In a recent post, we summarized the congressional hearing on the EPA Bristol Bay Watershed Assessment. As a follow-up, we thought readers might be interested in some of the questions legislators asked the panelists. We have paraphrased some of them here:
Is it possible to have a scientifically sound watershed assessment using a hypothetical mining scenario in the absence of a submitted permit? (Committee Chair, Rep. Broun, R-GA)
Dr. Kavanaugh, senior principal, Geosyntec Consultants, and member, National Academy of Engineering: I don’t think it is. There is a serious constraint on undertaking a risk analysis on the basis of a hypothetical scenario. It’s inherently speculative in my opinion.
Who typically pays for an environmental impact statement for projects requiring dredge and fill permits? How does that compare to the EPA watershed assessment document? (Broun)
Mr. Rothschild, senior counsel, Bracewell & Giuliani LLP: Those permits are always paid for by the project applicant. The EPA document is paid for by the agency, the taxpayers.
Is there anything unique in the watershed assessment that would not be addressed in the NEPA permitting process? (Broun)
Mr. Nastri, Co-president, E4 Strategic Solutions; Former Regional Administrator, USEPA Region 9: I’m not aware at this time of anything that would not be addressed.
Rothschild, Kavanaugh, Mr. McGroarty, President, American Resources Policy Network: No.
How would a 404(c) action by EPA be fair to people who have invested hundreds of millions of dollars collecting scientific information so they can define a mine and identify how they can propose to meet the standards in our environmental laws? (Broun)
Nastri: It’s very fair to project proponents. Oftentimes what they want to hear are early parameters by which they could develop their project. They wanted certainty before they invested time and millions of dollars that are often associated by going through an EIS process.
How is copper used in green technology? (Broun)
McGroarty: Copper is a constant presence. It is used in wind turbines, solar power, geothermal, copper cable. The green revelution is very dependent on metals and minerals.
Would allowing PLP to present a plan to go through the NEPA permitting process result in any environmental harm? (Broun)
Rothschild, Kavanaugh, McGroarty: No, not aware of any.
Nastri: Yes, because of the delay that’s going on and the uncertainty. That uncertainty causes lack of investment. It causes environmental harm by not allowing other projects to go through that could provide greater benefit so you’re looking at lost opportunity. There is ongoing degradation because there is paralysis. I believe EPA could proceed under a set of 404 restrictions that would provide guidelines for companies to move forward.
Are there new mining technologies the EPA has not taken into account in its watershed assessment? (Broun)
Nastri: EPA is quite familiar with mining in general. They have mining engineers and people who have worked in the industry. In available documents the Pebble Partnership’s own companies describe in detail mining plans. There’s not a lot of variation you will see in the technology other than the actual size. The real question is: This is the resource of the world’s greatest salmon fishery. Can you imagine the uproar that would be caused if new unfounded or unproven technology were applied in some area like this and something went wrong? This is not an area that you experiment with.
Is there a plan to submit a permit with an EIS in the future? It would be helpful to us to know what the company’s intentions are. (Rep. Scott Peters, D-CA)
Kavanaugh: I was retained by Northern Dynasty Minerals to undertake an assessment of the EPA report. I would assume they are ready, more or less, but do not know the details.
Much has been made about the EPA assessing a hypothetical project. How much more information would EPA have to have about a project that had been official proposed compared to what has been already discovered about PLP plans through public documents? (Rep. Bonamici, D-OR)
Nastri: Under 404 fill and dredge permit requirements you have to show unacceptable adverse harm. The physical dimensions of the mine itself would create significant impacts to ecological resources. From that perspective EPA has enough information to address the 404 question.
How is data the EPA used in the assessment different from what would be considered during a traditional NEPA process? (Bonamici)
Nastri: Much of the data utilized in the watershed assessment would certainly also be utilized in the NEPA process.
How would the technology and mechanics of impact mitigation for a large mine look today than they would have four decades ago? (Rep. Schweikert, R-AZ)
Kavanaugh: You should look at written testimony that outline a number of the areas where mitigation measures would be undertaken. Tailing storage facility (TSF) is a large facility and needs to be designed with an appropriate safety factor. Many of the failures documented in the assessment are based on other ways of designing dams. You can design a TSF with an appropriate safety factor so the probability of a failure is very low. It would be designed in a manner that has been proven to be effective at withstanding seismic threats, overtopping, slope stability.
What role do avoidance and mitigation impacts play in the mining permit process? (Broun)
Rothschild: Under Clean Water permitting process an applicant is required to submit all practicable avoidance minimization and mitigation measures.
What is your assessment of the role of avoidance and mitigation of impacts in the EPA watershed assessment? (Broun)
Kavanaugh: In the second draft they included greater discussion about mitigation, but did not incorporate in my opinion mitigation into minimizing or discussing the probability of failure. They contained case studies that were not relevant to a modern mine.
If the EPA decided to move forward with a 404(c) action in Bristol Bay does it have the authority to do so, strictly speaking as a legal matter? (Rep. Muffei, D-NY)
Rothschild: EPA has not historically issued a preemptive 404c veto, so it’s not exactly clear what it would need to do to prepare a record for that. EPA administrator McCarthy has said, “Any act that EPA would take would be carefully considered. There are significant natural resources in that area, along with significant economic resources. We’ve got to get that balance right.”
Does the fact that the company has postponed the permitting application time and time again affect the EPA’s responsibilities here? (Muffei)
Nastri: The agency is being responsive to those who requested that it get involved (Alaska natives, residents, commercial and sport fisherman and other groups). The lack of submission of a timely permit application has created uncertainty, confusion and anxiety. That has contributed to where we are today. For EPA to respond to various residents and groups…this is the way that they respond.
It may be fairly unprecedented if EPA goes forward with 404c action, but do you feel that is a somewhat unprecedented situation with the company postponing the permit time and time again? (Muffei)
Nastri: The area and the resource is unprecedented in terms of an economics, jobs and cultural perspective. It’s important to provide certainty to the people. In hundreds of thousands of permit applications for fill and dredge, the agency has only taken this action 13 times. Here we are in the world’s greatest salmon fishery left. If we aren’t going to be careful and protective to this, when would we be? That’s why it is so important to provide that certainty now.
What do you think works and doesn’t work in the NEPA process? (Schweikert)
Rothschild: The process as a whole works. It analyzes the alternatives to, and the impacts of, a proposed project. That’s missing in this assessment. Every NEPA assessment needs to look at the alternative of not doing anything (the “no action alternative”).
Regarding the watershed assessment, is it unusual for there to be two public comment periods? (Bonamici)
Nastri: There’s been extensive outreach during the entire process. In my experience there is typically one public comment period. In my opinion, the agency, in an abundance of caution, wanted to make sure there was as much outreach and input as possible.
Could you comment on the efforts that have been made to work with federally recognized tribes in the area? (Bonamici)
Nastri: There were a number of visits to the area. EPA staff flew over the proposed site and look at some of the areas that would be impacted. Agency provided the opportunity for engagement and formed a group to deal with tribal entities.
Why is it so important that EPA get the assessment done soon? What do residents think about EPA process and the mine? (Rep. Kilmer, D-WA)
Nastri: Right now what we have is uncertainty. It has caused anxiety and frustration in communities. We’ve heard from a number of organizations that say they will not invest in the area because they don’t know what the outcome is. There’s the ongoing threat of stigma. The value of the fish is tremendous. Providing a response that addresses the uncertainty is important. There are economic and social impacts and what the uncertainty is doing to the youth. Over 75% of comments that were generated about the EPA’s watershed assessment were in support of it. Within Bristol Bay, over 95% of the commenters supported the assessment. Comments from various villages talked about the potential harm to a subsistence way of life and cultural identity should the salmon be impacted in the way that’s feared.