Notification of Decision Not To Withdraw Proposed Determination To Restrict the Use of an Area as a Disposal Site; Pebble Deposit Area, Southwest Alaska, 8668-8671 [2018-04092]
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Federal Register / Vol. 83, No. 40 / Wednesday, February 28, 2018 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–R10–OW–2017–0369; FRL 9974–52—
Region 10]
Notification of Decision Not To
Withdraw Proposed Determination To
Restrict the Use of an Area as a
Disposal Site; Pebble Deposit Area,
Southwest Alaska
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The United States
Environmental Protection Agency (EPA)
Administrator and Region 10 Regional
Administrator are announcing the EPA’s
decision not to withdraw at this time
the EPA Region 10 July 2014 Proposed
Determination that was issued pursuant
to Section 404(c) of the Clean Water Act
and EPA’s implementing regulations.
Today’s notice suspends the proceeding
to withdraw the Proposed
Determination and leaves that
Determination in place pending further
consideration by the Agency of
information that is relevant to the
protection of the world-class fisheries
contained in the Bristol Bay watershed.
The Agency intends at a future time to
solicit public comment on what further
steps, if any, the Agency should take
under Section 404(c) to prevent
unacceptable adverse effects to the
watershed’s abundant and valuable
fishery resources in light of the permit
application that has now been
submitted to the U.S. Army Corps of
Engineers.
SUMMARY:
Visit
www.epa.gov/bristolbay or contact a
Bristol Bay-specific phone line, (206)
553–0040, or email address,
r10bristolbay@epa.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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I. General Information
A. How to Obtain a Copy of the
Proposed Determination: The July 2014
Proposed Determination is available via
the internet on the EPA Region 10
Bristol Bay site at www.epa.gov/
bristolbay.
B. How to Obtain a Copy of the
Settlement Agreement: The May 11,
2017, settlement agreement is available
via the internet on the EPA Region 10
Bristol Bay site at www.epa.gov/
bristolbay.
C. How to Obtain a Copy of the
Proposal to Withdraw the Proposed
Determination: The July 2017 proposal
to withdraw the Proposed
Determination is available via the
internet on the EPA Region 10 Bristol
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Bay site at www.epa.gov/bristolbay.
Information regarding the proposal to
withdraw can also be found in the
docket for this effort at
www.regulations.gov, see docket ID No.
EPA–R10–OW–2017–0369 or use the
following link: https://
www.regulations.gov/docket?D=EPAR10-OW-2017-0369.
II. Background
On July 19, 2017, EPA Region 10
published in the Federal Register (82
FR 33123) a notice of a proposal to
withdraw its July 2014 Proposed
Determination under section 404(c) of
the Clean Water Act (CWA) to restrict
the use of certain waters in the South
Fork Koktuli River, North Fork Koktuli
River, and Upper Talarik Creek
watersheds (located within the larger
Bristol Bay watershed) as disposal sites
for dredged or fill material associated
with mining the Pebble deposit, a
copper-, gold- and molybdenum-bearing
ore body. A Proposed Determination is
the second step in EPA’s four-step CWA
Section 404(c) review process of: (1)
Initiation, (2) Proposed Determination,
(3) Recommended Determination, and
(4) Final Determination (40 CFR part
231).
The July 19, 2017 (82 FR 33123),
notice opened a public comment period
that closed on October 17, 2017. EPA
held two public hearings in the Bristol
Bay watershed during the week of
October 9, 2017. EPA also consulted
with federally recognized tribal
governments from the Bristol Bay region
and Alaska Native Claims Settlement
Act (ANCSA) Regional and Village
Corporations with lands in the Bristol
Bay watershed on the Agency’s proposal
to withdraw.
EPA agreed to initiate a process to
propose to withdraw the 2014 Proposed
Determination as part of a May 11, 2017,
settlement agreement with the Pebble
Limited Partnership (PLP), whose
subsidiaries own the mineral claims to
the Pebble deposit. The settlement
agreement resolved all of PLP’s
outstanding lawsuits against EPA. Also
under the terms of the settlement
agreement, Region 10 may not forward
a signed Recommended Determination,
if such a decision is made, before either
May 11, 2021, or until EPA provides
public notice of a final Environmental
Impact Statement (EIS) issued by the
U.S. Army Corps of Engineers (Corps)
on PLP’s CWA Section 404 permit
application regarding the Pebble
deposit, whichever comes first. For a
link to a copy of the settlement
agreement, see Section I of this notice.
In its July 19, 2017, notice and during
the concurrent tribal and ANCSA
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Corporation consultation periods, EPA
defined the scope of the input it was
seeking on its proposal to withdraw.
Specifically, EPA sought public
comment and tribal and ANCSA
Corporation input on three reasons
underlying its proposed withdrawal.
EPA’s reasons were that withdrawing
the Proposed Determination now would:
1. Provide PLP with additional time to
submit a section 404 permit application
to the Corps,
2. Remove any uncertainty, real or
perceived, about PLP’s ability to submit
a permit application and have that
permit application reviewed, and
3. Allow the factual record regarding
any forthcoming permit application to
develop.
In addition to seeking comment on
whether to withdraw the July 2014
Proposed Determination at this time for
the reasons stated above, in the event
that the final decision was to withdraw
the Proposed Determination, EPA also
sought comment on whether the
Administrator should review and
reconsider the withdrawal decision
consistent with 40 CFR 231.5(c).
III. Summary of Input From Public
Comment, Tribal Consultation, and
ANCSA Corporation Consultation
Periods
During the public comment period,
EPA received more than one million
public comments regarding its proposal
to withdraw. An overwhelming majority
of these commenters expressed
opposition to withdrawal of the
Proposed Determination. EPA also held
two public hearings in the Bristol Bay
watershed on the proposal to withdraw;
approximately 200 people participated
in the hearings. Of the 119 participants
who testified, an overwhelming majority
also expressed opposition to withdrawal
of the Proposed Determination.
Similarly, the vast majority of tribal
governments and ANCSA Corporation
shareholders who consulted with EPA
expressed opposition to the proposed
withdrawal. The public comments,
transcripts from the public hearings,
and summaries of the tribal and ANCSA
Corporation consultations can be found
in the docket for this effort; see Section
I of this notice for information on how
to access this docket.
A. Comments Opposing Withdrawal
That Were Within the Scope of EPA’s
July 2017 Notice
A large number of commenters
expressed opposition to the proposal to
withdraw. Commenters stated that
withdrawal of the Proposed
Determination is not necessary to allow
for PLP to submit its permit application
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because nothing in the regulations
prevents PLP from submitting a permit
application while a section 404(c)
review is ongoing. Other commenters
indicated that regardless of whether the
Proposed Determination is withdrawn,
other provisions of the settlement
agreement pause EPA’s section 404(c)
review and provide PLP with additional
time to submit its permit application
and allow that permit application to be
reviewed by the Corps. EPA received
many comments noting that withdrawal
of the Proposed Determination is not
necessary to ensure that the Corps’ 404
permit and National Environmental
Policy Act (NEPA) review processes
proceed. The applicable regulations
prevent the Corps from issuing a final
permit decision for a project while a
section 404(c) review is ongoing (33
CFR 323.6(b) and 40 CFR 231.3(a)(2)),
but affirmatively provide that the Corps
will continue to complete its
administrative processing of PLP’s
permit application, including final
coordination with EPA under 33 CFR
part 325, while EPA’s section 404(c)
review is underway.
Commenters also stated that it is not
necessary to withdraw the Proposed
Determination in order to allow the
factual record associated with a permit
application from PLP to develop
because nothing in the statute, its
implementing regulations, or the
Proposed Determination preclude PLP
from submitting a permit application
and the Corps from reviewing that
application. In addition, some
commenters stated that the Proposed
Determination is supported by a
sufficient factual record that does not
need further development.
Commenters also noted that there is
precedent for EPA leaving a Proposed
Determination in place while it awaits
additional project-related information
and cited EPA’s section 404(c) review
process relating to the Pamo Dam
project where EPA kept its Proposed
Determination in place pending
completion and review of additional
information and analysis by the project
proponent.1 Commenters also noted that
EPA’s section 404(c) regulations allow it
to extend the timeframes for section
404(c) decisions for ‘‘good cause’’ (40
CFR 231.8) and argued that EPA has
good cause in this case to extend the
specific time period at 40 CFR 231.5(a)
for the Regional Administrator to decide
whether to withdraw a Proposed
Determination or prepare a
Recommended Determination (which is
the next step in the section 404(c)
review process). Commenters also noted
1 54
FR 30599 (July 21, 1989).
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that when EPA first initiated its section
404(c) action in February 2014, PLP told
EPA that it supported pausing EPA’s
section 404(c) review process for ‘‘good
cause’’ pursuant to 40 CFR 231.8 to
allow time for it to submit its permit
application and for that application to
be reviewed.2
Commenters also asserted that EPA’s
July 2017 notice was inappropriately
limited to process and policy arguments
and did not adequately consider the
underlying scientific and technical
record in the July 2014 Proposed
Determination.
B. Comments Supporting Withdrawal
That Were Within the Scope of EPA’s
July 2017 Notice
Commenters in support of withdrawal
of the Proposed Determination indicated
that EPA preemptively issued its
Proposed Determination before PLP
submitted a permit application or the
Corps initiated the NEPA review
process. These commenters stated that
this was an overreach by EPA and that
it denied PLP due process. Commenters
felt that the Section 404 permitting
process should be allowed to proceed,
which would allow future decisions to
be made based on the permit
application materials, related mitigation
strategies, and NEPA review.
Commenters stated that this would
allow the Agency to examine all
possible merits of a project, as well as
potential environmental impacts,
through an EIS. Commenters noted that
the NEPA process considers the views
of a much broader group of constituents,
including the Secretary of the Interior,
Fish and Wildlife Service, National
Marine Fisheries Service, State Historic
Preservation Office, and the Coast
Guard.
Some commenters asserted that EPA
does not have the authority to initiate
the section 404(c) process or issue a
Proposed Determination in the absence
of a permit application. In addition,
some commenters indicated that, in
their view, withdrawing the Proposed
Determination was necessary in order
for the Corps to accept and review a
permit application from PLP and
conduct the NEPA review process.
Commenters also expressed a belief
that the issuance of the Proposed
Determination prevents the
development of a full record by stifling
the extensive permitting process that
would be required to permit a mine of
this scale, including local, state, and
federal permits. They noted that the
2 Letter from Tom Collier, CEO, PLP to Dennis
McLerran, former EPA R10 Regional Administrator,
(March 11, 2014).
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8669
permit application will provide
comprehensive, site-specific data and
alternatives analysis, and that the
process will ensure a rigorous review,
including development of an EIS, and
consideration of mitigation strategies.
Several commenters stated that the fate
of the project should not be decided
without consideration of the full social,
economic, and environmental impacts,
which would occur during permit
review.
Many of the other reasons offered by
commenters in support of the
withdrawal revolved around their
policy view that EPA should not take a
section 404(c) action in advance of the
filing of a permit application because
such an action would have negative
repercussions for the business and
investing community. Commenters
noted that maintaining the integrity of
the existing regulatory review process
and ensuring due process for all projects
is important to Alaska’s economy for
future investment in natural resource
development.
C. Comments Received That Were
Outside the Scope of EPA’s July 2017
Notice
EPA received comments regarding the
specific scientific and technical record
underlying the Proposed Determination
and subsequent public process. Certain
commenters expressed support for the
analysis conducted as part of EPA’s
Bristol Bay Watershed Assessment
(BBWA) completed in 2014 (for more
information regarding the BBWA see:
www.epa.gov/bristolbay), which these
commenters indicated did not support
withdrawal of the Proposed
Determination. Other commenters
argued that the BBWA was flawed and
should not be a basis for agency
decision making. EPA also received
comments relating to economic value of
a potential mine and metals to be mined
as a general matter and the potential
value of the mine for the local and
national economy.
EPA also received comments
regarding the amount of public input
relating to this issue as a general matter
and the amount of resources that both
EPA and stakeholders have expended
on Bristol Bay-related issues associated
with mining of the Pebble deposit.
Comments also focused on the
ecological, cultural, and economic value
of Bristol Bay’s fishery resources, and
potential environmental, cultural, and
economic harms to these and other
resources associated with potential
mining activity.
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IV. Recent Developments
Since the close of the public
comment, tribal consultation, and
ANCSA Corporation consultation
periods on October 17, 2017, there have
been a number of other relevant
developments. On December 22, 2017,
PLP submitted a section 404 permit
application to the Corps that proposes to
develop a mine at the Pebble deposit.
On January 5, 2018, the Corps issued a
public notice that provides PLP’s permit
application to the public and states that
an EIS will be required as part of its
permit review process consistent with
NEPA. The Corps also invited relevant
federal and state agencies to be
cooperating agencies on the
development of this EIS.
Since PLP has now submitted its
CWA Section 404 permit application to
the Corps regarding the Pebble deposit,
Region 10 will not forward a signed
Recommended Determination, if such a
decision is made, before either May 11,
2021, or public notice of a final EIS on
PLP’s Section 404 permit application
regarding the Pebble deposit, whichever
comes first.
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V. Conclusions
In making its decision regarding
whether to withdraw the Proposed
Determination at this time, EPA
considered its relevant statutory
authority, applicable regulations, and
the input it received as part of the tribal
consultation, ANCSA consultation, and
public comment periods regarding the
Agency’s reasons for its proposing
withdrawal as well as the recent
developments.
1. Additional time to submit Section
404 permit application and initiate
permit review. As several commenters
noted, PLP has had the ability as a legal
matter to submit a permit application
while a section 404(c) review is
ongoing. In fact, PLP submitted its
application on December 22, 2017,
notwithstanding the pending section
404(c) review and existing Proposed
Determination, and the Corps issued a
public notice that provides PLP’s permit
application to the public and states that
an EIS will be required as part of its
permit review process consistent with
NEPA. As a result, withdrawal of the
Proposed Determination at this time is
not necessary to provide PLP with
additional time to submit a section 404
permit application to the Corps and
potentially allow the Corps permitting
process to initiate.
2. Remove uncertainty regarding
PLP’s ability to submit Section 404
permit application and have it
reviewed. As many commenters pointed
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out and as EPA noted in its proposal,
the Corps’ regulations allow it to accept,
review, and process a permit
application for a proposed project even
if EPA has an ongoing section 404(c)
review for that project. In addition,
since PLP has now submitted its permit
application to the Corps regarding the
Pebble deposit and the Corps has
initiated its permit review process and
begun taking steps to initiate
development of an EIS for this project,
any potential uncertainty about PLP’s
ability to submit a permit application
and have that permit application
reviewed by the Corps has been
resolved. The Corps’ regulations state
that it will continue to complete its
administrative processing of a permit
application for a proposed project if
EPA has an ongoing section 404(c)
review for that project. While the Corps
cannot issue a final decision on the
permit application while a section
404(c) process remains open and
unresolved (33 CFR 323.6(b)), in this
case, such a decision is likely a number
of years away. Therefore, this reason to
withdraw the Proposed Determination
at this time is no longer applicable.
3. Allow factual record for Section
404 permit application to develop. As
previously noted, the Corps has already
initiated its permit review process for
PLP’s application. Even if EPA leaves
the Proposed Determination in place at
this time, EPA will provide PLP with
nearly three and a half years (unless a
final EIS for the project is noticed
sooner) to advance through the permit
review process before Region 10 could
forward a signed Recommended
Determination to EPA Headquarters, if
such a decision is made. Thus, in light
of EPA’s forbearance from proceeding to
the next step of the section 404(c)
process until a later time as described
above, EPA concludes that the factual
record regarding the permit application
can develop notwithstanding the
Proposed Determination. EPA has
discretion to consider that factual record
after it has been further developed
before Region 10 determines whether to
forward a signed Recommended
Determination to EPA Headquarters
and, if such a decision is made, to
determine the contents of such a
Recommended Determination. As such,
this reason does not support withdrawal
of the Proposed Determination at this
time.
Further, in light of recent
developments and the framework
outlined in the settlement agreement,
many of the key concerns raised by
those who supported withdrawal have
already been resolved, even while the
Proposed Determination remains in
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place. For example, concerns regarding
EPA potentially finalizing its section
404(c) review in advance of PLP
submitting a permit application,
concerns that the Corps would not
accept or process PLP’s permit
application with an open section 404(c)
action, and concerns that PLP should be
provided more time to advance through
the Section 404 permit and NEPA
review processes before EPA makes any
decisions regarding potentially
advancing its section 404(c) review are
moot.
Given the relevant statutory authority,
applicable regulations, recent
developments, public comments, tribal
input, and ANCSA Corporation input
described above, the Agency has
decided not to withdraw the 2014
Proposed Determination at this time.
Today’s notice suspends the proceeding
to withdraw the Proposed
Determination and leaves that
Determination in place pending
consideration of any other information
that is relevant to the protection of the
world-class fisheries contained in the
Bristol Bay watershed in light of the
permit application that has now been
submitted to the Corps. As noted above,
EPA also sought comment on whether
the Administrator should review and
reconsider the withdrawal decision
consistent with 40 CFR 231.5(c) in the
event that the final decision was to
withdraw the Proposed Determination.
Since today’s decision is not to
withdraw the Proposed Determination
at this time, comments received on this
issue do not need to be addressed.
EPA acknowledges the significant
public interest on this issue and remains
committed to listening to all
stakeholders as the permitting process
progresses. Neither this decision nor the
previous settlement agreement
guarantees or prejudges a particular
outcome in the permitting process or
any particular EPA decision-making
under section 404(c) or otherwise
constrain EPA’s discretion except as
provided in the terms of the settlement
agreement.
EPA received several comments
stating that EPA cannot withdraw a
Proposed Determination without
considering the proposed restrictions or
the science or technical information
underlying the Proposed Determination.
In light of EPA’s decision not to
withdraw the Proposed Determination,
those comments are moot.
EPA also received comments that it
has to withdraw the Proposed
Determination because it does not have
the statutory authority to initiate the
section 404(c) process before a permit
application has been filed with the
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Corps. To the contrary, EPA has the
authority whenever it makes the
requisite finding of unacceptable
adverse effect. 33 U.S.C. 1344(c); 40 CFR
231.1(a) & (c); see also Mingo Logan
Coal Co. v. EPA, 714 F.3d 608, 613 (DC
Cir. 2013). As such, EPA need not
withdraw the Proposed Determination
on the basis of a lack of statutory
authority because EPA had authority to
issue the Proposed Determination.
VI. Further Proceedings
EPA’s regulations at 40 CFR 231.5(a)
provide a specific time period for the
Regional Administrator to decide
whether to withdraw a Proposed
Determination or prepare a
Recommended Determination. As
explained above, the Agency has
decided not to withdraw the Proposed
Determination at this time and is
suspending this withdrawal proceeding
and leaving the Proposed Determination
in place. As previously noted, however,
under the terms of the May 2017
settlement agreement, Region 10 may
not forward a signed Recommended
Determination, if such a decision is
made, before either May 11, 2021, or
until public notice of a final EIS on
PLP’s CWA Section 404 permit
application regarding the Pebble
deposit, whichever comes first.
The Agency intends at a future time
to solicit public comment on what
further steps, if any, the Agency should
take in the section 404(c) process in
order to prevent unacceptable adverse
effects to the watershed’s world-class
fisheries in light of the permit
application that has now been
submitted to the Corps. EPA will review
and consider any other relevant
information that becomes available
during the interim. EPA has determined
that there is good cause under 40 CFR
231.8 to extend the regulatory time
frames in 40 CFR 231.5(a) in order to
allow for an additional public comment
period and to align with the timeframes
established in the settlement agreement.
Dated: January 26, 2018.
Chris Hladick,
Regional Administrator, EPA Region 10.
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ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OECA–2017–0438; FRL–9974–
30–OEI]
Information Collection Request
Submitted to OMB for Review and
Approval; Comment Request; Annual
Public Water Systems Compliance
Report (Renewal)
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The Environmental Protection
Agency has submitted an information
collection request (ICR), Annual Public
Water System Compliance Report (EPA
ICR No. 1812.06, OMB Control No.
2020–0020), to the Office of
Management and Budget (OMB) for
review and approval in accordance with
the Paperwork Reduction Act. This is a
proposed extension of the ICR, which is
currently approved through April 30,
2018. Public comments were previously
requested via the Federal Register on
September 29, 2017 during a 60-day
comment period. This notice allows for
an additional 30 days for public
comments. A fuller description of the
ICR is given below, including its
estimated burden and cost to the public.
An agency may not conduct or sponsor
and a person is not required to respond
to a collection of information unless it
displays a currently valid OMB control
number.
DATES: Additional comments may be
submitted on or before March 30, 2018.
ADDRESSES: Submit your comments,
referencing Docket ID Number EPA–
HQ–OECA–2017–0438 to (1) EPA online
using www.regulations.gov (our
preferred method), by email to
docket.oeca@epa.gov or by mail to: EPA
Docket Center, Environmental
Protection Agency, Mail Code 28221T,
1200 Pennsylvania Ave. NW,
Washington, DC 20460, and (2) OMB via
email to oira_submission@omb.eop.gov.
Address comments to OMB Desk Officer
for EPA.
EPA’s policy is that all comments
received will be included in the public
docket without change including any
personal information provided, unless
the comment includes profanity, threats,
information claimed to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute.
FOR FURTHER INFORMATION CONTACT:
Raquel Taveras, Monitoring, Assistance
and Media Programs Division, Office of
Compliance, MC–2227A, Environmental
Protection Agency, 1200 Pennsylvania
SUMMARY:
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8671
Ave. NW, Washington, DC 20460;
telephone number: (202) 564–9651; fax
number: (202) 564–7083; email address:
taveras.raquel@epa.gov.
SUPPLEMENTARY INFORMATION:
Supporting documents, which explain
in detail the information that the EPA
will be collecting, are available in the
public docket for this ICR. The docket
can be viewed online at
www.regulations.gov or in person at the
EPA Docket Center, WJC West, Room
3334, 1301 Constitution Ave. NW,
Washington, DC. The telephone number
for the Docket Center is 202–566–1744.
For additional information about EPA’s
public docket, visit https://www.epa.gov/
dockets.
Abstract: Section 1414(c)(3)(A) of the
Safe Drinking Water Act (SDWA)
requires that each state (a term that
includes states, commonwealths, tribes
and territories) that has primary
enforcement authority under the SDWA
shall prepare, make readily available to
the public, and submit to the
Administrator of EPA, an annual report
of violations of national primary
drinking water regulations in the state.
These Annual State Public Water
System Compliance Reports are to
include violations of maximum
contaminant levels, treatment
requirements, variances and
exemptions, and monitoring
requirements determined to be
significant by the Administrator after
consultation with the states. To
minimize a state’s burden in preparing
its annual statutorily-required report,
EPA issued guidance that explains what
Section 1414(c)(3)(A) requires and
provides model language and reporting
templates. EPA also annually makes
available to the states a computer query
that generates for each state (from
information states are already separately
required to submit to EPA’s national
database on a quarterly basis) the
required violations information in a
table consistent with the reporting
template in EPA’s guidance.
Form numbers: None.
Respondents/affected entities: States
that have primacy enforcement
authority and meet the definition of
‘‘state’’ under the SDWA.
Respondent’s obligation to respond:
Mandatory Section 1414 (c)(3)(A) of
SDWA.
Estimated number of respondents: 55
(total).
Frequency of response: Annually.
Total estimated burden: 4,400 hours
(per year). Burden is defined at 5 CFR
1320.03(b).
Total estimated cost: $470,000 (per
year), includes $0 annualized capital or
operation & maintenance costs.
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]]>Agencies
[Federal Register Volume 83, Number 40 (Wednesday, February 28, 2018)]
[Notices]
[Pages 8668-8671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04092]
[[Page 8668]]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-R10-OW-2017-0369; FRL 9974-52--Region 10]
Notification of Decision Not To Withdraw Proposed Determination
To Restrict the Use of an Area as a Disposal Site; Pebble Deposit Area,
Southwest Alaska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (EPA)
Administrator and Region 10 Regional Administrator are announcing the
EPA's decision not to withdraw at this time the EPA Region 10 July 2014
Proposed Determination that was issued pursuant to Section 404(c) of
the Clean Water Act and EPA's implementing regulations. Today's notice
suspends the proceeding to withdraw the Proposed Determination and
leaves that Determination in place pending further consideration by the
Agency of information that is relevant to the protection of the world-
class fisheries contained in the Bristol Bay watershed. The Agency
intends at a future time to solicit public comment on what further
steps, if any, the Agency should take under Section 404(c) to prevent
unacceptable adverse effects to the watershed's abundant and valuable
fishery resources in light of the permit application that has now been
submitted to the U.S. Army Corps of Engineers.
FOR FURTHER INFORMATION CONTACT: Visit www.epa.gov/bristolbay or
contact a Bristol Bay-specific phone line, (206) 553-0040, or email
address, [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. How to Obtain a Copy of the Proposed Determination: The July
2014 Proposed Determination is available via the internet on the EPA
Region 10 Bristol Bay site at www.epa.gov/bristolbay.
B. How to Obtain a Copy of the Settlement Agreement: The May 11,
2017, settlement agreement is available via the internet on the EPA
Region 10 Bristol Bay site at www.epa.gov/bristolbay.
C. How to Obtain a Copy of the Proposal to Withdraw the Proposed
Determination: The July 2017 proposal to withdraw the Proposed
Determination is available via the internet on the EPA Region 10
Bristol Bay site at www.epa.gov/bristolbay. Information regarding the
proposal to withdraw can also be found in the docket for this effort at
www.regulations.gov, see docket ID No. EPA-R10-OW-2017-0369 or use the
following link: https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369.
II. Background
On July 19, 2017, EPA Region 10 published in the Federal Register
(82 FR 33123) a notice of a proposal to withdraw its July 2014 Proposed
Determination under section 404(c) of the Clean Water Act (CWA) to
restrict the use of certain waters in the South Fork Koktuli River,
North Fork Koktuli River, and Upper Talarik Creek watersheds (located
within the larger Bristol Bay watershed) as disposal sites for dredged
or fill material associated with mining the Pebble deposit, a copper-,
gold- and molybdenum-bearing ore body. A Proposed Determination is the
second step in EPA's four-step CWA Section 404(c) review process of:
(1) Initiation, (2) Proposed Determination, (3) Recommended
Determination, and (4) Final Determination (40 CFR part 231).
The July 19, 2017 (82 FR 33123), notice opened a public comment
period that closed on October 17, 2017. EPA held two public hearings in
the Bristol Bay watershed during the week of October 9, 2017. EPA also
consulted with federally recognized tribal governments from the Bristol
Bay region and Alaska Native Claims Settlement Act (ANCSA) Regional and
Village Corporations with lands in the Bristol Bay watershed on the
Agency's proposal to withdraw.
EPA agreed to initiate a process to propose to withdraw the 2014
Proposed Determination as part of a May 11, 2017, settlement agreement
with the Pebble Limited Partnership (PLP), whose subsidiaries own the
mineral claims to the Pebble deposit. The settlement agreement resolved
all of PLP's outstanding lawsuits against EPA. Also under the terms of
the settlement agreement, Region 10 may not forward a signed
Recommended Determination, if such a decision is made, before either
May 11, 2021, or until EPA provides public notice of a final
Environmental Impact Statement (EIS) issued by the U.S. Army Corps of
Engineers (Corps) on PLP's CWA Section 404 permit application regarding
the Pebble deposit, whichever comes first. For a link to a copy of the
settlement agreement, see Section I of this notice.
In its July 19, 2017, notice and during the concurrent tribal and
ANCSA Corporation consultation periods, EPA defined the scope of the
input it was seeking on its proposal to withdraw. Specifically, EPA
sought public comment and tribal and ANCSA Corporation input on three
reasons underlying its proposed withdrawal. EPA's reasons were that
withdrawing the Proposed Determination now would:
1. Provide PLP with additional time to submit a section 404 permit
application to the Corps,
2. Remove any uncertainty, real or perceived, about PLP's ability
to submit a permit application and have that permit application
reviewed, and
3. Allow the factual record regarding any forthcoming permit
application to develop.
In addition to seeking comment on whether to withdraw the July 2014
Proposed Determination at this time for the reasons stated above, in
the event that the final decision was to withdraw the Proposed
Determination, EPA also sought comment on whether the Administrator
should review and reconsider the withdrawal decision consistent with 40
CFR 231.5(c).
III. Summary of Input From Public Comment, Tribal Consultation, and
ANCSA Corporation Consultation Periods
During the public comment period, EPA received more than one
million public comments regarding its proposal to withdraw. An
overwhelming majority of these commenters expressed opposition to
withdrawal of the Proposed Determination. EPA also held two public
hearings in the Bristol Bay watershed on the proposal to withdraw;
approximately 200 people participated in the hearings. Of the 119
participants who testified, an overwhelming majority also expressed
opposition to withdrawal of the Proposed Determination. Similarly, the
vast majority of tribal governments and ANCSA Corporation shareholders
who consulted with EPA expressed opposition to the proposed withdrawal.
The public comments, transcripts from the public hearings, and
summaries of the tribal and ANCSA Corporation consultations can be
found in the docket for this effort; see Section I of this notice for
information on how to access this docket.
A. Comments Opposing Withdrawal That Were Within the Scope of EPA's
July 2017 Notice
A large number of commenters expressed opposition to the proposal
to withdraw. Commenters stated that withdrawal of the Proposed
Determination is not necessary to allow for PLP to submit its permit
application
[[Page 8669]]
because nothing in the regulations prevents PLP from submitting a
permit application while a section 404(c) review is ongoing. Other
commenters indicated that regardless of whether the Proposed
Determination is withdrawn, other provisions of the settlement
agreement pause EPA's section 404(c) review and provide PLP with
additional time to submit its permit application and allow that permit
application to be reviewed by the Corps. EPA received many comments
noting that withdrawal of the Proposed Determination is not necessary
to ensure that the Corps' 404 permit and National Environmental Policy
Act (NEPA) review processes proceed. The applicable regulations prevent
the Corps from issuing a final permit decision for a project while a
section 404(c) review is ongoing (33 CFR 323.6(b) and 40 CFR
231.3(a)(2)), but affirmatively provide that the Corps will continue to
complete its administrative processing of PLP's permit application,
including final coordination with EPA under 33 CFR part 325, while
EPA's section 404(c) review is underway.
Commenters also stated that it is not necessary to withdraw the
Proposed Determination in order to allow the factual record associated
with a permit application from PLP to develop because nothing in the
statute, its implementing regulations, or the Proposed Determination
preclude PLP from submitting a permit application and the Corps from
reviewing that application. In addition, some commenters stated that
the Proposed Determination is supported by a sufficient factual record
that does not need further development.
Commenters also noted that there is precedent for EPA leaving a
Proposed Determination in place while it awaits additional project-
related information and cited EPA's section 404(c) review process
relating to the Pamo Dam project where EPA kept its Proposed
Determination in place pending completion and review of additional
information and analysis by the project proponent.\1\ Commenters also
noted that EPA's section 404(c) regulations allow it to extend the
timeframes for section 404(c) decisions for ``good cause'' (40 CFR
231.8) and argued that EPA has good cause in this case to extend the
specific time period at 40 CFR 231.5(a) for the Regional Administrator
to decide whether to withdraw a Proposed Determination or prepare a
Recommended Determination (which is the next step in the section 404(c)
review process). Commenters also noted that when EPA first initiated
its section 404(c) action in February 2014, PLP told EPA that it
supported pausing EPA's section 404(c) review process for ``good
cause'' pursuant to 40 CFR 231.8 to allow time for it to submit its
permit application and for that application to be reviewed.\2\
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\1\ 54 FR 30599 (July 21, 1989).
\2\ Letter from Tom Collier, CEO, PLP to Dennis McLerran, former
EPA R10 Regional Administrator, (March 11, 2014).
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Commenters also asserted that EPA's July 2017 notice was
inappropriately limited to process and policy arguments and did not
adequately consider the underlying scientific and technical record in
the July 2014 Proposed Determination.
B. Comments Supporting Withdrawal That Were Within the Scope of EPA's
July 2017 Notice
Commenters in support of withdrawal of the Proposed Determination
indicated that EPA preemptively issued its Proposed Determination
before PLP submitted a permit application or the Corps initiated the
NEPA review process. These commenters stated that this was an overreach
by EPA and that it denied PLP due process. Commenters felt that the
Section 404 permitting process should be allowed to proceed, which
would allow future decisions to be made based on the permit application
materials, related mitigation strategies, and NEPA review. Commenters
stated that this would allow the Agency to examine all possible merits
of a project, as well as potential environmental impacts, through an
EIS. Commenters noted that the NEPA process considers the views of a
much broader group of constituents, including the Secretary of the
Interior, Fish and Wildlife Service, National Marine Fisheries Service,
State Historic Preservation Office, and the Coast Guard.
Some commenters asserted that EPA does not have the authority to
initiate the section 404(c) process or issue a Proposed Determination
in the absence of a permit application. In addition, some commenters
indicated that, in their view, withdrawing the Proposed Determination
was necessary in order for the Corps to accept and review a permit
application from PLP and conduct the NEPA review process.
Commenters also expressed a belief that the issuance of the
Proposed Determination prevents the development of a full record by
stifling the extensive permitting process that would be required to
permit a mine of this scale, including local, state, and federal
permits. They noted that the permit application will provide
comprehensive, site-specific data and alternatives analysis, and that
the process will ensure a rigorous review, including development of an
EIS, and consideration of mitigation strategies. Several commenters
stated that the fate of the project should not be decided without
consideration of the full social, economic, and environmental impacts,
which would occur during permit review.
Many of the other reasons offered by commenters in support of the
withdrawal revolved around their policy view that EPA should not take a
section 404(c) action in advance of the filing of a permit application
because such an action would have negative repercussions for the
business and investing community. Commenters noted that maintaining the
integrity of the existing regulatory review process and ensuring due
process for all projects is important to Alaska's economy for future
investment in natural resource development.
C. Comments Received That Were Outside the Scope of EPA's July 2017
Notice
EPA received comments regarding the specific scientific and
technical record underlying the Proposed Determination and subsequent
public process. Certain commenters expressed support for the analysis
conducted as part of EPA's Bristol Bay Watershed Assessment (BBWA)
completed in 2014 (for more information regarding the BBWA see:
www.epa.gov/bristolbay), which these commenters indicated did not
support withdrawal of the Proposed Determination. Other commenters
argued that the BBWA was flawed and should not be a basis for agency
decision making. EPA also received comments relating to economic value
of a potential mine and metals to be mined as a general matter and the
potential value of the mine for the local and national economy.
EPA also received comments regarding the amount of public input
relating to this issue as a general matter and the amount of resources
that both EPA and stakeholders have expended on Bristol Bay-related
issues associated with mining of the Pebble deposit. Comments also
focused on the ecological, cultural, and economic value of Bristol
Bay's fishery resources, and potential environmental, cultural, and
economic harms to these and other resources associated with potential
mining activity.
[[Page 8670]]
IV. Recent Developments
Since the close of the public comment, tribal consultation, and
ANCSA Corporation consultation periods on October 17, 2017, there have
been a number of other relevant developments. On December 22, 2017, PLP
submitted a section 404 permit application to the Corps that proposes
to develop a mine at the Pebble deposit. On January 5, 2018, the Corps
issued a public notice that provides PLP's permit application to the
public and states that an EIS will be required as part of its permit
review process consistent with NEPA. The Corps also invited relevant
federal and state agencies to be cooperating agencies on the
development of this EIS.
Since PLP has now submitted its CWA Section 404 permit application
to the Corps regarding the Pebble deposit, Region 10 will not forward a
signed Recommended Determination, if such a decision is made, before
either May 11, 2021, or public notice of a final EIS on PLP's Section
404 permit application regarding the Pebble deposit, whichever comes
first.
V. Conclusions
In making its decision regarding whether to withdraw the Proposed
Determination at this time, EPA considered its relevant statutory
authority, applicable regulations, and the input it received as part of
the tribal consultation, ANCSA consultation, and public comment periods
regarding the Agency's reasons for its proposing withdrawal as well as
the recent developments.
1. Additional time to submit Section 404 permit application and
initiate permit review. As several commenters noted, PLP has had the
ability as a legal matter to submit a permit application while a
section 404(c) review is ongoing. In fact, PLP submitted its
application on December 22, 2017, notwithstanding the pending section
404(c) review and existing Proposed Determination, and the Corps issued
a public notice that provides PLP's permit application to the public
and states that an EIS will be required as part of its permit review
process consistent with NEPA. As a result, withdrawal of the Proposed
Determination at this time is not necessary to provide PLP with
additional time to submit a section 404 permit application to the Corps
and potentially allow the Corps permitting process to initiate.
2. Remove uncertainty regarding PLP's ability to submit Section 404
permit application and have it reviewed. As many commenters pointed out
and as EPA noted in its proposal, the Corps' regulations allow it to
accept, review, and process a permit application for a proposed project
even if EPA has an ongoing section 404(c) review for that project. In
addition, since PLP has now submitted its permit application to the
Corps regarding the Pebble deposit and the Corps has initiated its
permit review process and begun taking steps to initiate development of
an EIS for this project, any potential uncertainty about PLP's ability
to submit a permit application and have that permit application
reviewed by the Corps has been resolved. The Corps' regulations state
that it will continue to complete its administrative processing of a
permit application for a proposed project if EPA has an ongoing section
404(c) review for that project. While the Corps cannot issue a final
decision on the permit application while a section 404(c) process
remains open and unresolved (33 CFR 323.6(b)), in this case, such a
decision is likely a number of years away. Therefore, this reason to
withdraw the Proposed Determination at this time is no longer
applicable.
3. Allow factual record for Section 404 permit application to
develop. As previously noted, the Corps has already initiated its
permit review process for PLP's application. Even if EPA leaves the
Proposed Determination in place at this time, EPA will provide PLP with
nearly three and a half years (unless a final EIS for the project is
noticed sooner) to advance through the permit review process before
Region 10 could forward a signed Recommended Determination to EPA
Headquarters, if such a decision is made. Thus, in light of EPA's
forbearance from proceeding to the next step of the section 404(c)
process until a later time as described above, EPA concludes that the
factual record regarding the permit application can develop
notwithstanding the Proposed Determination. EPA has discretion to
consider that factual record after it has been further developed before
Region 10 determines whether to forward a signed Recommended
Determination to EPA Headquarters and, if such a decision is made, to
determine the contents of such a Recommended Determination. As such,
this reason does not support withdrawal of the Proposed Determination
at this time.
Further, in light of recent developments and the framework outlined
in the settlement agreement, many of the key concerns raised by those
who supported withdrawal have already been resolved, even while the
Proposed Determination remains in place. For example, concerns
regarding EPA potentially finalizing its section 404(c) review in
advance of PLP submitting a permit application, concerns that the Corps
would not accept or process PLP's permit application with an open
section 404(c) action, and concerns that PLP should be provided more
time to advance through the Section 404 permit and NEPA review
processes before EPA makes any decisions regarding potentially
advancing its section 404(c) review are moot.
Given the relevant statutory authority, applicable regulations,
recent developments, public comments, tribal input, and ANCSA
Corporation input described above, the Agency has decided not to
withdraw the 2014 Proposed Determination at this time. Today's notice
suspends the proceeding to withdraw the Proposed Determination and
leaves that Determination in place pending consideration of any other
information that is relevant to the protection of the world-class
fisheries contained in the Bristol Bay watershed in light of the permit
application that has now been submitted to the Corps. As noted above,
EPA also sought comment on whether the Administrator should review and
reconsider the withdrawal decision consistent with 40 CFR 231.5(c) in
the event that the final decision was to withdraw the Proposed
Determination. Since today's decision is not to withdraw the Proposed
Determination at this time, comments received on this issue do not need
to be addressed.
EPA acknowledges the significant public interest on this issue and
remains committed to listening to all stakeholders as the permitting
process progresses. Neither this decision nor the previous settlement
agreement guarantees or prejudges a particular outcome in the
permitting process or any particular EPA decision-making under section
404(c) or otherwise constrain EPA's discretion except as provided in
the terms of the settlement agreement.
EPA received several comments stating that EPA cannot withdraw a
Proposed Determination without considering the proposed restrictions or
the science or technical information underlying the Proposed
Determination. In light of EPA's decision not to withdraw the Proposed
Determination, those comments are moot.
EPA also received comments that it has to withdraw the Proposed
Determination because it does not have the statutory authority to
initiate the section 404(c) process before a permit application has
been filed with the
[[Page 8671]]
Corps. To the contrary, EPA has the authority whenever it makes the
requisite finding of unacceptable adverse effect. 33 U.S.C. 1344(c); 40
CFR 231.1(a) & (c); see also Mingo Logan Coal Co. v. EPA, 714 F.3d 608,
613 (DC Cir. 2013). As such, EPA need not withdraw the Proposed
Determination on the basis of a lack of statutory authority because EPA
had authority to issue the Proposed Determination.
VI. Further Proceedings
EPA's regulations at 40 CFR 231.5(a) provide a specific time period
for the Regional Administrator to decide whether to withdraw a Proposed
Determination or prepare a Recommended Determination. As explained
above, the Agency has decided not to withdraw the Proposed
Determination at this time and is suspending this withdrawal proceeding
and leaving the Proposed Determination in place. As previously noted,
however, under the terms of the May 2017 settlement agreement, Region
10 may not forward a signed Recommended Determination, if such a
decision is made, before either May 11, 2021, or until public notice of
a final EIS on PLP's CWA Section 404 permit application regarding the
Pebble deposit, whichever comes first.
The Agency intends at a future time to solicit public comment on
what further steps, if any, the Agency should take in the section
404(c) process in order to prevent unacceptable adverse effects to the
watershed's world-class fisheries in light of the permit application
that has now been submitted to the Corps. EPA will review and consider
any other relevant information that becomes available during the
interim. EPA has determined that there is good cause under 40 CFR 231.8
to extend the regulatory time frames in 40 CFR 231.5(a) in order to
allow for an additional public comment period and to align with the
timeframes established in the settlement agreement.
Dated: January 26, 2018.
Chris Hladick,
Regional Administrator, EPA Region 10.
[FR Doc. 2018-04092 Filed 2-27-18; 8:45 am]
BILLING CODE 6560-50-P
