EPA sharply critical of Pebble draft; ‘preemptive veto’ revisited

Environmental Protection Agency headquarters leaders want their Pacific Northwest colleagues to again consider rescinding a proposed restriction for the Pebble mine. At the same time, those regional officials have several questions about the thoroughness of the ongoing environmental review of the project.

EPA Region 10 Administrator Chris Hladick signed off on 174 pages of comments July 1 to U.S. Army Corps of Engineers Alaska officials overseeing the Pebble environmental impact statement, or EIS, and the closely related Clean Water Act wetlands fill permit.

The public comment periods on the draft EIS and the Clean Water Act Section 404 permit application closed July 1.

The 115 pages of EIS comments stress a desire from EPA Region 10 leaders to see significantly more analysis regarding possible damage to the environment and subsistence activities, among other things from the proposed mine and its expansive network of support infrastructure.

“Given the substantial potential impacts and risks of the proposed project and weaknesses in the (draft EIS), the DEIS likely underestimates adverse impacts to groundwater and surface water flows, water quality, wetlands, fish resources, and air quality. Therefore, conclusions that the project will not violate applicable water quality and air quality standards should be further supported,” Hladick wrote in an accompanying letter to Corps of Engineers Project Manager Shane McCoy, who is in charge of the Pebble EIS.

Hladick is a former commissioner of the Alaska Department of Commerce, Community and Economic Development under former Gov. Bill Walker and has served as manager to several local governments across Alaska, including the City of Dillingham, a commercial fishing hub in the Bristol Bay region.

As currently proposed, the Pebble project would consist of a 608-acre open pit mine with a depth of nearly 2,000 feed accompanied by two large tailings storage facilities, water management ponds and other structures such as the ore mill, a worker camp and a large power plant.

The megaproject would also require support infrastructure including 77 miles of new roads from the mine site to tidewater; an ice-breaking ferry across Iliamna Lake to haul metal concentrates; a deepwater port in Kamishak Bay on the west side of Cook Inlet; and a 188-mile cross-Inlet natural gas pipeline from the southern Kenai Peninsula to the mine site to provide feedstock gas for the power plant.

The mine site would cumulatively disturb more than 8,000 acres, nearly half of which would be from the tailings storage facilities.

The overall project would result in the destruction of approximately 3,500 acres of wetlands and 80 miles of streams, according to Pebble’s wetlands fill permit application.

The EPA determined in 2014 — based on the conclusions of its Bristol Bay Watershed Assessment — that any project resulting in the loss of more than 1,100 acres of wetlands and water bodies in the area would be an unacceptable impact.

How Pebble will, or can, sufficiently mitigate the wetlands losses is unclear at this point and is an issue Region 10 officials and many groups opposed to the mine have highlighted.

EPA’s comments on the draft EIS insist the roughly 1,400-page EIS does not provide sufficient baseline data regarding the ecological functions of the potentially impacted wetlands and other water bodies; therefore, it is difficult to develop a requisite mitigation plan to offset the project’s impacts. Similar work needs to be done in regards to the prospective impacts on fish populations and their habitat, Region 10 officials concluded.

“The EPA recommends significant improvements to: (fish) habitat characterization, assessment, quantification, and spatial referencing; assessment of linkages between the loss and/or degradation of habitat and impacts to fish species and life stages [i.e., incubating eggs, spawning fish, and rearing juveniles]; groundwater and surface water flow characterization at a scale that is more relevant to fish and fish habitat; and analysis of the potential population-level effects and effects on genetic diversity in the context of the Bristol Bay salmon portfolio,” the comment document states.

The U.S. Army Corps of Engineers adjudicates wetlands fill permit applications under the Clean Water Act. The EPA has the final authority to veto a permit for projects it deems would result in unacceptable environmental damage.

The Democrat-controlled U.S. House of Representatives passed a spending bill June 19 with language — known as the Huffman amendment — prohibiting the Army Corps of Engineers from spending money to finalize the Pebble EIS in the 2020 federal fiscal year. That legislation is now under consideration in the Senate.

Region 10 officials also note that Pebble’s draft compensatory mitigation plan “includes only a conceptual discussion” of potential means to offset the project’s substantial impacts to wetlands and water bodies and does not mention specific mitigation work the company could employ.

Pebble’s draft compensatory mitigation plan in the EIS notes that restoring wetlands near the project — a common practice for project proponents elsewhere in the U.S. — is impractical because the area is undeveloped. As a result, it states the company will likely focus on fish habitat restoration in adjacent watersheds such as the Kenai, Susitna and Matanuska “through culvert rehabilitation and other fish passage improvements that have the potential to benefit the greater Bristol Bay and Cook Inlet watershed areas.”

Pebble Partnership spokesman Mike Heatwole said Pebble plans to develop more specific wetlands mitigation measures as the permitting process continues and the exact permit requirements become more clear, which he said is common for large projects such as the mine.

According to the EPA, the draft EIS also lacks up-to-date information regarding subsistence activities in and near the project area. Much of the information it contains regarding subsistence harvests is from a 2004 Alaska Department of Fish and Game analysis and other studies up to 2008; Region 10 officials recommend more recent data be collected or more justification as to why the included subsistence data is sufficient be provided.

The EPA also suggests the final EIS should include development alternatives for lining the tailings storage facilities to prevent contaminated water from percolating into the water table.

Heatwole contends that lining the tailings storage facilities would be counter to the water management plan the company developed specifically in response to concerns about a potential tailings dam failure. Currently, Pebble plans to allow water to flow through the tailings facilities to prevent additional pressure buildup behind the dams. The water will be treated to meet state and federal water quality standards before it is released into the environment, according to Pebble.

Many mine opponents stress the water at the mine site will need to be treated in perpetuity — something they argue can’t be guaranteed.

Finally, the Region 10 officials contend the draft EIS should contain more information about the impacts of potential further development of the Pebble copper and gold deposit beyond what the company is currently applying for.

They note Pebble’s parent company, Vancouver-based Northern Dynasty Minerals has discussed mining the larger, deeper eastern portion of the deposit as recently as 2017. For that and other reasons, the EIS should consider an expanded mining scenario in more detail or explain why evaluating the impacts of additional mining is unnecessary, according to the EPA.

Pebble opponents also emphasize that the current smaller, 20-year mine plan is an attempt by the company to get a mine approved that will undoubtedly grow.

According to Pebble’s Clean Water Act wetlands fill permit application, the 20-year plan would recover 6.7 billion pounds of copper, 353 million pounds of molybdenum and 10.7 million ounces of gold, while the overall Pebble deposit is estimated to contain more than 80 billion pounds of copper, 5.5 billion pounds of molybdenum and 107 million ounces of gold at higher average grades than the initial mining area.

The latest Northern Dynasty investor presentation dated June 2019 also touts the Pebble deposit as containing precious metal resources equivalent to “1.8 percent of all the gold ever mined” in human history.

It also contends the draft EIS is “robust and comprehensive” and is the result of more than $150 million worth of environmental baseline data collected over 10 years. The draft document contains “no substantive data gaps” and “no significant impacts” that cannot be sufficiently mitigated, according to Northern Dynasty.

‘Preemeptive veto’ revisted

While EPA Region 10 officials were busy critiquing the draft Pebble EIS, the agency’s headquarters leaders in Washington, D.C. were asking them to also revisit lifting a proposed ban on building the mine.

EPA General Counsel Matthew Leopold directed Hladick in a June 26 memo to reconsider the agency’s July 2014 preliminary determination that it should use its Clean Water Act authority to prohibit mine development in the Bristol Bay — commonly referred to as a “preemptive veto” of the mine.

Leopold noted that the proposed veto determination is still pending five years after it was reached and has not been finalized either way; it must be lifted as an administrative requirement before the Corps of Engineers can approve Pebble’s 404 wetlands permit application.

Former EPA Administrator Scott Pruitt in January 2018 unexpectedly chose to keep the Obama administration’s proposed determination in place, at the time citing “serious concerns” the agency had about the impacts of mining activity on the Bristol Bay watershed and the salmon it supports.

Pebble sued the agency in 2014 alleging the EPA was biased in its proposed action after improperly colluding with anti-Pebble groups to reach its conclusion. A subsequent 2017 settlement company called for the agency to consider rescinding the proposed veto determination.

The current situation has caused confusion about where the agency stands in regards to the project, according to Leopold.

“To remove any confusion and uncertainty, Region 10 should lift the ‘suspension’ and withdraw the 2014 proposed determination or leave it in place,” Leopold wrote.

According to Region 10 officials, Hladick, as regional administrator, is believed to be the decision-maker on the proposed determination, but that decision will be made in close coordination with headquarters officials.

Current EPA Administrator Andrew Wheeler last year recused himself from all Pebble decisions because he had worked for a law firm that provided services to a client related to Pebble issues.

Pruitt had indicated the EPA would hold additional public hearings on the determination if it were ever revisited; however, Leopold wrote that Region 10 should forgo more public input given the several rounds of public comments the EPA and Corps of Engineers have solicited on Pebble in recent years.

Leopold also urged Hladick to invoke “elevation procedures” for Pebble under a 1992 EPA-Army Corps agreement that provides for additional scrutiny on projects that could cause “substantial and unacceptable impacts to aquatic resources of national importance.”