EPA moves to block Pebble as House moves to block EPA

Photo/Tim Bradner/AJOC

The Environmental Protection Agency is continuing its push to block the potential Pebble copper and gold mine.

EPA Region 10 Administrator Dennis McLerran said in a formal statement July 18 that the agency is moving to protect the robust salmon stocks of Bristol Bay from the possible impacts of a large mine in the region.

The 214-page proposed determination document calls for a ban of large-scale mining in the area of the Koktuli River and Upper Talarik Creek watersheds north and west of Iliamna, where the Pebble deposit is located. The watersheds are part of the larger Kvichak River and Nushagak River watersheds — the Pebble deposit sits nearly on the border of the two — which support some of the largest returns of sockeye salmon in the world each year.

“The science is clear that mining the Pebble deposit would cause irreversible damage to one of the world’s last intact salmon ecosystems. Bristol Bay’s exceptional fisheries deserve exceptional protection,” McLerran said. “We are doing this now because we’ve heard from concerned tribes, the fishing industry, Alaskans and many others who have lived and worked for more than a decade under the uncertainty posed by this potentially destructive mine.”

If developed, it is believed the Pebble mine would be one of the world’s largest surface copper and gold mines.

Alaska U.S. Rep. Don Young called the determination a “jurisdictional power grab.”

During a July 16 House Transportation and Infrastructure Committee hearing on legislation to limit the EPA’s Clean Water Act authority, Young delivered a heated monologue in which he condemned the agency’s actions and called the Obama administration a “monarchy.”

He said he didn’t know if Pebble should be developed, but that the EPA is symptomatic of a federal government that is squelching states’ rights.

“I’m one member in this Congress and I’ll be damned if I’m going to sit here and watch somebody from Maryland or any other state start telling me or anybody in Alaska how we should be running our state by veto from an agency,” Young said.

House Bill 4854, the Regulatory Certainty Act of 2014, would limit the EPA’s ability to veto a project under the Clean Water Act to the time when a wetlands permit application is being reviewed by the Army Corps of Engineers. The proposed Bristol Bay action would be illegal under the bill, as would the repealing of approved permits.

The bill was approved in committee and can now receive a vote of the full House, although the legislation has no chance of receiving a vote in the Senate.

Murkowski co-sponsored a Senate version of a similar bill, the Regulatory Fairness Act.

The EPA’s most-recent use of its Section 404(c) authority came in October 2009 after the Corps of Engineers issued a permit for the Spruce No. 1 surface coal mine in West Virginia in September of that year. The agency ultimately issued its final determination in January 2011 and revoked the fill permit for the coalmine.

The EPA has justified its proposed action under Section 404(c) of the Clean Water Act, which gives the agency the authority to block the placement of fill material in any area that it determines would have an adverse impact on fish or wildlife.

Pebble Limited Partnership has not submitted a formal mine plan and has yet to apply for a Section 404 wetlands permit issued by the regional U.S. Army Corps of Engineers. For those reasons the Pebble Partnership is accusing the EPA of overstepping its regulatory authority.

“The correct, legal and defensible way forward is for EPA to suspend its preemptive 404(c) process and allow us the full opportunity to have our project reviewed by federal and state regulatory agencies, including EPA, under (the National Environmental Policy Act),” Pebble CEO Tom Collier said in a formal statement.

After losing London-based Anglo American Plc, a 50 percent investor in the Pebble project last September, remaining owner Northern Dynasty Minerals Ltd. has said it will go forward with a mine plan after it finds another investment partner.

The Pebble Partnership has said a mine would provide more than 1,000 jobs over the 25-year life of the mine to an area of Alaska with high unemployment. Pebble’s opponents argue it would jeopardize the nearly 14,000 full-time and seasonal positions provided by the fishing industry.

In February, the EPA said it would investigate using its Clean Water Act authority to block the mine, an announcement that spurred Pebble Partnership to file a lawsuit against the agency in U.S. District Court May 21, claiming the EPA could not make a reasonable judgment on potential mine impacts with the information it had. Days later, the State of Alaska requested to intervene on behalf of Pebble because blocking the mine would restrict the state’s right to develop its resources for the benefit of its residents, according to its court filings.

All of Pebble’s mineral claims are on state land.

The EPA’s ability to overrule a Corps of Engineers wetlands permit approval or deny a permit based on an application has been used only 13 times in the 42-year history of the Clean Water Act. Never before has the agency used the Clean Water Act as justification to restrict land use prior to a wetlands permit submission for a specific project.

Region 10 spokeswoman Handay Kader said the veto process would likely take about a year.

The EPA has based its actions on its Bristol Bay Watershed Assessment, released in January, which concluded that Pebble could potentially harm the region’s fisheries, and subsequently the associated commercial fishing industry.

Pebble owners have disputed the study’s objectivity, citing intra-agency emails from 2010-11 among Region 10 EPA officials suggesting they had determined the outcome of the assessment against Pebble before the agency formally announced it would be conducted. The Pebble owners and the State of Alaska also point to the large volume of emails between EPA officials and environmental activist groups before and during the assessment process detailing frequent meetings and coordination about strategy.

The EPA Inspector General’s office is currently conducting a review of the assessment process.

“EPA’s proposal is based on a watershed assessment that its peer reviewers found to be no better than a screening document, and that EPA’s professionals have recognized is missing the information needed for a permitting decision,” Collier said.

The most recent proposal determination focuses on mine sizes that the EPA says Northern Dynasty Minerals Ltd., currently the sole Pebble owner, used in its U.S. Security and Exchange Commission filings for investors. Those hypothetical mines range in size from 2 billion tons of ore processed over a 25-year mine life to a 6.5 billion-ton mine.

According to the EPA, Pebble’s pit mine would cover up to 6.9 square miles and require three mine tailings impoundments covering up to 18.8 square miles.

In the draft determination the agency claims a mine capable of processing just 250 million-tons of ore would lead to the loss of at least 5 miles of anadromous fish, or salmon, habitat, or the loss of at least 19 miles of tributary streams to anadromous waters. Additionally, the loss of 1,100 or more acres of wetlands would occur, according to the EPA.

As nearly every announcement related to the Pebble has, the July 18 EPA announcement sparked a rash of announcements from mine supporters, its opposition, and even some in between.

Sen. Mark Begich took a stand against Pebble after the Bristol Bay Assessment was released in January, and supported the EPA in a formal statement from his office issued July 18.

“This is a long and detailed determination, but based on initial review, the draft determination applies only to the Pebble deposit,” Begich said. “The limited scope is critical and means the determination would not affect mining or any other resource development project in any other parts of the state.”

Begich’s congressional delegation mates, Murkowski and Young have said they would withhold judgment on the mine until a formal plan is released, something Murkowski has chided Pebble for not doing.

“The EPA is setting a precedent that strips Alaska and all Alaskans of the ability to make decisions on how to develop a healthy economy on their lands,” Murkowski said in a release. “This is a blueprint that will be used across the country to stop economic development.”

At a July 18 Commonwealth North lunch presentation, state Department of Natural Resources Commissioner Joe Balash said that the EPA is “in the best light, attempting to put constraints on development of minerals in that particular region and we’re very anxious for what that means for future deposits that are identified as having commercial value.”

Trout Unlimited Alaska has led the fight against Pebble and applauded the EPA’s proposed determination, as did the United Tribes of Bristol Bay.

“We are grateful that the EPA listened to our tribes and followed the science showing that the mining proposals like Pebble will threaten our way of life,” United Tribes President Robert Heyano said in a formal statement. “This announcement brings us the much-needed certainty that our salmon and waters will be protected, and as a result, our communities, culture and livelihood.”

The EPA Region 10 office will take public comment on the determination July 21 through Sept. 19, and public meetings on the issue will be held in Anchorage Aug. 12 and several Bristol Bay communities Aug. 13-15.

07/23/2014 - 1:00pm