By Sarah Pridgeon
With Rare Element Resources set to initiate its industrial siting permit application concurrently with the FEMA process, Kimber Wichmann of the Department of Environmental Quality’s Industrial Siting Division was last week asked to outline the process for the County Commissioners. Potential issues such as road agreements and division of impact assistance were brought up, but the answers may not be clear until the process is in full swing.
Securing an industrial siting permit is relatively swift for a state process, said Wichmann, explaining that it moves from initiation to decision within 135 days. This means that it can be vital for the county to understand the full implications of the project before the process begins.
“Once a facility gets an industrial siting permit, local government cannot require anything further,” said Wichmann.
“It’s very important that road agreements, mitigation agreements and so on are in writing before we get the application, or that you get a condition to be in the actual permit when issued. This is something we find a lot of counties scramble with at the last minute.”
In response to a question from County Attorney Joe Baron, Wichmann explained that a concern such as a disputed road maintenance agreement between the county and the permittee can be presented alongside the application.
“If it’s left unaddressed, it cannot be required later – and that’s a big issue for counties and municipalities,” she explained.
Decisions cannot be made regarding the access route for the mine, however, until the Forest Service has completed the NEPA process.
“How do we get a road agreement when we don’t know which road [they’re] using?” asked Commissioner Jim Hadley.
“Well, we’ll get one on every road that comes off the mountain,” joked County Attorney Joe Baron in response, adding that the only choice available may be to develop a formula that will work for any outcome.
To be involved in the process, the public will be able to submit comments in writing or can make limited appearance statements at hearings. To become an involved party requires requesting party status and attending both the pre-hearing and hearing.
The process also aims to ensure that counties and municipalities are aware of potential population increases and the impacts of operating staff, which can be significant. It is split into four steps, all of which are public except the initial jurisdictional meeting.
“The purpose of our office, as we go through this process, is to identify the positive, negative and net impacts,” Wichmann said. “We make sure that the counties and public have had sufficient time to work on these things and have mitigation in place for anything they think might impact their area.”
The jurisdiction meeting, which for RER has already taken place, identifies areas in which current resources are not sufficient and includes any environmental, social or economic stresses caused by sudden or prolonged population growth, said Wichmann, such as for law enforcement or county roads. This meeting can take place up to a year before the application and is the point at which a study area is set for the socio-economic analysis, identifying the locations that will be primarily affected.
“Right now, the status for us is that we have gone through the jurisdiction process and we are hoping to submit our application in the first quarter of 2014,” announced Linda Tokarczyk of Rare Element Resources.
As soon as the application is received, it will be sent to 18 state agencies for review, as well as to local governments who may wish to apply for impact assistance and to county clerk offices for public viewing. One county is also determined to be the locale where most of the construction will take place.
This county will be asked to host a meeting of all involved municipalities and counties at which every affected party must unanimously decide how the impact assistance will be dispersed. An agreement is achieved in 99 percent of cases, said Wichmann, but the department can do its own impact modeling if a unanimous decision cannot be reached.
Impact assistance is only available through the industrial siting permit process and is influenced by such things as construction location, housing plan, delivery points and tax exemptions. Whether rare earths are tax exempt remains unclear.
“I’m a little concerned about whether the mineral they are extracting is tax exempt, because that will make a big difference in the impact assistance funds,” pointed out Wichmann.
For RER’s rare earth mine project, mining in Crook County and processing in Weston County may also influence the siting permit process, because the project will be submitted as one but may have differing tax implications for each county. The division will not have full information until the application is received and cannot yet predict the intricacies of the process.
“It’s one of the challenges,” said Wichmann. “We know what’s going on here and we know that you each have a big piece of this project, and we also understand what the company is going through at a federal level to get it permitted, so they need to keep it as one project. So we’ll see how this turns out.”
Within 90 days of the application, the ISC hearing will be held. All testimony is heard regarding the completeness of the application and the comments and issues raised by the public and state agencies.
Within 45 days, a decision is distributed that serves as the final word. None of the issues that were brought up during the hearing can be contested again unless significant changes occur that affect the scope or design of the project.
Concern was expressed during the presentation about the two permits running concurrently.
“It’ll be the chicken and the egg: which comes first, the Forest Service or this?” commented Baron. “One of the arguments [that comes up] may be that you can’t issue this until you get that.”
Anything federal is considered to be outside the DEQ’s realm, explained Wichmann, which makes the FEMA and industrial siting processes completely separate. This is the first time in her experience, however, that a project has gone forward with its siting permit without having the federal process complete first.