Due Process on the Line in EPA Mine Hearings This Week

Wednesday, 13 Aug 2014 02:15 PM

By M.D. Kittle, Watchdog.org

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Want to do something to defend due process?

Head out to Alaska this week for a full week of EPA public hearings on the agency's proposal that could pre-emptively kill a copper and gold mine in the state's bush country before developers even submit a plan. There are seven hearings scheduled through Friday.

If you can't make it to the Last Frontier, you still can add your comments on the Environmental Protection Agency's proposal here.

The public comment period runs until 8 p.m. Alaska time on Sept. 19.

Or you can log on to the website of the Pebble Limited Partnership (PLP), developers of the proposed mine that has become the focus of environmentalist angst.

The first hearing Tuesday afternoon in Anchorage was a "packed house," according to PLP spokesman Mike Heatwole.

"Our message is about standing up for fair and due process," he said in an email Tuesday night.

Much is at stake.

Last month, EPA unveiled a proposed list of crippling restrictions that could severely limit development of the proposed Pebble Mine project in the Bristol Bay Watershed, an operation that developers say would create 1,000 direct jobs and thousands more indirectly, and as much as $180 million in revenue for the state.

The federal agency is invoking a section of the Clean Water Act, a section that could allow the EPA to stop the mine proposal before the developers are able to present their plan to state and federal regulatory agencies.

"EPA has never pre-emptively stopped a project in the 42-year history of the Clean Water Act," Heatwole told KTUU TV in Anchorage on Tuesday. "And the precedent that would be established outside of the permitting process is of grave concern, not just to Pebble, but all of the statewide trade and business associations, and many national organizations."

Dennis McLerran, regional administrator for the EPA's Region 10, last month said the dangers of even a smaller mine in the Bristol Bay region's "fragile ecosystem" would be devastating.

He told reporters the EPA is trying to protect the world's largest salmon fishery, where half of the world's sockeye salmon population is said to live, from what would be "one of the world's largest open-pit mine developments ever conceived of."

McLerran stood by that position at Tuesday's hearing.

"What we have here is an extraordinarily large mine in an extraordinarily important fishery location," he told the Anchorage TV station. "So this is an extraordinary use of authority that we use very infrequently, very sparingly, but we use it when it's really important."

But to do so before the company has a chance to make its case to the public is more than unprecedented. It's unconscionable, argue the developers and a chorus of EPA critics.

Pebble filed a lawsuit in May against the agency. In its complaint, the company asserts the EPA doesn't possess the authority to block or limit the mine.

"Here, nothing in Section 404 of the [Clean Water] Act or elsewhere in the statute suggests that Congress intended for EPA to arrogate to itself an authority that essentially bans an activity — mining — before it is even proposed by an applicant," the lawsuit states.

Alaska Attorney General Michael Geraghty, in a statement following the state's request to intervene in the Pebble Mine lawsuit, said the most troubling aspect of the EPA's drive to curtail or limit a project before the developers have submitted permit applications is the precedent it sets. In short, Geraghty said, the agency could take land anywhere in the United States and prematurely limit development of a valuable resource.

"The EPA's action undermines Alaska's ability to utilize its mineral resources to grow the economy and create jobs if, after detailed and lengthy environmental review, permitting is warranted," Geraghty said in June, before the EPA's latest proposal.

Public comments are supposed to help drive the EPA's ultimate decision on its use of the Clean Water Act provisions. But in an environment of the Obama administration's climate change agenda, including what critics see as a "war on coal" and in many cases on development in general, opponents of this EPA proposal fear the writing may already be on the wall.

If the mine is as dangerous as environmentalists believe it is, then what do they have to lose in letting the process play out? Why not let a development plan submitted to the public, like every other development proposal, stand or fall based on the facts?

EPA officials have said they already have the science to show what a theoretical mine could do to the region. But that science has been blasted as faulty by several experts in peer review.

"This is a lot bigger than Pebble," PLP says on its website.

"If the [EPA] is successful in denying Pebble the right to even submit a permit application to undergo state and federal review, it sets a precedent and takes control for zoning away from Alaska. This would give the EPA control over the Alaska economy," the developer asserts in asking viewers to "take 30 seconds to send a message to the EPA asking them to stand down and reconsider their [pre-emptive] action."


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