EPA rescinds proposed action to stop Pebble mine
A July 30 announcement from the Environmental Protection Agency means it won’t stand in the way of Pebble Partnership receiving the key federal permit it needs to construct what has become one of the most controversial development projects in the country.
EPA Region 10 Administrator Chris Hladick on July 30 signed a 28-page notice at the direction of agency leaders that formally removes the agency’s proposed “preemptive veto” that loomed over the Pebble mine project since it was initiated under former President Barack Obama’s administration in 2014.
In an interview Pebble CEO Tom Collier said, “This is a good day for Pebble. It’s a day I wish had happened much sooner, but it’s a good day for Pebble.”
The EPA retains its power to eventually prohibit the Pebble mine project under the Clean Water Act.
Hladick also wrote that the EPA has other avenues to scrutinize the project such as the 404(q) process, which “elevates” the environmental analysis of projects the EPA believes could have significant environmental impacts through a longstanding agreement the EPA has with the Corps of Engineers. Traditionally, the 404(q) has been used before any final actions regarding a wetlands permit are made, according to Hladick.
“EPA believes these processes should be exhausted prior to EPA deciding, based upon all information that has and will be further developed, to use its Section 404(c) authority,” he wrote.
Collier added he doesn’t see why the EPA would use the 404(q) and potentially go back to a 404(c) veto in roughly a year — when the Pebble EIS is scheduled to be done — after rescinding it now.
Formal statements from Pebble and its parent company, Vancouver-based Northern Dynasty Minerals Ltd., thanked Gov. Michael J. Dunleavy for pushing President Donald Trump’s administration to rescind the proposed restriction.
Dunleavy has avoided taking a formal stance on the hotly contested project, but said the EPA’s unusual actions to preclude its development send a bad signal to prospective investors in other projects across Alaska.
The Pebble deposit is on State of Alaska land.
Hladick is a former commissioner of the Alaska Department of Commerce, Community and Economic Development under former Gov. Bill Walker, who opposed the Pebble mine, and has served as manager to several local governments across Alaska, including the City of Dillingham, a commercial fishing hub in the Bristol Bay region.
Pebble’s opponents, which include conservation groups, area fishing lodges, Bristol Bay tribes and Bristol Bay Native Corp., said in statements that the EPA’s latest action disregards the agency’s namesake responsibility, insisting the mine would endanger the salmon area residents rely on for jobs and subsistence harvests.
BBNC President Jason Metrokin stressed that the move is inconsistent with the comments EPA Region 10 officials sent to the U.S. Army Corps of Engineers July 1 on the Pebble draft environmental impact statement. Those lengthy written comments —signed by Hladick — stated the project as proposed could have significant adverse environmental impacts and the draft review document lacked important analysis of the project’s downstream impacts, among other things.
“A large majority of BBNC shareholders, more than 80%, are concerned about the risks Pebble poses to the region and its fisheries and are opposed to the project. BBNC will always advocate for its shareholders’ best interests and will continue to oppose this inherently dangerous proposal,” Metrokin said. “One thing is certain: the people of Bristol Bay will not stand down. Bristol Bay’s commercial fishery is once again on pace for a record sockeye salmon harvest, but the people, the economy and a way of life that is dependent on these incredible fish are put at risk by today’s decision.”
He also asserted that the EPA’s move comes just weeks after agency officials said they had no timeline for revisiting the proposed restriction.
Pebble’s Collier said the concerns listed in EPA’s comments on the project review and those from other federal and state agencies were largely the result of overlooked information that is in fact in the roughly 1,400-page EIS.
“For the most part the issues that have been raised aren’t of great surprise and aren’t of great significance. I think they’ll be dealt with by the Corps and the third party contractor (working on behalf of Pebble) and we’ll march ahead towards getting our permit,” Collier said.
“There’s a reason they call it a ‘draft,’” he added.
EPA General Counsel Matthew Leopold directed Hladick in a June 26 memo to reconsider the agency’s proposed 404(c) restriction.
Hladick wrote in his 404(c) lifting notice that the Pebble EIS provides an analysis of Pebble’s actual plan, instead of relying on the 2014 Bristol Bay Watershed Assessment, which contemplated several hypothetical mine projects and Pebble claims was written to justify stopping the project. The allegation that the watershed assessment was biased formed the basis for Pebble’s lawsuit against the EPA but it was not invalidated in the 2017 settlement.
A January 2016 EPA Inspector General report supported the validity of the assessment, but scolded the agency for months’ worth of missing emails and other procedural missteps related to evaluating the prospective Pebble project.
Collier said he doesn’t see a need to invoke the more stringent but somewhat nebulous 404(q).
“Sometimes a project just becomes one where decisions are being made at the highest levels of the agency in Washington, D.C.; I think that’s where we are,” Collier said. “So I’m not sure elevation would change a damn thing. You saw that the highest level person at EPA who has not rescued himself and that’s the general counsel (Leopold), was involved in this decision essentially in-lieu of the administrator.”
EPA administrator Andrew Wheeler has rescued himself from anything relating to Pebble to prevent a potential conflict of interest stemming from business at a law firm where he previously worked.
Leopold sent a letter to Army Corps of Engineers leadership July 25 asking for an extension to the deadline in the 1992 working agreement by which the EPA was supposed to request the 404(q) process be started. That deadline was July 26.
Specifically, Leopold asked for EPA officials to have 30 days after the Corps drafts preliminary decision documents for Pebble’s permits before the EPA has to make its decisions regarding the project.
That would likely be sometime next year.
The EPA began the process to withdraw the proposed Section 404(c) veto — named for where it is found in the Clean Water Act — in July 2017 following the settlement of a lawsuit earlier that year by Pebble against the agency that directed EPA officials to take steps to lift the proposed development prohibition.
The settlement, however, did not mandate the proposed veto be lifted, as the EPA has now done, but the action needed to happen before the U.S. Army Corps of Engineers could issue a final wetlands fill permit for the project.
The Army Corps of Engineers adjudicates wetlands fill permits on behalf of the EPA for development projects across the country, but the Clean Water Act gives the EPA the authority to override wetlands fill permits the Army Corps issues if it determines the project would have unacceptable impacts to the environment. The EPA has used that authority very sparingly over the decades since the Clean Water Act was passed, but Pebble was the first instance in which it had been invoked prior to a wetlands fill permit being applied for.
Pebble applied for its 404 wetlands fill permit in December 2017.
In January 2018 in an unexpected move, former EPA Administrator Scott Pruitt suspended the 404(c) withdrawal process after the agency took public comments on the move citing “serious concerns” he had regarding the impacts the large Pebble mine and infrastructure project could have on the area’s salmon fisheries, which support an estimated 14,000 commercial fishing jobs in an otherwise economically depressed region.
Pebble has long touted that it would provide roughly 2,000 jobs to Alaska, many of which would be high-paying opportunities in inland parts of the Bristol Bay region that see less benefit from the commercial fishing industry.
Elwood Brehmer can be reached at [email protected].