[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE PEBBLE MINE PROJECT: PROCESS AND POTENTIAL IMPACTS
=======================================================================
(116-39)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 23, 2019
__________
Printed for the use of the
Committee on Transportation and Infrastructure
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online at: https://www.govinfo.gov/committee/house-
transportation?path=/browsecommittee/chamber/house/committee/
transportation
__________
U.S. GOVERNMENT PUBLISHING OFFICE
41-942 PDF WASHINGTON : 2020
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
PETER A. DeFAZIO, Oregon, Chair
ELEANOR HOLMES NORTON, SAM GRAVES, Missouri
District of Columbia DON YOUNG, Alaska
EDDIE BERNICE JOHNSON, Texas ERIC A. ``RICK'' CRAWFORD,
RICK LARSEN, Washington Arkansas
GRACE F. NAPOLITANO, California BOB GIBBS, Ohio
DANIEL LIPINSKI, Illinois DANIEL WEBSTER, Florida
STEVE COHEN, Tennessee THOMAS MASSIE, Kentucky
ALBIO SIRES, New Jersey MARK MEADOWS, North Carolina
JOHN GARAMENDI, California SCOTT PERRY, Pennsylvania
HENRY C. ``HANK'' JOHNSON, Jr., RODNEY DAVIS, Illinois
Georgia ROB WOODALL, Georgia
ANDRE CARSON, Indiana JOHN KATKO, New York
DINA TITUS, Nevada BRIAN BABIN, Texas
SEAN PATRICK MALONEY, New York GARRET GRAVES, Louisiana
JARED HUFFMAN, California DAVID ROUZER, North Carolina
JULIA BROWNLEY, California MIKE BOST, Illinois
FREDERICA S. WILSON, Florida RANDY K. WEBER, Sr., Texas
DONALD M. PAYNE, Jr., New Jersey DOUG LaMALFA, California
ALAN S. LOWENTHAL, California BRUCE WESTERMAN, Arkansas
MARK DeSAULNIER, California LLOYD SMUCKER, Pennsylvania
STACEY E. PLASKETT, Virgin Islands PAUL MITCHELL, Michigan
STEPHEN F. LYNCH, Massachusetts BRIAN J. MAST, Florida
SALUD O. CARBAJAL, California, Vice MIKE GALLAGHER, Wisconsin
Chair GARY J. PALMER, Alabama
ANTHONY G. BROWN, Maryland BRIAN K. FITZPATRICK, Pennsylvania
ADRIANO ESPAILLAT, New York JENNIFFER GONZALEZ-COLON,
TOM MALINOWSKI, New Jersey Puerto Rico
GREG STANTON, Arizona TROY BALDERSON, Ohio
DEBBIE MUCARSEL-POWELL, Florida ROSS SPANO, Florida
LIZZIE FLETCHER, Texas PETE STAUBER, Minnesota
COLIN Z. ALLRED, Texas CAROL D. MILLER, West Virginia
SHARICE DAVIDS, Kansas GREG PENCE, Indiana
ABBY FINKENAUER, Iowa
JESUS G. ``CHUY'' GARCIA, Illinois
ANTONIO DELGADO, New York
CHRIS PAPPAS, New Hampshire
ANGIE CRAIG, Minnesota
HARLEY ROUDA, California
Vacancy
Subcommittee on Water Resources and Environment
GRACE F. NAPOLITANO, California, Chair
DEBBIE MUCARSEL-POWELL, Florida, BRUCE WESTERMAN, Arkansas
Vice Chair DANIEL WEBSTER, Florida
EDDIE BERNICE JOHNSON, Texas THOMAS MASSIE, Kentucky
JOHN GARAMENDI, California ROB WOODALL, Georgia
JARED HUFFMAN, California BRIAN BABIN, Texas
ALAN S. LOWENTHAL, California GARRET GRAVES, Louisiana
SALUD O. CARBAJAL, California DAVID ROUZER, North Carolina
ADRIANO ESPAILLAT, New York MIKE BOST, Illinois
LIZZIE FLETCHER, Texas RANDY K. WEBER, Sr., Texas
ABBY FINKENAUER, Iowa DOUG LaMALFA, California
ANTONIO DELGADO, New York BRIAN J. MAST, Florida
CHRIS PAPPAS, New Hampshire GARY J. PALMER, Alabama
ANGIE CRAIG, Minnesota JENNIFFER GONZALEZ-COLON,
HARLEY ROUDA, California Puerto Rico
FREDERICA S. WILSON, Florida SAM GRAVES, Missouri (Ex Officio)
STEPHEN F. LYNCH, Massachusetts
TOM MALINOWSKI, New Jersey
PETER A. DeFAZIO, Oregon (Ex
Officio)
CONTENTS
Page
STATEMENTS OF MEMBERS OF THE COMMITTEE
Hon. Grace F. Napolitano, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on Water
Resources and Environment:
Opening statement............................................ 1
Prepared statement........................................... 2
Hon. Bruce Westerman, a Representative in Congress from the State
of Arkansas, and Ranking Member, Subcommittee on Water
Resources and Environment:
Opening statement............................................ 2
Prepared statement........................................... 4
Hon. Peter A. DeFazio, a Representative in Congress from the
State of Oregon, and Chairman, Committee on Transportation and
Infrastructure:
Opening statement............................................ 5
Prepared statement........................................... 6
Hon. Don Young, a Representative in Congress from the State of
Alaska:
Opening statement............................................ 8
Prepared statement........................................... 9
Hon. Eddie Bernice Johnson, a Representative in Congress from the
State of Texas, prepared statement............................. 60
WITNESSES
Dennis J. McLerran, Environmental Attorney, Cascadia Law Group:
Oral statement............................................... 13
Prepared statement........................................... 15
Tom Collier, Chief Executive Officer, Pebble Partnership:
Oral statement............................................... 17
Prepared statement........................................... 19
Richard K. Borden, Owner, Midgard Environmental Services LLC:
Oral statement............................................... 29
Prepared statement........................................... 31
Alannah Hurley, Executive Director, United Tribes of Bristol Bay:
Oral statement............................................... 34
Prepared statement........................................... 36
Brian Kraft, Owner, Alaska Sportsman's Lodge:
Oral statement............................................... 41
Prepared statement........................................... 42
Mark Niver, Bristol Bay Driftnet Permit Holder, FV Surrender:
Oral statement............................................... 45
Prepared statement........................................... 47
Anisa Kamadoli Costa, Chief Sustainability Officer, Tiffany &
Co.:
Oral statement............................................... 50
Prepared statement........................................... 51
SUBMISSIONS FOR THE RECORD
Statement of Michael Jackson, Bristol Bay Driftnet Permit Holder,
FV Kelly J, Submitted for the Record by Hon. Rick Larsen....... 10
Article from Juneau Empire, Submitted for the Record by Hon.
Debbie Mucarsel-Powell......................................... 69
Article from Anchorage Daily News, Submitted for the Record by
Hon. Debbie Mucarsel-Powell.................................... 72
Letter of September 29, 2010, from Patrick Dorsey, Senior Vice
President, Secretary and General Counsel, Tiffany & Co.,
Submitted for the Record by Hon. Bruce Westerman............... 79
``EPA's Bristol Bay Watershed Assessment: Obtainable Records Show
EPA Followed Required Procedures Without Bias or
Predetermination, but a Possible Misuse of Position Noted,''
EPA Report No. 16-P-0082, January 13, 2016, Submitted for the
Record by Hon. Peter A. DeFazio................................ 95
``Report of an Independent Review of the United States
Environmental Protection Agency's Actions in Connection With
Its Evaluation of Potential Mining in Alaska's Bristol Bay
Watershed,'' Executive Summary, The Cohen Group and DLA Piper
LLP, October 6, 2015, Submitted for the Record by Hon. Bruce
Westerman...................................................... 95
Supplemental Written Testimony Provided by Richard K. Borden,
Owner, Midgard Environmental Services LLC...................... 100
Chart and Email Provided by Alannah Hurley, Executive Director,
United Tribes of Bristol Bay................................... 102
Screen captures, ``CNN Exclusive: Complaint Seeks Investigation
of Alleged Insider Trading That May Have Come From a Trump
Administration Leak,'' Provided by Brian Kraft, Owner, Alaska
Sportsman's Lodge.............................................. 104
Companies Opposed to Proposed Pebble Mine, Submitted for the
Record by Hon. Peter A. DeFazio................................ 104
Timeline of Pebble Mine Process, Submitted for the Record by Hon.
Peter A. DeFazio............................................... 106
APPENDIX
Question from Hon. Don Young to Alannah Hurley, Executive
Director, United Tribes of Bristol Bay......................... 107
Question from Hon. Don Young to Brian Kraft, Owner, Alaska
Sportsman's Lodge.............................................. 108
THE PEBBLE MINE PROJECT: PROCESS AND POTENTIAL IMPACTS
----------
WEDNESDAY, OCTOBER 23, 2019
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 9:58 a.m., in
room 2167, Rayburn House Office Building, Hon. Grace F.
Napolitano (Chairwoman of the subcommittee) presiding.
Mrs. Napolitano. Good morning. I call this hearing to
order, and we are here today to focus on the Pebble Mine
project. Let me begin by asking unanimous consent that the
chair be authorized to declare recesses during today's hearing.
Without objection, so ordered.
Today's hearing is very important with significant impact
to the Nation. While the topic of the Pebble Mine project may
seem local to Alaska, the impacts of the mining project in
Bristol Bay may be felt as far away as Washington, Oregon,
California--my State--States with a robust salmon fishing
industry--and the rest of the world.
The predominant Alaska Native cultures present in the
Nushagak and Kvichak River watershed--the Yup'ik, Dena'ina, and
Alutiiq--sorry if I mispronounce them--are two of the last
intact, sustainable, salmon-based cultures in the world. And it
is for this reason that it is important that the Pebble Mine
project be examined thoroughly with the best science before it
proceeds.
Today, we will talk about the process for permitting the
Pebble Mine project. Like any process, the outcome of it is as
good as its input. In this case, it is not clear that the
scientific data is being properly reviewed or considered. The
Environmental Protection Agency, EPA, has a significant role in
permitting projects for this mine, even though the Army Corps
of Engineers is the primary leader in permitting. EPA should be
participating in a robust review process for a mine that was
once described as the largest open-pit mine in the world.
Even though the current proposal for the mine focuses on a
smaller scale mine, the EPA has an important role in evaluating
the potential impacts of the latest proposal. It now seems like
the EPA is backing off of reviewing the permitting process in a
significant manner. Specifically, on July 1, 2019, the EPA
expressed concern that the draft EIS, environmental impact
statement, underestimated impacts and risks of the Pebble Mine
project to water resources.
However, on July 30, 30 days later, they chose to withdraw
protections for Bristol Bay under section 404(c) of the Clean
Water Act. What happened in 30 days to change the EPA's mind?
We need to get to the bottom of this and find out why EPA
has changed its mind, or had it changed for them, about the
potential impacts of the mine.
The process seems flawed. I am not convinced that if we
continue to let the process play out, as proponents of the mine
suggest, that we will end up with a final decision based on
good science and data. We need evidence that this project is
being properly reviewed. And so far, I have not seen that.
[Mrs. Napolitano's prepared statement follows:]
Prepared Statement of Hon. Grace F. Napolitano, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Water Resources and Environment
Good morning. Today's hearing is on a very important issue with
significant impacts for the nation.
While the topic of the Pebble Mine project may seem local to
Alaska, the impacts of a mining project in Bristol Bay may be felt as
far away as Washington, Oregon, California--states with a robust salmon
fishing industry--and the rest of the world.
The predominant Alaska Native cultures present in the Nushagak and
Kvichak River watersheds--the Yup'ik, Dena'ina, Alutiiq--are two of the
last intact, sustainable, salmon-based cultures in the world.
It is for these reasons it is important that the Pebble Mine
Project be examined thoroughly with the best science--before it
proceeds. Today, we will talk about the process for permitting the
Pebble Mine Project.
Like any process, the outcome of it is as good as the inputs. In
this case, it is not clear that the scientific data is being properly
reviewed or considered. The Environmental Protection Agency (EPA) has a
significant role in the permitting process for this mine, even though
the Army Corps of Engineers is the primary lead on permitting. EPA
should be participating in a robust review process for a mine that was
once described as the largest open pit mine in the world. Even though
the current proposal for the mine focuses on a smaller-scaled mine, the
EPA has an important role in evaluating the potential impacts of the
latest proposal.
It now seems like the EPA is backing off of reviewing the
permitting process in a significant manner. Specifically, on July 1,
2019, the EPA expressed concern that the Draft Environmental Impact
Statement underestimated impacts and risks of the Pebble Mine Project
to water resources. However, on July 30, the EPA chose to withdraw
protections for Bristol Bay under Section 404(c) of the Clean Water
Act. What happened in 30 days to change EPA's mind?
We need to get to the bottom of this and find out why EPA has
changed its mind about the potential impacts of this mine. The process
seems flawed and I am not convinced that if we continue to let the
process play out, as proponents of the mine suggest, we will end up
with a final decision based on good science and data. We need evidence
that this project is being properly reviewed, and so far, I have not
seen that.
Mrs. Napolitano. I ask unanimous consent that committee
members not on the subcommittee be permitted to sit with the
subcommittee at today's hearing and ask questions. Without
objection, so ordered.
I am pleased to yield this time to my ranking member, Mr.
Westerman, for any thoughts he may have.
Mr. Westerman. Thank you, Chairwoman Napolitano. We have a
significant amount of business before the subcommittee that is
critical to the American taxpayer. Today would be better spent
discussing how to move forward the next Water Resources
Development Act, a traditionally bipartisan effort to advance
navigation, flood control, and ecosystem restoration projects
critical to communities nationwide. We can also be examining
solutions to fix our aging water infrastructure and flood
control strategies to prevent or lessen future flooding events
that plague many of our communities.
But instead of focusing on any of these critical issues,
the subcommittee is focusing on a partisan priority currently
under review at the Federal agency level. We are wading into a
project and an issue that is currently in the middle of a
comprehensive review under the National Environmental Policy
Act.
In 2014, EPA aggressively sought to expand its influence
far beyond the original intent of the Clean Water Act and
exercised what is known as the 404(c) veto authority by issuing
a preliminary determination which essentially blocked
development of Pebble Mine. Historically, this authority has
been used in rare circumstances, only having been employed 13
times. But never had EPA issued a veto before a project permit
application with detailed engineering site plans and
environmental mitigation had been filed.
In doing so, EPA completely bypassed the established Clean
Water Act and NEPA procedures specifically designed to evaluate
potential projects, thereby denying the company a fair
regulatory due process by foreclosing the opportunity for
science to be objectively presented, reviewed, and assessed,
trampling State authority and stranding millions in capital
expenditures by the company.
When unprecedented steps like this are taken, a chilling
effect is sent around the country and the world for businesses
wanting to invest in the United States, and it raises serious
concerns about regulatory due process in our country.
I want to be clear. I understand the charged nature of this
proposal and the potential for environmental disruption that
can occur when mining operations are present, and I know
stakeholders are here today representing those concerns. But
again, I also believe in proper regulatory due process through
a fair and objective Federal environmental permitting process.
I believe in giving an applicant the opportunity to have the
Corps of Engineers and the State of Alaska, along with a suite
of other Federal agencies, review this project objectively on
the merits of its permit application.
It wasn't until 2017, 3 years after EPA's preemptive
judgment, when the Pebble Partnership filed a permit
application, thereby kick-starting NEPA--the environmental
review process deemed the gold standard by environmental
activists, environmental NGOs, and Democrats nationwide.
I will withhold judgments on the merits of the mine and
stay out of the politics, but I will reaffirm that Federal
agencies should not be predetermining outcomes, and that the
review process that is currently taking place, should be
allowed to play out.
In the meantime, this committee should get back to its
business of addressing the infrastructure needs of this
country. I hope we can get back to real work on what usually
are bipartisan issues for us. We have made real headway in the
past Congress, advancing three WRDAs in the past 6 years and
exploring ways to improve and accelerate our water resources
development programs. We could have focused today on a topic
that would help inform our actions on those important issues
and help our constituents who sent us here to work together on
real solutions.
[Mr. Westerman's prepared statement follows:]
Prepared Statement of Hon. Bruce Westerman, a Representative in
Congress from the State of Arkansas, and Ranking Member, Subcommittee
on Water Resources and Environment
Thank you, Chairwoman Napolitano.
We have a significant amount of business before this subcommittee
that is critical to the American taxpayer. Today would be better spent
discussing how to move forward the next Water Resources Development
Act--a traditionally bipartisan effort to advance navigation, flood
control, and ecosystem restoration projects critical to communities
nationwide. We could also be examining solutions to fix our aging water
infrastructure and flood control strategies to prevent or lessen future
flooding events that plague many of our communities.
But instead of focusing on any of these critical issues, the
Subcommittee is focusing on a partisan priority currently under review
at the federal agency level. We are wading into a project and issue
that is currently in the middle of a comprehensive review under the
National Environmental Policy Act (NEPA).
In 2014, EPA aggressively sought to expand its influence far beyond
the original intent of the Clean Water Act and exercised what is known
as its 404(c) ``veto'' authority by issuing a preliminary
determination--which essentially blocked development of Pebble Mine.
Historically, this authority has been used in rare circumstances,
only having been employed 13 times. But never had EPA issued a veto
before a project permit application with detailed engineering, site
plans, and environmental mitigation had been filed.
In doing so, EPA completely bypassed the established Clean Water
Act and NEPA procedures specifically designed to evaluate potential
projects, thereby denying the company a fair regulatory due process by
foreclosing the opportunity for science to be objectively presented,
reviewed, and assessed; trampling state authority; and stranding
millions in capital expenditures by the company.
When unprecedented steps like this are taken, a chilling effect is
sent around the country and the world for businesses wanting to invest
in the United States, and it raises serious concerns about regulatory
due process in our country.
I want to be clear--I understand the charged nature of this
proposal and the potential for environmental disruption that can occur
when mining operations are present, and I know stakeholders here today
represent those concerns.
But again, I also believe in proper regulatory due process through
a fair and objective federal environmental permitting process. I
believe in giving an applicant the opportunity to have the Corps of
Engineers and the State of Alaska, along with a suite of other federal
agencies, review this project objectively, on the merits of its permit
application.
It wasn't until 2017, three years after EPA's preemptive judgment,
when the Pebble Partnership filed a permit application, thereby
kickstarting NEPA--the environmental review process deemed the gold
standard by environmental activists and NGOs nationwide.
I will withhold judgments on the merits of the mine and stay out of
the politics, but I will reaffirm that federal agencies should not be
pre-determining outcomes, and that the review process currently taking
place should be allowed to play out.
In the meantime, this Committee should get back to its business of
addressing the infrastructure needs of this country. I hope we can get
back to real work on what usually are bipartisan issues for us. We have
made real headway in past Congresses, advancing three WRDAs in the past
six years, and exploring ways to improve and accelerate our water
resources development programs.
We could have focused today on a topic that would help inform our
actions on those important issues, and help our constituents who sent
us here to work together on real solutions.
Mr. Westerman. I yield back the balance of my time.
Mrs. Napolitano. Thank you. We will proceed now to
recognize Mr. DeFazio, the chairman of the full committee.
Mr. DeFazio. Thanks, Madam Chair. I would agree with the
gentleman that we want to have a proper regulatory due process
and should not prejudge. Unfortunately, I think prejudgment has
been made since the day that Donald Trump, the President of the
United States, who is known to manipulate things, met with the
Governor of Alaska, and essentially dictated to the Corps, and
EPA, of course, withdrew its objections.
This project is an abomination, and it does have massive
implications, not just for Alaska, not just for the west coast,
but for the future of sockeye salmon worldwide. Half of the
wild sockeye are dependent upon the Bristol Bay region. One-
half. At one point, Mr. Collier used to work with Bruce
Babbitt, who, I think, probably would disown him at this point.
He says this might even improve salmon habitat. I would love
for him to name a mine other than a reclamation project that
has improved salmon habitat anywhere in the world, particularly
a pristine area like this.
As they say, it is about jobs. Yeah. Well, there are a hell
of a lot of jobs up there right now dependent upon this
resource, 14,000 full- and part-time jobs, $480 million a year
for the fisheries in that area. And then you go on to other
activities: 150 sportfishing and hunting-related businesses
operate in the watershed, 30,000 sportfishing trips, $12.4
million in hunting trips, $34.5 million in wildlife viewing
activities. I am sure they will love hunting around the 400-
and 500-foot tall piles of dirt holding the toxic waste from
this mine.
Now, they are going to say this is about job creation, but
the numbers they are using are predicated upon the original
proposal which they say they have no intention of doing. We are
never going there. We are going to do a 20-year project which
has not been economically evaluated, and which the Corps has
not dealt with in that manner. But they are still touting the
numbers from 100 percent of the project, the 70-plus year
project.
Now, I want to hear if he has a credible economic analysis
for this scaled-down proposal, because we are going to hear
from someone with very significant experience in the industry
working for real mining companies, Rio Tinto and others, who
withdrew from this project because they knew it was a scam, and
it wasn't economically viable.
But now we have a shell company proposing this, a shell
company that is going to have to treat the water in perpetuity.
We have seen this before. I got one right in my district. A
Canadian company came in, did a bunch of mining. Oh, we are
gone, we are bankrupt, and you got the toxic waste. We are
still working on cleaning that up.
So here we have a shell company with no other assets except
for this claim, and they are going to be able to create the
largest perpetual water treatment plant in history, the history
of the world. Never been done before, but they can do it, and,
of course, they will, after they make so much money on this
thing that is scaled down to the point where it is not
economical.
I would say, you know, if I was looking at this from sort
of a financial perspective, I would say we have a pump and
dump. It is one of two things: It is a pump and dump, and there
have been some credible news reports about insider trading
relating to decisions made by the EPA and others in the Trump
administration on this. Or it is pump, dump, and fooled you,
and we are going to come back with a giant mine, one or the
other. Because what is before us today is not credible, and it
has not been credibly evaluated by the Corps of Engineers.
These dams are going to be 545 feet tall, made out of dirt,
rock, in an area that is seismically active, currently gets an
average of 50 inches of rain a year. Don't worry, we can treat
all that. We can get all the toxic waste out from exposure, and
ultimately we will submerge it and put it in this giant lake,
and everything will be fine, and we will treat it in
perpetuity, forever.
How much does that cost? That is not in the core analysis.
There is no closure analysis in here. So we know what kind of
closure it is going to be. They are going to dump it on the
people of Alaska and the taxpayers of the United States, and by
the way, at that point, we probably won't have a salmon fishery
anymore.
So I really think that it is very important we are here
today, and this is the business of this committee, clean water
and protection of the environment.
[Mr. DeFazio's prepared statement follows:]
Prepared Statement of Hon. Peter A. DeFazio, a Representative in
Congress from the State of Oregon, and Chairman, Committee on
Transportation and Infrastructure
Let me state, right from the start, that the Pebble Mine proposal
is a bad idea made even worse by the sham review process currently
underway.
First, let's talk about the proposed location of this mine.
The Bristol Bay Watershed, where this mine is proposed, is one of
the last pristine environments remaining in the world.
Protection of Bristol Bay is critical to native Alaskan villages
that have lived in this area for over 4,000 years, to the fishers and
businesses that rely on the salmon run for their livelihood, and to
future generations of Alaskans.
The quality of the Bristol Bay environment is also hugely important
to the economy of the region. According to today's testimony, the
Bristol Bay fisheries support about 14,000 full and part time jobs and
generate over $480 million in direct annual economic expenditures and
sales.
Similarly, this pristine environment also supports approximately
$1.5 billion in economic activity to the regional economy, including
150 sportfishing or hunting related businesses that operate in the
watershed with about 30,000 sportfishing trips taken to the region each
year, as well as an additional $12.4 million in hunting trips and an
additional $34.5 million in sales from wildlife viewing activities.
Now, the Pebble Partnership will also try to sell this mine on its
potential for job creation. I have heard the estimates that the Pebble
Partnership is making on the thousands of jobs the mine will create
nationwide, and the estimated $400 million in additional revenues to
the State of Alaska that the mine could produce. However, I also
understand that these numbers are based on the largest mine proposal
that the Partnership floated in 2011 and that the Obama administration
attempted to veto in 2016.
Maybe Mr. Collier can enlighten us on the job creation numbers from
the slimmed down proposal he is selling today; however, I would suggest
that any jobs created from this mining proposal will be to the
detriment of the lives and livelihoods of native Alaskans, fisheries,
and other commercial entities that rely on the pristine environment
there today--so, I ask, is it worth the risk?
Second, let's talk about the unprecedented scale of this mining
proposal.
Even at the smallest scale under review, the footprint of the
Pebble mine would be unprecedented for an open pit mine in such a
pristine environment.
As noted in testimony today, the Pebble proposal would require the
removal and treatment of over 1 billion tons of bulk mining tailings,
the capturing and treatment of approximately 13,000 gallons per minute
of contaminated mine wastewater, and all of this behind 5 constructed
dams in one of the most dynamic environments on earth.
Two of these dams are proposed to exceed 545 feet each--which is
roughly the same height as the Grand Coulee Dam, in Washington State.
So, the proposal would be to construct at least 2 new Grand Coulee-type
dams, on lands that are prone to seismic activity, in an environment
that is facing some of the greatest challenges from climate change on
Earth. And, Mr. Collier, you will be responsible for treating this
mining wastewater, forever, using what others describe today as
untested technologies that exist nowhere else in the world at this
scale.
Mr. Collier, you also say in your testimony that the mine will ``do
no damage to the fishery'' and may, in fact ``have a positive impact on
some fish habitats.'' Give me a break--how to you improve upon a
pristine environment? And, the consequence of you getting this wrong
are catastrophic and forever--and I would agree with many of the
panelists here today, not worth the risk.
Third, let's talk about the shell game that is going on with
attempts to get approval of a project that just doesn't pencil out--
unless you plan to come back and build the rest later.
Today's testimony includes the insights of a mining industry
specialist--someone whose livelihood has depended on the approval of
mining operations, worldwide--who shows how the current mining proposal
being advocated by the Pebble Partnership and under review by the U.S.
Army Corps of Engineers, is a sham. This testimony demonstrates what I
have been hearing all along--that this ``smaller, smarter mine'', as
Mr. Collier describes it, is not economically feasible--and actually
starts with an estimated negative net present value of $3 billion.
Now, I don't run a multibillion-dollar company, but if I did, I am
not sure how long I would remain employed if I started $3 billion in
the red. But, I also understand that Mr. Collier may not have to worry
about this, because the press is reporting that if he is able to get
approval of the permit for this mine, he will personally walk away with
a $12 million performance bonus.
But a $3 billion shortfall in revenue does require us to question
the viability of this project, its ability to protect this environment
over the long run, or the motives of the mining company on the need to
expand the scale of mining to make this a profitable endeavor.
I also want to express my deep disappointment with the Corps of
Engineers on their track record of review for this project to date. If
the Corps continues its current path to rush approval of this project,
I believe this will be a stain on the reputation of this proud
institution, which continues to serve as our nation's premier water
resources agency.
I would remind the Corps of the words of the former head of EPA,
Scott Pruitt, who said `` . . . It is my judgment at this time that any
mining projects in the region likely pose a risk to the abundant
natural resources that exist there. Until we know the full extent of
that risk, those natural resources and world-class fisheries deserve
the utmost protection.''
When you are on the opposite side of Scott Pruitt--who was no
friend of the environment--you have to wonder.
I recognize the tremendous political pressure the leadership of the
Corps must be facing from this administration to rush approval of this
project, but I call on the Corps to start upholding its independent,
statutory responsibilities, and stop acting like a cheerleader for this
project.
This Administration is once again putting private industry wants at
the top of its agenda, risking the health and safety of our nation's
ecosystem, the ancestral home for Alaska Natives, and the destruction
of the nation's most productive salmon habitat.
We need to stop this shell game and understand that a process that
purposefully looks at only part of the picture, misses the entire view.
The end goal for the Pebble Limited Partnership isn't for one-
eighth of the deposit, it is for 100 percent of the deposit. That is
what the EPA and the Corps need to review--and reviewing anything less
is a disservice to the American people.
Mr. DeFazio. So with that, I yield back, Madam Chair. Thank
you for this important hearing.
Mrs. Napolitano. Thank you, Mr. DeFazio.
I now call on Mr. Sam Graves, the ranking member of the
full committee.
Mr. Graves of Missouri. Thank you, Chairwoman Napolitano
and Ranking Member Westerman. I appreciate that.
I know the issue of Pebble Mine is charged, and I respect
the views of our witnesses here, but I also understand that the
permit application is currently going through a very robust
environmental impact analysis, just as any other large-scale
project would. I think we should let that process play out.
With that, I would like to yield the remainder of my time
to the distinguished gentleman from Alaska, Mr. Young, whose
district this lies in.
Mr. Young. Thank you, Congressman Graves, and I want to
associate my remarks to Mr. Westerman, and I would also like to
ask for unanimous consent to yield to the committee my written
statement. OK.
I guess I might say that I have never been for or against
this project, but I am for the process. And I looked at the
witness panel. There is not one on the witness panel that is a
scientist, or is an engineer or a Federal witness. If we want
to talk about the permitting process, we ought to have--Madam
Chair, we ought to have a witness from the EPA. We ought to
have the Corps of Engineers. We ought to listen to the science.
We are going to hear a lot of opinions as it directly affects
them, but not the science.
And people forget, Madam Chair, that this is State land. It
is not Federal land. The Statehood Act has the right to choose
the 103 million acres of land, and they chose this land. They
put it up for discovery, and it was discovered. Under the
discovery clause, you have a right for exploration. Under the
right of exploration, you have a right for development if you
go through the permitting process.
This hearing today, and what I have seen recently on TV
shows, politicizes this issue. You are not listening to the
science. You are saying a lot of what ifs, can and cannot,
should we or shouldn't we? This committee has a responsibility
to review those that are directly involved, not those that may
be affected by it. It is about science.
I worry about it because, very frankly, I agree with Mr.
Westerman. We have got other things we should be doing in this
committee, including passing a transportation bill. I hope we
don't start out a hearing like this one, with a transportation
bill that becomes partisan.
This is a State issue, and yet, here we are saying we are
going to take land you can't develop. We put it up by hearing
or by an agency. EPA did a preemptive strike under the Obama
administration. A preemptive strike. Didn't follow the process,
didn't follow science.
It always interests me, Madam Chair, that my side and your
side of the aisle always wants to say NEPA is perfect. We
mustn't attack it. We must use science. But you are not hearing
any science from this side of the aisle, from that group of
witnesses.
You may hear from somebody who worked for the agency once
for awhile, no longer employed there, has a fixed opinion. That
is not science. So I am going to sit here and listen to all
this testimony, and, respectfully, believe some things people
have, but I will tell you, unless we do and follow the rules,
any other time there is anything to be done in the State of
Alaska, there is a tendency for everybody in the lower 48 that
figure they can do what is best for the State. They know better
than anybody else. There is a tendency to have that feeling
that we are going to take care of Alaska from Alaskans. This is
a State issue. Once you step over that line, that goes for some
of the witnesses here today, the Federal Government gets
involved in your background, in your business, then you are
going to have Big Brother on your shoulder all the time. I want
to believe the United States of America, not the United States
of the Federal Government.
Mr. Chairman, this isn't a hearing, I don't think, which is
as important as everybody makes it out to be. I would say it is
important to me, because I follow the process. We are not doing
it. We are making presumptive findings without the science, and
I have said all along: if it isn't there, then the State does
not have to issue its permits. Forget EPA. Forget the Corps of
Engineers. The State doesn't have to do it. The emphasis should
be put on the State. They chose the land. They put it up. It
has to be utilized.
So Mr. Chairman, I do thank Mr. Graves for yielding his
time to me, but my written statement will be for the record,
and use my vocal statement too because I feel very strongly
about this. I yield back.
[Mr. Young's prepared statement follows:]
Prepared Statement of Hon. Don Young, a Representative in Congress from
the State of Alaska
Congressman Graves, thank you for yielding and to the committee for
allowing me to speak on this uniquely Alaskan issue. For some reason,
my colleagues in the majority feel that it is their moral imperative to
highlight and politicize issues in my district. It seems that any time
Alaskans want to develop their God-given resources, or even just build
a road, it becomes a Federal case for the left.
I have said from the beginning that I do not have a position for or
against the mine being built. I have always called for a scientific and
evidence-based approach to determine whether the project should be
permitted in the first place. That is the process that is taking place
now, that wasn't taking place before due to the preemptive Obama
administration veto.
I want to make several points on the format and substance of this
hearing.
First, it is difficult for me to fathom why we are holding this
hearing in the first place. This committee has jurisdiction over the
Army Corps of Engineers and their handling of Section 404(c) permits.
If this hearing is supposedly about the process that our federal
agencies are required to follow by the laws that Congress passes, why
then, are there no government witnesses present?
These six majority witnesses and my friends on the other side of
the aisle have given statements and will give testimony questioning the
integrity of the Draft Environmental Impact Statement (EIS), but none
of the witnesses are the scientists or engineers that drafted or worked
on the Draft EIS.
The lack of an unbiased scientific expert on this panel just shows
that this issue has never been about the process but is just an attempt
to sway public opinion and tamper with the ongoing NEPA process.
All of the witnesses have had the opportunity to submit comments on
the Draft EIS, of which I understand there are more than 115,000. If my
Democrat colleagues truly cared about the integrity of due process,
they would want to hear from witnesses who do not champion their anti-
development agenda.
Secondly, I want to address the timing of this hearing and what it
says about the self-serving and selective support for our nation's
regulatory process. Comments on the Draft EIS were due on July 1, 2019.
The Army Corps of Engineers is reviewing those comments and providing
answers to the respective coordinating agencies including the EPA.
Holding this hearing in the middle of the NEPA process to attack the
Draft EIS is nothing more than another political stunt to cast
aspersions and speculation on the outcome of process that is no where
near complete.
It is as if we are in the middle of a surgery and we are asked to
listen to six people who are not doctors, much less the surgeon, try
and predict the outcome for the patient. But because we are taking
testimony that furthers the majority's political agenda, we are forced
to take the time in this committee to hear it and in turn defend the
NEPA process which Congress has set in law.
Regarding the substance of this hearing, there are three critical
points that must not get lost amidst the debate about the potential
impacts of the mine.
First, progressives claim that NEPA, is a bedrock environmental law
in this country. I've heard Mr. Huffman use that exact phrase many
times in the Natural Resources Committee. What specifically is wrong
with the current state of the NEPA process for this project? Let us
complete the science. Let the Army Corps of Engineers use the NEPA
process to complete their EIS. Democrats sing the praises of science--
let the scientific process continue to determine what effect, if any,
this mine would have on Bristol Bay.
It seems that the NEPA process is only infallible and to be
protected at all costs if the Democrats get the outcome they want. If
there is something that needs to be changed in NEPA, then let's have
that debate but not in the context of politicizing this project. What
we cannot have and what I won't stand for is selective outrage about
the NEPA process, only when it serves the left's antidevelopment
agenda.
Secondly, I understand that there are federal permits required and
that the section 404 process exists. But this project is proposed on
state land that was specifically reserved for mineral and resource
development for decades. Depending on the outcome of the federal permit
process, there will be dozens of state permits that would need to be
awarded. Primacy on this matter should rest at the state level, where
the people are closest to the issue. Alaska is well equipped to decide
what is best for Alaskans. During the Obama administration the 404
process was used to inject the opinions of bureaucrats in Washington,
D.C. on Alaskans. That was wrong then and any similar attempts today,
such as this hearing, are equally wrong.
Lastly, I want to talk about the pitfalls of allowing a politically
motivated anti-development agenda dictate how and when the federal
government utilizes its veto authority to prematurely end the
exploration of resource development projects. The Obama administration
set a dangerous precedent in this case. If the EIS process had been
allowed to take place then, this issue would have likely been settled
by now from a NEPA perspective.
If there is not a commitment to follow the law as written, then a
draconian chilling effect will linger over all future proposed
development projects in Alaska. Alaska needs to continue balancing
economic development with environmental stewardship. Impugning the NEPA
process in this case will help ensure that future projects are never
proposed, cutting off economic prosperity for future generations of
Alaskans.
Nothing has happened yet, and we owe it to all parties and the
future of Alaska to make sure we duly consider balancing the need for
economic development with environmental stewardship.
I thank Mr. Graves again for yielding and look forward to hearing
the witness testimony.
Mrs. Napolitano. Thank you, Mr. Young. I now ask unanimous
consent for the following statement to be entered into the
hearing record: A statement from Michael Jackson, a
fisherperson from Washington State, at the request of Mr.
Larsen.
[The information follows:]
Statement of Michael Jackson, Bristol Bay Driftnet Permit Holder,
FV Kelly J, Submitted for the Record by Hon. Rick Larsen
I would like to respectfully submit the following testimony
regarding the proposed Pebble Mine project in Bristol Bay, Alaska. I am
a Bristol Bay salmon commercial fisherman based in Bellingham,
Washington and have been fishing in Bristol Bay since 1985. I am also
on the Board of Directors for the Bristol Bay Regional Seafood
Development Association, which represents Bristol Bay's driftnet permit
holders. The proposed Pebble Mine threatens a sustainable industry that
provides good-paying, renewable jobs to thousands of Americans like
myself. I am deeply concerned with how the Trump Administration is
handling the Pebble project's permitting process. Since day one this
process has been rushed and ignores the well-documented science showing
that the Pebble Mine would cause irreversible harm to Bristol Bay's
salmon fishery. I urge you and your colleagues to do everything in your
power to stop this corrupt permitting process from moving forward any
further. My livelihood and thousands of others depend on it.
I first started fishing in Bristol Bay as a crewmember. I had
fished in many different areas in Alaska in many different fisheries,
but Bristol Bay immediately stood out as unique to me is so very many
ways. Dangerously quick currents brought about by ridiculously high
(over 33 feet) tidal extremes, put my safety protocols to the test
immediately. THAT impressed me. I had fished the Gulf of Alaska and the
Bering Sea, longlining, crabbing, and seining, harvesting the bounty of
the sea efficiently and sustainably, but nothing prepared me for the
sheer volume of sockeye salmon that could fill my net with 20,000
pounds of fish in just a few minutes. Bristol Bay's sheer abundance
still holds me in awe. I had--and still to this day--have never seen or
experienced anything like it. Bristol Bay is Nature at the absolute
peak of perfection, with sustainability, volume, and beauty on full
display and available for all to experience. I have raised two sons, 26
and 23, to join me in the driftnet fishery in Bristol Bay. They operate
their own boat, own their own permits, and will return every season to
Bristol Bay, not unlike the migrating sockeye salmon that they come to
harvest. Bristol Bay is not just a place where my family goes to make a
living though. Bristol Bay is a place where we as a family come to make
a Life; a life that I cannot imagine living without the ability to
participate in this fishery.
Part of why I fish in Bristol Bay instead of where I live in
Washington is because Bristol Bay is the last place left in the world
where we have this muchsalmon abundance. Salmon fisheries elsewhere are
either gone completely or declining. Bristol Bay is the largest and
most valuable wild salmon fishery left in the world. In the last few
years, Bristol Bay has seen record-breaking runs with the second
largest commercial harvest on record in 2019 \1\. In an average year,
Bristol Bay's salmon fishery contributes roughly 50% of the world's
sockeye salmon and generates $650 million in income and $1.5 billion in
economic activity \2\. The commercial fishery in Bristol Bay has
existed for over 130 years and today provides more than 14,000 jobs,
including 8,000 fishing jobs \3\.
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\1\ Alaska Department of Fish & Game: www.adfg.alaska.gov
\2\ Knapp et al. University of Anchorage: Institute of Social and
Economic Research. April 2013. The Economic Importance of the Bristol
Bay Salmon Industry.
\3\ Wink Research and Consulting. 2018. Economic Benefits of the
Bristol Bay Salmon Industry.
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The economic impacts of Bristol Bay's salmon fishery extend well
beyond the Bristol Bay region, making it an important contributor to
our nation's renewable economy. There is a Bristol Bay fishing permit
holder living in nearly all 50 states. The majority of Bristol Bay's
non-Alaska resident permit holders reside in Washington state with 769
commercial fishing permit holders in Washington alone. Combined, \1/3\
of Bristol Bay's commercial fishermen and \2/3\ of its processing
workers live in West Coast states (California, Oregon, Washington). In
addition, the majority of supplies and services used in Bristol Bay's
fishing and processing industries are purchased in Washington. The
Puget Sound region in particular has deep ties to the Bristol Bay
fishing industry given that the majority of Bristol Bay's major seafood
processors are based in the Seattle area and a substantial percentage
of Bristol Bay's salmon products are shipped to Seattle for
reprocessing and distribution to other markets around the country and
world \4\.
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\4\ Knapp et al., The Economic Importance
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All of this is at risk because a foreign junior mining company is
trying to take advantage of the current political climate and push
forward an economically unfeasible mine at the expense of our country's
salmon, jobs, and economy. I'm concerned and confused about why the
Trump Administration would advance this project despite its lack of
economic feasibility and despite the 14,000 American jobs at stake.
Bristol Bay's salmon fishery is a renewable economic engine, and one
that cannot be replaced. I'm disappointed by how the U.S. Army Corps of
Engineers is overseeing the current permitting process, and in
particular the lack of scientific rigor and accuracy in its Draft
Environmental Impact Statement (DEIS). The Army Corps' DEIS is fatally
flawed and fails to evaluate the true scale and scope of the potential
impacts that the proposed Pebble project would have on Bristol Bay and
its wild salmon populations. Ultimately, this is because the DEIS is
based on a false, ``smaller'' mine plan even though the Army Corps
itself says in the DEIS that expansion of the project is ``reasonably
foreseeable.'' In addition, the DEIS downplays many of the direct and
indirect impacts outlined in the EPA's 2014 peer-reviewed Bristol Bay
Watershed Assessment and other scientific literature.
Of particular concern to me and my fellow fishermen are the
following information gaps and inaccuracies in the DEIS regarding
potential impacts to Bristol Bay's salmon fishery:
The risk of a potential tailings dam failure, which would be
catastrophic for the Nushagak River--one of Bristol Bay's most
productive salmon river systems. The Army Corps has yet to
conduct a thorough, long-term assessment of a potential
tailings dam failure and its impacts, which is inexcusable
given other recent tailings dam failures and the threats that
such a failure could have to the communities and industries
that are downstream. Because of these risks, Bristol Bay's
drift net permit holders took it upon themselves to hire
independent earth scientist, Dr. Cameron Wobus, to model
potential tailings dam failure scenarios and their potential
impacts. His analysis found that it is likely that Pebble's
tailings material would reach Bristol Bay \5\ and reinforces
that a tailings dams failure at the Pebble project would have
far reaching and long-lasting impacts on the Nushagak River
drainage and deserves further analysis by the Army Corps and
Pebble Limited Partnership.
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\5\ Lynker Technologies, LLC. 2019. A Model Analysis of Flow and
Deposition from a Tailings Dam Failure at the Proposed Pebble Mine.
The DEIS does not adequately look at the immediate or long-term
effects of a potential accident or contamination at the Pebble
Mine site on the value and marketability of Bristol Bay's
salmon. Instead, the Army Corps makes a sweeping assumption
that a change in market reception of Bristol Bay's salmon is
not likely to occur (DEIS 4.6-2). This assumption is ill-
founded and is in direct contrast to the Pacific Seafood
Processors Assocation's conclusion that, ``we know from past
experience, that actual or perceived damage to the purity of
the waters or fish of the Bristol Bay region would harm the
marketability of Alaska salmon.'' \6\
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\6\ Pacific Seafood Processors Association. June 2017. Position on
the Pebble Mine Project.
The DEIS does not include a post-operation reclamation plan or
wastewater treatment plan. We understand that this is due to
the fact that the PebbleLimited Partnership has not submitted
this information to the Army Corps or the State of Alaska,
which we find unacceptable and questionable given that this is
standard practice in the industry. Because this project will
require treatment and monitoring in perpetuity, this
information must be made available in the DEIS for the public
---------------------------------------------------------------------------
to review and comment on.
In addition to these information gaps and inaccurate assumptions,
the DEIS does not account for the hundreds of millions of dollars in
investments made by Bristol Bay's permit holders and seafood
processors, nor does it evaluate the potential impacts that the Pebble
project could have on the value of these investments and assets. Every
Bristol Bay permit holder invests hundreds of thousands of dollars to
participate in the Bristol Bay commercial fishery, requiring loans that
depend on a consistent supply of salmon and strong market prices. Any
loss in fishing income would create financial hardship for these
fishermen, especially younger fishermen who are just getting
established.
Despite our repeated questions and requests for more information,
the Army Corps continues to push the Pebble Mine forward and is on
track to make a decision in just a matter of months. It's clear that
this process is being driven by a foreign mining company and their
political agenda. That's not how a permitting process should work or
how our federal agencies should operate. The integrity of this
permitting process has been compromised and I have no confidence that
the Army Corps is capable of upholding its responsibilities under the
National Environmental Policy Act. This permitting process should be
testing Pebble's assumptions and promises, not taking the Pebble
Limited Partnership at its word. Americans deserve a rigorous
permitting process that's transparent, rigorous, and based on the best
available science and information.
Protecting Bristol Bay makes sound economic sense, and it's also
the responsible and right thing to do. As someone who has been able to
benefit greatly from this renewable resource, it is my personal duty to
protect it for my sons and future generations. Unfortunately, given the
Trump Administration's aggressive permitting schedule, we are running
out of time and only have a few months before the Army Corps makes its
final decision. Therefore, I ask that you please act quickly to restore
scientific credibility to this permitting process and not allow the
Trump Administration to approve this irreversible project that would be
an economic disaster for our nation.
Thank you for your time and for taking my testimony into your
consideration.
Mrs. Napolitano. We will proceed to hear from our witnesses
who will testify. Thank all of you for being here. And on the
panel, we have Mr. Dennis McLerran, Cascadia Law Group; Mr. Tom
Collier, chief executive officer, the Pebble Partnership; Mr.
Richard Borden, owner of Midgard Environmental Services LLC;
Alannah Hurley, executive director, United Tribes of Bristol
Bay; Brian Kraft, owner, Alaska Sportsman's Lodge; Mark Niver,
fisherman, Surrender Salmon Company; and Anisa Costa, chief
sustainability officer, Tiffany & Co.
Without objection, your statements will be entered in the
record. All witnesses will have 5 minutes. You will get the
warning at 3, and yellow if you follow that.
Mr. McLerran, you may proceed.
TESTIMONY OF DENNIS J. McLERRAN, ENVIRONMENTAL ATTORNEY,
CASCADIA LAW GROUP; TOM COLLIER, CHIEF EXECUTIVE OFFICER,
PEBBLE PARTNERSHIP; RICHARD K. BORDEN, OWNER, MIDGARD
ENVIRONMENTAL SERVICES LLC; ALANNAH HURLEY, EXECUTIVE DIRECTOR,
UNITED TRIBES OF BRISTOL BAY; BRIAN KRAFT, OWNER, ALASKA
SPORTSMAN'S LODGE; MARK NIVER, BRISTOL BAY DRIFTNET PERMIT
HOLDER, FV SURRENDER; AND ANISA KAMADOLI COSTA, CHIEF
SUSTAINABILITY OFFICER, TIFFANY & CO.
Mr. McLerran. Good morning, Chairwoman Napolitano, Chairman
DeFazio, Ranking Member Graves, Ranking Member Westerman, and
members of the committee. I am Dennis McLerran. I am the former
EPA regional administrator during the Obama years.
Back in May of 2010, several federally recognized Tribes,
and some of the folks in this room, presented EPA with
petitions asking that we use our congressionally granted
section 404(c) authority under the Clean Water Act. They
petitioned us with some very heartfelt and legitimate concerns
about what the impacts of large-scale mining on the Bristol Bay
watershed might be. When we heard those concerns from those
folks, we spent many months deciding how to respond to those
petitions. They wanted us to use section 404(c) of the Clean
Water Act. We decided that instead of immediately using section
404(c) of the Clean Water Act, we would do a scientific
assessment, an ecological risk assessment of the risks to the
watershed and to the salmon resources in the watershed from
large-scale mining.
And as Madam Chairwoman and Chair DeFazio have said, this
is a very rich area. The Bristol Bay watershed supports over
14,000 jobs from fishing, full- and part-time. It is a very
robust fishery that has been a sustainable fishery, and it is
an area with one of the last intact salmon-based cultures in
the world, and so the petitions to us were very heartfelt.
When we get the science, we committed to a very expansive
and extensive public process around that. We reviewed the best
available science from fisheries; scientists have been working
in the watershed for over 30 years. We reviewed all the
literature. We brought together a group of very talented
scientists to prepare the watershed assessment. We released two
drafts of the watershed assessment for public comment. We had a
large series of public meetings in Alaska. We received over 1
million public comments on the science that was done. In
developing the assessment, we also did an extensive independent
peer review of the science that was done. So we followed EPA's
and OMB's highly influential scientific assessment guidelines
and independently peer reviewed the work in two rounds.
The Bristol Bay assessment found that the Bristol Bay
watershed, while enormously productive, was also enormously
vulnerable to the impacts of large-scale mining. And the owners
of the Pebble Mine claims have, in their own report filed with
the Securities and Exchange Commission in 2011, identified the
pathway there for a mine of unprecedented scope and scale in
North America. The Bristol Bay assessment found that the
watershed, while enormously productive, ecologically is deeply
vulnerable to the impacts of large-scale mining. The assessment
concludes that a large-scale mine at the Pebble site would pose
risk to salmon and to communities in the Bristol Bay watershed
that have depended on the salmon for thousands of years.
And EPA ultimately decided once that 3-year process of
developing the science and getting extensive public comment on
it, that the impacts of the Pebble Mine would create
unacceptable adverse impacts on fishery resources unless limits
were placed on the scale of mining at the site. And EPA issued
a proposed determination that would have protected Bristol Bay
and placed limits on the scope and scale of the mining, the
amount of stream-miles that could be lost, the amount of
wetlands and lakes and ponds that could be destroyed. And that
process did not prevent Pebble from applying for a permit with
the Corps of Engineers. It was not a veto, and it did leave the
pathway open for a Corps permit application.
However, despite Pebble having come to me multiple times,
and come to Members of Congress and the public and saying they
were going to file a permit application likely during the
pendency of us doing the science, they didn't initiate that
permitting process until 2018. And the Corps of Engineers, as
has been mentioned in an extraordinarily rapid timeframe, has
moved to issue a draft environmental impact statement, a deeply
flawed draft environmental impact statement that has received
adverse comments from U.S. Fish and Wildlife, from EPA region
10, from many members of the public.
So we felt that we did very strong science. I feel that the
Corps of Engineers has not done justice in using NEPA in the
appropriate way here. They have done a very fast and slipshod
process that is deeply flawed.
In conclusion, the Pebble Deposit is located at the
headwaters of the Nushagak and Kvichak Rivers. They produce 50
percent of Bristol Bay's salmon, which produces 50 percent of
the world's wild sockeye salmon, and this mine would have
significant impacts, and just as importantly, it would open up
the watershed to become a mining district because it would put
in the roads and the infrastructure that would allow other
mines, and there were many other deposits in the watershed that
would be developed.
So, I implore the committee to explore this more deeply,
get the Corps of Engineers through an appropriate process, and
move this forward.
[Mr. McLerran's prepared statement follows:]
Prepared Statement of Dennis J. McLerran, Environmental Attorney,
Cascadia Law Group
Good morning Chairman DeFazio, Chairwoman Napolitano, Ranking
Member Graves, Ranking Member Westerman and Members of the Committee. I
am Dennis McLerran, the former Regional Administrator for EPA Region
10, which covers the States of Oregon, Washington, Idaho and Alaska and
271 Tribal governments within those four states. Today I would like to
describe the work EPA completed regarding the proposed Pebble Mine in
Alaska during my time at EPA and some relevant details regarding the
current status of the evaluation of the Pebble Mine proposal by the
Corps of Engineers. I was at Region 10 from February 2010 until late
January 2017 when EPA prepared the Bristol Bay Watershed Assessment and
later issued a ``Proposed Determination'' to protect salmon resources
within the watershed.
In May of 2010, several federally recognized tribes from the
Bristol Bay watershed in Alaska petitioned EPA to use its Clean Water
Act Section 404(c) authority to restrict the discharge of fill material
from the proposed Pebble Mine. EPA also received similar requests from
a diverse group of stakeholders, while others requested that EPA
refrain from taking action.
The groups that petitioned for EPA's use of Section 404(c)
expressed deep and legitimate concerns that the largest open pit mine
ever proposed in North America would be destructive of the fisheries
within one of the Western Hemisphere's most productive and vulnerable
watersheds.
The economic and cultural value of the Bristol Bay watershed is
immense. Data from the region shows that Bristol Bay fisheries support
about 14,000 full- and part-time jobs and generate over $480 million in
direct economic expenditures and sales. In addition, for over 4,000
years, it has served as a significant subsistence fishery to Alaska
Native people, who are among the last remaining salmon-based
subsistence cultures in the world. For these reasons, EPA took very
seriously the local concerns raised about a mining project that had the
potential for significant environmental harm to this valuable and
vulnerable ecosystem.
After receiving the petitions, EPA staff and management visited the
watershed and deliberated for months about how to respond to the
requests. We decided not to initiate EPA's Section 404(c) authority at
the time of the petitions. Instead, we wanted to develop a solid
understanding of the watershed and the potential risks of proposed
mining activities to fisheries and native cultures before deciding
whether or not to exercise our authorities.
In February 2011, consistent with Clean Water Act Section 104, I
announced EPA's intent to conduct an ecological risk assessment. The
purpose was to characterize the biological and mineral resources of the
Bristol Bay watershed, to increase understanding of the potential risks
of large-scale mining on the region's fish resources, and to inform
future decisions by government agencies and others related to
protecting and maintaining the physical, chemical and biological
integrity of the watershed.
To help collect, evaluate and summarize information regarding the
Bristol Bay watershed and to assess potential risks to salmon and other
resources, EPA brought in scientists from multiple federal agencies and
also reviewed the best scientific literature available regarding the
Bristol Bay fishery. EPA's Headquarters Office of Research and
Development led the preparation of the watershed assessment along with
a team assembled by Region 10.
Consistent with EPA's authorities under the Clean Water Act, EPA
committed to an expansive public process to provide an opportunity to
engage with all interested stakeholders. For example, EPA consulted
with 20 tribes from the watershed, most of whom supported EPA's
proposed assessment but also with some that did not. EPA also formed an
intergovernmental technical team to get input from federal agencies,
the State of Alaska and tribal governments in the Bristol Bay
watershed.
EPA also released two drafts of the assessment for public comment.
In total, eight public meetings were attended by approximately 2,000
people, and more than 1.1 million comments were submitted. The Pebble
Partnership itself submitted over 1,300 pages of written comments on
the first draft and over 450 pages on the second draft and participated
in the public meetings.
EPA staff, including EPA's Administrator and me, met with Pebble
Executives, state officials and other interested parties to solicit
their input. We even invited the State of Alaska to partner with EPA in
preparation of the scientific assessment.
In addition to creating and maintaining an open and transparent
process, EPA also sought to guarantee that the assessment incorporated
high quality data and that all findings were scientifically sound. In
developing the assessment EPA followed all data quality and peer-review
requirements for a Highly Influential Scientific Assessment, as
outlined by the Office of Management and Budget in the White House.
The Agency also conducted an extensive peer-review with 12
independent experts in mine engineering, salmon fisheries biology,
aquatic ecology, aquatic toxicology, hydrology, wildlife ecology and
Alaska Native cultures. And, at a day-long public meeting in Alaska in
August 2012, Pebble and other stakeholders provided feedback directly
to the independent peer-reviewers. An independent review by EPA's
Inspector General, which was requested by the Pebble Partnership,
confirmed that the Agency followed all applicable processes and
procedures.
Opening of the Pebble Deposit would ultimately result in the
largest open pit porphyry gold and copper mine in North America in one
of the most productive and sensitive intact salmon ecosystems on the
planet. The owners of the Pebble Mine claims have, in their own Wardrop
Report filed with the SEC in 2011, identified the pathway for a mine
unprecedented in scope and scale in North America. The infrastructure
to support the Pebble mine would include transportation into the heart
of the watershed and a gas pipeline and power plant that would open the
surrounding area to creation of a large mining district. Almost half of
the world's sockeye salmon are harvested in Bristol Bay and the Pebble
Deposit is located at a very vulnerable location--the headwaters of the
Nushagak and Kvichak Rivers.
The Bristol Bay watershed assessment evaluated several different
mining scenarios for the Pebble Deposit. Two of the scenarios were
based on mining plans filed with the Securities and Exchange Commission
(SEC) in the Wardrop Report prepared by consultants for Northern
Dynasty Minerals, the owner of the Pebble mining claims. A third mining
scenario was added to the assessment based on peer-reviewer's comments
that the evaluation should consider a first phase mine that would be
based on the average size of porphyry gold and copper mines worldwide.
The Bristol Bay assessment found that the Bristol Bay watershed,
while enormously productive ecologically, is also deeply vulnerable to
challenges posed by the construction and operation of a large mine at
the Pebble Deposit. The assessment concludes that a large-scale mine at
the Pebble site would pose risks to salmon and the communities that
have depended on the salmon for thousands of years.
Based on the mine sizes evaluated, EPA estimated that from 24 to 94
miles of salmon-supporting streams and 1,300 to 5,350 acres of
wetlands, ponds and lakes would be destroyed. And extensive quantities
of mine waste, leachates and wastewater would have to be collected,
stored, treated and managed during mining operations and long after
mining concludes.
EPA ultimately decided that the impacts of mining at the Pebble
Deposit would create unacceptable adverse impacts on fishery resources
unless limits were placed on the scale of mining at the site. EPA
Region 10 proposed use of Section 404(c) of the Clean Water Act to
place those limits. Section 404(c) specifically authorizes EPA to
prohibit the specification of--or deny or restrict the use of any
defined areas as a disposal site for dredged or fill material whenever
the Administrator determines that such disposal would cause
unacceptable adverse effects. The Proposed Determination would have
protected Bristol Bay and placed limits on the amount of stream miles,
wetlands, lakes and ponds that could be destroyed based on the smaller
mining scenario added during the peer review process.
EPA's watershed assessment process and proposed 404(c) action did
not prevent the Pebble Partnership from applying to the U.S. Army Corps
of Engineers for permits. Both the watershed assessment process and the
404(c) procedural rules provided numerous opportunities for public
comment and interaction. At numerous times before and after
commencement of the watershed assessment process, the Pebble
Partnership informed EPA that an application would be filed for a Corps
permit during the timeframe of the assessment process. However, Pebble
did not file a permit application until after completion of the
assessment and issuance of the Proposed Determination.
The U.S. Army Corps of Engineers permitting process was not
initiated by Pebble until 2018. The Corps of Engineers, in an
extraordinarily rapid timeframe, issued a Draft EIS for public comment
in March 2019. The Corps has received extensive negative comments on
the analysis and content of the Draft EIS from the U.S. Fish and
Wildlife Service, EPA Region 10, members of Congress and many others.
Some key flaws of the Draft EIS are that the process for preparation
has been inappropriately accelerated and that the analysis is
superficial and not based on plans that provide sufficient detail for
proper evaluation. The primary analysis under the Draft EIS is for a
much smaller mine than is likely to be ultimately pursued at the site
based on representations Northern Dynasty has made publicly and in the
Wardrop Report filed with the SEC. Later, larger mine phases would have
much greater adverse impacts on fishery resources.
The DEIS also indicates that the mine proponents would use
compensatory mitigation to address adverse impacts on fisheries but
does not propose any specific plans or projects for such mitigation.
Based on the discussions EPA had with fisheries scientists who have
studied the Bristol Bay fishery for many years, compensatory mitigation
would not be effective in this largely pristine watershed. Compensatory
mitigation is a technique normally applied to restore habitat that has
been disturbed and there would be few, if any, opportunities for such
projects in a largely pristine watershed.
In addition, EPA has now withdrawn the Proposed Determination from
EPA Region 10 under Section 404(c) of the Clean Water Act. This comes
after now departed EPA Administrator Scott Pruitt initially proposed
withdrawal of the Proposed Determination in 2017 and then reversed
course after receiving extensive negative public comments on the
proposed withdrawal. Only recently, after President Trump reportedly
met with Alaska Governor Mike Dunleavy, did EPA Headquarters direct EPA
Region 10 to consider withdrawal of the Proposed Determination. The
current Regional Administrator for EPA Region 10 quickly withdrew the
Proposed Determination after a Headquarters memo directing
reconsideration. The withdrawal action was taken without any
opportunities for public comment or due process in a manner totally
inconsistent with how past work regarding Bristol Bay has been
conducted.
In conclusion, the Bristol Bay watershed is a uniquely productive
and fragile resource. The Pebble Deposit is located directly at the
headwaters of the Nushagak and Kvichak Rivers, which produce nearly 50
percent of the salmon in the Bristol Bay system. Mining at the scale
planned for Pebble at the extremely sensitive location of the mineral
deposit would result in significant harm to the world-class fisheries
of the watershed. And, just as importantly, would open the central
portion of the watershed to become a mining district with Pebble's
development of road access, a power plant and other mining
infrastructure. Northern Dynasty Minerals has aggregated a large area
of mining claims beyond the Pebble Deposit and there are many other
undeveloped mineral deposits in the unprotected area between Lake Clark
National Park and Wood-Tikchik State Park. Loss of one of the world's
last remaining salmon strongholds is simply unacceptable and that is
why EPA during my tenure decided to take action to protect Bristol Bay
fisheries. The mining proposed at the Pebble Deposit requires a better
process of evaluation than what has been done so far under the Corps of
Engineers' Draft EIS. We are spending hundreds of millions of dollars
every year in attempts to recover endangered salmon and restore salmon
habitat in the Pacific Northwest and California and we should not allow
the mistakes of the past to be repeated in Bristol Bay.
Thank you for the opportunity to present this testimony today.
Mrs. Napolitano. Thank you, sir.
Next, we will have Mr. Tom Collier. Your testimony, please.
Mr. Collier. Thank you, Madam Chairman. Members of the
committee, thank you for the opportunity to address you today
on this important issue.
For over 15 years, there has been a raging debate about
whether you can build a copper mine 200 river-miles away from
Bristol Bay without doing significant damage to the salmon
fishery in Bristol Bay. But today, I am here to tell you that
that debate is now over. In February, the Corps of Engineers
issued, for the very first time, an independent, transparent,
comprehensive review of all of the science and concluded
unequivocally, and repeatedly, that building Pebble Mine will
not cause any damage to the fishery in Bristol Bay. That is the
conclusion it reached.
Now, I wasn't surprised that that conclusion was reached
and not because of the reason mentioned by the chairman of the
committee. It is because we changed the project that we
submitted. The project that was submitted was de-risked. We
listened to the concerns that had been expressed by the
agencies, and we listened to the concerns that were expressed
by the opponents, and I personally managed a total and complete
redesign of this project. It is smaller. There is no cyanide.
It is out of the Upper Talarik Creek. There are no waste rock
piles, completely redesigned the tailings facilities, and
redesigned the water management system. This project is
dramatically different from anything that was looked at by EPA
in its Bristol Bay watershed assessment.
What we are really here today, I think, to talk a lot about
is EPA's decision to withdraw the proposed determination. And
the question is, was that an appropriate decision for them to
make? I not only think that decision was appropriate, I think
it was outrageous that the proposed determination had ever been
issued in the first place for a bunch of reasons. But let me
just talk about one. I have listed many of them in my written
statement.
The Bristol Bay watershed assessment was a predetermined
outcome, and the process was manipulated to reach that outcome,
and I am not the only one that has reached that conclusion.
That conclusion's been reached by a number of folks that have
taken a strong look at it. And there are lots of examples of
this having been done, but let me just give you one. It is my
favorite.
When the senior Senator from Alaska, Lisa Murkowski, wrote
a letter to EPA after Mr. McLerran had decided to initiate the
Bristol Bay watershed assessment, she congratulated the agency
for finally agreeing to do an extensive study of the science so
that any decision with respect to vetoing or not vetoing the
mine could be based upon science, and that letter was
circulated among the senior officials in the Department of EPA.
And then one of them sent an email to another, and that email
said, quote, ``Obviously, that's not what we have in mind,''
closed quote. In other words, they had already made up their
mind. They knew what they were going to do. They were going to
veto this project, and they were going to do a scientific study
to justify the veto, and that is what we did.
But that is not the basis for the withdrawal that occurred
in July of the proposed and preemptive veto of this project.
The basis of that withdrawal is process. You need to follow the
process. We have a statute. The statute says do an EIS. They
didn't do an EIS. In fact, at about the same time Mr. McLerran
was deciding to do the first ever in the history of the Clean
Water Act, preemptive veto of a major project, his colleague,
in region 9, was faced with a request to do the same thing; and
his colleague declined to do a preemptive veto of the Rosemont
mining project in Arizona. And what he said was, I want to have
all the information on the table before I make a decision. I
want to have an EIS on the table. I want to see the applicant's
permitting process, because I think it would be, and these are
his words, impossible to make such a decision without having
all that information on the table. And that is what EPA did,
and that is the reason the proposed veto, preemptive veto, was
withdrawn. Thank you.
[Mr. Collier's prepared statement follows:]
Prepared Statement of Tom Collier, Chief Executive Officer, Pebble
Partnership
Good morning. Mr. Chairman and members of the Subcommittee, my name
is Tom Collier, and I am the CEO of the Pebble Limited Partnership,
based in Anchorage, Alaska. I'm grateful that you included me as a
witness in this important hearing.
For over 15 years, a battle has been fought over whether building a
copper mine over 200 river miles from Bristol Bay in Alaska would
significantly damage the salmon fishery in that region.
The debate is now over.
In February of this year, the U.S. Army Corps of Engineers (``the
Corps'') issued its draft Environmental Impact Statement (DEIS) for the
proposed Pebble Mine and unequivocally concluded that the project will
not harm the Bristol Bay fishery.
We were confident that the Corps would reach this conclusion. Why?
This conclusion was the result of several factors: First, the citizens
of Alaska voiced concerns over the Pebble Project, and we have listened
to them. Second, we have taken several steps to de-risk our mining
plans. And finally, the Corps has led a process that to date has placed
science over politics. It is certainly not because, as some have
suggested, the Trump Administration orchestrated any sort of political
fix. There is not a shred of evidence showing any inappropriate conduct
in this process, which stands in stark contrast to what was uncovered
from the EPA of the previous administration.
I would like to talk about what the Pebble Partnership has done to
improve its plans and dispel some of the myths associated with the
Corps' work to date. Pebble has planned a smaller, smarter mine. In
response to concerns voiced by various stakeholders, we have reduced
the mine size to a footprint that even EPA's rigid Proposed
Determination would nearly have allowed to proceed through the NEPA
permitting process. The Proposed Determination was based on three
hypothetical mining plans of differing sizes and stated that EPA would
not object to an application being considered for permitting a mine
smaller than the smallest hypothetical EPA mine. Pebble's new mine, at
an equivalent footprint of just 5.2 square miles, is 75% smaller than
the largest mine in the Proposed Determination, 48% smaller than the
medium mine, and slightly larger than the smallest mine evaluated. A
significant factor in reducing Pebble's footprint is the elimination of
permanent waste rock storage on the surface, which further
substantially reduces post-closure water management requirements.
In response to public concerns, Pebble has also committed to using
zero cyanide, thus there will be no secondary gold recovery. To be
clear, cyanide is used safely at industrial facilities and mines
throughout the world, including in Alaska. But Pebble has heard the
community's concerns and has completely eliminated spill and post-
closure cyanide risks. This means that Pebble is walking away from 15%
of the gold that, at this time, cannot be recovered without using
cyanide.
In addition, Pebble has incorporated a drained storage method for
its bulk tailings, eliminating concerns that a disaster such as that
which occurred at Mt. Polley could happen here. Some Pebble opponents
have falsely claimed that the firm designing Pebble's tailings storage
facility, Knight Piesold, also designed the failed TSF for Mt. Polley.
In fact, although Knight Piesold designed the original facility, they
later left the project, after which the design was radically altered
with weaker, steeper slopes used for tailings storage.
The operator at Mt. Polley permitted excessive water storage, far
exceeding what Knight Piesold had designed originally. David Chambers
of the Center for Science in Public Participation, who has for years
opposed Pebble, even admitted that ``if the original design had been
followed [i.e., Knight Piesold's design], the failure would not have
occurred'' at Mt. Polley. Pebble's state of the art, ``buttressed flow-
through embankment'' design will minimize water storage, maximize
stability, facilitate dry closure, and diminish the need for long-term
water treatment.
Pebble has also developed state-of-the-art methods for dealing with
potentially acid-generating (``PAG'') tailings and waste rock. They
will be stored subaqueously, preventing oxidation of potentially
reactive materials. They will be stored in a fully lined tailings
storage facility. Upon closure, PAG tailings and waste rock will be
transferred to the former open pit, and this permanent subaqueous
storage further prevents oxidation. There is thus no risk of PAG
tailings being released into the environment.
The Pebble Mine will feature an optimized water management strategy
with the potential to have a positive impact on some fish habitats.
Based on more than 75 years of high-quality hydrological records,
Pebble has designed a system with enhanced management capacity to
address both extreme climate events and long-term climate variations.
The water management system will have multiple, redundant environmental
safeguards and will meet the most stringent water quality guidelines.
Pebble will utilize strategic water releases designed to optimize
downstream fish habitat conditions. Unlike the scenarios analyzed in
the Bristol Bay Watershed Assessment and Proposed Determination,
Pebble's permit application calls for no mine facilities in the Upper
Talarik Creek or Kvichak River watersheds. Mine development will occur
only within two small creeks within the Nushagak River drainage: the
North Fork Koktuli and the South Fork Koktuli.
The NFK and SFK produce just 0.08% of Bristol Bay sockeye. The area
streams contribute negligible salmon habitat relative to the entire
watershed. Habitat availability is not a limiting factor for Bristol
Bay sockeye or Chinook.
One of my fellow panelists today, former EPA Regional Administrator
Dennis McLerran, has called Pebble's permit application the ``camel's
nose under the tent,'' which I suppose means that he believes that
Pebble plans on shoehorning in a larger project despite the fact that
we have scaled back the footprint in the mine plan currently before the
Corps of Engineers. I have several responses.
First, I believe it shows the level of desperation that the Pebble
opposition has reached. Think about it: to oppose this permit
application, they are forced to argue that it must in fact be far
different than what is actually proposed. In other words, they are
struggling to find problems with what is currently pending before the
Corps.
Pebble has no current plans, in this application or in any other
way, for expansion. If expansion did become feasible, new permits would
be required. The permit applicant would have to go through the same
rigorous procedure that Pebble is now going through. Any concerns with
scope or environmental risk can be addressed in that new permitting
process. If the Corps grants Pebble's current permit application,
nothing in that permit suggests a carte blanche to expand. Any future
mining projects in the area would therefore be evaluated on their own
merits based on then-existing conditions when and if future
applications are submitted to the relevant permitting agencies.
The Corps' EIS and NEPA processes to date have been comprehensive
and complied with all statutory requirements. Those calling this
process ``rushed'' are clearly unaware of how these decisions work.
Charts 1 and 2 demonstrate that the process has been anything but
rushed. In length of comment period and draft EIS itself, the Corps'
work here has been thorough, transparent and deliberate, and several
major projects went through this same process even faster. For example,
as the chart shows, the Pogo, Kensington, and Red Dog Mines, as well as
several major oil and gas projects in Alaska, all received major
federal permits within about three years.
Haile Mine: the EIS process for the Haile Mine in South
Carolina began July 2011, and the FEIS was published less than three
years later in June 2014.
Pogo Mine: In August 2000, Teck-Pogo Inc. applied for a
Section 404 permit for a proposed underground cut-and-fill gold mine on
State of Alaska-owned land in the Goodpaster River Valley. EPA, in
close consultation with the USACE, published a Draft EIS in March 2003,
then a final EIS in Sept. 2003--three years and a month after the
application.
Kensington Mine: In 2001, Coeur Mining redefined the
scope for its development of an underground gold mine within the
Tongass National Forest outside of Juneau. This necessitated a new NEPA
review, which was completed three years later in December 2004.
Chart 1
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chart 2
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Red Dog Mine: EPA prepared the Supplemental EIS for the
expansion of the Red Dog Mine into the Aqqaluk deposit in northwest
Alaska. The permitting process started in mid-2007 and the EIS was
finished during Fall 2009, taking just over two years. USACE was a
cooperating agency.
Point Thomson: The Corps was the lead agency for the EIS
for the development of ExxonMobil's Point Thomson oil facility on the
North Slope of Alaska. The EIS process began in late 2009 and the Final
EIS was issued mid-2012, taking approximately two and a half years.
Furthermore, this is undoubtedly one of the most transparent NEPA
processes ever conducted. All documents and supporting information,
including any Request for Information, are posted to the EIS website in
near real time and accessible to anyone who is interested.
The goal of NEPA has always been to foster better decisions, not
merely add unnecessary process. The Corps' actions here show that it is
committed to quality decision-making. The Corps is closely coordinating
with numerous federal, state, and local agencies, including the State
of Alaska and native Alaskan entities. Two Bristol Bay area tribes are
cooperating agencies for the EIS, and the Corps' is also engaging in
government-to-government consultation with a broad range of tribes in
the Bristol Bay and Cook Inlet areas. To date, the Corps consulted with
24 federally recognized tribes.
Criticisms of the contents of the DEIS are similarly off base.
First, many Pebble opponents have claimed that the DEIS has ignored
several topics, but if they actually reviewed the documents, they would
know that is not the case.
Mitigation
Chapter 5 and Appendix M of the DEIS confirm
significant mitigation measures were incorporated into Pebble's permit
application. More are being included based on input from the DEIS
review.
The DEIS summarizes 70 different Pebble-proposed
mitigation measures.
The DEIS includes a draft Compensatory Mitigation Plan.
The Final Environmental Impact Statement will have a
detailed compensatory mitigation plan with specific mitigation
proposals included.
Climate Change
The DEIS provides a detailed description of different
long-term climate change models and widely varying predictions of
precipitation patterns.
The Corps confirmed the reasonableness of Pebble's mine
design for foreseeable climate change scenarios.
Wetlands impacts
The DEIS describes the affected environment for
wetlands and other waters, which includes vegetated wetlands, ponds,
lakes, streams, rivers, and marine and estuarine waters.
The DEIS also describes potential environmental
consequences from the project on wetlands and other waters.
These assessments were based on USGS Hydrologic Unit
CodeTenth Level watersheds.
The DEIS separately addresses navigable waters and
potential impacts related to transportation and navigation.
The DEIS summarizes the key issues for wetlands and
other waters and the key issues for transportation and navigation.
Additionally, the mine site area has some of the most
comprehensive wetland mapping ever collected for a mining project in
Alaska. This mapping was prepared by independent third-party
consultants.
Fish Populations
The DEIS summarizes and tabulates extensive
quantitative analyses of fish habitat conditions based on widely
accepted flow/habitat modelling methods and supporting intensive
physical, chemical, and biological river survey data.
There is enough information on fish populations in the
record, including that found in Pebble's environmental baseline
documents, to allow a final EIS to address any possible request for
additional analysis.
Risks to Commercial and Recreational Fisheries
The DEIS relies on extensive scientific data and
industry accepted methodologies to provide a robust level of analysis
for such concerns.
For the assessment of impacts to recreational and
commercial fishing, the DEIS covers all river systems hydrologically
connected to the project that contribute to the Bristol Bay salmon
fishery and to the Cook Inlet saltwater environment.
The DEIS's analysis area includes commercial and
recreational fisheries, the Alaska Department of Fish & Game commercial
registration Area T and Area H, the Cook Inlet Management Area
(including associated federal waters) and the ADF&G Statewide Harvest
Survey areas S, T, N, and P.
Under each of the alternatives (and their variants)
proposed for the project, the DEIS examines impacts to commercial
fisheries and recreational fisheries resulting from the mine site,
transportation corridor, port site, and pipeline route.
The DEIS also provides a cumulative impacts analysis on
commercial and recreational fisheries, examining issues concerning
productivity losses, fragmentation of habitat, changes in wetland types
and loss or degradation or ecosystem functions.
Impacts to Wildlife
The DEIS provides a description of the birds,
terrestrial mammals, and marine mammals that are known or have the
potential to occur in the project area.
The DEIS describes the potential environmental
consequences of the project to non-federally listed birds, terrestrial
wildlife, and marine mammals and their habitats.
The DEIS addresses impacts to certain species of
terrestrial wildlife, including the caribou, moose, bear, gray wolf,
and small terrestrial vertebrates.
The DEIS addresses specific species, including the Cook
Inlet beluga whale, humpback whale, fin whale, Steller sea lion,
Northern sea otter, and Steller's eider. Furthermore, the USACE is
consulting with the US Fish and Wildlife Service (USFWS) and the
National Marine Fisheries Service (NMFS).
In addition, for the final EIS, Pebble has prepared
updated biological assessments for species under each agency's
jurisdiction.
Fugitive Dust
The DEIS addresses fugitive dust in various sections,
such as in relation to the spill risk, impacts of the project on water
and sediment quality, potential environmental consequences from the
project on vegetation, and potential impacts on soil.
The DEIS recognizes that the project design
incorporates various measures to minimize fugitive dust. Notably,
Pebble's proposed mitigation measures include the use of locked
containers to transport concentrate from the mill to the ship and
developing a Fugitive Dust Control Plan, which would address fugitive
dust emissions created by construction, operations, and closure
activities.
This plan, which will be in place before construction
begins, ``would describe the equipment, methodology, training, and
performance assessment techniques that would be used for controlling
fugitive dust from site activities and wind erosion.''
Additionally, best management practices would be
implemented for fugitive dust management, and methods would be
established in order to control dust from various sources, including
vehicle travel on unpaved roads, material handling, and wind erosion
from disturbed areas.
Transportation Corridor
The DEIS describes both the existing environment that
would be affected by the transportation corridor alternatives and the
potential impacts on environmental resources.
For example, the DEIS discusses the magnitude and
extent of impacts from construction of the transportation corridor in
relation to wetlands and other waters.
The DEIS also summarizes key issues for wildlife
resources by project component, including the transportation corridor
and describes the potential effects on soils along the transportation
corridor.
Spill Risk
The DEIS specifically addresses the spill risk for the
following substances, which were selected based on their spill
potential and potential consequences: diesel fuel, natural gas, copper-
gold ore concentrate, chemical reagents, bulk and pyritic tailings, and
untreated contact water.
The DEIS also addresses a broad range of topics related
to spills, including the probable outcomes that would result from a
release into the environment, data on past spills, organizations or
plans that may be available as resources in the event of a spill,
mitigation and minimization design features or practices, hypothetical
spill scenarios, and the potential impacts from each scenario.
Environmental Justice
The DEIS includes a significant examination of
environmental justice issues, framing the analysis as an intersection
between various resource topics, including subsistence users,
subsistence resources, cultural practices, socioeconomic
characteristics, and community health, with a potential for both
beneficial and adverse impacts.
The DEIS examines socioeconomic impacts associated with
population, housing, and employment; subsistence resources and harvest
patterns for subsistence-based communities in the EIS analysis area;
project-related impacts to human health (including effects from changes
in air quality and water quality, and concerns about contamination and
subsistence food consumption).
Further, each project alternative is evaluated for
potential disproportionate impacts to minority and low-income
communities at issue.
Subsistence
The DEIS analysis area for subsistence issues includes
the subsistence resources that could be affected by the proposed mine
site, port, transportation corridor and natural gas pipeline corridor
for each alternative presented.
The review includes habitat and migration routes for
subsistence resources, community subsistence search and harvest areas,
and areas used by harvesters to access resources.
The DEIS includes a focus on subsistence activities in
indigenous communities, reviewing traditional ecological knowledge and
the culture value of subsistence in developing the analysis on
subsistence. The analysis also accounts for the cyclical harvest
pattern of seasonal round.
The DEIS goes on to examine the impacts of the project
on subsistence in communities near Iliamna Lake, in the Kvichak and
Nushagak river drainages, and on the southwest coast of the Kenai
Peninsula, assessing the magnitude, geographic extent and duration of
impacts for each project phases.
Geochemistry
The DEIS covers the existing geochemistry of the mine
site.
The DEIS also discusses in detail geochemistry with
respect to surface water quality impacts, tailings releases, and
spilled concentrate.
Pebble's environmental baseline documents further delve
into geochemistry issues.
Second, many critics have claimed that their comments were ignored
or disregarded. Again, if those critics read the DEIS. they would see
that the opposite is true. It is important to remember that the DEIS is
just a draft, and the Corps can and will bolster the document before
releasing a final EIS. The Corps is already gathering substantial data
on many issues to add to the FEIS. For example:
Reclamation: PLP has provided for the Corps a draft
Reclamation and Closure Plan that meets State of Alaska formatting
requirements in support of the FEIS.
Compensatory Mitigation: PLP has developed a revised
compensatory mitigation plan, which the Corps will evaluate for the
FEIS.
Biological Assessment: PLP agreed to develop a revised
biological assessment and work with US Fish and Wildlife Service on
mitigation measures and effects decisions to address Endangered Species
Act concerns.
TSF Design/Spill Risk: The Corps has facilitated
technical working group meetings with cooperating agencies to address
these issues.
Groundwater Impacts: Pebble and its contractors have
developed an updated groundwater model, which is now being utilized to
generate data in response to a request for information from the Corps.
Wetlands: Supplemental wetland mapping from the 2019
field season will fill data gaps for the final EIS.
Another concern expressed today has been whether EPA withdrawing
its preemptive, unprecedented veto (also known as the Proposed
Determination) was the correct decision. There can be no question that
it was.
First, the entire Proposed Determination was the epitome of bad
process--a lack of statutory authorization, no valid scientific record
to speak of, and unelected, unaccountable bureaucrats trying to
regulate a major economic development project out of existence.
In the 47-year history of the Clean Water Act, EPA has never used
Section 404(c) preemptively--that is, without a permit application
reviewed by the Corps. As you can tell from Chart 3, EPA has only used
the power 13 times. In 11 of the 13 instances, EPA had a full permit
application record to review before it issued its veto. In the
remaining 2 vetoes, unique circumstances existed to make the decision
to veto wholly different than exists here.
First, in the Bayou aux Carpes project in Louisiana, EPA
was reviewing a project proposed by the Corps itself, so of course the
processes for approval were different. As a federal court reviewing the
issue noted, the Corps does not apply to itself for a permit.
Additionally, the project approval process began before the passage of
the Clean Water Act. There actually was a permit application to review;
it was by the local parish under the Rivers and Harbors Act as well as
a related permit application under the Clean Water Act that the Corps
had denied.
Second, for the veto related to a development site near
the Everglades in the 1980s, EPA determined that the permit application
would be identical to applications submitted for two neighboring sites.
All three locations were considered ``similar pieces of the East
Everglades wetlands complex with similar ecological values.'' When EPA
moved to veto the Corps' pending 404 permits for the first two
projects, it vetoed the third at the same time because it deemed them
to have the same characteristics as the other two properties.
Finally, EPA has even admitted that its actions lacked precedent.
A briefing paper prepared in 2010, prior to the BBWA,
noted that the contemplated preemptive veto had ``[n]ever been done in
the history of the CWA.''
The paper also correctly predicted that, given the
unprecedented use of the authority, there was ``[l]itigation risk.''
The preemptive veto is rarely used for a simple reason: In addition
to it being bad policy to make major regulatory decisions on the basis
of zero project-specific information, the Clean Water Act does not
authorize a preemptive veto. The language of the statute itself
contemplates a permit application before EPA can exercise its narrow
veto authority. The U.S. Army Corps of Engineers is authorized to issue
permits ``for the discharge of dredged or fill material into the
navigable waters at specified disposal sites.'' 33 U.S.C. 1344. EPA's
authority is narrow and must be based on a permit application, as the
statute only allows the Agency to ``prohibit the specification'' or
``deny or restrict the use of any defined area for specification.'' EPA
can only take this action after determining that the discharge ``into
such area'' will have an unacceptable adverse effect on the
environment.
Chart 3--USEPA CWA Section 404(c) Final Veto Actions
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The legislative history of the Clean Water Act and major cases
interpreting it confirm that it was not intended to allow for
preemptive vetoes. When Congress enacted the Clean Water Act, it
expressly declined to give EPA complete authority over the issuance of
permits, dividing up responsibilities between EPA and the Corps. The
Senate Debate on the Conference Report contemplated that there would be
a permit application before any 404(c) action ``because the permit
application transmitted to [EPA] for review will set forth both the
site to be used and the content of the matter of the soil to be
disposed.''
The United States Supreme Court held that the Clean Water Act
``gives EPA authority to `prohibit' any decision by the Corps to issue
a permit for a particular disposal site.'' Coeur Alaska Inc. v.
Southeast Alaska Conservation Council, 557 U.S. 261, 274 (2009). The
D.C. Circuit, in its ruling upholding that EPA could issue a veto even
after the Corps has issued a permit, had before it a ``retroactive''
veto, not a preemptive veto such as Pebble faced. Indeed, the Court
focused on the fact that in the Mingo Logan case, the disposal site was
specified in the permit, meaning that EPA could only withdraw post-
permit. See Mingo Logan Coal Co. v. EPA, 714 F.3d 608, 614 (D.C. Cir.
2013). The case does not address a preemptive veto, which would raise a
host of different questions than those addressed by the Mingo Logan
court.
The Proposed Determination was also faulty process because it
deliberately avoided NEPA and an EIS, which together comprise a
superior, time-tested means of evaluating major development projects.
Internal EPA emails make clear that the Agency had no intention of ever
getting to a NEPA process. When Senator Lisa Murkowski of Alaska
suggested that EPA's decision to conduct the BBWA in February 2011
meant no preemptive action would occur until all the science had been
evaluated, an EPA official stated ``her statement would suggest no
404(c) would be done until all the science is in (EIS?). Obviously,
that's not what we have in mind . . .''
NRDC, a vocal opponent of the Pebble Project, has long referred to
NEPA as the Magna Carta of environmental protection and ``democratic at
its core.'' But now, when presented with an opportunity to put NEPA to
work doing the exact project analysis for which it was designed, NRDC
has shown its true colors: it only likes NEPA when it can be used to
block a project.
Not all EPA regional administrators during the Obama Administration
believed the statutory federal permitting process could be disregarded
like Mr. McLerran did. In 2016, then-Region 9 Administrator Jared
Blumenfeld, when asked if EPA would veto a second permit for the
Rosemont Copper Mine in Arizona, stated that he could not say if EPA
was considering a veto until the Corps indicates that it intends to
issue one. According to Blumenfeld, EPA needs ``a complete record'' to
``see the entire body of information'' and in the absence thereof, it
would be ``irresponsible to make a statement'' regarding a veto. As
Blumenfeld aptly put it: ``Prejudging is actually not useful for EPA.''
Allowing the Proposed Determination to stand would have set a far-
reaching, negative precedent for federal land use decisions. Using the
Clean Water Act in this way is essentially the Antiquities Act on
steroids. EPA--without statutory authority--grabbed the power to turn
private and state land into a national park without any adequate
stakeholder involvement or process.
Make no mistake: federal zoning authority is what EPA explicitly
wanted with this decision. One of the early, pre-BBWA EPA briefing
papers stated that an advantage of a preemptive veto of Pebble was that
it would ``serve as a model of proactive watershed planning for
sustainability.''
The bottom line is that the bad process and lack of statutory
authority alone are solid reasons to withdraw the Proposed
Determination. But if you look at how EPA actually crafted its Clean
Water Act Section 404(c) veto, you will see the most shoddy and corrupt
federal agency analysis that I have ever seen in more than 40 years
working in environmental regulation.
EPA's action was initiated not by the public or an independent
tribal petition as claimed, but by a rogue EPA staffer who colluded
with a known anti-mining activist to improperly petition his own
agency. In 2009, EPA Region 10 ecologist Phil North concluded his
agency should use its authority under Section 404(c) of the Clean Water
Act to veto Pebble. North advocated for a pre-emptive 404(c) veto
throughout the agency, including to then-Administrator Lisa Jackson in
early 2010.
According to sworn deposition testimony, by 2010 North
had convinced two high ranking EPA Region 1O staff members (Richard
Parkin and Michael Szerlog) that the project should be preemptively
vetoed. EPA determined it needed political cover to kill Pebble, so it
conspired with anti-mine activists to orchestrate a ``tribal petition''
as a pretext to initiate a process.
North worked secretly with Geoff Parker, a known Pebble
critic and attorney for several Alaska Native Tribes, to draft a
petition for submission by some tribes. In an email uncovered by the
House Oversight Committee, some within EPA expressed concern over the
level of access and influence Parker had within EPA.
EPA ``lost'' Phil North's computer hard drive for a
critical two-year period when North and others regularly used personal
email to conduct Pebble-related business.
Even before receiving the petition and without any scientific
study, EPA started drafting internal policy documents to facilitate
preemptive action against Pebble.
In 2010, a budget was prepared to secure funds to
preemptively veto Pebble. EPA developed an ``options paper'' in
consultation with Parker outlining the various paths EPA could take to
a veto.
Other federal agencies were looped in: a 2010 US Fish &
Wildlife Service memo describes how EPA had made up its mind to veto
the project.
From the very beginning of the BBWA process, EPA stacked the deck
against Pebble by placing avowed Pebble opponents in prominent
positions drafting the BBWA.
Richard Parkin
Region 10's Richard Parkin, placed in charge of the
BBWA, believed as early as 2010 that Pebble should be vetoed and
campaigned aggressively within EPA for that result.
At an early community meeting about the BBWA, Parkin
even admitted that politics were ``as big or bigger factor'' than
science in evaluating Pebble.
Phil North
North testified that he opposed Pebble very early and
began campaigning within EPA in 2009 for an eventual veto.
North even worked with Geoff Parker, a known Pebble
critic and attorney for several Alaska Native Tribes, to draft a
petition on behalf of those tribes urging EPA to veto Pebble. In other
words, North engaged in a clandestine lobbying effort of his own
agency, and EPA 's Inspector General determined that this constituted a
``possible misuse of position.''
North was named ``technical lead'' for the BBWA.
Michael Szerlog, head of Region 10's Aquatic Resources
Unit, testified that he too became opposed to Pebble before the BBWA.
EPA was also sure to load the BBWA team with Pebble opponents from
outside the Agency.
Ann Maest
EPA incorporated hydrologist Ann Maest's work after
meeting with her numerous times and noting her bias against Pebble.
The second draft of the BBWA was released after Maest
was forced to admit in federal court to having falsified scientific
reports in other litigation.
In this other litigation, the U.S. District Court for
the Southern District of New York ruled that a $9.5 billion Ecuadorian
judgment against Chevron, in which Ann Maest served as Plaintiff's #2
environmental consultant, was the product of fraud and racketeering
activity by the Plaintiff's legal team. Maest declared under oath, ``I
disavow any and all findings and conclusions in all my reports and
testimony on the Equator Project.''
EPA covered up Maest's role by removing explicit
citations to her work in the BBWA, but not the underlying information.
EPA chose University of Washington professor Thomas Quinn
as a BBWA contributor, despite having participated in numerous
briefings in which he advocated strongly for a preemptive veto,
including one instance in which Quinn was forced to apologize for his
aggressiveness during a briefing.
EPA hired Alan Boraas to conduct subsistence and
traditional use studies for the BBWA, despite Boraas having previously
published several anti-Pebble editorials.
EPA picked Phil Brna, a USFWS employee, to co-author a
major appendix to the BBWA, despite his previously expressed excitement
at the possibility of a veto. In an email, Brna stated: ``[t]his [i.e.,
a decision barring Pebble] is going to happen and it's going to get
bloody. I am looking forward to it!''
The BBWA began with anti-mine material, drawing heavily on the
resources of ENGOs and activists and developed in close coordination
with them. EPA shared with ENGOs an outline of the BBWA nearly a year
before it announced the study. EPA planned to mimic a ``risk
assessment'' by The Nature Conservancy (``TNC'') that had an extreme,
negative view of Pebble. Before the launch of the BBWA in early 2011,
EPA scheduled several briefings with anti-Pebble groups and invited
anti-mine scientists to ``summarize the TNC risk assessment and how it
supports 404(c).'' TNC has bragged that its ``science work is flowing
directly into EPA's assessment of mining risk.'' Over the course of the
BBWA (2011-2014), EPA communicated hundreds of times with anti-Pebble
activists and scientists to share campaign information, technical
studies and other intelligence relevant to EPA's 404(c) strategy.
Other EPA officials were similarly conflicted. Nancy Stoner, EPA's
former Deputy Assistant Administrator for Water, had previously worked
for NRDC for over a decade. Despite NRDC's active opposition to Pebble,
in which she participated while at the organization, Stoner did not
recuse herself from Pebble-related matters at EPA. In fact, in response
to a meeting request from NRDC leaders in June 2010, Stoner had to bend
over backwards to keep an appearance of impartiality, stating in an
email ``I passed along your request to others here. I am not supposed
to set up meetings with NRDC staff, but can attend such a meeting if
there are enough others in attendance.'' Despite recognizing this
conflict, she continued to work on Pebble-related projects.
What we know about EPA's wrongdoing in the Proposed Determination
process may in fact only be the tip of the iceberg due to shoddy and
perhaps nefarious record-keeping.
Phil North and others regularly used personal email to
communicate, including on Pebble-related matters, but EPA has never
conducted a full search of personal emails.
Somehow, EPA even ``lost'' North's computer hard drive
spanning a full two-year period when he was working on Pebble matters.
In an email uncovered by the House Oversight Committee,
Richard Parkin indicated that staff members may have routinely taken
sham steps to avoid FOIA disclosure, asking an attorney, ``Should [our]
subject line include something like Atty/Client Privileged or whatever?
Should we just do that routinely?''
Not surprisingly, this predetermined, rushed process produced a
scientifically indefensible Assessment and Proposed Determination. With
no actual permit application to review, EPA designed hypothetical
mining scenarios that it knew would have adverse impacts. EPA admitted
the scenarios ``are not based on a specific mine permit application and
are not intended to be the detailed plans by which the components of a
mine would be designed.'' For just one example, EPA's hypothetical mine
scenarios did not include the standard robust compensatory mitigation
that is required for any project.
Peer reviewers criticized the reliance on hypothetical mine
scenarios, stating ``because of the hypothetical nature of the approach
employed, the uncertainty associated with the assessment, and therefore
the utility of the assessment, is questionable.'' EPA continued to use
hypothetical mine scenarios that did not reflect modern engineering or
environmental management because it knew that doing so would result in
exaggerated environmental impacts and overstated risks, ensuring it
could justify its proposed pre-emptive veto.
The water release scenario in the BBWA shows how the hypothetical
mines were practically designed to fail. The BBWA assumed that the
Pebble Mine would release surplus water into only two of three
available streams. Despite no logical, scientific, or legal basis for
assuming such a release system, EPA chose to adopt it so that the BBWA
could overstate impacts on downstream aquatic habitats. If, instead,
EPA had chosen to assume that surplus water would have been released
strategically, as is the case with Pebble's proposed plan, it would
have concluded, for each hypothetical mine scenario analyzed, that the
changes in stream flow would have involved a relatively high level of
ecosystem protection, rather than finding a potentially adverse impact
on the surrounding ecosystem. The obvious explanation for the BBWA's
surplus water release scenario, therefore, is that EPA was designing a
mine to fail.
EPA even manipulated the peer review process to hide these glaring
problems. Each time the BBWA underwent a peer review, reviewers pointed
out its serious shortcomings. The following are quotes from various
peer reviewers.
``I find this report, by its nature, to be very biased.''
This report ``is clearly intended to convince the reader
that the Pebble Mine should not be permitted to operate'' and ``lacks
impartiality.''
``[S]ome of the comments read like editorial opinions
rather than reporting scientific results.''
One reviewer noted the BBWA's conclusions were ``not
appropriate for a document that is intended to provide a scientific and
technical foundation for future decision making.''
Another concluded, ``Although interesting, the potential
reality of the assessment is somewhat questionable. It is also unclear
why EPA undertook this evaluation, given that a more realistic
assessment could probably have been conducted once an actual mine was
proposed and greater detail about operational parameters available.''
EPA designed a peer review process that was contrary to its own
regulations and guidelines so the many flaws in its BBWA study would
remain hidden.
In violation of its own guidelines, EPA had excessive
contact with peer reviewers.
EPA short-circuited the peer review process, limiting
both oral and written submissions during public meetings.
When EPA released the second draft of the BBWA, it had
expanded from 339 pages to 618, and included an entirely new
hypothetical mine scenario. This was not a second draft; it was an
entirely new document which EPA should have peer reviewed. Not
surprisingly, EPA ignored requests that it conduct a full peer review
of the new document.
EPA allowed peer reviewers to review only a limited set
of materials in a limited amount of time and permitted them to address
only specific questions selected by EPA.
EPA ignored peer reviewers when they complained about the
process and the insufficient time given for review.
EPA tried to mollify peer reviewers' concerns by
misleading them with promises that the BBWA would not be used for a
regulatory decision. In response to peer review comments, EPA stated 67
times that the BBWA was not intended to be a decision document, even
though it ultimately relied on it exclusively in issuing preemptive
restrictions on Pebble.
In short, the Trump Administration has not overturned science with
this decision. To the contrary, by withdrawing a shoddy and corrupt
decision and allowing the statutorily-mandated federal permitting
process to proceed, this Administration has in fact injected more--and
better--science into the process.
I appreciate the opportunity to testify before this committee and
to address many of the myths that opponents are trying to build around
the Pebble mine. We are dedicated to building a mine that can deliver
the economic benefits that Alaskans so desperately need while ensuring
that we do no damage to the fishery that is vital to the life of our
State.
Mrs. Napolitano. Thank you very much for your testimony,
sir, and we now will have Mr. Richard Borden. You may proceed.
Mr. Borden. I would like to thank Chairwoman Napolitano,
Ranking Member Westerman, and members of the subcommittee for
the opportunity to present this testimony.
I am a geologist, environmental scientist, and manager with
over 30 years of experience in the mining and consulting
industries, including 23 years with Rio Tinto. During my
career, I have performed permitting, evaluation, design and
environmental work at more than 50 mines and mining projects
across the world.
I believe mining is essential to sustain our society, and
that most commercially viable ore deposits should be developed.
However, that does not mean that all ore bodies should be
developed regardless of their negative environmental,
commercial, or social impacts.
The Pebble project is located in the most sensitive,
globally significant, and challenging environmental setting of
any mining project I have ever reviewed. It will be extremely
difficult to construct, operate, and close a commercially
viable mine in this setting that does not do permanent material
harm to the Bristol Bay salmon fishery.
Risks associated with the smaller 20-year mine proposed by
the Pebble Partnership have been reduced, but by no means have
they been eliminated. Even if everything goes exactly according
to plan, the proposed mine would disturb 14 square miles of
land and 8 miles of salmon-bearing rivers and streams. It would
create a very large contaminated water treatment liability
which will persist for many decades to centuries after closure.
Despite these challenges, the environmental impact
statement, or EIS, is scheduled for completion in less than
half the time of a typical new mining project. This overly
rushed process has contributed to the deeply flawed draft EIS
that was released 6 months ago. Much of the EIS analysis
contains insufficient detail to determine if the planned
actions are equate or practicable.
There are significant omissions. The document commonly
understates potential impacts. In a number of significant
instances, the conclusions are clearly wrong. Based on my
experience, the draft EIS does not even meet industry standard
practice.
The proposed EIS project only mines about 10 percent of the
total resource, and by necessity, must process relatively low
grade ore. It would produce only half as much metal for sale as
the smallest Pebble Mine plan that has undergone a rigorous,
independent, and publicly available financial evaluation. This
represents a loss of roughly $15 billion in revenue.
Based upon a careful review of the available financial
data, it is my professional opinion that the mine plan being
evaluated by the EIS is, most certainly, not economically
feasible. I have estimated the proposed project to have a net
present value of approximately negative $3 billion.
The financial analysis for the 20-year mine plan provided
in the draft EIS by the Pebble Partnership is deeply flawed. It
ignores smelting and refining costs, understates capital and
operating costs, and fails to provide even a placeholder cost
for closure.
This represents a fatal flaw in the process because a
larger mine would almost certainly need to be constructed in
order to obtain a positive rate of return on the very large
initial capital investment, which is almost certain to exceed
$6 billion.
The current EIS is, thus, almost certainly not evaluating
the true environmental impacts and risks associated with the
viable mining project. Even a small expansion of the project to
extract 20 percent of the ore body would almost double the size
of the disturbed footprint, quadruple water quality risks, and
likely spread large-scale impacts into three different river
drainage basins.
Before closing, I also feel obligated to point out two of
the more significant problems provided by Mr. Collier's written
testimony. The examples cited in his EIS timeline are
misleading. They are mostly oil and gas projects, or mines that
are 10 to 1,000 times smaller than the proposed Pebble project.
They all have a very different, and generally, a much lower
risk profile, so it is no surprise they were completed more
rapidly. The closest analog cited is the Donlin Mine EIS which
took 6 years to complete, compared to the 2 years allotted for
Pebble.
The written testimony is also completely silent about the
economics of the small mine being permitted, and that will
almost certainly lose billions of dollars without a major
expansion. In fairness to the EIS process, the investment
community, and local stakeholders, I would urge the Pebble
Limited Partnership to clearly demonstrate that the 20-year
mine plan detailed in the EIS is financially viable. Thank you
for the opportunity to speak with you.
[Mr. Borden's prepared statement follows:]
Prepared Statement of Richard K. Borden, Owner, Midgard Environmental
Services LLC
I would like to thank Chairwoman Napolitano, Ranking Member
Westerman, and Members of the Subcommittee for the opportunity to
present this written testimony on the ``Pebble Mine Project: Process
and Potential Impacts.''
During my 30-year career I have performed permitting, design and
environmental work at more than fifty mines and mining projects across
the world. The Pebble Project is located in the most sensitive,
globally significant and challenging environmental setting of any
mining project I have ever reviewed. It will be extremely difficult to
construct, operate and close a commercially viable mine in this setting
in a way that does not do permanent material harm to the salmon
fishery. Even the smaller 20-year mine proposed for permitting by the
Pebble Partnership would create very large environmental impacts and
risks in the heart of the Bristol Bay salmon fishery.
Despite these challenges, the Environmental Impact Statement (EIS)
is scheduled for completion in less than half the time of a typical
mine EIS. This overly rushed process has contributed to the deeply-
flawed draft EIS that was released six months ago. I have provided
almost 50 pages of detailed technical comments on the draft EIS to the
Army Corps of Engineers in six separate letters. Much of the EIS
analysis contains insufficient detail to determine if the planned
actions are adequate or practicable; the document commonly understates
potential impacts; essential analyses and designs are deferred to the
post-EIS permitting period; and in a number of significant instances,
the conclusions are clearly wrong. The draft EIS clearly does not meet
industry standard practice.
The proposed EIS project only mines about ten percent of the total
Pebble resource and by necessity must process relatively low-grade ore.
It would produce only half as much metal for sale as the smallest mine
plan that has undergone a rigorous, publicly available financial
evaluation by an independent engineering consulting firm. The proposed
EIS project by itself is also not the world class resource which is
being advertised. Without a significant expansion it is not even in the
top 25 ore bodies in the world for contained copper or gold.
Based upon a careful review of the available financial data, it is
my professional opinion that the mine plan being evaluated by the EIS
is almost certainly not economically feasible, with an estimated
negative net present value of three billion dollars. This represents a
fatal flaw in the EIS because a larger mine would almost certainly need
to be constructed in order to attain a positive rate of return on the
very large initial capital investment. The current EIS is thus almost
certainly not evaluating the true environmental impacts and risks
associated with a viable mining project. Even a small expansion of the
project to extract 20% of the ore body would almost double the size of
the disturbed footprint, quadruple water quality risks and likely
spread large-scale impacts into three different river drainage basins.
Professional Background
I am a geologist, environmental scientist and manager with over
thirty years of experience in the mining and consulting industries.
During my 23 years with the global mining company Rio Tinto I
participated in and contributed to more than twenty financial and
technical assessments of new major capital projects, divestments and
potential acquisitions. This included over seven years as Head of
Environment for Rio Tinto's Copper, Copper & Diamonds and Copper & Coal
Product Groups. I have published numerous papers on mine environmental
performance and management in peer reviewed scientific journals,
conference proceedings and books. I am intimately aware of the
environmental challenges, issues and costs posed by the responsible
development, operation and closure of large copper mines.
Pebble Project Environmental Setting, Impacts and Risks
The Pebble copper-gold ore body is located on a drainage divide
between the headwaters of three important river systems in the center
of the Bristol Bay watershed. This watershed hosts the globally
significant Bristol Bay salmon fishery. Salmon are very sensitive to
direct disturbance and to water quality changes within spawning rivers
and surrounding wetlands. Most of the deposit is chemically reactive
and would be prone to acid rock drainage formation if exposed to
surface weathering conditions by mining. The site also has a very wet
climate and is in a pristine, remote and seismically active location.
All of these factors contribute to the very high innate environmental
risk posed by any development of the ore body. Any commercial mining
would, by necessity, result in widespread direct disturbance to
wetlands, streams and upland areas. It would also create a contaminated
water management liability which will certainly persist for decades and
likely persist for centuries after mining is completed.
The mine plan submitted for the EIS by the Pebble Partnership seeks
to control these environmental impacts and risks by 1) only mining ten
percent of the ore body; 2) minimizing the disturbed footprint; and 3)
implementing design and engineering controls. These efforts have
reduced, but by no means have they eliminated all the impacts and risks
associated with the project. The 20-year mine plan proposed for the EIS
would still result in direct disturbance of roughly 14 square miles and
the permanent loss of eight miles of salmon river and stream habitat.
Approximately 13,000 gallons per minute of contaminated water would
need to be reliably captured and treated during operations and over
5000 gallons per minute would need to be managed in perpetuity after
closure. Over one billion tons of bulk tailings would also need to be
managed in perpetuity. The closure of the small mine would be complex
and the total closure cost liability created would almost certainly
exceed 1.5 billion dollars. As shown in the table below, if an
economically-viable full scale mine were ever developed at the site,
most impacts and risks would increase by factors of three to five times
and some would increase by more than one hundred times compared to the
mine plan currently being evaluated by the EIS process.
----------------------------------------------------------------------------------------------------------------
Proposed 20-year EIS Expanded 78-year
mine plan Development Scenario Relative increase
----------------------------------------------------------------------------------------------------------------
Direct Disturbance 14 square miles > 46 square miles 3.3 times greater
Permanent Direct Wetland Disturbance 5.5 square miles > 19 square miles 3.5 times greater
Permanent Loss 8 miles of streams and 42 miles of streams 5 times greater
rivers and rivers
Bulk Tailings Production 1140 million tons 5700 million tons 5 times greater
Pyritic Tailings Production 155 million tons 800 million tons 5 times greater
Non-Acid-Generating Waste Rock 95 million tons 13600 million tons 140 times greater
Production
Acid-Generating Waste Rock Production 50 million tons 3400 million tons 70 times greater
Fugitive Dust and Mobile Equipment 250,000 tons/day of 900,000 tons/day of 3.6 times greater
Emissions material moved material moved
Open Pit Footprint 608 acres 3600 acres 6 times greater
Maximum Pit Groundwater Inflow 2400 gallons per 12,000 gallons per 5 times greater
minute minute
Operational Spill Risk Duration 20 years 78 years 3.9 times greater
Green House Gas Emissions > 22 million tons of > 160 million tons of 7 times greater
CO2 equivalents CO2 equivalents
----------------------------------------------------------------------------------------------------------------
Source: Pebble Project Draft EIS; Wardrop, Preliminary Assessment of the Pebble Project, 2011 (commissioned by
Northern Dynasty Minerals); and independent calculations
Pebble Mine Project Economics
In 2011, Northern Dynasty Minerals Limited commissioned Wardrop (an
independent mining engineering consulting firm) to complete a
``Preliminary Assessment of the Pebble Project''. This study performed
financial evaluations on 25-, 45- and 78-year mine scenarios that
targeted approximately 17, 32 and 55% of the total ore body
respectively. This is the last publicly available, rigorous and
independent economic evaluation of the Pebble ore body. The 20-year
mine plan being evaluated by the EIS only produces half as much metal
for sale as the smallest mine plan evaluated by Wardrop. In sum the
value per ton of ore mined by the 20-year EIS mine plan is also about
21% lower than the average ore mined by the 25-year Wardrop plan. Given
both project scenarios would have roughly the same very high initial
capital costs for infrastructure construction, this has a profound
negative impact on the likely economics of the mine being evaluated by
the EIS. A comparison of the profits generated by concentrate sales
from the two projects can be made using the life of mine average net
smelter return per ton of ore calculated in 2011 minus the average
total operating costs per ton of ore. For the 25-year mine plan this
equates to $32 billion and for the 20-year mine plan this equates to
$17 Billion. Thus, the mine currently being evaluated in the EIS
process makes $15 billion less profit from concentrate sales. When this
difference is apportioned by year and a discount rate of seven percent
per year is applied, this equates to a five-billion-dollar reduction in
net present value (NPV) between the 25-year plan evaluated in 2011 and
the 20-year EIS case. It is certainly acknowledged that these are
approximate, back-of-the-envelope calculations but the strategic
implications for overall project economics are significant and will be
extremely difficult to offset.
The initial mine construction costs assumed by Wardrop were
anomalously low compared to other large copper mines that have been
studied or built over the past five to ten years. Part of the apparent
discrepancy in capital cost can be attributed to the removal of $1.3
billion in capital from the 2011 Wardrop construction cost estimate
because ``it has been assumed in the financial evaluation that the
Pebble Partnership will enter into strategic partnerships as needed to
develop, finance and operate a number of infrastructure assets--
including the transportation corridor (port and road) and the power
plant.'' However, it is unclear who would partner with the Pebble
project in order to provide this extra capital. As such, this
assumption is considered speculative. Adding this $1.3 billion back
into the capital cost estimate for the Pebble 25-year mine case brings
the total construction cost up to six billion dollars which is a little
more in line with other recent mining projects.
The Wardrop study also significantly underestimated annual water
treatment costs and did not include even a placeholder cost for closure
of the Pebble mine. As shown in the table below, when the higher
construction costs; higher operational expenditures for water
treatment; closure costs and much lower revenue from concentrate sales
are factored into the Wardrop study's 25-year mine plan economic
evaluation, the 20-year mine plan being considered by the Pebble EIS
has a negative NPV of approximately three billion dollars. This should
only be considered a conceptual level approximation of the project's
actual NPV. While a new rigorous economic evaluation may make the NPV
less or more negative, I believe it is very unlikely to make the
project have a positive rate of return on what is likely to be an
extremely large and risky capital investment.
------------------------------------------------------------------------
NPV
------------------------------------------------------------------------
Estimated NPV of the 2011 Wardrop 25-Year Mine Plan. +$3.8 Billion
Capital for Access Corridor and Power Plant added -$1.3 Billion
back into construction cost........................
Lost revenues from decreased concentrate sales...... -$5 Billion
Refined operational water treatment costs........... -$0.3 Billion
Discounted Closure Cost............................. -$0.4 Billion
Conceptual NPV of the EIS 20-Year Mine Plan......... -$3 Billion
------------------------------------------------------------------------
The conceptual financial analysis provided by the Pebble Limited
Partnership for the 20-year mine plan in the draft EIS is fatally
flawed. It ignores smelter and refining costs, understates capital and
operating costs and fails to provide even a placeholder cost for
closure. With the incorporation of just these limited corrections, the
Pebble Limited Partnership financial evaluation also has a strongly
negative net present value. The draft EIS is thus evaluating a mine
plan that does not meet its own alternatives screening criteria
including the requirement that each alternative be ``practical or
feasible from the technical and economic standpoint''.
If the base case mine plan assumed for the EIS is not economic,
then the entire permitting process is compromised because the impacts
and risks being evaluated are much smaller than those required for a
full-scale economically viable project. In other words, the EIS is not
evaluating the ``least environmentally damaging practicable
alternative.'' This situation would also place prospective developers
in a difficult situation because in order to create a profitable
operation they would either need to 1) immediately begin a new EIS for
a larger economically viable mine plan or 2) knowingly permit, fund and
build an uneconomic mine in the hopes that a later EIS and permitting
process would allow a larger, economically viable operation.
For additional detail of the full economic evaluation submitted to
the Army Corps of Engineers during the draft EIS public comment period
see Appendix A attached to this written testimony.
Environmental Impact Statement Process
The draft EIS document for the Pebble Project was written in only
eleven months. This is almost three times faster than the 2.6 years to
complete the average draft EIS in the United States between 2010 and
2017 (Executive Office of the President, Council on Environmental
Quality, December 2018). This short timeline is unprecedented for such
a large, complex mining project which will have unavoidable, material
and long-term impacts to a sensitive, globally significant ecosystem.
It has almost certainly compromised the technical rigor and reliability
of the EIS process.
Based upon a careful review of the Pebble Project draft EIS it is
my professional opinion that the document and associated analysis is
fatally flawed. The draft EIS contains an unacceptable number of
deficiencies, omissions and errors. Due to the global significance of
the salmon fishery, any EIS within the Bristol Bay watershed should be
held to the highest standard, but the Pebble draft EIS does not even
meet industry standard practice. Much of the analysis contains
insufficient detail to determine if the planned actions are adequate or
practicable; the document commonly understates potential impacts;
essential analyses and designs are deferred to the post-EIS permitting
period; and in a number of significant instances, the conclusions are
clearly wrong. The analysis of key project components such as water
management, geotechnical stability, reclamation & closure, wetlands
mitigation and air quality are clearly inadequate. In particular the
failure to consider the profound impacts that would result from large-
scale catastrophic tailings dam failure means that the draft EIS
ignores one of the largest environmental risks posed by the project.
The cumulative effects evaluation of the more-credible 78-year mine
plan significantly understates and, in some cases, grossly
underestimates the much larger impacts and risks associated with an
expanded mining operation. There are also several important
alternatives which could significantly reduce the environmental impacts
and risks of the project which were either not evaluated or were
eliminated prematurely.
I have provided almost 50 pages of detailed technical comments on
the draft EIS to the Army Corps of Engineers in six separate letters.
These letters are publicly available at the Army Corps Pebble Project
EIS website and are also attached as Appendix A to this written
testimony. Given the substantial flaws in the draft EIS, I have urged
the Army Corps of Engineers to restart the process with an analysis
based on an economically-credible mine plan; and supported by an
independent, rigorous economic analysis to demonstrate that the project
is the least environmentally damaging practicable alternative. The EIS
process will be severely compromised if the deficiencies of the current
document are not fully addressed. This would almost certainly require,
as a minimum, the completion of a Supplemental Environmental Impact
Statement.
appendix a
technical comment letters on the pebble project draft environmental
impact statement
submitted to the united states army corps of engineers during the 2019
public comment period
[The comments are retained in committee files and are available
online at the U.S. House of Representatives Document Repository at
https://docs.house.gov/meetings/PW/PW02/20191023/110065/HHRG-116-PW02-
Wstate-BordenR-20191023.pdf beginning on page 7, as well as at https://
pebbleprojecteis.com/publiccomments/drafteiscomments.]
Mrs. Napolitano. Thank you very much, Mr. Borden.
I now recognize Alannah Hurley, and you may proceed.
Ms. Hurley. Good morning, Chairwoman Napolitano, Chair
DeFazio, Ranking Member Westerman, and members of the
subcommittee. I thank you all for having me here today. My
Yup'ik name is Acha [phonetic], and my Irish name is Alannah
Hurley, and I am executive director for the United Tribes of
Bristol Bay.
And UTBB is a Tribal consortium whose mission is to defend
our indigenous way of life by protecting our traditional lands
and waters. The Yup'ik, Denaina, and Alutiiq peoples of Bristol
Bay represent three of the last remaining salmon cultures on
the planet. We are salmon people, but salmon are more than food
for us. Salmon are central to our cultural identity, our
spirituality, and our sacred way of life that has made us who
we are for thousands of years in the Bristol Bay region.
Pebble's proposal to build a mine at the heart of our
watershed has been a dark cloud over Bristol Bay for the last
15 years. As proposed, the mine would permanently impact
thousands of acres of pristine lands and waters that sustain
the world's greatest salmon habitat. While our people have
opposed Pebble for nearly two decades, our recent experience
with the Army Corps of Engineers has made it clear to us, the
Government is paving the way for Pebble, regardless of the
consequences.
Despite the Corps statement that it is committed to a
thorough, fair, and transparent review of Pebble, our Tribes'
experiences in the environmental review process demonstrate it
is merely paying lip service to its statutory obligations and
its trust responsibility to our Tribes. Despite two of our
member Tribes' significant efforts to work as cooperating
agencies, the Corps has erected substantial barriers to their
meaningful participation. The Corps has dismissed the Tribes'
concerns and failed to provide the information necessary to
meaningfully evaluate impacts, impacts to our people.
Additionally, throughout this process, the Corps has
repeatedly failed to meaningfully consult with Tribes on a
Government-to-Government basis. We have extended countless
invitations to the Corps to visit our communities, see and
witness our way of life, and to engage in open dialogue about
these issues that are most important to our people. Yet, the
Corps continues to be unresponsive to these requests.
The posters you see here today are prime examples of how
information is routinely kept hidden from the public eye. As a
result, Tribes are forced to rely on the media for critical
information the Government should be providing directly to
Tribes. This is unacceptable, and it really sends a clear
message to our Tribes that the Corps' recitals of its
obligations are nothing but hollow words, words so hollow that
a senior Corps official in Alaska could not get through
prepared remarks at the end of a draft EIS hearing in
Dillingham last spring without weeping and having to turn it
over to another official.
After nearly 2 years of this treatment by the Corps,
Bristol Bay's Tribes are continually left with the lingering
question of why. Why is the Army Corps rushing a timeline that
doesn't match up with any realities in Bristol Bay? Studies
remain undone, data gaps remain unfilled, and the draft EIS has
been universally condemned by the scientific community, by
other Federal agencies, and by our people for its lack of
thorough analysis of this project and its impact to the people
of Bristol Bay. Why is it that major announcements and agency
decisions are known to Northern Dynasty shareholders who
actively discussed this knowledge in online investment forums
before those decisions are publicly announced? And why is it
that Bristol Bay's first people to whom this Federal Government
owes a sacred trust responsibility are continually treated as
second-class citizens by agencies of the United States?
We are not a box to be checked, we are not an obstacle to
overcome, and we are not enemies to be defeated. We are the
indigenous people of Bristol Bay. Our culture is not for sale,
and we deserve to be heard, we deserve to be respected, and we
will not be brushed aside. We have inherited the responsibility
to be strong stewards of Bristol Bay, and we will not stop
fighting until our homeland is protected from the Pebble Mine.
I am not here to debate the shape shifting size and scope
of whatever size and scope the Pebble Mine is peddling,
depending on the month. I am here to tell you that any mine in
Bristol Bay threatens our very existence as indigenous peoples.
If Pebble is developed, there is no doubt it will forever
change who I am, who my people are, where I come from, and it
will rob our children's children of their right to continue
being Native people as we have for thousands of years in
Bristol Bay. I cannot accept that, our people cannot accept
that, and this committee should not accept that.
The Corps has made it clear that our people, science, and
fact do not matter in this process, so we plead with this
committee to do everything in its power to hold this
administration accountable. This must be done to ensure the
traditional and natural resources of Bristol Bay wild salmon
are protected. Please uphold your responsibility to our Tribes
and put an end to this culture of corruption. [Speaking in
Native language.] Thank you for having me.
[Ms. Hurley's prepared statement follows:]
Prepared Statement of Alannah Hurley, Executive Director, United Tribes
of Bristol Bay
I. Introduction
Dear Chairman DeFazio, Ranking Member Graves, Subcommittee
Chairwoman Napolitano, and Subcommittee Ranking Member Westerman, my
name is Alannah Hurley and I am the Executive Director of the United
Tribes of Bristol Bay (UTBB), a tribally chartered consortium of
fifteen federally recognized tribes in Bristol Bay.\1\ Each member
tribe passed a tribal resolution delegating its governmental powers to
UTBB to implement the Bristol Bay Regional Visioning Project, a region-
wide action plan developed by Bristol Bay's tribal communities focused
on improving economic development opportunities, preserving cultural
and subsistence resources, and increasing educational opportunities for
tribal youth. UTBB is organized as a consortium of tribal governments
working to protect the traditional way of life of the indigenous people
of Bristol Bay and the natural resources upon which that way of life
depends. UTBB's mission is to advocate for sustainable communities
through development consistent with our traditional values.
---------------------------------------------------------------------------
\1\ UTBB's member Tribes include: Aleknagik Traditional Council,
Chignik Lake Tribal Council, Clark's Point Village Council, Curyung
Tribal Council, Ekuk Village Council, Levelock Village Council,
Manokotak Village Council, New Koliganek Village Council, New Stuyahok
Traditional Council, Nondalton Village Council, Pedro Bay Village
Council, Pilot Point Tribal Council, Portage Creek Village Council,
Togiak Traditional Council, and Twin Hills Village Council. Each is a
federally recognized Indian tribe. Indian Entities Recognized by and
Eligible To Receive Services From the United States Bureau of Indian
Affairs, 84 Fed. Reg. 1,200, 1,204-05 (Feb. 1, 2019).
---------------------------------------------------------------------------
The Yup'ik, Dena'ina, and Alutiiq peoples of Bristol Bay represent
three of the last remaining ``salmon cultures'' in the world.\2\
Extending from time immemorial to the present, salmon has been the
foundation of Alaska Native cultures in the region. Today, salmon makes
up nearly 82% of the subsistence diet in the region.\3\ Individuals
practicing a subsistence way of life devote innumerable hours per year
preparing nets, boats, smokehouses, and other equipment just in
preparation for the summer salmon runs.\4\ The subsistence way of life
is viewed as full-time job and wealth is often defined it in terms of a
full freezer or a good stockpile of subsistence foods.\5\ Beyond
subsistence harvests, salmon also serves an important cultural role.
Salmon is more than food for us. Catching, preserving, and eating
salmon are part of a genuine and treasured way of life. A way of life
that we desire to keep living and have worked diligently to protect.
---------------------------------------------------------------------------
\2\ U.S. Environmental Protection Agency, an Assessment of
Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska
App. D, at 11 (2014) (EPA 910-R-14-001B).
\3\ Id. at 78.
\4\ Id. at 85.
\5\ Id. at 85, 88.
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The proposed Pebble mine poses a serious threat to the
extraordinary natural resources of Bristol Bay and our traditional ways
of life that depend upon those resources. The pristine ecosystems in
the Bristol Bay watershed are critical to the continued health of
salmon populations in the region. Pebble Limited Partnership is
proposing to build one of the largest open-pit mines in North America
in the heart of the Bristol Bay watershed. As proposed, the mine would
adversely and permanently impact Bristol Bay's extraordinarily
productive system of streams, wetlands, and uplands that support the
world's largest salmon fishery. As part of the proposed development of
Pebble mine, Pebble Limited Partnership submitted a permit application
to the U.S. Army Corps of Engineers (Corps or USACE) to discharge fill
material into and perform work within the waters of the United
States.\6\ Despite the Corps' statements that it is committed to a
thorough, fair, and transparent review of the proposed Pebble mine, our
Tribes' experiences participating in the environmental review process
as cooperating agencies and interacting with the Corps on a government-
to-government basis clearly demonstrate that the Corps is merely paying
lip service to its statutory obligations and its trust responsibility
to our Tribes.
---------------------------------------------------------------------------
\6\ U.S. Army Corps of Engineers, Public Notice of Application for
Permit, POA-2017-271 (Jan. 5, 2018).
---------------------------------------------------------------------------
II. Treatment of Tribes as Cooperating Agencies
Under the National Environmental Policy Act, the Corps is required
to conduct a thorough, science-based analysis of the impacts associated
with the proposed Pebble mine. NEPA fosters informed decision-making by
requiring federal agencies to take a ``hard look'' at the environmental
impacts of a proposed action.\7\ An environmental impact statement
(EIS) must ``provide full and fair discussion of significant
environmental impacts'' and ``inform decisionmakers and the public of
the reasonable alternatives which would avoid or minimize adverse
impacts.'' \8\ Tribes, like state and federal agencies, have the
ability to participate as cooperating agencies and contribute to the
development of the EIS. Two of UTBB's member Tribes, Curyung Tribal
Council and Nondalton Tribal Council, are participating in the NEPA
process as cooperating agencies. Despite the Tribes' significant
efforts to fulfill their responsibilities as cooperating agencies, they
have faced substantial barriers to full and meaningful participation.
The Corps' has summarily dismissed tribal cooperating agencies'
substantive concerns and failed to provide the information necessary to
meaningfully evaluate the impacts of the proposed Pebble mine.
---------------------------------------------------------------------------
\7\ W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 486 (9th
Cir. 2011).
\8\ 40 C.F.R. 1502.1.
---------------------------------------------------------------------------
From the beginning, the Corps arbitrarily limited the involvement
of tribal cooperating agencies. In November 2018, the Corps distributed
an internal draft EIS to cooperating agencies for review and comment.
At that time, Shane McCoy, program manager for the Corps' Alaska
District, informed tribal cooperating agencies that the Corps would
only consider their comments on subjects the Corps identified as their
areas of expertise--cultural resources, subsistence, land use, and
socioeconomics.\9\ Despite requests from tribal cooperating agencies to
remove these limitations, the Corps has imposed them throughout the
NEPA process.\10\ Most recently, when the Corps held cooperating agency
meetings in July and August 2019, McCoy again informed tribal
cooperating agencies that their participation would be limited to the
subjects that the Corps identified as their areas of expertise.\11\
Though tribal cooperating agencies were invited to attend all the
meetings, they were only permitted to participate in the discussion at
one. Tribes, as sovereigns, have broader interests, concerns, and
expertise, than the arbitrary and insulting limits that the Corps
placed upon tribal cooperating agencies.\12\
---------------------------------------------------------------------------
\9\ See Email from Shane McCoy, Program Manager, U.S. Army Corps of
Engineers, Alaska/District, to cooperating agencies (Oct. 17, 2018)
(``When revising the draft EIS prior to public comment, USACE will
consider those comments which are related to the CA's identified area
of special expertise. Other comments related to the DEIS will be
considered at the same time as the public's comments, after the Notice
of Availability for the dEIS.'').
\10\ Letter from William Evanoff, President, Nondalton Tribal
Council, to Lieutenant General Todd T. Semonite, Commanding General and
Chief of Engineers, U.S. Army Corps of Engineers, at 1 (Sept. 5, 2018).
\11\ See Email from Shane McCoy, Program Manager, U.S. Army Corps
of Engineers, Alaska District, to cooperating agencies (July 22, 2019)
(``All agencies can attend any of the meetings, however, discussions on
topics will be limited to the agencies with that expertise.'').
\12\ See Letter from William Evanoff, President, Nondalton Tribal
Council, to Lieutenant General Todd T. Semonite, Commanding General and
Chief of Engineers, U.S. Army Corps of Engineers, at 1 (Sept. 5, 2018).
---------------------------------------------------------------------------
The Corps' improper treatment of cooperating agencies is not
limited to Tribes. Throughout the NEPA process, the Corps has inhibited
the ability of cooperating agencies to participate and failed to
properly consider cooperating agencies' substantive comments and
concerns. The Department of Interior's (DOI) comments on the draft EIS
raised serious process-related concerns, stating that ``we must note
that, despite being cooperators, [U.S. Fish and Wildlife Service,
National Park Service, and Bureau of Safety and Environmental
Enforcement] were only provided certain sections of the Administrative
DEIS to review as it was prepared and were not able to access the
entire document until after it was released for public comment.'' \13\
Addressing the Corps' failure to meaningfully consider and respond to
cooperating agencies' comments, the DOI recommended that the Corps
``more effectively and directly address prior comments . . . For
example, responses to previous comments often cited conclusions from
other sections of the DEIS to resolve concerns, but these citations did
not sufficiently address the issues that were originally raised.'' \14\
The Environmental Protection Agency (EPA) also raised concerns about
the manner in which the Corps limited cooperating agencies'
participation, stating that it would continue to provide ``special
expertise in specific areas requested by the Corps,'' but would ``also
continue to request the ability to assist the Corps in additional areas
. . . including fisheries and air quality, where [the EPA has] special
expertise and jurisdiction.'' \15\
---------------------------------------------------------------------------
\13\ Letter from Philip Johnson, Regional Environmental Officer,
Office of Environmental Policy and Compliance, Anchorage Region, to
Shane McCoy, Program Manager, U.S. Army Corps of Engineers, Alaska
District, at 1 (July 1, 2019) (hereinafter ``DOI Comment Letter'').
\14\ Id. at 3.
\15\ Letter from Chris Hladick, Regional Administrator,
Environmental Protection Agency, Region 10, to Shane McCoy, Program
Manager, U.S. Army Corps of Engineers, Alaska District, at 6 (July 1,
2019) (hereinafter ``EPA Comment Letter'').
---------------------------------------------------------------------------
In addition to process-related concerns, cooperating agencies
submitted extensive comments on the draft EIS's substantive
deficiencies, including insufficient analysis of impacts to watershed
health, including impacts to fish and fish habitat; \16\ insufficient
analysis of ``potential impacts to subsistence resources and the
communities that depend on them;'' \17\ and insufficient analysis of
spill risk associated with tailing storage and other facilities.\18\
Based on these and other deficiencies, the DOI concluded that the draft
EIS did not follow NEPA requirements and was so inadequate that it
``preclude[d] meaningful analysis.'' \19\ Ultimately, the DOI
recommended that the Corps undertake additional analysis--``Due to the
substantial deficiencies and data gaps identified in the document and
as a department with multiple cooperating agencies, the DOI recommends
that the USACE prepare a revised or supplemental DEIS.'' \20\ Nondalton
Tribal Council repeatedly raised the same concern with the Corps,
requesting that the Corps prepare a supplemental EIS in accordance with
its obligations under NEPA. In multiple letters, Nondalton Tribal
Council explained to the Corps that failure to produce a supplemental
EIS would deny Bristol Bay Tribes, the public, and state and federal
agencies the ability to fairly and objectively review the proposed
project and make informed decisions about its impacts.\21\ Senator Lisa
Murkowski, Alaska's senior Senator, also recognizes that the Corps'
process is broken. A committee report accompanying the appropriations
bill for DOI, environment, and related agencies included language,
drafted by Senator Murkowki, stating that ``[a]dverse impacts to
Alaska's world-class salmon fishery and to the ecosystem of Bristol
Bay, Alaska, are unacceptable'' and directing other federal agencies
``to exercise their discretionary authorities . . . to ensure the full
protection of the region'' if they continue to be unsatisfied with the
Corps' analysis of the project.\22\
---------------------------------------------------------------------------
\16\ See e.g., DOI Comment Letter at 5; EPA Comment Letter at 4;
Comments of the Nondalton Tribal Council and the United Tribes of
Bristol Bay on the U.S. Army Corps of Engineers' Draft Environmental
Impact Statement for the Proposed Pebble Mine POA-2017-271 (July 1,
2019) (hereinafter ``Nondalton and UTBB Comment Letter''); Letter from
Robert Heyano, President, Ekuk Village Council, to Colonel Phillip J.
Borders, District Commander, U.S. Army Corps of Engineers, Alaska
District, at 1 (April 11, 2019) (hereinafter ``Ekuk Comment Letter'').
\17\ See e.g., DOI comment letter at 3; Nondalton and UTBB Comment
Letter at 2; Ekuk Comment Letter at 1-2.
\18\ See e.g., Nondalton and UTBB Comment Letter at 2; EPA Comment
Letter at 5.
\19\ DOI Comment Letter at 3.
\20\ Id.
\21\ See e.g., Letter from George Alexi, President, Nondalton
Tribal Council, to Lieutenant General Todd T. Semonite, Commanding
General and Chief of Engineers, U.S. Army Corps of Engineers, at 1-2
(Sept. 27, 2019); Letter from George Alexi, President, Nondalton Tribal
Council, to Lieutenant General Todd T. Semonite, Commanding General and
Chief of Engineers, U.S. Army Corps of Engineers, at 2 (Aug. 27, 2019).
\22\ S. Rep. No. 116-123, at 87 (2019).
---------------------------------------------------------------------------
Though the Corps has repeatedly stated that it is committed to a
fair and transparent review of the proposed Pebble mine, its course of
action reveals the disingenuousness of that commitment. In response to
cooperating agencies' substantial criticisms of the draft EIS and
recommendations to develop a supplemental EIS, the Corps has indicated
that it will not undertake additional analysis. On a press call with
reporters in July 2019, David Hobbie, chief of the Corps' Alaska
District Regulatory Division, stated that he was not considering a
supplemental draft EIS ``at this point.'' \23\ Similarly, on a call
with reporters last month, Shane McCoy, program manager for the Alaska
District stated that despite significant changes to plans for the
proposed Pebble mine submitted by the project proponent, the Corps
``would not be publishing a supplemental [environmental impact
statement], and there wouldn't be an opportunity for the public to
comment.'' \24\ Despite the fact that the Corps was ``still working
through all the comments'' and was ``still waiting on additional data
on groundwater modeling, wetlands and cultural resources'' from the
project proponent, McCoy stated that the Corps was still on pace to
issue a final EIS in early 2020.\25\ McCoy then went a step further,
essentially agreeing with claims the project proponent made in a recent
presentation to investors that the proposed Pebble mine ``will not harm
salmon and will not affect water resources of Bristol Bay.'' \26\
---------------------------------------------------------------------------
\23\ Ariel Wittenberg, EPA punts on latest Pebble mine decision,
E&E News (July 29, 2019), https://www.eenews.net/greenwire/stories/
1060806401.
\24\ Dylan Brown, Revised mining plan won't require new review--
Army Corps, E&E News (Sept. 18, 2019), https://www.eenews.net/
greenwire/stories/1061134919 (alteration in original).
\25\ Id.
\26\ Id.
---------------------------------------------------------------------------
Hobbie and McCoy's statements are consistent with the Corps'
pattern of summarily dismissing the significant concerns and
substantive recommendations of cooperating agencies. This pattern is
particularly alarming in contrast to the Corps' conduct toward Pebble
Limited Partnership. As the Nondalton Tribal Council explained to the
Corps in a recent letter, these statements ``clearly demonstrate a
significant bias in favor of the applicant, the intent to implement a
politically driven fast-track schedule, and a pre-decisional mindset
that sets aside any attempt to make a reasonable, fair, and objective
final permit decision.'' \27\
---------------------------------------------------------------------------
\27\ Letter from George Alexi, President, Nondalton Tribal Council,
to Lieutenant General Todd T. Semonite, Commanding General and Chief of
Engineers, U.S. Army Corps of Engineers, at 2-3 (Sept. 27, 2019).
---------------------------------------------------------------------------
III. Treatment of Tribes on a Government-to-Government Basis
The Corps, like all federal agencies, owes a trust responsibility
to Tribes. Because of Tribes' legal status as sovereigns, the federal
government has an obligation to consult with Tribes on a government-to-
government basis when contemplating actions that may affect tribal
lands, resources, members, and welfare. Executive Order 13175 mandates
that all executive agencies recognize and respect Tribes' sovereign
status.\28\ The order also requires agencies to establish policies and
procedures to ensure meaningful and timely consultation with tribes
when an action affects tribal interests.\29\ Under the Corps' own
guidance, it must ``ensure that all Tribes with an interest in a
particular activity that has the potential to significantly affect
protected tribal resources, tribal rights (including treaty rights) and
Indian lands are contacted and their comments taken into
consideration.'' \30\ The Corps' guidance also emphasizes beginning
consultation at ``the earliest planning stages, before decisions are
made.'' \31\ Though the Corps often recites its obligations in
communications with Bristol Bay Tribes, its course of action falls far
short of its recitals. In stark contrast to its promises, the Corps has
ignored tribal concerns, withheld information from Tribes, refused to
meet on a government-to-government basis, and treated Tribes like
stakeholders instead of sovereign Nations.
---------------------------------------------------------------------------
\28\ Exec. Order No. 13,175, 65 Fed. Reg. 67,249, 67,249-50 (Nov.
6, 2000) (mandating that agencies ``respect Indian tribal self-
government and sovereignty'' when ``formulating and implementing
policies'' that affect tribal interests).
\29\ Id. at 67,250.
\30\ U.S. Army Corps of Engineers, Tribal Consultation Policy, at 4
(Nov. 2012).
\31\ Id. at 2-3.
---------------------------------------------------------------------------
The Corps' failure to meaningfully consult with Tribes on a
government-to-government basis is a concern that UTBB and its member
Tribes have continuously raised with the Corps. We have extended
countless invitations to the Corps to visit our villages and to engage
in open dialogue about the issues that are most important to us. We
have explained that meeting with us in our communities provides the
most inclusive participation of our Tribal leaders and members.
Traveling to our communities would also provide the Corps leadership
and staff with a better understanding of the resources, and in turn the
traditional ways of life, that would be adversely affected by the
proposed Pebble mine. But the Corps has been unresponsive to our
requests.
The Corps' monthly tribal teleconference is another illustrative
example of the way in which the Corps views its government-to-
government relationship with Tribes. Though a teleconference with
thirty-five Tribes is not an appropriate means to engage in government-
to-government consultation, the Corps includes its monthly tribal
teleconferences in its record of tribal consultation.\32\ Monthly
teleconferences could be an appropriate mechanism to provide Tribes
with information and updates that implicate tribal interests; however,
the Corps' tribal teleconferences fail to achieve even this more
limited purpose. As a result, Tribes are forced to rely on the media
for critical information that the Corps should provide directly to
Tribes. News articles about the recent changes to the proposed mining
plan are just one of the many instances where Tribes learned of
significant project-related information from the news instead of the
Corps.\33\ This is unacceptable and sends a clear message to Tribes
that the Corps' recitals of its obligations are merely hollow words.
---------------------------------------------------------------------------
\32\ U.S. Army Corps of Engineers, Pebble Project EIS: Draft
Environmental Impact Statement, at 6-2 to 6-6 (Feb. 2009).
\33\ Dylan Brown, Revised mining plan won't require new review--
Army Corps, E&E News (Sept. 18, 2019), https://www.eenews.net/
greenwire/stories/1061134919.
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IV. Land Ownership and Reasonable Alternatives
The Corps must ``[r]igorously explore and objectively evaluate all
reasonable alternatives.'' \34\ Failing to meet this basic NEPA
requirement, the Corps merely tweaked Pebble Limited Partnership's
proposal. The two additional action alternatives the Corps included in
the draft EIS are variations on access to the mine and transportation
of mine products; they are not alternatives. The inadequacy of the
range of alternatives is further undermined by the fact that the only
feasible and practicable alternative is Pebble Limited Partnership's
proposal, suggesting that the Corps is attempting to improperly select
the company's preferred alternative.
---------------------------------------------------------------------------
\34\ 40 C.F.R. 1502.14(a).
---------------------------------------------------------------------------
Most of the alternatives that the Corps considered in its draft EIS
include building components of the transportation corridor over Native
allotments and lands where an Alaska Native Claims Settlement Act
corporation owns the surface or subsurface.\35\ The Corps considered
alternatives using these lands even if the landowners did not extend
their permission to use the land, or in some cases expressly refused
permission. For example, despite Pedro Bay Corporations' refusal to
allow Pebble Limited Partnership to use its land, two of the three
alternatives considered in the draft EIS would cross the corporation's
lands.\36\ Pebble Limited Partnership's preferred alternative is the
only alternative that does not cross Pedro Bay Corporation's lands. On
two occasions the corporation's board of directors voted unanimously
against providing access to its lands, first in 2014 and again in
January 2019.\37\ Pedro Bay Corporation explained to the Corps that the
proposed Pebble mine does not satisfy its ``responsible development
standards'' and for ``Alaska Natives who depend on the natural
environment for traditional and cultural hunting, fishing, and
gathering, the Pebble Project represents an existential threat to their
ways of life.'' \38\ An alternative is not reasonable or feasible when
a landowner has not, and will not, consent to the use of its lands.
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\35\ See U.S. Army Corps of Engineers, Pebble Project EIS: Draft
Environmental Impact Statement, at 3-2.1.
\36\ Id.
\37\ Ariel Wittenberg, Native corp.: Pebble mine can't use our
land, E&E News (Feb. 28, 2019), https://www.eenews.net/stories/
1060122683.
\38\ Letter from Matt McDaniel, CEO, Pedro Bay Corporation, to
Shane McCoy, Program Manager, U.S. Army Corps of Engineers, Alaska
District, at 1-2 (July 1, 2019).
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In developing and analyzing alternatives, the Corps disregarded the
property interests of individual Alaska Native allottees and Alaska
Native Claims Settlement Act corporations, leaving Pebble Limited
Partnerships' proposal as the only feasible and practicable option
considered in the draft EIS. Again, the Corps ignored the indigenous
people of Bristol Bay in favor of furthering Pebble Limited
Partnership's interests.
V. Conclusion
I would like to thank Chariman DeFazio, Ranking Member Graves,
Subcommittee Chairwoman Napolitano, and Subcommittee Ranking Member
Westerman for inviting me to testify today. One thing is clear, the
proposed Pebble mine will have significant and permanent adverse
impacts on the extraordinary natural resources of Bristol Bay and our
traditional ways of life that are so closely tied to those resources.
With so much at stake, the people of Bristol Bay, and all Alaskans,
deserve a fair, thorough, and transparent review of the proposed Pebble
mine. In contrast, the Corps' opaque process is moving toward a permit
decision at an unprecedented pace, ignoring substantial criticism and
concern from Bristol Bay Tribes, other federal agencies, and the
public. Under the Corps' current timeline, it is planning to issue a
final EIS in early 2020 and make a permit decision in mid-2020.\39\ The
Corps has made clear that it will not listen to our voices, so we ask
this Committee to act now and help us protect Bristol Bay.
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\39\ U.S. Army Corps of Engineers, Pebble Project EIS, https://
pebbleprojecteis.com/schedule (last visited Oct. 16, 2019).
Mrs. Napolitano. Thank you, Ms. Hurley.
We now have Mr. Brian Kraft. You may proceed.
Mr. Kraft. Chairwoman Napolitano, Chair DeFazio, Ranking
Member Westerman, thank you for the opportunity to testify
today. My name is Brian Kraft. My wife and I are long-time
Alaskan residents where we are raising our family and four
kids. We own and operate two remote sportfishing lodges in the
Bristol Bay region. Between my wife's company and mine, we
employ 180 people in the State of Alaska. We understand
business in Alaska. We get it.
I grew up in Chicago and was fortunate enough to move to
Alaska and discover the uniqueness and special nature that
Alaska has and Bristol Bay in particular. It is in this area
where gin-clear rivers flow over the tundra into the sea. The
nutrient-rich environment allows salmon runs to grow to
millions and rainbow trout to grow to epic size.
I first heard of the Pebble Mine proposal in 2004, and was
all for it. I actually thought, great; jobs, economic
opportunity. This is it what it is going to be about in this
area. And I was an oil field roughneck, worked in the North
Slope, worked for ARCO, understood resource development in the
State of Alaska. It wasn't until I actually had a client at the
lodge from Newmont Mines. His name was Gary Dowdle. And Gary
was at the lodge, and I asked him about Pebble. This is about
2005. And he said, hey, Brian, fly me up over that area. Show
me where we are talking about.
So I flew him up there, we landed, we got out, walked
around, and this is before parts per billion or dam size or pit
size, or cyanide, not cyanide. He just looked at it, and as a
mining manager, he said, Brian, I have made my life living and
working in mines. We try and get it right, but most of the time
there are mistakes that happen. We don't always get it right.
And whatever number we think it is going to be, it is usually
bigger and more costly, more damaging. He looked at the site,
and he said, too much water. And so I have always held that in
the back of my mind that it is all about the water.
When I was building my lodge in 1998, I had an elder come
down to the river, the Kvichak River which drains Lake Iliamna.
He grabs my arm, and you know, I am a kid from Chicago, as I
said. Turn on the faucet, water comes out, and I drink it in my
home. This elder grabs my arm, and he says, hey, Brian, take
care of the water. I said OK, Mikey, yeah, no problem. I will
take care of the water. He says no. Take care of the water. It
is who I am. It is in my soul.
And the gravity and the weight of that moment, I can feel
his hand on my arm today. It carries just something that a lot
of us in this room don't have any idea. Maybe Alannah does. But
other than that, we just think it is just water, right? Well,
that resource is of unbelievable importance, and I appreciate
the committee taking time to look at this. It is a national
issue.
My industry, the sportfishing industry, touches every
single State in the Union. We have got clients from all over
the country that come and visit the area, and to a person, they
express how unique and special the area is.
I have been involved in this battle for 15 years. I started
an organization called the Bristol Bay Alliance to educate
people and myself on what mining is and does. And the
conclusion that I have come to, not being a scientist, is that
the best mining decisions are made when it takes location into
account. And so you have this location, and you can't
directionally drill. We can't shift the deposit, so we have to
consume the habitat where the minerals are, and there is 100
percent consumption of that habitat.
So the decision comes, quite simply, down to, is it
appropriate to be in this location? If everything is done
right, according to the smaller, but yet it is still an
enormous mine footprint, but the smaller mine plan, you are
still going to consume 80 miles of streams. You are still going
to consume 3,500 acres of wetland in an area that is part of
the Bristol Bay fisheries reserve, where our first legislation
action in the State of Alaska was to create a Bristol Bay
fisheries reserve in 1972 to protect the area. Nobody could
have conceived back then the amount of habitat destruction that
a mine of this nature would have proposed.
The sportfishing industry generates $65 million a year to
the Alaska economy. It is part of a broader $1.5 billion a year
that is produced in the economy through the sportfishing,
commercial fishing, tourism, and other outdoor activities.
I can see I am out of time. I just want to thank the
committee for the opportunity to testify.
[Mr. Kraft's prepared statement follows:]
Prepared Statement of Brian Kraft, Owner, Alaska Sportsman's Lodge
Chairwoman Napolitano and Ranking Member Westerman, thank you for
the opportunity to testify today before the House Transportation and
Infrastructure Committee for its hearing on the Pebble Mine Project:
Process and Potential Impacts. My name is Brian Kraft, and my wife and
I are long-time Alaska residents where we are raising our family. We
currently own and operate two sportfishing lodges in the southwest part
of the state known as the Bristol Bay region. Someday, in the not too
distant future, I hope that one or several of our daughters will take
over our lodge business as they have a passion for the fishery and have
a strong connection to the region and its environment.
Today I'd like to share with the Committee why the Bristol Bay
region is unlike any other place in the world, specifically from the
perspective of a person that grew up in the suburbs of Chicago and now
spends half of each year in a remote, roadless, pristine, intact,
functioning ecosystem. I will also share with you the significance this
habitat and fishery plays in a thriving sportfishing industry that
creates a strong economic engine for the state of Alaska. This could
all be compromised with the massive industrialization of the area
through large-scale open-pit mining.
We are relying on effective and science-based implementation of the
Clean Water Act to protect our livelihoods from this potentially
destructive mine proposal. I am here to tell you that the Army Corps of
Engineers (Corps) is failing at implementing the Clean Water Act as it
reviews the Pebble Mine proposal. We commend you for making it a
priority of your Committee to review the Corps' implementation of the
Clean Water Act on what we believe is one of the most critical permit
proposals in history.
I also want to thank Committee leadership for supporting
Representative Huffman's amendment to the FY 2020 Interior and
Environment appropriations bill which would have cut funding to the
Corps until it fixed its flawed review of the Pebble mine permit. I
urge the Committee to continue working with the appropriators,
including Senator Murkowski who recently added strong report language
to the Senate version of the bill, to compel the Corps to fix its
review using the best available science.
Bristol Bay is a state and national treasure.
People spend significant amounts of money, time and effort to
travel from all over the world to experience and fish in this unique,
pristine and incredibly productive corner of Alaska. There are very few
places left in the world where you can see and fish for thriving runs
of salmon and massive rainbow trout, and fly for miles without seeing a
road, buildings or other signs of human development. There is a strong
desire and willingness to pay for the experience of being outdoors in
such a pristine setting. Clients who come to my lodge are blown away by
the magnitude of this place, and the special, uniquely Alaskan
experience that comes with it.
Salmon have fueled everything that lives in this region for
thousands of years. Here, salmon runs are measured in the millions. For
the past two years, record breaking salmon runs have returned to the
rivers and lakes of the Bristol Bay region. It's one of the only places
left in the world where there are still thriving runs of wild salmon
and where 30-inch rainbow trout are not mythical creatures. It's one of
the few places in the world where you can watch a brown bear, yards
away, devour salmon as if you were not there. It's one of the last
places left on the planet where you can stand on a river, perhaps with
your niece or grandfather, and be hundreds of miles from a highway. The
bottom line is that Bristol Bay is special even by Alaska's already
high standards.
But perhaps fish, wildlife and scenic landscapes aren't your thing.
Let me speak to the importance of Bristol Bay from a business
perspective. Bristol Bay is an economic powerhouse, fueled by salmon.
Wildlife viewing, hiking, hunting and sportfishing play an important
part of the regional economy.
There are approximately 150 sportfishing or hunting related
businesses that operate in the Bristol Bay drainage with about 30,000
sportfishing trips taken to the region each year. Some anglers stay at
lodges like mine, some are local fishermen, and some are anglers who
experience Bristol Bay through ``do it yourself'' trips. It is
estimated that each year Bristol Bay anglers spend approximately $58
million, with a vast majority of this spending (approximately $47
million annually) coming from nonresident anglers.\1\ An additional
$12.4 million in economic activity is attributable to people traveling
to the area to hunt bear, moose, ducks and other wildlife. A growing
part of the tourism economy in Bristol Bay is bear viewing. A study
produced this spring found in 2017, bear viewing-related service
providers (air/boat taxis, guides, lodging) reported $34.5 million in
sales.\2\ McNeil River and Brooks Camp are two of the most important
and well-known bear viewing areas in the world.\3\ Together,
recreational fishing and hunting activities support more than 1,000
jobs in the area, and bear viewing supports another 490 sustainable
jobs in the region.\4\
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\1\ https://www.epa.gov/bristolbay/bristol-bay-assessment-final-
report-2014
\2\ University of Alaska Fairbanks, The Economic Contribution of
Bear Viewing to Southcentral Alaska, (2019) https://
static1.squarespace.com/static/5c4025a7b40b9dc76548186e/t/
5cdb69154e17b630b2880c51/1557883183050/BearEconomicsStudy-Full.pdf
\3\ The Value of Watchable Wildlife: A Case Study of McNeil River
by C. Clayton and R. Mendelsohn 1993 https://www.sciencedirect.com/
science/article/pii/S0301479783710571?via%3Dihub
\4\ https://www.fs.fed.us/rm/pubs/rmrs_p049/rmrs_p049_035_044.pdf
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All told, commercial, sport and subsistence fishing accounts for
more than $1.5 billion to the regional economy and are an important
part of Alaska's broader fishing-based economy.\5\
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\5\ https://iseralaska.org/static/legacy_publication_links/2013_04-
TheEconomicImportanceOfTheBristolBaySalmonIndustry.pdf
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The University of Alaska Center for Economic Development estimates
consumers in Alaska spent $501 million on equipment for sport fishing
in 2017.\6\ That is one of several reasons that companies such as
Orvis, and other fishing gear manufacturers, care so much about keeping
Bristol Bay the way it is.
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\6\ https://www.alaskatia.org/Research/
OutdoorRecreationImpactsandOpportunities%202019.pdf
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My clients, and anglers of all types who visit the region,
consistently emphasize the importance of Bristol Bay's remote, and wild
setting in their decision to fish the area. Additionally, a significant
proportion of anglers, when responding to surveys, specifically
traveled to the Bristol Bay region to fish the world-class rainbow
trout fisheries. Yet, when assessing the potential impacts of the
proposed Pebble mine, the Corps gave little consideration to the
importance of rainbow trout and other non-salmon species and dismissed
the impact industrial activities will have on the remote setting on
which my business depends. This is not just hearsay; survey responses
confirm that anglers consistently emphasize the importance of Bristol
Bay's remote and wild setting in their decisions to fish the area.\7\
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\7\ https://www.fs.fed.us/rm/pubs/rmrs_p049/rmrs_p049_035_044.pdf
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The Bristol Bay's world-famous fisheries, its unparalleled water,
and the local economies and cultures they support can continue to
thrive if we simply have the common sense to leave this place as it is.
For reference, on the Columbia River, once a wild salmon-filled
river, about $500 million a year is spent on salmon mitigation,
restoration and management. Yet, salmon populations continue their
precipitous decline and, in many cases, are barely hanging along. By
comparison, only about $5 million a year is spent on fisheries research
and management in the Bristol Bay region, while many millions more than
that return through related industries.\8\ If we properly protect
existing habitat and carefully manage for sustainable yield, nature
will continue to provide a renewable resource that continues to produce
indefinitely. It just doesn't make economic sense to compromise this
resource, which supports thousands of small, American family-run
businesses like mine.
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\8\ Presentation by Dr. Daniel Schindler, University of Washington
at American Fisheries Society Meeting, Anchorage 2018
---------------------------------------------------------------------------
I first heard about Pebble 15 years ago. At first, I thought,
``Great--jobs.'' I had worked on the North Slope as a roughneck on the
oil rigs and then worked as an intern for Arco in the Drilling
Engineering Department. I thought mining would be similar to oil
extraction on the North Slope of Alaska. However, I really knew nothing
about open-pit mining on the scale of Pebble. I went on an educational
journey. I actually had the CEO of Northern Dynasty, the sole owner of
the Pebble Project, at my lodge to present his case to the people of
Igiugig. It was at this presentation in 2005 that we learned of their
plans--and the core concepts of their plans remain basically the same
to this day.
Upon learning the proposed Pebble mine would consume massive
amounts of the headwater lakes, streams and wetlands that support our
wild fisheries, I knew the project would create long-term problems for
our fisheries. I started the Bristol Bay Alliance to educate the people
of the Bristol Bay region about large-scale open-pit mining and what it
would mean for the region and recreational fishing.
Open-pit mining consumes earth. That's how it works. There are no
other ways to get the minerals out without removing the earth that
holds the minerals. This is the crux of the issue and why certain
locations are better suited for mining than others. The more we all
learned about the industry, the more we understood that this was the
wrong mine in the wrong place.
The goal of the Clean Water Act is to restore and maintain the
health of the Nation's waters. Surely the tremendous resources I have
described above would warrant one of the most critical, science-based
reviews for a permit in the history of the law. The Corps has done just
the opposite.
As we and many critical comments from federal and state resource
agencies have called out, the Corps has rushed its Draft Environmental
Impact Statement (DEIS) and missed many key points that are important
to understanding why the proposed Pebble mine should not receive its
necessary permits. Beyond the many technical, ecological, and
scientific shortcomings of the DEIS, the Corps has also failed to
adequately assess the logistical components of the project. The Corps
has two alternative routes for the road corridor, both of which must
cross privately held Alaska Native Village Corporation lands. These
landowners refuse to grant permission to use their lands for the
project and, thus, the Corps cannot consider these options as viable.
This is one small example of the many missteps the Corps has made with
regards to evaluating the permit application.
The pending permit application also calls for only mining just \1/
8\th of the deposit, while putting potentially acid generating toxic
tailings back into the open pit after extracting the minerals. Of
course, since the Pebble Partnership is simultaneously selling the huge
size of the deposit (nearly 11 billion tonnes \9\) and its potential
for expansion to potential investors, we know the project will expand
and that tailings will need to be stored somewhere else while the
remaining portions of the deposit are mined. Because the toxic mine
waste will require perpetual care, we know we will still be dealing
with the tailings and acid-generating waste long after the Pebble
Partnership, or any successive owner of the mine, closes its doors.
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\9\ Ghaffari, H., R. S. Morrison, M. A., deRuijeter, A. Zivkovic,
T. Hantelmann, D. Ramsey, and S. Cowie. 2011. Preliminary Assessment of
the Pebble Project, Southwest Alaska. Document 1056140100-REP-R0001-00.
February 15. Prepared for NDML by WARDROP (a Tetra Tech Company),
Vancouver, BC.
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Furthermore, neither the DEIS nor any of its accompanying materials
include a mine construction plan, mine operations plan, or water
management plan. While the Corps acknowledges that these details will
not be available until successive state-permitting phases, it plans to
issue a final decision before any of the missing information will be
available and without a full accounting and evaluation of likely
impacts associated with hazardous contaminants, fish migration,
proposed culverts, changes to water quality and quantity, critical
habitat loss, and other indirect ecological effects. The DEIS fails to
consider foreseeable impacts to the habitat.
I am not a scientist, but I can tell you that the entire Bristol
Bay system is connected and that water flows downhill. The water is the
lifeblood of this region. These flowing, moving waters allow life to
exist in this region. These salmon runs feed the world. The entire
system relies on each part remaining intact. The proposed mine site is
critical to salmon and other freshwater species and will be destroyed
if this project is built. It can be hard for many of us to understand
the importance of the water and habitat to remain in its natural state,
functioning perfectly without human interference or destruction. We
turn on the water facet and clean water comes out. We can drink it,
wash with it, and never even give it a second thought. However, as an
elder Alaskan told me as I was building my lodge on the banks of the
Kvichak River: ``Take care of the water. It is who I am, it is in my
soul, it is my survival.''
I am here to urge you to look at this issue closely, it is of
national importance. The review being conducted by the Army Corps of
Engineers is unacceptable. It is a mockery not worthy of the lofty
goals of the Act that this Committee oversees and stewards. The stakes
are too high to cut corners and a foreign mining company has had far
too much influence on a system that is supposed to protect the best
interests of Americans. We should be doing everything we can to protect
American jobs and existing thriving businesses, not squander them.
Thank you for your time and willingness to give attention to this
issue that is extremely important to my family, hundreds of other
businesses that depend on Bristol Bay, and sportsmen and women in
Alaska and around the world that love this special corner of America.
We continue to urge you to do all in your power to use the legislative
tools available to you and the Congress to make sure the Bristol Bay
watershed is protected.
Mrs. Napolitano. Thank you very much, sir.
We now have Mr. Mark Niver, a fisherman. You are on, sir,
please.
Mr. Niver. Good morning. We have a video to show up on the
screens here this morning. Is that possible or not? There we
go. All right. This is my family. It is my sons on deck of the
fishing vessel Surrender. And roll? No action? OK.
[Video shown.]
Thank you, Congressman DeFazio and Chairwoman Napolitano,
for giving me the opportunity to be here this morning to
testify on behalf of Bristol Bay's 8,000 commercial fishermen,
including my three sons. One of them is behind me here. He came
here on his own dime here today. My other sons are Blake and
Bryce, and Grant is behind me. My name is Mark Niver. I live in
Wasilla, Alaska.
I have fished in Bristol Bay since 1980, and I am here
because I am deeply concerned about the proposed Pebble Mine
and the discreditable permitting process currently underway. I
have lived in Alaska since 1977, and I am newly retired from
the Prudhoe Bay oil field where I worked as a plant operator
for BP for 42 years. I supplemented my oil job by commercial
fishing in Bristol Bay with my father and three brothers.
After fishing with them for a few seasons, I decided this
fishery was what I wanted to invest in and bought my own
fishing boat and permit. Commercial fishing in Bristol Bay is
not easy, and it requires a substantial amount of financial
investment. Today, a driftnet permit costs around $185,000. A
fishing boat costs around $250,000. While this initial
investment is daunting, it is one worth making thanks to
Bristol Bay's strong runs and high market price. This fishing
season, my boat alone made $650,000. That is a lot of money.
For me and many others, fishing in Bristol Bay is a family
endeavor with multiple generations fishing together. I raised
my three boys on my fishing boat, and they have chosen to
continue fishing in Bristol Bay as adults. In addition, they
run their own seafood company, marketing the salmon that we
catch back in the Midwest area. Bristol Bay salmon fishery
allows them to make a good living and is a job that they are
proud of. As their father, I am proud to know that they will
continue fishing after my time is over and perhaps their future
children and their grandchildren will do the same.
There are thousands of similar stories in Bristol Bay.
Bristol Bay's commercial fishermen are just one link of the
chain, though. Bristol Bay's salmon fishery employs more than
14,000, as Mr. DeFazio talked about earlier, people every
summer, and creates more than $1.5 billion in the worldwide
economic activity. We sell our catch to seafood processors, who
then process and distribute Bristol Bay salmon to buyers and
markets around the world. With the quality and value of Bristol
Bay salmon increasing, its global value will only increase in
time.
Relative to other salmon fisheries in Bristol Bay, Bristol
Bay is unmatched in its sustainability and productivity. In
2018, we harvested over 43 million salmon. Bristol Bay produces
half of the world's sockeye salmon. Bristol Bay's commercial
salmon fishery continues to thrive thanks to its pristine,
undeveloped freshwater habitat and Alaska's science-based
fishery management.
Despite all this, Bristol Bay is one of the most endangered
fisheries. For over a decade, the proposed Pebble Mine has cast
a shadow of uncertainty over my livelihood and my family's
future. Nowhere in the world has a mine of this type and size
been located in a place as ecologically sensitive and pristine
as Bristol Bay. As the late Senator Ted Stevens once said,
wrong mine, wrong place.
Bristol Bay's fishermen have taken precious time away from
fishing to submit comments to the Army Corps during both the
scoping and draft EIS comment periods. However, the Army Corps
has yet to address our concerns and questions. I have no
confidence in this permitting process, and that the Army Corps
will factor in our concerns.
We have one shot at doing this permitting process right. It
should be testing Pebble's assumptions and promises, not taking
Pebble at its word.
I have been fighting to save my sons' and my livelihood
from the Pebble Mine for over a decade and will continue to do
so, along with Alannah next door to me here, until Bristol Bay
is protected. I am increasingly concerned that my efforts and
those of my fellow fishermen won't be enough. The permitting
process is a runaway train paving the way to the Army Corps to
rubber stamp the Pebble Mine. That is why I traveled here,
along with my son, to ask for your help and leadership.
I understand there are very important things before
Congress at this moment. However, our Federal agencies have
chosen to ignore Bristol Bay's fishermen and science that shows
salmon and the Pebble Mine cannot coexist. I urge you to do
anything and everything to stop this flawed process. We are
running out of time. There is too much at stake to punt this
issue. The facts are clear, and it is time for this project to
put its fishermen and businesses in jeopardy to be stopped.
Alaska, the State of Alaska, is its people. The people of
Alaska do not want this mine. Thank you for giving me the
opportunity to speak.
[Mr. Niver's prepared statement follows:]
Prepared Statement of Mark Niver, Bristol Bay Driftnet Permit Holder,
FV Surrender
I am submitting the following testimony regarding the proposed
Pebble Mine project in Bristol Bay, Alaska's headwaters. This project
is irresponsible and jeopardizes a thriving renewable industry,
including my livelihood and that of my three sons. I am deeply
concerned with how the Trump Administration is handling the Pebble
project's permitting process. The process has been rushed since day one
and ignores well-documented science showing that the Pebble Mine would
cause irreversible harm to Bristol Bay's salmon fishery. I ask that you
and your colleagues do everything in your power to stop this corrupt
permitting process from moving forward and that you not allow this
administration to destroy the world's largest wild salmon fishery and
with it 14,000 American jobs.
My Bristol Bay fishing career started in my teens when I worked for
Kachemak Seafoods in Togiak. I soon after moved to Alaska during
college to take a job in the Prudhoe Bay Oil Field where I just
recently retired as a Plant Operator. I supplemented my oil job on the
``North Slope'' by commercial fishing in Bristol Bay with my father and
three brothers. After fishing with them for a few seasons I decided
that this was a fishery I wanted to invest in and I bought my own
fishing boat and permit.
Commercial fishing in Bristol Bay is not easy and it requires a
substantial amount of investment and long-term commitment. Today, a
driftnet permit costs on the average of $185,000 with a fishing boat
costing on average $250,000. While this initial investment can be
daunting for new fishermen, it's one worth making thanks to Bristol
Bay's strong runs and high market price. This fishing season, my one
boat harvested $650,000 worth of salmon.
For me and many others, fishing in Bristol Bay is a family endeavor
and that's part of what makes it so special. It's also generational and
you often have multiple generations fishing together. I raised my three
boys on my fishing boat; they started to come out with me when they
were ten years old. Commercial fishing taught them how to work hard and
solve problems on their own. Today, they continue to fish and have also
started their own seafood company, Surrender Salmon, selling more than
100,000 pounds of Bristol Bay salmon fillets to markets in the Midwest.
It's a good living that they are proud of. As their father, I'm proud
to know that they will continue fishing after my time is over, and
perhaps their future children and grandchildren will do the same.
Bristol Bay is the largest and most valuable wild salmon fishery
left in the world. In 2018, Bristol Bay saw a record-breaking return of
62 million sockeye salmon, 43 million of which were sustainably
harvested by the commercial fishery.\1\ In an average year, Bristol
Bay's salmon fishery contributes roughly 50% of the world's sockeye
salmon and generates $650 million in income and $1.5 billion in
economic activity \2\. The commercial fishery in Bristol Bay has
existed for over 130 years and today provides more than 14,000 jobs,
including 8,000 fishing jobs.\3\
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\1\ Alaska Department of Fish & Game: www.adfg.alaska.gov
\2\ Knapp et al. University of Anchorage: Institute of Social and
Economic Research. April 2013. The Economic Importance of the Bristol
Bay Salmon Industry.
\3\ Wink Research and Consulting. 2018. Economic Benefits of the
Bristol Bay Salmon Industry.
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At a local level, Bristol Bay's salmon fishery is an economic
engine for the region. It employs 1,567 regional resident workers,
provides 4,217 total average regional jobs, and generates $220 million
in total regional labor income.\4\ These jobs and income are
significant since they are renewable and will be available to local
residents so long as Bristol Bay's salmon populations remain productive
and are able to support a commercial fishery.
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\4\ Wink, Economic Benefits
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The economic impacts of Bristol Bay's salmon fishery extend well
beyond the Bristol Bay region, making it an invaluable part of our
nation's renewable economy. It sustains service and support industries
such as boat builders, engine mechanics, and fishing gear manufacturers
as well as other industries in the seafood supply chain, including
distribution, retail, and food service. Bristol Bay is especially
important for the Pacific Northwest given the hundreds of permit
holders, seafood processors, and seafood distributors that are based in
Washington and Oregon. The Puget Sound region in particular has deep
ties to the Bristol Bay fishing industry given that the majority of
Bristol Bay's major seafood processors are based in the Seattle area
and a substantial percentage of Bristol Bay's salmon products are
shipped to Seattle for reprocessing and distribution to other markets
around the country and world \5\.
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\5\ Knapp et al., The Economic Importance
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As other salmon fisheries in Alaska face cyclical declines, Bristol
Bay's salmon fishery is more important than ever. In 2018 thanks to its
record-high returns, Bristol Bay contributed 38% of Alaska's entire
2018 salmon harvest and 48% of its total estimated ex-vessel value \6\.
Its abundance allows it to provide financial stability for seafood
processors, fishermen, and other businesses and is a pillar for the
entire Alaska seafood industry.
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\6\ Alaska Department of Fish & Game: www.adfg.alaska.gov
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For over a decade the Pebble Mine has been casting a shadow of
uncertainty over my livelihood and Bristol Bay's entire fishing
industry. I first learned about the proposed Pebble Mine in 2006 and
the more I learned about the project the more concerned I got. Nowhere
in Alaska or the world have we ever had a mine of this type and size
located in a place as ecologically sensitive and pristine as Bristol
Bay. As the late U.S. Senator Ted Stevens once said, ``it is the wrong
mine for the wrong place.''
It's extremely troubling that the Trump Administration would push
this project forward despite its well-documented risks and despite the
14,000 jobs at stake. Bristol Bay's salmon fishery is a renewable
economic engine, and one that cannot be replaced. What is especially
troubling about the current permitting process is the U.S. Army Corps
of Engineers' Draft Environmental Impact Statement (DEIS). The Army
Corps' DEIS is fatally flawed and fails to accurately portray the
ecological impacts that the proposed Pebble project would have on the
Bristol Bay watershed and its wild salmon populations. Ultimately, this
is because the DEIS is based on a false project scope and duration even
though the Army Corps itself says in the DEIS that expansion of the
project is ``reasonably foreseeable.'' In addition, the DEIS downplays
many of the direct and indirect impacts outlined in the EPA's 2014
peer-reviewed Bristol Bay Watershed Assessment, which concluded that
``large-scale mining in the Bristol Bay watershed poses significant
near- and long-term risk to salmon, wildlife and Native Alaska
cultures,'' according to former EPA Regional Administrator Dennis
McLerran. The discrepancies in the DEIS and the EPA Bristol Bay
Watershed Assessment are concerning and raises questions about the
scientific integrity of the DEIS.
Of particular concern to myself and Bristol Bay's commercial
fishermen are the following information gaps and inaccuracies in the
DEIS regarding potential impacts to Bristol Bay's fish and fish
habitat:
The DEIS grossly underestimates Pebble's potential
impacts and bases its analysis on a false project scope and duration,
leading to inaccurate conclusions in the DEIS about future changes in
the number of returning salmon available for harvest. The Army Corps'
estimations are not supported by the best available science and
analysis, specifically when it comes to the impacts of changes in water
temperature and traces of copper on aquatic life.
The risk of a potential tailings dam failure, which would
be catastrophic for the Nushagak River--one of Bristol Bay's most
productive salmon river systems. The Army Corps has yet to conduct a
thorough, long-term assessment of a potential tailings dam failure and
its impacts, which is inexcusable given other recent tailings dam
failures and the threats that such a failure could have to the
communities and industries that are downstream. Because of these risks,
Bristol Bay's drift net permit holders took it upon themselves to hire
independent earth scientist, Dr. Cameron Wobus, to model potential
tailings dam failure scenarios and their potential impacts. His
analysis found that it is likely that Pebble's tailings material would
reach Bristol Bay \7\ and reinforces that a tailings dams failure at
the Pebble project would have far reaching and long-lasting impacts on
the Nushagak River drainage and deserves further analysis by the Army
Corps and Pebble Limited Partnership.
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\7\ Lynker Technologies, LLC. 2019. A Model Analysis of Flow and
Deposition from a Tailings Dam Failure at the Proposed Pebble Mine.
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The DEIS does not include a post-operation reclamation
plan or wastewater treatment plan. We understand that this is due to
the fact that the Pebble Limited Partnership has not submitted this
information to the Army Corps or the State of Alaska, which we find
unacceptable and questionable given that this is standard practice in
the industry. Because this project will require treatment and
monitoring in perpetuity, this information must be made available in
the DEIS for the public to review and comment on.
The inadequacies in the Army Corps' assessment of potential impacts
to fish and habitat impedes the Army Corps from accurately assessing
the magnitude of Pebble's socio-economic impacts, including changes to
the value and marketability of Bristol Bay's salmon and the subsequent
impacts these changes would have on the well-being of Bristol Bay's
commercial fishermen, businesses, and support industries. The Army
Corps erroneously assumes that the total value of the fishery is based
solely on the volume of fish harvested and value per pound of salmon.
This assumption is wrong and does not factor in the influence that
marketing, public perception, and quality can have on fish value. In
addition, the Army Corps also makes a sweeping assumption in its DEIS
that a change in market reception of Bristol Bay's salmon is not likely
to occur (DEIS 4.6-2). This assumption is ill-founded and is in direct
contrast to the Pacific Seafood Processors Assocation's conclusion
that, ``we know from past experience, that actual or perceived damage
to the purity of the waters or fish of the Bristol Bay region would
harm the marketability of Alaska salmon,'' \8\. Thus, even if there is
not a catastrophic environmental disaster at the proposed Pebble Mine
site, just the public's perception of an open-pit mine in Bristol Bay's
headwaters will damage the Bristol Bay and greater Alaska seafood
brands. The DEIS completely dismisses these risks and its subsequent
impacts on the thousands of businesses that purchase and sell Bristol
Bay salmon, including seafood distributors, retailers, and restaurants.
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\8\ Pacific Seafood Processors Association. June 2017. Position on
the Pebble Mine Project.
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The DEIS does not account for the hundreds of millions of dollars
in investments made by Bristol Bay's permit holders and seafood
processors, nor does it evaluate the potential impacts that the Pebble
project could have on the value of these investments and assets. As
stated previously, many fishermen invest hundreds of thousands of
dollars to participate in the Bristol Bay commercial fishery, requiring
loans that depend on a consistent supply of salmon and strong market
prices. Any loss in fishing income would create financial hardship for
these fishermen.
Over the last year and a half, Bristol Bay's fishermen have taken
precious time away from fishing to write and submit comment letters to
the Army Corps during both the Scoping and Draft EIS comment periods.
We have yet to see the Army Corps address our concerns and questions,
including our request for a more rigorous tailings-dam failure
assessment. Instead it appears that this Administration has already
decided the outcome and is simply going through the motions. That's not
how a permitting process should work, especially in Bristol Bay where
the world's largest wild salmon fishery is at stake. The integrity of
this permitting process has been compromised and I have no confidence
that the concerns and interests of Bristol Bay's fishermen will be
factored into the Army Corps' final permitting decision.
As someone who spent their career working in the oil industry, I am
not anti-development. Far from it. I fully support development of our
natural resources, but only when it's done responsibly and based on the
best available science. We have one shot to do this permitting process
right in Bristol Bay--there is no where else with a salmon fishery this
valuable and productive. To allow the Pebble Limited Partnership to
drive this permitting process in spite of science and the will of
Alaskans goes against our country's own best interests, violates the
National Environmental Policy Act, and jeopardizes more than 14,000
renewable jobs. This permitting process should be testing Pebble's
assumptions and promises, not taking the Pebble Partnership at its
word. We deserve a rigorous permitting process that's transparent,
rigorous, and based on the best available science and information.
I have been fighting to save my livelihood--and my sons'
livelihoods--from the Pebble Mine for over a decade and will continue
to do so until Bristol Bay is protected. I'm increasingly concerned
under this current Administration that this permitting process is a
runaway train with nothing stopping the Army Corps from rubber stamping
the Pebble Partnership's permit application in just a matter of months.
That is why I am here, to ask for your help and leadership. Please do
everything you can to stop this flawed process from moving forward any
further. Allowing the Trump Administration to permit this project would
be an economic disaster for our country and Bristol Bay's thousands of
commercial fishermen.
Thank you for your attention and consideration.
Mrs. Napolitano. Thank you, sir.
We now have Anisa Costa. You may proceed.
Ms. Costa. Thank you. Chairman DeFazio, Chairwoman
Napolitano, Ranking Members Graves and Westerman, members of
the committee, my name is Anisa Costa, and I serve as chief
sustainability officer at Tiffany & Co. I would like to thank
you all for holding this important hearing. It is an honor for
me to testify here today to express Tiffany & Co.'s
longstanding opposition to the proposed Pebble Mine, and to ask
for rigorous environmental review of the mine proposal.
Since Tiffany & Co. was founded, we have looked to the
beauty of the natural world for design inspiration. We also
rely on materials that come from the earth, whether it is
diamonds or precious metals to bring life to our designers'
creations. In other words, nature's abundance is integral to
the success of our company. As such, we have a business
imperative to operate our company and source our materials in a
responsible manner that protects the planet and supports
communities.
Tiffany was founded in 1837 in New York City and has since
grown into a global luxury house at the forefront of jewelry
design and expert craftsmanship. The company has retail and
manufacturing operations in 29 States and the District of
Columbia, and we employ nearly 6,000 people across the country.
We manufacture the majority of our jewelry here in the United
States and source the majority of our precious metals from
recycled sources and mines in the U.S. as well.
Whether here or elsewhere in the world, we take great pride
in upholding exemplary standards for environmental and social
responsibility at every step in our supply chain. With more
than 180 years of experience in sourcing precious metals and
gemstones, we have learned that there are certain special
places where mining simply must not occur. We take too much
risk in altering timeless treasured landscapes that generations
of communities have thrived in for short-term financial gain.
Relatedly, we have also long championed the need to reform
the Mining Law of 1872, and I would like to thank the House
Natural Resources Committee, which is advancing an important
mining law reform bill this morning, written by Chairman Raul
Grijalva.
In Bristol Bay, we believe mining would ultimately destroy
the lands in the watershed, causing irreparable harm to the
communities who depend on this majestic place. It is our view
that sourcing for mines that destroy our economies and
ecosystems is not good for our bottom line, or for our
country's. For these reasons, we have publicly opposed the
proposed Pebble Mine for more than a decade.
In 2008, we were one of the first jewelers to sign on to
the Bristol Bay Protection Pledge and declare that we would
never source gold from the proposed Pebble Mine. Since signing
that pledge, Tiffany & Co. has raised awareness about the risk
of mining in such a pristine place, first within the jewelry
industry, and then among the broader public. We stand by the
Bristol Bay Protection Pledge today alongside 100 of our
colleagues in the jewelry industry as well as other sectors who
have since signed the pledge.
We know, from experience, that when our customers, when
consumers view mining as irresponsible and harmful, it hurts
all industries who use mined materials from technology to
renewable energy enterprises, to automotive companies, and the
construction sector, and of course, the jewelry industry.
Today's corporate stakeholders, including our valued customers,
expect business to be done without risking the country's
natural resources.
Sadly, the Army Corps' EIS fails to even consider the
findings of the EPA 2014 watershed assessment to push for
answers for the Bristol Bay region. So we are respectfully
urging the committee to push for answers to the critical
questions raised by the EPA while there is still time.
Many of our concerns have been highlighted by the other
witnesses this morning, and are included in my written
testimony, so I will not repeat them here. But simply put, we
urge the committee to consider the many omissions in the Army
Corps' permit process, and ensure that they are fully
addressed. The communities of Bristol Bay and the diverse
coalition that opposes the mine deserve nothing less.
We at Tiffany & Co. look forward to continuing to source
materials and manufacture our products here in the United
States. However, we can promise that we will never use gold
from the proposed Pebble Mine should it be developed. The long-
term threats to the Bristol Bay region are simply too great.
They outweigh the short-term value of any precious metals which
might be extracted from there.
For this generation and all those to follow, this majestic
landscape simply must be protected. We know that there will be
other copper and gold mines to develop, but there will never be
another place as special and productive as Bristol Bay. Thank
you for your time.
[Ms. Costa's prepared statement follows:]
Prepared Statement of Anisa Kamadoli Costa, Chief Sustainability
Officer, Tiffany & Co.
Chairman DeFazio and Chairwoman Napolitano, Ranking Members Graves
and Westerman, and Members of the Committee, my name is Anisa Kamadoli
Costa and I am the Chief Sustainability Officer at Tiffany & Co.
I would like to thank you all for holding this important hearing
related to the Bristol Bay Region of Alaska and the proposed Pebble
Mine. It is an honor for me to testify here today to express Tiffany &
Co.'s longstanding opposition to the proposed Pebble Mine and to ask
for rigorous environmental review of the mine's proposal.
Since our inception, Tiffany & Co. has looked to the beauty of the
natural world for design inspiration. We also rely on the bounty of
this world for the precious materials that bring our designers'
creations to life. In other words, nature's abundance is integral to
the success of our company, given the precious materials that are mined
to be utilized in our products. As such, we believe we have a business
imperative to operate our company and source our materials in a
responsible manner that protects the planet and supports communities.
Tiffany was founded in 1837 in New York City and has since grown
into a global luxury house at the forefront of jewelry design and
expert craftsmanship. The company has retail and manufacturing
operations in 29 states and D.C., and we employ approximately 5,900
people across the United States. We manufacture the majority of our
jewelry domestically and source the majority of our precious metals
from mines and recycled sources in the U.S. Whether here or elsewhere
in the world, we take great pride in upholding exemplary standards for
environmental and social responsibility at every step in our supply
chain.
After more than 180 years of experience in sourcing precious metals
and gemstones, we have learned there are certain places where mining
simply must not occur. We risk too much in altering timeless, treasured
landscapes in pursuit of short-term financial gain. In Bristol Bay, we
believe mining would ultimately destroy the lands and the watershed,
causing irreparable harm to the communities who depend on this majestic
place. It is our view that sourcing from mines that destroy economies
and ecosystems are not good for our bottom line or our country. For
these reasons, we have publicly opposed the proposed Pebble Mine for
more than a decade.
In 2008, we were one of the first jewelers to sign the Bristol Bay
Protection Pledge and declare that should the proposed Pebble Mine be
developed, we would not source gold from it. Since signing the pledge,
Tiffany & Co. has proactively raised awareness about the danger of
mining in such a pristine place, first within the jewelry industry and
then among the broader public. We have voiced our positions in National
Jeweler, National Geographic, The Washington Post, San Francisco
Chronicle and The Seattle Times.
We continue to stand by the Bristol Bay Protection Pledge today,
alongside 100 of our colleagues in the jewelry industry and other
sectors who have since signed onto the pledge. Indeed, Tiffany & Co. is
far from alone in in our opposition to Pebble Mine. A diverse
coalition--including recreational and commercial fishing companies,
restaurateurs, conservationists and Alaska Natives--has raised a
unified voice in opposition to the proposed mine. The list of those who
believe this proposed mine should not be built has continued to grow in
recent years and now includes mining companies who previously planned
to develop the deposit. All of us concluded long ago, that this mine
represents a risk of the highest order. We all agree Pebble is the
wrong mine in the wrong place and should not be permitted.
We know from experience that when consumers view mining as
irresponsible and harmful, it does not blemish the jewelry industry
alone. All industries reliant on mined materials are impacted
negatively, from technology and renewable energy, to automotive
companies and the construction sector. Today's corporate stakeholders,
including our valued customers, expect business to be done without
destroying the country's natural treasures, including Bristol Bay.
In light of the potentially harmful environmental, social and
economic consequences which could result from the construction of
Pebble Mine, we commend the Committee for holding this important
hearing to examine the process and potential impacts of the mine
proposal. It is especially critical at this moment in time, as the U.S.
Army Corps of Engineers (Army Corps) is continuing to move forward with
permitting the mine without considering the extensive scientific data
that have clearly projected devastating consequences resulting from the
mine's development.
In particular, the Army Corps' Draft Environmental Impact Statement
(DEIS) fails to consider the findings of the Environmental Protection
Agency's (EPA) 2014 Watershed Assessment of the Bristol Bay region.
Given the Committee's jurisdiction over both the Army Corps and the EPA
on matters related to clean water, wetlands, watershed health, and
clean-up and remediation of environmental catastrophes, we respectfully
urge you to push for answers to the questions posed by the EPA on these
topics. By driving the discussion, this Committee can help ensure that
the highly predictable and catastrophic impacts of mining in the
Bristol Bay ecosystem are avoided.
As a company, we provided comments on the Army Corps' DEIS earlier
this year, highlighting various gaps in the assessment. We believe
these gaps must be addressed and that the Army Corps must disclose the
direct, indirect and cumulative effects of the proposed Pebble Mine,
given it would be built in one of the most significant, precious and
pristine ecosystems in the world.
Our recent comments focused on five major deficiencies: (i) the
limited scope of the DEIS, (ii) long-term water management, (iii) water
quality, (iv) biodiversity matters and (v) post-mining reclamation.
(i) In terms of scope, the current application is to mine 1.4
billion tons of mineralized ore. However, the Pebble deposit is
reported as at least a 10-billion-ton mineral resource. It is
reasonable to predict that mine proponents would seek to exploit the
entire mineral resource. Therefore, any review of the proposed mine
should assess the impacts of mining the entire resource.
Additionally, the Army Corps only evaluates the potential for
risks and failures over a 20-year timeline. However, this estimated
timeframe is likely far shorter than the life of the mine would be. A
100-year timeline, or even longer, would be more appropriate for proper
evaluation. The long-term pollution issues associated with abandoned
mines throughout the United States underlines the importance of looking
beyond a 20-year horizon.
(ii) Regarding water management, the proposed Pebble Mine is
located within the reaches of three separate stream systems and would
have potentially devastating consequences for both water quantity and
quality in each drainage. The Army Corps should require a water
management plan that evaluates the potential impacts on water in these
drainages and outlines proposed mitigation. The current application is
inadequate in this regard, as a detailed water management plan has not
been submitted. It is impossible to evaluate the direct, indirect and
cumulative impacts to these watersheds until such a plan has been
completed.
Further, in order to characterize the impacts of mining on
the Bristol Bay region, the Army Corps should explicitly consider the
management of groundwater and surface water as a coupled system using
an integrated hydrologic model. Hydrologists know that pumping
substantial volumes of groundwater will adversely affect surface water
and permanently degrade or destroy the effected streams. The Army Corps
should evaluate groundwater and surface water flow modeling
predictions.
(iii) From a water quality perspective, we expect there will be
both short- and long-term degradation from the mine site water
impoundments and open pit mining activities. The use of petroleum
products, large quantities of chemicals for milling processes and
erosion from heavy equipment operations degrade water quality. There is
high potential for pollution from waste rock, tailings and pit wall
leaching. A large open pit and dewatering will have negative impacts on
nearby streams and lakes. A mine waste management plan should be
included in the water management plan to account for groundwater
pollution from the proposed mine.
(iv) Though the Army Corps is currently considering a permit for a
mine at a smaller scale than originally proposed, a smaller mine would
still eliminate, block or dewater over 80 miles of streams and nearly
3,500 acres of wetlands. The loss of such habitat would significantly
impact biodiversity, as these streams are critical for the spawning and
rearing of salmon. Even with a smaller footprint--which, it is
reasonably foreseeable would expand significantly--this proposed loss
is considerably above the advised miles and acreage outlined in the
EPA's 2014 watershed assessment. We continue to urge the Army Corps to
reconcile the differences between its analysis and the EPA's 2014
analysis.
Further, it is critical to consider the potential for a
tailings dam failure as none of the dams and tailing storage facilities
would ever be removed. Such a failure would bury many miles of streams
and salmon habitats with fine sediment, destroying the possibility of
spawning and rearing. The impact this would have not only on the
ecosystem's biodiversity, but on the Alaskan communities and economies
who depend on a productive salmon fishery, is unacceptable.
(v) Finally, in relation to closure, the Army Corps does not
analyze possible future impacts of a catastrophic failure of the
tailings dam on the surrounding environment and fish and wildlife, nor
does it provide a sophisticated geochemical analysis of a tailings
dump. The Army Corps needs to evaluate all possible outcomes and should
widen its scope of risk impacts to include catastrophic dam failure. It
must also recognize a tailings dump is a permanent waste pile and will
not be removed when the mine closes. The long-term impact of a tailings
dump on water quality in the region should be carefully evaluated.
We urge the Committee to consider the many omissions in the Army
Corps' DEIS and demand they be fully addressed. The communities of
Bristol Bay and the diverse coalition that opposes the mine deserve
nothing less.
We at Tiffany & Co. look forward to continuing to source materials
and manufacture products in the United States. However, we can promise
we will never use gold from the Pebble Mine should it be developed. The
long-term threats to the Bristol Bay region far outweigh the short-term
value of any precious metals which might be extracted there.
For this generation and all those to follow, this majestic
landscape simply must be protected. We know there are other copper and
gold mines to develop, but there will never be another place so
abundant and productive as Bristol Bay.
Thank you for your time. I will be happy to answer questions at the
appropriate time.
Mrs. Napolitano. Thank you very much, Ms. Costa.
Thank you to all the witnesses. We will now have questions
for the witnesses, and again, we will use the timer to allow 5
minutes of questions for each Member. If there are additional
questions, we might have a second round as necessary, and I
will now begin.
Ms. Hurley, as a member of a sovereign nation, do you think
that Tribal consultation on the project is adequate?
Ms. Hurley. No.
Mrs. Napolitano. Why is it important that Tribal
perspective be included in the EIS?
Ms. Hurley. It is very important for the Tribal perspective
to be included in the EIS because we have lived in Bristol Bay
for thousands of years. We know more about these lands and
waters and what the potential impacts could be to our people
from a project like this more than anyone else. The Tribal
perspective should be included in the draft EIS, and to date,
it has not been included in a meaningful way.
Mrs. Napolitano. Thank you.
Ms. Costa, your company led the way in signing the Bristol
Bay Protection Pledge, committing not to source mine from
Pebble. If it is true your company seeks to source materials
only from the United States, why is it important you take this
stand?
Ms. Costa. It is important to us because what happens at
the origins of our supply chain, it matters; it matters to our
customers, it matters to our employees, it matters to our
investors and all of our stakeholders. Consumers expect us to
be sourcing responsibly, and simply put, I think anything that
puts the mining industry in a bad light is bad for our
business.
Mrs. Napolitano. Thank you.
Mr. McLerran and Mr. Borden, there is a lot of talk about
letting the process play out. You have both been involved with
the permitting from a Federal agency and then from a
developer's perspective. How does this process compare in scope
and detail?
Mr. McLerran. So--Dennis McLerran. Actually, I have never
seen anything quite like this. This is being shortcut. There
are gaps in the data. The NEPA process only works well if it is
done well, and this one is not being done well. So the process
is deeply flawed. The withdrawal of the watershed assessment--
or excuse me--withdrawal of the proposed determination was
truly extraordinary after President Trump met with Governor
Dunleavy on a plane. There was an EPA headquarters directive to
reconsider, and it was withdrawn within a matter of days. So it
appears that it was a political decision rather than a science-
or data-based decision.
Mrs. Napolitano. Thank you.
Mr. Borden?
Mr. Borden. I can say also that I am very uncomfortable
with this process. I have been involved with a lot of EISs and
many permitting processes for mines of comparable size and
smaller. I have never seen something going this fast, at least
half the time of what you would expect for such a complex
project. I also have to say the EIS that was submitted in draft
had so many omissions and errors in it that I personally would
have been ashamed to be involved with that.
Mrs. Napolitano. How does the timeline compare for Pebble
to other EIS processes?
Mr. Borden. From my analysis, the average mining project is
probably closer to the 5- to 6-year range. And the current
administration also looked at EIS process overall in the United
States over the last decade or so, and even the average EIS,
and that includes very simple highway projects, things of that
sort, they are closer to 4 to 5 years also. So this is even
less than just the average project, not even the average mining
project.
Mrs. Napolitano. Thank you, sir.
I yield to Mr. Westerman.
Mr. Westerman. Thank you, Madam Chair.
I find it interesting that we bring up draft EISs. We don't
point out that all of this is subject to review. And, you know,
just the idea that NEPA is a gold standard except when NEPA is
actually being used, and now, NEPA and the people carrying it
out are somehow villains.
And, Mr. McLerran, in a recent interview with The Seattle
Times, you said that what is happening now as a decisionmaking
process is being politicized and removed from the science. And
I find that extraordinary to be coming from you, the person who
handpicked somebody to lead the Bristol Bay watershed
assessment, that said in a public meeting that politics are as
big or a bigger factor than science, in your Clean Water Act
veto decision.
Mr. McLerran, isn't it true that a preemptive veto, such as
the one you undertook, wasn't necessary because you had no idea
if the Army Corps of Engineers was even going to grant a
permit? Isn't it the case that unless the Corps is going to
grant a permit, that a veto is unnecessary?
Mr. McLerran. So, first, there was no veto, as I explained
in my testimony. But we did, after 3 years of science, impose
restrictions on the development in the watershed, but that was
based on good science. It was a very participatory process. So
there was no predecision of that, as Mr. Collier testified.
That certainly was not the case. We went into this with open
eyes and open ears, and heard the science and made some----
Mr. Westerman. You are saying the 404(c) was not used
originally?
Mr. McLerran. We did use the 404(c) process, which Congress
has provided the authority and the power for EPA to use. We
have used that--EPA has used that very sparingly over the
years. But this is a case where the science really drove that
and merited it.
Mr. Westerman. So everyone on the committee has probably
dealt with the Corps of Engineers in some form or fashion. And
I have yet to see the Corps of Engineers get in a hurry about
anything. I have yet to see them sidestep any processes or try
to fast-track anything. Quite honestly, it has been just the
opposite of that. There has been a lot of talk about the
politicization of this process.
What exactly about the U.S. Army Corps of Engineers and its
career military team is politicized? Because I have not seen
that with any of them that I have dealt with.
Mr. McLerran. So I didn't state that the Corps of Engineers
was politicized, but I did state that the EPA process to
withdraw the proposed determination appears to have been
politicized.
Mr. Westerman. But it is the Corps of Engineers that is
doing this permit.
Mr. McLerran. So all of the Federal agencies do provide
input into that. And the U.S. Fish and Wildlife Service, the
EPA, several other Federal agencies have pointed out that the
process is deeply flawed at this point that the Corps is
undertaking.
Mr. Westerman. Madam Chairman, I yield the remainder of my
time to the gentleman from Alaska, Mr. Young.
Mr. Young. I thank you.
Mr. Collier, you have heard this comment about rushing
NEPA. How long does the Donlin mine and the rest of the mines
in Alaska, how long were their process going, permitting?
Mr. Collier. So the Donlin mine was the longest,
Congressman. It took 5 to 6 years. There are some reasons why
that took a long time, including a management change that
happened in the middle of the process and a need to slow it
down for new management to consider whether they wanted to go
ahead with the same plans that were on the table.
Mr. Young. How does that compare to the Pebble process?
Mr. Collier. Donlin was longer. But there are a lot of
projects in Alaska, mining projects, that have been permitted
in a significantly shorter time. There is a table in my written
testimony that--you saw those. But I think the clear comparison
for the hearing today, Congressman, is that I have heard
repeatedly, since I have sat here, that the Bristol Bay
watershed assessment was the gold standard process. That took
precisely the same amount of time to prepare its draft as the
DEIS took to prepare that draft, exactly the same amount of
time. So if it was enough time for the Bristol Bay watershed
assessment, that everybody thinks it ought to be upheld, it
ought to be enough time for the DEIS in this process also.
Mr. Young. I want to just say that, along that line, have
you--because I have heard this--have you talked to the local
people around Lake Iliamna and worked with them and other
groups?
Mr. Collier. Yes, Congressman, we have.
Mr. Young. Are they part of the group that Ms. Hurley
represents?
Mr. Collier. No. The group she represents is much farther
away from the project.
Mr. Young. OK. I yield back.
Mrs. Napolitano. Thank you, sir.
Mr. DeFazio.
Mr. DeFazio. Thanks, Madam Chair.
Yeah, it is not politicized. I have a media advisory from
the Army Corps of Engineers. They are going to try and rebut
this hearing with a press event afterwards, not politicized at
all. Everything is politicized with this administration.
We have comments from the EPA. This DEIS likely, and
there--this is 2019, this is Trump's EPA--likely underestimates
adverse impacts to groundwater, surface flows, water quality,
wetlands, fish resources, and air quality--nothing much to
that--including the ability of the proposed water treatment
plant to annually meet water treatment goals and water quality
standards in perpetuity.
Mr. Collier, tell me about the assets of the Pebble Mine,
in a very short sentence. What are the assets, other than this
claim?
Mr. Collier. That is it. That is all there is.
Mr. DeFazio. OK. All right. Thank you. I appreciate the
brevity.
The Department of the Interior submitted comments
suggesting that the DEIS, as prepared, does not follow NEPA
requirements and conventions for data inclusion, analysis of an
activity of this scope and scale. This is the Trump Department
of the Interior, and it is inadequate and it precludes
meaningful analysis. That is the Trump administration coming
out--Scott Pruitt--Scott Pruitt said, it is my judgment at this
time that any mining projects in the region likely pose a risk
to the abundant natural resources that exist there. Until we
know the full extent of that risk, those natural resources and
world-class fisheries deserve the utmost protection. Seriously,
Scott Pruitt. So we have a little contradiction going on here.
Mr. Borden, I was told there weren't any engineers here.
You are an engineer, correct?
Mr. Borden. I am a geologist.
Mr. DeFazio. A geologist. You worked for Rio Tinto for 23
years?
Mr. Borden. Correct.
Mr. DeFazio. And you developed mines all around the world?
Mr. Borden. Yes, I did.
Mr. DeFazio. Have you ever seen a water treatment plant
constructed that is still working, or is going to work in
perpetuity, in an area--we heard about the water--as wet as
this?
Mr. Borden. No. This would be truly unprecedented. The
flows that would need to be routinely treated, up to 19,000
gallons per minute, peaking above 20,000 at closure, and then
incredibly complex and costly multistage water treatment
process, I have never seen such high flows linked with such a
complex treatment process in my career.
Mr. DeFazio. Do you think maybe that is one of the reasons
Rio Tinto, a real mining company with real assets, pulled out?
Mr. Borden. I think I would break some confidentiality
agreements there.
Mr. DeFazio. As I recall, there were a number of major
mining companies. We are down to one who has, you know--but
also, they are not part of the shell company, so they won't
have any liability if this fails. Is that correct?
Mr. Borden. Water treatment is truly an Achilles' heel for
this project. And I had estimated that even being rather kind
and conservatively low, it would be $40 million a year every
year just to--in operating costs to run a water treatment plant
here.
Mr. DeFazio. So how is a shell company with no assets going
to do that, I wonder? Maybe they will post a $1 billion bond.
Oh, no, we don't require that, do we?
Mr. Collier. I would be happy to answer that question, if
you would like.
Mr. DeFazio. No, sir. I didn't--I want to ask another
question. We will get to you.
Mr. Collier. I thought you probably wouldn't.
Mr. DeFazio. Yes. Thank you.
How about the financial viability? You say its net present
value is negative $3 billion.
Mr. Borden. That is correct.
Mr. DeFazio. All right. Now I have a question, Mr. Collier.
Have you submitted a document on this much smaller mine showing
it is financially viable to the Corps of Engineers that is a
certifiable, real analysis? Yes or no?
Mr. Collier. No.
Mr. DeFazio. No. OK.
Mr. Collier. But if the mine is not financially----
Mr. DeFazio. No--sir, I asked you a yes or no. You answered
no. Thank you very much.
Mr. Collier. Thank you.
Mr. DeFazio. I appreciate that.
How about the height of--Mr. Borden, the height of these
dams. Are there a lot of dams this height around the world in
wet, seismically active areas?
Mr. Borden. No. This would be unique. It would be at least
in the upper 99th percentile of tailings dams constructed
globally today for height.
Mr. DeFazio. Oh, Mr. Collier looks appalled at that
statement. So--we will see if he can document something else.
So--and it will be about as tall as Hoover Dam--I mean
Grand Coulee. Sorry. Not Hoover. Hoover is taller.
Mr. Borden. It will be 545 feet high at its highest point.
I am afraid I don't know how high----
Mr. DeFazio. OK. Yeah, we are close. Yeah, OK.
And what are these constructed of?
Mr. Borden. The dam embankments will dominantly be
constructed of bedrock, which is quarried from greenfields
quarries.
Mr. DeFazio. OK. Great. Thank you very much.
My time has expired.
Mrs. Napolitano. Thank you.
Mr. Woodall, you are on.
Mr. Woodall. Thank you, Madam Chair.
I used to serve on the Oversight Committee, where we would
routinely have the folks asking the yes-or-no questions and not
giving an opportunity for folks to respond. But one of my great
pleasures in moving to the chairman's committee is that this is
a bipartisan committee where folks are actually seeking answers
instead of just trying to make a point.
And so, Mr. Collier, I actually have some other questions
for other witnesses, but you didn't get a chance to answer any
of the chairman's questions. And if they were worth asking,
presumptively they are worth answering.
Mr. Collier. Yes. Two answers that I would like to provide.
The first is, as I am sure the chairman of the committee knows
with his great experience in this area, you can't turn a shovel
full of dirt for a project like this without a bond being
posted that guarantees all of the financial closure
requirements and perpetuity requirements that have been imposed
by the permit that you are operating under.
So we couldn't start building this mine until we had posted
an adequate bond to make sure that all of those requirements
could be taken care of. That is the law today. And furthermore,
the State law in Alaska is even more severe than the Federal
laws in terms of bonding.
And as for financial viability, I don't believe for a
second that members of this committee accept the fact that this
project isn't financially viable. If it is not financially
viable, it is not going to be built. And if it is not going to
be built, what the hell are we doing here today?
So if you believe it is not financially viable, let's all
go home. But the project is financially viable. We have
invested almost $1 billion in this project to get it where it
is now, and we are going to be able to build it, and it is
going to make money as we go forward.
Mr. Woodall. I thank the gentleman.
Mr. Niver, I am glad to see here you. I confess, I don't
know much about Alaska. The Chesapeake Bay is in my back yard
here. And whenever we are talking about protecting the bay, we
rarely have families that have done generational fishing come
to testify. So I just can't tell you how pleased I am to see
folks who work for a living here making their case.
I saw in your testimony, you got started on your dad's boat
as a teenager. Did I read that correctly?
Mr. Niver. Yes.
Mr. Woodall. Does it go back another generation, or did
your dad start the company?
Mr. Niver. My dad actually got us into the fishing
business, yes, and then we expanded it. All my brothers all
ended up getting permits. And my sons are fishing with me now.
They started a company called surrendersalmon.com. They sell it
in the Midwest. They sold over 100,000 pounds of fillets last
year, and they are doing quite well.
Mr. Woodall. We are talking about protecting the watershed
and protecting that fishery.
Can your grandsons get permits today? Are permits still
being issued in that----
Mr. Niver. Well, it is a limited entry system, but they are
always being bought and sold always, every year. You can go to
a permit broker and buy a permit every year if you want. There
are a limited amount, but there are people getting into the
business and people getting out of the business every year.
Mr. Woodall. We can't compete on the east coast with Ms.
Hurley's thousands of years of dependence upon the land. But
tell me about commercial fisheries in the bay. How far back
generationally will a fishing family go? If we are not talking
about Ms. Hurley and Native peoples, what are we talking about?
Mr. Niver. Well, I mean, Ms. Hurley, her families go back
thousands of years, right?
Mr. Woodall. In the commercial fishing business, Ms.
Hurley?
Mr. Niver. In the commercial fishing, yes, it has been
going on for 135 years.
Mr. Woodall. We have got some great restaurants in Atlanta.
I just want to know how long that has been shipping our way.
Mr. Niver. All right. Well, I hope that your restaurants
are getting wild Alaska salmon, because you don't want to do
the farm salmon.
Mr. Woodall. I noticed your son was marketing in the
Midwest; he wasn't marketing in the Deep South. We will come
and talk to him after----
Mr. Niver. We will keep him away from there, OK?
Mr. Woodall. Ms. Hurley, what are we talking about in terms
of commercial fishermen in families that you represent? Are we
going back--how far?
Ms. Hurley. Yeah. I am happy to add to what Mark said. I am
actually a fourth generation commercial set-netter as well. So
my great grandmother, my grandmother, my mother, and I, and our
permits have been passed down. And that is very--a regular
practice in Bristol Bay. This is generations of fishing
families, you know, not only from a Native perspective, but
from a commercial perspective as well.
And you would be hard pressed to find anyone in Bristol Bay
who isn't connected and benefiting in a cash economy in some
way, either directly or through a support industry, from the
sustainable commercial fishery that has provided for this
region economically and for the State and the Nation for over
135 years and counting, with record runs this last year, 54
million salmon.
Mr. Woodall. Given those high stakes, Ms. Hurley, what I
thought I understood in your testimony--I think shape-shifting
was the reference you made. But there is no proposal that you
could see for this mine that will satisfy your concerns, that
your sense is that this mine cannot be built in any way and
have the Tribes' concerns addressed.
Ms. Hurley. Yeah. So what we have seen is with the
company's proposal, that has changed in different ways, it has
not changed in any way that changes our mind that this will not
impact fisheries. We have seen this throughout history,
throughout other mines.
Ms. Mucarsel-Powell [presiding]. Thank you, Ms. Hurley. The
time is up.
Now I would like to recognize the gentlelady from Texas,
Ms. Johnson.
Ms. Johnson of Texas. Thank you very much. I ask unanimous
consent to put my opening statement in the record.
Ms. Mucarsel-Powell. Without objection.
[The information follows:]
Prepared Statement of Hon. Eddie Bernice Johnson, a Representative in
Congress from the State of Texas
Madam Chairwoman, there are serious concerns with the Pebble Mine
Project in Bristol Bay, Alaska.
Bristol Bay is an American treasure and economic engine. It is home
to the world's greatest wild salmon fishery that generates $1.5 billion
annually, fuels Alaska's economy, supports 14,000 jobs, and feeds
indigenous communities. The proposed Pebble Mine threatens the entire
region--its people, water, fisheries, and wildlife.
As Chair of the Science Committee, we have oversight of the EPA. I
have been concerned about this issue for quite some time.
We have been here before with hearings on EPA and the proposed
Pebble Mine. As far back as August 2013, the Science Committee held a
hearing on the EPA's Bristol Bay Watershed Assessment. It held a second
hearing titled, ``Examining EPA's Predetermined Efforts to Block the
Pebble Mine.'' That hearing included the CEO of the Pebble Partnership
and two of the company's paid consultants.
We also heard from an EPA witness, Mr. Dennis McLerran. As the EPA
Administrator of Region 10, that includes Oregon, Washington, Idaho and
Alaska, he played a pivotal role in helping the EPA carry out its
critical mission of protecting human health and the environment.
Madam Chairwoman, commercial fishermen in Bristol Bay,
environmental groups, Native Alaskan Tribes, and even jewelry companies
such as Tiffany & Company, were and are, deeply concerned that a mine
in Bristol Bay would destroy the splendor and unspoiled beauty of this
unique watershed, and cripple the economic livelihood of thousands of
its residents who rely on its world-renowned salmon fisheries. All
those groups called on the EPA to take action to protectthis critical
environmental resource.
I have heard from constituents in my district in Dallas on this
issue.
They are also opposed to this mine. This should not be a political
issue. I believe, as others have said, that the proposed Pebble Mine in
Bristol Bay is simply the wrong mine in the wrong place.
The potential development of the Pebble Mine in Bristol Bay poses
an extreme adverse threat to U.S. waters. We must not allow that to
happen. We must continue to protect the waters of the United States.
Ms. Johnson of Texas. Thank you.
Mr. Kraft, at one point you were supportive of the Pebble
Mine project. What made you change your mind?
Mr. Kraft. Actually, Ms. Congresswoman, what changed my
mind was actually a presentation by Northern Dynasty at my
lodge. I had the CEO of--then it was Northern Dynasty that
owned the deposit, wasn't in the Pebble Partnership. And he
came to the lodge, at my request, and we had people from the
Village of Igiugig, a Native village 4 miles from my lodge,
came down, population of 35 people year-round.
We came down and we all had concerns about what was going
on. We are the first village downriver from the proposed mine
site. And he did a presentation that looks very similar to the
presentation that we see today. Frying Pan Lake, a headwater
lake, it starts one of the salmon-bearing streams, is going to
be gone. And he started pointing this out, and we are
scratching our head, going, that doesn't sound so good. And
this much habitat is going to be consumed and this much acreage
is going to be gone.
So it was at that point that we started asking questions
and saying, wait a minute, maybe this isn't what is right for
this area and for this region. So it was an educational journey
that we went on. And it was talking to mine people and finding
out what were the good mining decisions, why they went in where
they did, and why they didn't go where they did.
And so it just--it was evolutionary, over time, finding out
that, look, this area, one, it is aqueous, the water table is
at 6 feet, everything is interconnected. We have got salmon
identified in landlocked-looking lakes, which means they travel
underground. And finding out the connectivity of the entire
system, it just became very obvious very quickly that an
industrial development that digs a big hole and consumes the
habitat is probably not the right thing for this fishery.
Ms. Johnson of Texas. There is the argument that if the
mine is smaller, the impacts are smaller. Do you agree, or what
size mine would have no impact?
Mr. Kraft. Ms. Congresswoman, it is--it is hard to get to
yes because of the sheer location. Location, the size, and the
scope of it. The Pebble Partnership has tried to put forth a
mine plan that Mr. Collier thinks is permittable. I think that
the strategy is not beyond anybody's reasonable assumption that
as soon as this permit gets OKed, that they are going after the
entire deposit.
It would be ludicrous to think that, on a business sense,
you are going to put in the capital infrastructure, the roads,
the ports, the powerplant, the extraction mechanisms, to get to
one-eighth of the deposit and leave seven-eighths of the
deposit in the ground. So it is very hard to get to yes on
this.
Ms. Johnson of Texas. Thank you very much.
Mr. Niver, you are a multigenerational family fisherman. If
the salmon fishery was severely impacted, what would it mean to
your family and to the community in Alaska or even the United
States that depend on this fishery?
Mr. Niver. Yes. It would--the impact of the mine will be
substantial to all fishermen in the Bristol Bay watershed. And
we are talking about putting an open-pit mine of the largest
kind in the United States between the two largest salmon-
producing rivers in the world. I mean, we are only like 3 miles
from Lake Iliamna and about 1\1/2\ miles from the upper reaches
of the Nushagak River system. It will have an impact on all
fishermen in Bristol Bay.
Ms. Johnson of Texas. OK. Thank you very much.
Mr. Niver. Thank you.
Ms. Johnson of Texas. Now, Ms. Hurley, can you talk a
little bit about the area's importance to the Alaska Natives
who call the Bristol Bay watershed home? Quickly.
Ms. Hurley. I am sorry. I didn't catch the beginning of
what you said. Talk to the----
Ms. Johnson of Texas. Why this area is important to the
Alaska Natives.
Ms. Hurley. Yeah. Sorry. This is very important to us. This
is a human rights issue. This is an indigenous rights issue.
This is an environmental justice issue for our people. If our
lands and waters are devastated, our people are devastated and
can no longer exist. We don't have a choice. We have to fight
this project for the survival of our people.
Ms. Johnson of Texas. Thank you very much. My time has
expired.
Ms. Mucarsel-Powell. Thank you.
I now recognize Mr. Bost from Illinois.
Mr. Bost. Thank you, Madam Chair.
Because I think that he has the questions that are vitally
important to his State and where he represents, I would like to
yield my time to Representative Young, please.
Mr. Young. Thank you.
And, Mr. Collier, have you secured the necessary property
rights permissions to develop the project?
Mr. Collier. Yes, we have.
Mr. Young. You have talked to--includes surface
transportation and surface transportation and roads that can be
built?
Mr. Collier. Yes. In fact, the two village corporations in
Alaska, that is Native Government corporations, that own the
majority of the land in the--Lake and Pen Borough where we are.
Mr. Young. So they actually support the project?
Mr. Collier. They support the project and have entered into
right-of-way agreements with us and contractual cooperation
agreements.
Mr. Young. The reason I ask that question is I have heard
some people are claiming that they own the subsurface, and that
would stop road. That is not the law, to my knowledge.
Mr. Collier. That is not the law.
Mr. Young. And these are Native groups too?
Mr. Collier. That is correct.
Mr. Young. That is good.
Just out of curiosity, Mr. Borden, what do you do now?
Mr. Borden. I retired from Rio Tinto in January of this
year, and I am now running my own consulting firm.
Mr. Young. For mining?
Mr. Borden. Yes. So far, I have had five clients this year,
three mining companies and two NGOs.
Mr. Young. Just curious. Rio Tinto is a pretty good
operation.
I think everybody--anybody disagree that this is a draft
statement from the Corps of Engineers? Everybody agree with
that or disagrees with it?
Is it a draft?
EPA is a draft too?
We are all talking about drafts here. These are not final
products. And I think everybody in that table, both sides, have
made up their mind already. This is about science. I don't see
much science here. Everybody--I hear you referring to the
scientists. What scientists? Who were they? Mr. McLerran, who
were they?
Mr. McLerran. So the watershed assessment was done by EPA's
Office of Research and Development in conjunction with region
10. That was EPA's science office.
Mr. Young. You already made up your mind, didn't you----
Mr. McLerran. No, never made up----
Mr. Young [continuing]. Made up their minds?
Mr. McLerran [continuing]. Our mind. During the--during the
pendency of the watershed assessment, I knew I was going to be
the decisionmaker on whether we use 404(c) or not and making a
proposed determination. Ultimately, the decision would be made
by headquarters Office of Water.
But, no, I had not made up my mind. I wanted to see what
the science said. I wanted to learn more about the watershed,
and that is what the process we did with those scientists
informed me.
Mr. Young. What is your employment now?
Mr. McLerran. So I am an attorney and----
Mr. Young. I figured that.
Mr. McLerran [continuing]. Policy consultant in Washington
State.
Mr. Young. All right. I yield back.
Ms. Mucarsel-Powell. Thank you.
I now recognize Representative Carbajal for 5 minutes.
Mr. Carbajal. Thank you, Madam Chair.
Ms. Costa, thank you for your testimony before our
subcommittee today to discuss your concerns with the Pebble
Mine project.
From what we have heard today from you and some of the
other witnesses, this proposed project poses a significant
threat to the natural environment and commercial fishermen
interests in Bristol Bay.
You mentioned that in 2008, Tiffany & Company was one of
the first jewelers to sign the Bristol Bay Protection Pledge,
and continues to oppose this project, proposed Pebble Mine
project.
Can you elaborate further on why a successful business like
Tiffany would oppose a mining project like this? And, two, are
there other businesses that have signed the Bristol Bay
Protection Pledge?
Mr. Costa. Thank you for the question. Yes, there are many
other businesses that have signed on, many other sectors and
over 100 jewelers that have signed on to the pledge itself. And
as I referenced, it has always been critical to us to make sure
that we understand the origins of our supply chain because of
what we are selling, our jewelry. But I think that it is even
more critical now, because consumers are demanding to
understand the origins of our products, and it is upon us to
make sure that we are sourcing responsibly. And we feel, simply
put, that this is the wrong mine in the wrong place at the
wrong time, and that is why we have stated that we will not
source from Bristol Bay--from the Pebble Mine should it move
forward.
Thank you.
Mr. Carbajal. Thank you very much.
Mr. Chairman, I yield back.
Mr. Garamendi [presiding]. Mr. Weber, if you would care to
take 5 minutes here.
Mr. Weber. Thank you, sir.
I appreciate our colleague from Alaska's comments earlier
about--that would be Congressman Young--that everybody on both
sides seems to have made up their mind. And as I sit here
today, I think it is extremely telling that in one opening
diatribe that the name of Donald Trump was once again invoked,
mentioned, and once again maligned. It seems apparent that the
hatred for the President is being, dare I say, mined to the
deepest depths in order to continue the false narrative that
President Donald Trump is pretty much to blame for just about
everything. It is old.
The actual depths that that hatred is being mined to
appears to be one of the deepest despair that President Trump
will actually continue to do what he was elected to do, and as
one of the Democratic Members said in a televised interview,
they are actually afraid that Donald Trump will get reelected,
he has to be impeached. They fear that he might be reelected.
They don't trust the American public to make the right
decision.
So I want to associate my remarks with Mr. Westerman when
he was here and with Mr. Young. Why doesn't this committee
focus on what we are here to do? And that is a highway bill, a
water bill, and other priorities. Why don't we focus on
actually helping build and sustain the good American economy
that has made tremendous gains and gigantic leaps, dare I point
out, under President Donald Trump? Why don't we?
Oh, that is right. It might remind many Americans of what
is already apparent, that the Donald Trump administration's
agenda is actually benefiting America and Americans.
Well, as Congressman Young said, follow the process, in his
opening--in earlier comments. Of course, he was referring to
the environmental impact process that has been used for many a
year, and might I add, long before President Donald J. Trump
came along and took the reins and catapulted our economy into
high gear.
So why not focus--why doesn't this committee focus on, dare
I use the word, the best sustainable economy of arguably the
last 30 to 50 years? Let's get to work on behalf of Americans
to continue the process that has benefited the most people in
this country in recent memory. Our citizens deserve no less.
Now, having gotten that out of the way. I have some
questions. Mr.--I have 2 minutes and 24 seconds. Thank you, Mr.
Chairman.
Mr. Collier, you were able to--thank you to Mr. Woodall
from Georgia for allowing you to answer a couple of questions
about maintaining the water. But I also remembered a remark by
Mr. Borden that there was 99 percent of something that couldn't
be done, and you kind of looked at him incredulously. Remind us
what that was and what your answer was.
Mr. Collier. He stated that the height of our tailings
facility dam was in the 90-something percentile in terms of
dams in the world. And that is just not true. It is about in
the middle of the percentile.
And there are a number of statements like that that have
been made by Mr. Borden, including that the water treatment
facility design here is unprecedented. That is a word with a
technical meaning. It means it has never been done before. That
is just wrong. And there are--there are a number of those.
And one more, while I am kind of on a roll here, if I
could. I am particularly interested in Tiffany's statement that
they won't source from Pebble Mine if we get our permit and we
are built, particularly in light of the fact that Tiffany's
took a position a number of years ago before the SEC--before
the Securities and Exchange Commission that they shouldn't be
held to a particular standard in the conflict gold debate
because they couldn't source gold. So if you can't source it,
how are they going to--it is a publicity stunt to have done
this. It has no meaning in reality.
Tiffany's real contribution to this project was to
contribute some money that was used by one of the NGOs to hire
a woman named Ann Maest to do a number of studies that the
Bristol Bay watershed assessment then relied upon. Ann Maest,
in an action in New York, a RICO action in New York, admitted
that she had made up her data and her conclusions in another
legal proceeding.
Mr. Weber. Is that in a deposition?
Mr. Collier. Actually, she admitted it in order to be
withdrawn as a defendant in the RICO action. But under oath, in
that proceeding.
So--and just one more point--I have run out of time. But I
hope I have a chance to make one more. Thank you, sir.
Mr. Weber. OK. Well, thank you.
I appreciate the chairman's indulgence, and I yield back.
Mr. Garamendi. Just when it was my turn and I was about to
yield as much time as I might consume, I turn the chair back
over.
Ms. Mucarsel-Powell [presiding]. I apologize for all the
musical chairs. I had to vote in the Judiciary Committee, and
that is where I had to go.
But now I would like to recognize--and thank you very much
to our great Representative Garamendi for stepping in for 5
minutes.
Mr. Garamendi. Thank you.
I am going to start in the 1860s. A Native American woman
in the community of which I was raised said, and they came and
they cut down the trees and they burned them. We would take the
dead wood to warm ourselves. And they went to the hills, and
they removed the rocks and filled the rivers. One hundred fifty
years later, my part of California continues to resonate with
the residue of the great California Gold Rush.
In the 1990s, mid-1990s, Mr. Collier, you and I were both
at the Department of the Interior, and this project was
proposed at that time. I had the pleasure of traveling as the
Deputy Secretary of the Department of the Interior to this
area, spent nearly a week in the area looking at all that was
going on. Went down one of the rivers in a raft and flew over
the Pebble Mine area.
There are some places that are special. My part of
California is no longer special. The residue of the mines is
still there, the mercury is still in the river, still causing
problems, and the floods occur as a result of the mining that
took place. There are some places you simply shouldn't rip the
rocks from the hills and fill the valleys. That Native American
woman was correct.
I am sure this project could be built. But 150 years from
now, when the miners have left and the residue of the mine is
there, it will contaminate the rivers, it will contaminate the
bays, and my daughter and son-in-law that have spent every
summer in the Tikchik Lakes will not see the salmon that are
there today, nor will their grandchildren and their
grandchildren. There are some places that simply should not be
mined, and this is one such place.
I am familiar with this. I dealt with this in the 1990s.
And at that time, Secretary Babbitt, who told me, take care of
Alaska, I did my best, and one of the things that we said
should not happen is Pebble Mine. Twenty-four years later,
Pebble Mine should never happen. Not now, not tomorrow. There
will be another developer coming through with some great plan
about how much money can be made.
But I will tell you, from my experience in California, my
family's experience over three generations--four now--is that
some places are precious, unique. This particular part of the
world, the globe on which we all live, is really unique. There
is no other place like it. The economic activity here is
salmon. It is recreation, it is tourism, all of which would
decline substantially if Pebble Mine and mines in this
particular area ever come to be.
And so today we hear, once again, 24 years after I first
heard it, about the potential profit to be made and the
potential damage--not the potential--the real damage that would
occur from that profit that could be made. And so we simply
should say, no, not here, not now, not ever. Not here, not now,
not ever. Some things should be left alone.
I yield back.
Ms. Mucarsel-Powell. Thank you, Representative Garamendi.
I now recognize Representative Weber for 5 minutes.
Mr. Weber. Thank you, ma'am. Appreciate that.
Mr. Niver--am I saying your name right? Is it Niver?
Mr. Niver. It is Niver.
Mr. Weber. OK. All right. Well, I appreciate that. Thank
you for the correction. If you are like me, you have probably
been called worse, and recently too.
Mr. Niver. I probably have.
Mr. Weber. Yeah. When you--and I owned an air-conditioning
company for 35 years, small business guy, that I started from
scratch, so I am familiar with how that works. So when you
started doing fishing and stuff and you decided that you were
going to go in and you are going to buy a fishing vessel, you
quoted some numbers. Couple hundred thousand dollars?
Mr. Niver. Today, they are around $250,000 on average to
get into a Bristol Bay boat.
Mr. Weber. Right.
Mr. Niver. Yes.
Mr. Weber. So you made the business decision, you
calculated that out, and said, OK, there is some risk here, I
am going to invest, it is going to take hard work. I know what
that is about. But you hung in there and you made it work. But
that was a calculated decision you made?
Mr. Niver. Yes.
Mr. Weber. And your dad made one before you, sounds like.
Mr. Niver. Correct.
Mr. Weber. You betcha.
And I appreciate the other side's concern about Pebble
Mine, that y'all might not make money, you know, and looking
out for them. But wouldn't it be safe to assume that they made
the same--y'all made the same calculated decision, Mr. Collier,
that they did when they bought boats, you actually calculated
this out? You betcha. And so it is going to make money for you.
That is a good thing.
I am going to stay with you, Mr. Collier, for a second.
Been a lot of talk about the DEIS, draft environmental impact
statement, about the deficiencies in that DEIS. And
Representative Young, Congressman Young pointed out that it is
just a draft, just simply a draft. And I think it is very--it
is an important point to remember that it is just the draft.
Is it true, Mr. Collier, in your experience, that the Army
Corps will need to address--look at that draft and is currently
undertaking to look at that draft, and they will actually
address a response to the EPA's concerns over that DEIS, or
draft environmental impact statement? Isn't that going to
happen?
Mr. Collier. Of course. That is the way the process works.
And to add to that just a little bit, there have been three
pretty powerful points that have been made by this side of the
room. One is that the political fix is in, and that is why we
are where we are in the permitting process. The second is the
process is being rushed. And the third is DEIS is inadequate.
And one of the things that has been pointed to repeatedly
are the criticisms that have been filed by EPA and by the
Department of the Interior. And the point I want to make is
that they don't support those three points. In fact, they run
directly against them.
If the political fix is in, why is it that Trump's EPA and
Trump's DOI are criticizing the draft environmental impact
statement?
Mr. Weber. I talked about that in my opening remarks. Go
ahead.
Mr. Collier. It is just--it is absurd, and it is internally
inconsistent position to take.
Second, if this is a rushed process, why are these agencies
building speed bumps for the process? I mean, that is crazy.
And then the third point--and this one is the most
important--now that these criticisms have been put on the
table, it is incumbent upon the Corps of Engineers to address
them and address them thoroughly. And if they don't address
them thoroughly, then a court is going to throw this permit
right out the door the minute it is issued.
And so one of the things that has happened is that the
process is, in fact, working, which was your original point.
This is a draft. Criticisms have been put on the table, and
those criticisms are going to be addressed. And if they are not
adequately addressed, we won't be able to have our permit
upheld when the courts review it.
Mr. Weber. And isn't it also true that if for some reason
after the draft is thoroughly vetted, that if there is a
problem, the EPA is still not satisfied, they still have the
ability to use their 404(c) authority?
Mr. Collier. That is correct.
Mr. Weber. That is a true statement?
Mr. Collier. That is correct.
Mr. Weber. So, you know, let the process go forward, let it
be thoroughly--after all, wouldn't we want as much science, as
much information as we can to let the process go forward, let
it be vetted as nearly and as clearly and as thoroughly in
depth as it can be?
And so I just thank you for being here.
And I am going to stop there, Madam Chair. I am going to
yield back.
Ms. Mucarsel-Powell. Thank you, Mr. Weber.
I now recognize myself for 5 minutes.
Thank you for all of you for coming here.
And I just want to say, Ms. Hurley, I hear you loud and
clear. And we are going to do everything we can in this
committee to conduct the appropriate oversight of this project.
I represent south Florida. And the Pebble Mine site is more
than 4,000 miles away from my district, which makes my district
the farthest district from this mine location. But even yet, I
am that far, I have very strong concerns about Pebble Mine,
because it has such serious potential consequences for our
environment, the fisheries, the indigenous populations, and
water quality.
Mr. Collier, in your testimony, you repeatedly refer to the
draft environmental impact statement, which was released in
February, when making the case that there won't be any
significant environmental impact. But I think you need to do
much better than that.
The EPA, under the Trump administration, the most anti-
environment administration we have had in decades, the Trump
EPA argued that the DEIS, quote, ``likely underestimates
adverse impacts to groundwater and surface water flows, water
quality, wetlands, fish resources, and air quality.''
Similarly, the Trump administration's Department of the
Interior concluded that the DEIS is so inadequate that it
precludes meaningful analysis. And I think that that's very
damning.
So I ask for unanimous consent to enter into the record two
articles, one in the Juneau Empire entitled, ``Scientists:
Pebble Mine study doesn't account for all risks,'' and one from
the Anchorage Daily News saying, ``Pebble Mine EIS is fatally
flawed.''
[The information follows:]
Article from Juneau Empire, Submitted for the Record by
Hon. Debbie Mucarsel-Powell
scientists: pebble mine study doesn't account for all risks
Group presents to Alaska House Resources committee
https://www.juneauempire.com/news/scientists-pebble-mine-study-doesnt-
account-for-all-risks/.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Gayla Hoseth, 2nd Chief of Curyung Tribal Council and Director of
Natural Resources at Bristol Bay Native Association, left, Norman Van
Vactor, CEO of the Bristol Bay Economic Development Corporation,
center, and former Alaska legislator Rick Halford, present at a press
conference against the Pebble Mine project on Monday, April 1, 2019.
(Michael Penn, Juneau Empire)
By Mollie Barnes
Wednesday, April 3, 2019
Representatives have been grappling with the a proposal to develop
a mine near Bristol Bay.
As a part of the wider discussion, the House Resources committee
heard Monday from a group of scientists and advocates who disagree with
the Pebble Mine project which proposes developing the Pebble copper-
gold-molybdenum porphyry deposit (Pebble Deposit) in southwest Alaska
as an open-pit mine, with associated infrastructure.
A group of scientists and Bristol Bay residents held a press
conference, detailing concerns with the draft environmental impact
statement (DEIS) released by the U.S. Army Corps of Engineers in
February. Some critics have said the 90-day comment period for this
DEIS is not long enough, considering the length of the document.
The chief concerns were that the DEIS used too short of a time
frame to associate the risks of the mine, it used an inappropriate fish
habitat assessment, cumulative risks were essentially ignored, there
was very little mention of long-term risks associated with climate
change and that it used selective use of scientific literature when
backing up claims.
``It is absolutely clear that it has way underestimated risks and
does not pass as credible science,'' said Daniel Schindler, a professor
in the School of Aquatic and Fishery Sciences at the University of
Washington during the press conference.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Dr. Daniel Schindler, a professor in the School of Aquatic and Fishery
Sciences at the University of Washington, left, and Dr. Cameron Wobus,
a Senior Scientist at Lynker Technologies, present at a press
conference against thePebble Mine project on Monday, April 1, 2019.
(Michael Penn, Juneau Empire)
Resources Co-Chair, Rep. Geran Tarr, D-Anchorage, says that the
Army Corps of Engineers will be speaking in front of the committee on
the same topic soon.
Norman Van Vactor, a longtime participant in Bristol Bay fisheries
and current CEO of the Bristol Bay Economic Development Corporation,
said that he has absolutely no confidence in the Army permitting
process.
``To allow Pebble to drive this permitting process makes absolutely
no sense and defeats the purpose of a permitting process to begin
with,'' he said at the press conference. ``(The) process should be
testing their assumptions, not taking Pebble at it's word. . . .
Science drives the decision-making, not industry speculation, fantasies
or good intentions. The Army Corps' draft is the complete opposite--it
ignores well documented data and is missing critical info. . . . Why
are we lowering the bar to the lowest level possible? Alaska should be
upholding strong standards and science-based permitting in all
industries not just some.''
The group also took problem with the economic implications of the
mine, saying that major mining companies would not invest in the
project because it would not net enough profit if it was only open for
20 years, the period the DEIS draft uses.
``The economic world says this doesn't work either,'' said Rick
Halford, a former Alaska legislator. ``Everything they do is designed
to get a permit, and the permit is going to be worthless. This mine is
at least a mile deep and it's the richest at depth and to mine your way
down to the money and then stop is a ridiculous assumption.''
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Former Alaska legislator Rick Halford, right, and Norman Van Vactor,
CEO of the Bristol Bay Economic Development Corporation, present at a
press conference against the Pebble Mine project on Monday, April 1,
2019. (Michael Penn, Juneau Empire)
They change in the middle of the process, Halford said. ``They came
in with a number for the size of their small mine . . . within months
they've increased that by 25 percent. They're not bound by what they're
trying to get a permit on and they know it.''
During the committee presentation, Rep. Ivy Spohnholz, D-Anchorage,
said that there are more jobs at risk from potential effects of the
mine than the mine itself would create. This comment came after Rep.
Sara Rasmussen, R-Anchorage, asked how many of the fishery jobs were
held by workers from out of state.
``Forty-eight percent of Alaska's salmon comes from the region,
14,000 direct jobs (at the fishery) compared to 750 jobs presented to
us last week by Pebble Partnership,'' Spohnholz said. ``Even if only
half of those go to year-round residents, that is a lot of jobs for a
region in which people have lived for millenea. I think that's a very
important distinction to make.''
Rasmussen also asked, ``Why are so many people migrating from
Southeast Alaska?''
She said a number of families have migrated to her district from
the area and that the Pebble Mine could support infrastructure that
would slow this migration.
Van Vactor said people migrate for different reasons. He said if
the Pebble Mine project were to go through it would be mostly workers
who come in for a certain period of time just to work at the mine, more
like oil field workers rather than longtime residents.
A big issue the scientists said they had with the EIS was that the
timeline was way too short to evaluate risks and that a 100 year
analysis would have been better than a 20 year one, because the
tailings dam has a 1 in 5 chance of failing over a century.
``There's a lack of confidence in the Army Corps permitting process
as it relates to this EIS project,'' Van Vactor said. ``I would ask the
hundreds of thousands if not millions of Americans in the Midwest right
now how much confidence they have in the Army Corps of Engineers
certification process as it relates to the dams and levies that have
failed and flooding that is happening throughout the U.S.''
Article from Anchorage Daily News, Submitted for the Record by
Hon. Debbie Mucarsel-Powell
opinion: pebble mine eis is fatally flawed
https://www.adn.com/opinions/2019/09/27/pebble-mine-eis-is-fatally-
flawed/
By Phil Brna
September 26, 2019
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
This is an aerial view of a work camp in the area of the proposed
Pebble Mine in Iliamna, Alaska, seen on Tuesday, August 27, 2013. The
Pebble Mine could be the largest open pit mine on the continent, with
an earthen tailings dam higher than the Washington Monument to hold
mine waste for hundreds to thousands of years, according to an
Environmental Protection Agency analysis. (Bill Roth/ADN archive)
The Environmental Impact Statement, or EIS, process and the
document for Pebble mine by the Corps of Engineers are deeply and
fatally flawed. I spent my entire professional career of 42 years
working for the Corps, Alaska Department of Fish and Game, U.S. Fish
and Wildlife Service and, as a consultant, on review and regulation of
large and small development projects in Alaska. I worked on roads, oil
and gas drilling and development, pipelines, refineries, utility lines,
ports, boat harbors, hydroelectric projects, military projects, and
many large and small mines.
During my career I was directly involved with preparation of
several dozen EIS's and I reviewed dozens more. Pebble is the largest
and potentially most destructive project I have ever been involved
with. The environmental resources at risk in Bristol Bay from Pebble's
development and operations are the most precious, unique and
susceptible to long-term and irreversible damage of any project in my
experience. I have not seen an EIS as poorly written and inadequate as
the Pebble draft EIS.
Although there are many issues to be concerned about, I want to
focus on Pebble's environmental baseline studies, which were begun and
completed years before Pebble applied for a Corps permit. Environmental
baseline studies are intended to show the current state of the
environment in a project area so that potential project effects can be
predicted and measures to mitigate the harm can be proposed. They also
serve to guide long-term monitoring during and following operations.
Pebble's study designs for baseline studies were inadequate and not
based on best-available scientific methods.
This was because Pebble did not want to know or to ultimately
divulge to the public the actual scope, importance of and risk to fish,
wildlife, water and subsistence resources. I call their studies the
``illusion of good science.'' Others have called it ``junk science.''
If they had conducted proper studies, the results could have been used
to oppose the project. Scientific fact would have undermined Pebble's
hollow claims of ``no harm.'' Pebble repeatedly said its studies were
``state of the art'' and cost millions of dollars. However, state and
federal agencies said over and over that Pebble's study objectives and
methods were not statistically defensible or repeatable, and their
financial cost was irrelevant.
Pebble's baseline environmental studies were not designed to or
intended by Pebble to tease out the differences between natural, long-
term environmental change and long-term acute or chronic effects of a
mine, as recommended by the agencies. Pebble artificially limited the
scope, time and geographic extent of their studies. State and federal
agencies repeatedly suggested ways for Pebble to design scientifically
defensible studies. Those suggestions were largely ignored. If the
baseline environmental science is bad, Pebble cannot be held
accountable for the damage it will do. Independent science clearly
shows Pebble mine will result in disastrous long-term and irreversible
effects on fish, wildlife, air, water and, most importantly, local
people and their subsistence way of life. This may not happen in my
lifetime, but it will happen.
This then is the first major flaw of the Corps' EIS process. The
Corps has not independently evaluated the inadequate baseline
environmental information they were presented by Pebble. Rather, they
accepted it and used it to develop their flawed draft EIS. The remedy
for this fatal flaw is for the Corps to begin again. First, by
conducting an expert and independent review of the Pebble baseline
environmental studies, and then requiring Pebble to complete
scientifically meaningful studies. This may take years, but only then
should the Corps accept an application and begin an open and
transparent EIS process.
Agencies like the U.S. Fish and Wildlife Service, the Department of
Interior, and the Environmental Protection Agency have noted numerous
EIS deficiencies. For instance, the Department of Interior said the
draft EIS ``does not fully discuss the potential impacts of the
proposed mining activity'' and ``lacks a number of important analyses
that are necessary to adequately assess the project.'' The Interior
Department also said the draft EIS ``was so inadequate that it
precludes meaningful analysis.'' The Corps has no responsible choice
except to begin the Pebble EIS again.
Phil Brna is a retired wildlife biologist living in Anchorage.
Ms. Mucarsel-Powell. Moving forward with this mine is
utterly irresponsible and will be putting at risk $1.5 billion
in annual economic output from the sockeye salmon fishery,
which provides half of the world's supply. We will be putting
at risk more than 10,000 jobs in the area. We will be putting
many Alaska Native villages in harm's way to benefit a company
that is not even a U.S.-based company. This is the epitome of
carelessly putting profits over health and safety.
And my first question, Mr. Collier, because I have watched
you all morning rolling your eyes, listening to the concerns of
the people that are actually living in this area. It was
reported that if you were to get the permit by the EPA, a quick
approval from the Corps, you will receive a bonus of $12.5
million. Is that correct?
Mr. Collier. Yes, it is.
Ms. Mucarsel-Powell. OK. Thank you.
Mr. Borden, the proposed mine would be operational for 20
years. After that, it would, in theory, be reclaimed. But that
doesn't mean that everything goes back to normal.
Can you just explain how the mine would cause damage, long-
term damage, and the likely extent of the damage?
Mr. Borden. Yes, I am happy to. So the Pebble Limited
Partnership has proposed some mitigation actions at closure,
which do lower some of the risks, such as returning the acid-
generating tailings and waste rock back to the open pit. But a
lot of the other water quality issues that will persist for
decades to centuries to potentially millennia have not been
fully addressed.
For instance, there will be a water treatment liability of
probably 5,000 gallons per minute that will persist for
centuries after mine closure coming from the pit high walls.
There is a risk from the pit high walls failing, releasing
billions of gallons of contaminated water after closure.
Several of the relatively benign waste rock piles still produce
water quality which is not suitable for release. All that water
would need to be treated. And this could go on for decades and
decades to centuries after the formal closure process.
Ms. Mucarsel-Powell. Thank you, Mr. Borden.
And I have heard from the minority Members on my left that
we shouldn't be conducting this hearing. And I don't think
there is anything more important than water. And it is our job
to conduct this important oversight.
Mr. McLerran, I am troubled also by the recent allegations
of insider trading. You are a lawyer. You are a former EPA
official. Can you help us understand what secrecy rules the EPA
employees must abide when it comes to forthcoming EPA
decisions?
Mr. McLerran. So I can't speak to the current state of
facts, but I can say that leaking decisions before decisions
are made and then having someone capitalize on those could very
well be an insider trading problem with----
Ms. Mucarsel-Powell. Yeah. Thank you. And just because we
are short of time. I just don't understand why there is any
other explanation as to why there was such a significant
increase in Northern Dynasty stock trades shortly before the
EPA's decisions to lift the protections for the area.
And for that, now I am going to----
Mr. Collier. May I respond to that?
Mr. Mucarsel-Powell. No. We are out of time. Thank you.
Mr. Collier. So you make an allegation----
Ms. Mucarsel-Powell. Mr. Westerman, I now recognize you for
5 minutes.
Mr. Westerman. Thank you, Madam Chair.
And I would like to give Mr. Collier a moment to respond.
Mr. Collier. Thank you.
Northern Dynasty has denied unequivocally on the record,
under oath, that we had any advance knowledge of that decision,
zero. That complaint was filed by Earthjustice, which has a
record of filing complaints that don't have adequate factual
basis behind them. And, in fact, they filed one sometime ago
against Northern Dynasty that the Securities and Exchange
Commission didn't even find credible enough to investigate.
There is no factual basis whatsoever for that claim, and it
shouldn't be treated as though it is factual just because it is
filed. That is not the way things work in this country. And so
I want to adamantly state that we had no such advance knowledge
at all of the decision, nor did we know what the decision was
going to be.
Thank you.
Mr. Westerman. I would also like to make note that we have
not said this is not an important issue. As a matter of fact,
this is my third term in Congress, and this isn't the first
hearing I have had on the Pebble Mine, not even the first
hearing in--not just this committee, but the Natural Resources
Committee. There has been hearing after hearing on the Pebble
Mine. And we are actually now into the permitting process,
using the guidelines that Congress has established, that the
agencies are carrying out.
Mr. Collier, have you been granted a permit?
Mr. Collier. No, we haven't.
Mr. Westerman. Have you been told you are going to get a
permit?
Mr. Collier. No, we haven't.
Mr. Westerman. So we are letting the process play out. You
may or may not get a permit when the process is complete?
Mr. Collier. That is correct.
Mr. Westerman. Can you talk more about the differences that
are in the application you supplied versus what was reviewed in
2014? I know you have talked about that some, but it is almost
as if a case is being built that what was denied in 2014 is the
exact project that is being proposed now.
Mr. Collier. No. In fact, in the statement that was issued
by EPA when it withdrew the proposed determination, one of the
reasons that it said it was withdrawn is that the project that
had been analyzed and the proposed determination based on, back
in those early years, didn't bear any resemblance to the
project that we took into permitting. And that, in fact, is
true.
There are a number of significant changes in that project.
The first one, of course, is that it is smaller. The second is
that we are out of one of the three creeks that are up in that
area, which means we are out of one of the river watersheds.
There are no waste rock piles as there were before.
But perhaps the most interesting change deals with the
tailings facility design, where we have gone to a unique design
that is now capable of being done because of some technological
development, where we are able to separate out the bulk
tailings, which are about 90 percent of the tailings, from the
potentially acid-generating tailings, which are about 10
percent. And that means that we can store the bulk tailings
without storing them with water on top. And what that means is
that the facility is a much safer facility. It is a facility
that is not capable of the kind of accident that occurred in
Mt. Polley in British Columbia that caused a great deal of
concern in the mining community.
So we have been able to do some technological designs that
have made this project substantially safer and a project that
is dramatically different from the one that was analyzed by EPA
earlier when the proposed determination was issued.
Mr. Westerman. So, again, even with all those changes, with
the redesign, the new submittal, you still don't know whether
or not you will get a permit when the process is through?
Mr. Collier. That is correct.
Mr. Westerman. And, again, we could be working on a water
bill today, we could be working on other issues that are
important before Congress. This has been debated over and over.
I want to reemphasize, it is in the permitting process that was
established by NEPA. They are going through those processes,
and there is no predetermined outcome. Yet we do know that WRDA
expires next year, we do know that the surface transportation
bill expires next year, yet we are spending our time debating
something that is going through the proper channels.
And I yield back.
Mr. DeFazio [presiding]. I thank the gentleman.
I would observe this committee has not held a focused
hearing on the Pebble Mine project previously. We have Clean
Water Act jurisdiction, we have Corps of Engineers
jurisdiction, and personally, I have people who fish there.
With that, I would go to Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chairman.
I am so grateful that the committee is having this
critically important hearing. And I want to follow up on a
colloquy between Mr. Collier and my colleague Don Young from
Alaska alluding to the fact that, notwithstanding all of this
widespread opposition of the Pebble Mine, that if you get
closer to the mine in the Lake Iliamna area, that there are
people that actually support it.
And so I want to ask my friends from Alaska on the right
side of the panel here a pretty simple question. Is Lake
Iliamna upstream of the mine or downstream?
Ms. Hurley. Downstream.
Mr. Huffman. I believe it is upstream, is my understanding,
of the dam that would be proposed?
Ms. Hurley. Oh, I am sorry. I misunderstood your question.
Yes. My communities are downstream.
Mr. Huffman. Yeah, you are downstream. I get that.
Lake Iliamna, this area where we are led to believe there
is a pocket of support for the project, is actually upstream.
Mr. Collier. That is just not correct.
Mr. Huffman. Not correct?
Mr. Collier. Absolutely not correct. It is dramatically
downstream.
Mr. Huffman. All right. Well, I appreciate that, because
from the map I have here, it was not clear to me.
It is downstream of the dam?
Mr. Collier. Absolutely downstream.
Mr. Huffman. OK. Well, thanks. That answered a question
that I had for--just based on the map.
I also have questions based on a conversation involving the
bond. And Mr. Collier has led us to believe that all of the
concerns about permanent water treatment at a dam that would
hold in perpetuity, an earthen dam in a seismically active area
that would hold in perpetuity, that all that can be addressed
by a bond.
And, Mr. Borden, I want to just invite you to speak a
little more to that issue, because it seems to me that that is
asking us to put a lot of trust in this bonding instrument.
Mr. Borden. I need to be careful how I respond to this. I
haven't given this a lot of thought. But it is very difficult
to bond for perpetual water treatment using the existing
mechanisms that we have in place now generally around the
world.
You know, these things persist--there are mines in Spain
that the Romans mined that are still producing acid rock
drainage. So these problems can persist into the post-
historical period, if you will, and that is a challenging thing
to bond for.
Mr. Huffman. And there would actually need to be active
measures to treat this water. It is not like the system would
operate itself in perpetuity, correct?
Mr. Borden. It would eventually burn itself out as the
sulfide minerals, the reactive minerals in the ore body that
are left in the pit high walls and in the mined rock----
Mr. Huffman. What about this huge earthen dam itself?
Because, you know, I am from California. We know a little
something about dams and even highly engineered ones that are
very carefully maintained. Like my colleague, Mr. Garamendi
from Oroville, could probably share with us the fact that there
is no such thing as a permanent dam. You can't just leave a dam
there in perpetuity without at some point experiencing failure.
Am I missing something about this concept of a permanent
dam that would perpetuate itself forever?
Mr. Borden. So the dam has been built with additional--is
proposed for construction with additional safeguards. That
doesn't mean it won't require long-term, perhaps in perpetuity,
care and maintenance for erosion control, all of the other
issues that could compromise the integrity of the dam in the
long term.
Mr. Collier. Congressman, this dam doesn't hold any water.
You know that, right? This is a dam that holds sand.
Mr. Huffman. Well, we also heard about how much water is in
the area. So, Mr. Borden, let me----
Mr. Collier. It is a dam that is built so that the water
drains through the dam. It doesn't hold water. I just want to
make sure you are focused on the right----
Mr. Huffman. Well, I am questioning Mr. Borden right now,
because he has got years of experience and has actually said--
--
Mr. Collier. Yeah, but he is wrong on this point.
Mr. Huffman [continuing]. Has said that the high amount of
water in this area is one of his primary concerns. So why don't
you elaborate on that, sir.
Mr. Borden. Sure. So even with the proposed cover design,
water will infiltrate into the underlying tailings. And I would
expect the majority or--a significant minority of the tailings
will remain saturated in perpetuity after closure because of
the extremely wet climate.
Yes, it is better than having a lake on top of a dam, but a
lot of the tailings will still be prone to liquefaction and
slurring and things of that sort.
Mr. Huffman. All right. And you mentioned that the
environmental review that has been done to date is deficient.
Is this one of the areas in which you see deficiencies, the
failure to adequately consider the possibility of failures and
leakage and problems relating to that structure?
Mr. Borden. Yes. We are almost out of time. But the largest
failure scenario looked at for that structure only released
.004 percent of the tailings due to a pipeline break, 100 times
smaller than 3 of the large tailings dam failures that have
occurred in Canada and Brazil over the last 5 years.
Mr. Huffman. Thank you, sir. I yield back.
[Mr. DeFazio and Mr. Westerman talk briefly off record.]
Mr. Westerman. Thank you, Mr. Chairman.
Ms. Costa, in 2010, in a letter to the U.S. Securities and
Exchange Commission, Tiffany & Co. stated that the company
believes that it would be impracticable and extremely costly to
attempt to trace the chain of custody to determine the mine or
location of origin of the gold it uses in the manufacture and
sale of its products.
The lack of any identifying characteristics means that the
company and any other purchaser of refined gold bullion cannot
identify where the gold originated. As a result, the company
does not believe that it or any jeweler, whether or not it
manufactures its products, can certify where the gold used in
its products is originated.
And, Mr. Chairman, with that, I would like to submit that
for the record, a letter from Tiffany & Co. without objection.
Mr. DeFazio. We will accept it for the record, but I am
going to be giving Tiffany an opportunity to respond.
[The information follows:]
Letter of September 29, 2010, from Patrick Dorsey, Senior Vice
President, Secretary and General Counsel, Tiffany & Co., Submitted for
the Record by Hon. Bruce Westerman
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Westerman. So, Ms. Costa, my question is: Since 2010,
have you come up with technology or a method to determine chain
of custody on the gold that you use; and can you certify that
all gold that you use comes from sustainable mining?
Ms. Costa. So, we have been quite transparent in terms of
our sustainability reporting and our supply chain for many
years now on our website. I can't speak to that particular
document off the top of my head; but we do source the precious
metals that we use in our manufacturing processes from the
U.S., from Bingham Canyon Mine, for example, in Utah. The gold
comes from there.
Mr. Westerman. So you have made some kind of change since
2010 where you can do that?
Ms. Costa. I am not clear exactly what that was in
reference to, like, what the broader context was.
Mr. Westerman. It was a letter that Tiffany & Co. sent to
the U.S. Securities and Exchange Commission in 2010.
Ms. Costa. Yes, probably regarding conflict minerals in the
DRC specifically, I am guessing; but we do have traceability of
our gold and precious metals that we secure from the U.S.
Mr. Westerman. Do most jewelers have that capability now?
Ms. Costa. No, they do not.
Mr. Westerman. What makes gold traceable?
Ms. Costa. I mean, for us, it is because we have a
vertically integrated supply chain. So we manufacture as well.
So we are purchasing gold, for example, from the Bingham Canyon
Mine. There is a smelter on site, and we manufacture.
Mr. Westerman. Do you use any recycled gold?
Ms. Costa. We do use recycled gold as well.
Mr. Westerman. How do you know that came from sustainable
practices?
Ms. Costa. Well, I think it hinges on your definition, and
recycled gold is not needing to mine gold from scratch from new
mines, and the mine that we do source from has been in
existence for quite some time now.
Mr. Westerman. Do you know if it went through permitting?
Ms. Costa. It is the Bingham Canyon Mine. So--in Utah, so--
--
Mr. Westerman. So the process worked for that mine?
Ms. Costa. I am not familiar with what the process was at
the time when it--when that mine was permitted because it was
so long ago but it is in existence. It was permitted.
Mr. Westerman. OK. I yield back.
Mr. DeFazio. Oh, Mr. Lowenthal is next. He is recognized.
Mr. Lowenthal. Thank you, Mr. Chair.
Mr. McLerran, I am going to follow up about that--the
questions about the draft EIS, and I apologize if some of them
have been asked before. I am just trying to dig a little deeper
about some of the terminology.
And so, my first question is: In the September 2019
presentation to investors, the Pebble project stated that the
draft EIS and the public comment, and I quote now, ``show no
substantive data gaps,'' no substantive data gaps. However, EPA
comments on the draft EIS identify the need for further
analysis of groundwater impacts, water quality impacts, wetland
impacts, fishery impacts, and air quality impacts.
So, my question to you is: Are these substantive data gaps?
Mr. McLerran. So I have reviewed the EPA comments on the
draft EIS, and there are clear indications that there are
substantive gaps in the data and in the analysis, and part of
that is based on the fact that much of what is presented in the
mining plants are just conceptual level, and not designed at a
level that allows the appropriate level of analysis.
Mr. Lowenthal. So following up, that same presentation that
was made to investors declares that the process that they went
through, that it went through, identified no significant
impacts that can't be mitigated. But the mine's compensatory
mitigation plan does not identify any proposed mitigation
projects, and I believe your testimony indicated that
compensatory mitigation would not be effective in this
watershed.
The first question is: Are these significant impacts?
Mr. McLerran. Yes, I believe they are. You know, when we
did the watershed assessment, we spoke to some of the best
fishery scientists in the world, the folks who had been working
in the Bristol Bay watershed for over 30 years; and the
conclusions that were made out of the watershed assessment were
that compensatory mitigation would not be effective in a
pristine watershed. Compensatory mitigation is typically used
in the context of a disturbed watershed where we are trying to
restore habitat or restore salmon runs. Here you have a wild
fishery that is in a pristine area that has been undisturbed
and, again, our scientists felt that compensatory mitigation
just was not an appropriate concept here and wouldn't work in
this context.
Mr. Lowenthal. I appreciate that, and I just want to be
clear. So compensatory mitigation would not be effective.
Mr. McLerran. That was certainly our conclusion in the
watershed assessment.
Mr. Lowenthal. Thank you.
And I yield back.
Mr. DeFazio. I thank the gentleman.
Mr. Westerman. Just a quick question. Yield some time to
Mr. Collier to talk about mitigation features that are planned
for the Pebble project.
Mr. Collier. There are substantial compensatory mitigation
options that are identified in the draft environmental impact
statement, and there will be a compensatory mitigation plan
that will be required to be implemented as part of the
permitting process as we go forward. We have identified a
number of particular options, all kinds of issues that can be
addressed in the area. One of them deals with culvert
replacement; another deals with wastewater treatment facilities
in a number of the villages. There are ways to do mitigation
that will compensate in terms of clean water in the region.
Alaska has a particularly interesting challenge with
respect to compensatory mitigation and it is one that the
agencies, both EPA and the Corps of Engineers, struggle with on
a regular basis and recently entered into a memorandum of
understanding so that they could identify those projects. But
the statute requires compensatory mitigation. There is
compensatory mitigation discussed at length in chapter 5 of the
DEIS, and there will be a required compensatory mitigation plan
that will be part of the permit when the permit is issued.
Mr. Westerman. So, in 2015, former Secretary of Defense
William Cohen undertook an independent examination of EPA's
2014 proposed preemptive veto, and in his report, he
highlighted that the watershed assessment was based on, quote,
``hypothetical assumptions that may or may not accurately or
fairly represent an actual project'' and ``raise serious
concerns as to whether EPA orchestrated the process to reach a
predetermined outcome.''
As I mentioned earlier, this isn't the first hearing on the
Pebble Mine in Congress. I believe I sat on at least one under
the Science, Space, and Technology Committee, at least one,
maybe more, under the Natural Resources Committee. You know, I
remember one of the characters in the story was a guy that,
when we tried to question him, he was off somewhere on his
yacht; and it was very hard for us to reach this former EPA
employee.
Can you talk more about the controversy surrounding several
of the former EPA staffers who managed that process?
Mr. Collier. Yes, and just a bit about the Cohen report.
When I saw what had happened, I was involved in helping to run
a Federal agency. I worked with Mr. Garamendi at the Department
of the Interior. And I was personally shocked is at the level
of conflict of interest that had occurred with respect to the
involvement of environmental NGOs in the drafting of this
document, in the outline of this document, and the review of
drafts of this document, and so forth. And I couldn't get any
attention from folks at EPA about these concerns. So I needed
some kind of independent credibility behind them and looked
around in the town of Washington. This is a town that is short
on people with high reputations for credibility.
But I found former Secretary Bill Cohen, who had been a
Republican, both Congressman and Senator from Maine, and then
served in the Clinton administration as Secretary of Defense.
When I sat down with Secretary Cohen to ask him to take on
this project, he said to me right off the bat, he said, Tom,
you don't want me to do this. And I asked him why I wouldn't
want him to do it. And he said, because I value my reputation
for independence and credibility, and if I take a deep dive
into this and look at it, I am going to call it as I see it,
and I might just say that what EPA has done is correct and
right. And if I do, that is the end of Pebble Mine.
And I said, well, you know, that is what I am after,
Senator. I am after somebody that has that kind of reputation.
And so, he took the project on, and you read his
conclusions when he looked at it. And he looked at it
thoroughly. He wrote a 300-page report. He looked at thousands
of documents, interviewed 60-some-odd witnesses, and came up
with that particular conclusion. And I think he captured it
well.
The examples, one of the things that I was interested in
that Mr. McLerran talked about, was that the reason he took
this on and took it so personally is that a petition had been
filed from a number of the Tribes in the region; but the
documents show, and the deposition testimony show, that what
actually happened is that Phil North, an EPA employee, was the
one that decided that he wanted to start this process, and he
helped draft that petition.
Mr. DeFazio. I would note that we are wasting a lot of time
on a document that has been withdrawn by the Trump
administration. It is sort of like Trump obsessing over Clinton
and Obama and whatever. So I hope we don't waste much more time
on that. It has been withdrawn.
We have the current statements from EPA and Department of
the Interior, saying that basically, there is not sufficient
evidence in the DEIS to substantiate moving forward, and it
should be substantially revised.
With that, I recognize Mr. Rouda.
Mr. Rouda. Thank you, Mr. Chairman.
And thank you, panel, for joining us today.
Mr. Collier, I want to talk a little bit about the process
on how we got here today. The EPA and the Army Corps of
Engineers have made decisions with regard to the proposed
mining project that EPA scientists have flagged issues with the
work done by the Army Corps of Engineers in their draft
environmental impact statement. Yet, despite these concerns,
the EPA political leadership decided to allow your project to
proceed through the permitting process. Additionally, the Army
Corps of Engineers decided to release a draft scoping report, a
completely unprecedented move that is not a part of the
standard NEPA permitting process, just 42 days into the 90-day
scoping period for your project.
This draft report was released publicly just days after
your project lost its fourth major institutional investor, and
saw a rapid drop in your stock price. This atypical release
gave your project a sense of momentum at a critical juncture,
and this committee has a very little sense about how that
decision to release that report came about. The Government has
refused to disclose its communications, and we want
transparency as to how that happened.
Mr. Collier, will you commit to producing all written
communications between your companies or their representatives,
and the EPA and the Army Corps of Engineers from the last 2\1/
2\ years?
Mr. Collier. I need to consult with my lawyers, but it
sounds to me as though that is a reasonable request and we
would consider it.
Mr. Rouda. The committee would like to understand exactly
what transpired. So thank you for your commitment to provide
that documentation.
Mr. Collier. My commitment was to consider it, and I will
certainly do so.
Mr. Rouda. If it is not protected work legal product, is
there any reason you can imagine why you wouldn't produce it?
Mr. Collier. I have got to talk to my lawyers to find out,
sir.
Mr. Rouda. On May 1 of 2017, you met with then-EPA
Administrator Scott Pruitt. At 10:36 a.m. That same day, after
your meeting, he sent an email to EPA staff, directing them to
withdraw the agency's proposal to protect Bristol Bay using
section 404(c) of the Clean Water Act.
Previously, the EPA had put forth language protecting the
bay that said a mine, quote, ``would result in complete loss of
fish habitat due to elimination, dewatering, and fragmentation
of streams, wetlands, and other aquatic resources . . . All of
these losses would be irreversible,'' unquote.
The EPA arrived at this language after more than 3 years of
scientific study of the issue.
Mr. Collier, what was discussed in that May 1, 2017,
meeting with Scott Pruitt that would make him, in a matter of
minutes, cast aside lengthy scientific study that had been
subject to over 1 million comments and allow this to proceed
forward?
Mr. Collier. He didn't do that.
Mr. Rouda. He didn't do that?
Mr. Collier. You have got your facts wrong. He didn't--that
is not what he did.
Mr. Rouda. You are denying that he took----
Mr. Collier. Absolutely.
Mr. Rouda [continuing]. An email out to the EPA, moving
this forward?
Mr. Collier. Absolutely. He did not withdraw the proposed
determination. It wasn't withdrawn until July of this year.
Mr. Rouda. Did Administrator Pruitt then, in that conver--
why don't you tell us what took place in that conversation?
Mr. Collier. Sure. I had been in negotiations, Pebble had
been in negotiation with the Obama administration for months to
settle pending litigation. And, in fact, we had reached a
settlement with the Obama administration. The Justice
Department had signed off. I was told that EPA had signed off
on that settlement, and that all we all had to do was sign the
documents.
I signed. I understood that the Justice Department signed.
And it got over to Gina McCarthy's desk; and for some reason,
she reneged on what I understood had been an agreement that the
settlement would, in fact, occur.
Mr. Rouda. Well, let me ask you this: In that meeting, you
are saying that the email to move the procedure forward didn't
happen until July instead of immediately after? Did he
greenlight your project in that meeting?
Mr. Collier. I am saying that the withdrawal of the
proposed determination didn't happen until July of this year.
Mr. Rouda. Did he greenlight the project in that meeting?
Mr. Collier. He didn't greenlight the project at all.
Mr. Rouda. He gave you no indication of moving forward. He
gave no positive feedback. So you would be willing to provide
any information, any memorandum that you have----
Mr. Collier. You just got your facts wrong. Talk to your
staff. You are wrong on this. That is not what he did.
Mr. Rouda. And are you happy to produce any memorandum and
internal documents that you have that document that meeting?
Mr. Collier. Again, I will talk to my lawyers about what I
will produce for you; but you have got your facts wrong on what
Mr. Pruitt did after----
Mr. Rouda. Well, tell me is this quote correct that: ``I
believe that a lot of these environmental organizations choose
issues in Alaska, they make them cause celebre so they can
raise money around them, and they choose Alaska primarily
because they don't have to suffer the backlash from the
economic impact of the project being killed because no one
gives a rat's ass what happens in Alaska,'' unquote.
That is attributable to you.
Mr. Collier. That is my quote.
Mr. Rouda. Thank you.
I yield back.
Mr. DeFazio. I would recognize that the question was
whether Pruitt sent an email, directing staff to withdraw
after, immediately after he met with you; and I believe the
answer to that is yes. He did send an email. It is true. It
wasn't withdrawn until later because he got so much blowback,
but is it true----
Mr. Collier. He didn't discuss----
Mr. DeFazio [continuing]. That he sent an email, directing
staff to withdraw after you met with him? Is that correct?
Mr. Collier. That is not my understanding of what happened,
Congressman.
Mr. DeFazio. Well, I think your facts are incorrect.
Mr. Collier. Thank you.
Mr. DeFazio. Mr. Westerman, do you want to yield more time
to the CEO of the assetless company?
Mr. Westerman. I would like to yield a little time to Mr.
Collier, if he would like to make a rebuttal.
Mr. Collier. What Mr. Pruitt and I discussed was a
settlement, a pending litigation, and it was a settlement that
originally had been reached with the Obama administration.
People settle cases for all different kinds of reasons. I
believed at the time that the reason the Obama administration
was willing to enter into this settlement is because they
thought they were going to lose the litigation that we brought,
which claimed that EPA had not followed statutory law in terms
of process to make decisions like this.
And so, we litigated that point, and we reached a
settlement agreement. That settlement at the last minute was
reneged upon after we had been told it had been agreed to. So
that settlement was dormant until the new administration came
in, and then we began the settlement negotiations again and we
agreed to a settlement that was fairly similar to the one we
would have agreed to under the Obama administration.
And that was a settlement that was then before EPA for its
approval. I met with Mr. Pruitt to discuss with him whether it
was appropriate to agree to that settlement, again, a
settlement that had been agreed to by the Obama administration;
and Mr. Pruitt agreed to it.
He wasn't reversing anybody's science. He was settling a
case because EPA failed to follow appropriate process, and that
is the reason that we were having that discussion.
Mr. Westerman. I have no more questions, Mr. Chairman.
But I would like to say that, you know, the facts are that
there is a process that is underway, a process that has been
established by Congress. This is in the State of Alaska, a long
ways away from the State of Arkansas where I live, but Alaska
is a beautiful place, and we certainly want to keep it a
beautiful place.
I know that the world depends more and more on critical
elements, elements that are needed to make electronics,
elements that are needed to make renewable energy components, a
vast amount of those elements that we are relying on places
like China to supply right now, in disproportionate amounts we
are relying on China to supply.
So that is why we created processes, so that we can have a
fair process to go through to determine whether we want to
extract these resources from our country and from our States;
and the facts are the process is taking place. There has been a
draft EIS, there are comments. There are a lot of hurdles that
still have to be overcome by Mr. Collier's company.
At the end of the day, EPA still has veto authority under
404(c). So I guess it never hurts to debate things in Congress,
but why do we set up these processes and entrust the
administration and the agencies to carry out the processes if
we are going to--I guess, you know, Congress could pass a law
to say you can't do this Pebble Mine development. But are we
going to do that with every project that comes along?
It just seems to me like we are undermining the very
stringent processes that we have put in place to deal with
issues like this when, quite frankly, we have other big issues
that we need to be dealing with.
And I will yield back.
Mr. DeFazio. I thank the gentleman.
I will yield myself such time as I may consume.
I will observe next week we will do the first
reauthorization of a Clean Water SRF since 1987. At this point,
your side has not agreed. I met with the ranking member last
night. They wanted a much lower number, pathetically low, but
then they also wanted some things that would impact the
environment, and we have drawn a line there.
So, you know, we will see. I have asked the ranking member
to consult with your side and see if that is where you are
going to stick, and, if so, unfortunately, we will move ahead
with that bill.
We are also drafting a surface transportation bill. We will
do a WRDA bill that was never scheduled to begin until next
year. And we are very busy, and, of course, we have the MAX
hearing coming up next week. So, we are paying attention to
business.
I just go back to all this discussion about a fair process,
and this can't be restated too many times. EPA's 2019 Donald
Trump EPA says the DEIS, quote, ``likely underestimates adverse
impacts to groundwater and surface water flows, water quality,
wetlands, fish resources, and air quality,'' end quote.
And then it goes on to say--and this is footnoted--and
including the ability of the proposed water treatment plan to
annually meet water treatment goals and water quality standards
in perpetuity.
That is a long time, perpetuity, although I guess we heard
from Mr. Borden it might only be a few centuries before this
stuff becomes less active.
And then they go on to say, the DEIS does not evaluate the
consequences of a potential tailings dam failure, which, of
course, depends upon the size of the mining operations, and
recommends that a breach or failure scenario should be
developed, footnote.
And then we have the cites here. Now that is Donald Trump's
EPA; and we are saying this is a straight-up, good process. The
Corps hasn't rushed this through, the Corps that is going to
hold a press availability afterwards to try and pump the stock
back up, which probably fell during this hearing. You know,
that is just extraordinary to me, and we are going to be--I
think the Corps may be answering some very stern questions
regarding, this and disclosing documents regarding how they got
to produce such a defective document.
In addition, the U.S. Department of the Interior, under
Donald Trump, submitted comments suggesting the DEIS, as
prepared, does not follow NEPA requirements and conventions for
data inclusion or analysis for an activity of this scope and
scale. They recommend the Corps prepare a revised or
supplemental DEIS for public review.
And we are talking about a straight-up process here, and
they are rushing this through with the minimal comment period.
Seriously? We are saying this is normal? I guess this may be
normal in this administration, but it is not the way the
process is supposed to work and that is why we are here today.
Now, Mr. Borden, you made a statement that Mr. Collier
contradicted, that it is virtually unprecedented--I think one
of your figures of 99 percent, one was 90--talking about both
the water treatment and dams of this size and the containment.
And he said, no, no, there are lots of examples around the
world.
And, Mr. Borden, I will give you another chance to back
down on that; and then we are going to ask Mr. Collier to list
them.
Mr. Borden. So I do want to clarify it is unprecedented for
flows of this volume to be linked with a water treatment plant
of this complexity, which is what I had said earlier; but I
just want to restate that.
Mr. DeFazio. OK.
Mr. Borden. The tailings dam height is certainly, almost
certainly, in the upper 99th percent of those that have been
built across the world throughout the history of mining in the
world.
Mr. DeFazio. OK. OK. Now, Mr. Collier, regarding the water
treatment, what he just stated.
Mr. Collier. He is just wrong.
Mr. DeFazio. OK. He is wrong. OK. Tell me about your
engineering background?
Mr. Collier. I don't have any, but I have got a bunch of
them that work for me and I rely on them.
Mr. DeFazio. They are all paid by the assetless corporation
that you are representing before us today.
Tell me this, Mr. Collier. Why did Rio Tinto, First Quantum
Minerals, Anglo American, and Mitsubishi, all withdraw their
support? And, further, why has Northern Dynasty not taken an
equity stake and exposed themselves to potential liability with
your project? Instead you have a shell corporation with no
assets.
Mr. Collier. Well, two questions. As to the first, I know
most about the Anglo situation. That was the partner that was
with us the longest, and Anglo publicly stated and assured us
personally that the reason they withdrew was because of their
own financial situation at the time and that it had nothing to
do with the Pebble project and I think they would have, in
fact, liked to stay in the project.
Mr. DeFazio. Mitsubishi, First Quantum, Rio Tinto. Mr.
Borden worked for them for 23 years. I think Rio Tinto has a
hell of a lot of assets out there.
Mr. Collier. I believe that is the reason why they all
withdrew.
Mr. DeFazio. Really? Rio Tinto felt that this project was
just--that they are in such financial difficulty now that they
couldn't participate.
Mr. Collier. No, I think they withdrew because of reasons
that deal with their internal management decisions as to where
they wanted to concentrate their resources. At that time, Rio
Tinto was beginning to concentrate more in iron ore and less in
what we were.
Mr. DeFazio. OK. First Quantum.
Mr. Collier. First Quantum, because I think they were
focusing instead on their project in Panama.
Mr. DeFazio. Mitsubishi?
Mr. Collier. That is way before my time, and I don't know
why that happened.
Mr. DeFazio. OK. So, you have Northern Dynasty, who, again,
has no equity stake in Pebble?
Mr. Collier. Yes, it does, by the way. I don't understand--
--
Mr. DeFazio. They are not part of the shell corporation.
They have----
Mr. Collier. What shell corporation are you referring to?
Mr. DeFazio. Pebble.
Mr. Collier. Pebble is a partnership, and the sole partner
in the partnership is Northern Dynasty. There is no shell
corporation.
Mr. DeFazio. So it had--so they are linked and they would
have potential liability.
Mr. Collier. Absolutely.
Mr. DeFazio. OK. That is good to know, because then we have
some assets in the future.
And then I would like to go back to Ms. Costa, because I
quickly read the documents submitted. It was 2010, and there
was huge controversy about blood diamonds and blood gold, and
it does--there is--it seems like that is what it is referring
to.
But essentially, you--Tiffany has made a judgment that this
would--is not a desirable or sustainable project, and would
cause irrevocable environmental harm.
Ms. Costa. Correct. And I think, simply put, the precedent
that Pebble Mine would set by bringing materials that are mined
from that site into the broader market is bad for consumer-
facing companies because it erodes, to me, it would erode the
public's confidence in environmental and social practices and
mining companies.
Mr. DeFazio. OK. All right.
Any of the other--we have heard a lot from Mr. Collier,
thanks to us yielding all this time. The Republicans have
yielded it all to him. Would anybody else on the panel like to
summarize?
Yes, Ms. Hurley.
Ms. Hurley. I would just like to thank you for the
opportunity. I would like to clarify. I think there was a
fundamental misunderstanding from the beginning that the Pebble
Limited Partnership has total support around Lake Iliamna, and
that simply is not true. To correct the record, you know, there
was a misleading statement made that United Tribes of Bristol
Bay doesn't represent people around the lake, and that is not
true; Nondalton, one of the closest communities to the mine,
and Pedro Bay. Those misleading comments really capture the
company's dismissive attitude of our people's concerns.
And I would also like to correct the record that the
Bristol Bay Native Corporation, one of the major landholders in
the region, and the Pedro Bay Corporation are very much opposed
to this project and have not granted access to the company for
their project.
Lastly, I will just say that I am so thankful to be here
today. There is no guarantee that there is no risk, you cannot
change the location and type of this mine. And I am just so
thankful that we are being heard because the Corps is not
listening. They have proved they are not going to listen, and
we really need Congress to intervene and help the people of
Bristol Bay. So, thank you very much for having us here.
Mr. DeFazio. OK. Mr. McLerran.
Mr. McLerran. So I just want to refute a couple of things
that Mr. Collier said. One is that the only independent review
of the EPA's actions in preparing the watershed assessment was
completed by the Office of the Inspector General. The Office of
the Inspector General concluded that there was no
predetermination, and that we followed all of the statutory
procedures and did the science in the right way.
And because I was the decisionmaker, I want to state
unequivocally that I had not predecided this issue until all
the evidence was in. We did the scientific assessments so we
would learn more about the watershed, learn more about whether
the petition should be responded to in the way we did, and it
was not until the weeks after the watershed assessment was
completed that we made those decisions. And there were two
different Administrators at EPA that were involved in the
discussions around that. At the very end it was Gina McCarthy.
So I can state unequivocally this was not predetermined in
any way.
Mr. DeFazio. OK. Thank you for clarifying that.
I believe Mr. Huffman has one last question for the second
round.
Mr. Huffman. I did. Thank you, Mr. Chair.
We have had a great conversation about the impacts of the
proposed Pebble Mine, and I have learned a lot from this
conversation. So thank you, including the significant impacts
of even the downsized project that Mr. Collier describes.
But it strikes me that we also ought to have a conversation
about the fact that this wouldn't be the end of the mining
impacts in this area.
And I want to ask you, Ms. Hurley. I would assume, given
how wild this area is, that the lack of infrastructure is one
reason why we don't have a whole bunch of huge mines in the
Bristol Bay watershed. And I look at the project description
here for this project and it includes massive changes to the
landscape, a new port, transportation corridor, natural gas
pipeline, permanent massive changes to the landscape.
And I am wondering, what does that mean? Even if we can
maybe mitigate the impacts of this one mine project, does this
open the door to other permanent and far-reaching changes to
the Bristol Bay watershed that we ought to think about before
we start down that road?
Ms. Hurley. Most definitely.
You know, I think anyone who is paying attention and knows
about Bristol Bay issues knows that this would just be the
beginning, that this would transform what is now salmon country
for the entire planet into a toxic mining district.
When the watershed assessment was released, it mentioned 17
other active mining claims in the area. Today, that number has
grown to over 25, I believe, the number is. So when we are
looking at this, we are looking at this for generations,
because this is where we come from, this is our home. This has
the power to completely transform this place, and not in a way
that anybody wants.
Mr. Huffman. All right. I will ask Mr. Borden to follow up
on that. As an expert in the mining industry, would the
presence of all of this expansive infrastructure change the way
mining companies look at the Bristol Bay watershed? What are
the implications?
Mr. Borden. Yes. I would have to say, once the
infrastructure is in place, the transport infrastructure--
powerplant, ports--that is upfront capital that would not
theoretically be needed to develop other mines in the area.
Mr. Huffman. All right. Thank you, Mr. Chairman.
I yield back.
Mr. DeFazio. I thank the gentleman for that.
And at this point, I am going to ask unanimous consent that
the record of today's hearing remain open until such time as
our witnesses have provided answers to any questions that may
be submitted to them in writing and there was some discussion
of that earlier, and unanimous consent that the record remain
open for 15 days for any additional comments and information
submitted by Members or witnesses to be included in today's
hearing.
Without objection, so ordered.
Again, I would like to thank our witnesses today and I
would add, you know, you can tune in to the promotional, which
is totally inappropriate, by the Corps of Engineers which will
be playing soon after this hearing and I will be discussing
that with the Secretary and with the Corps itself. I find it
very inappropriate.
With that, the subcommittee is adjourned.
[Whereupon, at 12:32 p.m., the subcommittee was adjourned.]
Submissions for the Record
----------
``EPA's Bristol Bay Watershed Assessment: Obtainable Records Show EPA
Followed Required Procedures Without Bias or Predetermination, but a
Possible Misuse of Position Noted,'' EPA Report No. 16-P-0082, January
13, 2016, Submitted for the Record by Hon. Peter A. DeFazio
[The report is retained in committee files and is available online
at: https://www.epa.gov/sites/production/files/2016-01/documents/
20160113-16-p-0082.pdf.]
``Report of an Independent Review of the United States Environmental
Protection Agency's Actions in Connection With Its Evaluation of
Potential Mining in Alaska's Bristol Bay Watershed,'' Executive
Summary, The Cohen Group and DLA Piper LLP, October 6, 2015, Submitted
for the Record by Hon. Bruce Westerman
Secretary William S. Cohen
The Cohen Group
DLA Piper LLP (US)
October 6, 2015
Executive Summary
In fall 2014, I was approached by the Pebble Partnership (``Pebble
Partnership'' or the ``Partnership'') to review the actions of the
United States Environmental Protection Agency (``EPA'') in connection
with its evaluation of potential mining in southwest Alaska's Bristol
Bay watershed. The Partnership holds mineral claims to lands owned by
the State of Alaska in the headwaters of the Nushagak and Kvichak
Rivers of the Bristol Bay watershed (the ``Pebble Deposit Area'').\1\
This area contains one of the largest known undeveloped deposits of
copper in the world, and the Pebble Partnership has been exploring the
development of a mine there for more than a decade.\2\ The area is also
home to one of the most prolific salmon runs in the world.\3\ The
commercial salmon industry dominates the private sector economy of the
Bristol Bay region, and Alaska Natives who reside there have maintained
a salmon-centered culture and subsistence-based lifestyle for thousands
of years.\4\ In July 2014, EPA proposed substantial limits on
development in the Pebble Deposit Area.\5\
---------------------------------------------------------------------------
\1\ See Background Facts at Sections II.D.1 and II.D.3.
\2\ See id. at Sections II.A and II.D.3.
\3\ See id. at Section II.A.
\4\ See id. at Section II.C.
\5\ See id. at Section IX.
---------------------------------------------------------------------------
The Pebble Partnership has expressed the concern that EPA's
decision-making process and proposed limits were unfair and wanted an
objective party to examine those concerns. The Partnership asked me to
review EPA's actions through the lens of how Cabinet-level agencies
make decisions on important public policy questions, given my
experience in the Legislative and Executive branches of government. I
agreed to undertake a review of EPA's actions, assisted by my staff at
The Cohen Group and the law firm DLA Piper LLP. I advised the
Partnership that I would not review whether a mine should be built;
such a determination would require engineering and scientific expertise
beyond my capabilities. Nor would I comment on the legality of EPA's
actions; that is a question for the courts. But I did feel qualified to
review the process by which EPA assessed, and proposed restrictions to
reduce, the environmental risks associated with potential mining in the
Bristol Bay watershed.\6\
---------------------------------------------------------------------------
\6\ See Independence and Methodology.
---------------------------------------------------------------------------
I undertook the review on conditions of complete independence. I
would follow the facts wherever they might lead, and any conclusions
would be mine alone. The Pebble Partnership would have no rights to
edit or censor my views. The Partnership agreed to this and to
compensate my firm and DLA Piper according to commercially standard
terms. No portion of our compensation was contingent upon the result of
the review or the content of the report.\7\
---------------------------------------------------------------------------
\7\ See id.
---------------------------------------------------------------------------
To produce the most thorough and balanced review, we interviewed
more than 60 people, including three former EPA administrators. The
people interviewed represented all points of view on EPA's actions.
(EPA declined my request to make current personnel available for
interviews.) We reviewed thousands of documents from EPA, other federal
agencies, the State of Alaska, Congressional committees, the Pebble
Partnership, and other sources. My team also visited the Pebble Deposit
Area to observe the Bristol Bay watershed.\8\
---------------------------------------------------------------------------
\8\ See id.
---------------------------------------------------------------------------
The decision about whether mining should occur in this area, as
well as the process of making such a decision, has been highly
controversial and has generated intense passions on all sides. The
controversy has prompted an Inspector General's investigation,
Congressional hearings, and litigation.\9\
---------------------------------------------------------------------------
\9\ See id.
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A. Background Facts
The question of the appropriate process to make a determination to
permit, limit, or ban development is at the heart of this review. EPA
elected to proceed under Section 404(c) of the Clean Water Act to limit
development within the Pebble Deposit Area.\10\ EPA undertook its
Section 404(c) action before the Partnership filed a permit
application, but after EPA had conducted an assessment of the potential
effects of mining in the region, principally on fish.\11\ The State of
Alaska and the Pebble Partnership have argued that EPA should have used
the process that is customarily employed when assessing the effects of
potential development; that is, the permit application process.\12\
---------------------------------------------------------------------------
\10\ See Background Facts at Sections IV.A, IV.C, IV.E, and VIII.
\11\ See id. at Sections II.D.3, VII, and IX.
\12\ See id. at Sections IX.C-D.
---------------------------------------------------------------------------
Congress passed the Clean Water Act in 1972 to ``restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' \13\ Under the Act, if a development would result in
the discharge of dredged or fill materials in the nation's waters (as
would be the case here), the developer must first receive a permit from
the U.S. Army Corps of Engineers (the ``Corps'').\14\ The Corps
evaluates a permit application (proposing a specific mine with specific
control and mitigation measures) using guidelines it developed in
conjunction with EPA and complies with the National Environmental
Policy Act (``NEPA'') and regulations developed by the Council on
Environmental Quality.\15\ NEPA mandates that the Corps coordinate with
EPA and other interested agencies, prepare an environmental assessment,
consider an array of public interest factors and the beneficial effects
of the proposed project, assess mitigation plans, and evaluate
alternatives.\16\ The Corps then either issues a permit and imposes
conditions or denies the permit application.\17\ We refer to this as
the ``Permit/NEPA Process.'' The Permit/NEPA Process has been widely
endorsed by environmental groups, including the Natural Resources
Defense Council.\18\
---------------------------------------------------------------------------
\13\ Clean Water Act Sec. 101(a), 33 U.S.C.A. Sec. 1251(a) (West
2015); see Background Facts at Section I.A.
\14\ See Background Facts at Section I.B.
\15\ See id.
\16\ See id.
\17\ See id.
\18\ See id.
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Section 404(c) authorizes EPA to ``prohibit the specification
(including the withdrawal of specification) of any defined area as a
disposal site . . . whenever [the Administrator] determines . . . that
the discharge of such materials into such area will have an
unacceptable adverse effect'' on the environment.\19\ EPA may act under
Section 404(c) whenever it has ``reason to believe'' based on available
information that ``'an unacceptable adverse effect' could result from
the specification or use for specification of a defined area for the
disposal of dredged or fill material[.]''\20\ Regulations promulgated
by EPA in 1979 allow it to initiate a process to deny or restrict the
use of an area for the disposal of dredged or fill material before a
project proponent has submitted a permit application.\21\
---------------------------------------------------------------------------
\19\ 33 U.S.C.A. 1344(c); see Background Facts at Section I.C.
The full text of Section 404(c) provides that:
The Administrator is authorized to prohibit the specification
(including the withdrawal of specification) of any defined area as a
disposal site, and he is authorized to deny or restrict the use of any
defined area for specification (including the withdrawal of
specification) as a disposal site, whenever he determines, after notice
and opportunity for public hearings, that the discharge of such
materials into such area will have an unacceptable adverse effect on
municipal water supplies, shellfish beds and fishery areas (including
spawning and breeding areas), wildlife, or recreational areas. Before
making such determination, the Administrator shall consult with the
Secretary. The Administrator shall set forth in writing and make public
his findings and his reasons for making any determination under this
subsection.
\20\ 40 C.F.R. 231.3(a) (2010); see Background Facts at Section
I.C.
\21\ See Background Facts at Section I.C.
---------------------------------------------------------------------------
The decision regarding which process to use--the Permit/NEPA
Process or the preemptive Section 404(c) process--has been a focal
point of this controversy. Since passage of the Clean Water Act, EPA
has exercised its authority under Section 404(c) thirteen times, in
each case relying on a permit application that had already been
filed.\22\ As an internal EPA document reveals, a truly preemptive
Section 404(c) action had ``[n]ever been done before in the history of
the [Clean Water Act].'' \23\
---------------------------------------------------------------------------
\22\ See id. Technically, in one of these cases, there was no
permit application, however EPA did rely on the permit application of
two adjacent and separately-owned parcels to make the determination.
EPA deemed the parcel to have the same characteristics as the other two
properties and applied its Section 404(c) action to all three
properties based on their coextensive characteristics. See Chronology
of 404(c) Actions, EPA (Sept. 23, 2013), http://water.epa.gov/lawsregs/
guidance/wetlands/404c.cfm.
\23\ EPA, DISCUSSION MATRIX (Sept. 8, 2010), at 1; see Background
Facts at Section IV.E.
---------------------------------------------------------------------------
Since the early 2000s, EPA has communicated with a variety of
stakeholders who hold a wide range of views concerning mining in the
Bristol Bay watershed and the potential development of a Pebble
mine.\24\ Support for EPA's actions centers on concerns about the
environmental impacts of mining and the perceived incompatibility of
large-scale mining with the maintenance of a healthy ecosystem and
salmon fishery and the preservation of the area residents' way of
life.\25\ Opposition to EPA's actions is based largely on the potential
economic benefits mining may yield for the region, basic ``due
process'' and sovereignty considerations, and the Partnership's belief
that mining can occur in the Pebble Deposit Area without harming the
salmon fishery.\26\
---------------------------------------------------------------------------
\24\ See Background Facts at Section III.C.
\25\ See id. at Sections III.D, IV.B, VI.A.2, and VI.B.
\26\ See id. at Sections III.E, IV.B, VI.A.2, VI.B, and IX.C-D.
---------------------------------------------------------------------------
In May, 2010, six federally-recognized tribes from the Bristol Bay
watershed asked EPA to invoke Section 404(c) to protect the region from
metallic sulfide mining, including a potential Pebble mine.\27\ In the
following months, others urged EPA to take action under Section 404(c),
noting the cultural, ecological, and economic importance of the
watershed and the magnitude of a potential Pebble mine.\28\ The State
of Alaska, the Pebble Partnership, certain tribes, and other
stakeholders opposed the request that EPA preemptively apply Section
404(c), questioning the timing of and EPA's authority for such action
and urging EPA to allow the Permit/NEPA Process to take place.\29\
---------------------------------------------------------------------------
\27\ See id. at Section IV.B.
\28\ See id.
\29\ See id.
---------------------------------------------------------------------------
On February 7, 2011, EPA announced its plan to conduct an
assessment of the Bristol Bay watershed (the ``BBWA'') to determine the
significance of its ecological resources and evaluate the potential
effects of large-scale mining development.\30\ EPA invited various
federal agencies to participate in the BBWA.\31\ The Corps declined to
participate in order to maintain its independence in any subsequent
Permit/NEPA Process.\32\ The State of Alaska participated in EPA's
assessment while also registering its objection to the process.\33\
With EPA's assurance that it was not using the BBWA to make a decision
under Section 404(c), the Pebble Partnership also participated in the
assessment notwithstanding its objection to the study.\34\
---------------------------------------------------------------------------
\30\ See Background Facts at Section V.B.
\31\ See id. at Sections IV.D, IV.G, and V.B.
\32\ See id. at Section V.B.
\33\ See id.
\34\ See id.
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To conduct the BBWA in the absence of any permit application, EPA
made assumptions about potential mine operations in the Pebble Deposit
Area and created hypothetical mine scenarios based largely on a
preliminary economic analysis prepared for the Pebble Partnership.\35\
Over the course of three years, EPA prepared and issued two BBWA drafts
for public comment and peer review.\36\ The considerable public
participation in response to the BBWA drafts reflected a wide diversity
of opinion as to the quality and comprehensiveness of the BBWA.\37\
Environmental non-governmental organizations, commercial fishermen,
many Alaska Native tribes and tribal organizations, and some state
legislators commended EPA on its effort and praised the scientific
rigor of the BBWA drafts.\38\ The State of Alaska, the Pebble
Partnership, and other Alaska Native tribes and interested parties
identified technical and legal issues they believed undermined the
validity of the BBWA, including reliance on hypothetical mine scenarios
and failure to consider mitigation strategies to compensate for the
loss of wetland habitat caused by mine development.\39\
---------------------------------------------------------------------------
\35\ See id. at Section VII.A.
\36\ See Background Facts at Sections VI-VII.
\37\ See id. at Sections VI.A.2 and VI.B.
\38\ See id.
\39\ See id.
---------------------------------------------------------------------------
Some peer reviewers raised concerns about the use of hypothetical
mine scenarios in the BBWA--noting that this approach limited the
utility of the study in such a way that the assessment might not
``provide risk decision-makers with sufficient information upon which
to make long-term project decisions''--and about the aforementioned
failure to address mitigation.\40\ EPA defended its work, asserting
that ``all mining plans are hypothetical'' and that analyzing efforts
to mitigate adverse effects ``would be addressed through a regulatory
process that is beyond the scope of this assessment.''\41\
---------------------------------------------------------------------------
\40\ EPA, Response to Peer Review Comments on the May 2012 and
April 2013 Drafts of an Assessment of Potential Mining Impacts on
Salmon Ecosystems of Bristol Bay 65-66 (2014); see Background Facts at
Section VI.A.3.
\41\ EPA, Response to Peer Review Comments on the May 2012 and
April 2013 Drafts of an Assessment of Potential Mining Impacts on
Salmon Ecosystems of Bristol Bay 65-66, 114-115 (2014); see Background
Facts at Section VI.A.3.
---------------------------------------------------------------------------
EPA published the final BBWA on January 21, 2014.\42\ EPA stated
that the BBWA was not designed to duplicate or replace the Permit/NEPA
Process and acknowledged that certain analyses were not undertaken in
the BBWA that would occur during the Permit/NEPA Process.\43\ Among the
most significant gaps was that the BBWA employed hypothetical
assumptions as to mine operation and mitigation rather than considering
the techniques a developer would propose in an actual permit
application.\44\ EPA nevertheless expressed confidence that its
analyses were conservative and that compensatory mitigation techniques
were unlikely to offset impacts of the nature described in the
BBWA.\45\
---------------------------------------------------------------------------
\42\ See Background Facts at Section VII.
\43\ See id. at Section VII.A.
\44\ See id.
\45\ See id; see also id. at Section IX.
---------------------------------------------------------------------------
Based on the BBWA, EPA issued its notice of intent to proceed under
Section 404(c) on February 28, 2014.\46\ EPA gave the Corps, the State
of Alaska, and the Pebble Partnership 60 days to submit information to
demonstrate that no unacceptable adverse effects to aquatic resources
would result from any associated mining discharges.\47\ The Corps
declined to provide substantive comments on the ground that there was
no pending permit application.\48\ The State of Alaska and the Pebble
Partnership reiterated their respective positions that the Section
404(c) action was premature and that the BBWA was flawed.\49\ Their
response letters did not persuade EPA to change course, and EPA moved
forward with its Section 404(c) action.\50\
---------------------------------------------------------------------------
\46\ See id. at Section VIII.
\47\ See Background Facts at Sections VIII, VIII.B-C.
\48\ See id. at Section VIII.A.
\49\ See id. at Sections VIII.B-C.
\50\ See id. at Section VIII.D.
---------------------------------------------------------------------------
On July 18, 2014, EPA Region 10 issued a Proposed Determination
relating to development in the Pebble Deposit Area.\51\ EPA premised
its regulatory action on a hypothetical scenario assessed in the
BBWA.\52\ EPA proposed restrictions based on its conclusion that an
``unacceptable adverse effect on fishery areas'' would result from
development that would cause estimated losses of habitat greater than
those associated with the hypothetical 0.25 billion-ton mine it
evaluated in the BBWA.\53\ Since that time, litigation has ensued, and
there is currently an injunction in place temporarily prohibiting EPA
from further proceedings.\54\
---------------------------------------------------------------------------
\51\ See id. at Section IX.
\52\ See id.
\53\ See Background Facts at Section IX.
\54\ See id. at Section X.E.
---------------------------------------------------------------------------
B. Observations and Conclusion
Over the course of this review, I have arrived at a number of
observations, including:
The issue of whether mining should occur in the Bristol
Bay watershed is of the utmost importance to the State of Alaska's
environment, economy, people, and fish and wildlife;
To date, the Pebble Partnership has not submitted a
permit application. Thus, EPA relied on hypothetical scenarios rather
than the characteristics of a mine as it was actually planned to be
built and maintained;
EPA failed to address important considerations that would
be included in the NEPA/Permit Process, including meaningful
participation by other state and federal government agencies,
mitigation and controls as proposed by the developer, and an array of
public interest factors;
The Permit/NEPA Process has been used for decades and has
been widely endorsed by environmental groups;
EPA relied upon the BBWA in its Proposed Determination
but acknowledged that there were significant gaps in its assessment and
that it was not designed to duplicate or replace the Permit/NEPA
Process; and
EPA's unprecedented, preemptive use of Section 404(c)
inhibited the involvement of two key participants: the Corps and the
State of Alaska.\55\
---------------------------------------------------------------------------
\55\ See Conclusion and Observations.
These observations have informed my conclusion that that EPA's
application of Section 404(c) prior to the filing of a permit
application was not fair to all stakeholders.\56\ I find that:
---------------------------------------------------------------------------
\56\ See id.
The fairest and most appropriate process to evaluate possible
development in the Pebble Deposit Area would use the
established regulatory Permit/NEPA Process to assess a mine
permit application, rather than using an assessment based upon
the hypothetical mining scenarios described in the BBWA as the
basis for imposing potentially prohibitive restrictions on
future mines.\57\
---------------------------------------------------------------------------
\57\ See id.
The Permit/NEPA Process is more comprehensive than the preemptive
Section 404(c) process employed here. EPA conceded in comments to peer
reviewers that there were gaps in its assessment that would be
addressed during a Permit/NEPA Process.\58\
---------------------------------------------------------------------------
\58\ See id.
---------------------------------------------------------------------------
While I recognize EPA's authority to initiate Section 404(c)
actions, here EPA acknowledged it did so in an unprecedented manner.
EPA's use of Section 404(c) before a permit filing compounded the
shortcomings of the BBWA noted by several peer reviewers, the State of
Alaska, and the Pebble Partnership: the use of hypothetical assumptions
that may or may not accurately or fairly represent an actual project;
and the failure to take into account mitigation and control techniques
a developer might propose.\59\
---------------------------------------------------------------------------
\59\ See id.
---------------------------------------------------------------------------
An environmental impact assessment is bound to provide more
accurate information if it assumes that the mine will be built in
accordance with the developer's plans, rather than a hypothetical mine
plan which even EPA acknowledges is likely to be different from a
developer-submitted plan. This project is too important, for all
stakeholders, to pilot a new, untested decision-making process. The
fairest approach is to use the well-established Permit/NEPA Process,
and I can find no valid reason why that process was not used.\60\
---------------------------------------------------------------------------
\60\ See id.
---------------------------------------------------------------------------
The statements and actions of EPA personnel observed during this
review raise serious concerns as to whether EPA orchestrated the
process to reach a predetermined outcome; had inappropriately close
relationships with anti-mine advocates; and was candid about its
decision-making process. I have not attempted to reach conclusions on
these issues. First, any such findings would not affect my overarching
conclusion about the process that should have been followed. Second,
the record remains incomplete on these issues. EPA declined my requests
to cooperate with this review, so I allow there may be benign
explanations for these actions. There are also troubling gaps in the
documents EPA has produced in response to Freedom of Information Act
requests, including those said to be lost as a result of a computer
crash and EPA personnel's use of personal email.\61\
---------------------------------------------------------------------------
\61\ See Conclusion and Observations.
---------------------------------------------------------------------------
I believe the information unearthed to date merits the development
of a complete record by those who have the subpoena power necessary to
look at these questions more closely. Government oversight by the
proper authorities must play an active role in ensuring that agencies
do not engage in preordained decision-making. Thus, I urge the EPA's
Inspector General and Congress to continue to explore these questions
which might further illuminate EPA's motives and better determine
whether EPA has met its core obligations of government service and
accountability.\62\
---------------------------------------------------------------------------
\62\ See id.
---------------------------------------------------------------------------
It is my hope that the policymakers involved in charting the course
of the Bristol Bay watershed's future find this report helpful. I have
tried to describe the history of EPA's actions accurately and
objectively. As we look to the future, I urge policymakers to consider
requiring the use of the Permit/NEPA Process. This process, which
entails compliance with NEPA and other regulatory requirements, an
environmental impact statement, and input from EPA, other relevant
agencies, and the State of Alaska, will supply the gaps in information
which the BBWA left outstanding. This decision is too important to be
made with anything less than the best and most comprehensive
information available.\63\
---------------------------------------------------------------------------
\63\ See id.
Supplemental Written Testimony Provided by Richard K. Borden, Owner,
Midgard Environmental Services LLC
I would like to thank Chairwoman Napolitano, Ranking Member
Westerman, and Members of the Subcommittee for the opportunity to
present this supplemental written testimony on the ``Pebble Mine
Project: Process and Potential Impacts.'' This supplemental written
testimony provides additional information and clarification on three
issues which arose during the hearing on October 23, 2019: 1) concerns
were raised by some Subcommittee Members as to why the Pebble Project
Environmental Impact Statement (EIS) needs to be scrutinized now, when
the process is still ongoing; 2) there was contradictory testimony on
the relative height of the proposed Pebble bulk tailings dam compared
to other tailings dams in the global inventory; and 3) there was
contradictory testimony on the uniqueness of the design for the
proposed Pebble water treatment plants.
Environmental Impact Statement Process
The Pebble Project EIS schedule published on the Army Corps of
Engineers website predicts the final EIS will be completed in early
2020 and a record of decision will be issued by mid-2020. The schedule
does not include any more opportunities for public review of the
revised EIS before it is issued as final. This is a major concern
because the Draft EIS contains so many strategic errors and omissions
that I consider it fatally flawed; and a Final EIS could be issued
without allowing public experts in geology, mining, environment,
communities and fisheries to confirm that their concerns have been
adequately and honestly addressed. If the fatal flaws in the Draft EIS
are not fully addressed, this would almost certainly require, at a
minimum, the completion of a Supplemental EIS, recirculated in draft
for public comment. It is for this reason that I believe the Pebble EIS
process does need to be scrutinized at the highest levels.
Relative Tailings Dam Height
According to the Pebble Project Description written by the Pebble
Partnership and incorporated into the Draft EIS as Appendix N, the main
embankment of the bulk tailings dam will be up to 545 feet high. Based
upon additional research completed after the hearing, the proposed
Pebble tailings dam is almost certain to be higher than 99% of the
tailings dams constructed to date across the world and may be higher
than 99.9% of the existing dams. Six of the eight largest mining
companies in the world by market capitalization have recently published
tailings dam inventories in response to several large-scale and high-
profile tailings dam failures. In sum BHP Billiton, Rio Tinto, Vale,
Glencore, Newmont and Anglo American manage over 650 tailings dams.
Only two of these dams are over 545 feet high which means that the
proposed Pebble dam would be higher than 99.7% of the tailings dams
managed by the world's largest and most experienced mining companies.
Furthermore, only 1% of the tailings dams managed by these six
companies exceed 400 feet in height. No data could be found for the
fifth and six largest mining companies in the world which are China
Shenhua Energy and Norilsk Nickel of Russia.
A commonly cited estimate is that there are more than 3500 tailings
dams in the world. Many of these dams are associated with small
historic mining operations and with small mining companies. It is
almost certain that these dams are, on average, smaller than the very
large, high-tonnage operations managed by the world's biggest modern
mining companies.
Proposed Water Treatment Plant Design
According to the Pebble Project Description written by the Pebble
Partnership and incorporated into the Draft EIS as Appendix N, ``the
annual average [water] surplus is estimated at approximately 29 cubic
feet per second for the maximum mine site footprint''. This equates to
an annual average of 13,000 gallons per minute that will need to be
treated towards the end of the mine's life. The Draft EIS also predicts
that water treatment requirements will rise to 22,000 gallons per
minute in early closure. The proposed water treatment plant designs are
extremely complex, still have significant uncertainties and are likely
to have very high operating costs. According to Section 4-18 of the
DEIS ``both facilities would employ treatment plant processes commonly
used in mining and other industries around the world''. While this is
certainly true of individual plant components, I am not aware of a
treatment flowsheet with this many steps and of this complexity being
applied to such high flows anywhere else in the world. In this respect
it is unprecedented.
The contaminated water flows predicted at Pebble are larger than
about 95% of the 108 global mine water treatment plants detailed in the
2013 report ``Review of Mine Drainage Treatment and Sludge Management
Operations'' (Canadian Mine Environmental Neutral Drainage Report
3.43.1). The most common treatment technology for high flow volumes
used in the metals mining industry involves relatively simple lime and
flocculant addition to raise the pH and remove dissolved metals.
However, the treatment technologies incorporated into the two proposed
Pebble plants are much more complex. They include initial metals
precipitation with lime, sodium hydroxide and other reagents, secondary
metals precipitation using sodium hydrogen sulfide and other reagents,
clarification and ultrafiltration at both plants. The open pit
treatment plant also includes reverse osmosis and a biological reactor
for selenium removal. The main water treatment plant also includes
nanofiltration, followed by gypsum precipitation via lime addition,
clarification, reverse osmosis and evaporation (EIS Chapter 2 and
Appendix K, 4.13).
Chart and Email Provided by Alannah Hurley, Executive Director, United
Tribes of Bristol Bay
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Screen captures, ``CNN Exclusive: Complaint Seeks Investigation of
Alleged Insider Trading That May Have Come From a Trump Administration
Leak,'' Provided by Brian Kraft, Owner, Alaska Sportsman's Lodge
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Companies Opposed to Proposed Pebble Mine, Submitted for the Record by
Hon. Peter A. DeFazio
Nearly 200 leading companies in the fly fishing and outdoor
gear industry groups have voiced opposition to the proposed
Pebble Mine.
Guides, Outfitters and Lodges:
AK Adventures Alagnak Lodge Alaska Alpine
Alaska Adventures
Alaska Bear Adventures Alaska's Alaska Fly Fishers
Fishing
Unlimited
Lodge
Alaska Rainbow Adventures Alaska Alaska Trophy
Sportsman's Adventures
Lodge*
Alaska Trophy Fishing Safari Bear Trail Beluga Air
Lodge
Beyond Boundaries Expeditions Blue Fly Bed & Blue Mountain
Breakfast Lodge
Guide Service
Bristol Bay Adventures Copper River Crystal Creek
Lodge Lodge*
Deneki Outdoors* Enchanted Lake Epic Angling and
Lodge Adventure
Fishing Bear Fish and Float Frigate Adventure
Alaska Travel
Frontier River Guides Grizzly Skins Iguigig Lodge
of Alaska
Iliamna River LodKatmai Service Katmai Wilderness
Providers Lodge
No See Um LodSweetwater Tikchik Narrows*
Travel Company
Togiak River LodRainbow River Royal Coachman
Lodge
Western Alaska Sport Fishing Wild on the Fly
Brands and Retailers:
Abel Abu Garcia AirFlo Fly Fishing
Tackle
All Star Graphite Rods Albright Berkeley
Beulah Berkley Boss Tin
Brunton Outdoor Castaway Rods Chota Outdoor Gear
Clackacraft Drift Boats Clear Creek Cliff Outdoors
Fishing Gear
Cloudveil Cortland Costa del Mar
Diamondback Fly Rods and Fly Reels Dragon Tackle Dr Slick Company
ECHO Fly Fishing Elkhorn Fly rod Exefficio
and Reel
Fetha Styx Filson Fly Water Travel
LLC
Frontiers Travel Fenwick Fishpond
Galvan Fly Reels Gamakatsu Gamma
G. LooGreys Guideline
Hardy Hatch Outdoors Hendrix Outdoors
HMH Vices International Islander
Sportsman's Sportfishing
Exposition
Jim Teeny Incorporated Johnson Fishing Kaenon Polarized
LL Lamiglas Lateral Line
LooLoop Tackle Marryat
Mitchell Montana Fly Mustad
Company
Nautilus Reels Norstream Orvis
Outcast Sporting Gear OPM Fishing Optic Nerve
Tackle
Patagonia PENN Pflueger
Pro Troll Fishing Products Pure Fishing Rec Components
Redington Renzetti Rep Your Water
Rising Fish Nets Rio Products RL Winston Rod
Company
RO Drift Boats Ross Reels Sage
Salmon Trout Steelheader Scierra Fly Scott Fly Rods
Fishing
Simms Shakespeare Shallow Water
Fishing and Fishing Expo
Supplies
Smith Optics Snowbee USA Spiderwire
St Croix Rods Stream Works Stren
Targus Temple Fork Tibor Reels
Outfitters
Flyrods
The Fly Shop The Fly Fishing Thomas and Thomas
Show
Turrall Ugly Stik Van Staal
Vosseler Wapsi Waterworks Lamson
William Joseph Wind River Fly Woolrich
Fitter
Yellow Dog Flyfishing Adventures
Media
Amato Books Fish and Fly Fly Fish America
Fly Fishing Magazine Fly Fusion Grays Sporting
Magazine Journal
Hendrix Outdoors Match the Hatch Ribolowacki
Magazine
The Drake This is Fly
Over 100 jewelers, representing more than $6 billion in
annual sales, have pledged support for protecting Bristol Bay
from the proposed Pebble Mine.
Jewelers
Beaverbrooks Ben Bridge Birks and Mayors
Jewelers
Boucheron (UK) Commemorative Fortunoff
Brands Inc.
Fraser Hart (UK) Goldsmiths Hacker Jewelers
Helzberg Diamonds Herff-Jones Ingle & Rhode (UK)
LebMappin and Webb Tiffany and Co.
Zales Corp.
Timeline of Pebble Mine Process, Submitted for the Record by
Hon. Peter A. DeFazio
----------------------------------------------------------------------------------------------------------------
Year Label
----------------------------------------------------------------------------------------------------------------
2019 EPA announces final repeal of Proposed Determination
2019 EPA directs Region 10 Administrator to resume withdrawal of Proposed Determination
2019 President Trump meets with Alaska Governor Dunleavy \1\
2019 PLP proposes project amendments \2\
2018 EPA suspends proposal to withdraw its Proposed Determination
2017 PLP submits new and revised permit application
2017 EPA proposes withdrawal of 2014 Proposed Determination
2017 EPA settles litigation with PLP, promising withdrawal of Proposed Determination
2017 EPA Administrator Pruitt meets with Tom Collier, CEO of PLP \3\
2016 IG Clears EPA of bias or wrong-doing
2014 Federal judge signs a preliminary injunction halting EPA work
2014 EPA Releases Proposed Determination, with recommendations to limit the scope of a mining
project
2014 PLP calls on EPA to halt 404(c) process, files suit
2014 EPA Announces intent to pursue 404(c) process
2014 Final Bristol Bay Watershed Assessment is released, finding inevitable negative effects
2014 Rio Tinto Group divests its 19.8% ownership \4\
2013 Anglo American divests its 50% interest \5\
2012 EPA Releases two draft watershed assessments for public input and peer review
2011 Mitsubishi Corp. divests its 9.1% interest \6\
2011 EPA study period begins
2011 Formal plan filed by Pebble Limited Partnership (PLP) \7\
2010 Zale Corp. joins boycott of precious metals mined from Pebble \8\
2008 Tiffany and Co., Ben Bridge Jewelers, Helzberg Diamonds, Fortunoff and Leber
boycott of any metals mined at Pebble \9\ \10\
----------------------------------------------------------------------------------------------------------------
Most events: https://pebblewatch.com/epa-in-bristol-bay-timeline/, otherwise noted below.
1 https://www.cnn.com/2019/08/09/us/epa-alaska-pebble-mine-salmon-invs/index.html
2 https://pebbleprojecteis.com/files/083461a0-998f-4686-8f6a-38546b64c632
3 https://www.cnn.com/2017/09/22/politics/pebble-epa-bristol-bay-invs/index.html
4 https://www.adn.com/economy/article/latest-blow-pebble-prospect-mining-giant-rio-tinto-pulling-out/2014/04/07/
5 https://web.archive.org/web/20140821042341/http://www.northerndynastyminerals.com/ndm/
NewsReleases.asp?ReportID=615657
6 https://www.sec.gov/Archives/edgar/data/877197/000095014211000433/eh11000089_sc13ga4-ndml.htm
7 https://www.sec.gov/Archives/edgar/data/1164771/000106299311000722/exhibit99-1.htm
8 https://www.fieldandstream.com/blogs/fishing/2010/04/major-us-jewelry-maker-boycott-alaska-pebble-mine-gold/
9 https://www.alaskajournal.com/community/2008-02-17/major-retail-jewelers-take-stance-against-pebble-mine
10 https://earthworks.org/media-releases/jewelry_retailers_opposition_to_pebble_mine_gains_momentum/
Appendix
----------
Question from Hon. Don Young to Alannah Hurley, Executive Director,
United Tribes of Bristol Bay
Question 1. What rivers are your members fishing that are directly
tied to Lake Iliamna?
Answer. UTBB represents 15 tribes in Bristol Bay that make up over
80% of the total population of the region. The Pebble project is in an
area that has the capacity to impact both major river systems in
Bristol Bay. Please see maps and further explanation below.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The mine site is in the area of the Koktuli river that flows into
the Mulchatna River, which then flows into the Nushagak River that
connects the area to all of Western Bristol Bay. Additionally, the mine
site area is connected to the Upper and Lower Talarik Creeks that flow
into Lake Iliamna, which empties into the Kvichak River, that connects
to the area of all of Eastern Bristol Bay and the Alaska Peninsula.
Every one of United Tribes of Bristol Bay communities are connected to
the waterbodies that will be impacted by the Pebble Mine.
Please don't hesitate to reach out with any further questions and
we look forward to working with the Committee to ensure decisions
regarding Bristol Bay by the U.S. government are based on a robust
scientific process that respects and incorporates the traditional
ecological knowledge of Bristol Bay's tribes.
Question from Hon. Don Young to Brian Kraft, Owner,
Alaska Sportsman's Lodge
Question 1. How many of your direct hire employees are members from
the communities surrounding Lake Iliamna?
Answer. Three.
[all]