PLP vs. EPA: an update - Pebble Watch

Pebble Limited Partnership (PLP) continues its legal wrangling with the Environmental Protection Agency, hoping to invalidate the agency’s Bristol Bay Watershed Assessment and block its attempts to use Section 404(c) of the Clean Water Act to finalize protections related to large-scale mining at the Pebble deposit.

Litigation began in 2014, and has temporarily shut down the EPA’s 404(c) process.

Cost of the ongoing litigation is in the millions, with parent company Northern Dynasty Minerals (NDM) continuing to raise funds by acquiring junior mining companies with ready cash and releasing special warrants (to be converted to NDM shares). In a recent filing with Canadian Securities, NDM noted that it will “seek to source significant financing” due to the recent devaluation of the Canadian dollar, the fact the legal expenditures “may exceed current budget expectations,” and that the company need funds for engineering and technical expenses.

In January, NDM CEO Ron Thiessen spoke at an investor’s conference about the outlook for Pebble, saying that PLP has enough funds to continue its litigation against the EPA. He told the group he’s confident that the EPA issue will be resolved by the end of the year, leaving PLP free to initiate federal and state permitting.

PLP hopes to attract another partner, and Thiessen reported that major mining companies and Chinese investors are reviewing terabytes of documents the company has made available in an online data room.

However, EPA is also interested in PLP’s documents, and has requested Federal Judge H. Russel Holland to force the company to turn over those related to its mine plan, financials and more. This suggests that Thiessen’s anticipated resolution with the EPA may not be as speedy as predicted.

Legal cases in progress:

FOIA case – Current status: EPA providing more documents for judicial review

Under the Freedom of Information Act (FOIA), citizens may request access to federal documents, including emails. Agencies are allowed some exemptions under FOIA, and may release documents in full or in part, or withhold documents completely. In 2014, PLP filed a FOIA request with the EPA to access emails related to the 404(c) process. It later filed suit, alleging that EPA didn’t conduct a broad enough search of documents, and that it had withheld too many documents under the exemption rules. The EPA contended that it had properly processed the request.

In September 2015, Judge Holland found that the EPA’s search was broad enough. Regarding those emails held under exemption, the parties agreed that the EPA could submit 10% of those to Judge Holland, so that he could determine whether they were exempted appropriately. After further review of the documents it had withheld under the exemption, EPA released many in part or in full. This called into question whether it had properly withheld the documents in the first place. As a result, earlier this month Judge Holland ordered EPA to re-evaluate even more of its documents, and to provide 52 documents in full for his review.

FACA case – Current status: Discovery phase; PLP subpoenas EPA and others to gather more information. EPA requests information from PLP about investors and mine plan.

In this civil case, PLP alleges that EPA violated the Federal Advisory Committee Act (FACA) when determining whether it would initiate Section 404(c) of the Clean Water Act. In late 2014, Judge Holland ordered the EPA to temporarily halt any work on the 404(c) process. Later he dismissed part of the case, but allowed PLP to seek additional information through the discovery process.

Discovery: EPA has turned over more than 100,000 pages of records to PLP, which is working to gain access to additional documents and emails from the agency and others. In November, Judge Holland determined that the company’s initial attempts were too broad and that PLP should narrow its requests. (The company had issued around 60 subpoenas to groups and individuals.) The judge ruled that some third-party groups and individuals (like opposing environmental and fishing organizations) were not required to turn over records to PLP, as any information relevant to the case would be coming from the defendant, EPA. PLP withdrew many of its subpoena requests after that ruling, but has since issued subpoenas for others, including independent scientists whose work contributed to EPA’s Bristol Bay Watershed Assessment.

EPA is also asking Judge Holland to force PLP to provide documents of its own related to its investors, payments to pro-Pebble advocates, financial statements, its mine plan and business operations. PLP has contended that EPA’s actions have dramatically affected its financial position. EPA wants to prove that falling gold and copper prices were instead to blame.

EPA investigations – Two investigations into how the EPA developed its Bristol Bay Watershed Assessment concluded with differing outcomes. The Cohen report, commissioned by PLP, said that EPA’s actions weren’t fair to all stakeholders and the author recommended further inquiry. Another report conducted by EPA’s Office of Inspector General said there was no evidence of bias or wrongdoing, based on records it could obtain. Authors noted that their review was limited to available information and that two years’ worth of emails from a former EPA staffer involved in the development of the watershed assessment were not available. That staffer is scheduled to be deposed by PLP attorneys as part of the FACA case described above.

Read more:

EPA tries to extract wealth of documents from stalled Pebble mine – (Alaska Dispatch News, March 28, 2016)

“We’re on the cusp of a resolution” says Hunter Dickinson president of Pebble spat – (Engineering News, January 26, 2016)

www.sedar.com – Search “Northern Dynasty” to read official prospectus and financing documents.

Northern Dynasty’s Pebble on ‘cusp of resolution’ – (Northernminer.com, February, 2016)

Judge rules against Pebble’s efforts for records, testimony from activists– (Alaska Dispatch News, November 2015)

Northern Dynasty ramps up financing efforts to fund litigation, EPA investigations

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