Regulatory Developments

EPA Withdraws Proposed Determination on Pebble Mine Plan

EPA Administrator Scott Pruitt announced that the Agency had changed its mind about withdrawing the Obama EPA’s July 2014 proposed determination regarding Pebble Limited Partnership’s (PLP) plan to build a copper and gold ore mine in the headwaters of Bristol Bay, Alaska.

“Today’s notice suspends the proceeding to withdraw the proposed determination and leaves that determination in place pending consideration of any other information that is relevant to the protection of the world-class fisheries contained in the Bristol Bay watershed in light of the permit application that has now been submitted to the Corps [U.S. Army Corps of Engineers],” the EPA states.

The Agency says it received more than 1 million public comments regarding its proposal to withdraw the proposed determination (July 19, 2017, FR).

“An overwhelming majority of these commenters expressed opposition to withdrawal of the proposed determination,” the Agency states.

The proposed Pebble project is near the largest sockeye salmon fishery in the world. The fishery provides subsistence and economic opportunities to many native American tribes. Restrictions in the proposed determination to protect the fisheries are so severe they created uncertainty that the PLP would continue to find the project feasible. The PLP sued the EPA because the proposed determination was issued before the PLP had actually submitted a Clean Water Act (CWA) Section 404 application to the Corps to develop the project.

Concerns now moot

In May 2017, the EPA reached a settlement with the PLP in which the partnership agreed to drop its lawsuits against the Agency provided the EPA committed to withdrawing the proposed determination and not issuing a final determination within 48 months after the effective date of the settlement or following issuance of a final environmental impact statement on PLP’s permit application, whichever comes first. A proposed determination is the second step in EPA’s four-step CWA Section 404(c) review process of initiation, proposed determination, recommended determination, and final determination.

EPA’s notice focuses on the absence of a legal necessity to withdraw the proposed determination to enable the PLP to submit its Section 404 permit application to mine the Pebble deposit. The PLP has now submitted that application to the Corps, which has determined that the application is complete. This resolves many of the concerns addressed in the settlement.

“For example,” says the EPA, “concerns regarding EPA potentially finalizing its section 404(c) review in advance of PLP submitting a permit application, concerns that the Corps would not accept or process PLP’s permit application with an open 404(c) action, and concerns that PLP should be provided more time to advance through the 404 permit and NEPA [National Environmental Policy Act] review processes before EPA makes any decisions regarding potentially advancing its 404(c) review are moot.”

‘Utmost protection’ needed

While the notice focuses on the legal relationship between the proposed determination and PLP’s application, Pruitt’s public statement emphasizes environmental protection.

“We have restored process, reviewed comments, and heard from a variety of stakeholders on whether to withdraw the proposed restrictions in the Bristol Bay watershed,” Pruitt said in a news release. “Based on that review, it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection. Today’s action allows EPA to get the information needed to determine what specific impacts the proposed mining project will have on those critical resources.”

The PLP reacted calmly to EPA’s notice.

“We filed our permit application for review by the [Corps] under the National Environmental Policy Act,” said PLP CEO Tom Collier. “The [Corps] has determined we have a complete application and has initiated a thorough, objective review of the Pebble Project. We intend to participate fully in the process and encourage all project stakeholders to do the same. We believe we can demonstrate that we can responsibly construct and operate a mine at the Pebble Deposit that meets Alaska’s high environmental standards.”

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