2014

31 May 2014

Begich visits Dillingham

11 a.m. to 1 p.m.

Alaska Senator Mark Begich will be in Dillingham for the opening of his Dillingham Field Office at the Sifsof building. Begich is the only member of the Alaska congressional delegation to take a stance on the proposed Pebble mine. In January 2014 Begich said that Pebble was the "wrong mine, wrong place, too big." 

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30 May 2014

Murkowski gets earful on EPA, Pebble at Dillingham meeting

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In a "town hall meeting" with Senator Lisa Murkowski in Dillingham Thursday, attendees expressed disappointment over her support of Senate Bill 2156, which would limit EPA's use of the Clean Water Act's 404(c) provision, and asked her to protect the region and its way of life.

According to observers who attended from Bristol Bay Native Corporation (BBNC), more than 250 people filled the Dillingham Elementary School gym, with time given to 22 of the 75 who signed up to comment.

Commenters reminded Murkowski that it was people from the region who asked the federal government to step in to help protect Bristol Bay. In 2010, several tribes and BBNC petitioned EPA to use its 404(c) authority to limit or restrict development at the Pebble deposit.

Part C of Section 404 authorizes the EPA to withdraw, deny, prohibit or restrict areas to discharge – before or after a permit has been submitted – if it determines that a discharge of fill would result in a "significant loss or damage to fisheries, shellfishing, or wildlife habitat or recreation areas." The authority, rarely used, has been previously upheld by courts.

However, now that the agency has started this process related to the Pebble deposit, Murkowski and others are crying foul, describing EPA's action in terms such as "federal overreach" and "abuse of power."

At the town hall, Murkowski explained her co-sponsorship of SB 2156, the "Regulatory Fairness Act," by saying she is determined to push for a fair process for developers. On Murkowski's Senate website and elsewhere, the Senator has framed the issue of 404(c) as one of fairness, representing the bill as a way to push back against an EPA "seeking to dramatically expand its authority." In fact, EPA's ability to use 404(c) before or after permitting is nothing new; although the authority is rarely used, it has been written into the Clean Water Act since its inception.

In Dillingham, Murkowski defended the proposed legislation, saying it would not take away EPA's authority to enact 404(c) limits during a typical permitting process, during which a mine plan would be presented. Bristol Bay Native Corporation Chairman Joseph Chythlook responded that residents had been waiting for years to see such a mine plan. "PLP keeps telling us they intend to file a mining plan," he said. "We have been waiting for 10 years – and they continue to manipulate public opinion, media and now the courts."

Murkowski, while staunchly against the EPA's use of 404(c) before or after the permitting process, has also taken developers to task on their delay in submitting a mine plan. In July 2013, she wrote a strongly-worded letter to Northern Dynasty Minerals, Anglo American and the Pebble Limited Partnership stating the effect that such a delay has on the people of Bristol Bay. 

Chythlook further reminded Murkowski of Pebble Partnership's promise to Bristol Bay not to develop if the mine was unwanted; instead, he said, they filed a lawsuit. Addressing Murkowski directly, he said: "You have heard from us tonight. We want to hear from you that you will help us protect our fisheries and way and life. That is all we asking, and we hope you hear us."

Murkowski continues her visit with Bristol Bay residents today, with stops in Togiak and New Stuyahok. She is next up for reelection in 2016.

Learn more
Clean Water Act 404(c)
SB 2156

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27 May 2014

Spring 2014 News Roundup: EPA watershed assessment, PLP suit

In the last few months, most news related to development of the Pebble mine has revolved around the EPA, its 404(c) action and response from Pebble Limited Partnership (PLP). Here's a quick summary of the major events, along with some of the news stories about them.

404(c) process begins

On February 28, EPA announces its intent to begin the 404(c) process under the Clean Water Act to limit or restrict development at the Pebble deposit in Bristol Bay, based on the results of the Bristol Bay Watershed Assessment.

Leaders, stakeholders react after EPA's Pebble mine announcement (Alaska Dispatch) 

EPA tells miners to keep out of Alaska's Bristol Bay and they aren't buying it (Business Week online)

Senators seek to limit EPA authority

On March 25, Senators David Vitter (R-LA) and Joe Manchin (D-WV) introduce Senate Bill 2156, the "Regulatory Fairness Act," which would change the language of the Clean Water Act by limiting the timeframe in which EPA could pursue the 404(c) process. Alaska Senator Lisa Murkowski signs on as a co-sponsor.

PLP argues against 404(c) process and Watershed Assessment

On April 29, PLP responds to EPA at the end of the 404(c) "Consultation Period" with a 60-page document arguing that the process is flawed and should be abandoned.

Internal investigation launched into Watershed Assessment process 

On May 2, EPA's Office of Inspector General launches an internal investigation to determine whether the agency followed the proper procedures when developing the Bristol Bay Watershed Assessment.

Inspector General to probe EPA's 'preemptive veto' on Pebble (Mineweb.com)

EPA watchdog reviewing agency's work on Bristol Bay and Pebble mine (Anchorage Daily News)

Pebble cites EPA emails in claim assessment was biased (Alaska Journal of Commerce)

PLP files suit against EPA

On May 22, PLP files a civil suit in the U.S. District Court for Alaska against EPA and Dennis McClerran, Region 10 supervisor, for "violating federal law," and asks for an injunction against EPA for its use of the 404(c) process.

Pebble sues EPA over attempt to veto mine (Alaska Journal)

Mine Lawsuit - EPA authority under Clean Water Act challenged (The Cordova Times)

Mining News: Watchdog, court eyes alleged misconduct (North of 60 Mining News)

 

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23 May 2014

Pebble asks for injunction to stop EPA's 404(c) process

The Pebble Limited Partnership (PLP) announced Thursday it has filed a request for an injunction against the U.S. Environmental Protection Agency (EPA) for its use of the 404(c) process to seek limitations or restrictions on development in the Pebble deposit area of Bristol Bay. PLP filed its civil suit Wednesday in the U.S. District Court for Alaska against the EPA and Dennis McClerran, Region 10 supervisor, for "violating federal law."

Earlier this month, in an interview with KDLG radio, PLP CEO Tom Collier indicated the developer was ready to litigate over EPA's 404(c) action. 

Collier stated in a press release that the EPA had "repeatedly ignored detailed comments" the developer had made regarding EPA's actions and that the lawsuit was necessary in order to "get the Agency's attention."

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PLP press release

PLP legal filing

PLP interview with KDLG radio

 

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21 May 2014

Pebble CEO says mine plan ready, waiting for a partner

Following are some highlights from a recent interview between Dillingham's KDLG radio and Pebble Limited Partnership CEO Tom Collier, who spoke about EPA, PLP's plans for future and the search for a new investor. The interview is about 50 minutes long.

Mine plan/permitting status: A mine plan is ready, but any new partner would want to review and modify it, so PLP will wait to submit any permitting documents until a new investor is found.

Search for a new investor: PLP is in discussion with "a handful of major mining companies."

EPA's 404(c) process: Northern Dynasty Minerals has submitted several legal, policy, and scientific arguments against EPA's process; PLP is "ready to litigate" if 404(c) is used to block development.

Watershed Assessment: Based on documents authored by mine opponents, PLP believes the study findings were pre-determined.

EPA investigation: PLP has called for EPA to investigate the Watershed Assessment/404(c) process. PLP says documents and emails show clearly the agency set out to veto the development before the study began.

Choice between mining & fish?: If there is a choice between mining and fish, said Collier, fish win. However, he believes that the technology exists to mine without substantial risk.

"It's not science, it's data." Regarding the studies that have already been conducted in support of the permitting process, Collier said there's a "big difference" between science and data. He said PLP is "just counting fish" – that the studies are a collection of data that is verifiable.

Listen to the full interview.

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20 May 2014

Watershed Assessment process under investigation

EPA's Office of Inspector General (OIG) announced it is conducting preliminary research to determine whether the agency followed laws, regulations, policies and procedures when it developed the Bristol Bay Watershed Assessment. The internal investigation was initiated after congressional requests and hotline complaints.

The Office of Inspector General has requested a list of all EPA personnel involved in development of the Watershed Assessment, stakeholders EPA interacted with before and during the course of the assessment, a timeline of activities EPA performed to conduct and complete the assessment, and an accounting of all costs associated with development of the assessment.

Read the Inspector General's letter

Read news reports:
Inspector General to probe EPA's 'preemptive veto' on Pebble (Mineweb.com)

EPA watchdog reviewing agency's work on Bristol Bay and Pebble mine (Anchorage Daily News)

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19 May 2014

Pebble calls for EPA to halt its 404(c) action

The end of EPA's "Consultation Period," the first step of the federal agency's 404(c) process to consider protections for Bristol Bay, brought a strongly worded response from Pebble Limited Partnership (PLP).

Documents submitted to EPA and released to the public April 29 state PLP's case against the actions, saying that EPA should wait on any 404(c) process until the typical permitting process has taken place.

PLP's objections include legal, policy and scientific arguments, led by the assertion that 404(c) actually does not give EPA authority to issue a pre-emptive veto.

PLP's other arguments include:

  • Under Alaska's Statehood Act and ANILCA, the land in question was set aside for mineral exploration, and EPA cannot withdraw this land.
  • EPA's actions avoid the rigor of a comprehensive Environmental Impact Statement (EIS), which is the way to resolve difficult scientific disputes.
  • Allowing EPA to veto the project before permits are filed will have a chilling effect on investment, such as the $700 million invested in Pebble to date by foreign companies.
  • EPA manipulated the science of the Watershed Assessment to support a particular outcome. (Since the release of PLP's letter, the EPA's Office of Inspector General has begun preliminary research to determine whether the agency followed laws, regulations, policies and procedures in developing the assessment.)

In February, EPA announced its intention to use its authority under Section 404(c) to protect the salmon fishery in Bristol Bay "from the potentially destructive impacts of the proposed Pebble Mine." The Consultation Period, typically 30 days, is a time during which developers can provide additional information to EPA to prove that there will be no unacceptable adverse affects to the area.

EPA is currently working on the next step, which is a document called the "Proposed Determination." This document will provide EPA's recommendations on how protections should be put into place. This could include limiting development in the Pebble mine area or restricting it from development altogether.

The Proposed Determination is expected to be released in early summer. After it is published, it will be open to the public for review, comment, and public hearings.

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28 April 2014

Regulatory push aims to reel in EPA authority

The Environmental Protection Agency's decision to retroactively withdraw a permit in West Virginia could end up having repercussions in Alaska, as some in Congress now seek to change the 42-year-old Clean Water Act that gave EPA the right to do so -- and which they say has given the agency too much authority.

In February, the U.S. Environmental Protection Agency initiated a 404(c) process under the Clean Water Act seeking to limit or restrict development at the Pebble deposit in Bristol Bay. While the process is underway, no permits can be issued for the proposed Pebble mine. The Clean Water Act is clear that EPA has authority to step in with 404(c) action at any time: before, during or even after the permitting process, "whenever it determines...that use of such sites for disposal would have an unacceptable adverse impact on one or more of various resources, including fisheries, wildlife, municipal water supplies, or recreational areas."

But when, in 2011, EPA exercised this authority to revoke a Section 404 permit that had been issued to a coal company four years earlier, the action spurred Senators David Vitter (R-LA) and Joe Manchin (D-WV) to try and change the language of the Clean Water Act. They want to limit the timeframe during which the agency can pursue 404(c) action. In a letter sent to EPA, Vitter and Manchin referenced the case of the Mingo Logan Coal Company, which had received a Section 404 permit in 2007, only to have it revoked by EPA in 2011 after a 404(c) process.  

In March 2014, Vitter and Manchin introduced Senate Bill 2156, also called the "Regulatory Fairness Act," which would prohibit EPA from "preemptive or retroactively vetoing a permit under Section 404 of the Act." Manchin said "it is simply common sense to allow companies that already have been granted permits to continue the work they have started," while Vitter said that the legislation is "necessary to protect the system and distinctly state what the EPA can and cannot do." Senators Lisa Murkowski (R-AK), Mitch McConnell (R-KY) and James Risch (R-ID) have since signed on as co-sponsors.

In Alaska, the Regulatory Fairness Act could have an impact on the 404(c) process that is currently underway in the Bristol Bay area. EPA's action in this case began before Pebble mine developers submitted a mine plan or permit application. EPA's actions were a topic of discussion at the recent Alaska Miners Assocation annual meeting in Fairbanks, according to this article from Petroleum News.

This story from KTUU gives an overview of SB 2156, including comments from Senator Murkowski and Bristol Bay business owner Brian Kraft.

This Cordova Times article details some of the opposition the legislation faces from local sportsman groups.

Learn More

"Regulatory Fairness Act of 2014" full text

More about 404(c)

The 404(c) process

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07 April 2014

Pebble investor divests, donates shares

Mining giant Rio Tinto has donated its 19.1 percent share in Canadian-based Northern Dynasty Minerals to two Alaska groups: the Alaska Community Foundation and the Bristol Bay Native Corporation Education Foundation. In December 2013, Rio Tinto announced a strategic review of its investment in Northern Dynasty, after pressure to divest came from administrators of two large pension funds in California and New York City that have substantial shares in Rio Tinto.

Rio Tinto's share of Northern Dynasty will be divided equally between the two charities, representing the first time local organizations have held any financial interest in the Pebble prospect. Chief executive Jean-Sebastien Jacques stated that giving the shares ensured that "Alaskans will have a say in Pebble's future development, and that any economic benefit supports Alaska's ability to attract investment that creates jobs."

How this ownership interest will affect development of the proposed Pebble mine is yet to be understood. Northern Dynasty Minerals CEO Ron Thiessen said in a press release that he looks forward to meeting the leadership of the two groups to "better understand their long-term goals and aspirations, and how their ownership interest in Northern Dynasty and the Pebble Project can make the greatest possible contribution to the people and communities they serve."

The Alaska Community Foundation mission is to "cultivate, celebrate and sustain all forms of philanthropy to strengthen Alaska's communities forever." Since 2008, it has administered the Pebble Fund, a grant-funded initiative by the Pebble Limited Partnership to invest up to $5 million toward programs that would "enhance the health of Bristol Bay fisheries and contribute to a sustainable economic future in southwest Alaska."

Bristol Bay Native Corporation Education Foundation is a nonprofit organization providing higher and vocational education scholarships to shareholders of Bristol Bay Native Corporation (BBNC) as part of its mission to "provide support for an encourage shareholders to pursue educational opportunities and to promote and preserve cultural heritage." The Education Foundation is organizationally separate from BBNC, which has a stated position opposing the development of Pebble mine.

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Rio Tinto press release

Northern Dynasty Minerals press release

Rio Tinto donates Pebble shares (Bristol Bay Times, April 11, 2014)

Powerful funds urge Rio Tinto to cut and run from Pebble (Alaska Dispatch, December 20, 2013)

Following lead of Anglo-American, Rio Tinto leaves Pebble project (Alaska Dispatch, April 7, 2014)

 

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25 March 2014

About Section 404(c)

Current Status

The public comment period for EPA's Proposed Determination ended September 19, 2014, after which EPA began reviewing hundreds of thousands of public comments. However, in November 2014, U.S. District Court Judge H. Russel Holland granted a preliminary injunction, ordering EPA to stop work on activities related to the 404(c) process until he is able to hear the merits of a civil suit brought by the Pebble Limited Partnership.  The Judge's ruling delays EPA's work until late spring or early summer 2015.

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About Section 404(c)

Section 404(c) is part of the Clean Water Act (CWA), legislation passed in 1972 that aims to maintain or restore the integrity of the nation’s waters, including its wetlands. Section 404 of the CWA regulates dredge and fill materials entering wetlands, streams or other waters. Under Section 404, the U.S. Army Corps of Engineers issues permits for activities that would place fill in wetlands. The permitting process, overseen by EPA, requires that projects show they can take appropriate steps to avoid, minimize, and offset adverse impacts.

Part C of Section 404 authorizes the EPA to withdraw, deny, prohibit or restrict those areas to discharge – before or after a permit has been submitted – if it determines that a discharge of fill would results in a "significant loss or damage to fisheries, shellifishing, or wildlife habitat or recreation areas."

Use of Section 404(c) in Bristol Bay

In February 2014, EPA announced its intention to use its authority under Section 404(c) to protect the salmon fishery in Bristol Bay "from the potentially destructive impacts of the proposed Pebble Mine."

Steps taken in Section 404(c) process to date

Consultation PeriodThe first part of the 404(c) process, the "Consultation Period," ended April 29, 2014. The Consultation Period is a time during which developers can provide additional information to EPA for its consideration. Northern Dynasty Minerals submitted the following documents, which state a case against the 404(c) process altogether.

Development of Proposed DeterminationEPA prepared a 214-page document that includes sections on the region's ecological resources, basis for the proposed determination and the proposed restrictions. Dozens of reference materials are cited.

Release of Proposed DeterminationEPA released the Proposed Determination on July 18, 2014, detailing retrictions it is proposing for disposal of dredge and fill in the area near the Pebble deposit. The agency stated that it based these recommendations on a "conservative analysis" of potential risks of adverse effects (it did not include potentail risk due to accidents or for a mine operating longer than 20 years).

Public Comment PeriodThe Proposed Determination was open to public comment from July 18 to September 19, 2014. The agency says all comments will be thoroughly reviewed and considered. 

Public Meetings Public meetings were held the week of August 12-15, 2014 in Anchorage, New Stuyahok, Nondalton, Kokhanok, Dillingham, Iliamna and Igiugig. Around 300 people provided testimony in person.

Next steps

  • Recommended Determination. The EPA Regional Administrator reviews public comments and then decides to withdraw the Proposed Determination or prepare a Recommended Determination and forward it to EPA headquarters for review. The EPA had set February 4, 2015 as the deadline for this stage of 404(c) action, but a federal preliminary injunction has delayed EPA's work on all 404(c) activity.
  • Final Determination. If a Recommended Determination is submitted to EPA headquarters, the agency acts within 60 days to modify, rescind or approved it. This decision is published as the Final Determination.

 

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Details

Pebble Watch Overview of Proposed Determination - Highlights, chapter guide, terminology and a timeline of the 404(c) process.

U.S. EPA Website: Clean Water Act Section 404(c): "Restriction of Disposal Sites"

U.S. EPA Proposed Determination: Executive SummaryFull version

Pebble Watch Guide to the EPA and Bristol Bay: Read online • Download PDF (March 2014)

Pebble Watch Guide to the 404(c) process (March 2014)


Correspondence

EPA letter announcing 404(c) action (February 28, 2014)

EPA Notification of extension: Response to State of Alaska • Response to Pebble Limited Partnership (both March 13, 2014)

Northern Dynasty response to EPA • As announced on Pebble Partnership site (April 29-30, 2014)


Bristol Bay Watershed Assessment

On U.S. EPA's "Bristol Bay" pages, learn more about the Watershed Assessment, the document that informed EPA's decision to initiate the 404(c) process.

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