PLP vs. EPA: one case dismissed, the other rescheduled

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."

Read more

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)

About Section 404(c)

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