EPA acted 'without bias or predetermination' in Bristol Bay, says watchdog report

Jan 13, 2016

EPA Office of Inspector General's 16-month study of "obtainable records"  finds staff  followed agency guidelines in crafting Bristol Bay Watershed Assessment, proposed CWA 404c determination. 

Region 10 Administrator Dennis McLerran, second from left, and other EPA officials at a public meeting in Dillingham in August 2014.
Credit Dave Bendinger

KDLG:  A report released Wednesday by the EPA’s Inspector General office says the agency’s work in Bristol Bay related to blocking development of mines like Pebble has been unbiased and done without a predetermined outcome. While the EPA’s role is currently being challenged by Pebble in federal court, the agency touted the IG's findings as validation of its efforts so far.

KDLG transcript:  

EPA Region 10 Administrator Dennis McLerran has been noticeably quiet over the past year and a half, declining KDLG's frequent interview requests. On Wednesday morning however, with affirmation of his team’s efforts in hand, he was eager to get back out in front of a story in the now long-running saga of EPA versus Pebble Mine.

“We feel very positive about the outcome and the findings," McLerran said, speaking by phone from Oregon Wednesday morning. "What the Inspector General confirms is that we conducted the assessment in compliance with all of our policies and procedures for ecological risk assessments, and that it was done appropriately, without bias and without prejudgment.”

McLerran added that he has been advised, on account of the federal lawsuit currently in the discovery phase, against making too many public statements. The agency has also been temporarily ordered by the judge in that case against taking further action towards finalizing its preemptive restrictions in the Bristol Bay watershed.

The OIG evaluation, undertaken in May 2014, looked into whether McLerran’s staff had acted within EPA's program guidelines, specifically between January 1, 2008 and May 18, 2012. OIG staff interviewed more than two dozen people involved, but focused primarily on a keyword search of 8,352 emails of just three people:  McLerran, who is Obama’s appointee to the office; Nancy Stoner, EPA’s former Acting Assistant Administrator for Water; and Phil North, the EPA ecologist who has since retired (and disappeared).

Pebble, which sent more than a dozen letters and hundreds of pages of documents to EPA's Inspector General, was quick to call it an "incredibly narrow investigation." 

McLerran disagrees. "They did a very robust review of the communications back and forth, the correspondence," he said. "They did interviews, they looked at emails from a wide array of EPA employees and other folks, including folks outside of EPA," he said. 

"Given the serious issues that were raised here, the report was laughable," said Pebble CEO Tom Collier Wednesday morning. Collier has decades of Washington, D.C. experience, in and out of government, and said he was disappointed not only in the findings, but also in EPA’s OIG.

"To be only thirty something pages long, to not cite any of the really significant documents, it's an outrage," he said. "I don't know what happened here, in this instance, but this report is clearly a whitewash, and I think it's an embarrassment to IGs on good reputation around the country and at other agencies."

The OIG’s report contained more than just praise for EPA's efforts. It cited problems with Phil North, including his role in helping draft the 2010 letter from Bristol Bay area tribes requesting EPA’s intervention. The report is also critical of North's use of a personal email account for government business. His personal emails were not turned over to OIG, despite a subpoena, and 25 months’ worth of his government emails through the 52 month period under evaluation are gone, allegedly erased when his computer hard drive crashed. North was interviewed once by OIG, near the start of the process, but ignored further requests and the subpoena.

Pebble, and now US District Court Judge H. Russell Holland, believe North was central to EPA’s intervention. McLerran said that is not the case.

"I want to be very clear, Phil North was not a central figure on this," said McLerran. "I was a central figure, our office of research and development scientists were central on this, the independent peer reviewers were central on this."

The decision to initiate a 404c process was his to make, in consultation with EPA headquarters, McLerran said.

Pebble has put together a long paper trail documenting North’s involvement, which has so far been enough to convince Judge Holland to order North to appear for deposition. North left the U.S. after retirement, and has ignored requests subpoenas and requests for information from Holland, Congressional committees, and EPA's OIG. He is believed to be living in Australia or New Zealand. 

"You know, I'm not surprised that Dennis McLerran, in order to save EPA's decision, is throwing poor Mr. North under the bus," said Collier. "It's outrageous that that would be happening at EPA, but I guess that's the only way they can defend their outrageous conduct here."

The OIG's findings were well-received by supporters of EPA’s work to block development of Pebble. It’s been a while since that process has seen any progress or had any good news. What difference the report will make at this point, like the Cohen report before it, is unclear. Right now the outcome of the agency’s efforts seem destined to be decided in federal court, in Congress, or perhaps in the hands of the next administration.  

Reach the author at dave@kdlg.org