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Senators Seek To Curb EPA Authority On Mine Waste Disposal

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PEBBLE MINE
EPA administrator Gina McCarthy listens to people voice their concerns about the proposed Pebble Mine during a meeting in the Iliamna Lake Lodge on Tuesday, August 27, 2013. A group of senators is trying to block the EPA's ability to use its authority under the Clean Water Act to preemptively block the mine. (Bill Roth) | Anchorage Daily News via Getty Images

WASHINGTON -- A pair of senators have introduced legislation that would prevent the Environmental Protection Agency from using its authority to preemptively block or to revoke permits for mine waste disposal. The move has roiled those in Alaska who want EPA to use this authority to block a massive copper and gold mine that could put a major salmon fishery at risk.

The bill, from Sens. David Vitter (R-La.) and Joe Manchin (D-W.Va.), would limit the time period in which the EPA can deny permits. It would preclude the agency from invoking its authority under Section 404(c) of the Clean Water Act to protect certain areas before a company has formally applied for a permit, and would also prevent the agency from revoking a permit once it has been issued.

The senators have named the bill the Regulatory Fairness Act of 2014. In announcing the bill last month, Manchin argued that the EPA "has been waging a destructive war against energy production." Sens. Lisa Murkowski (R-Alaska) and James Risch (R-Idaho) have also signed on as co-sponsors.

Section 404(c) of the Clean Water Act allows the EPA to prohibit or restrict the dumping of dredge or fill material into waterways if the agency finds that doing so will have an "unacceptable adverse impact" on resources.

There have been several recent cases where the EPA has used this authority to block or revoke mining permits. The first was the EPA's decision in 2011 to withdraw a permit for the Spruce No. 1 coal mine in West Virginia. In issuing its decision, the EPA's assistant administrator for water said that the mine "would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend." Mine owner Mingo Logan Coal Co. sued over the EPA's decision, and just last month the U.S. Supreme Court declined to hear the company's challenge.

The EPA is also now evaluating whether it will preemptively block the Pebble Mine, a proposed gold and copper mine in Alaska. The agency released a report in January that found that the mine, which would be built at the headwaters of two rivers that feed into the Bristol Bay, would have a significant impact on the bay, local fisheries and wildlife, and Alaska Native communities in the area. In February, EPA Administrator Gina McCarthy announced that the agency was beginning the process of determining whether to block the mine under its section 404(c) authority, in order to "ensure that the world's most productive salmon fishery is safe from the risks it faces from what could be one of the largest mines on Earth."

This is only the beginning of the process, which will likely take a year, and it doesn't mean that the EPA will ultimately block the Pebble project. But the move has given hope to those in the region who have been fighting the proposed mine.

The EPA has only used this authority 13 times since 1972. In announcing the action on Pebble, EPA Administrator Gina McCarthy sought to emphasize that the agency only invokes its 404(c) authority in rare circumstances.

"This is not something that the agency does very often, but the Bristol Bay fishery is an extraordinary resource and is worthy of out-of-the-ordinary agency action to protect it," said McCarthy as she announced the Pebble action.

The agency said that the Pebble action "does not reflect an EPA policy change in mine permitting."

Sen. Murkowski's decision to sign onto the bill has outraged the Alaskans fighting Pebble. Fisherman and community groups in the region have opposed the mine because they worry it will have devastating impacts on the fishery and those who rely on it.

"From the start, using the Clean Water Act in Bristol Bay has been driven by Alaskans and for Alaska's jobs and salmon," said Melanie Brown, a Naknek subsistence fisherwoman, in a statement. "The bill [Murkowski] co-sponsored would undermine strong scientific evidence and a thorough public process that Alaskans have asked for to protect our fisheries."

Murkowski's spokesman, Robert Dillon, said that the senator's reasons for co-sponsoring the bill have been "misconstrued."

"This is about process and precedent -- about EPA's willing departure from the established permitting process, to potentially issue its first-ever preemptive veto, and the deeply negative consequences that will follow for development throughout our state and nation," Dillon told The Huffington Post in an email. "If EPA is allowed to expand its authority to veto projects before, during, and long after relevant permits are considered, that will take the very last vestiges of certainty away from investors."

A spokesman for Sen. Manchin said he did not think the senator has a position on Pebble Mine, and that this bill "wasn't drafted with that in mind." The spokesman said via email that Manchin drafted the bill because "American businesses need to have certainty in the marketplace. This bill provides that certainty by clarifying timelines for EPA involvement in the permitting process."

But opponents of the bill in Alaska say that, if passed, the measure would leave other industries hanging.

"This bill directly targets the section of the Clean Water Act that sportsmen, commercial fishermen, tribes and Alaskans from across the state have asked to be used to stop Pebble and protect salmon," said Brian Kraft, owner of Alaska Sportsman's Lodges, in a statement.

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