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October 28, 2013
EPA 'overreaches' on mining projects

Among federal agencies, the EPA has taken a big lead in overregulating the mining industry and, in the process, reducing the role of the states to spectators in many mining projects.  That’s a trend that needs to be reversed, said Edmund J. Fogels, Deputy Commissioner of the Alaska Department of Natural Resources, at a hearing of the House Subcommittee on Energy and Mineral Resources. 

Fogels’ testimony also represented the interests of the Interstate Mining Compact Commission (IMCC), which comprises 26 member and associate-member states.  A primary focus of the IMCC is to promote a cooperative effort between state and federal agencies in advancing responsible mining development and environmental protection, said Fogels.

But that is not happening, said Fogels, primarily because the EPA is seeking to issue rules that unnecessarily duplicate well-functioning state programs “at real costs to the states and their residents who work to responsibly develop and protect natural resources.”  Fogels emphasized that federal agencies must recognize that states have an “irreplaceable” familiarity with mining projects within their borders and their economic importance, which sometimes applies to entire local communities.

Bristol Bay—Alaska’s top concern

Fogels gave three examples of how the EPA is not acknowledging the primary role and expertise of states.

  • Bristol Bay watershed assessment.  A consortium of companies is seeking to mine copper, gold and molybdenum in an area in Southwest Alaska roughly the size of West Virginia.  Almost all the project land is owned by the state; no part is owned by the federal government.  In 2010, the EPA began conducting a watershed assessment based on a “hypothetical mining plan” characterized by “speculation and conjecture,” said Fogels, rather than on a “detailed mining plan” associated with a permit application.  Alaska and the IMCC are concerned that EPA’s assessment is an “unauthorized regulatory document” that excluded state participation.  “A watershed assessment is not the manner in which the EPA is statutorily authorized to involve itself in a regulatory approval process under the CWA,” said Fogels.  “While the EPA has not committed to do so, the State of Alaska has repeatedly raised the concern that EPA will use the assessment to claim it has authority to preemptively veto CWA section 404 permits before they are issued or even applied for.”  Fogels says that the only legally correct review of the project is an environmental impact statement (EIS) prepared under the National Environmental Policy Act (NEPA), a process in which Alaska would participate as a cooperating agency.
  • CERCLA bonding.  In 2009, the EPA began exploring the use of its CERCLA authority to develop reclamation bonding requirements for hard-rock mines.  This rulemaking is not currently proceeding, but Fogels and the IMCC suspect that the EPA may restart the process.  Reclamation bonds are capital commitments that companies must make to ensure that cleanup and reclamation of mining activities are completed if the companies themselves go bankrupt or are unable to remediate their sites.  Fogels insists that state agencies have extensive expertise in bonding and reclamation.  “Unsophisticated calculations by the EPA, uninformed by the vast experience of the states, would throw the bonding process severely out of balance,” testified Fogels.  “Excessive bonds do not make it more likely that a mine will be properly remediated, but they may prevent it from being developed entirely.”
  • Aquatic resources of national importance (ARNI).  Under the Section 404 permitting process, the EPA has the authority to require the Army Corps of Engineers (Corps) to conduct a higher level of review of permits authorizing dredge and fill activities that could adversely impact ARNIs.  Fogels points out that in the first 20 years that EPA’s authority has been in effect, the Agency requested a higher level of Corps review for under 20 projects in the entire country.  In the last 3 years, two EPA-initiated reviews in Alaska alone have affected projects.  “Project proponents are pressured to accept changes sought by the EPA to preliminary Corps decisions to avoid the potential extended delay that a disagreement between the federal agencies could entail,” complained Fogels.

Fogels concluded by calling on Congress and the Executive Branch to exercise leadership and oversight to ensure that the interests of states are properly represented in regulatory decision making.

Fogels’ testimony

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