains an important concern for the borough because of the area’s high level of recreational activity and the potential need for more detailed analysis than might be provided through the NEPA process.
CBJ Participation in NEPA Analysis
If the mining ordinance is amended, CBJ staff would have to work closely with the US Forest Service and its contractors to assure that local interests are adequately addressed. For example, the CBJ would work through the NEPA process to:
1. Assure that the discussion of socio-economic impacts is adequate and gives local service providers (schools, hospital, law enforcement, recreation programs and facilities, housing) sufficient information for institutional planning. The relationship between socio-economic information in the EIS and the preparation of a mitigation agreement between the CBJ and a prospective mine operator would remain uncertain, however, unless the EIS Record of Decision required the preparation of a mitigation agreement. 2. Assure that the EIS provides an adequate description of impacts on recreational uses throughout the borough. Mitigation of these impacts may remain outside CBJ authority if adverse impacts on recreation are not addressed through the Forest Service-approved Plan of Operations.
Appendix A List of State and Federal Permits and Approvals
Federal U.S. Forest Service NEPA Compliance and Record of Decision Approval of Revised Plan of Operations National Historic Preservation Act (Section 106) Sections 313 and 319 of the Clean Water Act Compliance with TLMP Section 404 Permit (discharge of dredged or fill materials) NPDES Permit (discharge of point source pollution) Clean Air Act compliance Spill Prevention Control and Containment Plan (oil and hazardous substances spills) Clean Water Act 404 Permit (discharge of dredged or fill materials into US waters) Rivers and Harbors Sectio n 10 Permit (structures and work in navigable waters) Threatened and Endangered Species Consultation Bald Eagle Protection Act compliance Hazardous Materials Shipment 1
Army Corps of Engineers
US Fish and Wildlife
Other agencies that regulate the handling, shipment and use of hazardous materials include the EPA, DEC and the Forest Service.
401 Certification of Army Corps 404 Permit 401 Certification of NPDES Permit Approval of sanitary wastewater treatment and disposal systems Solid Waster Permit, including tailings Approval of Spill Response Plan (Oil Discharge Prevention and Contingency Plan) Air Quality Control Permit Alaska Coastal Management Program Consistency Determination Water Rights Permit Tidelands Permit Title 16 Permit for activities in anadromous fish Streams Determination of instream flows
Fish and Game
Appendix B State Socio-Economic Assessment and Local Mining Regulation in Western States
State agencies in several western states were contacted to determine 1)whether any states require socio-economic impact assessment in the issuance of state development permits, and 2) whether, to the knowledge of state officials, mining regulation is also undertaken by cities and/or counties. The synopses below are brief, but illustrative, of the oversight in place in these jurisdictions. Additional research is needed to determine the number of local jurisdictions, if any, that have entered into mitigation agreements with mining companies or other large project activities. State Socio-Economic Impact Assessment California. California is a home rule state, where local governments are in charge of oversight for mining projects in their own jurisdictions. The State Mining and Geology Board is responsible for reviewing and approving mining ordinances from these local governments (lead agencies) and ordinances are required to provide for elements as defined in the Surface Mining and Reclamation Act (SMARA) Section 2774(a). Mine operations are required to have three basic elements: a permit, a reclamation plan, and a financial assurance, all approved by the lead agency with review and comments from the State Department of Conservation's Office of Mine Reclamation. They also must provide some sort of environmental review, as required by the California Environmental Quality Act (CEQA). The State of California does not require socio-economic impact assessment. Colorado. The state has maintained an energy and minerals impact fund since the 1970’s. The fund provides capital project and infrastructure grants to (mostly) rural communities where large project development has, or will, place demands on local infrastructure. Idaho. Mine permitting occurs through a state sponsored joint review process bringing all stakeholders together, involving federal, state and county agencies. Almost all proposals are for development on federal land and socio-economic review occurs through the NEPA process. Local municipalities have special use permits but these rely on state or federal review processes. Counties have deference over many decisions but these are handled through either the state or federal review processes. The two state agencies involved in mine permitting are the Bureau of Land Management, Idaho State Office and the Idaho Department of Environmental Conservation. Nevada. Most mine proposals are for development of federal property and permit review is focused at the federal level. Thus, there is no state requirement for socio-economic impact review, which is addressed through the NEPA process. The state agency that handles mine permitting concerns is the state’s Bureau of Mining and Geology, Division
of Minerals. Communities have special use permits but these often rely on state or federal processes to work out specific details. South Dakota The state’s department of Environment and Natural Resources, Office of Minerals and Mining administers the state’s mining permitting process. Permits begin at the state level but must receive local approval before they can be issued. Local counties have Conditional Use Permits (CUP) which require socio-economic impact assessments, as well as other technical review and remediation plans. Developments on federal lands are reviewed at the local level for socio-economic impacts as an amended CUP, which carries the same weight as other CUPs. Local jurisdictions have extensive review and permitting requirements. Utah. The state does not have a requirement for socio-economic impact assessment of large project development. An official in the state Division of Mining, Oil and Gas was not aware of any city and/or county ordianances regulating large mine development. A state law does require the State of Utah to notify counties when a large mine is planned within the county’s boundaries. County commissioners can, if the proposed development poses significant issues for the county, seek to have the mine’s operating plan revised by (in effect) petitioning state government for permit conditions and/or changes in the mine operating plan. Washington. Local governments have authority under the Washington State Environmental Policy Act (SEPA) and the Growth Management Act (GMA) for overseeing some aspects of mineral development. For example, under SEPA, a county that issues permits for mine development would normally be designated as the lead agency for SEPA review. The GMA requires counties to classify natural resource lands including mining lands, and provides some zoning authority over mine development. Counties also use their zoning powers where mining operations must obtain a conditional use permit. Wyoming. The Wyoming Industrial Siting Council requires socio-economic impact assessment for all major projects (hard rock mines, open pit coal mines, power production plants) costing in excess of $140.9 million. According to industrial Siting Council Planner Tom Schroeder, these assessments examine a whole range of impacts for the construction phase only, and provide the basis for the distribution of state mitigation funds.
Local Government A cursory review of western states has revealed only limited instances where local governments regulate and issue permits for large mine development. The state of South Dakota seems to have the most comprehensive local review mechanisms in place of the states contacted (see the South Dakota narrative above), while the State of California grants broad powers to municipalities to regulate mining activities at the local level. In neither state have we developed an actual list of these municipalities. Elsewhere, state officials reported that mining regulation and permitting is a state function, except where local zoning approvals are required, or where state-specific laws are in place, such as the State Environmental Policy Act (SEPA) in Washington. Additional research is needed to determine where, and the extent to which, impact mitigation agreements have entered into between mining companies and local governments.
Staff has also contacted the Planners Advisory Service (PAS) to search for additional information on local mining regulation and has requested the PAS to send any such ordinances to the Community Development Department.
Table of Contents
Staff Recommendation Amended Mining Ordinance – Adopted by the Lands Committee dated April 7, 2003 CBJ Chapter 49.65.110-195 – Existing Mining Ordinance Summary of Options for Amending the CBJ Mining Ordinance Lands Committee Minutes dated February 10, 2003 – Mining Ordinance Only Lands Committee Minutes dated February 24, 2003 – Mining Ordinance Only Lands Committee Work Session on Mining Ordinance Revisions dated March 3, 2003 Lands Committee Minutes dated March 10, 2003 Memo entitled “Mining Ordianance Review Summary” from Lands Committee Chairman Randy Wanamaker to the Land Committee Members dated March 3, 2003 Letter to the Assembly from the Southeast Alaska Conservation Council entitled “CBJ Mining Ordinance Revision”, dated April 16, 2003 Listing of Documents Pertaining to the Mining Ordinance Revision, available at http://www.juneau.org/clerk/ASC/LC/2003/Mining%20Ordinance%20Documents/Minin g_Ordinance_Documents.htm