Outline of Comments in Response to EPA

The EPA is seeking public comments on its decision to withdraw its unprecedented preemptive Proposed Determination against the Pebble Project.  Comments must be received on or before October 17, 2017.  Information about commenting is included at the end of this document.

It is important for the EPA to hear from individuals, groups and companies that support fair and due process for making permitting decisions about resource projects such as Pebble.

Please consider the following in making comments to the EPA: 

  • EPA must withdraw the Proposed Determination to remedy EPA’s prior overreach
    • EPA never had the statutory authority to initiate a Section 404(c) process in the absence of a permit application.  Under the Clean Water Act (CWA), the Corps has the authority to grant permits while EPA has only the authority to veto permits.  The CWA does not permit EPA to impose pre-permit (or preemptive) restrictions on development over large areas of land, as EPA has attempted to do in Bristol Bay.
    • Under Section 404(a), the Corps evaluates a permit application (proposing a specific mine with specific control and mitigation measures) using guidelines it developed in conjunction with EPA and complies with NEPA and regulations developed by the Council on Environmental Quality.  EPA, under 404(c), may then prohibit “the specification … of any defined area” or deny or restrict the use of “any defined area for specification.”  Thus, EPA cannot act in the absence of a permit application detailing the specification and area of development.
    • The legislative history of Section 404 confirms this view.  The Senate Debate on the Conference Report explained that EPA “should have the veto over the selection of the site for dredged soil disposal and over any specific soil to be disposed of in any selected site.”  Congress, therefore, intended to allow EPA to rule on specific proposals, not to allow EPA to create blanket restrictions over large areas of land.
    • The conduct of EPA over the last 40 years confirms that its issuance of a preemptive veto is unprecedented.  EPA has only exercised its authority under Section 404(c) thirteen times.  In each instance, EPA invoked Section 404(c) only after receipt of a permit application that described the scope and details of the project being proposed, the anticipated environmental impact, and techniques to be employed to mitigate or control that impact.
    • The House Oversight Committee in 2015 concluded that “EPA’s use of a preemptive veto (at Pebble) was unprecedented and without a legal basis.”  The Committee described EPA’s course of action as “an unprecedented change in the agency’s process for regulating resource and development projects,” and called on EPA to “cease all preemptive 404(c) activity” to allow for the normal permitting process to take place. 
    • Many Alaska industry and trade associations expressed concern about the EPA abandoning the normal process for evaluating projects such as Pebble.  They joined with national trade associations in expressing this concern multiple times.  The rules and the rule of law matter.  Removing the Proposed Determination is an important step in returning fair and due process to the EPA.
  • Withdrawal of the Proposed Determination will not harm the environment; it only allows PLP to engage in the normal permitting process.
  • EPA must withdraw its Proposed Determination because it was based on an untested, ad hoc analysis that is not sanctioned by the CWA or NEPA.
    • Normally, a proposed developer submits a Section 404 CWA permit application to the Corps.  Once the permit application is filed, NEPA requires the Corps to “take a hard look” at potential impacts of the development application and prepare an Environmental Impact Statement (“EIS”). 
    • Rather than waiting for PLP to file a Section 404 permit application, and adhering to the traditional permitting process, EPA commissioned a watershed assessment of the Bristol Bay region – the Bristol Bay Watershed Assessment (“BBWA”).  The BBWA – the scientific analysis underlying the Proposed Determination – was fatally flawed.
    • The BBWA examines the effects of three hypothetical mining scenarios on salmon fisheries, but none of these hypothetical mining scenarios incorporated industry best practices, and were in fact demonstrably un-permittable under U.S. and Alaska regulations.
    • The BBWA also largely dismisses the possibility of compensatory mitigation, which would be an obvious and required feature of any robust permit application review process. 
    • The BBWA authors acknowledged there were significant gaps in the assessment. Likewise, BBWA peer reviewers noted that the BBWA lacked important information about the potential effects of mine development that must be examined during a more rigorous and comprehensive NEPA EIS process.  EPA did not address these criticisms, often noting that the reviewers’ concerns were irrelevant since the BBWA is not a “decision document” and that EPA technical staff expected “evaluation of measures that would be proposed for an actual mine would occur through the regulatory process.”
    • Even setting aside the scientific flaws in the BBWA’s analysis, the BBWA cannot serve as the basis for a 404(c) veto.  To invoke 404(c), EPA must determine that “the discharge of such materials into such area will have an unacceptable adverse effect.”  The BBWA, which assumes a hypothetical mine development scenario, cannot possibly support that determination.  The data and analyses set forth in the assessment are speculative and unquantifiable; thus the assessment does not demonstrate anything about the magnitude of adverse effects on the environment, let alone whether such effects are unacceptable. 
    • Tellingly, both the Corps and the State of Alaska expressed deep concerns about EPA’s ad hoc evaluation of the Pebble Project.  
      • When EPA invited the Corps to participate in the BBWA, the Corps reacted by questioning EPA’s authority and motives for such a study, and then declined to participate.  Then, when EPA issued its Notice of Intent to proceed under Section 404(c), the Corps again declined to submit any information for the record, stating that it had “not received a permit application . . . and is therefore unable to evaluate the impacts of potential discharges associated with the Pebble deposit.”  
      • The State of Alaska objected to EPA’s announcement that it would conduct an assessment of the Bristol Bay watershed:  “This assessment and the evolving process that EPA proposes is, frankly, unprecedented and not prescribed in statute or regulation.  Indeed, the State believes that if EPA deems a review under Section 404(c) of the Clean Water Act is needed, that review should be conducted in conjunction with a pending permit application where actual activities and potential disposal sites are clearly specified, not in the abstract as it will be in this assessment process.”  
    • Abandoning the NEPA framework, as EPA did when it initiated the Section 404(c) process in the absence of a PLP permit application, creates the potential for an agency to engage in a faulty process that is both scientifically unsound and biased. When secrecy replaces the transparency of NEPA, outside influences with predetermined agendas can seep in. This undermines the public’s confidence that the Agency will provide due process and a fair and objective, science-based decision for future development projects.
  • EPA should withdraw the Proposed Determination to allow the Corps to evaluate the Pebble project using the traditional NEPA permitting process.
    • Significant mining projects are subject to NEPA under Section 404.  NEPA requires that an applicant provide a realistic and detailed plan along with measures mitigating potential environmental impacts.  Then, the Corps will prepare an EIS evaluating, among other things environmental effects and strategies to mitigate them and economic considerations. 
    • Unlike the BBWA, the NEPA process provides that economic and social effects of a proposed action are to be assessed in an EIS.  These economic effects will normally include: direct jobs associated with the development project; indirect jobs in the local regions using a standard multiplier; annual local payrolls; annual capital and operating expenditures; state and local tax payments; and royalty payments to government entities.
    • EPA Region 10 has admitted that “[t]he permit and NEPA processes could generate a great deal more detailed environmental information and analysis upon which to base a [regulatory] decision” than proceeding with a preemptive Section 404(c) action.
    • The law as written makes sound policy.  A fully developed record, including the Clean Water Act permit application and EIS, consultation with interested state and federal agencies, and public comment and involvement, gives EPA the breadth of information necessary to make such an important decision.  By prioritizing the gathering and analysis of as much information as necessary, the statutory process elevates scientific reasoning and allows for a full and objective assessment of the potential impacts of a particular project.  This type of deliberative process does not lend itself to shortcuts.
    • NEPA is one of the few national programs on which environmentalists, decision-makers, and industry are on the same page.  It is widely considered the gold standard of environmental assessment.  The process has withstood changes in Congress and the White House because it provides rigorous, objective review.  
      • The National Academy of Sciences/National Research Council advised the U.S. Congress: “The NEPA process is the key to establishing an effective balance between mineral development and environmental protection.  The effectiveness of NEPA depends on the full participation of all stakeholders throughout the NEPA process.”  
      • The Natural Resources Defense Council (NRDC) endorsed the NEPA process as “democratic at its core,” explaining that “[m]uch like the Magna Carta protected people from the dangers of monarchical rule, NEPA protects people by providing transparency in federal projects.  Both the Magna Carta and NEPA espouse the ideals of public participation and democracy by giving citizens a voice in government decisions.”  Other environmental organizations also have touted the benefits of the NEPA process.  
  • The fate of the Pebble project cannot be rationally decided without consideration of the full social, economic and environmental impacts of the project, and this information will be developed through the NEPA process.
    • Considering the potential benefits of a project is even more critical considering the dire economic circumstances in the region.  Many of the villages near the Pebble Project have poverty levels of over a third of the population.  
    • High unemployment levels have forced significant migration to Anchorage and other cities.    For example, the population of the Lake and Peninsula Borough declined 17% between 2000 and 2010, while the Bristol Bay Borough lost more than 23% of its population.
    • In several communities, schools have closed or are threatened with closure as a result of diminishing enrollment.
    • Consideration of the Pebble Project must take these local economic factors into account.
  • EPA must withdraw the Proposed Determination to signal to the investing community that there will be a return to normal order in the CWA permitting process
    • EPA’s unprecedented move to initiate a preemptive veto sent shock waves through the entire regulated community and threatened to undermine the federal environmental permitting system, to say nothing of the devastating effects the specific veto would have on Bristol Bay’s local economy. 
    • In the published notice in the Federal Register, the EPA noted that withdrawing the Proposed Determination “would remove any uncertainty, real or perceived, about PLP’s ability to submit a permit application and have the permit application reviewed.”
    • The American Exploration & Mining Association warned that EPA’s actions at Pebble are “sending a chilling message to the business and investment community, and has had a negative impact on exploration and mining projects not only in Alaska, but the entire United States. In fact, the world and its investment community are watching. EPA’s action at Pebble will clearly indicate whether the United States is open for investment, or closed to innovation, opportunity and job creation.”
    • Ruling against a project at the end of an open process that prioritized science and informed decision-making is a possibility every investor faces.  Investors do not expect, however, to be shut out of a contrived, one-sided process from the beginning and informed of the rejection at the end.  That is exactly what EPA did to PLP when it initiated the preemptive veto here
    • The harmful effects of continuing with EPA’s veto process will go well beyond the mining industry, as 404 permits are required in so many circumstances that they affect every area of our economy.  
    • The Corps processes approximately 60,000 permits a year, and, according to some estimates, roughly $220 billion of investment per year depends on these permits.  These investors expect regulators to place reasonable restrictions on projects; they typically do not expect regulators to make preemptive decisions based on new policy courses before an application is even submitted.  For the process to be fair, developers must have a full opportunity to present plans, defend science, and modify projects to meet legitimate concerns.  This is good policy; it is also the law.
  • Background
    • The Pebble Deposit, located in Southwest Alaska, is one of the world’s most significant undeveloped deposits of copper, gold, and molybdenum.
    • The Pebble Partnership has invested more than $750 million in the proposed Pebble Project, principally on geological, environmental, engineering, and other technical studies, toward the development of an environmentally sound and socially responsible mine plan.
    • According to a 2013 study by IHS Global Insight about the economic benefits of potential mine at Pebble, the project has the potential to create up to 15,000 U.S. jobs, contribute up to $64 billion to U.S. gross domestic product, and generate up to $18 billion in federal, state, and local tax revenues.
    • EPA’s 2014 Proposed Determination would have resulted in a preemptive veto of the Pebble Project before PLP had even defined a development plan or filed for permits.  Removing this precedent setting action will restore the normal, fair, and objective permitting and review process for Pebble.  

How to comment on EPA's proposal

Federal eRulemaking Portal (recommended method): Visit regulations.gov (docket ID: EPA-R10-OW-2017-0369) and follow the instructions for submitting comments.

Email: ow-docket@epa.gov (reference docket number EPA-R10-OW-2017-0369 in the email subject line).

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.

All comments are due by October 17, 2017.