Special Topics in Environmental Management

Pebble Mine Path Being Cleared by EPA

As it committed to doing in a settlement reached with Pebble Limited Partnership (PLP) on May 12, 2017, the EPA is formally proposing to withdraw its July 2014 proposed determination on the company’s plan to build a copper and gold ore mine in the headwaters of Bristol Bay, Alaska.

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If made final, the Agency’s proposed determination would have restricted the use of certain waters in the Bristol Bay watershed for disposal of dredged or fill material associated with mining the deposit. 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, it created uncertainty that the PLP would continue to find the project feasible.  The company also complained that the proposed determination was issued before the PLP had even applied for a dredge and fill (Clean Water Act (CWA) Section 404) permit from the Army Corps of Engineers.  The EPA said the proposal was based on PLP’s financial disclosures.

Next Determination in 4 Years

The settlement limits the ability of the EPA to work on a recommended determination within 30 months from the date of settlement. If the PLP files a permit application during that time, the EPA may not move forward with a signed recommended determination for 48 months from the effective date of the settlement or following issuance of a final environmental impact statement on PLP’s permit application, whichever comes first.

Predetermined conclusions

According to the PLP, EPA’s formal proposed withdrawal of its proposed determination “further clarifies PLP’s right to proceed into normal course permitting unencumbered by any extraordinary development restrictions, and complies with EPA’s legal obligations under the settlement agreement.”

Also, Tom Collier, PLP’s CEO, expressed confidence that the EPA will finalize the proposed withdrawal.

“The U.S. House Committee on Science, Space and Technology urged [EPA] Administrator Pruitt to take such action back in February 2017, stating that EPA actions at Pebble were based on ‘a questionable scientific assessment that relied on pre-determined conclusions and that EPA officials acted with bias and predetermined conclusions aimed to prevent this project and improperly expand EPA’s authority under the Clean Water Act,’” said Collier.

Smaller Project

Northern Dynasty, PLP’s parent company, announced that it is now focused on qualifying and securing a new major funding partner for the Pebble Project, while the PLP is advancing plans to initiate federal and state permitting with a smaller, environmentally optimized project design.

“Both major project milestones—re-partnering and initiating permitting under the CWA and [the National Environmental Policy Act]—are expected to be achieved in the near term,” states the PLP.

No Free Pass

Opposition to any mine in the Bristol Bay region has been strong, and the EPA is certain to be flooded with comments from environmental, conservation, and sport groups, including Trout Unlimited.

“The action today shows that the EPA is extremely out of touch with Alaskans and hunters and anglers across the country,” said Nelli Williams of Trout Unlimited’s Alaska Program in Anchorage. “Americans submitted more than 1.5 million comments to the EPA in opposition to the Pebble Mine. We will continue to work with Alaskans and hunters and anglers around the country until Bristol Bay’s salmon, jobs, and communities are safe. Pebble will not get a free pass.”

The proposed withdrawal of the proposed determination is open to public comment for 90 days following publication in the Federal Register. The prepublication version of the proposal is here. The May settlement agreement is here.