Why Your Well-Intended Comments Won’t Work

Editor’s Note: The deadline looms for submitting comments to the EPA about the proposed Pebble Mine. You may be thinking that you’ve already done that. But your comments may be off the mark. It’s not too late to save your opinion from the scrap heap. Here’s what you can do. And do it BEFORE SUNDAY!

In the upcoming days, you will see a frantic flurry of e-blasts, Tweets and Facebook posts urging you to tell the EPA to stop the Pebble Mine, to “help save jobs” in the commercial fishing industry.  But these calls for action are not what the EPA is looking for right now.  Unfortunately, it has been a common problem during this process.

Last summer, the EPA conducted its first round of public hearings on the initial draft Bristol Bay watershed assessment, from Anchorage to villages along the Nushagak and Kvichak watersheds. At each hearing, the EPA started with a presentation. First, the EPA explained why it was even involved in the issue. It was petitioned by a  group of Alaska Tribes to consider using its authority under the Clean Water Act, Section 404(c), to stop the development of the Pebble Mine.  Given the EPA’s ultimate permitting authority over all “waters of the United States,” this law would empower the EPA to make decisions over lands that were otherwise under State control. That section of the CWA gets at the heart of a crucial element of design of any sulphuric, hard rock mine that employs open pits – a “disposal site” commonly referred to as a talings pond or talings impoundment (Pebble’s would be massive).  It provides:

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.

Thus, under this authority, the EPA could decree that a fish spawning and breeding area could not be used as a disposal site for any waste rock from a mining operation if it would have an “unacceptable adverse effect” on that habitat.  But the EPA could only do so after a notice and opportunity for hearing, and after consultation with the Secretary of the Army (yes, the Army, because of the role of the U.S. Army Corps of Engineers in wetlands management.)

Second, the EPA identified at these hearings the data it had relied upon in producing the draft watershed assessment.  It stated that it had relied on the environmental baseline information produced by the Pebble Partnership, and its predecessors, which had been conducting baseline environmental studies since at least 2006 (some 18 years after initial exploration began – hardly “baseline”). Similarly, the EPA relied on mine plans filed by Northern Dynasty with the Canadian government, giving a rough outline as to the type, nature and size of mine Pebble would be. It also included scientific data gathered by the State of Alaska, peer-reviewed research, and numerous interviews with Tribal elders.

Finally, it asked the public to provide input on anything that it may have missed.  Are there any studies or data out there that the agency missed? Are there any scenarios that were not considered? What sort of flaws were there with the agency’s methodology?

In response, the EPA mostly received comments at these hearings that were outside of the scope of what it was looking for.  “Why are you here? This is State land!” came one comment.  “Pebble has been out there studying the area for six years, you’ve only been here for one year, what do you know?” was another.  Clearly, these people had not listened to the presentation.  Many other comments centered around how the Pebble Mine would be good for jobs or would harm the fishery or subsistence.  Clearly, these people had not listened to the sort of feedback the EPA was soliciting.  This problem seems to be persisting today.

With post after post, and email after Tweet, I am seeing this pattern repeat itself.  A cadre of chefs have sent a letter to the EPA urging the Acting Administrator to stop the Pebble Mine. Trout Unlimited’s “Save Bristol Bay” Facebook page has been urging people to “Tell EPA to Protect Bristol Bay!” Earthworks, one of the more vocal nationwide organizations on mining issues, has been urging its members and newsletter subscribers to “Tell the EPA to use its Clean Water Act power and prohibit mining in the Bristol Bay watershed!” But these calls, while well-intentioned, are premature and simply not what the EPA is looking for at this time.

The EPA’s own page established for this watershed assessment clearly states the limited purpose of the assessment, noting, “The assessment will provide a better understanding of the Bristol Bay Watershed and will inform consideration of development in the area.” The revised draft assessment itself clearly states what it is NOT intended to do:  “As a scientific assessment, it does not discuss or recommend policy, legal, or regulatory decisions, nor does it outline or analyze options for future decisions.” So the purpose of the assessment is to outline the science thatmay guide a future decision; it is not designed to be a mechanism for making a decision in and of itself.

As to what the EPA is looking for, it clearly sets that out as well: “We’re accepting comments on the revised draft assessment until June 30, 2013.  We want to ensure that we’re using the best available science and that we’ve heard and considered all comments received in response to the May 2012 draft assessment.” So, to reiterate, has the EPA considered all the relevant science and has it considered the comments received during last summer’s public process. That’s it.  The EPA is not looking for your opinion as to whether the Pebble Mine should be allowed to proceed.  If you recall the language of Section 404(c), it can only refuse to authorize a discharge into important fish habitat after notice and opportunity for a hearing – such notice will not come until after it has completed its final assessment.  (There would be no public process if the EPA chooses not to assert its Section 404(c) authority.) And when the EPA engages in that public process, THAT would be a good time to opine about whether Pebble is a good idea. But that would not come until after the EPA has issued a final watershed assessment, and after it has announced a decision and scheduled a process for public input.

So, if you want to provide meaningful input to the EPA, not the kind of input that would go into the “Not Applicable” file, then go back to what the EPA is asking for.

First, the science.  Are there data, studies, research (preferably peer-reviewed) related to the fish spawning and rearing habitats of the Kvichak and Nushagak Rivers that the EPA has not considered?  For example, has Dr. Carol Ann Woody been out in the field lately and is her data included? Then, are there any potential impacts to that habitat the EPA has not considered?  For example, is the assessment’s focus on a catastrophic event – rather than the surface water and ground water pollution likely to result from normal, permitted operations – adequate? Or, has the EPA considered the impact of the use of mixing zones on salmon habitat?

Second, go back and review the comments you submitted or that your organization submitted, and then review whether the EPA has addressed those concerns.  If it has not, then reiterate those comments and state how or why the EPA has not responded to them.

These public processes are important, and the unusual nature of this process has understandably left people confused as to what they should say, or where we are in the process.  It is a power that has been rarely used and lacks the predictability and certainly of any process conducted under the National Environmental Policy Act (NEPA). Thus, the best way to take advantage of this unusual public process involving the Pebble Prospect (it has undergone virtually no public process in 25 years of exploration) is to give the agency what it is looking for.  Any comments outside of that scope will simply be ignored.

Go here to read instructions on how to comment on the EPA’s revised draft watershed assessment for Bristol Bay.

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