Pebble opponents seek EPA help in blocking mine

Elizabeth Bluemink
MARGARET BAUMAN / Alaska Newspapers via The Associated Press

The opponents of Pebble, the giant copper and gold prospect in Southwest Alaska, have asked the federal Environmental Protection Agency to invoke its potent and rarely used power to block the potential mine.

But U.S. Rep. Don Young late last month filed legislation seeking to strip the EPA of that authority.

Six tribes in the Bristol Bay region want the EPA to prohibit or restrict the disposal of mining waste in either of the two major river drainages that the Pebble deposit straddles -- the Nushagak and Kvichak, both major salmon-producing rivers. They want the EPA to take action before the companies that own Pebble's mining claims apply for any development permits on their state mining claims.

It's the latest salvo in the multimillion-dollar war being waged over Pebble, which if built would be the state's largest mine.

On one side are sport and commercial fishermen, environmentalists and villagers worried about Pebble's potential impact on fisheries. On the other: proponents of the mine who argue Pebble can be developed safely and will supply hundreds of long-term jobs in a region where many villagers are struggling to find work.

Besides expensive ad campaigns for and against Pebble, the fight has involved efforts in Juneau and at the ballot box to tighten state mining rules and two Pebble-related lawsuits pending in state court.

The war may intensify as a mine inches closer to reality: Next year, the companies that have been exploring Pebble plan to begin applying for development permits, a process expected to take at least three years.

The six tribal councils -- in Nondalton, Koliganik, New Stuyahok, Ekwok, Dillingham and Levelok -- sent a letter in May to top officials in the federal Environmental Protection Agency, asking them to invoke Section 404(c) of the Clean Water Act in the Nushagak and Kvichak river drainages.

Several commercial fishing organizations in the region have since joined the tribe's request.

But their request wasn't widely known until late last month, when tribal officials discussed it in Dillingham with the EPA national chief, Lisa Jackson, who went there to gather tribal input on Pebble.

Young filed his bill two days after the Dillingham meeting. He didn't mention Pebble at all, instead he voiced disapproval of EPA's actions this year on a Conoco Phillips drilling project in the National Petroleum Reserve-Alaska. EPA did not invoke 404(c) on the Conoco project, but it did recommend that the Army Corps of Engineers reject the company's proposed 404 permit, and the Corps did so, leaving the Conoco project in limbo. Conoco officials said on Monday that they have discussed the matter with the congressional delegation, including Young.

Young spokeswoman Meredith Kenny did not return several phone calls to further clarify the matter.

EPA responds

When he filed the bill, Young said his intent was to streamline how the disposal of dredged material or fill into wetlands, streams or rivers is regulated. Developing a mine at Pebble will require this sort of disposal permit for its mine tailings, or waste rock, and other work.

Section 404(c) of the Clean Water Act empowers the EPA to prohibit the permits if it determines that disposing the dredged material will have an "unacceptable adverse effect" on fisheries, wildlife and drinking water.

When the EPA invokes this law, it seeks public comment and usually holds a public hearing. If it does invoke the law, it overrules the authority of the Corps of Engineers, which is in charge of such permits.

Young said when he filed the bill, "The EPA's involvement in such permitting is unnecessary, and must be removed."

EPA officials did not comment on Young's bill but said they plan to respond to the tribe's petition in "as timely a fashion as possible."

"Given the seriousness of the action, EPA wants to ensure that any steps taken are taken on a consideration of the best information and science possible," the EPA's regional mining coordinator, Patty McGrath, said in an e-mail.

A spokesman for Pebble Partnership, a joint venture of the two mining companies seeking to develop Pebble, said the partnership was not aware of the petition until last week and had not discussed it with Young.

The spokesman, Mike Heatwole, said he would not speculate on what it would mean for Pebble if EPA favors the tribe's petition.

The six tribes and the fishing groups reacted in anger last week to Young's bill, saying that it undermines EPA's authority to enforce clean-water laws.

"We want our country's top environmental experts (to) look into whether the Kvichak and Nushagak drainages are the right place for large-scale metallic sulfide mining that could permanently harm the world's largest wild sockeye salmon fishery," said Lindsey Bloom, a Bristol Bay commercial fisherman who also works with Trout Unlimited, a conservation group.

If the EPA decided to invoke its 404(c) authority over the Bristol Bay rivers, it would be only the second time it has done so in a Western state.

Since passage of the Clean Water Act in 1972, the EPA has used 404(c) to veto a Corps of Engineers fill or dredge permit about a dozen times. Most of the time, it was on the East Coast. Once the agency invoked it in Colorado.

It's even rarer for the agency to use 404(c) before a company has applied for a Corps of Engineers disposal permit. That has happened only once -- in Louisiana, during the Reagan administration, according to agency records.

McGrath said the EPA tries to exhaust all other options before invoking its 404(c) authority.