EPA withdraws Proposed Determination

In February 2014, the U.S. EPA released a Proposed Determination outlining restrictions it recommended for large-scale mining at the Pebble deposit area in Bristol Bay. It followed a multi-year study of Bristol Bay watersheds that EPA determined would be impacted by such development. The document was welcomed by those opposed to development of the Pebble mine. It was also a thorn in the side of developers and investors – until last week.

EPA Region 10 Administrator Chris Hladick removed the ProposedDetermination after receiving a letter of direction from EPA General Counsel Matthew Leopold in June.

The Proposed Determination was one step in a process outlined under Clean Water Act 404(c). That section of the CWA gives the EPA authority to “veto” an essential 404 permit that developer Pebble Limited Partnership (PLP) needs from the U.S. Corps of Engineers (Corps) in order to develop the mine site. The Corps is currently considering PLP’s application for the key 404 permit and has taken public comment on a Draft Environmental Impact Statement required by the permitting process. An EPA “veto” of the Corps’ decision can take place before, during or after the permitting process. The decision by the Obama-era EPA to propose restrictions before developers had submitted a permit rankled many Alaskans – from resource development proponents to legislators – who saw it as a pre-emptive move designed to shut down the project before it got a fair chance. Others, particularly Bristol Bay residents, lauded it as a welcome response from an agency acting within its authority to protect Bristol Bay.

Lawsuits from developer Pebble Limited Partnership (PLP) quickly derailed the process of finalizing the Proposed Determination, and a May 2017 settlement between PLP and EPA stipulated that EPA would begin the process of removing it entirely.

That process culminated in last week’s 29-page notice from Hladick, which outlined the history of EPA’s 404(c) actions: the decision to propose a Proposed Determination, the proposal to withdraw the Proposed Determination, the suspension of the proposal to withdraw the Proposed Determination, and resuming consideration to withdraw the Proposed Determination. (Confused yet? See our timeline of EPA actions in Bristol Bay).

Hladick gave several reasons for removing the Proposed Determination at this time, including:

  • The 404(c) process is 5 years old and does not account for new information, such as PLP’s current mine plan and information considered during the 404 permit process. EPA expects more information to come available during this process and prefers any final 404(c) decision to be based on the “full record.”
  • The 404(q) process provides a mechanism for the EPA and Corps to resolve issues before “engaging in any possible future decision-making regarding its Section 404(c) authority.

Revoking the Proposed Determination now doesn’t mean the EPA can’t start the process again later. However, this “veto” authority has been used by EPA rarely. Former EPA Administrator Scott Pruitt even directed the agency’s Office of Water to recommend limiting this authority to a specific window of time in the permitting process.

As for the EPA’s continuing role in the Pebble permitting process, it states it will work with the Corps of Engineers to resolve any concerns it has. Those are considerable, as detailed in a July 1 letter and 109 pages of comments on the Corps’ Draft Environmental Impact Statement (DEIS). “The DEIS appears to lack critical information about the proposed project and mitigation, and there may be aspects of the environmental modeling and impact analysis which would benefit from being corrected, strengthened, or revised. Because of this, the DEIS likely underestimates impacts and risks to groundwater and surface water flows, water quality, wetlands, aquatic resources, and air quality from the Pebble Project.” The decision to revoke the Proposed Determination came just a few weeks after these comments, with the EPA pledging to continue its work as a cooperating agency to provide its expertise as the Corps writes the Final Environmental Impact Statement.

If there are issues the two agencies cannot resolve, according to Administrator Hladick, EPA’s Region 10 “can elevate to EPA Headquarters, which can decide whether to engage with the Department of the Army.”