[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
EPA'S BRISTOL BAY WATERSHED ASSESSMENT:
A FACTUAL REVIEW OF A
HYPOTHETICAL SCENARIO
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
----------
AUGUST 1, 2013
----------
Serial No. 113-46
----------
Printed for the use of the Committee on Science, Space, and Technology
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
EPA'S BRISTOL BAY WATERSHED ASSESSMENT:
A FACTUAL REVIEW OF A
HYPOTHETICAL SCENARIO
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
AUGUST 1, 2013
__________
Serial No. 113-46
__________
Printed for the use of the Committee on Science, Space, and Technology
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://science.house.gov
_______
U.S. GOVERNMENT PRINTING OFFICE
82-225 PDF WASHINGTON : 2013
______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
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Washington, DC 20402-0001
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HON. LAMAR S. SMITH, Texas, Chair
DANA ROHRABACHER, California EDDIE BERNICE JOHNSON, Texas
RALPH M. HALL, Texas ZOE LOFGREN, California
F. JAMES SENSENBRENNER, JR., DANIEL LIPINSKI, Illinois
Wisconsin DONNA F. EDWARDS, Maryland
FRANK D. LUCAS, Oklahoma FREDERICA S. WILSON, Florida
RANDY NEUGEBAUER, Texas SUZANNE BONAMICI, Oregon
MICHAEL T. McCAUL, Texas ERIC SWALWELL, California
PAUL C. BROUN, Georgia DAN MAFFEI, New York
STEVEN M. PALAZZO, Mississippi ALAN GRAYSON, Florida
MO BROOKS, Alabama JOSEPH KENNEDY III, Massachusetts
RANDY HULTGREN, Illinois SCOTT PETERS, California
LARRY BUCSHON, Indiana DEREK KILMER, Washington
STEVE STOCKMAN, Texas AMI BERA, California
BILL POSEY, Florida ELIZABETH ESTY, Connecticut
CYNTHIA LUMMIS, Wyoming MARC VEASEY, Texas
DAVID SCHWEIKERT, Arizona JULIA BROWNLEY, California
THOMAS MASSIE, Kentucky MARK TAKANO, California
KEVIN CRAMER, North Dakota ROBIN KELLY, Illinois
JIM BRIDENSTINE, Oklahoma
RANDY WEBER, Texas
CHRIS STEWART, Utah
VACANCY
------
Subcommittee on Oversight
HON. PAUL C. BROUN, Georgia, Chair
F. JAMES SENSENBRENNER, JR., DAN MAFFEI, New York
Wisconsin ERIC SWALWELL, California
BILL POSEY, Florida SCOTT PETERS, California
DAVID SCHWEIKERT, Arizona EDDIE BERNICE JOHNSON, Texas
KEVIN CRAMER, North Dakota
LAMAR S. SMITH, Texas
C O N T E N T S
August 1, 2013
Page
Witness List..................................................... 2
Hearing Charter.................................................. 3
Opening Statements
Statement by Representative Paul C. Broun, Chairman, Subcommittee
on Oversight, Committee on Science, Space, and Technology, U.S.
House of Representatives....................................... 7
Written Statement............................................ 8
Statement by Representative Dan Maffei, Ranking Minority Member,
Subcommittee on Oversight, Committee on Science, Space, and
Technology, U.S. House of Representatives...................... 9
Written Statement............................................ 11
Witnesses:
Mr. Lowell Rothschild, Senior Counsel, Bracewell & Giuliani LLP
Oral Statement............................................... 13
Written Statement............................................ 14
Dr. Michael Kavanaugh, Senior Principal, Geosyntec Consultants,
and Member, National Academy of Engineering
Oral Statement............................................... 23
Written Statement............................................ 25
Mr. Wayne Nastri, Co-president, E4 Strategic Solutions; Former
Regional Administrator, USEPA Region 9
Oral Statement............................................... 44
Written Statement............................................ 46
Mr. Daniel McGroarty, President, American Resources Policy
Network
Oral Statement............................................... 112
Written Statement............................................ 114
Discussion....................................................... 121
Appendix I: Answers to Post-Hearing Questions
Mr. Lowell Rothschild, Senior Counsel, Bracewell & Giuliani LLP.. 140
Dr. Michael Kavanaugh, Senior Principal, Geosyntec Consultants,
and Member, National Academy of Engineering.................... 150
Mr. Wayne Nastri, Co-president, E4 Strategic Solutions; Former
Regional Administrator, USEPA Region 9......................... 187
Mr. Daniel McGroarty, President, American Resources Policy
Network........................................................ 204
Appendix II: Additional Material for the Record
Letter submitted by Tom Crafford, Director, Office of Project
Management & Permitting, Department of Natural Resources, State
of Alaska...................................................... 208
Letter submitted by Amanda E. Aspatore, Associate General
Counsel, National Mining Association........................... 218
Letter submitted by William L. Kovacs, Senior Vice President,
Environment, Technology & Regulatory Affairs, Chamber of
Commerce of the United States of America....................... 219
Letter submitted by R. Bruce Josten, Executive Vice President,
Government Affairs, Chamber of Commerce of the United States of
America........................................................ 222
Letter submitted by the American Fly Fishing Trade Association;
American Rivers; American Sportfishing Association; Bass
Anglers Sportsmen Society; Berkeley Institute; Campfire Club of
America; Dallas Safari Club; Delta Waterfowl; Ducks Unlimited;
Orion, The Hunter's Institute; Pope & Young Club; Quality Deer
Management Association; Theodore Roosevelt Conservation
Partnership; Trout Unlimited; Wild Sheep Foundation; Wildlife
Forever; and Wildlife Management Institute..................... 224
Letter submitted by Sport Fishing and Hunting Interests on
Bristol Bay Alaska............................................. 226
Comments submitted by the United Tribes of Bristol Bay........... 283
Comments submitted by the Bristol Bay Native Corporation......... 295
Letter submitted by Myron Ebell, Director, Center for Energy and
Environment, Competitive Enterprise Institute.................. 305
Comments submitted by Myron Ebell, Director, Center for Energy
and Environment, Competitive Enterprise Institute.............. 307
Joint letter submitted by six federally-recognized Tribes in the
Kvichak and Nushagak River Drainages of Southwest Alaska....... 309
Letter submitted by Geoffrey Y. Parker, Counsel for several
federally-recognized Tribes.................................... 329
Letter submitted by David Harsila, President, Alaska Independent
Fishermen's Marketing Association.............................. 337
EPA letter submitted by Sport Fishing and Hunting Interests on
Bristol bay Alaska (Nov. 2010)................................. 338
Letter submitted by Tiffany&Co................................... 362
Comments submitted by Amanda E. Aspatore, Assistant General
Counsel, National Mining Association........................... 365
Comments submitted on behalf of the Natural Resources Defense
Council........................................................ 370
Letter submitted by William Riley, formally worked for the U.S.
Environmental Protection Agency's Region 10 Office in Seattle,
Washington..................................................... 389
Article submitted for the record................................. 399
Letter submitted by Chris Wood, President and CEO, Trout
Unlimited...................................................... 401
Letter submitted by Thomas G. Yocom, formally served as National
Wetlands Expert for the U.S. Environmental Protection Agency... 404
EPA'S BRISTOL BAY WATERSHED ASSESSMENT:
A FACTUAL REVIEW OF A HYPOTHETICAL SCENARIO
----------
THURSDAY, AUGUST 1, 2013
House of Representatives,
Subcommittee on Oversight
Committee on Science, Space, and Technology,
Washington, D.C.
The Subcommittee met, pursuant to call, at 1:04 p.m., in
Room 2318 of the Rayburn House Office Building, Hon. Paul Broun
[Chairman of the Subcommittee] presiding.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Broun. The Subcommittee on Oversight will come to
order.
Good afternoon, everyone. In front of you are the packets
containing the written testimony, biographies, and Truth in
Testimony disclosures for today's witnesses. I now recognize
myself for five minutes for an opening statement.
The title of today's hearing is, ``EPA's Bristol Bay
Watershed Assessment: A Factual Review of a Hypothetical
Scenario.''
I would like to extend a particularly warm welcome to our
witnesses and thank you all for joining us here today, and
really appreciate your coming and testifying before the
Committee.
Last year, the U.S. Environmental Protection Agency
released a draft watershed assessment of the Bristol Bay area
in Alaska at the request of several Alaskan tribes and
organizations concerned about the potential of mining activity
in the region. This assessment, which by some estimates has
cost taxpayers a minimum of $2.4 million, has undergone a peer
review process and was re-released earlier this year as a
second draft. However, EPA has not finalized the assessment,
nor has it specified the ultimate purpose of the document. One
concern--not denied by EPA--is that the assessment may be the
basis of a preemptive veto where the agency would prohibit a
mining company from even applying for mine permits. It is
important to note that as of this point, no mining permits have
been filed in Bristol Bay. That means that EPA's watershed
assessment is based on hypothetical mining scenarios, and
according to one mining supporter, ``it is a fantasy for the
government to say here is a mine plan.''
Further, one of our witnesses today, Dr. Kavanaugh, a
member of the National Academy of Engineering, states that
EPA's assessment, ``exaggerates the probability of failures,
relies on worst-case scenarios to support a qualitative
judgment on the potential impacts of these failures, does not
adequately consider modern engineering, construction,
operations and maintenance practices, and thus provides an
unrealistic and unscientific assessment of the potential
impacts of the hypothetical mining project.''
I find that analysis troubling. A prospective decision of
such magnitude by the EPA should be based on the best possible
science, a point underscored in EPA's own Peer Review Handbook
which states, and I quote, ``Science is the foundation that
supports all of our work here at EPA. Strong, independent
science is of paramount importance to our environmental
policies. The quality of science that underlies our regulations
is vital to the credibility of EPA's decisions.''
A preemptive veto by EPA would set a dangerous precedent,
and could have a chilling effect on similar projects throughout
the nation. Investors would be wary of funding projects if they
believed that a Federal agency could just say no at any time to
a company permit prior to even applications being made.
Let me emphasize that I am not an advocate for or against
the development of the Pebble mine, in spite of what some
people have claimed and charged. I understand the argument of
mine proponents--that they be granted due process and allowed
to make their case through existing law, which includes the
Clean Water Act, the National Environmental Policy Act, as well
as the Environmental Impact Statement process, which would
address the specific issues that are unique to this part of
Alaska and exclusive to this mine proposal.
You all may also know that I am a long-term lifetime member
of Trout Unlimited. I am an avid hunter and a fisherman, and I
have been to Alaska many times. You can come to my office and
you will see some critters that I was able to gather there. I,
too, understand the concerns of the anti-mine people regarding
the value of this inimitable and pristine environment.
Let me assure these folks: I care more about protecting
that environment than any nonprofit organizations pushing a
social agenda.
To me, the question at hand comes down to one of due
process. This country was founded under the notion that
citizens must be protected from tyrannical overreach, and I
believe it is unconscionable for the Administration, any
Administration, to deny U.S. citizens their day in court. In a
similar vein, I would consider a preemptive denial by the EPA
equivalent to denying the mining companies their day in court,
having judged them guilty instead of presumed innocent.
Even The Washington Post, hardly regarded as a pro-mining
mouthpiece, concluded in a recent editorial regarding the
mining companies, ``All they want, they say, is a fair and
thorough evaluation of their claims. That is reasonable.''
That is reasonable to me too, and I look forward to hearing
all sides of our witnesses' testimonies today.
[The prepared statement of Mr. Broun follows:]
Prepared Statement of Representative Paul C. Broun, Chairman,
Subcommittee on Oversight
Today's hearing is titled, ``EPA's Bristol Bay Watershed
Assessment--A Factual Review of a Hypothetical Scenario.''
Last year, the U.S. Environmental Protection Agency released a
draft watershed assessment of the Bristol Bay area in Alaska at the
request of several Alaskan tribes and organizations concerned about the
potential of mining activity in the region.
This assessment, which by some estimates has cost taxpayers a
minimum of $2.4 million, has undergone a peer review process and was
re-released earlier this year as a second draft. However, EPA has not
finalized the assessment, nor has it specified the ultimate purpose of
the document. One concern--not denied by EPA-- is that the assessment
may be the basis of a preemptive veto where the agency would prohibit a
mining company from even applying for mine permits. It is important to
note that as of this point, no mining permits have been filed in
Bristol Bay. That means that EPA's watershed assessment is based on
hypothetical mining scenarios, and according to one mining supporter,
``it's a fantasy for the government to say here's a mine plan.''
Further, one of our witnesses today, Dr. Kavanaugh, a member of the
National Academy of Engineering, states that EPA's assessment
``exaggerates the probability of failures, relies on worst case
scenarios to support a qualitative judgment on the potential impacts of
these failures, does not adequately consider modern engineering,
construction, operations, and maintenance practices, and thus provides
an unrealistic and unscientific assessment of the potential impacts of
the hypothetical mining project.''
I find that analysis troubling. A prospective decision of such
magnitude by the EPA should be based on the best possible science--a
point underscored in EPA's own Peer Review Handbook which states,
``Science is the foundation that supports all of our work here at EPA.
Strong, independent science is of paramount importance to our
environmental policies. The quality of science that underlies our
regulations is vital to the credibility of EPA's decisions.''
A preemptive veto by EPA would set a dangerous precedent, and could
have a chilling effect on similar projects throughout the nation.
Investors would be wary of funding projects if they believed that a
federal agency could just say no at any time to a company prior to
permit applications.
Let me emphasize that I am not an advocate for or against the
development of Pebble mine. I understand the argument of mine
proponents--that they be granted due process and allowed to make their
case through existing law, which includes the Clean Water Act, the
National Environmental Policy Act, as well as the Environmental Impact
Statement process, which would address the specific issues that are
unique to this part of Alaska and exclusive to this mine proposal.
You all may also know that I am a long-term lifetime member of
Trout Unlimited. I am an avid hunter and fisherman, and I have been to
Alaska many times. I, too, understand the concerns of the anti-mine
people regarding the value of this inimitable and pristine environment.
Let me assure those folks--I care more about protecting that
environment than many non-profit organizations pushing a social agenda.
To me, the question at hand comes down to one of due process. This
country was founded under the notion that citizens must be protected
from tyrannical overreach, and I believe it is unconscionable for the
Administration, any Administration, to deny a U.S. citizens their day
in court. In a similar vein, I would consider a preemptive denial by
the EPA equivalent to denying the mining companies their day in court,
having judged them guilty instead of presumed innocent. Even The
Washington Post, hardly regarded as a pro-mining mouthpiece, concluded
in a recent editorial that regarding the mining companies, ``All they
want, they say, is a fair and thorough evaluation of their claims. That
is reasonable.''
That is reasonable to me too, and I look forward to hearing all
sides of our witnesses' testimonies today.
Chairman Broun. And before I turn to the gentleman, my
friend, Dan Maffei from New York, I will ask unanimous consent
to enter for the record letters from various groups interested
in our hearing, which have been shared with members of the
minority. Hearing no objection, so ordered.
[The information appears in Appendix II]
Chairman Broun. I now recognize the Ranking Member, my
friend, the gentleman from New York, Mr. Dan Maffei, for an
opening statement.
Mr. Maffei. I want to thank the Chairman.
My district in upstate New York has actually a unique
connection to Alaska. It was the home to William H. Seward, who
resided in Auburn, New York. Seward served as a Republican
Governor, U.S. Senator and Secretary of State under Presidents
Lincoln and Johnson, but Seward was most notably responsible
for the purchase of Alaska from Russia in 1867. I won't tell
you for how much. It was a bargain. At the time, the Alaska
purchase was unpopular. It was actually known as Seward's
Folly. Later in life, Seward was asked to name his greatest
achievement, and he said, ``The purchase of Alaska, but it will
take the people a generation to find out.''
It is hard for me to look at the proposal to place a mine
in the watershed feeding area of Bristol Bay and not consider
what future generations might think of us. On the one hand is
the prospect of great wealth from exploiting natural resources
resulting from mining efforts. That will last a few decades,
perhaps a generation, and then the mining company will be gone,
potentially leaving behind a huge hole in the Earth and
billions of tons of acid mine waste. Even if the company can do
what so far no mining company has ever done in a wet
environment and a dig a massive open pit mine that results in
no leaks, no accidents, and no pollution, who can guarantee
that the massive amount of waste left behind in the tailings
dam will not leach out or that the dam itself will not fail?
In 2010, a tailings dam holding mining waste collapsed due
to heavy rain releasing toxic sludge, flooding nearby towns,
killing 10 and injuring 120. In 1998 in France, a tailings dam
collapsed, releasing sulfur, zinc, copper, iron and lead into
nearby farmland. A study of the incident estimated that about
5,000 jobs were lost in the dam's failure and aftermath. These
are just a few examples of the potential failures that could
occur in Bristol Bay.
On the other hand, we have the returning wealth of salmon.
They feed the earth in one of the most pristine locations in
the world. They feed the people of the region, the last truly
sustainable salmon-based culture left in the United States.
Through the efforts of commercial fishermen, we too all get a
chance to share in that bounty. The salmon of Bristol Bay who
spawn in the rivers there are a sustained resource that, if we
do not destroy them, will be there for as long as we can see
into the future. And although the area does compete with my
beloved upstate New York for fishermen, it is a wonderful place
to go fish.
Bristol Bay's clean water economy supports one of Alaska's
most natural and bountiful resources--the salmon--and will
yield economic returns and generate revenue for far beyond the
short-term economic impact of mining, and that will support
jobs today, tomorrow and in future generations, whereas mining
and potentially its harmful environmental impacts will
eliminate those future jobs supported by the fishing industry.
If you hold these two prospects in the balance and weigh them
in a scale for what is best for future generations, the
question is very simple and the answer very clear: do we act
for ourselves and then regret it after a generation, or do we
embrace the sustained wealth of nature that returns every year
for our use as long as people live on the Earth?
Now, I do want to respect the Chairman's process points,
and they are well taken, and I do not dispute his positive
motives in this matter, but I do want to make just a few other
points. I want to remind the members that EPA has begun their
risk assessment in response to local pressure for the EPA to
intervene. EPA was asked to take up the 404(c) process, which
under the Clean Water Act gives EPA the power to protect water
quality by establishing standards that can virtually veto
development. EPA might be chided for taking on a science-based
watershed assessment rather than moving immediately to 404(c),
but I think the agency was trying to show everyone involved
that they were willing to listen and study the issue thoroughly
before acting.
The draft assessment is solid science that demonstrates
hardrock mining cannot coexist side by side with salmon without
harm to the salmon, to the fishing and sportsmen economy, and
to the native communities. Claims that some magical technology
can make all this work out have been made many times and rarely
does technology work the way it is promised. Mining is an
inherently destructive and dirty business, and technology
cannot make it clean and harmless. I certainly agree we need
mining, and I am not an opponent of mining, but I think that we
have to be honest with ourselves about where such projects can
work and where they simply don't make sense.
Finally, I believe the EPA should complete their assessment
and then promptly move to take up a 404(c), that gives everyone
certainty that Bristol Bay and the surrounding rivers and lakes
will remain pristine. If the EPA's 404(c) amounts to a
preemptive veto of mining, then at least it will free up the
mining companies and capital to turn to more promising
locations for ore.
A contemporary of Seward described him as ``one of those
spirits who sometimes go ahead of public opinion instead of
tamely following its footprints. I hope members of this
Committee will be mindful of these words and of the example of
William Seward as we explore the issues surrounding the
development of the Pebble mine, and I yield back the remaining
three seconds of my time.
[The prepared statement of Mr. Maffei follows:]
Prepared Statement of Representative Dan Maffei, Ranking Minority
Member, Subcommittee on Oversight
Thank you, Mr. Chairman.
My district in Upstate New York has a unique connection to Alaska.
It was home to William H. Seward, who resided in Auburn, New York.
Seward served as a Republican Governor, U.S. Senator, and Secretary of
State under President's Lincoln and Johnson. Seward most notably was
responsible for the purchase of Alaska from Russia in 1867.
At the time, the Alaska purchase was unpopular and known as
``Seward's Folly.'' Later in life Seward was asked to name his greatest
achievement, and he said, ``The purchase of Alaska, but it will take
the people a generation to find out.''
It is hard to look at the proposal to place a mine in the watershed
feeding Bristol Bay and not think that Seward's words ring true more a
century later.
On the one hand is the prospect of great wealth, great resources
and all the jobs that flow from that pouring out of the mining efforts
in that beautiful place. That will last a few decades, perhaps a
``generation'' as Seward stated. And then the mining company will be
gone, leaving behind a huge hole in the earth and billions of tons of
acid mine waste. Even if the company can do what no mining company has
ever done in a wet environment, and dig a massive open pit mine that
results in no leaks, no accidents, no pollution, who can guarantee that
the massive amount of waste left behind in tailings dams will not leach
out, or that the dam itself will not fail?
In 2010, a tailings dam holding mining waste collapsed due to heavy
rain releasing toxic sludge flooding nearby towns, killing 10 and
injuring 120. In 1998 in France, a tailing dam collapsed releasing
sulfur, zinc, copper, iron, and lead into nearby farmland. A study of
the incident estimated that about 5,000 jobs were lost in the dam
failure's aftermath. These are just a few examples of potential
failures that could occur in Bristol Bay.
A dam here must work for thousands of years--not just one
generation from now but generations and generations and generations
beyond counting. And it must work in a very wet environment that is one
of the most seismically active on earth. It is simply not worth the
risk.
On the other hand we have the returning wealth of the salmon. They
feed the earth in one of the most pristine locations in the world. They
feed the people of the region--the last truly sustainable salmon-based
culture left in the U.S. Through the efforts of the commercial
fishermen we too all get a chance to share in that bounty. The salmon
of Bristol Bay, who spawn in the rivers there, are a sustained resource
that--if we do not destroy them--will be there for as long as we can
see into the future.
Bristol Bay's ``clean water economy'' supports one of Alaska's most
natural and bountiful resources--Salmon--and will yield economic
returns and generate revenue far beyond the short-term economic impact
of mining. This ``clean water economy'' will support jobs today,
tomorrow and for future generations, whereas mining and its harmful
environmental impacts will eliminate all future jobs supported by the
fishing industry.
If you hold those two prospects in the balance, and weigh them in a
scale for what is best for future generations, the question is very
simple and the answer is very clear. Do we gorge ourselves for a
generation or two and then regret it or do we embrace the sustained
wealth of nature that returns every year for our use so long as people
live on this earth?
It is Seward's words that inform my perspective on the issue before
the Committee today. If we allow this dangerous proposal to go forward
today, will the next generation realize our folly?
Just a few other points:
I want to remind the Members that EPA has began their risk
assessment in response to local pressure for the EPA to intervene. EPA
was asked to take up the 404(c) process, which under the Clean Water
Act gives EPA the power to protect water quality by establishing
standards that can virtually veto development. EPA might be chided for
taking on a science-based watershed assessment rather than moving
immediately to the 404(c), but I think the agency was trying to show
everyone involved that they were willing to listen and study the issue
thoroughly before acting.
The draft assessment is solid science that demonstrates hard rock
mining cannot coexist side by side with salmon without harm to the
salmon, to the fishing and sportsman's economy, and to the native
communities. Claims that some magical technology can make this all work
out have been made many times, and rarely does technology work the way
it is promised. Mining is an inherently destructive and dirty business
and technology cannot make it clean and harmless. I certainly agree we
need mining and I am not an opponent of mining, but I think we have to
be honest with ourselves about where such projects can work and where
they simply do not make sense.
Finally, I believe that EPA should complete their assessment and
then promptly move to take up a 404c that gives everyone certainty that
Bristol Bay and the surrounding rivers and lakes will remain pristine.
If the EPA's 404(c) amounts to a preemptive veto of mining, then that
will free up the mining companies and capital to turn to more promising
locations for ore.
A contemporary of Seward described him as ``one of those spirits
who sometimes will go ahead of public opinion instead of tamely
following its footprints.''
I hope the Members of this committee will be mindful of these words
as we explore the issues surrounding development at the Pebble Mine. I
yield back.
Mr. Maffei. Mr. Chairman, I also have a unanimous consent
request. I have----
Chairman Broun. Go ahead. The gentleman is recognized.
Mr. Maffei. I have a request that letters that I have
already shared with the majority be attached to my statement.
These are ones that we have already shared.
Chairman Broun. Without objection, so ordered.
[The information appears in Appendix II]
Chairman Broun. The Chairman notes the presence of my
friend, Suzanne Bonamici, and Ms. Bonamici, do you want to
participate? We need a unanimous consent request that you
participate as if you are a member of the Committee, if you
would like.
Ms. Bonamici. Thank you, Mr. Chairman. I request unanimous
consent that I be permitted to participate in the Subcommittee
hearing. I am a Member of the full Committee but not of this
particular Subcommittee.
Chairman Broun. Hearing no objection, so ordered, and
thanks for joining us.
If there are Members who wish to submit additional opening
statements, your statements will be added to the record at this
point.
Now, at this time I would like to introduce our panel of
witnesses. Our first witness is Mr. Lowell Rothschild, Senior
Counsel at Bracewell and Giulianti. Is that how you pronounce
that?
Mr. Rothschild. Giuliani.
Chairman Broun. Giuliani. Well, whatever. I am a southerner
and I can't pronounce words like that. I don't know Italian.
Our second witness is Dr. Michael Kavanaugh, Senior
Principal at Geosyntec Consultants and a Member of the National
Academy of Engineering. Our third witness is Mr. Wayne Nastri,
Co-president of E4 Strategic Solutions, and former Regional
Administrator of EPA Region 9. Our final witness is Mr. Daniel
McGroarty. Is that correct?
Mr. McGroarty. Yes.
Chairman Broun. Okay, President of the American Resources
Policy Network. We welcome all of you.
As our witnesses should know, spoken testimony is limited
to five minutes each, after which members of the Committee will
have five minutes each to ask you questions. Your written
testimony will be included in the record of the hearing.
It is the practice of this Subcommittee on Oversight to
receive testimony under oath. Do any of you all have an
objection to taking an oath of truthfulness? Let the record
show that all of the witnesses indicated that they do not mind
taking the oath. If you would please stand? Raise your right
hand. Do you solemnly swear or affirm to tell the whole truth
and nothing but the truth, so help you God? You may be seated.
Let the record reflect that all the witnesses participating
have taken the oath.
I now recognize our first witness, Mr. Rothschild, for five
minutes.
TESTIMONY OF MR. LOWELL ROTHSCHILD, SENIOR COUNSEL, BRACEWELL &
GIULIANI LLP
Mr. Rothschild. Chairman Broun, Ranking Member Maffei,
Members of the Committee, thank you very much for inviting me
to testify today. My name is Lowell Rothschild, and I am Senior
Counsel at the law firm of Bracewell and Giuliani. I have
practiced exclusively in the area of environmental law for
almost 20 years with my primary focus on the laws affecting
land development like those related to wetlands, endangered
species and environmental review, like NEPA. I have extensive
experience in the permitting and litigation of major projects
under these laws, and I am also the co-author of the
Environmental Law Institute's Wetland Deskbook.
The Committee has asked me to testify today on the NEPA
Environmental Impact Statement process as it relates to mining
activity and how that process compares to assessments EPA
undertakes under Clean Water Act sections 104(a) and (b) like
the one for Bristol Bay. My view, as I discuss in greater
detail in my written testimony, is twofold. EPA's Bristol Bay
study is both more general and more limited than an EIS would
be. It covers far fewer subjects than would be analyzed in an
EIS and lacks the detail needed to fully understand the impacts
of an eventual project, even for the resource impacts it does
examine. As a result, EPA's assessment is not an adequate
substitute for an EIS, and even for the resources it does
analyze, its impact assessment is less informed and therefore
less useful than the analysis which would occur under a
project-specific EIS.
The reason for these conclusions relates to both the intent
of the study and to its timing in the permitting process. EPA,
as you all have said, has selected three hypothetical mining
scenarios and analyzed the direct impacts which they then would
cause on salmon in the Bristol Bay watershed and its sub-
watersheds. It also analyzes a few of the indirect impacts that
would result from those salmon impacts. This approach is
intentionally more limited than an EIS would be. A typical EIS
for a large mining project analyzes impacts to approximately 20
different resources including strictly natural environmental
ones like air, noise, groundwater and endangered species
impacts as well as human environmental ones like economic,
socioeconomic and environmental justice impacts. In contrast,
the assessment is specifically limited to analyzing a subset of
direct wildlife impacts--those to salmon species--along with
several of the indirect impacts that result from those impacts
to salmon. Thus, the assessment isn't intended to be and it is
not a substitute for an EIS.
The assessment's second limitation relates to its timing in
the process. Since it is being undertaken before an application
has been submitted, it is not able to utilize the important
project-specific information which would be generated for the
application. As a result, even for the impacts it does analyze,
the assessment's analysis isn't as useful as that which would
be undertaken in an eventual EIS. That is because to comply
with the wetland permitting laws, a permit applicant must
submit an application that identifies the practicable measures
it will take to avoid, minimize and mitigate the project's
impacts to wetlands. These measures are very difficult to
identify in the abstract. They often involve small
modifications to a project, even though they can result in
significant decreases in impacts. But these modifications
cannot be identified until you understand the on-the-ground
resources to a high degree of detail. For example, one possible
minimization measure would be moving the footprint of the
project so that the wetlands impacted are lower quality than
those originally planned. To do this requires an assessment of
the quality and the specific location of the wetlands in the
project area. This wetland assessment is something an applicant
will do before it submits its application but only once the
applicant has the specific information can it provide the
avoidance, minimization and mitigation alternatives. And this
is just one example of minimization--moving the project
footprint--and only for one resource--wetlands. Other types of
similar measures can be proposed both for wetlands and for the
dozen or so major resources analyzed in the EIS. These types of
detailed facts have not been developed for the Bristol Bay
assessment, not for wetlands or for other resources. As a
result, detailed avoidance and minimization modifications do
not appear to be a part of the Bristol Bay assessment.
Depending on the nature of such modifications that are included
in the project application, an eventual EIS impact assessment
could be quite different from EPA's current assessments.
I should also note that once the permit application process
begins, EPA will have significant statutory rights under both
NEPA and the wetland permitting laws, which will allow it to
provide extensive input to the process and to affect its
ultimate outcome. Until then, the assessment is too limited to
be an adequate substitute for an EIS and too general to provide
specific information about the impacts of any eventual mining
project, even for the resources it has analyzed.
I look forward to answering any questions you may have.
Thank you very much.
[The prepared statement of Mr. Rothschild follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Broun. Thank you, Mr. Rothschild.
Now, Dr. Kavanaugh, you are recognized for five minutes.
TESTIMONY OF DR. MICHAEL KAVANAUGH,
SENIOR PRINCIPAL, GEOSYNTEC CONSULTANTS,
AND MEMBER, NATIONAL ACADEMY OF ENGINEERING
Dr. Kavanaugh. Mr. Chairman and Members of the Committee,
thank you for the opportunity to speak at this hearing today.
My name is Michael Kavanaugh. I am a Senior Principal with the
firm of Geosyntec Consultants, an independent midsized U.S.
consulting, engineering and geoscience firm.
Geosyntec was retained by Northern Dynasty to conduct an
independent, impartial review of the scientific and engineering
credibility of the 2012-2013 draft EPA Bristol Bay watershed
assessment reports. I am a registered professional engineer in
California and a board-certified environmental engineer with 40
years of consulting engineering practice in several technical
areas relevant to an assessment of the potential environmental
impacts of mining projects. I have a Ph.D. in civil
environmental engineering from U.C. Berkeley, and in 1998 I was
elected into the National Academy of Engineering. I have served
on many independent peer-review panels and I currently serve on
the Report Review Committee of the National Academies that
oversees the peer-review process for all National Academy
reports. I was the principal in charge of Geosyntec's technical
reviews of the assessment reports. Selected Geosyntec experts
under my direction focus primarily on an evaluation of the
scientific and engineering credibility of the failure scenarios
selected by EPA for tailing storage facilities, or TSFs, water
collection and treatment systems, pipelines, roads and culverts
and the appropriateness of environmental impact analyses
conducted by EPA for their failure scenarios for a hypothetical
mine.
Both assessment reports fail to meet widely accepted
quality and peer-review standards that must be satisfied to
produce a credible scientific and engineering assessment. The
reports significantly exaggerate both the probability of
failures of engineering mining components and the environmental
consequences of the failure scenarios. In fact, the 2013
assessment essentially assumes that all engineering components
of the hypothetical mine will ultimately fail and then proceeds
to assess more or less qualitative the impacts of these failure
scenarios. This risk analysis is flawed because it gives equal
weight to all failure scenarios including worst-case scenarios.
EPA has assumed failure scenarios for some of the engineered
components that are of such low probability that to assess the
consequences only provides an alarmist portrait of a
hypothetical mining scenario that could never be permitted in
Alaska. By failing to properly consider modern engineering and
design mitigation methods that would be required for an
acceptable permit application and that would both reduce the
probability of system failures as well as mitigating the
consequences of potential failures, the assessment lacks
credibility as a useful risk analysis.
Several examples of our concerns include the following. The
assessment estimates failure probabilities of TSFs based on
case studies of 135 failed dams from around the world, many of
which are older, poorly designed and unregulated. This database
is irrelevant to a modern TSF. The assessment uses a TSF
failure scenario based on overtopping, a failure mode that can
be easily avoided by proper design of sufficient capacity and
freeboard to manage a probable maximal precipitation event. The
assessment assumes that easily repairable breakdowns in water
and wastewater treatment processing equipment will result in
long-term discharges of untreated wastewater, a situation that
would violate permit requirements and would be easily addressed
with standard mitigation measures.
The assessment contains inaccurate calculations that
significantly overestimate consequences of hypothetical system
failures such as a worst-case pipeline failure scenario that
significantly overstates the potential volume of discharge
released to a creek. Finally, the assessment reflects a general
lack of consideration of engineering and design mitigation
measures for a modern mine all systems would be designed with
appropriate safety factors, meeting permit requirements and
design to minimize the consequences of potential failure
events.
EPA traditionally sets a high bar for the quality of
scientific documents considered to be highly influential
scientific assessments, quote, unquote, as outlined in their
Peer Review Handbook. Unfortunately, they have only partially
followed their own guidance on conducting the peer review
process for the 2013 assessment, failing to provide the degree
of transparency required for such an important document.
Having served myself on several EPA peer-review panels on
EPA's Science Advisory Board for Water and the ORD's Board of
Scientific Counselors, I am fully aware of the high caliber of
scientific efforts that EPA scientists have achieved in the
past. It is thus discouraging to see the many limitations on
their reliability and credibility of the 2013 assessment, and
as a consequence, it is our opinion that the 2013 assessment
fails to meet scientific standards that would permit the
assessment to be used to inform future decisions on mining
projects in the Bristol Bay watershed.
Thank you for your attention, and I welcome any questions.
[The prepared statement of Dr. Kavanaugh follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Broun. Thank you, Dr. Kavanaugh.
And now, Mr. Nastri, you are recognized for five minutes.
TESTIMONY OF MR. WAYNE NASTRI, CO-PRESIDENT, E4 STRATEGIC
SOLUTIONS; FORMER REGIONAL ADMINISTRATOR, USEPA
Mr. Nastri. Thank you, Mr. Chairman, and thank you, Ranking
Member Maffei, for inviting me here to testify before you.
My name is Wayne Nastri, and I am the President of E4
Strategic Solutions, and previously I served as Regional
Administrator for U.S. EPA Region 9 during the entire George W.
Bush Administration.
I am testifying on my own behalf today, but I wish to note
that I currently consult with the Bristol Bay Native
Corporation and formerly consulted with Trout Unlimited on
Clean Water Act issues.
In my written testimony, I reviewed EPA's Bristol Bay
watershed assessment, and I found its conclusions are sound,
and if anything, conservative, and that is further supported by
an independent letter signed by 300 scientists that were
supportive of EPA's process.
I would like to focus on just a few main points this
afternoon. First, it is important to note that EPA was
requested to take action in Bristol Bay by Alaskans who sought
assistance on an issue that threatens their sustainable
economy, their jobs, their culture and their ability to live in
the areas they have for thousands of years, and we are very
fortunate today to have two village elders, Tommy Tilton and
Bobby Andrew, in the audience. All of this is based on the
incredible wild salmon resource of Bristol Bay. Nine federally
recognized tribes, the Bristol Bay Native Corporation, the
commercial and sport fishing industries and others petitioned
EPA to initiate a 404(c) action. These groups, based on
information derived from PLP filings that describe the
location, the quantity and the type of ore, understood quickly
the threat that large-scale hardrock mining poses to Bristol
Bay.
Instead of initiating 404(c) action, EPA sought to better
understand the region's salmon resources and potential threats
by performing an ecological risk assessment. And during its
review, EPA identified what many in the region have known for
years, and that is, economically viable mining of the Pebble
deposit would result in one of the largest mines in the world,
and in fact, be larger than all other mines in Alaska combined,
and you can actually see this in the visual in front of you.
The basis of EPA's mining analysis is based on Northern
Dynasty Minerals', an owner of the Pebble Partnership own
documents and submissions to the investment community and to
the SEC. It is also admitted as part of the record, and I have
a copy of that plan right here today.
These submittals, as described in the wardrop report,
describe mines that could be more than 2,000 feet deep and 2
miles wide, require the construction of tailings reservoirs
that hold as much as 10 billion tons of potentially acid-
generated tailings, and all of this would be at the headwaters
of one of the most valuable commercial and sport fisheries,
provides half of the world's wild red salmon, accounts for
nearly 14,000 jobs and hundreds of millions of dollars of
economic activity according to EPA's conservative estimates.
Northern Dynasty described the mining scenarios detailed in
this report, and I quote, ``as economically viable, technically
feasible and permittable.'' Again, the details I described are
drawn directly from that 575-page report, which is far from the
hypothetical or fantasy claim that we have heard before.
With regards to authority to conduct the assessment, EPA
clearly has it under section 104(a), (b), and importantly, the
support of this assessment is astounding. Nearly 75 percent of
all commenters supported the assessment and 95 percent of
commenters from Bristol Bay support that assessment. In my
experience, and looking forward, EPA needs to finalize its
watershed assessment and address the original request for
404(c) action.
The uniform complaint that I heard as a regional
administrator from project proponents on 404(c) matters was,
why didn't EPA get involved more upfront in the very project
instead of waiting at the very end and delaying what they saw
as much investment and time. So in that light, I believe it is
wholly appropriate for the Federal Government to make clear
upfront what its expectations are of permit applicants,
especially for projects of the magnitude that we are discussing
today. And I believe EPA should, at a minimum, use its Clean
Water Act authority to restrict any 404 discharge to meet the
following performance standards which are well founded in EPA
and Army Corps practice, and they are: no discharge of fill
materials to wild salmon in spawning and rearing habitat, no
discharge of toxic material to waters of the United States, and
no discharge of fill materials that would require treatment in
perpetuity.
EPA has adhered to strict scientific standards in preparing
the watershed assessment and undergone extensive outreach to
ensure that the documents can inform future decisions by
policymakers. The watershed assessment identifies significant
adverse impacts to the fishery and is a key trigger for 404(c)
action. EPA has the opportunity to provide clarity and
certainty to those who live and work in the Bristol Bay region
by initiating such action.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Nastri follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Broun. Thank you, Mr. Nastri.
Now Mr. McGroarty, you are recognized for five minutes.
TESTIMONY OF MR. DANIEL MCGROARTY, PRESIDENT, AMERICAN
RESOURCES POLICY NETWORK
Mr. McGroarty. Dr. Broun, Ranking Member Maffei, members of
the Committee, thank you for the opportunity to testify today.
I am Dan McGroarty, President of the American Resources Policy
Network, an organization dedicated to exploring the importance
of U.S. resource development and the dangers of foreign
resource dependence.
I am formerly Director and Officer of U.S. Rare Earths and
President of Carmot Strategic, an issues management firm. I
also want to share with the Committee that since early 2013,
ARPN has been asked to participate on a volunteer basis in a
series of metal-specific sessions convened by the DoD related
to the mandated National Defense Stockpile Review.
The Pebble deposit, subject of the EPA assessment, is the
largest potential copper mine in the United States. America's
lack of this critical metal has been noted in a DoD report as
causing ``a significant weapon system delay.'' Pebble also has
potential for the recovery of other metal: molybdenum, used as
an alloy in gun barrels of many times, uranium, used in high-
performance jet fighters, and selenium tellurium, used in solar
panels that could not only lead the green revolution but
provide a portable power source for U.S. troops.
As a matter of public policy, Pebble should be treated no
differently than any other potential resource project under the
Federal permitting process established by the National
Environmental Policy Act--NEPA. EPA's Bristol Bay watershed
assessment prior to Pebble seeking a single permit creates a
chilling effect on investment in U.S. resource extraction. A
preemptive permit denial based on the assessment could deprive
America of reliable sources of critical metals responsibly
extracted under American regulations. In my view, every issue
raised in the assessment could be reviewed within the existing
NEPA process. There is no issue that requires a new pre-
permitting process with the power to prevent a proposed project
from entering NEPA.
In terms of the substance of the watershed assessment, a
key underlying study used by EPA is the Earthworks-funded
study, Kuipers Maest 2006. The global water and environmental
management firm, Schlumberger, has conducted an analysis of
this study on behalf of the Northwest Mining Association. The
results are troubling.
First, Schlumberger could not replicate the hydrological
data presented in the Kuipers Maest study, a fundamental tenet
of sound scientific research. Second, Schlumberger found a
backward bias as the study drew on a preponderance--their
word--of case studies taken from mines that operated before the
modern regulatory era. Does it constitute sound science to
argue against a proposed mine based on what happened at other
mines operated to other standards 20, 30, 40 years ago? Would
we use such a backward biased yardstick to justify or judge the
safety of a new airplane, a new car, a new medicine?
I will turn now from substance to sourcing, serious
questions concerning the impartiality of experts relied upon by
EPA, once again, the subject of concern as worked on by Ann
Maest and Stratus Consulting. Many of us know the Chevron case
in Ecuador where plaintiffs were awarded an $18 billion
judgment. In response, Chevron brought racketeering claims
against members of the plaintiffs' team, including Maest and
Stratus, arguing that they manipulated data to show
contamination where none existed. How did they know this? The
plaintiffs' team invited a film crew to make a documentary
generating hours of outtakes that were revealed in the
discovery process. Here is one example.
[Video.]
The subscript said, ``Facts do not exist. Facts are
created.'' That is the lawyer who directed the research. There
is laughter that follows that from Ann Maest, the scientist who
conducted the Ecuador study and subsequently submitted sworn
statements in Federal court that renounced all scientific
findings--that is a quote--in their report to settle claims
against her. Now, the work of that very same scientist is cited
11 times in the EPA assessment. To be clear, I do not know
whether the work used in EPA's assessment will prove to show
issues similar to the Ecuador studies the author disavowed but
that question needs to be examined impartially and
independently. Otherwise EPA's reliance on that work done by
this scientist or her firm puts the assessment under a cloud.
In closing, there is a quote I would like to share. ``NEPA
is democratic at its core. In many cases, NEPA gives citizens
their only opportunity to voice concerns about a project impact
on their community, and because informed public engagement
often produces ideas, information, even solutions that the
government might otherwise overlook, NEPA leads to better
decisions, better outcomes for everyone. The NEPA process has
saved money, time, lives, historical sites, endangered species,
public lands, and because of NEPA, we are guaranteed a voice.''
That quote is from the website of the Natural Resources Defense
Council. They love NEPA, just not this time and not this
project.
If we allow this precedent, if the EPA uses the assessment
to deny Pebble access to the NEPA process, there will be many
mines and projects that don't get built, many metals will be
forced to import many times from nations that wish us harm. We
have a process in place to determine whether a mine should or
shouldn't be built. We should follow that process and let
science guide us. Thank you. I look forward to your questions.
[The prepared statement of Mr. McGroarty follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Broun. I want to thank all the witnesses for your
testimony, reminding Members that Committee rules limit
questioning to five minutes. The Chair at this point will open
the first round of questions, and the Chair recognizes himself
for five minutes.
Dr. Kavanaugh, is it possible to have a scientifically
sound watershed assessment using a hypothetical mining scenario
in the absence of a submitted permit?
Dr. Kavanaugh. No, I don't think it is, Mr. Chairman. I
think that there is a serious constraint on undertaking a risk
analysis on the basis of a hypothetical scenario. That doesn't
meet the standards for an ecological risk assessment. It
doesn't meet the standards for an Environmental Impact
Statement, and it is essentially a hypothetical risk analysis.
So it is inherently speculative, in my opinion, particularly in
the context of identifying worst-case scenarios without
attaching a probability of occurrence to those worst-case
scenarios.
Chairman Broun. Very good. Thank you.
Mr. Rothschild, typically who pays for an Environmental
Impact Statement under the National Environmental Policy Act
for projects requiring dredge and fill permits?
Mr. Rothschild. Mr. Chair, those permits are always paid
for by the project applicant. The Corps has guidance documents
which say that while the consultants are directed by the Army
Corps, they are paid for by the project applicant.
Chairman Broun. Okay, but not by taxpayers?
Mr. Rothschild. Not by taxpayers.
Chairman Broun. Okay. And generally speaking, how does that
payment mechanism compare to the one involving agency watershed
assessments such as NEPA document under discussion today?
Mr. Rothschild. The NEPA document is paid by the agency, by
the taxpayers.
Chairman Broun. The EPA document?
Mr. Rothschild. Yes, the EPA document.
Chairman Broun. I said NEPA, but I meant EPA.
Mr. Rothschild. Yes, the 104(a).
Chairman Broun. Okay. Now, we have heard testimony today
from Mr. McGroarty that there are no issues addressed in EPA's
watershed assessment that could not be raised and reviewed
within the regular permitting process. Is there anything unique
in a watershed assessment that would not be addressed in an
Environmental Impact Statement under NEPA? Please give me a yes
or no answer, starting with Mr. Rothschild.
Mr. Rothschild. No.
Dr. Kavanaugh. No, I don't think so.
Chairman Broun. Mr. Nastri?
Mr. Nastri. I am considering your question because the----
Chairman Broun. Please turn on your microphone.
Mr. Nastri. Thank you. I was considering your question
because the watershed assessment addresses the 404 issue.
Chairman Broun. Well, the question was yes or no. Is there
anything that--anything unique to the watershed assessment that
would not be addressed in an Environmental--in an EIS under
NEPA?
Mr. Nastri. I am not aware at this time of anything that
would not be addressed.
Chairman Broun. So the answer is no. Is that correct?
Mr. Nastri. I am not aware of it, sir.
Chairman Broun. Okay. As far as you know, it is no then.
Okay. Then I will come back to you. You conclude your written
testimony by stating your support for preemptive action by EPA
to veto the Pebble mine using its authority under Section
404(c) of the Clean Water Act. Setting aside the question of
EPA's authority to do so, can you explain as a former Regional
Administrator for EPA how is such an action fair to people who
have invested hundreds of millions of dollars collecting
information so that they can define a mine and identify
scientific data to show how they might propose to meet the
standards in our environmental laws?
Mr. Nastri. Well, it is very fair to project proponents,
and as I said in my testimony, oftentimes what we wanted to
hear--what project proponents wanted to hear was early
parameters by which they could develop their project. They
wanted certainty and they wanted that certainty before they
invested time and the millions of dollars that are often
associated by going through the EIS process.
Chairman Broun. Well, absolutely, but they didn't ask for a
hypothetical mining scenario here.
Let me follow up with a yes or no question. Would allowing
the Pebble project to present a plan to go through the NEPA
permitting process result in any environmental harm?
Mr. Nastri. Would it result in environmental--yes, it
would, and----
Chairman Broun. Wait a minute. Let me ask the question
again.
Mr. Nastri. Sure.
Chairman Broun. Would allowing the Pebble project to
present a plan, just to present a plan to go through the NEPA
permitting process result in any environmental harm? Your
answer is yes to that?
Mr. Nastri. My answer is yes because of a delay that is
going on and the uncertainty, and that uncertainty causes lack
of investment.
Chairman Broun. How is it going to cause environmental
harm, though?
Mr. Nastri. Well, it causes environmental harm by not
allowing other projects to go through that could provide
greater benefit, so you are looking at lost opportunities, sir.
Chairman Broun. Mr. McGroarty, in your testimony, you
mention copper in connection to the green revolution. What do
you mean by that?
Mr. McGroarty. Mr. Chairman, when we look at the major uses
of copper in green technology, it is a constant presence. Wind
power, for instance, a single industrial wind turbine uses
approximately--just one--3 to 3-1/2 tons of copper for one wind
turbine. Solar photovoltaic arrays, the newest technology for
that uses an alloy or a metals blend called CIGS, C for copper,
I for indium, G for gallium and S for selenium, 95 percent of
which selenium comes from copper. So CIGS coming and going,
copper is essential for photovoltaic arrays. Geothermal,
drawing power from the Earth, the power is brought to the
surface via copper coils. And then finally, whether it is solar
or wind or geothermal, if we want to bring that power to the
grid so that consumers can access it--renewable energy, which I
support and which my organization supports--that comes through
copper cable, at least in part through copper cable. So at
every presence, I think what we need to look at is the green
revolution is very dependent on metals and minerals beneath it.
Chairman Broun. Thank you, Mr. McGroarty.
My time is expired. Mr. Maffei, you are recognized for five
minutes.
Mr. Maffei. I thank the Chairman.
Mr. McGroarty, I too am concerned about the veracity of the
scientific assessment of Ann Maest, but how many overall
citations were there in the EPA draft report--draft assessment?
Mr. McGroarty. To her studies or her----
Mr. Maffei. No, how many overall to any----
Mr. McGroarty. I don't know.
Mr. Maffei. The answer is 1,390, and you said there were 11
times she was cited. That is some three-quarters of a percent.
Do you think that if we can show that on the American Resources
Policy Network's sourcing that three-quarters of a percent of
your sources have been debunked, that we should ignore
everything else that your organization says?
Mr. McGroarty. Let me respond in terms of that. EPA itself
seems to indicate some concern about the Kuipers-Maest study
because they subjected it to a kind of a quasi-peer review, so
they did select it out.
Mr. Maffei. So they took care of that problem, at least in
terms of the peer review. They did take care of that problem.
You mentioned that we should let science guide us. Are you
a scientist, sir?
Mr. McGroarty. I am not.
Mr. Maffei. Are you an engineer?
Mr. McGroarty. No.
Mr. Maffei. Are you an attorney with expertise about EPA
procedures?
Mr. McGroarty. No, I am a policy analyst.
Mr. Maffei. Okay. You know, actually I admire your
background. It is very similar to my own--journalism,
communications--but I don't understand why you have any
expertise to speak on this matter. Do you want to illuminate me
on that?
Mr. McGroarty. Sure. My interest in this issue and
involvement in this issue dates back. I served in government,
two presidential appointments to the Department of Defense in
the Reagan Administration, Secretary Weinberger, Secretary
Carlucci, and then later went to the White House with George
Herbert Walker Bush. I was responsible----
Mr. Maffei. You are an expert in politics, a political
expert. Again, I have respect for your profession. I just don't
understand what you are adding in terms of the scientific
assessment that you yourself say should guide us.
Mr. McGroarty. At that time, one of the issues regarding
the Soviet Union was the concern for strategic metals access.
Nowadays it is China. The Cold War is over. And I was
responsible for the statements on national security, many
foreign affairs issues and defense policy, both at DoD, where
this issue was critical and important, and at the White House.
Mr. Maffei. All right. My----
Mr. McGroarty. The genesis of my interest and involvement
dates back to that.
Mr. Maffei. So you are concerned about the strategic effect
if we don't have enough of these metals? I do understand that.
You did point out about a chilling effect on mining, and I
would like to ask Mr. Nastri, in regards to the Chairman's
question and your answer, are you concerned about environmental
impact because of a chilling effect if the continued--you know,
the mining companies continue to say they are going to ask for
a permit and don't? Is that why there is an environmental
damage here? And if not, do you want to clarify, you know, or
elaborate your answer to the Chairman's question about that?
Mr. Nastri. Sure. The real issue here is uncertainty and
the impact that uncertainty causes, and I think Senator
Murkowski said it well when she said in a letter to Northern
Dynasty and the Pebble Partnership that there is frustration,
there is anxiety, and all this because of the uncertainty, and
the uncertainty actually prevents a lot of investment to take
place. We spoke to many organizations that said they would love
to invest by creating jobs, by creating new processing
facilities but with the uncertainty that is there, they are not
going to do anything. You also have a number of people that
want to invest in the fishing industry--buy new boats, buy new
nets. They too have an uncertainty. And so what happens is, you
have what I would argue is ongoing degradation because there is
paralysis, and so that was the manner in which I was
referencing.
Mr. Maffei. So whichever way we go, we are better off
making the decision now than continuing to postpone it if it is
a clear decision?
Mr. Nastri. Absolutely. I think it is much better to
provide that certainty, and as I described before, I believe
that EPA could proceed under a set of 404 restrictions. The
restrictions would provide the guidelines for companies to move
forward. It would actually improve whatever it is they decided
to do by letting them know what they have to do.
Mr. Maffei. One criticism of the EPA that I think is shared
by Dr. Kavanaugh, if I read his writings correctly, is that the
assessment doesn't take into account new technologies that
might minimize the risk to the environment. Mr. Nastri, is that
a possibility, that there could be new technologies the EPA
simply can't take into account?
Mr. Nastri. Well, having worked at EPA for a number of
years, I can tell you, they have mining engineers, they have
people that worked in the mining industry. They are quite
familiar with mining in general. And when I look at the
documentation that has been provided by the partnership, Pebble
Partnership's own companies, they describe in detail mining
plans. They talk about two types of operations: open pit and
underground. There is really not a lot of variation that you
are going to see other than the actual size in the technology.
And from that perspective, the real question I think that
people need to wonder about is, this is the resource of the
world's greatest salmon fishery. Over 40 percent of red salmon
supply comes from this fishery. Can you imagine the uproar that
would be caused if new, unfounded or unproven technology were
applied in some area like this, which is so globally
significant, and something went wrong? Is this the area where
you would actually try to put in new technology without having
the absolute certainty that it is going to be failsafe? This is
not an area that you experiment with.
Mr. Maffei. Okay. Thank you, and thank all the witnesses.
Chairman Broun. The gentleman's time is expired. Now Mr.
Peters, you are recognized for five minutes.
Mr. Peters. Thank you, Mr. Chairman. I just had a simple
question because I think we are talking past it a little bit.
Is there anyone representing the companies here with an
interest in the mines?
Dr. Kavanaugh. I am representing Northern Dynasty.
Mr. Peters. Okay. So is there a plan to submit a permit
with an EIS in the future?
Dr. Kavanaugh. I am not familiar with the precise
scheduling or any activities that they are undertaking. I was
retained only to evaluate the watershed assessment.
Mr. Peters. So no one has a sense of the timing of when
they would like to proceed with this project?
Dr. Kavanaugh. I think they have stated on their website
and other places that they are shooting for the end of this
year, but I am not privy to the internal workings of the
company.
Mr. Peters. So we don't know when the company itself might
be ready to prepare an EIS?
Dr. Kavanaugh. Well, not precisely, but I mean, they spent
a substantial amount of money, I believe, in the hundreds of
millions to do baseline studies, so I would assume they are
ready, more or less, but I don't know the details.
Mr. Peters. I mean, I just--I am new here, not even 7
months, but it does seem to me like we are--there is a basic
question here about when is this going to come up because if it
is going to come up this year that they are going to file this
permit request and have to prepare the environmental
documentation, which is what I used to do in a past life, we
could run these processes concurrently, agree on what the
scientific protocols were and so forth and there wouldn't be
this pressure that some people feel to get things moving now.
So wouldn't it be helpful for us to know kind of what the
company's intention was?
Dr. Kavanaugh. Absolutely.
Mr. Peters. So has anyone asked them? I mean, here we are
at a congressional hearing, right? That was a simple question.
The company could tell us. Maybe there is someone from the
company here. When do they want to start this process up? If
they are going to be filing their permit request in three
months, say, I would think it would be more than reasonable to
say, okay, let us do this concurrently in 3 months, but it is
just a simple, basic piece of, you know, a multimillion-dollar
or hundred-million-dollar project that no one is answering. So
that to me would give ammunition to the people who say well, we
have to do it now because the company is not giving us
information about when they actually want to do it.
Dr. Kavanaugh. Well, Congressman, that is a very good
point. Again, I was retained by Northern Dynasty to undertake
an assessment of the EPA study, the EPA report, but I am not an
employee of the company. So I am not aware of the precise
details but I am sure that could be figured out, and I think
your approach is a valid one.
Mr. Peters. You know, in my old world, I wasn't in
Congress, I would just try to do things in ways that made more
sense, but it does seem to me that if they would like to let us
know that they are planning to do this soon, this might obviate
the need for a big conflict and we could figure out a
cooperative way to do this. This is my observation, and clearly
you don't have the answer but I appreciate at your least
addressing the question for me, Doctor.
Dr. Kavanaugh. Sure.
Mr. Peters. Thank you, Mr. Chairman. I yield back.
Chairman Broun. Thank you, Mr. Peters. Now Ms. Bonamici,
you are recognized for five minutes.
Ms. Bonamici. Thank you very much, Mr. Chairman, for
allowing me to participate in this important hearing. I
appreciate it.
I would like to thank the witnesses for being here today. I
represent the northwest part of the State of Oregon and so this
is an issue that is very critical to the economic and
environmental priorities of my constituents up and down the
West Coast, but in Oregon, for example, many of my constituents
have commercial fishing permits for Bristol Bay. They travel
there every summer to make a living. Still more work as fishing
guides. They lead tours of recreational fishermen to the
thriving ecosystem in Bristol Bay. According to a recent report
by the University of Alaska, Anchorage's Institute of Social
and Economic Research, as many as 2,000 Oregon jobs are
supported by Bristol Bay salmon fisheries. So my constituents
have made it clear to me that they are very concerned about the
impact of a proposed mine on the ecosystem and on their
livelihood, so it is important that we get the science right on
this.
I want to ask you, Mr. Nastri, much has been made about the
EPA assessing a hypothetical project. In your testimony, you
indicated that while final details of the plan may diverge from
the public documents filed so far, what won't change are the
size, scope and location of the mine. So based on your
experience, especially with EPA, how much more information
would EPA have to have about a project that had been officially
proposed compared to what has been already discovered about the
Pebble Limited Partnership plans through public documents?
Mr. Nastri. The key issue here is the fill-and-dredge
permits, the 404 permits, and one of the key aspects of that is
that the fisheries are protected, and under 404 requirements,
you have to show unacceptable adverse harm. The physical
dimensions of the mine itself will create significant impacts
to the ecological resources in terms of impacts to streams and
so forth. So from that perspective, EPA has enough information
to address the 404 question, and that is, are there
unacceptable and adverse impacts, and if so, then the agency
has a series of decisions that it can make with regards to how
to address that.
Ms. Bonamici. Thank you. And following up, how does the
data that the EPA used in the assessment, the watershed
assessment, compare to data that would be considered during a
traditional NEPA process, which supporters of the mine proposal
have said would be sufficient to protect the ecosystem?
Mr. Nastri. Well, much of the data that is utilized in the
watershed assessment would certainly also be utilized in the
NEPA process, but again, the decision aspects of both processes
are designed to inform policymakers, and the information
certainly with regards to a 404(c) issue is certainly there,
assuming that the watershed assessment is finalized.
Ms. Bonamici. Thank you. And you described the--you
discussed the Riley Yocum report in your testimony, which
describes the actions that the EPA could prohibit under its
404(c) authority including discharge of dredge material into
salmon habitat, discharge of dredge material if it does not
meet testing requirements showing that it is not a threat to
salmon, aquatic life, and the discharge of dredge material that
requires treatment in perpetuity. So would the performance
standards in the report permit the Pebble Limited Partnership
to file for a permit if it was able to engineer a solution to
meet those requirements?
Mr. Nastri. Absolutely.
Ms. Bonamici. Thank you.
And I wanted to talk briefly with my remaining time about,
apparently, Mr. McGroarty, earlier this year, you wrote an
opinion piece in the Wall Street Journal in which you described
the United States as being tied with Papua, New Guinea, for
last place in the time it takes to get a permit for a new mine,
and I suspect that perhaps the history of what happened in New
Guinea is a call to our government to slow down, and I hope the
United States does move carefully on this because we don't want
to repeat the mistakes that were made there, and I just read a
quote from the journal Organization and Environment where they
detailed the destruction that was left and the operation of
the, I think it is Panguna mine. ``Thousands of acres of
rainforest were cut down and billions of tons of mine waste
were dumped into local rivers and their surrounding oceans,
degrading drinking water quality and destroying fisheries and
local fishing economies. Mine pollution may also have increased
death rates on the island, especially among children. In
addition, villagers living on or near the mine property were
forcibly removed from the area to make way for the mine.'' And
I cite this as an example of the environmental damage that can
occur in mining operations. I point out that it is my
understanding that this operation in New Guinea was managed by
one of the entities involved with this proposed Pebble mine in
Bristol Bay, and I trust that all of you will agree that we
don't want this to happen in our country. Anybody want to agree
with that?
Mr. Nastri. We agree. I agree.
Dr. Kavanaugh. Well, I certainly agree, and I think--but
the point here again is that you are talking about a mining
situation under strict regulatory control in Alaska. You are
using examples of systems that were installed under poor
regulatory oversight, and the example that I mentioned, the 135
case studies, all of those were not relevant to the modern
engineering design of a treatment, storage and disposal
facility. Another example of the exaggerations that we keep
hearing, 11 million tons of ore that are all acid generating.
In fact, only 17 percent of the material is estimated to be
acid generating as documented in the report, in the assessment.
Eighty-three percent is not acid-generating materials. So I
think the problem that keeps coming up on this project is,
again, exaggerating the probability of failure and exaggerating
the consequences of those failures.
Ms. Bonamici. Thank you. I see my time is expired. Thank
you, Mr. Chairman.
Chairman Broun. Mr. Schweikert, you are recognized for five
minutes.
Mr. Schweikert. Thank you, Mr. Chairman, and I apologize to
you and the Committee and the witnesses for my tardiness and so
I may be asking you something that you have already spoken
about, but it will be helpful for me.
Being from Arizona, I have grown up around a lot of both
underground and pit and other types of ore extraction. My
understanding is, even what I seen in the southwest United
States, that both the technology and the mechanics, everything
from SX to everything else out there, have changed dramatically
in the last couple decades, and I would love to start from Mr.
Rothschild--and work my way down. Tell me how mechanically and
technologically, both from an impact mitigation standpoint, for
a large mine would look different today than it might have four
decades ago?
Mr. Rothschild. Well, I can tell you that I am not the
mining expert, I am the lawyer, but I would tell you that that
is exactly what the EIS process is intended to identify is
those changes and the impacts. I will defer to the scientific
experts on the panel to answer your question specifically.
Dr. Kavanaugh. Well, Congressman, I am the only engineer on
this panel so I can give you a few examples if that would be
sufficient, but you certainly should take a look at written
testimony that outlines a number of the areas where mitigation
measures would in fact be undertaken. But let me just focus on
a couple of examples. The tailings storage facility is a large
facility, and certainly, any kind of failure there would have
dramatic consequences. So those systems have to be designed to
minimize the probability of failure. They are designed with an
appropriate safety factor. They are designed with a downstream
method, which has been proven to be successful. Many of the
failures in the 135 case studies that are documented in the
assessment are based on other ways of designing the dams and
many of those failed because they were improperly designed.
So----
Mr. Schweikert. And to that----
Dr. Kavanaugh. Just to finish my statement there, the point
being that you can design a tailings storage facility with
appropriate safety factors so that the probability of a failure
is very, very low.
Mr. Schweikert. And Doctor, back to the nature, the focus
of my question is, tell me on that engineering, how would you
be engineering it differently today than you might 40 years
ago?
Dr. Kavanaugh. Absolutely.
Mr. Schweikert. --with the materials, the linings? Walk me
through a couple of those, materials, engineering, design,
technology changes that have happened in those decades.
Dr. Kavanaugh. Well, that is fairly comprehensive so I will
give it a stab. Again----
Mr. Schweikert. You have got two whole minutes.
Dr. Kavanaugh. Again, with the TSF, it would be designed in
a manner that has been proven to be effective at withstanding
seismic threats, overtopping, slope stability, all of the modes
of failure that geotechnical engineers are fully aware of these
days. The whole 135 case studies is intended to be lessons
learned. You don't do it the way that has failed in the past.
So with respect to that particular engineering component,
again, it would be designed with appropriate safety factors to
meet a permit requirement for a failure probability, one in a
million, for example.
With respect to all the water treatment and wastewater
treatment facilities, they are all designed to have redundant
systems. If there is a power failure, there is a way to assure
that the system shuts down. There are diagnostic measurements
that can monitor a system as detailed as you want with real-
time measurements. That is in the water and wastewater
management arena. One of the issues is the containment of the
acid drainage from the tailings. You can design that to be of
sufficient capture to capture all of the acid-generated wastes.
In the report, they estimated 50 percent would be lost. I think
that is a poor assumption. Other components of the mine involve
the pipelines. You can do pipeline designs that are double-
walled. All of these things, of course, can add to the cost,
but they can be done in a way that minimizes the probability of
any releases.
Mr. Schweikert. Mr. Chairman, in the last 40 seconds, Mr.
Nastri, same sort of question.
Mr. Nastri. As a former EPA----
Mr. Schweikert. And can you hit your button?
Mr. Nastri. As a former Regional Administrator who was
involved in both the cleanup of legacy mines as well as the
permitting of new mines, I think I have a good grasp on the
issue. I am sure that any mine in its time said they were going
to meet the requirements, that they were going to do the
absolute best and that nothing would be the case.
Unfortunately, in the Southwest, we have the greatest
concentration of Superfund mine sites that are being cleaned
up. There are a number of----
Mr. Schweikert. But Mr. Nastri, to that point, the legacy
and time frame of those, having some education in this area----
Mr. Nastri. Sure.
Mr. Schweikert. --are almost all 50-year-old from their
original permitting dates, and the design and manufacturing and
engineering and mitigation that you would permit a new mine
today would look dramatically different in your requirements,
correct?
Mr. Nastri. Absolutely, they would look different. However,
accidents happen. Things happen that don't----
Mr. Schweikert. And that is why now in your mechanics and
your rules you do the layers of redundancy that have been
modeled from previous experiences, correct?
Mr. Nastri. You do do that, but they are not foolproof and
they are not----
Mr. Schweikert. Well, also, you know, life isn't foolproof
but at some point you play the statistical part of your tale,
and sorry, I am way over time, but Mr. Chairman, thank you for
your patience.
Chairman Broun. We will start a second round of questions,
and try to get through as far as we can go. We have votes at
about 2:30, 2:35.
Mr. Nastri, back to the question that Mr. Maffei gave you.
All I heard was economic issues, not environmental harm, and if
you can in your written statement or answering the written
questions, if you can show us what you mean by environmental
harm. I have not heard anything from you regarding that.
But let us go to Mr. Rothschild with that same question.
Would allowing the Pebble project to present a plan to go
through the NEPA permitting process result in any environmental
harm?
Mr. Rothschild. No.
Chairman Broun. Yes or no?
Mr. Rothschild. No, Mr. Chairman.
Chairman Broun. Okay. Dr. Kavanaugh?
Dr. Kavanaugh. Not that I am aware of.
Chairman Broun. Okay. Dr. Kavanaugh, one argument made by
people opposed to the mine in Bristol Bay is that Geosyntec was
hired by one of the mining companies exploring mining options
in Bristol Bay so it naturally raises concerns shared by the
mining company. Is that a fair characterization? Would
Geosyntec's report have been different had the company been
retained by an environmental group or organization opposed to
the mining in Bristol Bay?
Dr. Kavanaugh. Well, I appreciate that question, Mr.
Chairman. Geosyntec has been in business since 1983. We have a
thousand staff. We consider ourselves independent environmental
consultants. Our fee was paid by Northern Dynasty but we have
no commercial interest in the outcome. We are not advocating
one way or another. We are simply commenting on the scientific
and technical credibility of a document. I would make the same
comments were I retained by an environmental organization with
respect to the limitations of the assessment that has been
prepared.
Chairman Broun. I take it that if all these groups that are
opposed to the mine had hired Geosyntec, you would have--the
results would have been the same? Is that what you are telling
us?
Dr. Kavanaugh. Yes, it would.
Chairman Broun. Thank you.
Mr. Rothschild, what role do avoidance and mitigation
impacts play in the mining permit process?
Mr. Rothschild. Under the Clean Water Act permitting
process, a permit applicant is required to submit all
practicable avoidance, minimization and mitigation measures,
and so there is a detailed analysis about what can be done
practicably in every permit case to ensure that the impacts are
avoided, minimized and mitigated to the greatest extent.
Chairman Broun. Okay. Dr. Kavanaugh, following up on Mr.
Rothschild's response, what is your assessment of the role of
avoidance and mitigation of impacts in either the first or
second draft of EPA's watershed assessment?
Dr. Kavanaugh. Well, in the second draft, they included
greater discussion about mitigation in the document but they
did not incorporate, in my opinion, mitigation into minimizing
or discussing the probability of failure. They still retain,
for example, four examples of tailings storage facilities'
failures, four case studies, if you will, that are not relevant
to a modern mine. They were based on well-known causes of
failure, and those failures are again lessons learned.
One of the mistakes, in my view, that permeates the report
is the use of historical information to predict what may occur
in the future, and I understand the limitations of making these
predictions into the future, and it is not a straightforward
analysis. But to give equal weight to worst-case scenarios
leads to, in my opinion, not a credible risk analysis.
Chairman Broun. Dr. Kavanaugh, EPA described this
assessment as a watershed assessment in 2012. Subsequently, the
revised version of the document has been referred to as an
ecological risk assessment and an environmental assessment. Is
there a difference between a watershed assessment and
ecological risk assessment and an environmental assessment?
Dr. Kavanaugh. Well, I think there is some confusion as to
what exactly the nature of this document is. It is not really
an ecological risk assessment because it doesn't quantify a lot
of ecological risks. It talks about the potential risks in a
qualitative way. It also is not really a risk analysis, in my
view, because of the limitations that I have already mentioned,
and it is not an Environmental Impact Statement because it is a
hypothetical mine scenario. So I honestly don't exactly know
what kind of a document it is. It is a unique document, and it
does not follow any guidance, principles related to processes
that have been identified by EPA, for example, in ecological
risk assessment.
Chairman Broun. Very good. My time is expired. Mr. Maffei,
you are recognized for five minutes.
Mr. Maffei. Thank you, again, Mr. Chairman.
Mr. Rothschild, if the EPA decided to move forward with
404(c) action in Bristol Bay, does it have the authority to do
so strictly speaking as a legal matter?
Mr. Rothschild. Well, with the caveat that I wasn't asked
to talk about 404(c), I can tell you that EPA has not
historically issued a preemptive 404(c) veto so it is not
exactly clear what it would need to do to prepare a record for
that. I do note that as early as this morning, Administrator
McCarthy was quoted in the Washington Post as saying that with
regard to the mine, ``Any act that EPA would take would be
carefully considered. There are significant natural resources
in that area along with significant economic resources. We have
got to get that balance right.'' It is that balance that really
NEPA is intended to inform the decision making.
Mr. Maffei. Thank you. That is helpful.
I want to quote from a letter by Senator Lisa Murkowski on
this. She wrote on July 1, 2013, that at least as far back as
November 3, 2004, Northern Dynasty Minerals asserted that the
submission of permit applications was imminent, and then she
goes on to describe how this occurred again in 2005 and 2006,
2008, 2009, 2010 right up to most recently in June of 2013. The
PLP representative said they hope to have a project to take
into permitting this year, and she says, ``By failing to take
the next step, by failing to decide whether to formally
describe the project and seek permits on it, PLP has created a
vacuum that EPA has now filled.''
Mr. Nastri, is this--does this context affect your
assessment of the EPA's responsibilities here, the context of
all of these times that the companies have said they are going
to seek a permit and then they pull back?
Mr. Nastri. Well, the agency is being responsive to those
who actually requested they get involved, those being the
Alaska Natives, the residents, the commercial and sport
fishermen and a whole host of other groups. So I guess the lack
of submission of a timely permit application that created the
uncertainty, the confusion and the anxiety has certainly
contributed to where we are today. Had that been done, I am
sure we would not be here today. But the fact of the matter is,
for EPA to respond to various residents and groups and so
forth, this is the way that they respond. They have to look at
the issue.
Mr. Maffei. I would like to note that there are some
representatives of the native tribes that requested the EPA
look into this here today, and I am honored that they would
make the trip.
Just to elaborate a little bit further on that, Mr. Nastri,
so the fact that it may be fairly unprecedented if the EPA were
to go ahead with 404(c) action but do you feel that this is a
somewhat unprecedented situation with a company postponing, you
know, bringing to the brink that they are going to have a
permit and then continuing to postpone it time and time again?
Mr. Nastri. Well, I think the area and the resource is
unprecedented in terms of the value and its importance both
from an economic perspective, from a jobs perspective, and
there is the cultural importance, and so in that light, I think
it is important to address and provide certainty to those
people. But as far as, you know, people have said that this is
a precedent, you know, as was said earlier, hundreds of
thousands of permit applications for fill-and-dredge permits,
the agency has only taken 13 times, and the issue of being
proactive, I mean, here we are in the world's greatest salmon
fishery left. If we are not going to be careful and protective
of this, when would we be? And so that is why it is so
important to address this issue, provide that certainty now to
everybody involved.
Mr. Maffei. Well said, sir, and I will yield back the
balance of my time.
Chairman Broun. Thank you, Mr. Maffei. Mr. Schweikert, you
are recognized for five minutes.
Mr. Schweikert. Thank you, Mr. Chairman. And Dan, help me
with the last name so I don't screw it up.
Mr. McGroarty. McGroarty.
Mr. Schweikert. McGroarty? Okay. I was going to get it. I
wanted to make sure I was being fair in my chain because part
of the discussion we have also had in our office about this is
not only some of the abnormalities we think have happened, sort
of the pattern of heading towards NEPA, heading towards this
and people trying to cut it off and those things, but just also
understanding, are we also making sure--and this is from both
those who want to extract the materials to the communities
around there to everyone with some type of interest--an
understanding of current state of technology, current state of
the mechanics, current state of rule sets so if you are going
to set up the rules on how this is going to happen, if it is to
happen, that we have learned from past mistakes, we have
learned from things. I have learned in Arizona and how
radically different at least from what I see in the Southwest
of a new facility would be designed and managed.
I know you spent some time sort of on the information side.
How are we doing in disseminating to all levels what the newest
technologies are?
Mr. McGroarty. I think that is precisely the kind of
argument for having the NEPA process and having a detailed EIS
because it is a kind of discovery, and what it means, instead
of having a hypothetical construct is, there is a particular
plan with particular technologies, particular best practices in
a particular place and that experts on all sides of those
questions have the opportunity to bring their information to
bear. It is very much like Mr. Rothschild said about that
process. That process is in place and it takes us very far
downfield to making a good decision, a scientifically informed
decision. In my oral remarks today, it is interesting that I am
quoting from National Resource Defense Council in praise of the
NEPA system, which I think is an accurate statement, and so I
don't understand why we would want that or possibly circumvent
or prevent that when it is precisely the kind of process that
would reveal those answers and would air those questions that
you have raised here.
Mr. Schweikert. Tell me that I am not looking at a
situation where we have sort of a regulatory process to review
mechanics and when certain parties are fearful they may not get
what they want politically, that they are trying to find ways
to head off that process.
Mr. McGroarty. I can't put my----
Mr. Schweikert. Or would that be just too cynical to say
such a thing?
Mr. McGroarty. I can't put myself inside the mind of folks
arguing that. I do say that the press often reports that the
watershed assessment would be a tool to stop the process. That
is all I can tell you.
Mr. Schweikert. Okay. Mr. Rothschild, you have expertise in
the NEPA process?
Mr. Rothschild. Yes.
Mr. Schweikert. Tell me what you think works and doesn't
work.
Mr. Rothschild. I think that NEPA process as a whole works.
It analyzes the alternatives to and the impacts of a proposed
project, and that is certainly something that is missing in
this assessment regardless is, every NEPA assessment needs to
look at the alternative of not doing anything. It is called the
no-action alternative. And what comes with that analysis is the
impacts that would result from not doing anything, the impact,
the environmental, the economic impacts, some of the impacts
that Mr. McGroarty was testifying to earlier with regard to the
need for these metals, and so I think the NEPA process, while
it has its kinks, is fairly successful at looking at impacts
and alternatives.
Mr. Schweikert. Okay. Mr. Chairman, you know, that gets me
where I needed to be informationally, so I yield back.
Chairman Broun. Okay. Very good, Mr. Schweikert. I
understand I have a unanimous consent request.
Mr. Maffei. Mr. Chairman, I ask unanimous consent that Mr.
Kilmer of the State of Washington be allowed to participate in
the Subcommittee hearing. He is a member of the full Committee
but not the Subcommittee.
Chairman Broun. Hearing no objections, so ordered.
Ms. Bonamici, you are recognized for five minutes.
Ms. Bonamici. Thank you, Mr. Chairman, and I will just take
a couple minutes. I wanted to recognize that again there are
people here from some of the tribes. They have come all this
way, and I appreciate their presence.
It is my understanding that Bristol Bay is home to 25
federally recognized tribal governments, and I wanted to talk a
little bit about the public participation part of the
assessment. Mr. Nastri, is it unusual for there to be two
public comment periods? Because it is my understanding that
during the first phase, there were more than 200,000 public
comments, and during the second phase, 877,000 public comments
came in. So can you talk a little bit about the effort to
involve the public in this assessment process, especially with
the federally recognized tribes?
Mr. Nastri. There has been extensive outreach during this
entire process and it was at every stage of the process from
helping to define what the study would be, helping to select
the charges that would be subject to peer review, to who peer
reviewers could be. There was extensive outreach with regards
to the one or two peer reviews. In my experience, there
typically was one peer-review period and then the agency would
go ahead and finalize and release. I think in an abundance of
caution, the agency wanted to make sure that there was as much
outreach as possible and to solicit as much input as possible
from all of those, and it is continuing to do so, and right now
they had recently closed that second comment period on the
second revision that was released, and so they are in the
process of compiling and reviewing all of the comments that are
submitted, and I am sure that many of the issues that were
discussed today will be addressed once that watershed
assessment is finalized and released.
Ms. Bonamici. Thank you. And can you comment briefly on the
efforts that have been made to work with the federally
recognized tribes in the Bristol Bay area?
Mr. Nastri. There have been a number of communications
directly with members of the tribal villages. Previously, there
was visits to the actual area. I know that there were a number
of visits. The Administrator herself, Administrator Jackson,
had the chance to visit. EPA staff had the chance to actually
fly over the proposed site, look at some of the areas that
would be impacted by the potential development of the Pebble
deposit. So there was an extensive ability for the actual staff
of the agency to see firsthand what it is that was being
discussed. I myself also had the opportunity to visit a number
of those villages and see the challenge that they have. So I
think that in terms of the agency itself providing the
opportunity for engagement, they specifically formed a group to
deal with the tribal entities and so forth. They have had
numerous opportunities for public input, and I would say that
it is really quite extensive.
Ms. Bonamici. Thank you very much, and I yield back the
remaining time. Thank you, Mr. Chairman.
Chairman Broun. Thank you, Ms. Bonamici. Mr. Kilmer, you
are recognized for five minutes. Do you think you need all
five?
Mr. Kilmer. I don't think I will.
Chairman Broun. Okay.
Mr. Kilmer. Thank you, Mr. Chairman, and thank you for
allowing me to participate in this important hearing. I would
like to thank all the witnesses for traveling here today as
well.
As mentioned, the Bristol Bay watershed is the world's
largest sockeye salmon fishery, not only in existence but
flourishing, and as a representative from Washington State, I
have seen the detrimental effects of a struggling salmon
population and how it can affect all stakeholders from
fisherman to our tribal communities. In Washington State, we
can all agree that the viability of our fisheries, whether in
the State of Washington or in Alaska, are a key economic driver
and a part of our cultural heritage, and healthy fisheries
create jobs. Bristol Bay watershed supports over 14,000 jobs
from Alaska to Maine and at least 5,000 Washington State jobs
rely on the Bristol Bay sockeye fishery including a good number
of my constituents.
In examining the proposal, I have serious concerns over the
environmental effects of building this type of mine right on
top of the largest sockeye run in the world. In fact, according
to Pebble's own documents on file at the SEC, at least 80 miles
of sockeye spawning streams would be destroyed during the
construction of the mine. That is in addition to the lasting
impacts that the toxic tailing pools would have on salmon. I
hear the Pebble supporters say that the EPA should just wait
for a permit application, and I guess I have got a few
questions for Mr. Nastri.
First, in your opinion, why is it so important that EPA get
this work done sooner than that? Second, I hear from a lot of
commercial and sports fishermen in my district who oppose the
Pebble mine and support the EPA's process. In the Bristol Bay
region, what do residents think about the EPA process and what
do they think about the mine? And then finally, you know, I
have a number of tribes in my district and I understand the
importance of access to fishing grounds for our tribal
communities. Worst-case scenario or let us say medium-case
scenario we have a leakage from the toxic tailing pools. What
happens to subsistence fishers in the region? Are there other
streams nearby that can sustain them? In your view, is the EPA
doing enough to make sure subsistence fishers in the Bristol
Bay region have a voice during the process? Thank you.
Mr. Nastri. Thank you. You asked a lot of questions, and
hopefully I will be able to answer them all, but if I forget
one, please remind me.
With regards to the level of support, as I mentioned
earlier, over 75 percent of the comments that were generated
with regards to the watershed assessment were in support of,
and within Bristol Bay, over 95 percent of the commenters
supported EPA's watershed assessment.
With regard to the subsistence aspect, there was a
tremendous amount of outreach on the cultural and subsistence
issue, and in fact, there were comments that were submitted by
various villages that talk about the potential harm to a
subsistence way of life and to a cultural identity should the
salmon be impacted in a way that is feared. And so there is a
tremendous amount of effort, both in terms of addressing the
subsistence aspect. There is a tremendous level of support for
EPA and its watershed assessment. And I am sorry, the very
first portion of your question?
Mr. Kilmer. In your opinion, why is it so important that
the EPA get this work done sooner than waiting for a permit
application?
Mr. Nastri. So right now what we have and what really
prompted the request to EPA is uncertainty, and as Senator
Murkowski said, that uncertainty has caused anxiety and
frustration within the communities. And that has a direct
impact on the economic well-being of the area. We have heard
from a number of groups and organizations that said they will
not invest in the area because they don't know what the outcome
is. There is also the ongoing threat of stigma, stigma in terms
of, are these fish going to be something that is really
valuable. Right now, the value of this fishery is tremendous,
and so providing and addressing a response that addresses the
uncertainty is extremely important, and not only are there the
economic aspects, you know, the 14,000 jobs, the 1.5 billion
contribution, but you have the social impacts as well, and I am
sure that the village elders that are here today could share
with you stories about what it is doing to their youth. I have
had the chance to talk to some of those youth, and they say
that this uncertainty has impacted them greatly. And so
providing the certainty not only to all the people that are
involved that rely on the fishery, that live on the fishery,
but to everybody so that they know what needs to be done and
how we can address this and move forward and continue to have
that very viable and healthy fishery and economy.
Mr. Kilmer. Thank you, Mr. Chairman. I yield back.
Chairman Broun. Thank you, Mr. Kilmer.
Before I adjourn this hearing, I want to make a couple of
points. As I stated in my opening statement, I am an avid
hunter, fisherman and conservationist. In fact, it was those
issues that started my political activism. I enjoy the great
outdoors and strive to protect our natural resources so future
generations may also enjoy the benefits that they provide.
I have serious questions about how a mine can coexist with
fish in Bristol Bay, but I have reservations about EPA's action
in regard to the potential Pebble mine. I cannot support
actions by a Federal agency that disregards laws that already
exist that provide a level playing field for both industry and
environmentalists alike. We must be a Nation ruled by law, not
ruled by the decision of man or woman.
If the Administration wants to keep its promise of
transparency and accountability, it should start with projects
like the Pebble mine in Bristol Bay and allow the NEPA process
to occur once an actual plan is submitted. If it turns out a
mine cannot be developed without endangering the salmon in
Alaska, then the EPA has the authority to deny the requisite
permits, and should. But it will have done so by following the
due process instead of setting a costly and chilling precedent
that may send more jobs out of the United States to countries
whose mining laws have little regard for the environment or
their citizens. Following our system of existing laws and
regulations would also help alleviate the uncertainty among
industry, who right now are wondering which rules will prevail,
the laws as we know them or the whims of an agency an
Administration that apparently believes the ends justify the
means.
My position has always been, if the Pebble mine will harm
the fisheries and environment, as some believe, it should not
be allowed. We must allow due process under the law to find the
facts. Laws and facts should drive the decision.
Again, I thank everyone for their participation in this
informative hearing today, and I suspect it won't be our last
discussion on the topic.
I have allowed every letter that I have gotten, no matter
how much they have impugned my process and my reasons for
holding this hearing. I have put them all in the record. We
have to be a Nation governed by law and due process, and that
is the whole reason for this hearing.
Now, Members of the Committee may have additional questions
for the witnesses, and we will ask you to respond to those in
writing. The record will remain open for two weeks for
additional comments and written questions from Members.
The witnesses are excused. I thank you all for you all's
presence. This hearing is adjourned.
[Whereupon, at 2:31 p.m., the Subcommittee was adjourned.]
Appendix I
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Answers to Post-Hearing Questions
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Appendix II
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Additional Material for the Record
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