31 December 2014

08 December 2014

Timing set in FACA case; 404(c) process delayed

In late November Federal Judge H. Russel Holland ordered a preliminary injunction to halt the U.S. Environmental Protection Agency's 404(c) proceedings related to the Pebble deposit in Bristol Bay until he rules on the merits of a lawsuit the Pebble Limited Partnership (PLP) brought against the agency. Afterward, EPA attorneys interpreted the ruling as allowing at least internal work on the process. However, last week Judge Holland clarified his instructions in a Case Status order, writing that, "Defendants may not engage in any activities related to the 404(c) process."

This order stands until after the court has ruled on the merits of PLP’s case that alleges EPA violated the Federal Advisory Committee Act (FACA) during the process of developing the Bristol Bay Watershed Assessment, a document which informed its decision to pursue 404(c) protections at the Pebble deposit area in Bristol Bay.

The same Case Status set out the timeline for proceeding with the FACA case, as follows:

By Dec. 19, 2014 - PLP to submit an amended complaint (the Judge requested a much shorter version)

By Jan., 2015 - EPA to file a motion to dismiss (EPA already filed a motion to dismiss, but needs to revise it based on the amended complaint)

By Feb. 17, 2015 - PLP to file its opposition to the motion to dismiss

By March 6, 2015 - EPA will reply in support of the motion to dismiss

TBA - a hearing on the motion to dismiss will be scheduled after the court has reviewed the motion.

EPA staff had been in the process of reviewing more than 671,000 public comments submitted on its Proposed Determination, with next steps--either a Recommended Determination or withdrawal of the Proposed Determination--possible by Feb. 4, 2015. The judge’s ruling delays this work until late spring or early summer.

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Read about the Preliminary Injunction

More about the Federal Advisory Committee Act (FACA)

More about the 404(c) process

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24 November 2014

Court issues injunction delaying EPA process on Pebble

U.S. District Court Judge H. Russel Holland has granted a preliminary injunction that temporarily stops the U.S. Environmental Protection Agency from  proceeding with a 404(c) process that could result in restrictions at the Pebble deposit.

The preliminary injunction relates to a civil suit the Pebble Limited Partnership filed in early September alleging EPA violated both the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) when determining whether it would initiate Section 404(c) of the Clean Water Act to impose restrictions at the Pebble site.

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17 November 2014

Mount Polley: officials reassure Alaska, mine lays off workers, investigators ask for public input

In an effort to restore Alaskans' confidence in Canadian mining, British Columbia's Energy Minister Bill Bennett addressed the Alaska Miners Association's annual meeting, held in early November.

Bennett gave an update on the Canadian government's response to the Aug. 4 Mount Polley breach, where the tailings pond at the mine failed, ultimately discharging an estimated 2.6 billion gallons of waste water and 1.3 billion cubic yards of tailings into the watershed in the Polley Lake/Hazeltine Creek area, a tributary of the Fraser River.

The AMA meeting was just one stop on his mission to try to regain confidence in Canadian mining projects, some of which are located upstream of fish-bearing waters in Southeast Alaska.

The spill heightened Alaskans' awareness of the risks posed by the proposed Pebble mine. Officials with Pebble Limited Partnership often extolled the Canadian mines along the Fraser River as successful examples of the ability for mining and fishing to co-exist.

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06 November 2014

Bristol Bay Forever: after long effort, initiative may still face legal challenges

Unofficial results show that 65 percent of voters approved Ballot Measure 4, also known as the Bristol Bay Forever initiative, in last Tuesday’s general election. This outcome could be interpreted as a public vote against Pebble, but the initiative likely will be up against legal challenges.

Bristol Bay Forever, as described by its sponsors, adds another layer of approvals to the typical permitting process for any large-scale metallic sulfide mine, like Pebble, that would be developed in the Bristol Bay Fisheries Reserve. It does not affect other types of development in Bristol Bay or large-scale mines in other areas of Alaska.

Proponents say the additional step is needed to give people their only chance to say “Yea” or “Nay” to a large-scale mine project in this unique reserve. Critics, including the Alaska Miners Association  (AMA), have said it’s not fair to give legislators the power to decide on a project after developers have spent years and a lot of money getting through the established permitting process.

In fact, AMA and others challenged “Bristol Bay Forever” even before it landed on the ballot, saying that it was unconstitutional. The courts did not agree. Last summer the Alaska Supreme Court ruled that the measure didn’t violate any provisions in the state constitution, and it was added to November’s ballot. In the lead up to the election, AMA Executive Director Deantha Crockett vowed to take the issue back to the courts if the measure passed.

There was very little campaigning against the initiative. Pebble Limited Partnership (PLP) CEO Tom Collier explained in September that the company did not have funds to do so. He told a Resource Development Council gathering in September that, “it’s a stupid way to run the government – to make any decision. We’re confident it will be thrown out in courts if it passes.”

In any case, members of the public will have to wait years to see if Bristol Bay Forever is used as intended. The initiative’s call for legislative approval of a project comes into play only after the permitting process is complete. That process, which can take four or more years, begins with the Pebble Partnership finalizing its mining plan and submitting applications. PLP says the documents are mostly ready, but will wait for a new partner to invest before moving forward. (Major investor Anglo-American withdrew from the project a year ago, leaving Northern Dynasty Minerals as the sole owner.)

Crockett and other mining advocates say an initiative like Bristol Bay Forever can chill the atmosphere for attracting investors to Alaska projects like Pebble. In this respect – even though the Bristol Bay Forever initiative as written is intended to add final decision-making layer to the permitting process – it may effectively deter development of Pebble before that process even begins.

Read more:

Bristol Bay Forever would give lawmakers say on mine permitting (KTUU, September 7, 2014)

Text of Bristol Bay Forever initiative


Resource Development Council breakfast: EPA vs. Pebble talk, Tom Collier, Pebble Limited Partnership CEO

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03 November 2014

Alaska candidates: Where do they stand on Pebble?

The issue of the Pebble mine is playing a role in Alaska’s election this year, particularly in the Senate race between incumbent Mark Begich and candidate Dan Sullivan. Some candidates have clear positions against the project. Others have no stated position for or against the mine but stand behind Alaska’s permitting process. Here is a visual guide to the stance's of the main candidates running for state-wide office.

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01 November 2014

News Roundup: November 2014

Recent news related to the proposed Pebble mine includes election-related coverage and a new lawsuit brought against the EPA by the Pebble Partnership.

Alaska mine project splits major state industries (Associated Press, Nov. 1, 2014)

This Associated Press article by Nicholas Riccardi says the Pebble mine project "embodies the paradoxes of Alaska politics," and describes how support or opposition to the project could affect political candidates at the ballot box on Tuesday.

Read the story.

Pebble Partnership sues EPA over contacts with environmentalists (KTUU, Oct. 22, 2014)

Pebble Partnership (PLP) is suing EPA again, reports KTUU news, this time to force the agency to hand over thousands of pages of emails that PLP says will prove EPA collaborated with environmentalists to limit development at the Pebble deposit.

Read the story.

Pebble mine row revives classic split in the Last Frontier (Al Jazeera, October 17, 2014)

Al Jazeera News featured a five-part series on Alaska political issues, including a piece on the proposed Pebble mine. The article gives background on the issue, and covers Ballot Measure 4, the "Bristol Bay Forever" initiative that would require the Alaska State Legislature to approve the mine if it were to be permitted.

Read the story.

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30 September 2014

Feds: State must improve election info for Alaska Natives


A recent U.S. District Court ruling found that the state hasn't done enough in the past to ensure Alaska Native voters can understand issues appearing on the ballot before election day. Challenges for the Alaska Division of Elections include adequately translating bureaucratic language, providing enough information in advance of election day and meeting the needs of voters who speak a different dialect of a particular Alaska Native language.

Currently the Alaska Division of Elections has made audio versions of the Nov. 4 ballot measures available in several Alaska Native languages: Central Yup'ik, Siberian Yup'ik, Inupiaq, Koyukon Athabascan and Gwich'in Athabascan. A written translation of the ballot is available in Yup'ik.

On its language assistance page, the state describes an approach that focuses on written translation assistance for languages that have historically been written, and oral assistance for languages that are historically unwritten (such as Alaska Native languages).

As a result of the recent court ruling, the state was required to craft a plan to meet the informational needs of Alaska Native voters in a more substantive way. The state released its plan on Sept. 9, saying it would work to let people know language assistance is available, will prepare outreach workers to give language assistance, and will address dialectical differences in ballot language translations.

Attorneys with the Native American Rights Fund, which represents Yup'ik and Gwich'in language speakers, responded with a request for additional changes before the Nov. 4 election.

A judge has yet to rule on the state's plan and the response from plaintiffs.


Learn more

About language assistance (Alaska Division of Elections)

Alaska Native voters win another civil rights battle (Indian Country Today, Sept. 5, 2014)

State presents election translation plan (Alaska Public, Sept. 9, 2014)

Alaska Native speakers' attorneys spell out election translation needs (KNBA, Sept. 16, 2014)

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25 September 2014

PLP vs. EPA: one case dismissed, the other rescheduled

There was movement last week in both cases Pebble Limited Partnership (PLP) has brought against the U.S. Environmental Protection Agency (EPA). Timing is a consideration in both.

"Statutory authority" case dismissed - On Friday, Judge H. Russel Holland dismissed a case PLP filed last May that questioned EPA's authority to review the potential risks that could results from mining the Pebble depsoit under Section 404(c) of the Clean Water Act before PLP files for a 404 permit. EPA has overisght authority over all 404(c) permitting but has only very rarely exercised that authority before a permit application had been filed. Judge Holland dismissed the case as premature, saying the agency has just begun its deliberations and has not made a final decision or action. Also supporting this decision was the judge's determination that PLP has not incurred any "loss of rights" or "imposition of obligations" as a result of EPA's ongoing process. In response, PLP CEO Tom Collier said the company would pursue its claims again if EPA finalizes proposed restrictions at the Pebble deposit.

"FACA/APA" case hearing rescheduled - This civil case, filed by PLP in early September, alleges that EPA violated both the Federal Advisory Committee Act (FACA) and the Administrative Procedure Act (APA) when determining whether it would initiate Section 404(c) of the Clean Water Act. Last week EPA and PLP agreed to a briefing schedule on PLP's motion for a preliminary injunction which the court intends to resolve no later than Dec. 3, 2014. Additionally, EPA agreed that it would not move on to the next step in the 404(c) process until at least Jan. 2, 2015. EPA had already notified the public that it had extended the timeframe for this next step until no later than Feb. 4, 2015, citing the hundreds of thousands of public comments that need to be reviewed. The next step in the process is either to release a "Recommended Determination" detailing how it intends to restrict disposal of dredge/fill material at the Pebble deposit area, or to withdraw its "Proposed Determination."

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Judge dismisses Pebble lawsuit as premature (Alaska Dispatch News, September 26, 2014)

PLP's Tom Collier describes efforts to fight EPA  (PebbleWatch, September 8, 2014)

About Section 404(c)

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20 September 2014

EPA extends timeframe for next step in 404(c) process

404cExtensionCiting the time it would take to review thousands of public comments submitted in response to a Proposed Determination to restrict dredge/fill disposal in the Pebble deposit area of Bristol Bay, Alaska, the U.S. Environmental Protection Agency announced Thursday that it is extending the typical timeframe for the next stage in the 404(c) process initiated in February 2014.

Typically, once public hearings are complete, EPA has 30 days to either withdraw the Proposed Determination or finalize a Recommended Determination, which is then submitted to EPA headquarters in Washington, D.C., (see our chart of the entire 404(c) process).

According to EPA's announcement:

"EPA believes that more time is necessary to adequately review and consider the many thousands of comments we have received. In order to allow full consideration of the extensive administrative record, including public comments, we are extending the time period to withdraw the Proposed Determination or to prepare the Recommended Determination until no later than February 4, 2015."

Learn more

Notice of extension (Federal Register)

Review public comments

EPA Proposed Determination

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