[Federal Register Volume 82, Number 137 (Wednesday, July 19, 2017)]
[Notices]
[Pages 33123-33124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15181]



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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R10-OW-2017-0369; FRL-9965-20-Region 10]


Proposal 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; request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) Administrator and 
Region 10 Regional Administrator are requesting public comment on this 
proposal to withdraw the EPA Region 10 July 2014 Proposed Determination 
that was issued pursuant of the Clean Water Act, to restrict the use of 
certain waters in the South Fork Koktuli River, North Fork Koktuli 
River, and Upper Talarik Creek watersheds in southwest Alaska as 
disposal sites for dredged or fill material associated with mining the 
Pebble deposit, a copper-, gold-, and molybdenum-bearing ore body. EPA 
agreed to initiate this proposed withdrawal process 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 Agency is taking today's action to afford the public an opportunity 
to comment on the rationale for the proposed withdrawal.

DATES: Comments must be received on or before October 17, 2017.

ADDRESSES: To submit your comments, identified by Docket ID No. EPA-
R10-OW-2017-0369, refer to section I.C. of the SUPPLEMENTARY 
INFORMATION.

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 Submit Comments to the Docket at www.regulations.gov: 
Submit your comments, identified by Docket ID No. EPA-R10-OW-2017-0369, 
by one of the following methods:
     Federal eRulemaking Portal (recommended method of comment 
submission): Go to http://www.regulations.gov and follow the online 
instructions for submitting comments.
     Email: Send email to [email protected]. Include the docket 
number EPA-R10-OW-2017-0369 in the subject line of the message.
     Mail: Send your comments to: Water Docket, Environmental 
Protection Agency, Mail Code 28221T, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460, Attention: Docket ID No. EPA-R10-OW-2017-0369.
     Hand Delivery/Courier: Deliver your comments to EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, 
DC 20460, Attention: Docket ID No. EPA-R10-OW-2017-0369. Such 
deliveries are accepted only during the Docket's normal hours of 
operation, 8:30 a.m. to 4:30 p.m. ET, Monday through Friday (excluding 
legal holidays). Special arrangements should be made for deliveries of 
boxed information. The telephone number for the Water Docket is (202) 
566-2426.
    Instructions: Once submitted, comments cannot be edited or 
withdrawn. The EPA may publish any comment received to its public 
docket. Do not submit any information you consider to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (e.g., on the web, 
cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    On July 21, 2014, EPA Region 10 published in the Federal Register 
(79 FR 42314) a Notice of 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. The notice started a public comment 
period that ended on September 19, 2014. EPA Region 10 also held seven 
hearings throughout southwest Alaska during the week of August 11, 
2014. More than 830 community members participated in the seven 
hearings, more than 300 of whom provided oral statements. In addition 
to testimony taken at the hearings, EPA Region 10 received more than 
670,000 written comments during the public comment period.
    The Pebble Limited Partnership (``PLP''), whose subsidiaries own 
the mineral claims to the Pebble deposit, have not yet filed a CWA 
Section 404 permit application (``permit application'') with the U.S. 
Army Corps of Engineers (``Army Corps''). EPA Region 10's initiation of 
the section 404(c) process did not prohibit PLP from filing a permit 
application and the Army Corps could have processed such a permit 
application while a section 404(c) review was ongoing. The Army Corps 
could not have, however, issued a final decision on a permit 
application while a section 404(c) process remained open and 
unresolved. 33 CFR 323.6(b).
    In 2014, PLP filed three lawsuits against EPA relating to the 
Agency's work in the Bristol Bay watershed. As part of one of the 
lawsuits, PLP obtained a preliminary injunction on November 25, 2014, 
which halted EPA Region 10's section 404(c) review process until the 
case was resolved in May of 2017. Prior to the preliminary injunction, 
the next step in the section 404(c) process would have been for EPA 
Region 10 to either forward a Recommended Determination to EPA 
Headquarters or to withdraw the Proposed Determination pursuant to 40 
CFR 231.5(a).
    The EPA and PLP resolved all outstanding lawsuits in a May 11, 2017 
settlement agreement and the court subsequently dissolved the 
injunction and dismissed the case. Under the settlement agreement, the 
EPA agreed to ``initiate a process to propose to withdraw the Proposed 
Determination.'' Settlement Agreement at page 5, available at https://www.epa.gov/sites/production/files/2017-05/documents/pebble-settlement-agreement-05-11-17.pdf. Today's action is the agreed-upon initiation. 
In addition, should PLP submit a permit application for this project, 
the Agency agreed to not exercise its discretion regarding section 
404(c) review for a certain period of time. Specifically, the 
settlement agreement limits the Agency's ability to move forward with a 
signed Recommended Determination if PLP submits a permit application to 
the Army Corps within 30 months from the date of settlement. If PLP 
files a permit

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application during that time, EPA may not move forward with a signed 
Recommended Determination for 48 months from the effective date of the 
settlement agreement or following issuance of a final environmental 
impact statement on PLP's permit application, whichever comes first. 
The settlement agreement does not require or guarantee that PLP will 
submit a permit application, nor does it guarantee or prejudge a 
particular outcome of that permitting process or EPA's decision-making 
under section 404(c) or otherwise constrain EPA's discretion except as 
provided in the terms of the agreement.
    Pursuant to the settlement agreement and policy direction from 
EPA's Administrator, EPA is proposing to withdraw the July 2014 
Proposed Determination at this time and is taking public comment on 
this proposal. The proposal reflects the Administrator's decision to 
provide PLP with additional time to submit a permit application to the 
Army Corps and potentially allow the Army Corps permitting process to 
initiate without having an open and unresolved section 404(c) review. 
While the pendency of a section 404(c) review would not preclude PLP 
from submitting an application and the Army Corps from reviewing that 
application, as noted above, the Army Corps could not have issued a 
permit while a section 404(c) process was ongoing. A withdrawal of the 
Proposed Determination would remove any uncertainty, real or perceived, 
about PLP's ability to submit a permit application and have that permit 
application reviewed. Because the Agency retains the right under the 
settlement agreement to ultimately exercise the full extent of its 
discretion under section 404(c), including the discretion to act prior 
to any potential Army Corps authorization of discharge of dredged or 
fill material associated with mining the Pebble deposit, the Agency 
believes that withdrawing the Proposed Determination now, while 
allowing the factual record regarding any forthcoming permit 
application to develop, is appropriate at this time for this particular 
matter.
    The Agency is only seeking public comment on whether to withdraw 
the July 2014 Proposed Determination at this time for the reasons 
stated above. In light of the basis upon which EPA is considering 
withdrawal of the Proposed Determination, EPA is not soliciting comment 
on the proposed restrictions or on science or technical information 
underlying the Proposed Determination. While EPA's regulations provide 
for a specified time period for decision making in 40 CFR 231.5(a), EPA 
has determined that there is good cause to extend this period under 40 
CFR 231.8 to allow for this process and full consideration of the 
comments submitted.
    Under EPA's regulations, when a Regional Administrator decides to 
withdraw a proposed determination, the Regional Administrator is 
required to notify the Administrator of such decision. The 
Administrator then has ten days to determine whether to review the 
withdrawal decision. The regulations also require the Administrator to 
provide notice to ``all persons who commented on the proposed 
determination or participated at the hearing,'' and specifies that 
``[s]uch persons may submit timely written recommendations concerning 
review.'' 40 CFR 231.5(c). Rather than require parties to comment on 
today's proposed withdrawal of the Proposed Determination and then to 
comment again should the Regional Administrator finalize the withdrawal 
and forward it to the Administrator, the EPA is providing notice 
through this Federal Register notice to all who commented on the 
Proposed Determination in the 2014 comment period or participated in 
any of the hearings the Agency held on this matter and providing them 
and other interested parties with a timely opportunity to provide 
recommendations regarding further review by the Administrator of any 
final decision to withdraw. Specifically, EPA is also taking public 
comment now on whether the Administrator should review and reconsider a 
final withdrawal decision, if such a decision is made.
    Providing the opportunity to make recommendations regarding the 
potential for Administrator review in today's notice is the most 
efficient and effective way to provide such an opportunity. The 
Administrator is actively engaged in this matter because of his 
involvement with and direction regarding the settlement agreement, and 
this process enables the Administrator to effectively receive and 
consider any such recommendations that are submitted. Finally, this 
approach provides for earlier input by the public in the process (i.e., 
on whether the Agency should withdraw the Proposed Determination now), 
thereby enhancing transparency regarding the Agency's decision-making, 
conserving Agency and public resources, and avoiding duplicative 
comment periods and comments. While EPA's regulations provide for a 10-
day review period for the Administrator, EPA has determined that there 
is good cause to extend this period under 40 CFR 231.8 to allow for 
this process and full consideration of the comments submitted 
concerning the Administrator's review.
    In summary, the EPA is seeking comments on:
     Whether to withdraw the July 2014 Proposed Determination 
at this time for the reasons stated above; and
     if a final withdrawal decision is made following this 
comment period, whether the Administrator should review and reconsider 
the withdrawal decision.
    Following the close of the public comment period, in making the 
decision whether to withdraw the July 2014 Proposed Determination the 
EPA will consider the public comments submitted in response to this 
notice consistent with 40 CFR 231.5.

II. Solicitation of Comments on the Proposal To Withdraw the Proposed 
Determination and Recommendations Regarding the Potential for 
Additional Review by the Administrator

    Please see the section entitled ADDRESSES for information about how 
to obtain a copy of the July 2014 Proposed Determination, the 
settlement agreement, and how to submit comments on the proposal to 
withdraw the July 2014 Proposed Determination as well as 
recommendations regarding the potential for review by the 
Administrator. The EPA Administrator and Region 10 Regional 
Administrator are soliciting comments as described.
    The record will remain open for comments until October 17, 2017. 
EPA has received a number of emails and letters regarding the July 2014 
Proposed Determination since EPA announced the May 11, 2017 settlement 
agreement. EPA will enter this correspondence into the docket and all 
comments, including this correspondence, will be fully considered as 
the EPA Administrator and Region 10 Regional Administrator decide 
whether to withdraw the July 2014 Proposed Determination at this time.

    Dated: July 10, 2017.
Michelle L. Pirzadeh,
Acting Regional Administrator, EPA Region 10.
[FR Doc. 2017-15181 Filed 7-18-17; 8:45 am]
 BILLING CODE 6560-50-P