[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.

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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

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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 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.

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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.

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

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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.
[FR Doc. 2018-04092 Filed 2-27-18; 8:45 am]
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