EPA to reconsider Pebble determination

United States Environmental Protection Agency June 26 announced that it has instructed its Region 10 office to resume considering the elimination of a 2014 proposed determination to use "veto" authority to place restrictions on the Pebble copper-gold-molybdenum mine project under Section 404 of the Clean Water Act.

The U.S. Army Corps of Engineers is the federal agency charged with issuing permits for the disposal of dredge and fill material under Section 404 of the Clean Water Act. This authority is why Corps is the lead agency for carrying out the Environmental Impact Statement at Pebble.

EPA, however, has previously interpreted that CWA Section 404(c) regulations allows the environmental agency to veto such Corps issued permits.

EPA has used its assumed authority to veto a project authorization only a handful of times, the most recent and widely publicized case being restrictions the 2014 Obama Administration EPA proposed to place on the mine being considered for development at Pebble.

This was a special case in which the environmental agency tried to place restrictions on a project before proponents were able to put forward a proposal for permitting, referred to as pre-emptive veto.

Pebble Limited Partnership, the Alaska-based company hoping to develop a mine at the world-class Pebble copper-gold-molybdenum deposit, was able to obtain a preliminary injunction that stopped the process before EPA published a final determination on the proposed pre-emptive restrictions, which allowed Pebble to move ahead with permitting.

In a court settlement with Pebble Partnership, EPA also committed to not make a CWA Section 404(c) determination on Pebble until after Corps finalized the EIS, currently scheduled for completion in 2020.

The proposed determination, however, was still on the table and could be used to restrict Pebble if finalized in the future.

Many lawmakers in Washington D.C. have voiced concerns that the precedent set by EPA advancing final Section 404 determination at Pebble could deter other companies from investing in projects in the United States for fear that EPA could subjectively veto a project without a full evaluation of the proposal.

EPA General Counsel Matthew Leopold delivered a similar message in a letter to EPA Region 10, which covers Alaska and the Pacific Northwest.

"EPA must at all times be committed to advancing a fair and predictable process on matters it is considering for both the project proponents and the public in a manner that allows views to be presented and adequately considered" Leopold penned in the letter. "We must also maintain fidelity to our core mission of protecting human health and the environment while working within the statutory authority provided to the Agency by Congress. We should also attempt to discharge our obligations in a manner that reduces confusion and uncertainty surrounding arcane regulatory processes."

Leopold also urged EPA Region 10 to invoke "elevation procedures" if analysis leads to the conclusion that the proposed Pebble project being permitted by Corps may result in substantial and unacceptable impacts to aquatic resources of national importance.

If such a finding is made, there is a process that is capped at 105 days for resolving the differences the two agencies have on the proposed permit decision.

"By making an up-or-down decision on the 2014 Proposed Determination and by invoking these well-understood elevation procedures, Region 10 can discharge its obligations under the law and take two significant steps toward restoring normal order to this protracted and uncertain process," Leopold wrote.

–SHANE LASLEY

CORRECTION: For clarification and accuracy, North of 60 Mining News changed "pre-emptive veto" in the first paragraph of the article to "veto". While the 2014 proposed determination, if finalized prior to permitting, would have been pre-emptive, the federal permitting process for the Pebble Mine project is now well advanced. The date was corrected to June 26.