Industry, GOP warns EPA wants pre-emptive veto - Business, Government Legal News from throughout WV

Industry, GOP warn EPA wants pre-emptive veto

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A company seeking to mine gold and copper in Alaska warns action being taken by a federal agency could stifle mining activity everywhere — including the hobbled West Virginia coal industry.

The Pebble Partnership is seeking to mine gold, copper and molybdenum in the Bristol Bay region. The mine has faced opposition from local tribes, state legislators and particularly commercial fishermen. The bay is the home of almost half of the world's sockeye salmon population.

The Environmental Protection Agency has conducted a study of potential mining in the area and its effect on the salmon population. The study, currently in draft status, could determine whether or not Pebble, or any company, is allowed to mine in the region.

The problem, industry groups and the GOP argue, is that Pebble has not yet submitted a mine plan. Analyzing potential impacts without first looking at Pebble's plan, said Pebble spokesman Mike Heatwole, is reminiscent of the highly controversial retroactive veto of the Spruce Mine permit in West Virginia.

"If the EPA preemptively acts against the Pebble mine before we have a chance to apply for permit, it will have major regulatory consequences across the nation for any company involved in major construction projects, not just mining, seeking a 404c permit under the Clean Water Act," Heatwole said. "There are some 60,000 of these permits granted every year.  However, our colleagues in the mining industry, especially coal miners, understand the danger better than most."

The Spruce Mine permit remains a contentious political issue in West Virginia. In that case, the EPA denied a permit for a very large surface coal mine after the permitting process had been completed and approved.

Rick Halford, a former state Senate president in Alaska, once said he never met a mine he didn't like. Now, however, even he is speaking out about the proposed Pebble mine.

"If God were testing us, he couldn't have found a better place to do it," Halford said in a video opposing the mine.

Pebble's position is that it should be allowed to develop and submit its mining permit plan — including mitigation strategies — to be evaluated just like any other mining project.

The idea Pebble should at least have the opportunity to apply for a permit before it is turned down is supported by Democratic Alaskan Sen. Mark Begich.  

"I remain opposed to any pre-emptive decision on the Pebble mine," Begich said in a statement. "While the project needs to meet a high hurdle — protecting the world's largest and most valuable salmon run — developers should be allowed to present their project, and it should succeed or fail on its merits."

That the EPA would exercise preemptive revocation of a permit is unnerving for a lot in the resource extraction industry.

"Today, we are extremely worried that the EPA is about to try in Alaska what it already tried in West Virginia," Heatwole said. "That is, attempting a precedent setting and likely unlawful expansion of the agency's authority to shut down mining activity and block good paying jobs for the nation. Just as the Spruce mine retroactive veto in West Virginia was a matter of national concern, what the EPA is threatening to do in Alaska will have major consequences for the whole country."

Though the idea of retroactive vetoes ruffled a lot of feathers in West Virginia political circles, Heatwole said a precedent for preemptive veto should be of even greater concern.

"Retroactive vetoes are bad, but the idea of a regulatory agency preemptively blocking your project without even looking at a permit application is truly frightening," he said. "We join many across industries in expressing concern that should the EPA attempt to get this far-reaching authority that it will become the new tool for national environmental groups to stop resource development and job growth in the United States."

The EPA conducted a watershed assessment of the Bristol Bay based on hypothetical mining situations.

"This is not an in-depth assessment of a specific mine, but rather an examination of the impacts of mining activities at the scale and with the characteristics realistically foreseeable in the Bristol Bay region, given the nature of mineral deposits in the watershed and the requirements for successful mining development," the EPA's watershed assessment states.

Heatwole pointed out that the process took about 11 months, which he said is the "largest area they have ever evaluated under a watershed assessment," though it took "by far the shortest amount of time."

The study eventually concluded a large-scale copper mine in southwestern Alaska would be detrimental to wild salmon runs even without any sort of failure.

"Since we have not completed or submitted our mine designs and permit applications, the EPA simply created a hypothetical mine to assess," Heatwole said. "We were deeply troubled to see that the EPA's hypothetical mine assumed technologies and practices from the late 19th and early 20th centuries, which would obviously cause environmental damage, and so could never be permitted in today's regulatory climate."

The hypothetical mine, the EPA says, is based on baseline data and plans published by Pebble.

"Details of a mining plan for the Pebble deposit or for other deposits in the watershed may differ from our mine scenario; however, our scenario relects the general characteristics of mineral deposits in the watershed, contemporary mining technologies and best practices, the scale of mining activity required for economic development of the resource, and necessary development of infrastructure to support large-scale mining."

While the West Virginia Coal Association did not respond to a request for comment on the matter, the National Mining Association has already weighed in with comments to the EPA watershed assessment and its effect on the mining industry as a whole.

"EPA's unprecedented actions with respect to the Bristol Bay watershed are premature and will have a stifling effect on investment, as nearly all major industrial and manufacturing sectors require (Clean Water Act, section 404) permits and could thus be subject to similar "watershed assessments,'" the NMA's Assistant General Counsel Amanda Aspatore wrote. "Why would companies invest hundreds of thousands if not millions of dollars and do years of scientific research concerning U.S. properties if they know that the government intends to step in and stop their projects in their tracks before a permit application has even been submitted?"

The relevancy of the EPA's assessment has been called into a question by a number of groups, including the U.S. House Science Committee, the House Oversight and Government Reform Committee, the State of Alaska and a panel charged with peer-reviewing the study.

"We do have concerns of course with the fact that because this is theoretical, because you don't know exactly how it's being built, you really can't evaluate with any degree of specificity what the potential effects are associated with that," said panel member William Stubblefield, a senior professor at Oregon State University and environmental toxicology expert. "It doesn't contain a lot of detail about how mitigative strategies could and potentially will reduce exposures."

Charles Slaughter, an expert in watershed management at the University of Idaho, called one portion of the study "hogwash."

Nuna Resources, an Alaskan organization supporting "responsible resource development through due process" warned the EPA that it's action could be unjustly stifling a major opportunity in the region.

"We are genuinely worried that the EPA is about to consign our communities to a permanent economic depression by rushing to pre-emptively invoke Section 404(c) of the Clean Water Act before all the facts are known," Nuna Resources wrote to the EPA. "This is the most important environmental and economic decision in the history of our region and your agency is ignoring the people who stand to be most affected by that decision."

The EPA told The Hill that the assessment is "not a regulatory document or decision," but instead merely an information tool the agency can use to make a decision.

"By conducting this assessment prior to receiving a final mining plan, we evaluate the current status of the fishery and potential impacts of large-scale mining," The Hill quotes the EPA. "The results of the assessment will help inform future decisions the agency or others might take concerning the management of the watershed."

According to the draft assessment released in the May, the EPA "will not address use of its regulatory authority until the assessment becomes final and has made no judgment about whether to use that authority at this time."

Pebble officials say the mine would represent a multi-billion dollar capital investment and generate 1,000 high paying jobs. Another 2,000 would be employed during the construction phase of the mine.

The company claims it will already face numerous hurdles to receive permitting and has taken extensive action to mitigate environmental impacts.

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