Monday, February 13, 2012

Headwaters News: EPA Talks Jobs and Regulation

By Teresa Bertossi
Posted on Headwaters News Feb. 12, 2012
Reprinted and slightly updated with permission

MARQUETTE -- While citizens around the country fight to sustain their livelihoods, corporations have stayed one step ahead by exercising control over regulatory agencies and gutting, altering, and writing the very laws that regulate their operations.

From jobs to natural resources and elections, the regulatory system is increasingly being criticized for serving the interests of corporations, a concept supported at private sector economic development group Operation Action U.P.’s annual meeting. Themed "Jobs vs. Regulatory Burden," the meeting featured a panel representing the mining industry, as well as a keynote presentation by Environmental Protection Agency’s (EPA) Great Lakes Region 5 Administrator, Susan Hedman.*

Promotional materials set the stage for the meeting, featuring an image of two boxing gloves, one representing the regulator, and the other the regulated corporation. However, had it been a real boxing match, it would have ended with a technical knockout shortly after Hedman’s presentation, as it became quite obvious that a majority of regulations today are not so much a burden to industry, as a service providing business security.

Hedman Addresses Legacy Contamination, Deregulation, Job Creation

Hedman’s presentation addressed two situations: the first included cases where contamination occurred because there were no regulations in place -- frequently the case with the legacy of contamination in Great Lakes Areas of Concern (AOCs); the second included locations where regulations were not adequately protective from the beginning. Hedman also demonstrated that environmental standards have helped to drive job creation in the U.S.

Hedman provided the audience with a tour of five AOCs that are found in the U.P. An AOC is a designated geographic area that shows severe environmental degradation. The five U.P. areas include the Menominee River, Torch Lake, Manistique River, the St, Mary’s River, and Deer Lake. Money for cleaning up these toxic legacies and controlling invasive species will come from Great Lakes Restoration Initiative funds -- the largest investment in the Great Lakes in two decades.**

Susan Hedman, Environmental Protection Agency (EPA) Great Lakes Region 5 administrator, speaks at Operation Action U.P.’s Jan. 27, 2012, annual meeting, themed "Jobs vs. Regulatory Burden," at Northern Michigan University. (Photos © and courtesy Teresa Bertossi)

In addition to legacy contamination clean-up Hedman also addressed deregulation issues. She cited the July 2010 Enbridge oil spill in the Kalamazoo River, near Marshall, Michigan -- the largest inland oil spill in Midwest history. Hedman added that there is a need in the region for company incentives and regulations to upgrade aging pipelines, including lines running near Lake Michigan in the UP.

"EPA doesn’t regulate pipelines," said Hedman. "We just clean up the spills when they happen."

She noted a comment by the Canadian Minister for the Environment, who observed during a meeting with EPA that if pipeline maintenance were funded as it is in Canada, pipeline companies would have real incentives to maintain pipelines.

"I don’t want to clean up any more of these spills," Hedman said.

Hedman also spoke about the new (December 2011) Federal Mercury and Air Toxics Standard that, for the first time, will require all coal-fired power plants in the United States to reduce mercury emissions. She explained also how the recent implementation of the Cross State Air Pollution Rule, under the Clean Air Act, would help control power plant emissions and contamination from one state to another, because of public health concerns.***

Hedman explained that money spent on emissions reductions for power plants has served to provide high quality American jobs associated with the creation, assembly, installation, operation and maintenance of pollution control equipment. She also gave examples of job creation in renewable solar and wind energy projects facilitated by restoration of brownfield sites.

"I’ve been talking about the enormous costs that we’ve incurred to restore the environment so that we can drink the water, eat the fish, go swimming and breathe the air without getting sick," concluded the Administrator. "At this point I think it should be clear that I completely reject the premise that environmental standards are a regulatory burden that interferes with job creation. And the evidence that I have just presented demonstrates that environmental standards actually can help to drive job creation."

Considering promotion of the event as combative, Hedman surprisingly faced little criticism and few questions from the crowd. Although Greg Andrews, U.P. representative to Governor Snyder, did comment on his concerns for cormorants in the region -- a question Hedman deferred to a different agency (U.S. Fish and Wildlife Service). Most criticism of Hedman came the night before at a meeting of citizens, environmental groups and tribal representatives.

Tribes and Environmental Groups Accuse EPA of Failure to Act on Citizens’ Behalf

EPA Region 5 Administrator Hedman meets with tribes and environmental organizations on Jan. 26, 2012, in Marquette.

Perhaps Hedman’s knockout presentation was fueled by the heavy criticism she received the night before. While in town, EPA also attended two other meetings. Headwaters was not allowed to attend the meeting with road commissioners about a proposed mine road but was invited to a roundtable discussion with tribes and environmental groups.

The overall atmosphere of the roundtable discussion was one of citizen frustration with federal and state regulatory agencies. Participants commented that despite numerous efforts, including various communication efforts with the EPA, their concerns remain unaddressed on new mining in the region.

As Keweenaw Bay Indian Community (KBIC) President Chris Swartz explained, "The lack of federal programs for mining in Michigan leaves tribes vulnerable to the interpretation of Michigan laws by Michigan agencies alone."

Michigan is only one of two states with delegated authority to oversee most of the EPA programs, eliminating some tribal consultation requirements.

KBIC and Lac Vieux Desert informed the EPA that there was a heightened expectation by the tribes that EPA and other federal agencies exercise federal responsibilities and trust obligations directly by reviewing and critically commenting on mine-related permit applications in Michigan.

Michelle Halley, an attorney for the National Wildlife Federation, explained that was involved in battling the proposed Eagle Mine in Marquette County for nearly a decade and expressed her frustration with the EPA and the legal system.

"The legal challenge route is not a good solution. For one thing, most organizations and people don’t have the resources to do it; and even in this case, when we have had ample resources, the results have been abysmal quite honestly," said Halley.

Mining Company Panelists Satisfied with State Mining Laws

A panel of mining representatives ended the Operation Action U.P. meeting. Speakers included Adam Burley, President of Rio Tinto Kennecott Eagle Minerals; Dave Anderson, Director of Health, Safety, Environment and Government Relations for the Orvana Resources’ proposed Copperwood Project; and Mick Lawler, Senior Mine Manager for HudBay Minerals Inc.’s proposed Back 40 project.*

Panelists representing Rio Tinto, Orvana, and HudBay mining companies participate in the Jan. 27, 2012, Operation Action U.P. annual meeting at Northern Michigan University.

Although speakers expressed some regulatory concerns including business uncertainty, "hysteria" over mercury contamination, and the cost of water treatment systems, they were mostly pleased with the Michigan Department of Environmental Quality (MDEQ) and the State’s new nonferrous metallic sulfide mining regulation, colloquially known as "Part 632."

“I certainly don’t see regulation itself as a burden," said Rio Tinto's Adam Burley. "I’ve worked in many parts of the world, particularly in Africa, where lack of regulation, or particularly lack of enforcement of regulation, can lead to dire consequences. So I certainly see the value in regulation. I think the engagement that we had with respect to Part 632, the non-ferrous mining legislation, was as I understand a very broad engagement process which related the views of a range of stakeholders, including those that oppose and support mining in itself; and out of that was born a very stringent piece of legislation which we're proud to be able to comply with and go above and beyond many of those requirements."

Anderson also expressed his approval of the Part 632 process and the Michigan DEQ.

"The DEQ is a fantastic organization and I have nothing negative to say about them whatsoever," said Anderson. "I think Michigan is moving to get its reputation back on track…I think 632 moving forward was a good thing."

Headwaters asked Anderson if he had changed his mind or if the venue had only changed; at a meeting with citizens and environmentalists in Alberta, Mich., in December 2010, Anderson had lamented the weaknesses in federal and state regulations, including Michigan’s mining law.

At that time Headwaters had quoted Anderson as saying, "The U.S. is a long ways behind in environmental protection…The fact that the Clean Water Act was originally intended to end discharges to surface water obviously has not reached its goal and we basically, like 632 did, we created a process to allow these things to occur." ****

In this 2012 interview, Anderson expressed to Headwaters a new-found confidence: "Aside from the EU [European Union], the standards in the United States and the water quality standards of Michigan are much more stringent than other [sic] third world countries," Anderson said. "And, I think our country has the ability and the intelligence and the regulations that make it done safely."

Mick Lawler, of HudBay, also supported Burley and Anderson’s optimism in Michigan’s new mining law: "You know, investors demand the very best so there’s no way you’re gonna mine irresponsibly in an unsustainable fashion, because investors just demand that you do, and that’s why management systems are set up and followed and Part 632, although strict, we have no issue with it what-so-ever."

Mining Companies Influence Regulations Throughout the Great Lakes

There are a number of regulatory changes taking place in Wisconsin, Minnesota, and Michigan to stream-line application processes and improve tax incentives for mining and timber interests, so it should come as little surprise that the mining panelists had few complaints about the regulatory system, state mining laws or the EPA.

In Wisconsin a contentious mining bill, recently passed by the State Assembly, would move 40 percent of tax revenue from impacted communities and add it to state coffers, likely to help alleviate a projected $143 million in budget shortfalls. The bill would also include a law to cap the total amount of fees paid to the state at $2 million.

In Minnesota, there are plans to introduce legislation for a federal to state land exchange that would result in the loss of many tens of thousands of acres of national forest land and would help companies circumvent federal environmental laws in the Superior National Forest.

In Michigan, State Representative Matt Huuki and State Senator Tom Casperson, both Republicans, worked to implement Public Act 113, preventing local governments from zoning against mining projects. Plans are in the works to revamp the structure of taxes for mining companies that local governments and citizens worry will take much needed money from schools and communities closest to the mine.

But some communities and governments, such as the City Council in Duluth, Minnesota, are finding ways to fight back, transitioning from regulating corporate harms to stopping them by asserting local governance. Duluth recently passed a resolution supporting a constitutional amendment taking a stand against corporate personhood.


* Click here for Operation Action U.P.'s Web site. Click here to see a video of Susan Hedman's presentation at their Jan. 27, 2012, meeting. It begins about 20 minutes into the video. Click here for presentations by the panel members from mining companies.

** Click here for a map of the Great Lakes Areas of Concern.

*** Click here to read about the Cross State Air Pollution Rule.

**** Click here for the Dec. 3, 2010, Headwaters News article about Anderson's presentation on the Orvana mine.

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