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Pebble next target for EPA Environmental Justice unit?

Posted: Sunday, February 20, 2011

The Environmental Protection Agency Region 10 office has a list, and it's already been checked twice.

Next up is the Pebble mine.

The EPA Region 10 office stated that its Feb. 7 announcement to conduct a year-long, scientific assessment of the impacts of large-scale development on the Bristol Bay watershed was based on petitions received during 2010 from numerous Alaska Native and fishing industry groups concerned the proposed mine will pollute the rivers that produce the world's largest salmon run.

Documents from the Region 10 office, however, indicate plans for understanding and addressing impacts from copper and gold mining in the Bristol Bay watershed date back to at least 2008.

During 2010, several groups asked the EPA to begin a process under section 404(c) of the Clean Water Act that would allow it to pre-emptively stop the Pebble project before it can apply for permits from the U.S. Army Corps of Engineers to deposit waste rock from the operation within the watershed.

Section 404(c) allows the EPA to veto such permits issued by the Corps, an action it has taken just 13 times since 1972. The EPA has never pre-emptively prohibited such activity before a permit application has been filed or approved.

Pebble opponents would like to see the EPA set a limit on waste rock disposal within the watershed that would be high enough to prevent development of Pebble while still allowing for something like a village gravel mine.

Region 10 administrator Dennis McLerran tapped Rick Parkin to lead the Pebble assessment. Parkin, who has been with the EPA for 30 years, is the associate director of the Office of Ecosystems, Tribal and Public Affairs.

In 2008, Parkin's office wrote an action plan for its Environmental Justice division for fiscal year 2009 that identified three examples of long-term successful results: "addressing fish consumption rates in Oregon water standards, protecting subsistence fishing in the Colville Delta, understanding and addressing the impacts of copper and gold mining in the headwaters of Bristol Bay."

Region 10 officials did not make McLerran available for an interview, and were unresponsive to repeated questions related to the 2009 action plan.

Two for two

In 2010, Region 10 denied proposed water quality standards by the state of Oregon after more than six years of efforts. The denial was based on Region 10 siding with tribes wanting a higher daily fish consumption rate used to set water quality standards.

Oregon's Department of Environmental Quality proposed standards based on a daily fish consumption rate of 17.5 grams per day, or two 8-ounce meals per month. Oregon tribes wanted the daily fish consumption rate set at 175 grams per day.

In June 2009, Region 10 notified the Corps that it would classify the Colville River Delta on Alaska's North Slope as an "aquatic resource of national importance," elevating the CD-5 permit application from ConocoPhillips for additional scrutiny under the Clean Water Act section 404(q).

The rarely used "aquatic resource of national importance," or ARNI, designation directs the Corps to consider a permit application as similar in magnitude to a 404(c) case. It has been used only 11 times since 1992 -- three of those since 2009. The undefined designation is not noted in law or regulations, but in federal interagency memorandums of agreement signed with the Corps in 1992.

Region 10 recommended denial of the permit request to build a bridge and pipeline over the Colville River, along with associated infrastructure.

The Corps eventually sided with the EPA and denied the CD-5 permit. Under federal regulations, the Corps must justify overriding the wishes of the state, and it cited the importance of the Colville River delta ecosystem as "the largest and most productive in northern Alaska."

While the Corps acknowledged but made no comment of agreement with the EPA's designation of the Colville delta as an ARNI in the record of decision, it did concur with the potential "disproportionate effect on minority and low-income populations" identified in the environmental justice section of the final analysis.

Jackson's environmental justice

Environmental justice is important to EPA Administrator Lisa Jackson, who often states environmentalism is inextricably linked to civil rights.

Addressing a gathering of Blacks in Government, or BIG, in Baltimore in August 2009, Jackson drew upon the Jim Crow South to talk about how she, as an African-American, is "changing the face of environmentalism."

"There was a time living in the South when my father would have been forced to drink unsafe water out of different pipes and different fountains because of his race," Jackson told BIG.

According to speech transcripts posted on the EPA's website, Jackson has repeatedly used a variation of this statement in her vision for environmental justice.

"Now," Jackson typically concludes as she did in May 2009, "I have the responsibility of ensuring that everyone drinks clean water -- regardless of their race."

Environmental justice as federal policy was established in 1994 through an executive order signed by President Bill Clinton that directed all federal agencies to ensure that actions taken did not disproportionately impact or disadvantage minority or low-income populations.

Jackson has used the order to direct agency staff to incorporate environmental justice into all decision-making. The budget for the Environmental Justice division, located within the EPA Office of Enforcement at the Washington, D.C., headquarters, nearly doubled from $4.3 million in 2008 to $7.2 million in 2010.

While the Native groups who petitioned the EPA to review the Pebble mine cheered the announcement of a scientific review, the Obama Administration isn't as popular everywhere in the Alaska Native community when it comes to environmental justice.

In the western Aleutians, the villages of Adak and Atka are concerned over the National Marine Fisheries Service decision to close cod and mackerel fishing to protect food sources for endangered Steller sea lions. Aleut Corp., one of the 12 Alaska Native regional corporations and the owner of the Adak processing plant, has blasted the decision.

Alaska Native corporations on the Slope supported the CD-5 project after collaborating with the state and ConocoPhillips on an acceptable design.

"I see the current administration promoting environmental justice: 'We shall not harm individual segments, populations or discriminated people through federal actions,'" said Rudy Tsukata of Aleut Corp. at the December meeting of the North Pacific Fishery Management Council. "That is something that is a concern. We're hearing all this fluff. None of it is translating to what should be done, or what I believe are the purposes of those statements."

Environmental justice has been used to introduce regulations governing everything from nail salon air quality to diesel emissions under the "goods movement" initiative.

At a meeting of the National Environmental Justice Advocacy Council, or NEJAC, in January 2010, a parade of EPA officials presented the ways in which environmental justice is influencing policy, according to meeting transcripts.

Rob Brenner, of the EPA Office of Policy Analysis and Review, related how environmental justice influenced diesel regulations.

"When we looked at the transportation nodes, the ports, the truck stops, the rail yards and the bus yards, they are located by and large near low-income and minority communities," Brenner said. "So the way for us to ramp up this effort to go after the engines and to fulfill our goals of trying to do additional work in low-income and minority communities was to go after a goods movement initiative."

The goods movement initiative also led to new regulations requiring ultra-low sulfur diesel to be used by ocean-going vessels traveling along the U.S. and Canadian coasts.

According to Totem Ocean Transport Express Inc., the cost of compliance with the low-sulfur requirements will increase freight costs between 12 percent and 15 percent for everything traveling between the ports of Tacoma and Anchorage by 2015, when the strictest standards kick in.

Parkin of Region 10 was also a presenter at the NEJAC meeting, and spoke of how the EPA can inject environmental justice to policy for all federal agencies through the National Environmental Policy Act, or NEPA.

"One place where they come to the table on (environmental justice) matters and all environmental matters having to do with specific projects is the NEPA table," said Parkin. "We've taken the opportunity on a number of occasions to become a cooperating agency on major transportation issues even when we don't have a federal action we're taking. We can still ask to be a cooperating agency. That gives us early and frequent input and gives us some say in decision-making in the document and what is said in the document."

Charles Lee, who heads the EPA's Environmental Justice division, told the NEJAC audience one of Jackson's three principles for the agency is "integrating environmental justice into EPA statutory authority."

"The goal," EPA General Counsel Scott Fulton said, "is really being to see the law and find the mechanisms in the law that allow it to serve as an important enabling vehicle for environmental justice."

Where that vehicle will drive the Pebble process remains unknown, but one thing is now clear. The EPA has taken the wheel.

Andrew Jensen can be reached at andrew.jensen@alaskajournal.com.



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