EPA wants strict limits on Pebble
Last Friday, EPA Region 10 Administrator Dennis McLerran announced that the agency had moved to "phase two" of its Clean Water Act section 404c determination against development of the proposed Pebble Mine.
The agency's proposed restrictions, however, do not constitute an explicit ban on the mine, as many had hoped or expected.
"As much as we would have liked an outright prohibition of mining around the Pebble deposit, it looks promising that the agency's proposal will block any type of feasible development there, at least anything that would work economically," said Alannah Hurley with the group United Tribes of Bristol Bay. She said Monday that UTBB was still reading through the EPA's 241-page proposed determination and attempting to interpret its practical effects on Pebble.
"We're still digesting the specifics of what the agency has released here, but I can assure you that the tribes are very happy that this process is moving forward, and they're very encouraged to see the EPA releasing these very specific restrictions," she said. Similar enthusiasm was echoed by groups representing commercial fishermen, the sports fishing industry, and environmental interests.
If adopted, these unprecedented and preemptive rules set by the EPA would "restrict the discharge of dredged or fill material related to mining the Pebble deposit into waters of the United States within the potential disposal site that would, individually or collectively, result in any of the following:"
1. Loss of streams.
The loss of 5 or more linear miles of streams with documented anadromous fish occurrence the loss of 19 miles of streams where anadromous fish are not currently documented, but that are tributaries of streams with documented anadromous fish occurrence;
2. Loss of wetlands, lakes, and ponds.
The loss of 1,100 or more acres of wetlands, lakes, and ponds contiguous with either streams with documented anadromous fish occurrence or tributaries of those streams;
3. Streamflow alterations.
Streamflow alterations greater than 20 percent of daily flow in nine or more linear miles of streams with documented anadromous fish occurrence.
The restrictions are based on the agency's own ecological risk assessment of the Bristol Bay watershed, which has been twice reviewed by a variety of experts.
The findings of that assessment hold that developing a mine on the Pebble deposit would pose an enormous threat to the "one of the world's most valuable salmon fisheries."
"Bristol Bay is an extraordinary ecosystem that supports an ancient fishing culture and economic powerhouse," wrote McLerran. "The science is clear that mining the Pebble deposit would cause irreversible damage to one of the world's last intact salmon ecosystems."
The EPA has been criticized for its use of hypothetical mining scenarios, as Pebble has not yet submitted its own mine plan. McLerran told reporters on the press call Friday that the agency made use of three potential sizes of open pit mining, as well as preliminary investor information Northern Dynasty Minerals submitted to the Security and Exchanges Commission in 2011, which he said was sufficient. The restrictions laid out by the agency also circumvent the need to prohibit a specific mine, and rather focus the attention on the effects of any scenario Pebble might eventually submit.
Pebble said Friday's announcement, which it only learned of an hour ahead of time very early Friday morning, was different than what was expected. "We're still sorting through the full implications of these restrictions, but at first pass, they seem kind of arbitrary to us," said Pebble spokesperson Mike Heatwole. "Why pull out five miles or 1100 acres? There doesn't seem to be a strong scientific basis for the decisions here."
In a rare twist of the usual public relations spin between the competing factions, Pebble actually softened its tone against the agency after Friday's announcement. While noting that the EPA restrictions are only a proposal thus far, CEO Tom Collier wrote that the company is "pleased to note the agency has rejected requests to preemptively veto the Pebble Project in favor of imposing specific conditions on future development."
Collier went on to say, however, that Pebble believes the EPA is still acting outside of its legal authority. That matter is the subject of a lawsuit recently filed in federal court in Alaska, which has been assigned to veteran Judge H. Russel Holland.
"I'll be curious to see how the judge reacts to this very concrete step being taken by the EPA at a time when the very question of that authority is being brought to the attention of the court for a determination," said Pebble's Heatwole on Monday. He said Pebble also recently filed for a preliminary injunction against further agency action.
Pebble would not say whether the mining plan being developed would, or could, operate within the proposed restrictions put forward by the EPA. But the company says that's another of the questions it shouldn't need to answer, yet.
"This puts us again into this classic catch-22," said Heatwole. "We saw it with the EPA in their February 28 letter that says, basically, 'we think this project is going to have a harmful and adverse effect on the waters of the U.S., prove to us why that's not the case, but we don't want to wait for you to file for a permit.' We're seeing a similar discussion here. A very arbitrary approach from the EPA on what they're setting up as these conditions, and again, lacking the type of informed discussion that you would expect to see in the National Environment Policy Act process. What we come back to is that there's absolutely no environmental harm in letting us have our full environmental review the way that all other projects are judged in the United States."
Heatwole added that the EPA has not answered sufficiently why there is a need to take these steps now, before the company has made a formal request for permitting.
McLerran said that question has been answered, and reiterated his response Friday. "Bristol Bay's exceptional fisheries deserve exceptional protection. 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. Simply put," said McLerran, "this will be a uniquely large mine in a uniquely important place."
The public will get its chance to weigh in, yet again, in the ongoing debate. The EPA is taking public comments through Sept. 19, and has seven public meetings planned in mid-August.