Cohen’s review was commissioned by the mining company, though the former Pentagon official insisted that he agreed to review the case on the “condition of complete independence,” with no oversight or input from the owners, the Anchorage-based Pebble Partnership.
“The statements and actions of EPA personnel observed during this review raise serious concerns as to whether EPA orchestrated the process to reach a predetermined outcome,” Cohen said in a 346-page report, which is expected to be formally released on Tuesday.
The report is the latest to challenge the EPA’s proposed use of a rare regulatory “veto” to block the mine under the rules of the Clean Water Act, rather than allowing the owners to submit detailed plans for the mine and argue their case before a review board. The EPA’s Inspector General also is investigating the agency’s handling of the matter.
EPA spokeswoman Liz Purchia defended the agency’s decision, saying EPA officials had ample information about the proposed gold mine and its possible environmental impacts, and followed an intensive review process.
“No process could have been more transparent and inclusive of all views, including for proponents of the Pebble Mine,” Purchia said.
Purchia said the agency’s use of its veto power was necessary in this instance to protect a “wild and largely undisturbed watershed” that supports thousands of jobs in the region.
The EPA signaled last year that it intends to preemptively block the Pebble project, which, if built, would put one of the world’s biggest open-pit gold mines on undeveloped land 150 miles upstream of Alaska’s Bristol Bay. EPA officials, backed by environmentalists and several native Alaskan groups, say the mine would pose an unacceptable risk to Bristol Bay wildlife, potentially spoiling a key spawning ground for the world’s largest run of sockeye salmon.
Cohen declined to take a stand on whether the mine should be built. But his report questions the EPA’s decision to short-circuit the normal permitting process. The use of the regulatory “veto” under such circumstances is “unprecedented,” said Cohen, a Republican who served as defense secretary under President Bill Clinton. His report cites a review of thousands of pages of internal documents and interviews with 60 officials and scientists, though the EPA itself declined to participate, Cohen said.
“The fairest and most appropriate process to evaluate possible development in the Pebble Deposit Area would use the established regulatory … process to assess a mine permit application, rather than using an assessment based upon the hypothetical mining scenarios,” the report stated.
The mine’s owners, in a lawsuit, have accused the EPA of violating the 1972 Federal Advisory Committee Act, or FACA, intended to prevent unfair outside influence in government decisions. Company officials cite e-mails and other records suggesting that anti-mine groups were given improper access as regulators were deciding what to do about the mine.
Cohen said he was unable to reach a firm conclusion on whether the EPA improperly allowed advocates to influence its decision, since the agency did not allow its employees to be interviewed and the “record remains incomplete on these issues.” He urged formal investigations by Congress as well as the agency’s Inspector General to look into whether EPA employees violated ethical or procedural rules.