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BRISTOL BAY: House GOP sees conspiracy in EPA actions on proposed mine
Dylan Brown, E&E reporter
Published: Friday, April 29, 2016
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U.S. EPA staff either set out to block the controversial Pebble mine by colluding with anti-mining activists -- or proposed scientifically appropriate restrictions protecting southwestern Alaska from the proposal for North America's largest open-pit mine.

Republicans and Democrats drew starkly different conclusions yesterday about EPA's proposed pre-emptive limits on mining in Bristol Bay during the House Science, Space and Technology Committee's second hearing on the issue in the last six months.

Several Republican lawmakers hammered lone witness Dennis McLerran, EPA's Region 10 administrator, with accusations that his agency subverted the National Environmental Policy Act.

"Science and due process should lead the way, not predetermined outcomes by activist EPA employees," said Committee Chairman Lamar Smith (R-Texas).

McLerran rejected the assertion, defending his agency's Bristol Bay Watershed Assessment. The ecological risk survey was spurred by a petition from Alaska Native groups that formed the basis for the restrictions on Army Corps of Engineers dredge-and-fill permits.

Ranking member Eddie Bernice Johnson (D-Texas) said it was the committee that "predetermined" it would find a nonexistent EPA conspiracy.

"The proposed Pebble mine in Bristol Bay is simply the wrong mine in the wrong place," she said, quoting the late Alaska Sen. Ted Stevens (R).

Both sides of the aisle fundamentally disagreed over whether EPA even has the power to pre-emptively limit mining.

In 2014, EPA proposed using Section 404(c) for only the 14th time since the Clean Water Act was passed, based on the threat large-scale mining posed to Bristol Bay's world-class salmon fishery and the Alaska Native subsistence culture linked to it.

Smith called EPA's proposed action "unprecedented under this administration" and a "misapplication of the law." Republicans regularly propose eliminating Section 404(c), arguing that EPA has misinterpreted Congress' intent (E&E Daily, Dec. 10, 2015).

Tom Collier, CEO of Pebble LP, the mining company behind developing the world-class copper and gold deposit, made a similar argument at a House hearing in November (E&E Daily, Nov. 6, 2015). Pebble LP has filed numerous lawsuits against EPA, demanding "due process."

Democrats say the agency clearly has the authority to protect vulnerable ecosystems like Bristol Bay. Rep. Mark Takano (D-Calif.) noted that the Reagan administration used the power twice.

McLerran said: "We believe the authority is clear from Congress. We use it sparingly, as I said previously, for circumstances where we believe that it's justified."

The EPA official also said Pebble LP met with EPA frequently and that the company submitted more than 1,750 pages during the comment period on the two drafts of the watershed assessment that were peer-reviewed twice.

"The watershed assessment was a very open and transparent process that had amazing amounts of due process associated with it," McLerran said.

North a star

Much of the hearing revolved around testimony that former EPA ecologist Phil North gave the committee during a long-awaited deposition earlier this month.

North retired in 2013 before EPA announced the restrictions but was an active member of the Bristol Bay Watershed Assessment team.

Pebble LP and several House committees tried for years to depose North, who left the country in 2014 to travel the world with his family. Pebble LP subpoenaed North in Australia in recent months.

GOP lawmakers showed McLerran slides of North's testimony, including an admission that concluded EPA should use Section 404(c) early on in the process.

"I had come to the conclusion that this was an authority that we had and we should do so," North said.

The ecologist also acknowledged he helped activists with their petition challenging the mine.

"I think it's my duty as a federal employee, when someone comes to me and they want help petitioning the government, it's my duty to give them feedback and help them on that," North said.

Smith responded: "The EPA inspector general and the EPA office of ethics apparently do not agree. Both determined that Mr. North's actions constitute a possible misuse of his federal government position."

In January, an EPA inspector general report did identify "a possible misuse of position" by an EPA official, but did not name North.

But McLerran repeatedly pointed to the report's overall conclusion that "no evidence of bias" could be found in the watershed assessment process (Greenwire, Jan. 13).

Republicans said "no evidence of bias" and "a possible misuse of position" were contradictory, demanding McLerran open up an investigation into impropriety by staff.

McLerran concurred that North possibly abused his position, but he circled back again to the "comprehensive" EPA IG report. He also pointed out North was just one of dozens of people who helped conduct the science that guided him as Region 10's ultimate decisionmaker.

Smith panned the report as "flawed" for focusing on upper management. Republicans raised their eyebrows at EPA's inability to track down many of North's emails, including from a personal account.

"We know enough to conclude that EPA employees violated ethical standards by giving outside groups unprecedented access to internal EPA deliberations, allowing for close collaboration on agency actions and strategy," Smith said.

In an interview with E&E Daily, North said he lost work emails when his computer crashed in 2010 and his personal email was deleted when he moved as it was connected to his phone plan. He also said using personal email was a fact of life for staff in Alaska, as the remote locations made accessing EPA servers difficult.

McLerran, however, did not defend the use of personal email, citing EPA's policy against it.

Rep. Don Beyer (D-Va.) said the possible abuse by "one employee in a single-person office somehow damns the entire organization."

"Isn't it the requirement in a democracy that our governing officials meet freely with both sides, with those for and against, to try and come to a proper determination?" Beyer said.

Rep. Suzanne Bonamici (D-Ore.) pointed out that "environmental liaison" was part of North's job description and that his edits to the petition that Republicans say constituted collusion were 16 added words, three deletions and corrected spelling.

"I'm certainly not here to defend Mr. North's actions, but it's important we have clarity," she said.

Politics

The GOP also highlighted other correspondence, including an internal Trout Unlimited email recapping an EPA meeting with tribal leaders. The notes indicate that another EPA official, Richard Parkin, "stressed that while a 404(c) determination would be based on science -- politics are as big or bigger factor."

North also referenced finishing the assessment before the 2012 presidential election in his deposition. He said that he and another EPA employee "probably discussed that that would be a good idea, but I would also have to say that ... EPA was not trying to finish it before that time frame."

McLerran had not seen the North testimony before the hearing. Republicans said that with impartiality of EPA employees in question, he must investigate to determine all the facts.

McLerran, once again, refused to investigate citing previous answers.

Rep. Brian Babin (R-Texas) called McLerran "exactly the type of federal employee or bureaucrat that Americans are really getting tired of."

But Beyer said he was hard-pressed to see the statements acknowledging the existence of politics somehow undermining EPA's judgment.

"I can't ride an elevator or walk down a hall around here without talking about the presidential election," he said.

Beyer also noted that Pebble LP has repeatedly failed to deliver on a promise to submit a permit application, which it can still do despite EPA restrictions, but not as originally proposed.

He held up a letter from Sen. Lisa Murkowski (R-Alaska), chairwoman of the Senate Energy and Natural Resources Committee, expressing local frustration about the uncertainty of the mine.

"This is essentially a sword of Damocles, one way or another, hanging over their heads for a generation," he said.

Several Alaska Native fishermen who made the trip to Capitol Hill for the hearing concurred (E&E Daily, April 27).

Alex Tallekpalek, a member of United Tribes of Bristol Bay, argued that not only is fishing more valuable in the long run for local people, but the scars of mining are often permanent.

"There's no restart," he said.