The mining newspaper for Alaska and Canada's North
The mining newspaper for Alaska and Canada's North
The EPA races to determine fate of proposed Bristol Bay mine under current presidential term, before developers apply for permits
What's the rush?" This is the question the Pebble Partnership and a growing number of lawmakers, resource development advocates and state officials are asking the U.S. Environmental Protection Agency in regard to the regulator's assessment of the Bristol Bay Watershed.
Companies hoping to develop promising mineral deposits in the United States typically spend several years and millions of dollars to gather environmental baseline information needed to initiate a long and arduous permitting process that typically ranges from three years to decades.
So, when the EPA spends about a year on a watershed assessment intended to determine whether to ban the development of one of the largest accumulations of copper, gold and molybdenum on the planet and then allots a short six months to vet the assessment, Pebble proponents and Alaska officials question the motives of the expedited timeline.
"What is the rationale for that deadline? What is the rush? Why is this assessment being conducted before a detailed mine proposal has been presented? Why have critical data sources been overlooked? Why has the EPA not conducted any field investigations to inform its science? Why is the peer review process overlapping public review?" asks Northern Dynasty Minerals Ltd. President and CEO Ron Thiessen.
Vancouver-based Northern Dynasty is a 50 percent co-owner of the Pebble Limited Partnership, a company formed in 2007 to develop the Pebble project. London-based Anglo American holds the other half.
Pebble opponents, on the other hand, are pressuring the regulatory agency to bypass the vetting process all together.
In a July 18 letter to President Barack Obama, the Save Bristol Bay coalition wrote that now is the time to initiate a process under Section 404(c) of the Clean Water Act to prohibit or restrict large-scale mining in the Bristol Bay watershed.
Under Section 404 of the Act, the Army Corps of Engineers is charged with issuing permits for dredge and fill discharge into navigable waters, including wetlands. EPA was granted veto authority to prohibit, restrict, or deny a discharge that poses an unacceptable adverse impact to fisheries or other water uses.
"We ask that you act on this before the end of July 2012 to ensure you can complete this process before January 20, 2013, and give this broad and diverse coalition of fishing, hunting, jewelry, food and investment companies the certainty we need for future planning and investment," the anti-Pebble coalition wrote in its letter to the President.
This timeline suggests the environmental advocacy group spearheaded by Trout Unlimited would like to ensure action is taken under the Obama Administration.
"Perhaps the most troubling aspect of EPA Region 10's actions with regard to the Bristol Bay Watershed Assessment is its insistence that the process must be complete before Americans go to the polls in November," Thiessen said.
Alaska officials believe there may be more than political motivation behind the environmental agency's rush to judgment.
No more time
Releasing a draft of the Bristol Bay Watershed Assessment at the end of May, EPA allowed stakeholders until July 23 to review the document and provide comment.
The State of Alaska was among the first to argue that the 60-day comment period did not provide adequate time to address the technical and legal merits of the draft Bristol Bay Watershed assessment and asked EPA to allow an additional 120 days, with a new deadline of Nov. 20.
This sentiment was shared by more than half the people that testified at a June 4 hearing the EPA held in Anchorage on the draft assessment.
"Please revisit the assessment and give it the necessary time required to develop into a comprehensive analysis or drop the assessment process altogether," testified Alaska State Chamber of Commerce President and CEO Rachael Petro.
Once the Pebble Partnership submits permit applications under the National Environmental Policy Act, state and federal regulatory agencies would have at least three-and-a-half years to review the applications and exercise proper authorities - providing the EPA plenty of time to complete a thorough study before development began.
"The current assessment and any pre-emptive action would deprive government agencies and stakeholders of the specific information, science, and rigorous reviews that would come out of the multi-year NEPA process," testified Petro.
State legislators who attended the meeting unanimously called for the federal agency to extend the comment period. The group included Rep. Charisse Millet, R-Ancorage, who characterized the process as premature and short.
Pebble-opponents that spoke at the meeting pressed the EPA to stick to the timeline.
Despite the call for more time and no immediate risk of mine development in the watershed, the EPA insisted on sticking to its expedited schedule.
"In order to ensure that the final assessment is released in a timely fashion, it is imperative that this process move forward on schedule," the agency explained when announcing that it was holding to the July 23 comment deadline.
"The EPA's refusal to provide additional time for the public to comment on the draft watershed assessment for Bristol Bay demonstrates, once again, that the agency does not understand Alaska," Sen. Lisa Murkowski, R-Alaska, said in response to the agency's denial of an extension. "There is no deadline - other than the one arbitrarily imposed by the EPA - that requires the agency to act now."
Race is on
Alaska officials say they believe the EPA's insistence on completing the assessment "in a timely fashion" is a race to finalize a CWA 404(c) determination before the Pebble Partnership has an opportunity to apply for permits under NEPA. By doing so, the federal agency would circumvent any need to consider the state's management plan for the Bristol Bay region.
The 2005 Bristol Bay Area Plan - which lays out the state's vision for some 17.5 million acres of Alaska-owned lands in the region, an area larger than West Virginia - sets aside the area around Pebble for mineral development.
In 2010, six Alaska Native groups petitioned the environmental agency to use its presumed 404(c) authority to strike down the possibility of developing Pebble before permit applications are submitted - a milestone that would trigger the NEPA and associated Environmental Impact Statement processes.
"To do otherwise will compel EPA, the Corps and other agencies, in the context of NEPA and an EIS process, either to defend the state's methods used in the 2005 BBAP (which would be untenable), or to ignore them, which would be contrary to (federal law)," the Pebble opposition explained to the environmental agency.
Alaska Attorney General Michael Geraghty - in a July 23 letter to EPA Administrator Lisa Jackson and Region 10 Administrator Dennis McLerran - expressed the state's concern that this reasoning is the basis for the federal agency's "accelerated development of the assessment."
"Implicitly, petitioners argue that because EPA is generally exempted from complying with NEPA's requirements in the absence of a permit application, EPA's pre-emptive review can forego consideration of state management plans," he wrote.
The Pebble Partnership anticipates spending some US$107 million in 2012 to advance the enormous Pebble copper-gold-molybdenum project in 2012, with the objective of preparing to initiate permitting under NEPA - a process estimated to begin by mid-2013.
The EPA contends that it has not decided whether it will attempt to circumvent Pebble's permit application.
"Our goal is the finalization of a robust, technically sound assessment. Only upon its completion will the agency examine regulatory options, including application of 404(c), if appropriate," Jackson wrote in letter to Sen. Murkowski.
Unprecedented move
EPA has exercised its CWA 404(c) veto authority only a handful of times in the past and never before a permit was filed.
Geraghty is one of many to point out that the absence of a CWA 404 permit application by Pebble precludes EPA's authority to veto.
The environmental agency believes the federal water regulations provide it with the authority to take this unprecedented action, a power that worries resource development advocates.
"Our members are fearful that once this precedent is established, EPA will exercise its misguided pre-emptive strike to attempt to control land use and block resource and infrastructure development where it has neither the mandate nor the authority to do so," Resource Development Council for Alaska Executive Director Rick Rogers testified on June 4.
"If the EPA were to deny any project access to the state and federal permitting process, such action would be an assault on Alaska sovereignty," he added.
Rogers' concerns of an over-reaching federal agency were shared by a sizable crowd who attended the EPA hearing wearing "Hands off of Alaska" pins.
Alaskans are not the only ones that believe the EPA is overstepping its bounds. The U.S. House Committee on Oversight and Governmental Reform is also keeping an eye on the direction the agency is taking in Bristol Bay.
"Logic dictates that the merits of a project should be determined only after its proprietors complete the NEPA analysis and Section 404 permit application process," Oversight Chairman Darrell Issa, R-Calif., and subcommittee chairman Jim Jordan, R-Ohio, wrote in a May letter to EPA Administrator Jackson.
The watchdog panel questioned the environmental agency's legal authority to make a CWA 404 determination before permits are sought.
Responding to the oversight committee's concerns, EPA Associate Administrator Arvin Ganesan wrote, "The Administrator is provided broad authority under the statute to prohibit or otherwise restrict a site 'whenever [she] determines' that the discharge of dredged or fill material 'will have an unacceptable adverse effect' on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."
In a July 19 staff report, the House Oversight Committee informed the public that, "It appears that the Environmental Protection Agency is considering using an unprecedented and legally questionable interpretation of the Clean Water Act to pre-emptively veto permits for the Pebble Project. In apparent preparation of this veto, EPA released a draft Watershed Assessment on May 18, 2012. This watershed assessment may be used as justification to deny permits to the Pebble Mine before a plan is even submitted to the agency."
More concerns
In addition to addressing the motives behind the federal agency's rush to judgment, Geraghty's letter to the EPA outlines a number of legal issues and concerns of the State. They include:
Whether the EPA's decision to prepare the assessment and related efforts are an unlawful expansion of its Section 404(c) authority;
Whether the assessment is based on outdated guidance that illegally circumvents other state and federal regulatory authorities;
Whether conclusions drawn by the assessment will influence future regulatory decisions in regards to Pebble; and
Whether the credibility of the assessment is undermined by the rushed nature of its development and review process.
In addition to Geraghty's legal concerns, the Alaska Department of Natural Resources submitted 89 pages of comments addressing the technical merits of the draft Bristol Bay Watershed Assessment.
While the state's technical comments number in the hundreds, they fall roughly into six categories:
The assessment draws speculative conclusions about potential impacts from a hypothetical large mine;
Insufficient technical and scientific support for conclusions based on groundwater/surface water interconnections in the study area;
Inadequate consideration of mitigation measures;
Unclear risk assessment methodology;
Inconsistent scale and scope of project area; and
Non-scientific presentation of the assessment.
"In short, Alaska believes this premature assessment and the highly accelerated process that EPA is embarked upon is not well-founded in law and simply inadequate, when compared to the rigorous environmental reviews that are assured with a specific mine proposal and permit application, a review that would require several years and the expertise of multiple agencies at the state and federal levels (including by EPA)," Geraghty wrote.
Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.
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