August 7, 2014 — The following was released by Bristol Bay United:
On Friday, July 18th, the Environmental Protection Agency issued a proposed determination under section 404(c) of the Clean Water Act to announce potential discharge limits that would apply to efforts to mine the Pebble deposit in Southwest Alaska. EPA took this action because it has substantial evidence that any efforts to mine the deposit would cause unacceptable damage to Bristol Bay’s enormously valuable waters, sockeye salmon fisheries, and subsistence. The action also comes more than four years after Alaska Native tribes and corporations, commercial fishermen, the sportsman community, and many others in Alaska petitioned the agency to protect the region.
Far from a pre-emptive veto, EPA is proposing narrowly-tailored advance restrictions on large scale development of the Pebble deposit, and is basing its action on a substantial body of evidence, including plans submitted to the Securities and Exchange Commission by Northern Dynasty Minerals, the sole remaining partner in the Pebble Limited Partnership. Even Northern Dynasty Minerals acknowledges that the EPA’s action is not a pre-emptive veto. Pebble Limited Partnership (PLP) is still free to apply for the required Army Corps of Engineers permit, both as the EPA completes its determination and after, if it can meet these standards which guarantee protections for the Bristol Bay salmon fishery.
Specifically, the EPA is proposing to limit mining of the Pebble deposit if such mining will lead to any of the following criteria:
– Loss of more than 5 miles of salmon-supporting streams
– Loss of more than 19 miles of streams known to feed into salmon-supporting streams
– Loss of more than 1,100 acres of wetlands, ponds, and lakes in the Bristol Bay region
The EPA’s determination follows its twice peer-reviewed Bristol Bay Watershed Assessment (BBWA), which details the risks of potential large-scale hard rock mining to the world’s largest wild sockeye salmon fishery — a $1.5 billion industry that supports 14,000 jobs. The assessment provides ample justification for the EPA’s proposed Clean Water Act action. In the mining scenario on which the EPA ultimately based its regulatory findings (.25 billion tons of ore mined), the assessment found that the Pebble Mine could destroy up to 24 miles of streams and 1,200 acres of wetlands, ponds, and lakes. And Pebble’s waste rock would have to be stored somewhere, and that portion which is potentially acid generating will have to monitored and treated in perpetuity. With its proposed determination, the EPA is taking a conservative approach to ensure the wrong type of mining development will not harm Bristol Bay’s salmon-based economy.
The release of the proposed determination opens up a round of public comments, which will also include in-region hearings during the second week of August. The two public comment periods for the EPA’s Bristol Bay Watershed Assessment drew unprecedented interest, both nationally and in Alaska. More than 75% of the more than 1.1 million comments nationwide were in support of EPA action. In Alaska – a state known for its support of resource development – support for the EPA topped 78%, while comments from the Bristol Bay region were nearly 98% in favor of the EPA. Given the high stakes, we expect the EPA’s proposed determination will draw extensive comments.
Stopping Pebble Mine will create certainty for existing American businesses
The Bristol Bay commercial salmon fishery supports more than 14,000 jobs and $1.5 billion in economic impact. The continued threat of the proposed Pebble Mine – which would likely be North America’s largest open pit mine – has cast a cloud of uncertainty over this fishery for the last decade, denying businesses the confidence they need to make important investment decisions that would create more jobs. Even Senator Lisa Murkowski – typically very pro-development – has voiced frustration with PLP’s years of failed promises to apply for permits.
Instead of working with Alaskans and the EPA to assuage concerns, PLP has instead turned to a legal and political strategy, filing suit in federal court and supporting legislation in Congress to curtail the EPA’s Clean Water Act authority. These efforts will only worsen the economic problems Pebble has already created. By using its well-established Clean Water Act authority, the EPA can and should quickly finish its proposed protections. Doing so will assure the commercial fishermen, sportsmen and lodge owners, and subsistence fishermen who rely on Bristol Bay salmon will not be decimated by Pebble’s development.
Even Pebble’s own supporters acknowledge the tremendous risk of the project. In September 2013, Anglo American, which had invested over $540 million in the project, announced that it was withdrawing from the Pebble Limited Partnership. Though it took a $500 million loss on the project, Anglo American said it wanted to focus on projects with the “highest value and lowest risks.” And earlier this year, Rio Tinto – which owned a 19% stake in now-sole PLP partner Northern Dynasty Minerals – walked away as well, literally gifting its shares to charities.
The EPA has full authority to protect Bristol Bay
Section 404(c) of the Clean Water Act allows the EPA Administrator to prohibit, deny, or restrict the discharge of dredged or fill materials into waters of the United States if such discharge “will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” EPA may do so “before a permit application has been submitted to the Corps.” Based on the BBWA, the standard for a 404(c) action has already been met and exceeded by EPA, which has taken a step in living up to its Clean Water Act obligations.
Further, in the recent Mingo Logan Coal Company v. EPA case, the U.S. Court of Appeals, D.C. Circuit, ruled that: "The Congress made plain its intent to grant the [EPA] administrator authority to prohibit/deny/restrict/withdraw a specification at any time.” The decision reaffirms the EPA’s authority to proactively restrict projects even before permits are filed. In fact, in the initial regulations for the Clean Water Act’s 404(c) provision (44 Fed. Reg. 58076, 58077), the EPA recognized that “where possible it is much more preferable to exercise this [§404(c)] authority before the Corps or state has issued a permit…”
The EPA’s science is sound
In its assessment, EPA used publically available information about the Pebble deposit put forward by Northern Dynasty Minerals, as well as reasonable copper mining scenarios in the Bristol Bay region. Through its peer-reviewed science, it is clear that mining on the scale of Pebble simply cannot coexist with a thriving and healthy fishery. In an earlier draft, one peer reviewer said:
“Make no mistake we cannot have both mining and productive salmon stocks in the Bristol Bay watershed. . . As a result of the mining operation, the government will be saddled with a 1000 years (at minimum) of monitoring and maintenance of this closed site.” (Stein)
Northern Dynasty Minerals' own data is the backbone of the EPA Watershed Assessment
Though PLP claims it does not have a mining plan, the EPA based its assessment and subsequent determination on documents publically filed by Northern Dynasty Minerals and PLP's actions put serious doubt its assertion about mine plans. In 2006, the company submitted plans when it applied for water rights with the State of Alaska. In 2011, it submitted a preliminary assessment to the Securities and Exchange Commission to solicit investor support for the project. And, PLP used realistic mining scenarios to release an economic study about the potential economic benefits of the Pebble Mine.
Moreover, as the EPA noted in the executive summary of the BBWA, “Even an environmental assessment of a specific plan proposed for permitting by a mining company would be an assessment of a scenario that would undoubtedly differ from the actual development.” What won’t change are the size, location, and potentially acid-generating type of ore for the Pebble deposit that is squarely located at the headwaters of the world’s most productive wild sockeye salmon fishery. The unique situation in Bristol Bay is a major reason why the EPA took its recent action.
Pebble is a long-term burden for the government and taxpayers
Large-scale hard rock mines almost universally tend to leave pollution legacies that are left to the government and taxpayers to deal with. Former PLP CEO John Shively explained his views on mining pollution last year: “The biggest problems came not during mining, but after… At closure, we will have to have a system for closure, and we will have to have a very substantial amount of money set aside so that if we’re not available to work on closure, the government or someone else can do it.” This is hardly a reassuring promise for the reclamation, monitoring, and water treatment that will be necessary in Bristol Bay.
There is unprecedented support for EPA action
Over 1,000 hunting and fishing groups and businesses, commercial fishermen in Alaska and across the U.S., 26,000 retail food stores, 225 chefs and restaurant owners, over 100 jewelers like Tiffany and Co., religious organizations and leaders, and many others support EPA action to protect Bristol Bay. Polls show that nearly over 60% of Alaskans oppose the Pebble Mine.
The Clean Water Act stands between Bristol Bay and massive mining development
The Pebble Mine will need 67 permits to start mining – 66 from Alaska, and one from the federal government. Alaska has never in the end denied a permit for major resource development and the state is trying to pass legislation that would stack the deck even further in favor of mining proponents.
“We have a good process. We can permit a project like Pebble. It will take more time and more resources and more manpower.” – Ed Fogels, Deputy Commissioner Alaska Dept. of Natural Resources (In Juneau Empire)
The EPA was right to issue proposed protections for Bristol Bay and should move quickly to finalize lasting safeguards that protect Bristol Bay from the Pebble Mine.