Inspector General to investigate EPA Bristol Bay process

Pebble blasts assessment

The Office of Inspector General for the Environmental Protection Agency asked EPA Region 10 officials for a list of names, documents, dates and spending associated with developing the Bristol Bay watershed assessment when it notified the office May 2 that a review of the assessment process would be conducted at the request of Pebble Limited Partnership and members of Congress.

In February, the EPA said it intended to initiate a seldom-used process to block large-scale surface mining in the Bristol Bay region to protect the region’s robust salmon fishery, using the 1,000-plus page watershed assessment as a basis for its decision.

Questions have been raised by Pebble and media reports about the EPA’s objectives while conducting the assessment.

Ron Thiessen, president and CEO of Vancouver-based Pebble owner Northern Dynasty Minerals Ltd., said in a May 6 formal statement the mining company is “thankful” the IG’s office plans to investigate the agency’s Bristol Bay actions.

“While the documents we’ve received to date through Freedom of Information Act requests have been sparse and heavily redacted, they paint the picture of an agency launching a watershed assessment to justify a predetermined outcome,” Thiessen said.

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

Sen. Lisa Murkowski and Rep. Don Young sent a letter to the EPA Inspector General Arthur Elkins Jr. in February requesting an inquiry into the science behind the watershed assessment.

Spokesmen for Murkowski and Young both said they are in “wait and see” mode until the IG issues a final report.

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

Begich spokeswoman Heather Handyside wrote in an email to the Journal that the senator welcomes the review if it can resolve lingering uncertainty about the assessment that “was subject to two peer reviews and an extensive public process involving tens of thousands of comments, the vast majority of which support the science in the Bristol Bay assessment.”

Young and Murkowski have officially said they remain neutral on the mine project. 

According to an April 30 Washington Times report, EPA officials were discussing how the Clean Water Act could be used to stop a mine in 2010, before the official three-year assessment process began.

United Tribes of Bristol Bay spokeswoman Alannah Hurley said area Tribes asked about how EPA could use its Clean Water Act power to stop the mine prior to the assessment and the group that has long opposed Pebble is confident the EPA has met all its public responsibilities.

Trout Unlimited’s Tim Bristol, who is Alaska executive director of the nonprofit leading the fight against the proposed mine, said Pebble’s request for a review of the assessment is nothing more than a sign of desperation and that he doesn’t know how a government agency having discussions with the public could be considered scandalous.

“It’s clearly just another unsettling act by Pebble Partnership to try and delay the Clean Water Act process,” Bristol said.

In a detailed and blunt 60-page document dated April 29, 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.

It’s unclear if the EPA will be able to move forward with its work while the Inspector General investigation is underway. The agency has said the full Clean Water Act process would likely take about a year.

The Region 10 EPA office did not respond to a request for comment in time for this story.

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.”

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. In documents obtained by the Washington Times, a decision “matrix” rating the pros and cons of the tradition National Environmental Policy Act, or NEPA, process versus a preemptive veto were weighed.

Among the “cons” listed for the traditional NEPA process was that the EPA would only be able to veto one project at a time as opposed to vetoing all activities in a large area. Listed as “cons” under the preemptive veto decision were “litigation risk” and the fact that the action has never been taken in the agency’s history.

In 2011, when the EPA formally announced it was initiating the assessment process, the Journal reported on a 2008 document from the Region 10 EPA Environmental Justice unit that listed protecting subsistence fishing on the Colville River and addressing impacts of hard rock mining in Bristol Bay as examples of successful long-term outcomes.

The EPA succeeded temporarily in halting the ConocoPhillips CD-5 project that included a bridge crossing the Colville River in 2010 and is now moving to block Pebble as well. The Environmental Justice unit at Region 10 is led by Rick Parkin, who Region 10 Administrator Dennis McLerran tapped to lead the Bristol Bay assessment.

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 Young and 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 said it would hold off on issuing a formal plan until a new investor could be secured.

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.

Bristol, of Trout Unlimited, 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 - 12:13pm