EPA starts CWA review of Pebble Mine
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March 12, 2014
EPA starts CWA review of Pebble Mine

Prospects for the development of the planned Pebble Mine in the Bristol Bay region of southwestern Alaska hit a huge regulatory snag when the EPA announced that it had initiated a statutory process that can stop the Army Corps of Engineers (Corps) from issuing a Clean Water Act (CWA) Section 404 permit for the project.  

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The intent of the Pebble Mine Partnership, which is part of Northern Dynasty Minerals Ltd., is to extract as much as 11 billion tons of copper, gold, and other ores from the Pebble deposit.  The partnership estimates that there are up to 80 billion pounds of copper in the Pebble Deposit, enough to meet approximately 33 percent of U.S. annual copper needs for many years. 

Largest open pit

But in a letter to the Corps, the Pebble Mine Partnership, and the Alaska Department of Natural Resources, the administrator of EPA’s Seattle office stated that the project will involve “excavation of the largest open pit ever constructed in North America, completely destroying an area as large as 18 square kilometers and as deep as 1.24 kilometers.”  Disposal of waste material would require construction of up to three waste impoundments covering an additional 50 square kilometers, adds the Agency. 

All this would occur in a region with headwater streams that supply three river watersheds that support the most abundant and diverse sockeye salmon population in the United States, a major part of a subsistence way of life that Native Americans have carried on for 4,000 years.

Dredge and fill permit
To mine the deposit, the partnership would need a Section 404 “dredge and fill” permit.  While the Corps issues these permits, CWA Section 404(c) also provides the EPA with “veto authority,” which empowers the Agency to restrict, prohibit, deny, or withdraw the use of an area as a disposal site if the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fisher areas, wildlife, or recreational areas. 

The EPA may exercise this authority before a permit is applied for, while an application is pending, or after a permit has been issued. The EPA has exercised this veto authority only 13 times since 1981, and only once before for a mining project (in 2011 for West Virginia’s Spruce Mine 1). 

Effect on investors

While the partnership has been investigating the proposed mine site for years, it emphasizes that it has not yet submitted an application for a Section 404 permit.  Accordingly, the partnership has characterized EPA’s intention to initiate a review at this time as “premature and unprecedented.”  That sentiment was echoed by U.S. Senator Lisa Murkowski (R-AK).

“For the past three years, I have urged the agency not to prejudge this potential project before its developers sought permits or presented an official description of it,” said Murkowski in a statement.  “If EPA’s action today in effect prejudges this project, the process EPA has outlined could establish a terrible precedent that only further detracts from investors’ willingness to bring capital and jobs to Alaska.  It will also open the door to preemptive vetoes on this and other projects, putting development on all of our state’s lands – and both public and private lands across the nation – at risk.”

SEC filing

In its letter, the EPA states that it has had access to extensive information about the project, including data collected as part of the Agency’s ecological risk assessment, which was released in January 2014, as well as mine plans submitted by the Pebble Partnership to the Securities and Exchange Commission (SEC). 

According to the Agency, the Section 404(c) review process opens the door to “early consultation” among the EPA, the Corps, and the Pebble Partnership.  The EPA said the consultations were initiated upon mailing of the letter on February 28, 2014.  Three steps will follow—publication of a proposed determination, including proposed prohibitions or restrictions on mining the Pebble deposit; review of public comments and EPA’s development of a recommended determination; and a second consultation period in which a final determination will be developed. 

EPA’s letter and related information

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