Mining Weekly

TORONTO (miningweekly.com) – The office of inspector general (OIG) for the US Environmental Protection Agency (EPA) on Wednesday issued its independent report, concluding a 17-month review of the agency’s actions and decision to conduct an assessment of Alaska’s Bristol Bay watershed, clearing the EPA of bias or a predetermined outcome.

However, OIG noted that an EPA employee might have misused his position by providing, through a personal nongovernmental email account, comments on a Clean Water Act Section 404(c) petition drafted by six Alaska Native tribes, before the tribes submitted the petition to the EPA.

Northern Dynasty president and CEO Ron Thiessen expressed disappointment at the narrow scope and limited findings of the OIG report. With litigation against the EPA pending, a preliminary injunction in place, and several US Congressional committees pursuing investigations into EPA misconduct, Thiessen expressed confidence that the Pebble Limited Partnership's (PLP's) standoff with the EPA would be resolved this year, leaving PLP free to initiate federal and state permitting, unencumbered by any extraordinary development restrictions.

PLP CEO Tom Collier also expressed disappointment at the release of the EPA inspector general's report, stating that the federal agency continues to minimise the seriousness of its own misconduct regarding the Pebble project, while sweeping under the rug the complicity of its most senior officials. Collier called upon Congress to continue its oversight of the agency's actions.

LITIGATION
A lawsuit initiated last year by PLP in US federal court charged EPA with violating the Federal Advisory Committee Act (FACA) by inappropriately colluding with environmental activists in its scientific review and regulatory action against Pebble. PLP won a preliminary injunction in the FACA case, a judgment that reflects the federal court's view that it has a 'likelihood of success on the merits' of its case, and is now preparing for trial.

"We are by no means through making our case that EPA acted inappropriately and perhaps illegally with respect to Alaska's Pebble project. We will have the opportunity to depose as many as 35 senior EPA officials, insiders and others in the environmental community as part of our FACA discovery, and we continue to gain new information and fresh insights through the investigative efforts of Congress.

"This issue is just too important to be swept under the rug – not only for us and for the state of Alaska, but for the integrity of objective, science-based decision-making in this country," Collier said.

Another independent review of the EPA’s decision-making process regarding potential mining in south-west Alaska's Bristol Bay watershed, released in October, concluded that the agency’s actions were not fair to all stakeholders, raising concerns about alleged possible misconduct by the EPA.

Following a year-long in-depth investigation, former US senator and secretary of defence William Cohen raised concerns about possible EPA misconduct, including that the EPA might have predetermined the outcome of its review before conducting the Bristol Bay Watershed Assessment and that EPA officials might have had inappropriately close relationships with environmental activists.

Cohen concluded that the EPA was wrong to undermine long-standing federal regulatory and permitting processes in seeking to veto Pebble before a project had been proposed or permits applied for.

Collier further noted that the inspector general only reviewed three employees' emails, issued only one subpoena (to an attorney, who did not comply) and had glossed over important portions of the record. "For example, in stating that EPA complied with peer review guidelines, the inspector general omits any acknowledgment or critique of the peer review of the second Bristol Bay Watershed Assessment report, which clearly did not comply with agency peer review guidelines."

BRISTOL BAY ASSESSMENTS
Inspector general Arthur Elkins stated that multiple hotline complaints and congressional inquiries prompted the OIG to conduct this programme evaluation. "Our report constitutes an independent determination as to whether the EPA adhered to laws, regulations, policies and procedures in developing its assessment of potential mining impacts on ecosystems in Bristol Bay,” he noted.

The EPA conducted its watershed assessment from February 2011 to January 2014, to determine the significance of Bristol Bay’s ecological resources and evaluate the potential impacts of large-scale mining on those resources.

The Bristol Bay watershed, located in south-western Alaska, was home to 25 federally recognised tribal governments, and contained large amounts of copper and gold, including Northern Dynasty Minerals’ Pebble project, considered to be one of the largest undeveloped projects in the world.

The OIG found that the EPA’s assessment appropriately included sections on three primary phases discussed in the agency’s ecological risk assessment guidelines. The EPA also met requirements for peer review, provided for public involvement throughout the peer review process, and followed procedures for reviewing and verifying the quality of information in the assessment before releasing it to the public.

“EPA is pleased that the inspector general’s independent, in-depth review confirms that our rigorous scientific study of the Bristol Bay watershed and our robust public process were entirely consistent with our laws, regulations, policies and procedures, and that they were based on sound scientific analysis. We stand behind our study and our public process and we are confident in our work to protect Bristol Bay,” stated EPA regional administrator Dennis McLarren.

RIGHT TO VETO
The EPA noted that, contrary to claims by the Pebble Partnership, it did not issue a ‘pre-emptive veto’ of the mine. “Far from a veto of a mine, EPA’s proposed restrictions are well-considered limits that balance the need to protect the world-renowned salmon fishery that thrives in the Bristol Bay watershed.

“Pebble is free to file a Clean Water Act Section 404 permit application at any time, and though it has repeatedly said it would file a permit application, it has chosen not to do so,” said the agency.

Despite the EPA rarely using the Clean Water Act Section 404-C process to veto a project, the agency said that it continued to believe the process was appropriate here.

While the EPA is currently prohibited by the US District Court for the District of Alaska from taking any further action to protect the Bristol Bay watershed, the agency stated that it was confident that the court would ultimately conclude that the EPA’s actions were fully consistent with the Federal Advisory Committee Act.

The OIG did note that it was unable to obtain 25 months of missing emails from a retired EPA ecologist’s government email account to verify whether his actions resulted in an actual misuse of position. The OIG also attempted to obtain access to the retired employee’s personal email records regarding Bristol Bay activities, because it found that the employee had used personal email to review the draft tribal petition. The employee’s legal counsel refused service of a subpoena, stating that she was not authorised to accept service on behalf of her client.