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EPA and Pebble

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  • EPA and Pebble

    Here's a recent article on Pebble Mine and EPA.

    To fully understand the story, you need to know that EPA has authority under 404(C) of the Clean Water Act to veto Federal decisions that have a signficant adverse impact on water quality. However, they rarely use this authority. It's only used in the most extreme cases. Their veto authority has always been used to veto a decision AFTER a decision has been made. For example, if the U.S. Army Corps of Engineers issues a dredge/fill permit to destroy a wetland, EPA can veto the project based on 404(c).

    Perhaps the most visible use of the 404(C) authority was in 1992 when EPA vetoed the Two Forks Dam proposal just outside Denver. It was a huge irrigation dam that would supply Denver with water for their lawns. That veto was upheld all the way to the White House (the first GWB). In the Great Land, just last year EPA was asked, but refused, to use it's 404(C) authority to veto a new bridge over the Tanana River just outside Fairbanks.

    The issue here is that EPA is considering using it's authority BEFORE any decision is made on Pebble Mine. Vetoing a decisions before it's been made would be new. Really new. Some folks don't believe EPA has that authority. I'm not sure they do either. But if you read the very last line of the above story, you can understand why some folks are nervous.......

  • #2
    Originally posted by Cohoangler View Post
    . . why some folks are nervous.......
    Even more folks would be nervous if they read Days of Destruction, Days of Revolt by Chris Hedges for its scathing indictment of what open-pit mining and slurry impoundments have done for the people and the environment of West Virginia.


    • #3
      Coho, thanks for posting this up.

      A couple links for you and others if you want more facts on all this. First, from the EPA website, a paper on their 404(c) veto authority and when and how many times it's been used:

      Secondly, one of the best articles on all this I've found, with a ton of footnotes and facts:

      The reality of all this is that the EPA has used their 404(c) veto authority in the past prior to a permit application being submitted to or approved by the Army Corps. This would not be something new in that regard. The EPA has only twice (according to the above article) used this veto authority after the Corps issued a permit.

      So why the confusion and hyperbole on that? Well proponents of the mine are arguing that what is unprecedented is this pre-emptive involvement in the Pebble Mine project by the EPA in doing their own watershed test and evaluation. That isn't true though. This is a perfect example overall of why the veto authority was written into law and regulation under the CWA, and a prime example of where and how it should be used.

      We have the uniqueness of the area in question, largest and last wild salmon runs of their kind in the country, commercial and subsistence and recreational uses of those fish (and game in the area), the lax permitting regulations the state of Alaska has that favors development (e.g. the 2005 Bristol Bay Area Plan), the scope of this project which could mean the largest mine of its kind in the we really have to see a plan and permitting applications in order to come to a reasoned rational conclusion that any mine of this type will come with an "unacceptable adverse effect"?

      At the same time I can respect and understand the concern our congressional delegation and governor and mining proponents have should the EPA initiate this process, but I think too that is overblown because this is such a unique area and the scope of the mine is so vast. I mean I don't envision the EPA suddenly using this authority willy nilly across Alaska for other projects. Congressman Young even went so far as to introduce a bill to completely strip the EPA's 404(c) veto authority from the CWA. I honestly can't believe though that most sportsmen and women, those who really care about water quality and fisheries and recreational uses etc, would favor that. We need these types of checks and balances regardless of any particular decisions the EPA under any administration would make.

      We'll see how it all pans out...I remain firmly in the NO ON PEBBLE camp.
      Mark Richards


      • #4
        Originally posted by bushrat View Post

        I remain firmly in the NO ON PEBBLE camp.

        I am still in the NO Trans-Alaska Pipeline camp. Alaska would have been a better place now without the line.
        "Life Is Either a Daring Adventure or Nothing" - Helen Keller


        • #5
          Mark - Thank you for the Law Journal article. It's a great read....... if you like that kinda stuff. Fortunately, I do.

          I would note there is a difference between beginning a 404(c) process, and completing it with a veto. As the article indicates:

          "To initiate the public process, the Regional Administrator needs only to find that an unacceptable adverse effect could result from the activity, whereas the prohibition itself (a veto) requires the EPA to determine that the activity will have an adverse effect.258

          Clearly, the activity will not have an adverse affect if the decision is to reject the permit and the project. No harm, no foul. Conversely, if the project is approved (by the Corps of Engineers, or whoever), then the activity will have an adverse effect. The author maintains that EPA should begin the 404(c) process now, so they are in a position to exercise the veto authority at a later date. I'm okay with that. It's clearly within their authority. However, I maintain that exercising the authority before a decision is made is new. Perhaps others see it differently.

          It'd be nice if EPA did exercise a veto before a decision is made, since it would likely end up in court. And perhaps the courts could tell us if this is within EPA's authority.

          I also remain firmly in the No Pebble camp.


          • #6
            No Pebble here also.
            Front page in our paper this week was a story of an outfit in Homer wanting our locals to pick and sell them blue berries at fifty cents a pound.Even the mayor said no.
            Now left only to be a turd in the forrest and the circle will be complete.Use me as I have used you


            • #7
              Me too . . against Pebble, that is.

              But what's objectionable about the blueberry thing? Lots of folks pick wild whatever—ginseng, mushrooms, etc.—for profit. Too cheap @ 50-cents/pound?

              Just curious . .


              • #8
                Some outfit selling hand picked supplements from different berries
                Now left only to be a turd in the forrest and the circle will be complete.Use me as I have used you


                • #9

                  "One of the byproducts of Mountaintop Removal coal mining is toxic coal slurry. Billions of gallons are stored in dams, and often it’s around local communities. Nevermind that living so close to these toxic pools of waste affects people’s health, but it’s dangerous since the dam holding back the coal slurry can break. If it does, then the surrounding community faces disaster."

                  The Tennessee Valley Authority, better known as TVA, has a coal-burning power plant located near Harriman, Tennessee, along Interstate 40 between Knoxville and Nashville. The stuff that is left over after TVA burns their coal is called coal ash.

                  Coal ash contains mercury and dangerous heavy metals like lead and arsenic – materials found naturally in coal are concentrated in the ash.

                  TVA has a huge mountain of this coal waste material stored in a gigantic pile next to their Harriman (Kingston) power plant, alongside a tributary of the Tennessee River.

                  On Monday morning Dec. 22 around 1:00 am, the earthen retaining wall around this mountain of coal ash failed and approximately 500 million gallons of nasty black coal ash flowed into tributaries of the Tennessee River – the water supply for Chattanooga TN and millions of people living downstream in Alabama, Tennessee and Kentucky.

                  This Tennessee TVA spill is over 40 times bigger than the Exxon Valdez spill in Alaska, if local news accounts are correct.

                  *** This is a huge environmental disaster of epic proportions.
                  To see an amazing aerial video of the spill – the big hunks and chunks in the river are mounds of coal ash:



                  • #10
                    The Teton Dam was a federally-built earthen dam in Idaho in the United States, put up by the Bureau of Reclamation, one of eight federal agencies authorized to construct dams. Located on the Teton River in the eastern part of the state between Fremont and Madison counties, it suffered a catastrophic failure on June 5, 1976, when it was being filled for the first time. The collapse of the dam resulted in the deaths of 11 people and 13,000 head of cattle. The dam cost about $100 million to build, and the federal government paid over $300 million in claims related to its failure. Total damage estimates have ranged up to $2 billion. The dam has not been rebuilt.


                    • #11
                      Briefly off-topic . .

                      . . story of an outfit in Homer wanting . . locals to pick and sell them blue berries at fifty cents a pound. . .
                      Thanks for the heads-up . . here's the article for anyone interested:

                      Homer group seeks Wrangell blueberries

                      Back now to our regular programming . .


                      • #12
                        I am a firm believer in letting the state departments and agencies do their jobs and shut down the mine (or plans) if necessary. Every endeavor deserves a fair process.
                        I am not saying I favor the mine... I think I don't.


                        • #13
                          Originally posted by Sayak
                          I am a firm believer in letting the state departments and agencies do their jobs and shut down the mine (or plans) if necessary. Every endeavor deserves a fair process.

                          The problem, Steve, is that the process the state currently is using favors development, so it isn't really "fair." The truth of that can be found in the Bristol Bay Area Plan that guides the entire process...for example there is no land use classification for subsistence hunting and fishing. One would think that should be a no-brainer for the state to recognize the importance of subsistence hunting and fishing in the region and include it in a plan that will determine what impacts there could be on those activities region-wide. 'Bout the farthest thing from "fair" to the people of the region (and the fish and wildlife they depend upon) that I can think of.

                          And to Cohoangler, the way I read the law journal article, in all but two instances of the EPA using the 404(c) veto authority it was done prior to the Corps either approving or reviewing permit apps. So I still don't follow why you believe that would be something new if it would happen in this case but maybe I read that wrong.

                          By the way, here is a link to a rebuttal of the Hill article you first posted about:

                          Mark Richards


                          • #14
                            Originally posted by bushrat View Post
                            The problem, Steve, is that the process the state currently is using favors development, . .

                            And the greater problem might be corporate capitalism's love affair with short term profits at the expense of human community, quality of life, and the environment.

                            If that's the case, and there are many who believe it is, then the problem is far from an Alaskan anomaly.

                            Well, they have the individuals who live within those areas have no power. The political system is bought off, the judicial system is bought off, the law enforcement system services the interests of power, they have been rendered powerless. You see that in the coal fields of Southern West Virginia.

                            Now here, in terms of national resources is one of the richest areas of the United States. And yet these harbor the poorest pockets of community, the poorest communities in the United States. Because those resources are extracted. And that money is not funneled back into the communities that are sitting on top of, or next to those resources.

                            Not only that, but they're extracted in such a way that the communities themselves are destroyed quite literally because you have not only terrible problems with erosion, as they cause when they do the mountaintop removal, they'll use these gigantic bulldozers to push off all the trees and then burn them.

                            And when we flew over the Appalachians, and it's a terrifying experience, because you realize only then do you realize how vast the devastation is. Just as when we were both in the war in Bosnia, you couldn't grasp the destruction of ethnic cleansing until you actually flew over Bosnia, and village after village after village had been razed and destroyed.

                            And the same was true in the Appalachian Mountains. And these people are poisoned. The water is poisoned, it smells, the soil is poisoned. And the people who are making tremendous profits from this don't even live in West Virginia--

                            —Chris Hedges to Bill Moyers

                            For a transcript of the entire interview and more:


                            • #15
                              Mark - I found the law journal's reference to only two instances of EPA using their 404(c) authority after a decision has been made to be quite surprising. I have personally reviewed several instances where EPA used their 404(c) authority after a Federal decision was made. So I am not sure what the law journal was referring to. The footnote doesn't help much either.

                              The difference might be that the EPA regulations indicate they have the authority to veto a project before a decision is made, while the law (Clean Water Act) is not exactly clear. When developing regulations, it's not unusual for a Federal agency to view their legal authorities quite broadly, especially if there is ambiguity in the law (much to the consternation of anti-government types). So my sense is that EPA has written their 404(c) regulations it be rather expansive. In this case, their have interpreted the CWA as giving them the ability to veto a project before a decision has been made. So even though EPA may hav used their authority to veto a project before a decision, that doesn't mean that authority is consistent with the law. It just means nobody has challenged it in court.

                              To be clear - the law was written by Congress and the regs were written by EPA. Regs cannot overide or expand upon what Congress has written. So it's the job of the third branch of gov't (the courts) to determine whether the EPA regs are within the confines of the law (CWA). Thus, the last sentence of my previous post.

                              We may continue to disagree on this issue, but we both agree that Pebble Mine is a really bad idea.


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