Alaska's regulations need streamlining

One does not have to be a septuagenarian to recall how things were before Richard Nixon signed the Clean Air Act and the Clean Water Act into law. Whole industries used the commons for the disposal of pollutants, rivers caught on fire, fish died, and the air was not fit to breathe in many places. The bureaucracy, both federal and state, changed in response to those laws, and a regulatory aegis was thrown over everyone, especially those in the resource development industries.

Mining in particular has been singled out for special attention, both because of its pre-1970 legacy and because of an unfortunate confusion in the definition of what constitutes a pollutant. The Red Dog Mine, for instance, has long rated high on the toxic release inventory due to its tailings stockpile, even though stacking and containing of tailings at an open pit mine is integral to the recovery of minerals.

Likewise, the division of jurisdiction between the Environmental Protection Agency and the U.S. Army Corps of Engineers with regard to the discharge of pollutants versus the discharge of dredged material has been litigated to the U.S. Supreme Court time and again, despite clear guidance from the Court that dredged material is not within the scope of EPA’s jurisdiction.

Within Alaska, miners were initially blessed with a lead-agency initiative called the Alaska Placer Mining Application (APMA) which was intended to be a one-stop shopping vehicle that allowed the Alaska Department of Natural Resources to coordinate with all other interested agencies in the permitting of small mining operations in remote areas.

Generally, the APMA process has worked well; however, from time-to-time the dark underbelly of the administrative process has come to light.

Administrative law in general is a complex area and few people become involved with the process. Generally, the rules vary from agency to agency, are inconsistent, involve time-consuming procedures and are subject to abuse, especially when a regulator has an agenda.

Bureaucrats, like everyone else of course, have opinions as to how to do their jobs; however, under our system of government there is a presumption of objectivity on the part of the bureaucrats irrespective of bias. If a regulator elects to spin a web of red tape about a project, the costs and delays can be monumental. The recourse for the would-be miner, on the other hand, are limited.

Challenges to decisions can take years. There is no mechanism for segregating subjective impediments from objective standards. When the lead agency has a perspective and the contributing arms of the government chime in, there is little the applicant can do but withstand the onslaught.

Clearly, this kind of morass requires attention. While the government cannot function without its minions, there is no room for arbitrariness in the exercise of regulatory discretion.

Alaska is rich in resources, most of which are in remote areas. To a certain extent conflicts are going to be encountered with NIMBY (not in my back yard) groups, but for the most part they are more cultural than substantive. Often, resource development enhances the availability of subsistence resources.

Miners coming into the country have every right to expect fair treatment and the timely processing of an APMA, especially when the newcomers are well-financed and are supported by state-of-the-art technology. Permitting delays stand out as the one reason above all others why more mining companies are not investing in Alaska.

Regulatory reform is not a big ask. The pinch points in the process are few and distinct. Essentially, what may be enough is the establishment of an arm of the Ombudsman’s office where permit applicants who have complaints about unfair treatment at the hands of an agency can receive a fast track, objective review of a specific claim.

Currently in some agencies, the only avenue for review of a ground-level decision is a formal regulatory decision followed by an adjudicatory appeal where what is needed is immediate relief.

If Alaska is going to purport to be “open for business” the State’s regulatory scheme must be streamlined. There is no excuse for a routine permit application, which should be issued in the space of several days, taking one or two mining seasons to be processed.

Disclaimer: Mr. Tangen often represents individuals and companies who may be affected by the implementation of the foregoing proposal.