Pebble to EPA: mine veto would overstep authority

The group working to develop the Pebble copper-gold deposits in Southwest Alaska responded April 29 to the Environmental Protection Agency’s possible move to preemptively block the mine.

In a detailed and blunt 60-page document, the Pebble Limited Partnership laid out five claims describing how it believes the EPA overstepped its authority and damaged the federal environmental permitting process when it announced its intent to begin work to preemptively veto a wetlands permit for a mine plan that has yet to be filed.

The letter is addressed to EPA Region 10 Administrator Dennis McLerran and is signed by Pebble CEO Tom Collier.

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.

The first and most repeated claim in Pebble’s response to the EPA is that the agency overstepped its Clean Water Act authority by issuing an intent to begin the 404(c) permit veto process before the group has submitted a wetlands application to the Corps of Engineers or released a formal mine plan.

In a formal statement issued by Pebble to coincide with the letter submittal, Collier said, “The actions EPA is contemplating today go well beyond Pebble. It is a precedent that will be leveraged by environmental activist groups and will have a chilling effect on future investment and job creation throughout the country. Congress never intended to grant EPA the authority to undertake proactive watershed zoning over broad areas of state and private lands when it passed the Clean Water Act, yet that is exactly what is happening here.”

If developed, it is believed the Iliamna-area mine would be one of the largest surface copper and gold mines in the world.

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.

Subsection 404(c) 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.

Additionally, Pebble claims the agency cannot meet its burden of “finding that the Pebble project will have an ‘unacceptable adverse effect’ because a permit application has not yet been submitted.”

Collier also noted in his statement that the EPA could still veto the wetlands application if the group fails to submit an environmentally safe plan, as the agency has done with other projects.

Alaska Attorney General Michael Gerhaghty, in an April 29 letter to regional EPA chief McLerran, called the agency’s actions “premature, speculative, without precedent, illegal in terms of both process and substance, and unnecessary.”

April 29 was the final day of a 45-day period for stakeholder response to the EPA on the final assessment, a period extended from the minimum 15-day period at the request of the state and Pebble.

EPA has said the veto process usually takes about a year to complete.

Further, Geraghty wrote that a “cloud of uncertainty” hangs over lands owned by all parties in the region as a result and that the EPA would deny the state its right to develop lands conveyed to it under the Alaska Statehood Act and other federal agreements that were chosen specifically for their mineral potential, a stance echoed by Pebble.

The Pebble copper and gold claims are entirely on state land.

Finally, Geraghty stated that there is no risk to the environment by working through the current federal and state statutes including the National Environmental Policy Act, which offers the public significant comment on proposed development, and the Clean Water Act.

The February announcement by McCarthy was praised by commercial fishing and conservation groups steadfastly opposed the proposed mine and lambasted by Rep. Don Young and Sen. Lisa Murkowski, who have said repeatedly Pebble should be allowed to go through the same review process as any other project.

Murkowski has remained neutral on the project, but has pushed the Pebble Partnership to unveil a mine plan so it can be judged and speculation about the project can be put to rest.

When former 50 percent-share Pebble investor London-based Anglo American Plc pulled out of the project in September, remaining investor Northern Dynasty Minerals Ltd. said it would hold off on issuing a formal plan until a new investor could be secured.

Sen. Mark Begich took a stance opposing the mine after release of the Bristol Bay assessment in January.

Pebble says the mine would generate about 1,000 full-time jobs for up to 25 years in a region with high unemployment. Mine opponents say it is too risky of a project in the middle of the largest sockeye salmon fishery in the world.

Trout Unlimited’s Tim Bristol, who is Alaska executive director of the nonprofit leading the fight against the proposed mine, said in a formal statement that Pebble’s response to the EPA doesn’t change that a large mine could damage a fishery that supports thousands of jobs every year.

“The EPA has legal, policy and scientific backing to protect Bristol Bay and its economy from Pebble mine.” Bristol said. “It also has the backing of 80 percent of Bristol Bay residents, a majority of Alaskans and vast numbers of Americans across the political spectrum who have spoken out on this issue. The agency should work to complete the 404(c) process as quickly as possible and apply the much-needed Clean Water Act protections to the headwaters of Bristol Bay.”

The 2013 ex-vessel value for all commercial salmon harvested in Bristol Bay was $140.5 million, according to the Alaska Department of Fish and Game.

United Tribes of Bristol Bay President Robert Heyano said in a release the mine threatens “salmon-based” livelihoods and cultures in the region.

“The Pebble Limited Partnership’s response to the 404(c) process does nothing to ease our concerns about its plans in Bristol Bay,” Heyano said. “The fact remains that the Pebble deposit is massive in scope, sits in a sensitive location, and poses severe impacts to the sustainable salmon resource in Bristol Bay.”

Elwood Brehmer can be reached at [email protected].

11/21/2016 - 11:50am