EPA’S BRISTOL BAY WATERSHED ASSESSMENT: 

A FACTUAL REVIEW OF A 

HYPOTHETICAL SCENARIO 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT 

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

AUGUST 1, 2013 

Serial No. 113–46 

Printed for the use of the Committee on Science, Space, and Technology 

( 
EPA’S BRISTOL BAY WATERSHED ASSESSMENT: A FACTUAL REVIEW OF A HYPOTHETICAL SCENARIO 
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EPA’S BRISTOL BAY WATERSHED ASSESSMENT: 

A FACTUAL REVIEW OF A 

HYPOTHETICAL SCENARIO 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT 

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

AUGUST 1, 2013 

Serial No. 113–46 

Printed for the use of the Committee on Science, Space, and Technology 

( 

Available via the World Wide Web: http://science.house.gov 
(II) 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

HON. LAMAR S. SMITH, Texas, Chair 

DANA ROHRABACHER, California 

RALPH M. HALL, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

FRANK D. LUCAS, Oklahoma 

RANDY NEUGEBAUER, Texas 

MICHAEL T. MCCAUL, Texas 

PAUL C. BROUN, Georgia 

STEVEN M. PALAZZO, Mississippi 

MO BROOKS, Alabama 

RANDY HULTGREN, Illinois 

LARRY BUCSHON, Indiana 

STEVE STOCKMAN, Texas 

BILL POSEY, Florida 

CYNTHIA LUMMIS, Wyoming 

DAVID SCHWEIKERT, Arizona 

THOMAS MASSIE, Kentucky 

KEVIN CRAMER, North Dakota 

JIM BRIDENSTINE, Oklahoma 

RANDY WEBER, Texas 

CHRIS STEWART, Utah 

VACANCY 

EDDIE BERNICE JOHNSON, Texas 

ZOE LOFGREN, California 

DANIEL LIPINSKI, Illinois 

DONNA F. EDWARDS, Maryland 

FREDERICA S. WILSON, Florida 

SUZANNE BONAMICI, Oregon 

ERIC SWALWELL, California 

DAN MAFFEI, New York 

ALAN GRAYSON, Florida 

JOSEPH KENNEDY III, Massachusetts 

SCOTT PETERS, California 

DEREK KILMER, Washington 

AMI BERA, California 

ELIZABETH ESTY, Connecticut 

MARC VEASEY, Texas 

JULIA BROWNLEY, California 

MARK TAKANO, California 

ROBIN KELLY, Illinois 

SUBCOMMITTEE ON OVERSIGHT

HON. PAUL C. BROUN, Georgia, Chair 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

BILL POSEY, Florida 

DAVID SCHWEIKERT, Arizona 

KEVIN CRAMER, North Dakota 

LAMAR S. SMITH, Texas 

DAN MAFFEI, New York 

ERIC SWALWELL, California 

SCOTT PETERS, California 

EDDIE BERNICE JOHNSON, Texas 
(III) 

C O N T E N T S 

August 1, 2013 

Page 

Witness List ............................................................................................................. 2 

Hearing Charter ...................................................................................................... 3 

Opening Statements 

Statement by Representative Paul C. Broun, Chairman, Subcommittee on 

Oversight, Committee on Science, Space, and Technology, U.S. House of 

Representatives .................................................................................................... 7 

Written Statement ............................................................................................ 8 

Statement by Representative Dan Maffei, Ranking Minority Member, Subcommittee on Oversight, Committee on Science, Space, and Technology, 

U.S. House of Representatives ............................................................................ 9 

Written Statement ............................................................................................ 11 

Witnesses: 

Mr. Lowell Rothschild, Senior Counsel, Bracewell & Giuliani LLP 

Oral Statement ................................................................................................. 13 

Written Statement ............................................................................................ 14 

Dr. Michael Kavanaugh, Senior Principal, Geosyntec Consultants, and Member, National Academy of Engineering 

Oral Statement ................................................................................................. 23 

Written Statement ............................................................................................ 25 

Mr. Wayne Nastri, Co-president, E4 Strategic Solutions; Former Regional 

Administrator, USEPA Region 9 

Oral Statement ................................................................................................. 44 

Written Statement ............................................................................................ 46 

Mr. Daniel McGroarty, President, American Resources Policy Network 

Oral Statement ................................................................................................. 112 

Written Statement ............................................................................................ 114 

Discussion ................................................................................................................. 121

Appendix I: Answers to Post-Hearing Questions 

Mr. Lowell Rothschild, Senior Counsel, Bracewell & Giuliani LLP .................... 140 

Dr. Michael Kavanaugh, Senior Principal, Geosyntec Consultants, and Member, National Academy of Engineering .............................................................. 150 

Mr. Wayne Nastri, Co-president, E4 Strategic Solutions; Former Regional 

Administrator, USEPA Region 9 ........................................................................ 187 

Mr. Daniel McGroarty, President, American Resources Policy Network ............ 204 

Appendix II: Additional Material for the Record 

Letter submitted by Tom Crafford, Director, Office of Project Management 

& Permitting, Department of Natural Resources, State of Alaska .................. 208 

Letter submitted by Amanda E. Aspatore, Associate General Counsel, National Mining Association .................................................................................... 218 
Page

IV 

Letter submitted by William L. Kovacs, Senior Vice President, Environment, 

Technology & Regulatory Affairs, Chamber of Commerce of the United 

States of America ................................................................................................. 219 

Letter submitted by R. Bruce Josten, Executive Vice President, Government 

Affairs, Chamber of Commerce of the United States of America ..................... 222 

Letter submitted by the American Fly Fishing Trade Association; American 

Rivers; American Sportfishing Association; Bass Anglers Sportsmen Society; 

Berkeley Institute; Campfire Club of America; Dallas Safari Club; Delta 

Waterfowl; Ducks Unlimited; Orion, The Hunter’s Institute; Pope & Young 

Club; Quality Deer Management Association; Theodore Roosevelt Conservation Partnership; Trout Unlimited; Wild Sheep Foundation; Wildlife Forever; and Wildlife Management Institute .......................................................... 224 

Letter submitted by Sport Fishing and Hunting Interests on Bristol Bay 

Alaska ................................................................................................................... 226 

Comments submitted by the United Tribes of Bristol Bay .................................. 283 

Comments submitted by the Bristol Bay Native Corporation ............................. 295 

Letter submitted by Myron Ebell, Director, Center for Energy and Environment, Competitive Enterprise Institute ............................................................. 305 

Comments submitted by Myron Ebell, Director, Center for Energy and Environment, Competitive Enterprise Institute ....................................................... 307 

Joint letter submitted by six federally-recognized Tribes in the Kvichak and 

Nushagak River Drainages of Southwest Alaska .............................................. 309 

Letter submitted by Geoffrey Y. Parker, Counsel for several federally-recognized Tribes .......................................................................................................... 329 

Letter submitted by David Harsila, President, Alaska Independent Fishermen’s Marketing Association .............................................................................. 337 

EPA letter submitted by Sport Fishing and Hunting Interests on Bristol 

bay Alaska (Nov. 2010) ........................................................................................ 338 

Letter submitted by Tiffany&Co. ........................................................................... 362 

Comments submitted by Amanda E. Aspatore, Assistant General Counsel, 

National Mining Association ............................................................................... 365 

Comments submitted on behalf of the Natural Resources Defense Council ....... 370 

Letter submitted by William Riley, formally worked for the U.S. Environmental Protection Agency’s Region 10 Office in Seattle, Washington ............. 389 

Article submitted for the record ............................................................................. 399 

Letter submitted by Chris Wood, President and CEO, Trout Unlimited ............ 401 

Letter submitted by Thomas G. Yocom, formally served as National Wetlands 

Expert for the U.S. Environmental Protection Agency ..................................... 404 
(1) 

EPA’S BRISTOL BAY WATERSHED 

ASSESSMENT: 

A FACTUAL REVIEW OF A HYPOTHETICAL 

SCENARIO 

THURSDAY, AUGUST 1, 2013 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON OVERSIGHT

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 1:04 p.m., in Room 

2318 of the Rayburn House Office Building, Hon. Paul Broun 

[Chairman of the Subcommittee] presiding. 
2 
3 
4 
5 
6 
7 

Chairman BROUN. The Subcommittee on Oversight will come to 

order. 

Good afternoon, everyone. In front of you are the packets containing the written testimony, biographies, and Truth in Testimony 

disclosures for today’s witnesses. I now recognize myself for five 

minutes for an opening statement. 

The title of today’s hearing is, ‘‘EPA’s Bristol Bay Watershed Assessment: A Factual Review of a Hypothetical Scenario.’’ 

I would like to extend a particularly warm welcome to our witnesses and thank you all for joining us here today, and really appreciate your coming and testifying before the Committee. 

Last year, the U.S. Environmental Protection Agency released a 

draft watershed assessment of the Bristol Bay area in Alaska at 

the request of several Alaskan tribes and organizations concerned 

about the potential of mining activity in the region. This assessment, which by some estimates has cost taxpayers a minimum of 

$2.4 million, has undergone a peer review process and was re-released earlier this year as a second draft. However, EPA has not 

finalized the assessment, nor has it specified the ultimate purpose 

of the document. One concern—not denied by EPA—is that the assessment may be the basis of a preemptive veto where the agency 

would prohibit a mining company from even applying for mine permits. It is important to note that as of this point, no mining permits have been filed in Bristol Bay. That means that EPA’s watershed assessment is based on hypothetical mining scenarios, and according to one mining supporter, ‘‘it is a fantasy for the government 

to say here is a mine plan.’’ 

Further, one of our witnesses today, Dr. Kavanaugh, a member 

of the National Academy of Engineering, states that EPA’s assessment, ‘‘exaggerates the probability of failures, relies on worst-case 

scenarios to support a qualitative judgment on the potential impacts of these failures, does not adequately consider modern engineering, construction, operations and maintenance practices, and 

thus provides an unrealistic and unscientific assessment of the potential impacts of the hypothetical mining project.’’ 

I find that analysis troubling. A prospective decision of such 

magnitude by the EPA should be based on the best possible 

science, a point underscored in EPA’s own Peer Review Handbook 

which states, and I quote, ‘‘Science is the foundation that supports 

all of our work here at EPA. Strong, independent science is of paramount importance to our environmental policies. The quality of 

science that underlies our regulations is vital to the credibility of 

EPA’s decisions.’’ 

A preemptive veto by EPA would set a dangerous precedent, and 

could have a chilling effect on similar projects throughout the nation. Investors would be wary of funding projects if they believed 

that a Federal agency could just say no at any time to a company 

permit prior to even applications being made. 

Let me emphasize that I am not an advocate for or against the 

development of the Pebble mine, in spite of what some people have 

claimed and charged. I understand the argument of mine proponents—that they be granted due process and allowed to make 

their case through existing law, which includes the Clean Water 

Act, the National Environmental Policy Act, as well as the Envi-
8 

ronmental Impact Statement process, which would address the specific issues that are unique to this part of Alaska and exclusive to 

this mine proposal. 

You all may also know that I am a long-term lifetime member 

of Trout Unlimited. I am an avid hunter and a fisherman, and I 

have been to Alaska many times. You can come to my office and 

you will see some critters that I was able to gather there. I, too, 

understand the concerns of the anti-mine people regarding the 

value of this inimitable and pristine environment. 

Let me assure these folks: I care more about protecting that environment than any nonprofit organizations pushing a social agenda. 

To me, the question at hand comes down to one of due process. 

This country was founded under the notion that citizens must be 

protected from tyrannical overreach, and I believe it is unconscionable for the Administration, any Administration, to deny U.S. citizens their day in court. In a similar vein, I would consider a preemptive denial by the EPA equivalent to denying the mining companies their day in court, having judged them guilty instead of presumed innocent. 

Even The Washington Post, hardly regarded as a pro-mining 

mouthpiece, concluded in a recent editorial regarding the mining 

companies, ‘‘All they want, they say, is a fair and thorough evaluation of their claims. That is reasonable.’’ 

That is reasonable to me too, and I look forward to hearing all 

sides of our witnesses’ testimonies today. 

[The prepared statement of Mr. Broun follows:] 

PREPARED STATEMENT OF REPRESENTATIVE PAUL C. BROUN, CHAIRMAN, 

SUBCOMMITTEE ON OVERSIGHT

Today’s hearing is titled, ‘‘EPA’s Bristol Bay Watershed Assessment—A Factual 

Review of a Hypothetical Scenario.’’ 

Last year, the U.S. Environmental Protection Agency released a draft watershed 

assessment of the Bristol Bay area in Alaska at the request of several Alaskan 

tribes and organizations concerned about the potential of mining activity in the region. 

This assessment, which by some estimates has cost taxpayers a minimum of $2.4 

million, has undergone a peer review process and was re-released earlier this year 

as a second draft. However, EPA has not finalized the assessment, nor has it specified the ultimate purpose of the document. One concern—not denied by EPA— is 

that the assessment may be the basis of a preemptive veto where the agency would 

prohibit a mining company from even applying for mine permits. It is important to 

note that as of this point, no mining permits have been filed in Bristol Bay. That 

means that EPA’s watershed assessment is based on hypothetical mining scenarios, 

and according to one mining supporter, ‘‘it’s a fantasy for the government to say 

here’s a mine plan.’’ 

Further, one of our witnesses today, Dr. Kavanaugh, a member of the National 

Academy of Engineering, states that EPA’s assessment ‘‘exaggerates the probability 

of failures, relies on worst case scenarios to support a qualitative judgment on the 

potential impacts of these failures, does not adequately consider modern engineering, construction, operations, and maintenance practices, and thus provides an unrealistic and unscientific assessment of the potential impacts of the hypothetical mining project.’’ 

I find that analysis troubling. A prospective decision of such magnitude by the 

EPA should be based on the best possible science—a point underscored in EPA’s 

own Peer Review Handbook which states, ‘‘Science is the foundation that supports 

all of our work here at EPA. Strong, independent science is of paramount importance to our environmental policies. The quality of science that underlies our regulations is vital to the credibility of EPA’s decisions.’’ 

A preemptive veto by EPA would set a dangerous precedent, and could have a 

chilling effect on similar projects throughout the nation. Investors would be wary 
9 

of funding projects if they believed that a federal agency could just say no at any 

time to a company prior to permit applications. 

Let me emphasize that I am not an advocate for or against the development of 

Pebble mine. I understand the argument of mine proponents—that they be granted 

due process and allowed to make their case through existing law, which includes 

the Clean Water Act, the National Environmental Policy Act, as well as the Environmental Impact Statement process, which would address the specific issues that 

are unique to this part of Alaska and exclusive to this mine proposal. 

You all may also know that I am a long-term lifetime member of Trout Unlimited. 

I am an avid hunter and fisherman, and I have been to Alaska many times. I, too, 

understand the concerns of the anti-mine people regarding the value of this inimitable and pristine environment. Let me assure those folks—I care more about protecting that environment than many non-profit organizations pushing a social agenda. 

To me, the question at hand comes down to one of due process. This country was 

founded under the notion that citizens must be protected from tyrannical overreach, 

and I believe it is unconscionable for the Administration, any Administration, to 

deny a U.S. citizens their day in court. In a similar vein, I would consider a preemptive denial by the EPA equivalent to denying the mining companies their day in 

court, having judged them guilty instead of presumed innocent. Even The Washington Post, hardly regarded as a pro-mining mouthpiece, concluded in a recent editorial that regarding the mining companies, ‘‘All they want, they say, is a fair and 

thorough evaluation of their claims. That is reasonable.’’ 

That is reasonable to me too, and I look forward to hearing all sides of our witnesses’ testimonies today. 

Chairman BROUN. And before I turn to the gentleman, my friend, 

Dan Maffei from New York, I will ask unanimous consent to enter 

for the record letters from various groups interested in our hearing, 

which have been shared with members of the minority. Hearing no 

objection, so ordered. 

[The information appears in Appendix II] 

Chairman BROUN. I now recognize the Ranking Member, my 

friend, the gentleman from New York, Mr. Dan Maffei, for an opening statement. 

Mr. MAFFEI. I want to thank the Chairman. 

My district in upstate New York has actually a unique connection to Alaska. It was the home to William H. Seward, who resided 

in Auburn, New York. Seward served as a Republican Governor, 

U.S. Senator and Secretary of State under Presidents Lincoln and 

Johnson, but Seward was most notably responsible for the purchase of Alaska from Russia in 1867. I won’t tell you for how much. 

It was a bargain. At the time, the Alaska purchase was unpopular. 

It was actually known as Seward’s Folly. Later in life, Seward was 

asked to name his greatest achievement, and he said, ‘‘The purchase of Alaska, but it will take the people a generation to find 

out.’’ 

It is hard for me to look at the proposal to place a mine in the 

watershed feeding area of Bristol Bay and not consider what future 

generations might think of us. On the one hand is the prospect of 

great wealth from exploiting natural resources resulting from mining efforts. That will last a few decades, perhaps a generation, and 

then the mining company will be gone, potentially leaving behind 

a huge hole in the Earth and billions of tons of acid mine waste. 

Even if the company can do what so far no mining company has 

ever done in a wet environment and a dig a massive open pit mine 

that results in no leaks, no accidents, and no pollution, who can 

guarantee that the massive amount of waste left behind in the 

tailings dam will not leach out or that the dam itself will not fail? 
10 

In 2010, a tailings dam holding mining waste collapsed due to 

heavy rain releasing toxic sludge, flooding nearby towns, killing 10 

and injuring 120. In 1998 in France, a tailings dam collapsed, releasing sulfur, zinc, copper, iron and lead into nearby farmland. A 

study of the incident estimated that about 5,000 jobs were lost in 

the dam’s failure and aftermath. These are just a few examples of 

the potential failures that could occur in Bristol Bay. 

On the other hand, we have the returning wealth of salmon. 

They feed the earth in one of the most pristine locations in the 

world. They feed the people of the region, the last truly sustainable 

salmon-based culture left in the United States. Through the efforts 

of commercial fishermen, we too all get a chance to share in that 

bounty. The salmon of Bristol Bay who spawn in the rivers there 

are a sustained resource that, if we do not destroy them, will be 

there for as long as we can see into the future. And although the 

area does compete with my beloved upstate New York for fishermen, it is a wonderful place to go fish. 

Bristol Bay’s clean water economy supports one of Alaska’s most 

natural and bountiful resources—the salmon—and will yield economic returns and generate revenue for far beyond the short-term 

economic impact of mining, and that will support jobs today, tomorrow and in future generations, whereas mining and potentially its 

harmful environmental impacts will eliminate those future jobs 

supported by the fishing industry. If you hold these two prospects 

in the balance and weigh them in a scale for what is best for future 

generations, the question is very simple and the answer very clear: 

do we act for ourselves and then regret it after a generation, or do 

we embrace the sustained wealth of nature that returns every year 

for our use as long as people live on the Earth? 

Now, I do want to respect the Chairman’s process points, and 

they are well taken, and I do not dispute his positive motives in 

this matter, but I do want to make just a few other points. I want 

to remind the members that EPA has begun their risk assessment 

in response to local pressure for the EPA to intervene. EPA was 

asked to take up the 404(c) process, which under the Clean Water 

Act gives EPA the power to protect water quality by establishing 

standards that can virtually veto development. EPA might be chided for taking on a science-based watershed assessment rather than 

moving immediately to 404(c), but I think the agency was trying 

to show everyone involved that they were willing to listen and 

study the issue thoroughly before acting. 

The draft assessment is solid science that demonstrates hardrock 

mining cannot coexist side by side with salmon without harm to 

the salmon, to the fishing and sportsmen economy, and to the native communities. Claims that some magical technology can make 

all this work out have been made many times and rarely does technology work the way it is promised. Mining is an inherently destructive and dirty business, and technology cannot make it clean 

and harmless. I certainly agree we need mining, and I am not an 

opponent of mining, but I think that we have to be honest with 

ourselves about where such projects can work and where they simply don’t make sense. 

Finally, I believe the EPA should complete their assessment and 

then promptly move to take up a 404(c), that gives everyone cer-
11 

tainty that Bristol Bay and the surrounding rivers and lakes will 

remain pristine. If the EPA’s 404(c) amounts to a preemptive veto 

of mining, then at least it will free up the mining companies and 

capital to turn to more promising locations for ore. 

A contemporary of Seward described him as ‘‘one of those spirits 

who sometimes go ahead of public opinion instead of tamely following its footprints. I hope members of this Committee will be 

mindful of these words and of the example of William Seward as 

we explore the issues surrounding the development of the Pebble 

mine, and I yield back the remaining three seconds of my time. 

[The prepared statement of Mr. Maffei follows:] 

PREPARED STATEMENT OF REPRESENTATIVE DAN MAFFEI, RANKING MINORITY

MEMBER, SUBCOMMITTEE ON OVERSIGHT

Thank you, Mr. Chairman. 

My district in Upstate New York has a unique connection to Alaska. It was home 

to William H. Seward, who resided in Auburn, New York. Seward served as a Republican Governor, U.S. Senator, and Secretary of State under President’s Lincoln 

and Johnson. Seward most notably was responsible for the purchase of Alaska from 

Russia in 1867. 

At the time, the Alaska purchase was unpopular and known as ‘‘Seward’s Folly.’’ 

Later in life Seward was asked to name his greatest achievement, and he said, ‘‘The 

purchase of Alaska, but it will take the people a generation to find out.’’ 

It is hard to look at the proposal to place a mine in the watershed feeding Bristol 

Bay and not think that Seward’s words ring true more a century later. 

On the one hand is the prospect of great wealth, great resources and all the jobs 

that flow from that pouring out of the mining efforts in that beautiful place. That 

will last a few decades, perhaps a ‘‘generation’’ as Seward stated. And then the mining company will be gone, leaving behind a huge hole in the earth and billions of 

tons of acid mine waste. Even if the company can do what no mining company has 

ever done in a wet environment, and dig a massive open pit mine that results in 

no leaks, no accidents, no pollution, who can guarantee that the massive amount 

of waste left behind in tailings dams will not leach out, or that the dam itself will 

not fail? 

In 2010, a tailings dam holding mining waste collapsed due to heavy rain releasing toxic sludge flooding nearby towns, killing 10 and injuring 120. In 1998 in 

France, a tailing dam collapsed releasing sulfur, zinc, copper, iron, and lead into 

nearby farmland. A study of the incident estimated that about 5,000 jobs were lost 

in the dam failure’s aftermath. These are just a few examples of potential failures 

that could occur in Bristol Bay. 

A dam here must work for thousands of years—not just one generation from now 

but generations and generations and generations beyond counting. And it must 

work in a very wet environment that is one of the most seismically active on earth. 

It is simply not worth the risk. 

On the other hand we have the returning wealth of the salmon. They feed the 

earth in one of the most pristine locations in the world. They feed the people of the 

region—the last truly sustainable salmon-based culture left in the U.S. Through the 

efforts of the commercial fishermen we too all get a chance to share in that bounty. 

The salmon of Bristol Bay, who spawn in the rivers there, are a sustained resource 

that—if we do not destroy them—will be there for as long as we can see into the 

future. 

Bristol Bay’s ‘‘clean water economy’’ supports one of Alaska’s most natural and 

bountiful resources—Salmon—and will yield economic returns and generate revenue 

far beyond the short-term economic impact of mining. This ‘‘clean water economy’’ 

will support jobs today, tomorrow and for future generations, whereas mining and 

its harmful environmental impacts will eliminate all future jobs supported by the 

fishing industry. 

If you hold those two prospects in the balance, and weigh them in a scale for what 

is best for future generations, the question is very simple and the answer is very 

clear. Do we gorge ourselves for a generation or two and then regret it or do we 

embrace the sustained wealth of nature that returns every year for our use so long 

as people live on this earth? 
12 

It is Seward’s words that inform my perspective on the issue before the Committee today. If we allow this dangerous proposal to go forward today, will the next 

generation realize our folly? 

Just a few other points: 

I want to remind the Members that EPA has began their risk assessment in response to local pressure for the EPA to intervene. EPA was asked to take up the 

404(c) process, which under the Clean Water Act gives EPA the power to protect 

water quality by establishing standards that can virtually veto development. EPA 

might be chided for taking on a science-based watershed assessment rather than 

moving immediately to the 404(c), but I think the agency was trying to show everyone involved that they were willing to listen and study the issue thoroughly before 

acting. 

The draft assessment is solid science that demonstrates hard rock mining cannot 

coexist side by side with salmon without harm to the salmon, to the fishing and 

sportsman’s economy, and to the native communities. Claims that some magical 

technology can make this all work out have been made many times, and rarely does 

technology work the way it is promised. Mining is an inherently destructive and 

dirty business and technology cannot make it clean and harmless. I certainly agree 

we need mining and I am not an opponent of mining, but I think we have to be 

honest with ourselves about where such projects can work and where they simply 

do not make sense. 

Finally, I believe that EPA should complete their assessment and then promptly 

move to take up a 404c that gives everyone certainty that Bristol Bay and the surrounding rivers and lakes will remain pristine. If the EPA’s 404(c) amounts to a preemptive veto of mining, then that will free up the mining companies and capital to 

turn to more promising locations for ore. 

A contemporary of Seward described him as ‘‘one of those spirits who sometimes 

will go ahead of public opinion instead of tamely following its footprints.’’ 

I hope the Members of this committee will be mindful of these words as we explore the issues surrounding development at the Pebble Mine. I yield back. 

Mr. MAFFEI. Mr. Chairman, I also have a unanimous consent request. I have—— 

Chairman BROUN. Go ahead. The gentleman is recognized. 

Mr. MAFFEI. I have a request that letters that I have already 

shared with the majority be attached to my statement. These are 

ones that we have already shared. 

Chairman BROUN. Without objection, so ordered. 

[The information appears in Appendix II] 

Chairman BROUN. The Chairman notes the presence of my 

friend, Suzanne Bonamici, and Ms. Bonamici, do you want to participate? We need a unanimous consent request that you participate as if you are a member of the Committee, if you would like. 

Ms. BONAMICI. Thank you, Mr. Chairman. I request unanimous 

consent that I be permitted to participate in the Subcommittee 

hearing. I am a Member of the full Committee but not of this particular Subcommittee. 

Chairman BROUN. Hearing no objection, so ordered, and thanks 

for joining us. 

If there are Members who wish to submit additional opening 

statements, your statements will be added to the record at this 

point. 

Now, at this time I would like to introduce our panel of witnesses. Our first witness is Mr. Lowell Rothschild, Senior Counsel 

at Bracewell and Giulianti. Is that how you pronounce that? 

Mr. ROTHSCHILD. Giuliani. 

Chairman BROUN. Giuliani. Well, whatever. I am a southerner 

and I can’t pronounce words like that. I don’t know Italian. 

Our second witness is Dr. Michael Kavanaugh, Senior Principal 

at Geosyntec Consultants and a Member of the National Academy 
13 

of Engineering. Our third witness is Mr. Wayne Nastri, Co-president of E4 Strategic Solutions, and former Regional Administrator 

of EPA Region 9. Our final witness is Mr. Daniel McGroarty. Is 

that correct? 

Mr. MCGROARTY. Yes. 

Chairman BROUN. Okay, President of the American Resources 

Policy Network. We welcome all of you. 

As our witnesses should know, spoken testimony is limited to 

five minutes each, after which members of the Committee will have 

five minutes each to ask you questions. Your written testimony will 

be included in the record of the hearing. 

It is the practice of this Subcommittee on Oversight to receive 

testimony under oath. Do any of you all have an objection to taking 

an oath of truthfulness? Let the record show that all of the witnesses indicated that they do not mind taking the oath. If you 

would please stand? Raise your right hand. Do you solemnly swear 

or affirm to tell the whole truth and nothing but the truth, so help 

you God? You may be seated. Let the record reflect that all the witnesses participating have taken the oath. 

I now recognize our first witness, Mr. Rothschild, for five minutes. 

TESTIMONY OF MR. LOWELL ROTHSCHILD, SENIOR COUNSEL, 

BRACEWELL & GIULIANI LLP 

Mr. ROTHSCHILD. Chairman Broun, Ranking Member Maffei, 

Members of the Committee, thank you very much for inviting me 

to testify today. My name is Lowell Rothschild, and I am Senior 

Counsel at the law firm of Bracewell and Giuliani. I have practiced 

exclusively in the area of environmental law for almost 20 years 

with my primary focus on the laws affecting land development like 

those related to wetlands, endangered species and environmental 

review, like NEPA. I have extensive experience in the permitting 

and litigation of major projects under these laws, and I am also the 

co-author of the Environmental Law Institute’s Wetland Deskbook. 

The Committee has asked me to testify today on the NEPA Environmental Impact Statement process as it relates to mining activity and how that process compares to assessments EPA undertakes 

under Clean Water Act sections 104(a) and (b) like the one for Bristol Bay. My view, as I discuss in greater detail in my written testimony, is twofold. EPA’s Bristol Bay study is both more general and 

more limited than an EIS would be. It covers far fewer subjects 

than would be analyzed in an EIS and lacks the detail needed to 

fully understand the impacts of an eventual project, even for the 

resource impacts it does examine. As a result, EPA’s assessment is 

not an adequate substitute for an EIS, and even for the resources 

it does analyze, its impact assessment is less informed and therefore less useful than the analysis which would occur under a 

project-specific EIS. 

The reason for these conclusions relates to both the intent of the 

study and to its timing in the permitting process. EPA, as you all 

have said, has selected three hypothetical mining scenarios and 

analyzed the direct impacts which they then would cause on salmon in the Bristol Bay watershed and its sub-watersheds. It also 

analyzes a few of the indirect impacts that would result from those 
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salmon impacts. This approach is intentionally more limited than 

an EIS would be. A typical EIS for a large mining project analyzes 

impacts to approximately 20 different resources including strictly 

natural environmental ones like air, noise, groundwater and endangered species impacts as well as human environmental ones 

like economic, socioeconomic and environmental justice impacts. In 

contrast, the assessment is specifically limited to analyzing a subset of direct wildlife impacts—those to salmon species—along with 

several of the indirect impacts that result from those impacts to 

salmon. Thus, the assessment isn’t intended to be and it is not a 

substitute for an EIS. 

The assessment’s second limitation relates to its timing in the 

process. Since it is being undertaken before an application has been 

submitted, it is not able to utilize the important project-specific information which would be generated for the application. As a result, even for the impacts it does analyze, the assessment’s analysis 

isn’t as useful as that which would be undertaken in an eventual 

EIS. That is because to comply with the wetland permitting laws, 

a permit applicant must submit an application that identifies the 

practicable measures it will take to avoid, minimize and mitigate 

the project’s impacts to wetlands. These measures are very difficult 

to identify in the abstract. They often involve small modifications 

to a project, even though they can result in significant decreases 

in impacts. But these modifications cannot be identified until you 

understand the on-the-ground resources to a high degree of detail. 

For example, one possible minimization measure would be moving 

the footprint of the project so that the wetlands impacted are lower 

quality than those originally planned. To do this requires an assessment of the quality and the specific location of the wetlands in 

the project area. This wetland assessment is something an applicant will do before it submits its application but only once the applicant has the specific information can it provide the avoidance, 

minimization and mitigation alternatives. And this is just one example of minimization—moving the project footprint—and only for 

one resource—wetlands. Other types of similar measures can be 

proposed both for wetlands and for the dozen or so major resources 

analyzed in the EIS. These types of detailed facts have not been 

developed for the Bristol Bay assessment, not for wetlands or for 

other resources. As a result, detailed avoidance and minimization 

modifications do not appear to be a part of the Bristol Bay assessment. Depending on the nature of such modifications that are included in the project application, an eventual EIS impact assessment could be quite different from EPA’s current assessments. 

I should also note that once the permit application process begins, EPA will have significant statutory rights under both NEPA 

and the wetland permitting laws, which will allow it to provide extensive input to the process and to affect its ultimate outcome. 

Until then, the assessment is too limited to be an adequate substitute for an EIS and too general to provide specific information 

about the impacts of any eventual mining project, even for the resources it has analyzed. 

I look forward to answering any questions you may have. Thank 

you very much. 

[The prepared statement of Mr. Rothschild follows:] 
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Chairman BROUN. Thank you, Mr. Rothschild. 

Now, Dr. Kavanaugh, you are recognized for five minutes. 

TESTIMONY OF DR. MICHAEL KAVANAUGH, 

SENIOR PRINCIPAL, GEOSYNTEC CONSULTANTS, 

AND MEMBER, NATIONAL ACADEMY OF ENGINEERING 

Dr. KAVANAUGH. Mr. Chairman and Members of the Committee, 

thank you for the opportunity to speak at this hearing today. My 

name is Michael Kavanaugh. I am a Senior Principal with the firm 

of Geosyntec Consultants, an independent midsized U.S. consulting, engineering and geoscience firm. 

Geosyntec was retained by Northern Dynasty to conduct an independent, impartial review of the scientific and engineering credibility of the 2012–2013 draft EPA Bristol Bay watershed assessment reports. I am a registered professional engineer in California 

and a board-certified environmental engineer with 40 years of consulting engineering practice in several technical areas relevant to 

an assessment of the potential environmental impacts of mining 

projects. I have a Ph.D. in civil environmental engineering from 

U.C. Berkeley, and in 1998 I was elected into the National Academy of Engineering. I have served on many independent peer-review panels and I currently serve on the Report Review Committee 

of the National Academies that oversees the peer-review process for 

all National Academy reports. I was the principal in charge of 

Geosyntec’s technical reviews of the assessment reports. Selected 

Geosyntec experts under my direction focus primarily on an evaluation of the scientific and engineering credibility of the failure scenarios selected by EPA for tailing storage facilities, or TSFs, water 

collection and treatment systems, pipelines, roads and culverts and 

the appropriateness of environmental impact analyses conducted by 

EPA for their failure scenarios for a hypothetical mine. 

Both assessment reports fail to meet widely accepted quality and 

peer-review standards that must be satisfied to produce a credible 

scientific and engineering assessment. The reports significantly exaggerate both the probability of failures of engineering mining components and the environmental consequences of the failure scenarios. In fact, the 2013 assessment essentially assumes that all 

engineering components of the hypothetical mine will ultimately 

fail and then proceeds to assess more or less qualitative the impacts of these failure scenarios. This risk analysis is flawed because it gives equal weight to all failure scenarios including worstcase scenarios. EPA has assumed failure scenarios for some of the 

engineered components that are of such low probability that to assess the consequences only provides an alarmist portrait of a hypothetical mining scenario that could never be permitted in Alaska. 

By failing to properly consider modern engineering and design 

mitigation methods that would be required for an acceptable permit application and that would both reduce the probability of system failures as well as mitigating the consequences of potential 

failures, the assessment lacks credibility as a useful risk analysis. 

Several examples of our concerns include the following. The assessment estimates failure probabilities of TSFs based on case 

studies of 135 failed dams from around the world, many of which 

are older, poorly designed and unregulated. This database is irrele-
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vant to a modern TSF. The assessment uses a TSF failure scenario 

based on overtopping, a failure mode that can be easily avoided by 

proper design of sufficient capacity and freeboard to manage a 

probable maximal precipitation event. The assessment assumes 

that easily repairable breakdowns in water and wastewater treatment processing equipment will result in long-term discharges of 

untreated wastewater, a situation that would violate permit requirements and would be easily addressed with standard mitigation measures. 

The assessment contains inaccurate calculations that significantly overestimate consequences of hypothetical system failures 

such as a worst-case pipeline failure scenario that significantly 

overstates the potential volume of discharge released to a creek. Finally, the assessment reflects a general lack of consideration of engineering and design mitigation measures for a modern mine all 

systems would be designed with appropriate safety factors, meeting 

permit requirements and design to minimize the consequences of 

potential failure events. 

EPA traditionally sets a high bar for the quality of scientific documents considered to be highly influential scientific assessments, 

quote, unquote, as outlined in their Peer Review Handbook. Unfortunately, they have only partially followed their own guidance on 

conducting the peer review process for the 2013 assessment, failing 

to provide the degree of transparency required for such an important document. 

Having served myself on several EPA peer-review panels on 

EPA’s Science Advisory Board for Water and the ORD’s Board of 

Scientific Counselors, I am fully aware of the high caliber of scientific efforts that EPA scientists have achieved in the past. It is 

thus discouraging to see the many limitations on their reliability 

and credibility of the 2013 assessment, and as a consequence, it is 

our opinion that the 2013 assessment fails to meet scientific standards that would permit the assessment to be used to inform future 

decisions on mining projects in the Bristol Bay watershed. 

Thank you for your attention, and I welcome any questions. 

[The prepared statement of Dr. Kavanaugh follows:] 
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Chairman BROUN. Thank you, Dr. Kavanaugh. 

And now, Mr. Nastri, you are recognized for five minutes. 

TESTIMONY OF MR. WAYNE NASTRI, CO-PRESIDENT, E4 STRATEGIC SOLUTIONS; FORMER REGIONAL ADMINISTRATOR, 

USEPA 

Mr. NASTRI. Thank you, Mr. Chairman, and thank you, Ranking 

Member Maffei, for inviting me here to testify before you. 

My name is Wayne Nastri, and I am the President of E4 Strategic Solutions, and previously I served as Regional Administrator 

for U.S. EPA Region 9 during the entire George W. Bush Administration. 

I am testifying on my own behalf today, but I wish to note that 

I currently consult with the Bristol Bay Native Corporation and 

formerly consulted with Trout Unlimited on Clean Water Act 

issues. 

In my written testimony, I reviewed EPA’s Bristol Bay watershed assessment, and I found its conclusions are sound, and if anything, conservative, and that is further supported by an independent letter signed by 300 scientists that were supportive of 

EPA’s process. 

I would like to focus on just a few main points this afternoon. 

First, it is important to note that EPA was requested to take action 

in Bristol Bay by Alaskans who sought assistance on an issue that 

threatens their sustainable economy, their jobs, their culture and 

their ability to live in the areas they have for thousands of years, 

and we are very fortunate today to have two village elders, Tommy 

Tilton and Bobby Andrew, in the audience. All of this is based on 

the incredible wild salmon resource of Bristol Bay. Nine federally 

recognized tribes, the Bristol Bay Native Corporation, the commercial and sport fishing industries and others petitioned EPA to initiate a 404(c) action. These groups, based on information derived 

from PLP filings that describe the location, the quantity and the 

type of ore, understood quickly the threat that large-scale hardrock 

mining poses to Bristol Bay. 

Instead of initiating 404(c) action, EPA sought to better understand the region’s salmon resources and potential threats by performing an ecological risk assessment. And during its review, EPA 

identified what many in the region have known for years, and that 

is, economically viable mining of the Pebble deposit would result in 

one of the largest mines in the world, and in fact, be larger than 

all other mines in Alaska combined, and you can actually see this 

in the visual in front of you. 

The basis of EPA’s mining analysis is based on Northern Dynasty Minerals’, an owner of the Pebble Partnership own documents and submissions to the investment community and to the 

SEC. It is also admitted as part of the record, and I have a copy 

of that plan right here today. 

These submittals, as described in the wardrop report, describe 

mines that could be more than 2,000 feet deep and 2 miles wide, 

require the construction of tailings reservoirs that hold as much as 

10 billion tons of potentially acid-generated tailings, and all of this 

would be at the headwaters of one of the most valuable commercial 

and sport fisheries, provides half of the world’s wild red salmon, ac-
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counts for nearly 14,000 jobs and hundreds of millions of dollars of 

economic activity according to EPA’s conservative estimates. Northern Dynasty described the mining scenarios detailed in this report, 

and I quote, ‘‘as economically viable, technically feasible and 

permittable.’’ Again, the details I described are drawn directly from 

that 575-page report, which is far from the hypothetical or fantasy 

claim that we have heard before. 

With regards to authority to conduct the assessment, EPA clearly 

has it under section 104(a), (b), and importantly, the support of this 

assessment is astounding. Nearly 75 percent of all commenters 

supported the assessment and 95 percent of commenters from Bristol Bay support that assessment. In my experience, and looking forward, EPA needs to finalize its watershed assessment and address 

the original request for 404(c) action. 

The uniform complaint that I heard as a regional administrator 

from project proponents on 404(c) matters was, why didn’t EPA get 

involved more upfront in the very project instead of waiting at the 

very end and delaying what they saw as much investment and 

time. So in that light, I believe it is wholly appropriate for the Federal Government to make clear upfront what its expectations are 

of permit applicants, especially for projects of the magnitude that 

we are discussing today. And I believe EPA should, at a minimum, 

use its Clean Water Act authority to restrict any 404 discharge to 

meet the following performance standards which are well founded 

in EPA and Army Corps practice, and they are: no discharge of fill 

materials to wild salmon in spawning and rearing habitat, no discharge of toxic material to waters of the United States, and no discharge of fill materials that would require treatment in perpetuity. 

EPA has adhered to strict scientific standards in preparing the 

watershed assessment and undergone extensive outreach to ensure 

that the documents can inform future decisions by policymakers. 

The watershed assessment identifies significant adverse impacts to 

the fishery and is a key trigger for 404(c) action. EPA has the opportunity to provide clarity and certainty to those who live and 

work in the Bristol Bay region by initiating such action. 

Thank you, and I look forward to your questions. 

[The prepared statement of Mr. Nastri follows:] 
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Chairman BROUN. Thank you, Mr. Nastri. 

Now Mr. McGroarty, you are recognized for five minutes. 

TESTIMONY OF MR. DANIEL MCGROARTY, PRESIDENT, 

AMERICAN RESOURCES POLICY NETWORK 

Mr. MCGROARTY. Dr. Broun, Ranking Member Maffei, members 

of the Committee, thank you for the opportunity to testify today. 

I am Dan McGroarty, President of the American Resources Policy 

Network, an organization dedicated to exploring the importance of 

U.S. resource development and the dangers of foreign resource dependence. 

I am formerly Director and Officer of U.S. Rare Earths and 

President of Carmot Strategic, an issues management firm. I also 

want to share with the Committee that since early 2013, ARPN has 

been asked to participate on a volunteer basis in a series of metalspecific sessions convened by the DoD related to the mandated National Defense Stockpile Review. 

The Pebble deposit, subject of the EPA assessment, is the largest 

potential copper mine in the United States. America’s lack of this 

critical metal has been noted in a DoD report as causing ‘‘a significant weapon system delay.’’ Pebble also has potential for the recovery of other metal: molybdenum, used as an alloy in gun barrels 

of many times, uranium, used in high-performance jet fighters, and 

selenium tellurium, used in solar panels that could not only lead 

the green revolution but provide a portable power source for U.S. 

troops. 

As a matter of public policy, Pebble should be treated no differently than any other potential resource project under the Federal permitting process established by the National Environmental 

Policy Act—NEPA. EPA’s Bristol Bay watershed assessment prior 

to Pebble seeking a single permit creates a chilling effect on investment in U.S. resource extraction. A preemptive permit denial based 

on the assessment could deprive America of reliable sources of critical metals responsibly extracted under American regulations. In 

my view, every issue raised in the assessment could be reviewed 

within the existing NEPA process. There is no issue that requires 

a new pre-permitting process with the power to prevent a proposed 

project from entering NEPA. 

In terms of the substance of the watershed assessment, a key underlying study used by EPA is the Earthworks-funded study, 

Kuipers Maest 2006. The global water and environmental management firm, Schlumberger, has conducted an analysis of this study 

on behalf of the Northwest Mining Association. The results are 

troubling. 

First, Schlumberger could not replicate the hydrological data presented in the Kuipers Maest study, a fundamental tenet of sound 

scientific research. Second, Schlumberger found a backward bias as 

the study drew on a preponderance—their word—of case studies 

taken from mines that operated before the modern regulatory era. 

Does it constitute sound science to argue against a proposed mine 

based on what happened at other mines operated to other standards 20, 30, 40 years ago? Would we use such a backward biased 

yardstick to justify or judge the safety of a new airplane, a new car, 

a new medicine? 
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I will turn now from substance to sourcing, serious questions 

concerning the impartiality of experts relied upon by EPA, once 

again, the subject of concern as worked on by Ann Maest and Stratus Consulting. Many of us know the Chevron case in Ecuador 

where plaintiffs were awarded an $18 billion judgment. In response, Chevron brought racketeering claims against members of 

the plaintiffs’ team, including Maest and Stratus, arguing that they 

manipulated data to show contamination where none existed. How 

did they know this? The plaintiffs’ team invited a film crew to 

make a documentary generating hours of outtakes that were revealed in the discovery process. Here is one example. 

[Video.] 

The subscript said, ‘‘Facts do not exist. Facts are created.’’ That 

is the lawyer who directed the research. There is laughter that follows that from Ann Maest, the scientist who conducted the Ecuador study and subsequently submitted sworn statements in Federal 

court that renounced all scientific findings—that is a quote—in 

their report to settle claims against her. Now, the work of that very 

same scientist is cited 11 times in the EPA assessment. To be clear, 

I do not know whether the work used in EPA’s assessment will 

prove to show issues similar to the Ecuador studies the author disavowed but that question needs to be examined impartially and 

independently. Otherwise EPA’s reliance on that work done by this 

scientist or her firm puts the assessment under a cloud. 

In closing, there is a quote I would like to share. ‘‘NEPA is democratic at its core. In many cases, NEPA gives citizens their only opportunity to voice concerns about a project impact on their community, and because informed public engagement often produces 

ideas, information, even solutions that the government might otherwise overlook, NEPA leads to better decisions, better outcomes 

for everyone. The NEPA process has saved money, time, lives, historical sites, endangered species, public lands, and because of 

NEPA, we are guaranteed a voice.’’ That quote is from the website 

of the Natural Resources Defense Council. They love NEPA, just 

not this time and not this project. 

If we allow this precedent, if the EPA uses the assessment to 

deny Pebble access to the NEPA process, there will be many mines 

and projects that don’t get built, many metals will be forced to import many times from nations that wish us harm. We have a process in place to determine whether a mine should or shouldn’t be 

built. We should follow that process and let science guide us. 

Thank you. I look forward to your questions. 

[The prepared statement of Mr. McGroarty follows:] 
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Chairman BROUN. I want to thank all the witnesses for your testimony, reminding Members that Committee rules limit questioning to five minutes. The Chair at this point will open the first 

round of questions, and the Chair recognizes himself for five minutes. 

Dr. Kavanaugh, is it possible to have a scientifically sound watershed assessment using a hypothetical mining scenario in the absence of a submitted permit? 

Dr. KAVANAUGH. No, I don’t think it is, Mr. Chairman. I think 

that there is a serious constraint on undertaking a risk analysis on 

the basis of a hypothetical scenario. That doesn’t meet the standards for an ecological risk assessment. It doesn’t meet the standards for an Environmental Impact Statement, and it is essentially 

a hypothetical risk analysis. So it is inherently speculative, in my 

opinion, particularly in the context of identifying worst-case scenarios without attaching a probability of occurrence to those worstcase scenarios. 

Chairman BROUN. Very good. Thank you. 

Mr. Rothschild, typically who pays for an Environmental Impact 

Statement under the National Environmental Policy Act for 

projects requiring dredge and fill permits? 

Mr. ROTHSCHILD. Mr. Chair, those permits are always paid for by 

the project applicant. The Corps has guidance documents which say 

that while the consultants are directed by the Army Corps, they 

are paid for by the project applicant. 

Chairman BROUN. Okay, but not by taxpayers? 

Mr. ROTHSCHILD. Not by taxpayers. 

Chairman BROUN. Okay. And generally speaking, how does that 

payment mechanism compare to the one involving agency watershed assessments such as NEPA document under discussion today? 

Mr. ROTHSCHILD. The NEPA document is paid by the agency, by 

the taxpayers. 

Chairman BROUN. The EPA document? 

Mr. ROTHSCHILD. Yes, the EPA document. 

Chairman BROUN. I said NEPA, but I meant EPA. 

Mr. ROTHSCHILD. Yes, the 104(a). 

Chairman BROUN. Okay. Now, we have heard testimony today 

from Mr. McGroarty that there are no issues addressed in EPA’s 

watershed assessment that could not be raised and reviewed within 

the regular permitting process. Is there anything unique in a watershed assessment that would not be addressed in an Environmental Impact Statement under NEPA? Please give me a yes or no 

answer, starting with Mr. Rothschild. 

Mr. ROTHSCHILD. No. 

Dr. KAVANAUGH. No, I don’t think so. 

Chairman BROUN. Mr. Nastri? 

Mr. NASTRI. I am considering your question because the—— 

Chairman BROUN. Please turn on your microphone. 

Mr. NASTRI. Thank you. I was considering your question because 

the watershed assessment addresses the 404 issue. 

Chairman BROUN. Well, the question was yes or no. Is there anything that—anything unique to the watershed assessment that 

would not be addressed in an Environmental—in an EIS under 

NEPA? 
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Mr. NASTRI. I am not aware at this time of anything that would 

not be addressed. 

Chairman BROUN. So the answer is no. Is that correct? 

Mr. NASTRI. I am not aware of it, sir. 

Chairman BROUN. Okay. As far as you know, it is no then. Okay. 

Then I will come back to you. You conclude your written testimony 

by stating your support for preemptive action by EPA to veto the 

Pebble mine using its authority under Section 404(c) of the Clean 

Water Act. Setting aside the question of EPA’s authority to do so, 

can you explain as a former Regional Administrator for EPA how 

is such an action fair to people who have invested hundreds of millions of dollars collecting information so that they can define a 

mine and identify scientific data to show how they might propose 

to meet the standards in our environmental laws? 

Mr. NASTRI. Well, it is very fair to project proponents, and as I 

said in my testimony, oftentimes what we wanted to hear—what 

project proponents wanted to hear was early parameters by which 

they could develop their project. They wanted certainty and they 

wanted that certainty before they invested time and the millions of 

dollars that are often associated by going through the EIS process. 

Chairman BROUN. Well, absolutely, but they didn’t ask for a hypothetical mining scenario here. 

Let me follow up with a yes or no question. Would allowing the 

Pebble project to present a plan to go through the NEPA permitting process result in any environmental harm? 

Mr. NASTRI. Would it result in environmental—yes, it would, 

and—— 

Chairman BROUN. Wait a minute. Let me ask the question again. 

Mr. NASTRI. Sure. 

Chairman BROUN. Would allowing the Pebble project to present 

a plan, just to present a plan to go through the NEPA permitting 

process result in any environmental harm? Your answer is yes to 

that? 

Mr. NASTRI. My answer is yes because of a delay that is going 

on and the uncertainty, and that uncertainty causes lack of investment. 

Chairman BROUN. How is it going to cause environmental harm, 

though? 

Mr. NASTRI. Well, it causes environmental harm by not allowing 

other projects to go through that could provide greater benefit, so 

you are looking at lost opportunities, sir. 

Chairman BROUN. Mr. McGroarty, in your testimony, you mention copper in connection to the green revolution. What do you 

mean by that? 

Mr. MCGROARTY. Mr. Chairman, when we look at the major uses 

of copper in green technology, it is a constant presence. Wind 

power, for instance, a single industrial wind turbine uses approximately—just one—3 to 3–1/2 tons of copper for one wind turbine. 

Solar photovoltaic arrays, the newest technology for that uses an 

alloy or a metals blend called CIGS, C for copper, I for indium, G 

for gallium and S for selenium, 95 percent of which selenium comes 

from copper. So CIGS coming and going, copper is essential for 

photovoltaic arrays. Geothermal, drawing power from the Earth, 

the power is brought to the surface via copper coils. And then fi-
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nally, whether it is solar or wind or geothermal, if we want to bring 

that power to the grid so that consumers can access it—renewable 

energy, which I support and which my organization supports—that 

comes through copper cable, at least in part through copper cable. 

So at every presence, I think what we need to look at is the green 

revolution is very dependent on metals and minerals beneath it. 

Chairman BROUN. Thank you, Mr. McGroarty. 

My time is expired. Mr. Maffei, you are recognized for five minutes. 

Mr. MAFFEI. I thank the Chairman. 

Mr. McGroarty, I too am concerned about the veracity of the scientific assessment of Ann Maest, but how many overall citations 

were there in the EPA draft report—draft assessment? 

Mr. MCGROARTY. To her studies or her—— 

Mr. MAFFEI. No, how many overall to any—— 

Mr. MCGROARTY. I don’t know. 

Mr. MAFFEI. The answer is 1,390, and you said there were 11 

times she was cited. That is some three-quarters of a percent. Do 

you think that if we can show that on the American Resources Policy Network’s sourcing that three-quarters of a percent of your 

sources have been debunked, that we should ignore everything else 

that your organization says? 

Mr. MCGROARTY. Let me respond in terms of that. EPA itself 

seems to indicate some concern about the Kuipers-Maest study because they subjected it to a kind of a quasi-peer review, so they did 

select it out. 

Mr. MAFFEI. So they took care of that problem, at least in terms 

of the peer review. They did take care of that problem. 

You mentioned that we should let science guide us. Are you a scientist, sir? 

Mr. MCGROARTY. I am not. 

Mr. MAFFEI. Are you an engineer? 

Mr. MCGROARTY. No. 

Mr. MAFFEI. Are you an attorney with expertise about EPA procedures? 

Mr. MCGROARTY. No, I am a policy analyst. 

Mr. MAFFEI. Okay. You know, actually I admire your background. It is very similar to my own—journalism, communications—but I don’t understand why you have any expertise to speak 

on this matter. Do you want to illuminate me on that? 

Mr. MCGROARTY. Sure. My interest in this issue and involvement 

in this issue dates back. I served in government, two presidential 

appointments to the Department of Defense in the Reagan Administration, Secretary Weinberger, Secretary Carlucci, and then later 

went to the White House with George Herbert Walker Bush. I was 

responsible—— 

Mr. MAFFEI. You are an expert in politics, a political expert. 

Again, I have respect for your profession. I just don’t understand 

what you are adding in terms of the scientific assessment that you 

yourself say should guide us. 

Mr. MCGROARTY. At that time, one of the issues regarding the 

Soviet Union was the concern for strategic metals access. Nowadays it is China. The Cold War is over. And I was responsible for 

the statements on national security, many foreign affairs issues 
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and defense policy, both at DoD, where this issue was critical and 

important, and at the White House. 

Mr. MAFFEI. All right. My—— 

Mr. MCGROARTY. The genesis of my interest and involvement 

dates back to that. 

Mr. MAFFEI. So you are concerned about the strategic effect if we 

don’t have enough of these metals? I do understand that. 

You did point out about a chilling effect on mining, and I would 

like to ask Mr. Nastri, in regards to the Chairman’s question and 

your answer, are you concerned about environmental impact because of a chilling effect if the continued—you know, the mining 

companies continue to say they are going to ask for a permit and 

don’t? Is that why there is an environmental damage here? And if 

not, do you want to clarify, you know, or elaborate your answer to 

the Chairman’s question about that? 

Mr. NASTRI. Sure. The real issue here is uncertainty and the impact that uncertainty causes, and I think Senator Murkowski said 

it well when she said in a letter to Northern Dynasty and the Pebble Partnership that there is frustration, there is anxiety, and all 

this because of the uncertainty, and the uncertainty actually prevents a lot of investment to take place. We spoke to many organizations that said they would love to invest by creating jobs, by creating new processing facilities but with the uncertainty that is 

there, they are not going to do anything. You also have a number 

of people that want to invest in the fishing industry—buy new 

boats, buy new nets. They too have an uncertainty. And so what 

happens is, you have what I would argue is ongoing degradation 

because there is paralysis, and so that was the manner in which 

I was referencing. 

Mr. MAFFEI. So whichever way we go, we are better off making 

the decision now than continuing to postpone it if it is a clear decision? 

Mr. NASTRI. Absolutely. I think it is much better to provide that 

certainty, and as I described before, I believe that EPA could proceed under a set of 404 restrictions. The restrictions would provide 

the guidelines for companies to move forward. It would actually improve whatever it is they decided to do by letting them know what 

they have to do. 

Mr. MAFFEI. One criticism of the EPA that I think is shared by 

Dr. Kavanaugh, if I read his writings correctly, is that the assessment doesn’t take into account new technologies that might minimize the risk to the environment. Mr. Nastri, is that a possibility, 

that there could be new technologies the EPA simply can’t take 

into account? 

Mr. NASTRI. Well, having worked at EPA for a number of years, 

I can tell you, they have mining engineers, they have people that 

worked in the mining industry. They are quite familiar with mining in general. And when I look at the documentation that has 

been provided by the partnership, Pebble Partnership’s own companies, they describe in detail mining plans. They talk about two 

types of operations: open pit and underground. There is really not 

a lot of variation that you are going to see other than the actual 

size in the technology. And from that perspective, the real question 

I think that people need to wonder about is, this is the resource 
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of the world’s greatest salmon fishery. Over 40 percent of red salmon supply comes from this fishery. Can you imagine the uproar 

that would be caused if new, unfounded or unproven technology 

were applied in some area like this, which is so globally significant, 

and something went wrong? Is this the area where you would actually try to put in new technology without having the absolute certainty that it is going to be failsafe? This is not an area that you 

experiment with. 

Mr. MAFFEI. Okay. Thank you, and thank all the witnesses. 

Chairman BROUN. The gentleman’s time is expired. Now Mr. Peters, you are recognized for five minutes. 

Mr. PETERS. Thank you, Mr. Chairman. I just had a simple question because I think we are talking past it a little bit. Is there anyone representing the companies here with an interest in the mines? 

Dr. KAVANAUGH. I am representing Northern Dynasty. 

Mr. PETERS. Okay. So is there a plan to submit a permit with 

an EIS in the future? 

Dr. KAVANAUGH. I am not familiar with the precise scheduling or 

any activities that they are undertaking. I was retained only to 

evaluate the watershed assessment. 

Mr. PETERS. So no one has a sense of the timing of when they 

would like to proceed with this project? 

Dr. KAVANAUGH. I think they have stated on their website and 

other places that they are shooting for the end of this year, but I 

am not privy to the internal workings of the company. 

Mr. PETERS. So we don’t know when the company itself might be 

ready to prepare an EIS? 

Dr. KAVANAUGH. Well, not precisely, but I mean, they spent a 

substantial amount of money, I believe, in the hundreds of millions 

to do baseline studies, so I would assume they are ready, more or 

less, but I don’t know the details. 

Mr. PETERS. I mean, I just—I am new here, not even 7 months, 

but it does seem to me like we are—there is a basic question here 

about when is this going to come up because if it is going to come 

up this year that they are going to file this permit request and 

have to prepare the environmental documentation, which is what 

I used to do in a past life, we could run these processes concurrently, agree on what the scientific protocols were and so forth and 

there wouldn’t be this pressure that some people feel to get things 

moving now. So wouldn’t it be helpful for us to know kind of what 

the company’s intention was? 

Dr. KAVANAUGH. Absolutely. 

Mr. PETERS. So has anyone asked them? I mean, here we are at 

a congressional hearing, right? That was a simple question. The 

company could tell us. Maybe there is someone from the company 

here. When do they want to start this process up? If they are going 

to be filing their permit request in three months, say, I would 

think it would be more than reasonable to say, okay, let us do this 

concurrently in 3 months, but it is just a simple, basic piece of, you 

know, a multimillion-dollar or hundred-million-dollar project that 

no one is answering. So that to me would give ammunition to the 

people who say well, we have to do it now because the company is 

not giving us information about when they actually want to do it. 
126 

Dr. KAVANAUGH. Well, Congressman, that is a very good point. 

Again, I was retained by Northern Dynasty to undertake an assessment of the EPA study, the EPA report, but I am not an employee 

of the company. So I am not aware of the precise details but I am 

sure that could be figured out, and I think your approach is a valid 

one. 

Mr. PETERS. You know, in my old world, I wasn’t in Congress, 

I would just try to do things in ways that made more sense, but 

it does seem to me that if they would like to let us know that they 

are planning to do this soon, this might obviate the need for a big 

conflict and we could figure out a cooperative way to do this. This 

is my observation, and clearly you don’t have the answer but I appreciate at your least addressing the question for me, Doctor. 

Dr. KAVANAUGH. Sure. 

Mr. PETERS. Thank you, Mr. Chairman. I yield back. 

Chairman BROUN. Thank you, Mr. Peters. Now Ms. Bonamici, 

you are recognized for five minutes. 

Ms. BONAMICI. Thank you very much, Mr. Chairman, for allowing me to participate in this important hearing. I appreciate it. 

I would like to thank the witnesses for being here today. I represent the northwest part of the State of Oregon and so this is an 

issue that is very critical to the economic and environmental priorities of my constituents up and down the West Coast, but in Oregon, for example, many of my constituents have commercial fishing permits for Bristol Bay. They travel there every summer to 

make a living. Still more work as fishing guides. They lead tours 

of recreational fishermen to the thriving ecosystem in Bristol Bay. 

According to a recent report by the University of Alaska, Anchorage’s Institute of Social and Economic Research, as many as 2,000 

Oregon jobs are supported by Bristol Bay salmon fisheries. So my 

constituents have made it clear to me that they are very concerned 

about the impact of a proposed mine on the ecosystem and on their 

livelihood, so it is important that we get the science right on this. 

I want to ask you, Mr. Nastri, much has been made about the 

EPA assessing a hypothetical project. In your testimony, you indicated that while final details of the plan may diverge from the public documents filed so far, what won’t change are the size, scope 

and location of the mine. So based on your experience, especially 

with EPA, how much more information would EPA have to have 

about a project that had been officially proposed compared to what 

has been already discovered about the Pebble Limited Partnership 

plans through public documents? 

Mr. NASTRI. The key issue here is the fill-and-dredge permits, 

the 404 permits, and one of the key aspects of that is that the fisheries are protected, and under 404 requirements, you have to show 

unacceptable adverse harm. The physical dimensions of the mine 

itself will create significant impacts to the ecological resources in 

terms of impacts to streams and so forth. So from that perspective, 

EPA has enough information to address the 404 question, and that 

is, are there unacceptable and adverse impacts, and if so, then the 

agency has a series of decisions that it can make with regards to 

how to address that. 

Ms. BONAMICI. Thank you. And following up, how does the data 

that the EPA used in the assessment, the watershed assessment, 
127 

compare to data that would be considered during a traditional 

NEPA process, which supporters of the mine proposal have said 

would be sufficient to protect the ecosystem? 

Mr. NASTRI. Well, much of the data that is utilized in the watershed assessment would certainly also be utilized in the NEPA process, but again, the decision aspects of both processes are designed 

to inform policymakers, and the information certainly with regards 

to a 404(c) issue is certainly there, assuming that the watershed 

assessment is finalized. 

Ms. BONAMICI. Thank you. And you described the—you discussed 

the Riley Yocum report in your testimony, which describes the actions that the EPA could prohibit under its 404(c) authority including discharge of dredge material into salmon habitat, discharge of 

dredge material if it does not meet testing requirements showing 

that it is not a threat to salmon, aquatic life, and the discharge of 

dredge material that requires treatment in perpetuity. So would 

the performance standards in the report permit the Pebble Limited 

Partnership to file for a permit if it was able to engineer a solution 

to meet those requirements? 

Mr. NASTRI. Absolutely. 

Ms. BONAMICI. Thank you. 

And I wanted to talk briefly with my remaining time about, apparently, Mr. McGroarty, earlier this year, you wrote an opinion 

piece in the Wall Street Journal in which you described the United 

States as being tied with Papua, New Guinea, for last place in the 

time it takes to get a permit for a new mine, and I suspect that 

perhaps the history of what happened in New Guinea is a call to 

our government to slow down, and I hope the United States does 

move carefully on this because we don’t want to repeat the mistakes that were made there, and I just read a quote from the journal Organization and Environment where they detailed the destruction that was left and the operation of the, I think it is 

Panguna mine. ‘‘Thousands of acres of rainforest were cut down 

and billions of tons of mine waste were dumped into local rivers 

and their surrounding oceans, degrading drinking water quality 

and destroying fisheries and local fishing economies. Mine pollution 

may also have increased death rates on the island, especially 

among children. In addition, villagers living on or near the mine 

property were forcibly removed from the area to make way for the 

mine.’’ And I cite this as an example of the environmental damage 

that can occur in mining operations. I point out that it is my understanding that this operation in New Guinea was managed by 

one of the entities involved with this proposed Pebble mine in Bristol Bay, and I trust that all of you will agree that we don’t want 

this to happen in our country. Anybody want to agree with that? 

Mr. NASTRI. We agree. I agree. 

Dr. KAVANAUGH. Well, I certainly agree, and I think—but the 

point here again is that you are talking about a mining situation 

under strict regulatory control in Alaska. You are using examples 

of systems that were installed under poor regulatory oversight, and 

the example that I mentioned, the 135 case studies, all of those 

were not relevant to the modern engineering design of a treatment, 

storage and disposal facility. Another example of the exaggerations 

that we keep hearing, 11 million tons of ore that are all acid gener-
128 

ating. In fact, only 17 percent of the material is estimated to be 

acid generating as documented in the report, in the assessment. 

Eighty-three percent is not acid-generating materials. So I think 

the problem that keeps coming up on this project is, again, exaggerating the probability of failure and exaggerating the consequences of those failures. 

Ms. BONAMICI. Thank you. I see my time is expired. Thank you, 

Mr. Chairman. 

Chairman BROUN. Mr. Schweikert, you are recognized for five 

minutes. 

Mr. SCHWEIKERT. Thank you, Mr. Chairman, and I apologize to 

you and the Committee and the witnesses for my tardiness and so 

I may be asking you something that you have already spoken 

about, but it will be helpful for me. 

Being from Arizona, I have grown up around a lot of both underground and pit and other types of ore extraction. My understanding 

is, even what I seen in the southwest United States, that both the 

technology and the mechanics, everything from SX to everything 

else out there, have changed dramatically in the last couple decades, and I would love to start from Mr. Rothschild—and work my 

way down. Tell me how mechanically and technologically, both 

from an impact mitigation standpoint, for a large mine would look 

different today than it might have four decades ago? 

Mr. ROTHSCHILD. Well, I can tell you that I am not the mining 

expert, I am the lawyer, but I would tell you that that is exactly 

what the EIS process is intended to identify is those changes and 

the impacts. I will defer to the scientific experts on the panel to answer your question specifically. 

Dr. KAVANAUGH. Well, Congressman, I am the only engineer on 

this panel so I can give you a few examples if that would be sufficient, but you certainly should take a look at written testimony 

that outlines a number of the areas where mitigation measures 

would in fact be undertaken. But let me just focus on a couple of 

examples. The tailings storage facility is a large facility, and certainly, any kind of failure there would have dramatic consequences. 

So those systems have to be designed to minimize the probability 

of failure. They are designed with an appropriate safety factor. 

They are designed with a downstream method, which has been 

proven to be successful. Many of the failures in the 135 case studies that are documented in the assessment are based on other ways 

of designing the dams and many of those failed because they were 

improperly designed. So—— 

Mr. SCHWEIKERT. And to that—— 

Dr. KAVANAUGH. Just to finish my statement there, the point 

being that you can design a tailings storage facility with appropriate safety factors so that the probability of a failure is very, very 

low. 

Mr. SCHWEIKERT. And Doctor, back to the nature, the focus of my 

question is, tell me on that engineering, how would you be engineering it differently today than you might 40 years ago? 

Dr. KAVANAUGH. Absolutely. 

Mr. SCHWEIKERT. —with the materials, the linings? Walk me 

through a couple of those, materials, engineering, design, technology changes that have happened in those decades. 
129 

Dr. KAVANAUGH. Well, that is fairly comprehensive so I will give 

it a stab. Again—— 

Mr. SCHWEIKERT. You have got two whole minutes. 

Dr. KAVANAUGH. Again, with the TSF, it would be designed in a 

manner that has been proven to be effective at withstanding seismic threats, overtopping, slope stability, all of the modes of failure 

that geotechnical engineers are fully aware of these days. The 

whole 135 case studies is intended to be lessons learned. You don’t 

do it the way that has failed in the past. So with respect to that 

particular engineering component, again, it would be designed with 

appropriate safety factors to meet a permit requirement for a failure probability, one in a million, for example. 

With respect to all the water treatment and wastewater treatment facilities, they are all designed to have redundant systems. If 

there is a power failure, there is a way to assure that the system 

shuts down. There are diagnostic measurements that can monitor 

a system as detailed as you want with real-time measurements. 

That is in the water and wastewater management arena. One of 

the issues is the containment of the acid drainage from the tailings. 

You can design that to be of sufficient capture to capture all of the 

acid-generated wastes. In the report, they estimated 50 percent 

would be lost. I think that is a poor assumption. Other components 

of the mine involve the pipelines. You can do pipeline designs that 

are double-walled. All of these things, of course, can add to the 

cost, but they can be done in a way that minimizes the probability 

of any releases. 

Mr. SCHWEIKERT. Mr. Chairman, in the last 40 seconds, Mr. 

Nastri, same sort of question. 

Mr. NASTRI. As a former EPA—— 

Mr. SCHWEIKERT. And can you hit your button? 

Mr. NASTRI. As a former Regional Administrator who was involved in both the cleanup of legacy mines as well as the permitting of new mines, I think I have a good grasp on the issue. I am 

sure that any mine in its time said they were going to meet the 

requirements, that they were going to do the absolute best and that 

nothing would be the case. Unfortunately, in the Southwest, we 

have the greatest concentration of Superfund mine sites that are 

being cleaned up. There are a number of—— 

Mr. SCHWEIKERT. But Mr. Nastri, to that point, the legacy and 

time frame of those, having some education in this area—— 

Mr. NASTRI. Sure. 

Mr. SCHWEIKERT. —are almost all 50-year-old from their original 

permitting dates, and the design and manufacturing and engineering and mitigation that you would permit a new mine today would 

look dramatically different in your requirements, correct? 

Mr. NASTRI. Absolutely, they would look different. However, accidents happen. Things happen that don’t—— 

Mr. SCHWEIKERT. And that is why now in your mechanics and 

your rules you do the layers of redundancy that have been modeled 

from previous experiences, correct? 

Mr. NASTRI. You do do that, but they are not foolproof and they 

are not—— 
130 

Mr. SCHWEIKERT. Well, also, you know, life isn’t foolproof but at 

some point you play the statistical part of your tale, and sorry, I 

am way over time, but Mr. Chairman, thank you for your patience. 

Chairman BROUN. We will start a second round of questions, and 

try to get through as far as we can go. We have votes at about 2:30, 

2:35. 

Mr. Nastri, back to the question that Mr. Maffei gave you. All 

I heard was economic issues, not environmental harm, and if you 

can in your written statement or answering the written questions, 

if you can show us what you mean by environmental harm. I have 

not heard anything from you regarding that. 

But let us go to Mr. Rothschild with that same question. Would 

allowing the Pebble project to present a plan to go through the 

NEPA permitting process result in any environmental harm? 

Mr. ROTHSCHILD. No. 

Chairman BROUN. Yes or no? 

Mr. ROTHSCHILD. No, Mr. Chairman. 

Chairman BROUN. Okay. Dr. Kavanaugh? 

Dr. KAVANAUGH. Not that I am aware of. 

Chairman BROUN. Okay. Dr. Kavanaugh, one argument made by 

people opposed to the mine in Bristol Bay is that Geosyntec was 

hired by one of the mining companies exploring mining options in 

Bristol Bay so it naturally raises concerns shared by the mining 

company. Is that a fair characterization? Would Geosyntec’s report 

have been different had the company been retained by an environmental group or organization opposed to the mining in Bristol Bay? 

Dr. KAVANAUGH. Well, I appreciate that question, Mr. Chairman. 

Geosyntec has been in business since 1983. We have a thousand 

staff. We consider ourselves independent environmental consultants. Our fee was paid by Northern Dynasty but we have no commercial interest in the outcome. We are not advocating one way or 

another. We are simply commenting on the scientific and technical 

credibility of a document. I would make the same comments were 

I retained by an environmental organization with respect to the 

limitations of the assessment that has been prepared. 

Chairman BROUN. I take it that if all these groups that are opposed to the mine had hired Geosyntec, you would have—the results would have been the same? Is that what you are telling us? 

Dr. KAVANAUGH. Yes, it would. 

Chairman BROUN. Thank you. 

Mr. Rothschild, what role do avoidance and mitigation impacts 

play in the mining permit process? 

Mr. ROTHSCHILD. Under the Clean Water Act permitting process, 

a permit applicant is required to submit all practicable avoidance, 

minimization and mitigation measures, and so there is a detailed 

analysis about what can be done practicably in every permit case 

to ensure that the impacts are avoided, minimized and mitigated 

to the greatest extent. 

Chairman BROUN. Okay. Dr. Kavanaugh, following up on Mr. 

Rothschild’s response, what is your assessment of the role of avoidance and mitigation of impacts in either the first or second draft 

of EPA’s watershed assessment? 

Dr. KAVANAUGH. Well, in the second draft, they included greater 

discussion about mitigation in the document but they did not incor-
131 

porate, in my opinion, mitigation into minimizing or discussing the 

probability of failure. They still retain, for example, four examples 

of tailings storage facilities’ failures, four case studies, if you will, 

that are not relevant to a modern mine. They were based on wellknown causes of failure, and those failures are again lessons 

learned. 

One of the mistakes, in my view, that permeates the report is the 

use of historical information to predict what may occur in the future, and I understand the limitations of making these predictions 

into the future, and it is not a straightforward analysis. But to give 

equal weight to worst-case scenarios leads to, in my opinion, not a 

credible risk analysis. 

Chairman BROUN. Dr. Kavanaugh, EPA described this assessment as a watershed assessment in 2012. Subsequently, the revised version of the document has been referred to as an ecological 

risk assessment and an environmental assessment. Is there a difference between a watershed assessment and ecological risk assessment and an environmental assessment? 

Dr. KAVANAUGH. Well, I think there is some confusion as to what 

exactly the nature of this document is. It is not really an ecological 

risk assessment because it doesn’t quantify a lot of ecological risks. 

It talks about the potential risks in a qualitative way. It also is not 

really a risk analysis, in my view, because of the limitations that 

I have already mentioned, and it is not an Environmental Impact 

Statement because it is a hypothetical mine scenario. So I honestly 

don’t exactly know what kind of a document it is. It is a unique 

document, and it does not follow any guidance, principles related 

to processes that have been identified by EPA, for example, in ecological risk assessment. 

Chairman BROUN. Very good. My time is expired. Mr. Maffei, you 

are recognized for five minutes. 

Mr. MAFFEI. Thank you, again, Mr. Chairman. 

Mr. Rothschild, if the EPA decided to move forward with 404(c) 

action in Bristol Bay, does it have the authority to do so strictly 

speaking as a legal matter? 

Mr. ROTHSCHILD. Well, with the caveat that I wasn’t asked to 

talk about 404(c), I can tell you that EPA has not historically 

issued a preemptive 404(c) veto so it is not exactly clear what it 

would need to do to prepare a record for that. I do note that as 

early as this morning, Administrator McCarthy was quoted in the 

Washington Post as saying that with regard to the mine, ‘‘Any act 

that EPA would take would be carefully considered. There are significant natural resources in that area along with significant economic resources. We have got to get that balance right.’’ It is that 

balance that really NEPA is intended to inform the decision making. 

Mr. MAFFEI. Thank you. That is helpful. 

I want to quote from a letter by Senator Lisa Murkowski on this. 

She wrote on July 1, 2013, that at least as far back as November 

3, 2004, Northern Dynasty Minerals asserted that the submission 

of permit applications was imminent, and then she goes on to describe how this occurred again in 2005 and 2006, 2008, 2009, 2010 

right up to most recently in June of 2013. The PLP representative 

said they hope to have a project to take into permitting this year, 
132 

and she says, ‘‘By failing to take the next step, by failing to decide 

whether to formally describe the project and seek permits on it, 

PLP has created a vacuum that EPA has now filled.’’ 

Mr. Nastri, is this—does this context affect your assessment of 

the EPA’s responsibilities here, the context of all of these times 

that the companies have said they are going to seek a permit and 

then they pull back? 

Mr. NASTRI. Well, the agency is being responsive to those who actually requested they get involved, those being the Alaska Natives, 

the residents, the commercial and sport fishermen and a whole 

host of other groups. So I guess the lack of submission of a timely 

permit application that created the uncertainty, the confusion and 

the anxiety has certainly contributed to where we are today. Had 

that been done, I am sure we would not be here today. But the fact 

of the matter is, for EPA to respond to various residents and 

groups and so forth, this is the way that they respond. They have 

to look at the issue. 

Mr. MAFFEI. I would like to note that there are some representatives of the native tribes that requested the EPA look into this here 

today, and I am honored that they would make the trip. 

Just to elaborate a little bit further on that, Mr. Nastri, so the 

fact that it may be fairly unprecedented if the EPA were to go 

ahead with 404(c) action but do you feel that this is a somewhat 

unprecedented situation with a company postponing, you know, 

bringing to the brink that they are going to have a permit and then 

continuing to postpone it time and time again? 

Mr. NASTRI. Well, I think the area and the resource is unprecedented in terms of the value and its importance both from an economic perspective, from a jobs perspective, and there is the cultural 

importance, and so in that light, I think it is important to address 

and provide certainty to those people. But as far as, you know, people have said that this is a precedent, you know, as was said earlier, hundreds of thousands of permit applications for fill-anddredge permits, the agency has only taken 13 times, and the issue 

of being proactive, I mean, here we are in the world’s greatest 

salmon fishery left. If we are not going to be careful and protective 

of this, when would we be? And so that is why it is so important 

to address this issue, provide that certainty now to everybody involved. 

Mr. MAFFEI. Well said, sir, and I will yield back the balance of 

my time. 

Chairman BROUN. Thank you, Mr. Maffei. Mr. Schweikert, you 

are recognized for five minutes. 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. And Dan, help me 

with the last name so I don’t screw it up. 

Mr. MCGROARTY. McGroarty. 

Mr. SCHWEIKERT. McGroarty? Okay. I was going to get it. I wanted to make sure I was being fair in my chain because part of the 

discussion we have also had in our office about this is not only 

some of the abnormalities we think have happened, sort of the pattern of heading towards NEPA, heading towards this and people 

trying to cut it off and those things, but just also understanding, 

are we also making sure—and this is from both those who want to 

extract the materials to the communities around there to everyone 
133 

with some type of interest—an understanding of current state of 

technology, current state of the mechanics, current state of rule 

sets so if you are going to set up the rules on how this is going to 

happen, if it is to happen, that we have learned from past mistakes, we have learned from things. I have learned in Arizona and 

how radically different at least from what I see in the Southwest 

of a new facility would be designed and managed. 

I know you spent some time sort of on the information side. How 

are we doing in disseminating to all levels what the newest technologies are? 

Mr. MCGROARTY. I think that is precisely the kind of argument 

for having the NEPA process and having a detailed EIS because it 

is a kind of discovery, and what it means, instead of having a hypothetical construct is, there is a particular plan with particular technologies, particular best practices in a particular place and that experts on all sides of those questions have the opportunity to bring 

their information to bear. It is very much like Mr. Rothschild said 

about that process. That process is in place and it takes us very 

far downfield to making a good decision, a scientifically informed 

decision. In my oral remarks today, it is interesting that I am 

quoting from National Resource Defense Council in praise of the 

NEPA system, which I think is an accurate statement, and so I 

don’t understand why we would want that or possibly circumvent 

or prevent that when it is precisely the kind of process that would 

reveal those answers and would air those questions that you have 

raised here. 

Mr. SCHWEIKERT. Tell me that I am not looking at a situation 

where we have sort of a regulatory process to review mechanics 

and when certain parties are fearful they may not get what they 

want politically, that they are trying to find ways to head off that 

process. 

Mr. MCGROARTY. I can’t put my—— 

Mr. SCHWEIKERT. Or would that be just too cynical to say such 

a thing? 

Mr. MCGROARTY. I can’t put myself inside the mind of folks arguing that. I do say that the press often reports that the watershed 

assessment would be a tool to stop the process. That is all I can 

tell you. 

Mr. SCHWEIKERT. Okay. Mr. Rothschild, you have expertise in 

the NEPA process? 

Mr. ROTHSCHILD. Yes. 

Mr. SCHWEIKERT. Tell me what you think works and doesn’t 

work. 

Mr. ROTHSCHILD. I think that NEPA process as a whole works. 

It analyzes the alternatives to and the impacts of a proposed 

project, and that is certainly something that is missing in this assessment regardless is, every NEPA assessment needs to look at 

the alternative of not doing anything. It is called the no-action alternative. And what comes with that analysis is the impacts that 

would result from not doing anything, the impact, the environmental, the economic impacts, some of the impacts that Mr. 

McGroarty was testifying to earlier with regard to the need for 

these metals, and so I think the NEPA process, while it has its 

kinks, is fairly successful at looking at impacts and alternatives. 
134 

Mr. SCHWEIKERT. Okay. Mr. Chairman, you know, that gets me 

where I needed to be informationally, so I yield back. 

Chairman BROUN. Okay. Very good, Mr. Schweikert. I understand I have a unanimous consent request. 

Mr. MAFFEI. Mr. Chairman, I ask unanimous consent that Mr. 

Kilmer of the State of Washington be allowed to participate in the 

Subcommittee hearing. He is a member of the full Committee but 

not the Subcommittee. 

Chairman BROUN. Hearing no objections, so ordered. 

Ms. Bonamici, you are recognized for five minutes. 

Ms. BONAMICI. Thank you, Mr. Chairman, and I will just take a 

couple minutes. I wanted to recognize that again there are people 

here from some of the tribes. They have come all this way, and I 

appreciate their presence. 

It is my understanding that Bristol Bay is home to 25 federally 

recognized tribal governments, and I wanted to talk a little bit 

about the public participation part of the assessment. Mr. Nastri, 

is it unusual for there to be two public comment periods? Because 

it is my understanding that during the first phase, there were more 

than 200,000 public comments, and during the second phase, 

877,000 public comments came in. So can you talk a little bit about 

the effort to involve the public in this assessment process, especially with the federally recognized tribes? 

Mr. NASTRI. There has been extensive outreach during this entire 

process and it was at every stage of the process from helping to define what the study would be, helping to select the charges that 

would be subject to peer review, to who peer reviewers could be. 

There was extensive outreach with regards to the one or two peer 

reviews. In my experience, there typically was one peer-review period and then the agency would go ahead and finalize and release. 

I think in an abundance of caution, the agency wanted to make 

sure that there was as much outreach as possible and to solicit as 

much input as possible from all of those, and it is continuing to do 

so, and right now they had recently closed that second comment period on the second revision that was released, and so they are in 

the process of compiling and reviewing all of the comments that are 

submitted, and I am sure that many of the issues that were discussed today will be addressed once that watershed assessment is 

finalized and released. 

Ms. BONAMICI. Thank you. And can you comment briefly on the 

efforts that have been made to work with the federally recognized 

tribes in the Bristol Bay area? 

Mr. NASTRI. There have been a number of communications directly with members of the tribal villages. Previously, there was 

visits to the actual area. I know that there were a number of visits. 

The Administrator herself, Administrator Jackson, had the chance 

to visit. EPA staff had the chance to actually fly over the proposed 

site, look at some of the areas that would be impacted by the potential development of the Pebble deposit. So there was an extensive ability for the actual staff of the agency to see firsthand what 

it is that was being discussed. I myself also had the opportunity 

to visit a number of those villages and see the challenge that they 

have. So I think that in terms of the agency itself providing the opportunity for engagement, they specifically formed a group to deal 
135 

with the tribal entities and so forth. They have had numerous opportunities for public input, and I would say that it is really quite 

extensive. 

Ms. BONAMICI. Thank you very much, and I yield back the remaining time. Thank you, Mr. Chairman. 

Chairman BROUN. Thank you, Ms. Bonamici. Mr. Kilmer, you are 

recognized for five minutes. Do you think you need all five? 

Mr. KILMER. I don’t think I will. 

Chairman BROUN. Okay. 

Mr. KILMER. Thank you, Mr. Chairman, and thank you for allowing me to participate in this important hearing. I would like to 

thank all the witnesses for traveling here today as well. 

As mentioned, the Bristol Bay watershed is the world’s largest 

sockeye salmon fishery, not only in existence but flourishing, and 

as a representative from Washington State, I have seen the detrimental effects of a struggling salmon population and how it can affect all stakeholders from fisherman to our tribal communities. In 

Washington State, we can all agree that the viability of our fisheries, whether in the State of Washington or in Alaska, are a key 

economic driver and a part of our cultural heritage, and healthy 

fisheries create jobs. Bristol Bay watershed supports over 14,000 

jobs from Alaska to Maine and at least 5,000 Washington State 

jobs rely on the Bristol Bay sockeye fishery including a good number of my constituents. 

In examining the proposal, I have serious concerns over the environmental effects of building this type of mine right on top of the 

largest sockeye run in the world. In fact, according to Pebble’s own 

documents on file at the SEC, at least 80 miles of sockeye spawning streams would be destroyed during the construction of the 

mine. That is in addition to the lasting impacts that the toxic tailing pools would have on salmon. I hear the Pebble supporters say 

that the EPA should just wait for a permit application, and I guess 

I have got a few questions for Mr. Nastri. 

First, in your opinion, why is it so important that EPA get this 

work done sooner than that? Second, I hear from a lot of commercial and sports fishermen in my district who oppose the Pebble 

mine and support the EPA’s process. In the Bristol Bay region, 

what do residents think about the EPA process and what do they 

think about the mine? And then finally, you know, I have a number of tribes in my district and I understand the importance of access to fishing grounds for our tribal communities. Worst-case scenario or let us say medium-case scenario we have a leakage from 

the toxic tailing pools. What happens to subsistence fishers in the 

region? Are there other streams nearby that can sustain them? In 

your view, is the EPA doing enough to make sure subsistence fishers in the Bristol Bay region have a voice during the process? 

Thank you. 

Mr. NASTRI. Thank you. You asked a lot of questions, and hopefully I will be able to answer them all, but if I forget one, please 

remind me. 

With regards to the level of support, as I mentioned earlier, over 

75 percent of the comments that were generated with regards to 

the watershed assessment were in support of, and within Bristol 
136 

Bay, over 95 percent of the commenters supported EPA’s watershed 

assessment. 

With regard to the subsistence aspect, there was a tremendous 

amount of outreach on the cultural and subsistence issue, and in 

fact, there were comments that were submitted by various villages 

that talk about the potential harm to a subsistence way of life and 

to a cultural identity should the salmon be impacted in a way that 

is feared. And so there is a tremendous amount of effort, both in 

terms of addressing the subsistence aspect. There is a tremendous 

level of support for EPA and its watershed assessment. And I am 

sorry, the very first portion of your question? 

Mr. KILMER. In your opinion, why is it so important that the 

EPA get this work done sooner than waiting for a permit application? 

Mr. NASTRI. So right now what we have and what really prompted the request to EPA is uncertainty, and as Senator Murkowski 

said, that uncertainty has caused anxiety and frustration within 

the communities. And that has a direct impact on the economic 

well-being of the area. We have heard from a number of groups and 

organizations that said they will not invest in the area because 

they don’t know what the outcome is. There is also the ongoing 

threat of stigma, stigma in terms of, are these fish going to be 

something that is really valuable. Right now, the value of this fishery is tremendous, and so providing and addressing a response that 

addresses the uncertainty is extremely important, and not only are 

there the economic aspects, you know, the 14,000 jobs, the 1.5 billion contribution, but you have the social impacts as well, and I am 

sure that the village elders that are here today could share with 

you stories about what it is doing to their youth. I have had the 

chance to talk to some of those youth, and they say that this uncertainty has impacted them greatly. And so providing the certainty 

not only to all the people that are involved that rely on the fishery, 

that live on the fishery, but to everybody so that they know what 

needs to be done and how we can address this and move forward 

and continue to have that very viable and healthy fishery and economy. 

Mr. KILMER. Thank you, Mr. Chairman. I yield back. 

Chairman BROUN. Thank you, Mr. Kilmer. 

Before I adjourn this hearing, I want to make a couple of points. 

As I stated in my opening statement, I am an avid hunter, fisherman and conservationist. In fact, it was those issues that started 

my political activism. I enjoy the great outdoors and strive to protect our natural resources so future generations may also enjoy the 

benefits that they provide. 

I have serious questions about how a mine can coexist with fish 

in Bristol Bay, but I have reservations about EPA’s action in regard to the potential Pebble mine. I cannot support actions by a 

Federal agency that disregards laws that already exist that provide 

a level playing field for both industry and environmentalists alike. 

We must be a Nation ruled by law, not ruled by the decision of 

man or woman. 

If the Administration wants to keep its promise of transparency 

and accountability, it should start with projects like the Pebble 

mine in Bristol Bay and allow the NEPA process to occur once an 
137 

actual plan is submitted. If it turns out a mine cannot be developed 

without endangering the salmon in Alaska, then the EPA has the 

authority to deny the requisite permits, and should. But it will 

have done so by following the due process instead of setting a costly and chilling precedent that may send more jobs out of the 

United States to countries whose mining laws have little regard for 

the environment or their citizens. Following our system of existing 

laws and regulations would also help alleviate the uncertainty 

among industry, who right now are wondering which rules will prevail, the laws as we know them or the whims of an agency an Administration that apparently believes the ends justify the means. 

My position has always been, if the Pebble mine will harm the 

fisheries and environment, as some believe, it should not be allowed. We must allow due process under the law to find the facts. 

Laws and facts should drive the decision. 

Again, I thank everyone for their participation in this informative hearing today, and I suspect it won’t be our last discussion 

on the topic. 

I have allowed every letter that I have gotten, no matter how 

much they have impugned my process and my reasons for holding 

this hearing. I have put them all in the record. We have to be a 

Nation governed by law and due process, and that is the whole reason for this hearing. 

Now, Members of the Committee may have additional questions 

for the witnesses, and we will ask you to respond to those in writing. The record will remain open for two weeks for additional comments and written questions from Members. 

The witnesses are excused. I thank you all for you all’s presence. 

This hearing is adjourned. 

[Whereupon, at 2:31 p.m., the Subcommittee was adjourned.] 

(139) 

Appendix I 

ANSWERS TO POST-HEARING QUESTIONS
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ANSWERS TO POST-HEARING QUESTIONS

Responses by Mr. Lowell Rothschild 
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Responses by Dr. Michael Kavanaugh 
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Responses by Mr. Wayne Nastri 
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Responses by Mr. Daniel McGroarty 
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Appendix II 

ADDITIONAL MATERIAL FOR THE RECORD
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Æ