12/15/2017 - Regulatory Rollback

Bristol Bay Pebble Deposit Mine

by Caitlin McCoy, Laura Bloomer

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Bristol Bay watershed, located in southwestern Alaska, is home to some of the world’s largest runs of wild salmon, including the world’s largest sockeye salmon run. The watershed’s aquatic habitats support sport and commercial fishing, providing significant economic benefits and employment opportunities to the region. In addition, many Alaska Natives live near Bristol Bay and rely on its natural resources to maintain a subsistence-based lifestyle.

The Pebble deposit, which contains large amounts of copper, gold, and molybdenum, is located within the watershed. Pebble Limited Partnership has proposed plans to build a large open pit mine at the Pebble deposit. Mining the Pebble deposit could result in discharges polluting the Bristol Bay watershed, including the same streams and wetlands that support salmon and other species.

In 2014, EPA proposed restricting the usage of certain waters as disposal sites for mining activities “…because of the high ecological and economic value of the Bristol Bay watershed and the assessed unacceptable environmental effects that would result from such mining.” EPA still has not finalized a determination that would restrict disposal sites available for use by the mining project.

Current Status

Feb. 20, 2019 The Corps releases the Draft Environmental Impact Statement for the proposed Pebble deposit surface mine. Industry responds positively to the Draft Environmental Impact Statement, whereas project opponents allege that it does not sufficiently consider the full scope of likely environmental impacts.

Feb. 22, 2019 Pedro Bay Corporation, a local Alaska Native Village Corporation, issues a press release stating that two of the three alternatives included in the Draft Environmental Impact Statement require the use of approximately 800 acres of land owned by Pedro Bay Corporation. The corporation’s board of directors has twice voted against granting Pebble Limited Partnership access to its land.

July 30, 2019 EPA withdraws the proposed July 2014 “veto” that would have rejected the Pebble mine under §404(c) of the Clean Water Act. The Pebble mine will now undergo the standard permitting procedure.

History

Northern Dynasty Minerals Ltd., Pebble Limited Partnership’s parent company, purchased the mineral rights of and began exploring the Pebble deposit in the early 2000s.

May 21, 2010 EPA Region 10 (Pacific Northwest) receives a petition from six tribal governments to initiate the process of preemptively protecting the Bristol Bay watershed from adverse effects of potential mining activities. This petition comes while EPA is already considering options to protect Bristol Bay.

Feb. 7, 2011 The EPA Regional Administrator announces that EPA will conduct an ecological risk assessment of the Bristol Bay watershed, which ultimately involves three years of research and review. Later that month, Northern Dynasty releases the preliminary assessment and details of the Pebble deposit mining project through press releases and filings with the Securities and Exchange Commission.

May 18, 2012 draft report of the ecological assessment is announced, and EPA requested public comments on the report. In early August of 2012, EPA convenes a panel of experts to conduct an independent peer review of the draft report.

April 30, 2013 EPA releases the second draft assessment for public review and comment, following the peer review report.

Jan. 15, 2014 EPA Region 10 releases the final report, An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska. The authors conclude that mining activities “would likely cause irreversible loss of significant reaches of streams that support salmon and other important species.”

Feb. 28, 2014 EPA Region 10 sends a consultation letter to Pebble Limited Partnership, Alaska Department of Natural Resources, and the U.S. Army Corps of Engineers announcing its decision to “review potential adverse environmental effects of discharges of dredged and fill material associated with mining in the Pebble deposit.” This initial consultation is the first step in proposing a determination to protect the Bristol Bay watershed. It gives the recipients an opportunity to respond with information demonstrating that no unacceptable adverse effects would occur.

May 21, 2014 Pebble Limited Partnership files a lawsuit in the District Court of Alaska challenging EPA’s authority to initiate the determination process before Pebble Limited Partnership applied for a mining discharge permit. Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00097.

July 21, 2014 EPA Region 10 publishes a proposed determination for review and public hearings. The determination would restrict the use of certain waters as disposal sites for the mine. This is the second step of the determination process.

Sep. 3, 2014 Pebble Limited Partnership files a second lawsuit in the District Court of Alaska (Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00171), alleging that EPA violated the Federal Advisory Committee Act (FACA) when developing the ecological assessment for Bristol Bay.

Sep. 19, 2014 EPA publishes a Notice of Extension for the Proposed Determination, allowing the Regional Administrator to postpone a decision on whether to withdraw the determination or to prepare a recommended determination for the EPA Administrator. This decision would have been the third step in the determination process.

Sep. 26, 2014 The court dismisses the May 21, 2014 case challenging EPA’s authority to initiate the determination process (No. –00097). The court found that EPA’s consultation letter could not be challenged and reviewed under the Administrative Procedure Act.

Oct. 14, 2014 Pebble Limited Partnership files a third lawsuit in the District Court of Alaska against EPA regarding EPA’s response to Pebble Limited Partnership’s request for documents under the Freedom of Information Act (FOIA). Pebble Ltd. P’ship v. EPA, No. 3:14-cv-00199.

Nov. 25, 2014 The court grants a preliminary injunction in No.-00171. This injunction restricts EPA from taking any further action in the determination process until the court makes a final ruling in the case.

May 28, 2015 The Ninth Circuit Court of Appeals upholds the District Court’s dismissal of the case regarding EPA’s authority to initiate the determination process (No.00097).

June 4, 2015 The district court dismisses certain portions of Pebble Limited Partnership’s complaint in No.-00171, limiting the scope of the case.

Aug. 24, 2015 The district court grants partial summary judgment to EPA in No.- 00199, leaving only one part of the FOIA request unresolved.

Jan. 12, 2016 The District Court of Alaska rules in favor of Pebble Limited Partnership in the FOIA lawsuit and orders EPA to reevaluate the documents it withheld from Pebble Limited Partnership (No.- 00199). In the same decision, the court rules that EPA did not have to produce certain documents relevant to the FACA case (No.-00171).

June 14, 2016 The court reviews EPA’s actions under the Jan. 12, 2016 order to reevaluate its FOIA response (No.-00199). The court resolves all claims by ordering EPA to release additional documents to Pebble Limited Partnership. Final judgment is entered on June 28, 2016 following EPA’s compliance with the order.

Jan. 4, 2017 In response to a joint motion by Pebble Limited Partnership and EPA, the court grants a temporary stay in the FACA case (No.-00171). This stay puts the case on hold while Pebble Limited Partnership and EPA explore ways to settle the case outside of litigation.

Trump Era

May 12, 2017 EPA enters into a settlement agreement with Pebble Limited Partnership to resolve the three court cases. The settlement agreement requires that EPA begin the process of withdrawing the proposed determination and that Pebble Limited Partnership files a Clean Water Act permit application for the Pebble deposit within 30 months.

July 19, 2017 EPA publishes a plan to withdraw the proposed determination and a request for comments and review. Since this withdrawal would be completed by the Regional Administrator, EPA also seeks comment on whether the EPA Administrator should review the Regional Administrator’s withdrawal decision.

Oct. 17, 2017 The comment period for the notice to withdraw is closed.

Aug. 31, 2018 The Corps publishes the Environmental Impact Statement Scoping Report, which summarizes the comments received and will be used as the agency develops the environmental impact statement.

Jan. 5, 2018 The U.S. Army Corps of Engineers announces it has accepted an application from Pebble Limited Partnership for a proposed mining operation and that an “environmental impact statement level of analysis will be required.”

Jan. 26, 2018 EPA reverses course and announces it will not withdraw the proposed determination, with Administrator Pruitt saying “any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

March 29, 2018 The Corps publishes a Notice of Intent to prepare a Draft Environmental Impact Statement for the Pebble proposal. Environmental groups accuse the Corps of fast-tracking the process, based on an unusually low number of public hearings, a truncated timeline, and other factors. The Notice is open for public comment until June 29, 2018.

Feb. 20, 2019 The Corps releases the Draft Environmental Impact Statement for the proposed Pebble deposit surface mine. Comments may be submitted online from March 1 to May 31, 2019. Industry responds positively to the Draft Environmental Impact Statement, whereas project opponents allege that it does not sufficiently consider the full scope of likely environmental impacts.

Feb. 22, 2019 Pedro Bay Corporation, a local Alaska Native Village Corporation, issues a press release stating that two of the three alternatives included in the Draft Environmental Impact Statement require the use of approximately 800 acres of land owned by Pedro Bay Corporation. The corporation’s board of directors has twice voted against granting Pebble Limited Partnership access to its land.

March 20, 2019 EPA Administrator Andrew Wheeler recuses himself from matters related to the Pebble project. Separately, the Corps states that it has not received a compelling reason to extend the 90-day comment period on the draft environmental impact statement. Members of the Alaska State House of Representatives have submitted a letter to the Corps requesting an extension, and the Alaska State Senate Majority has sent a letter opposing an extension.

May 3, 2019 The Army Corps of Engineers extends the comment period by 30 days for the Draft Environmental Impact Statement. Comments may be submitted online up to the new deadline of June 29, 2019. 

June 11, 2019 Fifty-four House Democrats send a letter to the U.S. Army Corps of Engineers urging the Corps to deny the permit for the mine.

June 20, 2019 The House of Representatives approves an amendment to the Energy and Water Appropriations Act to block funding to the U.S. Army Corps of Engineers to finalize its Environmental Impact Statement for the mine. This amendment, if signed into law, would block funding for the full fiscal year 2020.

June 26, 2019 EPA General Counsel orders the Region 10 Administrator to resume consideration of whether to withdraw the 2014 proposed determination that would restrict the use of certain waters as disposal sites for the mine. EPA began the withdrawal process in July 2017, but then reversed course in January 2018 leaving the proposed determination in place. The General Counsel has authority over the matter because EPA Administrator Andrew Wheeler and agency water chief David Ross each have conflicts of interest in the matter.

July 30, 2019 EPA withdraws the proposed July 2014 “veto” that would have rejected the Pebble mine under §404(c) of the Clean Water Act. This action responds to the June 26, 2019 order from EPA’s General Counsel to resume consideration of whether to withdraw the 2014 proposed determination that would restrict the use of certain waters as disposal sites for the mine. The Pebble mine will now undergo the standard permitting procedure.

Thank you to Harvard student Laura Bloomer, JD/MPP 2019, for her assistance with this rule.

For more information

See Save EPA’s website.