Alaska mine developers plan to fight EPA’s crippling restrictions

By M.D. Kittle | Watchdog.org

While the Environmental Protection Agency appears to be backing off its push to pre-emptively kill a proposed copper and gold mine in Alaska’s bush country, the agency is pitching an array of conditions that could stifle the project.

Friday’s proposed list of restrictions, subject of a public comment period through Sept. 19, could severely limit development of the proposed Pebble Mine project, an operation that developers say would create 1,000 direct jobs, and thousands more indirectly, and as much as $180 million in state revenue for Alaska.

Dennis McLerran, regional administrator for the EPA’s Region 10, said while the agency has opted not to invoke a provision under the Clean Water Act that would effectively shut down the mine before a plan is submitted, the dangers of even a smaller mine in the Bristol Bay region’s “fragile ecosystem” would be devastating.

He told reporters the EPA is trying to protect the world’s largest salmon fishery, where half of the world’s sockeye salmon population is said to live, from what would be “one of the world’s largest open pit mine developments ever conceived of.”

Pebble Limited Partnership CEO Tom Collier in a statement said while the developer is pleased the EPA has pulled back its threatened pre-emptive veto of the mine proposal, the agency does not have the authority to impose conditions on Pebble, or any development project anywhere in Alaska or the United States before a plan is submitted and the chain of state and federal regulatory review is followed.

Pebble is suing the EPA for what it sees as a massive government overreach.

“Moreover, EPA’s attempt to (pre-emptively) impose conditions on future development at Pebble, in the absence of completing an Environmental Impact Statement (EIS), as is required of every major development project in the United States, is causing significant and even critical harm to our business interests and our abilities to fairly advance our project,” Collier said in the statement.

“For this reason, we fully intend to continue our litigation against EPA in order to halt the pre-emptive and unprecedented regulatory process under Section 404(c) of the Clean Water Act, and invalidate the conditions proposed by EPA Region 10,” he said.

Pebble filed its lawsuit in May. In its complaint, the company asserts the agency doesn’t possess the authority to block or limit the mine.

“Here, nothing in Section 404 of the (Clean Water) Act or elsewhere in the statute suggests that Congress intended for EPA to arrogate to itself an authority that essentially bans an activity — mining — before it is even proposed by an applicant,” the lawsuit states.

Beyond the lawsuit brought by Pebble, with assistance from the state of Alaska, the EPA is the subject of several investigations related to the agencies handling of its Bristol Bay Watershed Assessment and its threat of invoking the preemptive veto.

The Office of the EPA Inspector General is reviewing the agency’s practices, and there’s another investigation under way by the House Committee on Oversight and Government Reform.

“There are also two bi-partisan bills pending in the US House and Senate seeking to clarify that EPA does not have authority to preemptively veto or otherwise restrict development projects prior to the onset of federal and state permitting,” Collier said in the statement.

“In aggressively pursuing each of these remedies, the Pebble Partnership is aware that the precedent established by EPA taking (pre-emptive) action at Pebble would be devastating for the future of investment in the State of Alaska and throughout the United States,” the Pebble executive said. “We have already seen a group in Wisconsin seeking pre-emptive action by the EPA on a mineral project in that state.”

The six tribes of Wisconsin’s Chippewa Federation plan to meet next month with EPA officials. They sent a letter in May asking the federal agency to do what it has threatened to do in Alaska — invoke Section 404 to kill a major iron-ore mine proposed in northern Wisconsin, south of Lake Superior.

Pebble developers allege EPA officials worked with native groups in the Bristol Bay region early on, to assist them in driving the pre-emptive veto discussion. Pebble Limited Partnership says it has the documents to prove it.

Last month, Bob Seitz, spokesman for Gogebic Taconite, or GTAC, the company proposing the Wisconsin mine, said GTAC was working to pull the EPA and the U.S. Army Corps of Engineers into the permit process as soon as possible. Asked if GTAC officials worried the EPA could do what it has done in Alaska, Seitz said there were two ways to look at the issue.

“One, how can anyone run this gauntlet and complete a project against what you kind of face with the EPA?” he said. “The other is, you know that things have to be permitted. There has to be production of iron ore. There has to be manufacturing going on in this country. There is a necessity that these things have to happen. You have to be concerned, but I think the greater issue historically is that these things have been more dragged out to the point where it kills a project.”

But President Obama has thrown down the gauntlet in his climate change agenda, an increasingly unilateral environmental campaign that critics see as a war on coal in particular, and energy and minerals exploration in general.

Last month, the Obama administration unveiled proposed controversial standards, aiming to cut by 30 percent carbon emissions at fossil-fuel burning power plants within 15 years. Critics blasted the proposed rule, asserting it would cost nearly 250,000 jobs per year, forcing the shutdown of power plants and hitting the recovering U.S. economy where it lives.

The coal industry, manufacturers and others, however, insist the Obama administration has a moral obligation to be mindful of the impact such deep and rapid cuts would mean an economy still dependent on coal.

Democratic West Virginia Rep. Nick Rahall planned to introduce legislation to stop the EPA proposal to “prevent these disastrous new rules from wreaking havoc on our economy in West Virginia.”

In Alaska, the EPA’s list of pre-emptive restrictions and conditions on the Pebble mine project is based on a watershed assessment some peer reviewers criticized for being replete with flawed science. Collier said the EPA’s study was based on mining scenarios that are outdated and, in any event, would never qualify for environmental permits.

Alaska Attorney General Michael Geraghty, in a statement following the state’s request to intervene in the Pebble Mine lawsuit, said the most troubling aspect of the EPA’s drive to curtail or limit a project before the developers have submitted permit applications is the precedent it sets. In short, Geraghty said, the agency could take land anywhere in the United States and prematurely limit development of a valuable resource.

“The EPA’s action undermines Alaska’s ability to utilize its mineral resources to grow the economy and create jobs if, after detailed and lengthy environmental review, permitting is warranted,” the AG said in June, before the EPA’s latest proposal.

Collier said the “correct, legal, and defensible way forward,” is for the agency to suspend its preemptive Clean Water Act 404(c) process and allow the developers the opportunity to have its project reviewed by federal and state regulatory agencies, including the EPA.