Pebble cites EPA emails in claim assessment was biased


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Pebble mine developers claim they have proof Environmental Protection Agency officials acted with bias and a pre-determined mindset when examining the potential risks a mine could pose to Bristol Bay fisheries.

Documents and email chain records from as far back as 2010, obtained by Pebble Limited Partnership through the Freedom of Information Act, show EPA Region 10 staff in lengthy communications about the prospect of preemptively banning large mines in the Bristol Bay watershed. These communications occurred between staff within the EPA and with agency staff and conservation group members.

In an email dated Sept. 14, 2010, EPA Aquatic Ecologist for Bristol Bay Phil North wrote to current EPA Region 10 Office of Ecology, Tribal and Public Affairs Manager Michael Szerlog and program manager Richard Parkin that the land in the Nushagak and Kvichak drainages — where Pebble’s copper and gold claims are located — is owned almost entirely by the State of Alaska and private parties, making it susceptible for development, and because of that, action should be taken to prioritize its protection.

The email predates by months the EPA’s Feb. 7, 2011, announcement it would undertake a yearlong risk assessment of the impacts of mining in the Bristol Bay watershed.

Most other Bristol Bay land is federally protected as wildlife refuge or national park land.

“A big project like Pebble would be a big blow by itself (not to mention seven more Pebbles), but it is the accumulation of mines and highways and all the associated residential and commercial development enabled by the larger scale developments, that will ultimately cause the demise of the (salmon) resources we are targeting,” North wrote.

EPA Administrator Gina McCarthy said Feb. 28 that the agency would move forward with the early stages of a process to use authority granted it under subsection 404(c) of the Clean Water Act to block the large mineral project from getting a required U.S. Army Corps of Engineers wetlands dredge and fill permit.

The regional U.S. Army Corps of Engineers handles Section 404 permit applications for all projects, public or private, that could impact wetlands.

McCarthy said at the time the decision was based on the agency’s final assessment, released in January, of potential impacts a mine could have on salmon stocks in the Bristol Bay region.

More than half of the Bristol Bay region is considered wetlands under the Clean Water Act.

If developed, the Iliamna-area mine would likely be one of the largest surface copper and gold mines in the world in the middle of the region that returns roughly half of the world’s sockeye salmon every year.

While the EPA has vetoed wetlands permit applications 13 times since 1972, it has never used the power to deny a permit before an application was submitted, as is the case currently with Pebble.

North continued in the September 2010 email: “So a 404(c) that targets the primary habitat of the resource we are trying to protect, salmon, is a logical approach. First at the specific habitat level by prohibiting discharge in stream channels and the riparian (or adjacent) wetlands that most directly support them. Second by initially addressing Bristol Bay as a whole then narrowing to those watersheds that are at risk.”

Subsection 404(c) of the Clean Water Act states that the EPA can prohibit the use “of any defined area as a (material) disposal site” when the agency administrator deems the placement of fill material “into such an area will have an unacceptable adverse effect” on fish, wildlife or water supplies.

The question remains whether that language gives the agency the authority to veto an activity such as mining across a broad area, rather than just in a specific location.

On May 2, the Office of Inspector General for the EPA announced it would review the agency’s actions in developing the Bristol Bay watershed assessment at the request of Pebble, the State of Alaska and several members of Congress.

EPA Region 10 spokeswoman Hanady Kader wrote in an email to the Journal that the agency received requests from nine Tribal governments in 2010 to use the Clean Water Act authority to protect the watershed and fisheries from a proposed Pebble Mine.

“EPA made transparency and public engagement a priority from day one of the Bristol Bay Watershed assessment. It is a strong scientific document based on hundreds of peer-reviewed studies. The agency considered thousands of comments and scientific data submitted during two separate public comment periods and eight public meetings. EPA met with many stakeholders over the course of its assessment, including multiple meetings Pebble Limited Partnership,” she wrote May 13.

A memo from consulting Anchorage attorney Geoffrey Parker to EPA’s Parkin dated Feb. 14, 2012, suggested the agency change its course of action at the time to speed up the Pebble veto.

“This recommends that EPA shift from a ‘linear’ to an ‘overlapping’ schedule for its watershed assessment and 404(c) process. Doing so can maintain and improve quality, and should result in a more legally defensible final decision,” Parker wrote.

Pebble claims additionally that the peer reviews of drafts of the watershed assessment call its scientific validity into question.

“Not only does EPA not have the statutory authority to undertake pre-emptive action at Pebble, they are threatening to do so based on a flawed study that is now the subject of an investigation by their own agency,” said Ron Thiessen, president and CEO of Northern Dynasty Minerals Ltd., which owns the Pebble project, in a formal statement May 6.

Pebble has said the EPA could still veto its project after a wetlands permit application is submitted to the Corps of Engineers if it does not meet regulatory standards.

While Pebble says the mine would generate up to 1,000 full-time jobs over 25 years, Kader said the economic value of the commercial salmon fishery in Bristol Bay has been overlooked in recent media reports covering the controversy.

An April 2013 study from the University of Alaska Anchorage’s Institute of Social and Economic Research commissioned by the Bristol Bay Regional Seafood Development Association found that the 2010 Bristol Bay commercial sockeye harvest generated $1.5 billion of final sales value across the U.S. The ex-vessel value of the 29 million sockeyes harvest from the region that year was $165 million, 31 percent of the total Alaska salmon harvest value, and helped support 12,000 seasonal fishing and processing jobs nationwide, according to the report.

Elwood Brehmer can be reached at elwood.brehmer@alaskajournal.com.

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