The dark mood among the few Anglo American and the Pebble Limited Partnership representatives at the U.S. Environmental Protection Agency (“EPA”) hearing last Thursday in Seattle was palpable.
Perhaps it was a reaction to the hundreds of commercial fishermen, Native Alaskans, hunters, conservationists, and faith leaders who had come to EPA’s standing room only hearing to voice their support for EPA’s draft Bristol Bay Watershed Assessment and their opposition to the Pebble Mine.
Perhaps it was a reaction to EPA’s “temerity” in undertaking an extensive fifteen-month scientific analysis of the impacts of large-scale mining on the natural resources of the Bristol Bay watershed. Independent science – that is, science not bought, paid for, and controlled by the mining companies themselves – is decidedly not helpful to their reckless scheme of extracting vast riches for themselves and their shareholders out of the Bristol Bay tundra – leaving an estimated 10 billion tons of mining waste for future generations to manage and remediate forever.
Or perhaps they are simply frustrated at the broadening wall of opposition to the Pebble Mine – and by their rapidly declining stock values -- as the Pebble Mine gets more and more public profile, solidifying the overwhelming opposition from the region’s residents and broadening the base of opposition nationwide. After all, it would be a lot simpler for the Pebble Partnership if they could just be left alone to work with the State of Alaska’s Department of Natural Resources – a state agency that hasn’t denied a mining permit yet and isn’t expected to say “no” when the Pebble Partnership asks to start tearing up the headwaters of Bristol Bay’s incomparable wild salmon fishery.
Here are some of their arguments, likely to be heard repeatedly in upcoming hearings as the Pebble Partnership does everything it can to derail or delay EPA’s engagement:
They dismiss the Watershed Assessment as “rushed,” “premature,” “an over-reach,” and fear-mongering” – dangerously at odds with the Pebble Partnership’s multi-year, $100 million dollar environmental analysis being prepared to prove their project will do no harm. By their measure, no independent input will ever be welcome – not here, not with respect to any contested project, since the applicant always has the luxury of time and money to develop endless quantities of self-serving, project-justifying “environmental documentation.” In fact, the problem isn’t that EPA took a mere 15 months to do its work; the problem is that EPA did any work at all and reached a conclusion at odds with the mining companies’ assurances that the Pebble Mine won’t harm the salmon.
The mining companies claim they are being deprived of “due process,” ignoring the obvious fact that EPA’s assessment doesn’t deprive them of anything. It’s a scientific document, carrying no regulatory mandate. Their real fear is that EPA may act on petitions from Native Alaskan tribes and others from the region requesting that the agency veto the Pebble project under section 404(c) of the federal Clean Water Act – a provision enacted by Congress to protect critical water and recreational resources from unacceptable harm. But even the 404(c) process incorporates due process for any other interested party – the right of notice, the right to comment and be heard, and the right to challenge any decision with which they might disagree. This is the way agency decisions have been made for decades under the federal Administrative Procedure Act. The Pebble Partnership’s claim of unfair treatment -- that they are being deprived of due process and a fair hearing -- is public relations nonsense, without any basis in fact or law.
Anglo American’s representative emphasized that the company has already spent almost half a billion dollars on the Pebble Mine project and claimed, given this vast expenditure, that EPA must stand aside and let them prepare and file their permit applications. (Expect this particular chorus only to get louder as, with the passage of time, Anglo American throws more good money after bad in pursuit of the Pebble Mine.) Of course, they can file permit applications whenever they’re ready, and they can spend as much or as little as they choose. But how many hundreds of millions of dollars they choose to spend has no bearing on whether EPA is authorized to prepare a watershed assessment or to act under section 404(c).
They also criticized EPA for holding a hearing in Seattle, arguing that the Bristol Bay watershed – and the Pebble Mine -- are an Alaskan concern and therefore not appropriate for hearing outside Alaska. Never mind that the hearing was attended by hundreds of commercial fishermen with a direct stake in the health of the Bristol Bay fisheries. Never mind that the Bristol Bay fishery serves people nationwide – indeed around the world. Never mind that the project requires federal permitting approval. And – not to be forgotten – never mind that EPA has engaged at the specific request of Native Alaskan tribes and Bristol Bay communities.
Perhaps the central message point of the day for the Pebble Partnership team was their demand for an extension of the 60-day public comment period. One speaker argued that the imminent salmon season requires an extension – although commercial fishermen are virtually unanimous in their opposition to the Pebble Mine, and the hearing room was filled to capacity with fishermen who had come to thank EPA for its work. The State of Alaska – whose Department of Natural Resources has never been a friend of public comment period extension requests – strongly believes that an additional four months is needed here! One suspects that the purpose of these collective requests is to paralyze EPA’s process rather than to improve the content of its draft assessment. That said, more than any other stakeholder, the Pebble Partnership has long controlled access to a vast quantity of information, and, whenever the public comment period comes to an end, EPA can expect to be buried by it.
EPA’s Watershed Assessment is well grounded in science and the law. The agency has broad support in the Bristol Bay region – where the petitions for EPA intervention originated. The agency should be neither surprised nor deterred by the Pebble Partnership’s predictably unwelcoming response to independent scientific analysis. We strongly urge the agency to deny requests to extend the public comment period and move forward expeditiously to finalize its assessment.
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Joel Reynolds attended the Seattle hearing and delivered the following testimony:
My name is Joel Reynolds, Senior Attorney with the Natural resources Defense Council and appearing on behalf of its 1.3 million members and activists. We will be submitting detailed comments by the July 23rd deadline, but I want to make several brief points this afternoon:
First, we applaud EPA for exercising its authority and undertaking the watershed assessment. And we applaud Senator Cantwell for her leadership in supporting it.
I urge you not to be deterred by claims from the Pebble Limited Partnership that the assessment is rushed, premature, or an overreach. And I’m mystified by claims about “deprivation of due process” since due process is incorporated into the procedures of section 404(c). One suspects that any science not controlled by the Pebble Partnership will be considered by them an “over-reach” or “fear-mongering.” In fact, the Bristol Bay Watershed Assessment is precisely the kind of activity delegated by Congress to EPA in section 104.
Second, the Watershed Assessment is a highly technical document, with a great depth of scientific analysis and detail. But in simple terms it confirms what the residents of the region have long understood: that large scale mining – like the proposed Pebble Mine – would pose an unacceptable and unavoidable risk of harm to the people, the communities, and the wildlife of the BB watershed.
Building a massive mine in this location -- at the top of the watershed of the world’s greatest wild salmon fishery – is a reckless idea, a destructive venture from which significant risk to protected resources can’t be eliminated, no matter how extensive the environmental review or comprehensive the mitigation regulators might impose.
The only certainty is that eventually the mitigation will fail, eventually contamination will occur, eventually the fisheries will be destroyed.
We shldn’t gamble what we can’t afford to lose, and we can’t afford to lose the BB fishery.
On behalf of NRDC and its members, we thank you for your critically important work thus far, and we urge you to move forward proactively to protect the people and wildlife of Bristol Bay.
Thank you.
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