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EPA watchdog reviewing agency's work on Bristol Bay and Pebble mine

Lisa Demer

A government watchdog is reviewing the Environmental Protection Agency's study of impacts from the proposed Pebble mine after mine owners complained that the EPA collaborated with Pebble opponents.

EPA in February announced it was considering unprecedented use of its veto powers to block the Pebble mine, a huge gold and copper prospect at the headwaters of two major salmon-producing streams that flow into Bristol Bay, home of the biggest sockeye salmon runs in the world.

In January, EPA finalized a three-year scientific study of the Bristol Bay watershed, but Pebble backers say that study was rushed and flawed and pushed for an investigation of how it came about.

In a May 2 memo, EPA's Office of Inspector General said it was conducting preliminary research to evaluate whether EPA "adhered to laws, regulations, policies and procedures in developing its assessment of potential mining impacts on ecosystems in Bristol Bay, Alaska."

"This is not a criminal investigation," Patrick Gilbride, director of science, research and management integrity evaluation for the Office of Inspector General, said Tuesday in a telephone interview. A separate part of the IG office handles criminal cases. "It's an evaluation of the actions that have taken place in Bristol Bay."

Northern Dynasty Minerals Ltd., owner of the Pebble prospect, has been pushing for an IG investigation since early January. U.S. Rep. Don Young and Sen. Lisa Murkowski also have called for an investigation, as have several other members of Congress. But Sen. Mark Begich, who says the valuable salmon-producing watershed is the wrong place for a big mine, has not.

The review already underwent "an extensive public process," Begich aide Heather Handyside said in an email. Still, "if this review helps resolve any lingering uncertainty about the assessment which has been publicly reviewed for several years, then he welcomes it."

Several village corporations and tribal councils around the project area also sought an investigation, as did trade and business groups including the Alaska Miners Association, the Alaska Oil and Gas Association and the Alaska Chamber, according to Pebble.

THREE COMPLAINTS

In a Feb. 18 letter to Inspector General Arthur Elkins, Richard Schwartz, a lawyer for Northern Dynasty, wrote:

"EPA's collaboration with mine opponents has been extraordinary -- EPA appears to have treated them as part of its team, whose goal is securing a veto of the Pebble project that would be impregnable to reviews by future administrations."

EPA says it stands by its study of impacts from a big mine in the Bristol Bay watershed, which included two rounds of peer review. The study found that a big mine like Pebble would destroy a section of salmon-producing watershed that now is almost undisturbed. The agency says it engaged the public as well as those on both sides of the project, but it didn't conspire with opponents over how to veto the mine.

Even now, more than three years after announcing it was studying the Bristol Bay watershed, EPA hasn't decided whether to use its Clean Water Act powers to bar filling in salmon streams and habitat, which would effectively block Pebble and other big mines.

Instead, it asked the state of Alaska and Pebble to present scientific information on how a mine could be developed without destroying rich salmon fisheries. EPA now is evaluating that information. It also will cooperate with the newly launched review, officials said.

In all, Northern Dynasty's Schwartz sent three long letters this year to the inspector general detailing three main complaints with EPA. Northern Dynasty's chief assertions are:

• EPA employees worked with outside groups for a mine veto, even though Pebble has yet to apply for permits.

• The EPA scientific assessment of how a big mine would impact salmon and other natural resources was flawed and biased.

• EPA manipulated the peer review process that checked its assessment.

COLLABORATION?

A May 2010 petition by six tribal groups in the Bristol Bay region triggered EPA to start a process under the Clean Water Act that could lead to a mine veto, the agency has said.

But Northern Dynasty contends an EPA employee on the Kenai Peninsula, Phillip North, had been advocating a review under an obscure part of the Clean Water Act -- section 404(c) -- at least two years before that. North emailed EPA's regional mining coordinator in August 2008, saying, "The 404 program has a major role. I would like the benefit of hearing what other EPA folks are thinking."

Before a retreat the next year, North emailed that Pebble and the proposed Chuitna coal mine across Cook Inlet both "merit consideration of a 404C veto," according to Schwartz's Jan. 9 letter.

At the 2009 retreat, North gave a presentation about the veto process. North, who reviewed mining projects, retired last year, according to EPA.

EPA also "collaborated with activists seeking a veto from the agency," Schwartz wrote. For instance, Trout Unlimited gave the EPA a copy of its report opposing Pebble more than two months before it was released publicly. The advocacy group also hosted a Q-and-A session with EPA on its report.

In a meeting with Pebble Limited Partnership in July 2010, then-EPA administrator Lisa Jackson didn't even mention the tribes' petition, which the agency received that May. Pebble didn't learn that tribes had pushed for the veto process until later news stories, Schwartz wrote.

He also highlighted concerns with Geoffrey Parker, an Anchorage lawyer who represented the tribes that originally petitioned the EPA.

"EPA sought his advice for issuing a veto that would bind future administrations," Schwartz wrote in Febuary. "It is becoming clearer that while EPA was telling the public that it had made no decision whether to veto the Pebble project, it was secretly seeking advice from Pebble opponents on how it would veto it."

Not true, Parker said when reached by phone Tuesday.

He said he called an EPA official to discuss the tribes' concerns and then followed up with a letter, not about how to bind another administration -- because that is impossible -- but how to ensure stability of any decision about a veto.

No. 1 on his list: "The best science improves stability."

In his September 2011 letter -- which came seven months after EPA announced it was undertaking a review -- Parker listed 12 ideas that could help a decision hold up, including seven that EPA might do and five that the tribal councils might take on.

Parker also noted that the tribes he represented didn't ask for an outright veto, though other groups later did.

AN ACCOUNTING

A five-person team is handling the inspector general review, Gilbride said. The first phase of fact-finding generally wraps up in 90 days but could take longer, Gilbride said.

The review could end there or move into a second phase, field work, he said. If it continues into a third phase, a public report will be issued, he said.

The team already is seeking a timeline of how the Bristol Bay watershed assessment was developed, an accounting of costs, names of EPA personnel involved and names of stakeholders.

Reach Lisa Demer at ldemer@adn.com or 257-4390.

 


By LISA DEMER
ldemer@adn.com
Contact Lisa Demer at LDemer@adn.com or on