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Northern Dynasty appeals EPA’s potential pre-emptive Pebble veto

Northern Dynasty appeals EPA’s potential pre-emptive Pebble veto

Photo by Northern Dynasty Minerals

30th April 2014

By: Henry Lazenby

Creamer Media Deputy Editor: North America

  

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TORONTO (miningweekly.com) – TSX- and NYSE-listed Northern Dynasty Minerals on Wednesday said that the Pebble Limited Partnership (PLP) had submitted a comprehensive response to the US Environmental Protection Agency's February letter, in which the federal agency announced it would start a regulatory process under Section 404(c) of the Clean Water Act (CWA) to determine whether to pre-emptively veto the Pebble project, or whether, and how, to establish restrictions on its development.

US environmental regulators have moved to block development of the Pebble mine, citing potential "irreversible harm" to the state's salmon fishery.

The Environmental Protection Agency (EPA) has initiated a rarely used process under the Clean Water Act to "identify appropriate options to protect" the Bristol Bay fishery from the impact of the proposed mine.

The decision follows a report in January that found large-scale mining would pose serious risks to salmon and native cultures in the region.

The Vancouver-based company has condemned the EPA's action, saying the agency is aiming to preemptively block the project without allowing it to go through the established permitting and environmental review process.

Northern Dynasty remains confident that Pebble, one of the richest copper/gold deposits in the world, will eventually move ahead. It has said the mine can be developed in a safe manner and will provide an economic boom for Alaska.

Opponents have long said that the environmental risks outweigh the benefits, citing the potential for widespread damage if polluted water were to enter streams in the region.

The EPA can use the Clean Water Act to effectively veto the mine. It has initiated similar processes 29 times and has completed the entire process only 13 times. The review will include a new consultation period, public hearings and further consultations with the Army Corps of Engineers and the company.

Permits cannot be approved during the review process.

IMMEDIATE BACKLASH

"What is absolutely clear is that EPA's intent to undertake pre-emptive action under Section 404(c) to restrict development of the Pebble project goes well beyond its statutory authority as established by Congress, and would have the effect of undermining the legitimate regulatory authority of the state of Alaska and the US Army Corps of Engineers," PLP CEO Tom Collier said.

"As EPA itself has admitted, it is an unprecedented action. It will have far-reaching negative consequences for investment and job creation in this country by turning the federal permitting process on its head."

Collier pointed to an internal EPA memorandum that acknowledged taking proactive action to veto or restrict development at Pebble had "never been done before in the history of the CWA", and would result in "immediate political backlash" and "litigation".

The memo also indicates the EPA's ambition to vastly expand its authority, calling the Pebble precedent a "model of proactive watershed planning" that would allow it to undertake 'zoning' or 'watershed planning' over vast areas of state, private and tribal lands throughout the US.

"The actions EPA is contemplating today go well beyond Pebble. It is a precedent that will be leveraged by environmental activist groups and will have a chilling effect on investment and job creation throughout the country. Congress never intended to grant EPA the authority to undertake proactive watershed zoning over broad areas of state and private lands when it passed the CWA, yet that is exactly what is happening here,” Collier went on to say.

PLP's submission argued that EPA's January Bristol Bay Assessment provided an insufficient scientific foundation for regulatory decision-making, because PLP had not yet submitted a proposed development plan for Pebble, such that the mine scenarios presented in the assessment were speculative, did not employ modern mine engineering and environmental management practices and approaches, and entirely overlooked compensatory mitigation for unavoidable effects on aquatic habitat and wetlands.

Further, PLP argued that the scientific inputs used and analyses undertaken in the assessment were of “substantially” lower quality, less comprehensive and less definitive than the inputs and analyses to be employed as part of an environmental impact statement (EIS) process under the National Environmental Policy Act (NEPA).

"Despite three years of study, EPA hasn't quantified any impact of any of its speculative mine scenarios on any fishery in Bristol Bay. On that basis alone, EPA simply hasn't demonstrated that mineral development at Pebble will have an unacceptable adverse effect on the region's fisheries, and so doesn't have the regulatory authority to veto future development,” Collier said.

HIDDEN AGENDA

Northern Dynasty also revealed that it had submitted information received through the Freedom of Information Act requests to the office of the EPA inspector general, which suggested that the federal agency had a pre-determined outcome for the Bristol Bay Assessment, and had planned a veto of the Pebble Project under Section 404(c) of the Clean Water Act as far back as 2008.

The company said it expected the inspector general to announce whether it would launch an investigation into EPA and its actions regarding the Pebble project this spring.

"It's time to stop the madness. [The] NEPA is among the most admired and emulated environmental protection and regulatory processes in the world. EPA should stand down and let that process work for Pebble, with the full knowledge that no environmental harm can occur in the interim,” Collier said.

Earlier this month, mining major Rio Tinto gave away its 19.1% holding in the company to two Alaskan charities.

The decision followed the strategic review announced last year of Rio Tinto's interest in Northern Dynasty, which concluded the Pebble project did not fit with Rio Tinto's strategy. Anglo American pulled out in September, as part of its plan to cut the cost of future options.

Edited by Creamer Media Reporter

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