There was movement last week in both cases Pebble Limited Partnership (PLP) has brought against the U.S. Environmental Protection Agency (EPA). Timing is a consideration in both.
"Statutory authority" case dismissed - On Friday, Judge H. Russel Holland dismissed a case PLP filed last May that questioned EPA's authority to review the potential risks that could results from mining the Pebble depsoit under Section 404(c) of the Clean Water Act before PLP files for a 404 permit. EPA has overisght authority over all 404(c) permitting but has only very rarely exercised that authority before a permit application had been filed. Judge Holland dismissed the case as premature, saying the agency has just begun its deliberations and has not made a final decision or action. Also supporting this decision was the judge's determination that PLP has not incurred any "loss of rights" or "imposition of obligations" as a result of EPA's ongoing process. In response, PLP CEO Tom Collier said the company would pursue its claims again if EPA finalizes proposed restrictions at the Pebble deposit.
"FACA/APA" case hearing rescheduled - This civil case, filed by PLP in early September, alleges that EPA violated both the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) when determining whether it would initiate Section 404(c) of the Clean Water Act. Last week EPA and PLP agreed to a briefing schedule on PLP's motion for a preliminary injunction which the court intends to resolve no later than Dec. 3, 2014. Additionally, EPA agreed that it would not move on to the next step in the 404(c) process until at least Jan. 2, 2015. EPA had already notified the public that it had extended the timeframe for this next step until no later than Feb. 4, 2015, citing the hundreds of thousands of public comments that need to be reviewed. The next step in the process is either to release a "Recommended Determination" detailing how it intends to restrict disposal of dredge/fill material at the Pebble deposit area, or to withdraw its "Proposed Determination."
Judge dismisses Pebble lawsuit as premature (Alaska Dispatch News, September 26, 2014)
PLP's Tom Collier describes efforts to fight EPA (PebbleWatch, September 8, 2014)
Pebble Limited Partnership CEO Tom Collier says his company is “punching back” at the U.S. Environmental Protection Agency and its efforts to employ a rarely used section of the Clean Water Act to place restrictions on mining at the Pebble deposit in Bristol Bay. Speaking at a Resource Development Council breakfast earlier this month, Collier described Pebble’s plans to fight EPA’s use of the 404(c) process, including litigation and lobbying for an investigation into how EPA went about creating its recent Bristol Bay Watershed Assessment.
EPA officials are currently reviewing hundreds of thousands of public comments on proposed restrictions for the area before it decides whether to drop the action or continue on with the next step in the 404(c) process - drafting a Recommended Determination.
Lawsuits against the EPA
Collier said PLP’s first offensive begins in the courts.
Inspector General investigation- PLP made repeated requests and complaints to the EPA’s Office of Inspector General (OIG) regarding EPA's process conducting the Bristol Bay Watershed Assessment. In May 2014 the OIG announced it would investigate whether the agency followed laws, regulations, policies and procedures when it developed the assessment. Collier indicated that a team of five EPA staff is working on the investigation.
Response to EPA’s Proposed Determination - A team of scientists and lawyers worked on PLP's response to EPA's Proposed Determination. Collier encouraged RDC attendees to respond as well.
Additional Plans - If none of these plans work, said Collier, he noted there are several more lined up to continue the fight, although he didn’t provide specifics.
Beyond Pebble? - Collier outlined what he said are EPA/environmental movement plans for “Zoning America,” with Pebble being the first step in the process. He noted tribes in Wisconsin and Michigan recently asked EPA to step in with 404(c) actions in their regions. "It lets EPA zone America for where mining should happen, where oil and gas exploration should happen - before anybody files a permit." He also referenced a comment from a friend who is a "giant in the environmental movement" who had said the country needs "broader watershed planning" rather than case-by-case decisions. "That's what the environmental community is up to. That's why they are doing this...It's already started. We're going to see this all over America and we are particularly going to see this in Alaska. And we've got to stop them."
Mount Polley - Collier also addressed the tailings dam breach in August at Mount Polley mine in British Columbia, Canada, calling it a disaster that would provide lessons for mining companies all over the world. He cautioned that it's too soon to draw any conclusions about the breach, which released billions of gallons of wastewater and slurry into the surrounding watershed. The Mount Polley Tailings Storage Facility (TSF) was not designed to contain the amount of water that had been added to it, said Collier. He explained that Pebble’s mine plan includes a wastewater treatment plant, which he said makes for an entirely different scenario. Collier said he anticipated an investigation on the breach to be complete before December.
Citing the time it would take to review thousands of public comments submitted in response to a Proposed Determination to restrict dredge/fill disposal in the Pebble deposit area of Bristol Bay, Alaska, the U.S. Environmental Protection Agency announced Thursday that it is extending the typical timeframe for the next stage in the 404(c) process initiated in February 2014.
Typically, once public hearings are complete, EPA has 30 days to either withdraw the Proposed Determination or finalize a Recommended Determination, which is then submitted to EPA headquarters in Washington, D.C., (see our chart of the entire 404(c) process).
According to EPA's announcement:
"EPA believes that more time is necessary to adequately review and consider the many thousands of comments we have received. In order to allow full consideration of the extensive administrative record, including public comments, we are extending the time period to withdraw the Proposed Determination or to prepare the Recommended Determination until no later than February 4, 2015."
The Environmental Protection Agency (EPA) has scheduled online presentations Tuesday and Wednesday, during which agency staff will provide an overview of the Proposed Determination on restrictions at the Pebble deposit area in Bristol Bay.
This event is an additional way of learning more about the document before the public input period ends on September 19.
For full details, visit EPA's Bristol Bay site.
About Pebble Watch
Pebble Watch is an impartial, educational and fact-based initiative of the BBNC Land Department to disseminate information regarding the proposed Pebble Mine project to BBNC shareholders and interested parties.