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EPA Agrees to Allow Pebble Mine Permit Process to Proceed; Pebble Agrees to Drop Lawsuits


May 18, 2017
Thursday PM

(SitNews) Alaska - The U. S. Environmental Protection Agency entered into a settlement agreement with the Pebble Limited Partnership to resolve litigation from 2014 relating to EPA's prior work in the Bristol Bay watershed in Alaska.  The settlement provides the Pebble Limited Partnership (Pebble) an opportunity to apply for a Clean Water Act (CWA) permit from the U.S. Army Corps of Engineers before EPA may move forward with its CWA process to specify limits on the disposal of certain material in connection with the potential “Pebble Mine.”

In 2014, under the previous administration, EPA’s Region 10 completed a multi-year watershed assessment in Bristol Bay, and then issued a CWA Section 404(c) proposed determination, which described restrictions on large-scale mining in the watershed.  Section 404 is the part of the CWA that governs the permit evaluation process for actions that discharge dredged or fill material into a covered water.

Lake Clark Nation Park and Preserve
Photo Courtesy National Parks Conservation Association
Photo By Melissa Blair ©

The 2017 settlement comes on the heels of the new White House Administration and the appointment of a new EPA Administrator, Scott Pruitt. Regarding the settlement, Pruitt said, “We are committed to due process and the rule of law, and regulations that are 'regular'. We understand how much the community cares about this issue, with passionate advocates on all sides.  The agreement will not guarantee or prejudge a particular outcome, but will provide Pebble a fair process for their permit application and help steer EPA away from costly and time-consuming litigation. We are committed to listening to all voices as this process unfolds.”

The former EPA Administrator, Gina McCarthy, when releasing the Proposed Determination in 2014, stated: “The Bristol Bay fishery is an extraordinary resource, worthy of out-of-the-ordinary agency actions to protect it." At that time, after several visits to Bristol Bay and public hearings on the issue, EPA administration had determined that use of the 404(c) process was justified due to the unique nature of the fishery.

Regarding the settlement, Representative Bryce Edgmon (D-Dillingham) said in a prepared statement, "The settlement forces the EPA to back off from its finding under the Clean Water act that a mine would do severe damage to the Bristol Bay watershed, fish, and wildlife. The settlement also sets a deadline for the Pebble Limited Partnership to apply for permits to develop a large gold, copper, and molybdenum mine on state owned land north of Lake Iliamna in the Bristol Bay region."

“The new administration in Washington D.C. seems bound and determined to undermine all the good work of the EPA, the tribes, and the people of Bristol Bay to protect the pristine environment of the region and the largest sockeye salmon run on earth,” said Rep. Edgmon.

Edgman said, “The threat of pollution from the Pebble Mine is real, which is why the EPA imposed protections in the first place. My fear is that the fight to protect Bristol Bay will get caught up in some ill-advised national political agenda being pushed by President Trump and others in the new administration. Resource development should not be more important than protecting the environment and sustainable resources like the sockeye salmon that sustain the economy and the people I represent.” 

Jason Metrokin, CEO of Bristol Bay Native Corporation, issued a statement regarding the EPA’s announced settlement with Northern Dynasty Minerals related to the agency’s proposed determination for the Bristol Bay Watershed.

Metrokin said, “BBNC is very disappointed the EPA and the Trump Administration have decided to withdraw the agency’s prior actions that sought to protect Bristol Bay from the proposed Pebble mine. Pebble mine will risk thousands of long-held American jobs and Bristol Bay’s sustainable wild salmon fishery for the benefit of a foreign mining company.  For this reason, BBNC and the vast majority of the people of Bristol Bay oppose the mine as proposed.  Despite Northern Dynasty Minerals’ claims to the contrary, EPA’s Proposed Determination does not prevent the company from moving forward with permitting. Today’s court filing calls into question how serious the EPA is about following its mission and fulfilling the purposes of the Clean Water Act."

“[Friday's] actions are also far from the end of the story for the proposed Determination. There will be a formal process before EPA can unwind its proposal and BBNC and the people of Bristol Bay will make our voices heard during this process. We appreciate that President Trump left Bristol Bay out of his recent offshore drilling executive, and the administration should stand by its stated deference to the views of local people and heed our call that the proposed Pebble mine has no place in Bristol Bay," said Metrokin.

“Further," said Metrokin, "should Pebble finally decide to move forward with permitting after over a decade of failed promises to do so, we call on our Congressional delegation and state leaders to strongly support a robust state and federal permitting process for Pebble Mine that does not cut any corners. This process should rely on science, including the numerous studies that are the basis for the Bristol Bay Watershed Assessment."

“We have never doubted that science and the facts will be on our side. But we have been concerned that a final decision on Pebble will be made based on considerations other than science and what’s best for Bristol Bay, its people, economy and way-of-life. Today’s court filing reinvigorates the fears that led us and others to petition the federal government seven years ago." said Metrokin.

Metrokin said, “Irrespective of [Friday's] settlement, nothing about the proposed Pebble mine has changed. It is still the wrong mine, in the wrong place as the late Senator Ted Stevens said many years ago. BBNC’s opposition to the mine remains steadfast, and the resolve of the people of Bristol Bay is not and will not be deterred.”

Pebble Mine, an Alaska gold and copper mine is proposed for the Bristol Bay region, just 15 miles from the boundary to Lake Clark National Park and Preserve. The Bristol Bay watershed supports the world’s largest sockeye salmon fishery.

The proposed Pebble Mine in the Bristol Bay watershed could cover an area larger than Manhattan. Billed as the largest open pit gold and copper mine in North America, its waste would fill a major football stadium up to 3,900 times. Polls show that the majority of Alaskans oppose the Pebble Mine.

Lake Clark National Park and Preserve was created in 1980 to protect a portion of Bristol Bay’s one-of-a-kind ecosystem and the local, traditional subsistence lifestyles so closely tied to wild salmon.

In a prepared statement, Jim Adams, Alaska Regional Director for National Parks Conservation Association said, "“National Parks Conservation Association is deeply concerned by the EPA’s action to allow the Pebble Mine proposal to advance. In its previous science-backed analysis, the EPA noted the Pebble Mine would ‘cause irreversible damage to one of the world’s last intact salmon ecosystems."

Adams said, “In the settlement announcement, EPA Administrator Scott Pruitt commented that the agency is committed to ‘regulations that are ‘regular’. What is regular about sacrificing the world’s largest sockeye salmon fishery for the benefit of foreign-backed mining corporations?" 

“Our members of Congress designated Lake Clark National Park and Preserve to protect a portion of the Bristol Bay ecosystem’s health and productivity. However, such protections could be compromised by mining activity upstream and near the park’s boundary. NPCA believes such threats to wild salmon and the people and wildlife who depend on them do not belong in the headwaters of Bristol Bay and upstream of our national park,” said Adams.

Key Terms of the Settlement:

  • Pebble and the U.S. Department of Justice (on behalf of the EPA) will ask the U.S. District Court for the District of Alaska to dismiss the cases with prejudice and to lift the court-ordered preliminary injunction.
  • EPA agrees to commence a process to propose to withdraw the currently pending proposed determination, consistent with its regulations.
  • EPA agrees that it will not move to the next step in its CWA process, which would be to issue a recommended determination (determination steps are: proposed, recommended, final), until 48 months from settlement or until the U.S. Army Corps of Engineers issues its final environmental impact statement, whichever comes first.  To take advantage of this period of forbearance, Pebble would have to file its permit application within 30 months.
  • Pebble will drop its lawsuits and requests for fees against EPA, and agree to file no new Freedom of Information Act (FOIA) requests during the pendency of the "forbearance" period.
  • EPA may use its scientific assessment regarding the Bristol Bay Watershed without limitation.

Under the terms of the settlement agreement, EPA has agreed the Pebble Project can proceed into normal course permitting under the Clean Water Act and National Environmental Policy Act. In particular, EPA has agreed it will not file a Recommended Determination under CWA 404(c) until a final Environmental Impact Statement ("EIS") for the Pebble Project has been completed by the US Army Corps of Engineers -- so long as that occurs within a period of four years following the settlement agreement and the Alaska-based Pebble Limited Partnership files permit applications within 30 months of the date of the settlement agreement. EPA has further agreed to initiate a process to propose to withdraw the Proposed Determination it issued under CWA 404(c) in July 2014. In return, the Pebble Partnership has agreed to terminate permanently and with prejudice two lawsuits it brought against EPA: an action under the Federal Advisory Committee Act and an action under the Freedom of Information Act.

"From the outset of this unfortunate saga, we've asked for nothing more than fairness and due process under the law -- the right to propose a development plan for Pebble and have it assessed against the robust environmental regulations and rigorous permitting requirements enforced in Alaska and the United States," said Ron Thiessen, President & CEO. "Today's settlement gives us precisely that, the same treatment every developer and investor in a stable, first world country should expect."

"The Pebble Partnership will advance a progressive mine plan, including mitigation, to be assessed by objective, expert regulators at the US Army Corps of Engineers and a raft of other federal and state agencies -- including EPA", Thiessen said.

Thiessen said, "Not only are we no longer facing extraordinary development restrictions at Pebble, we will also be assured a fair and predictable permitting review of our proposed development plan. The Corps-led EIS will be prepared by independent, third party experts to ensure that decisions are based on objective science, and that public and stakeholder participation is comprehensive and meaningful."

Thiessen said the Pebble Partnership has been advancing planning for a smaller project design at Pebble than previously considered, and one that incorporates significant environmental safeguards.

"It will be a busy and exciting year for Pebble and Alaska," confirmed Pebble Partnership CEO Tom Collier. "Not only will we be rolling out a project that is smaller, with demonstrable environmental protections, we will also be announcing a number of new initiatives to ensure our project is more responsive to the priorities and concerns of Alaskans.

Collier said, "We know the Pebble Project must not only protect the world-class fisheries of Bristol Bay, it must also benefit the people of the region and the state in a meaningful way. It is our intent to demonstrate how we will meet those goals in the period ahead."

Collier said a return to an objective, science-based and predictable permitting process at Pebble will bode well for future resource investment in Alaska and the US.

"Resource investors do not have an expectation that we will always receive development permits or always receive them on the terms we would prefer, but we do have an expectation of fair treatment under the law, and that science, not politics, should guide permitting decisions," Collier said.

The May 11, 2017 settlement does not guarantee or prejudge any particular outcome to this process, but the EPA said in a news release it does ensure that the process will be carried out in a fair, transparent, deliberate, and regular way.

The settlement of the lawsuit requires the Pebble Limited Partnership to file its permit application within 30 months and allows the EPA to use the data collected in its Bristol Bay Watershed Assessment to inform permitting decisions. 


Reporting and Editing by Mary Kauffman, SitNews



Source of News:

U. S. Environmental Protection Agency

Office of Governor Bill Walker

Bristol Bay Native Corporation

Northern Dynasty: Pebble Partnership

National Parks Conservation Association



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