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Tuesday, May 27, 2014

No Pebble Mine! Pebble asks EPA to 'stop the madness' of potential veto by Manuel Quiñones

Below is the second of two recent articles that reflect the continuing resolve of the Pebble Limited Partnership – that is, Northern Dynasty Minerals. Their new CEO – a DC lawyer named Tom Collier – has been doing the rounds in DC, arguing in the strongest terms that the Pebble Mine is a good project, that the environmental community is conspiring illegally with EPA, that EPA is an out-of-control agency for responding to the request of Bristol Bay residents for help, and that new funding for the project is imminent.

Obviously, we have a different view – see below. I was in DC recently myself with a long list of Pebble Mine meetings on the Hill and with EPA. These articles demonstrate how important it is not to let up – and we won’t.
~All the best, Joel
Joel Reynolds
Western Director, Senior Attorney, 
Natural Resources Defense Council

Photograph © Robert Glenn Ketchum 
Pebble asks EPA to 'stop the madness' of potential veto
by Manuel Quiñones, E&E reporter
Published: Wednesday, April 30, 2014

Pebble LP, the company that wants to develop a large copper and gold mine in southwestern Alaska, is making its case against a potential pre-emptive U.S. EPA veto of the project.

"It's time to stop the madness," the company's new CEO, Thomas Collier, said today in a statement accompanying a 60-page letter to the agency outlining several arguments against a veto.

The letter is key because it will help the agency decide whether to move forward with determining whether to prevent the Army Corps of Engineers from granting the company important Clean Water Act dredge-and-fill permits.

"If given the opportunity to propose a specific project to the Corps and work with the Corps and EPA on mitigation, the Pebble Limited Partnership will demonstrate that the Pebble Project is of considerable merit and can coexist with clean water, healthy fish and traditional ways of life in the Bristol Bay region," Collier wrote.

The letter outlines five main points against an EPA veto, mainly that the Clean Water Act's Section 404(c) does not give the agency the power to take the action pre-emptively.

"Congress only granted EPA authority to prohibit or restrict specified disposal sites under Section 404(c)," the letter argues, "not to set aside areas of land in advance of any permit application."

Collier has made that statement, like other points in the letter, before. This time, however, the company is going deeper into its reasoning.

"The legislative history of the CWA further illuminates Congress's intent to grant authority to EPA only to veto or restrict specific disposal sites," Pebble's letter says, "as set forth in a permit application."

EPA Administrator Gina McCarthy has said a pre-emptive veto would not be unprecedented, contrary to the prevailing view.

But Pebble's letter argues, "In the 13 out of 14 times that EPA has previously commenced the Section 404(c) veto process, a permit application had already been filed for a specific area for specific materials."

The company says, "In the sole instance where a permit application had not been submitted for a specific site, EPA determined that the application to be filed would be substantially similar to two prior applications for neighboring sites."

'EPA should stand down' 

EPA's watershed assessment of the potential impacts of a large mine within the Bristol Bay watershed found that a project like Pebble would most likely damage the area's valuable salmon fishery, among other resources.

Even though Pebble has yet to submit its final proposed mining plan, the agency defends its assessment because it is based on numerous company documents and public statements.

However, Pebble argues, "In reality, the environmental effects of the mine scenarios presented in EPA's Assessment would vary tremendously based on the actual facility footprint proposed, detailed engineering design, environmental management practices and project-specific mitigation approaches ultimately employed."

Alaskan opponents of a pre-emptive veto, including Sen. Lisa Murkowski (R), have expressed concern about other development in the Bristol Bay watershed. The new Pebble letter speaks directly to those concerns.

"Acting preemptively without a specific proposal also indicates that this veto process is not about a particular permit or project," it said, "but instead is based on a broader goal of precluding any development that could impact the Bristol Bay watershed."

The letter also argues that a pre-emptive veto would usurp the Army Corps' power to review and issue Section 404 permits, with EPA concurrence.

In fact, the corps told EPA in a letter last month that it could not provide substantive comment on the potential veto review because it had yet to receive a formal permit application from Pebble.

The company's letter says, "Despite this clear statutory delineation of the respective roles of the two agencies, EPA has now asserted authority to act before a permit application has even been filed, thereby usurping the Corps' permit review authority and relegating the Corps to a secondary role as a 'consulting' agency."

Pebble goes on to argue, as it has done before, that EPA can still veto the Pebble mine after the corps has had its say. In that case, it would have the benefit of National Environmental Policy Act review. 

"NEPA is among the most admired and emulated environmental protection and regulatory process in the world," Collier said in the statement. "EPA should stand down and let that process work for Pebble."

Alaska Attorney General Michael Geraghty also sent EPA a letter yesterday, describing similar concerns and touting the state's interests in regulating its own natural resources.

Geraghty urged EPA to "refrain from attempting to exercise its Section 404(c) authority in the absence of a Section 404 permit application, and allow the Corps and the State to exercise their regulatory rights and responsibilities in the event applications for a mining project are ever submitted."

Congress and the courts 

EPA has argued that its watershed assessment and ongoing review are an effort to respond to concerns from Alaskans and that it may or may not end up vetoing the mine. In either case, the company would know its fate before spending any more money on development.

Arch Coal Inc. also cited legislative debates during the writing of the Clean Water Act and disagreements between agencies when Arch was fighting EPA's retroactive veto of the Spruce No. 1 mine in West Virginia.

In the end, the U.S. Court of Appeals for the District of Columbia Circuit looked at the plain language of Section 404(c) in upholding the Spruce veto, saying EPA could veto permits "whenever" it decided. The Supreme Court declined to take the case.

When it comes to Pebble, environmental attorneys argue that long-standing EPA interpretation, plus the Clean Water Act's plain language, allows for a pre-emptive veto of dredge or fill activities in a certain area (Greenwire, March 28).

Natural Resources Defense Council Western Director Joel Reynolds recently said, "There is no requirement that this defined area must first have been the subject of a permit application, and, again, the use of the term 'whenever' is an insurmountable obstacle.

If EPA does decide to veto the Pebble project, the issue of the agency's Clean Water Act veto power will likely end up back in the courts, with many of the company's arguments outlined in its new letter.

Congress can always step in to clarify the issue. Legislation is pending to limit EPA's veto power, but many Senate Democrats have vowed to block likely action in the House.


Republished with permissions by NRDC

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