The Seward Phoenix Log - News of the Eastern Kenai Peninsula since 1966

By Fern Greenbank
LOG Editor 

Begich asks for help with coal facility


Sen. Mark Begich has asked Gov. Sean Parnell to assist in resolving the work stoppage at Usibelli Coal’s dock operations at the Seward Coal Loading Facility. The facility has ceased operations since a 9th Circuit Court ruled the facility may be in violation of the Clean Water Act. Gov. Parnell responded with a politically laced letter.

Currently, Usibelli Coal’s operations are shut down at the Seward Coal Loading Facility because the company would be “at risk of violation,” said Tim Sullivan, public information officer for the railroad. He said there is a ship on the way from South Korea to pick up coal.

In a letter to Gov. Parnell dated Sept. 18, the senator asked the governor to direct the Alaska Department of Environmental Conservation to issue a compliance order so Usibelli Coal and Aurora Energy Services could get back to work.

“You and I both care about the employees of Usibelli Coal Mine, Aurora Energy and the Alaska Railroad who may be harmed if the facility cannot be brought into compliance shortly,” wrote the senator. “Additionally, the Alaska plaintiffs have raised issues about water quality that deserve attention.”

Begich said the work stoppage issue came to his attention during a visit by Lorali Simon, vice president of external affairs for Usibelli Coal and Joe Usibelli, the company’s owner. .

Begich said he spoke with Environmental Protection Agency Administrator Gina McCarthy and she agreed the situation warranted swift action. He said he was aware of the 9th circuit court ruling already because the congressional delegation receives regular reports on issues of importance in Alaska.

“I think the EPA got a much more nuanced look at the Alaska issue, especially our challenges with transportation and weather and deliveries,” said Begich. “She had the authority to act and I told her I had a crisis in front of me and needed help resolving it.”

The senator talked with McCarthy about the measures Aurora Energy, Usibelli Coal and the railroad have taken to lessen its environmental footprint. Begich reported to the governor that Aurora Energy was willing to take additional steps, within reason economically and if they actually provided more protection to the water of Resurrection Bay.

“The short term solution to this problem is for DEC to issue a compliance order that allows loading to continue while protecting Resurrection Bay and the people of Seward,” wrote the senator. “While I understand DEC has work underway, I wrote to underscore the seriouslness of this matter and ask that it be completed swiftly.”

The citizen lawsuit filed by Alaska Community Action on Toxics and the Alaska Chapter of the Sierra Club alleged violations of the Clean Water Act because coal falls into the bay from the conveyor belts used to deliver coal to ships. The district court ruled against them, agreeing that the Alaska Railroad Corporation and Aurora Energy Services were shielded under the Clean Water Act because the permitting authority, Department of Environmental Conservation, knew the coal was falling into the bay and permitted the operation with that knowledge. Even though coal is not listed as a permitted discharge on the permit issued to Aurora Energy and the railroad, the district court judge said it was disclosed to the permitting authority and that was enough to be shielded from liability.

The 9th Circuit Court of Appeals disagreed, ruling that the permit shield did not apply and it remanded the case back to the district court for further action. While waiting for the district court to take up the case again, Usibelli Coal and the railroad ceased operations.

At this time, said Tim Sullivan on behalf of the railroad, harm has “not yet” occurred but if the coal cannot be loaded, the railroad will have to look at making changes.

“If Aurora Energy Services isn’t loading coal, we may have to make changes,” said Sullivan.

The attorney representing the Alaska Department of Environmental Conservation, Assistant Attorney General John Treptow, said the DEC is working on an agreement known as a COBC, or Compliance Order by Consent, that would provide for certain provisions and monitoring.

“The issues brought forth by the 9th Circuit Court ruling are separate from the actual day to day operations,” said Treptow. “The lawsuit is about past conduct and alleged violations and we are now looking at current and future procedures.”

Treptow said the COBC would allow Aurora Energy Services, Alaska Railroad and Usibelli Coal to resume operations under agreed upon conditions. Ultimately, he said, the EPA has oversight in permitting issues though it has delegated authority to the DEC.

The attorney said he was not aware of the circumstances that lead to the letter from Sen. Begich but he is aware of the letter.

Begich said he understands the environmental concerns related to the coal facility and thinks they are important.

“There were several points I had to consider when asked to help,” said Begich. “First, the immediate negative impact in the short term could be devastating financially for people who work for the railroad, Usibelli and Aurora and a lot of other people in related industries.”

Gov. Sean Parnell responded to Begich’s letter in which he focused on the broader issue at hand, a political situation that has ensnared the Seward situation.

“The litigation surrounding the Seward Coal Loading Facility process is simply one of a series of small battles within the all-out war on coal that President Obama is waging nationwide, said Parnell.

Parnell said the president has been “testing various methods” to derail the Alaskan coal industry which is depriving Alaskans of an inexpensive fuel source and causing it to export high quality coal to an international market.

The governor took the opportunity in the letter to call out Begich on his stand related to proposed greenhouse gas rules related to existing power plants proposed by the Environmental Protection Agency (EPA.)

“You are on record downplaying this proposed rule’s impact on Alaska,” wrote Parnell. “I think you are mistaken.”

The greenhouse gas rules proposed do not have an impact on the pending litigation against Aurora Energy Services, which operate the Seward Coal Loading Facility for Usibelli Coal, rather, they are indicative of the EPA’s position on fuel sources that impact Alaska in other areas.

Parnell told Begich that the DEC was working on the compliance order with the affected parties and he hoped the EPA would stay out of the issue. On this the two agree.

“The EPA’s Region 10 office will need to make clear when it has seen the COBC that it has no plans to intercede and prolong the significant expense and uncertainty the litigation has already caused,” wrote Parnell. “I am confident in DEC’s work, but am always skeptical about EPA’s ultimate motivate related to coal in Alaska.”

On the ground in Alaska, far from Washington D.C., Lorali Simon with Usibelli Coal said they just want to get the coal moving, not address those larger issues right now. Because there is a question on the table about whether the Seward facility is permitted properly, a compliance order is needed now to get the coal loaded while the courts address the permitting issue.

“If we don’t get that coal loaded in Seward, it can combust, creating a mess,” said Simon. “We have dozers down there and personnel cooling it down.”

Simon said if the DEC determines additional measures need to be taken regarding coal that falls into the bay while loading is taking place, Aurora and Usibelli are prepared to follow a compliance order hammered out by all parties.

“Although the governor can drive policy decisions and not make directives, we know DEC Commissioner Hartig is very supportive of the coal industry and the governor can work with the commissioner to come to a resolution that is satisfactory to all parties,” said Simon.

Begich said he hopes the governor will “step up” and help move the situation forward.


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