Knowles Takes Red Dog Mine to U.S. Supreme Court

Knowles Takes Red Dog Mine to U.S. Supreme Court

Juneau, Alaska

November 4, 2002 (ENS)

Saying a recent Ninth Circuit Court decision undercuts the very core of a state's authority, the state of Alaska has filed an appeal before the U.S. Supreme Court of a ruling regarding the air quality permit at the world's largest zinc mine, Governor Tony Knowles announced Friday.

The state's position is that a ruling by the Environmental Protection Agency (EPA) will cost Teck Cominco's Red Dog mine millions of dollars for no environmental benefits and undermines the authorities Congress granted to states to protect their airsheds while allowing economic development. Alaska Governor Tony Knowles:

"The Ninth Circuit court decision undermines the long standing balance of power struck by Congress and accepted by the states when they assumed the responsibilities by becoming approved to run a program," Governor Knowles said.

"This court decision effectively nullifies a meaningful role for states, creates serious uncertainty for our industries when valid state permits can be arbitrarily invalidated, and severely dampens states' ability to promote environmental protection without abandoning common sense," he said.

At issue is whether the EPA has the authority under the Clean Air Act to invalidate a permit issued by an "approved" state, simply because it prefers a certain technology. Congress gave "approved" states authority to make permit decisions, as long as national air standards are met. In this case, Alaska's permit to the mine not only met all national air standards, it would have produced better environmental results at less cost using a more proven technology. The dispute centers on an air quality permit for a new diesel generator to support increased production at the mine north of Kotzebue.

The state Department of Environmental Conservation (DEC) issued a permit which directed Cominco, the operators of the mine, to spend $2.5 million to install effective air pollution control technology on the new generator and retrofit six existing engines with air pollution controls that meet all state and federal emission standards.

The result permitted the mine's power generation to increase without a significant increase in air emissions. Months after the public comment period closed on the DEC permit, the EPA rejected the state's permit and insisted on a different technology which is more expensive, unproven in the Arctic, and could result in more air emissions than under the state permit.

The EPA's mandated "selective catalytic reduction" technology is estimated at up to $1.5 million more a year in operating costs and up to $10 million more in construction costs than the state's preferred technology.

The state filing was docketed for consideration by the U.S. Supreme Court on October 31, and the federal government has until November 30 to respond to the state's brief. The court is expected to decide whether to accept the case for review by spring.

Knowles is writing fellow governors of western states to urge them to join an amicus brief as friends of the court, supporting Alaska's challenge. The amicus brief is being prepared by the states of Wyoming and North Dakota.

The Red Dog zinc/lead ore deposit is located in the DeLong Mountains of Alaska's Brooks Range. The remote site is approximately 90 miles north of Kotzebue and 55 miles from the Chukchi Sea, within a local government known as the Northwest Arctic Borough. Now the world's largest zinc mine, Red Dog was first discovered in 1953 when pilots and geologists noted mineral staining in the area.

The Native regional corporation for the Northwest portion of Alaska, NANA, became interested in selecting the land at Red Dog in 1976, and with the 1980 passage of the Alaska National Interest Lands Conservation Act, the Red Dog lands were chosen formally by NANA.

Shareholders in 1982 signed an agreement with Cominco American regarding development of the deposit and feasibility studies and environmental permitting began. Operations and production began in December 1989.

By 1998, Cominco Alaska had increased production to 1.2 million tons of concentrate. Recently, several new deposits in the area have been discovered.

In the fall of 2000, inspectors from the Alaska Department of Environmental Conservation found numerous air quality violations at Cominco's lead and zinc mine in Kotzebue. The 18 air quality violations included knowingly operating and failing to report equipment that exceeded emission limits and failure to conduct monitoring.

Cominco failed to report required information used to evaluate compliance with sulfur dioxide limits on 67 pieces of equipment.

At the port site, Cominco violated the National Emission Standard for Hazardous Air Pollutants by failing to properly determine the amount of mercury contained in sewerage sludge that Cominco regularly incinerates.

On December 18, 2001, closing the book on the alleged violations at the Red Dog Mine, mine owner Teck Cominco Alaska Incorporated, the Alaska Department of Environmental Conservation, and the Alaska Department of Law signed a settlement agreement.

Teck Cominco agreed to a civil penalty totaling $827,000. The state received $300,000 in cash and another $278,900 will be spent on supplemental environmental projects to help improve Red Dog's environmental performance and better protect public health and the environment in the area. The remaining portion of the settlement, $248,100, would be suspended if Teck Cominco meets the terms of the settlement.

DEC Air and Water Quality Director Tom Chapple described the supplemental environmental projects in the settlement:"Help in assessing impacts the mine may have on subsistence resources; a close look at Kivalina's water supply with recommendations on how to ensure safe drinking water in the community; and a year long ambient air survey at the villages of Noatak and Kivalina are of great benefit to this region of Alaska?.

In September, residents of Kivalina filed a federal lawsuit in Anchorage against Teck Cominco Alaska, operator of the Red Dog mine. The Northwest Arctic villagers allege numerous violations of the Clean Water Act and seek nearly $60 million in damages. Wastewater from the mine flows into the Wulik River, a primary source of food and water for Kivalina. Charlotte MacCay, senior environmental administrator for Teck Cominco Alaska, said the alleged water quality violations are covered by a legal agreement with the EPA. The native corporation that owns the mine agrees with MacCay.

Bob Jacko, Teck Cominco Alaska Inc. general manager has signed an agreement to utilize an Environmental Management System that conforms to the ISO14001 standard. Trucks are washed before leaving the Port of Chukchi to help prevent ore concentrate dust from blowing off the truck. August 2001. (Photo courtesy Teck Cominco)

In order to minimize the impact of the operation on native subsistence resources and on the environment, Red Dog Operations has promised to reduce waste and minimize pollution, continually improve environmental performance, and at a minimum, comply with all environmental laws, regulations, permit stipulations, and other environmental commitments. Jacko's memo includes the assurance that all contractors, suppliers, partners, visitors, and other third parties must adhere to Red Dog Operations environmental performance standards and regulations.

Teck Cominco pledged to provide information to all stakeholders, specifically recognizing the importance of local community relations, by promoting communication on the environmental impact of the operation.

Copyright Environment News Service (ENS) 2002. All Rights Reserved.