Developers of a proposed copper and gold mine in southwestern Alaska have flooded U.S. EPA’s Office of Inspector General with letters accusing the agency of working with environmentalists to stop the project.
EPA last year proposed strict limits on the Pebble mine after years of studying the project’s potential impact on Bristol Bay’s rich salmon fishery and ecosystem (Greenwire, July 18).
Pebble executives accuse EPA of colluding with environmentalists with an eye toward short-circuiting the Clean Water Act permit process, moving to sink the project before its developers submit a plan.
The inspector general is investigating the claim, and the company is doing what it can to make a case.
Pebble attorneys have sent the IG more than a dozen letters on the matter in CEO Tom Collier’s strategy of using both the courts and the agency’s in-house watchdog.
The Pebble letters expand on previously disclosed material or include new information from Freedom of Information Act requests.
A Jan. 27 letter accuses former EPA staffer Phil North of using a personal email address to communicate with attorney Geoffrey Parker, who has worked with mine opponents. At issue was a 2010 petition by Native American tribes asking the agency to block Pebble.
"Pebble has recently learned that on January 8, 2010, Parker emailed North at his personal email address, saying, ‘I would appreciate your suggestions, revisions or edits,’" the letter says.
North told Greenwire in a 2013 interview that he supported EPA using its power under Section 404(c) of the Clean Water Act to block Army Corps of Engineers dredge-and-fill permits for the mine (Greenwire, Aug. 15, 2013).
The House Oversight and Government Reform Committee has been trying to interview North since his retirement. It wants to know whether he persuaded outside groups to oppose the project. Pebble backers say he is abroad (E&E Daily, July 11, 2014).
"EPA’s FOIA production does not contain North’s response to Parker. Nevertheless, it appears that North’s contributions to the petition were likely more than mere proofreading," wrote Pebble attorney Thomas Barba with the firm Steptoe & Johnson LLP.
"Personal email use is part of a disturbing and irresponsible pattern for EPA," Barba wrote. "Despite several FOIA requests, the Agency has yet to produce all of North’s personal emails he used for work, producing only a few that were later forwarded to his EPA address."
EPA responded to Pebble’s charges with a statement: "Mr. North had no decision-making authority regarding whether EPA would proceed with the Clean Water Act Section 404(c) process. EPA Region 10 Regional Administrator Dennis McLerran made the decision to initiate the 404(c) process."
EPA has defended the watershed assessment as responding to the 2010 petition from Alaska Natives. And while the agency has expressed interest in pre-emptively limiting the project, it has not made a final decision.
Sparring over transparency
But Pebble’s letters to the OIG try to paint a different picture by pointing to documents showing internal discussions about a mine veto well before the 2010 petition.
And even after 2010, other documents suggest EPA was considering action against Pebble before conducting a watershed assessment.
"Viewed in context," Barba wrote in a March 20 letter, "none of those documents suggest that EPA was considering allowing development of the Pebble Project."
But EPA maintains that its decision to conduct the watershed assessment and take significant public comment shows its willingness to weigh all options.
"EPA staff spent three years evaluating science, conducting hearings and reviewing one million public comments in developing the Bristol Bay Watershed Assessment," said the agency statement.
"That process included two independent peer reviews and a robust public outreach process in which Pebble Partnership readily participated," it said. "No process could have been more transparent and inclusive of all views, including for proponents of the Pebble Mine."
Pebble counters EPA paid more attention to scientists opposing mine development.
"While EPA was wholly ignoring information received from Pebble proponents," Barba wrote, "it was freely accepting information and meetings from anti-mine groups outside of the public comment period."
EPA has denied the charge and points out that Pebble has yet to submit a permit application. "People who rely on those jobs and resources have been living under a cloud of uncertainty for years as the Pebble Partnership has pledged repeatedly, yet failed, to apply for a Clean Water Act permit to develop the mine," the agency said.
Beyond accusing EPA of wrongdoing, Pebble’s communications to the OIG take aim at two former EPA officials — former Region 9 Administrator Wayne Nastri, who has been working against Pebble development, and former water office chief Nancy Stoner.
The company accuses Nastri of using his contacts to help mine opponents. And it accuses Stoner, who worked for the Natural Resources Defense Council before joining the Obama administration, of helping contacts in the environmental community.
"Although all the facts have yet to be developed, and we cannot be certain that they breached any statutes, regulations, or executive orders," Barba wrote, "it appears that both employees unfairly used their government employment to benefit outside interests."
Reached by phone at her new job with the Pisces Foundation, Stoner said she had not seen the accusations and had no comment. Nastri also had no comment.
But foes of the Pebble mine point out that Nastri worked under a Republican administration and is now backing action by a Democratic one.
They also note that Pebble CEO Collier once worked for the Clinton administration, was an attorney at Steptoe and is now using that background to support Pebble. Another Pebble executive, Peter Robinson, was also once a top EPA official.
Litigation
Pebble has launched three lawsuits against EPA.
One involves the claims of collusion with environmental groups. In that case, U.S. District Judge Russel Holland in Anchorage was skeptical of some of the company’s claims but interested enough in others to issue an injunction against agency efforts to limit the project (Greenwire, Dec. 9, 2014).
Earlier this month, Holland asked Pebble and EPA whether it was prudent to delay the litigation pending the OIG’s review. Both sides were against it, and Holland kept oral arguments on the agency’s motion to dismiss for next week.
Still, Holland approved a Pebble request for expedited discovery in the case to subpoena the Alaska Communications Service for emails between North and Parker.
Another Pebble lawsuit accuses the agency of failing to wait until the permitting process to act against the mine. Holland threw out the case because EPA has yet to make a final decision.
In oral arguments this month, Pebble tried to convince the U.S. Court of Appeals for the 9th Circuit that EPA had already violated the law, with or without a final decision. A ruling is pending.
The third lawsuit involves Freedom of Information Act requests. In a recent filing, the agency said it had properly processed the company’s demands for documents.
