EPA Proposes Limiting Size, but not Stopping, Pebble Mine

EPA Proposes Limiting Size, but not Stopping, Pebble Mine

The EPA has released a “Proposed Determination” as to how it plans to exercise its authority under the Clean Water Act, Section 404(c), regarding the development of the Pebble Mine in the Bristol Bay region of southwest Alaska. Le’t be clear – the EPA is not proposing that construction of the Pebble Mine be prohibited. It is merely proposing that it be limited in scope.

As with its prior documents, the newly-released Proposed Determination has a lot of background information that you have to wade through before you get to the meat of the document. As they say in the journalism business, the EPA seriously buries the lead. This background information details the geographic features of the region, the sockeye salmon habitat and population (as well as other salmon species), the source documents for the EPA assessment, the anticipated size of the Pebble Mine as proposed by Northern Dynasty Minerals, and the final watershed assessment. The EPA also details its legal authority under the Clean Water Act to take the proposed action, and the steps it has followed pursuant to that authority.

The EPA then notes that the “proposed geographic boundaries of the potential disposal site are the waters within the mine claims held by [Northern Dynasty Minerals] subsidiaries, including [Pebble Limited Partnership], that fall within the SFK, NFK, and UTC watersheds.” Those initials stand for South Fork Koktuli, North Fork Koktuli (both of which feed into the Koktuli River, which feeds into the Mulchatna River, which feeds into the Nushagak River and Bristol Bay), and Upper Talarik Creek (which feeds into Lake Iliamna, then the Kvichak River then Bristol Bay). In the executive summary, the EPA notes, “To protect important fishery areas in the SFK, NFK, and UTC watersheds from unacceptable adverse effects, EPA Region 10 recognizes that losses of streams, wetlands, lakes, and ponds and alterations of streamflow each provide a basis to issue this Section 404(c) proposed determination.”

But the scope of the proposed protection is very narrow in that it is only directed at the construction of the mine, not the operation of the mine. Section 404 of the Clean Water Act deals with wetlands and physical impacts to waterways, not with contamination to waterways. Contamination is governed by the National Pollution Discharge Elimination System, or NPDES. The EPA has transferred NPDES permitting authority to the State of Alaska, which hasn’t met a large-scale mine it didn’t like. But it is the likelihood of contamination to the watershed that presents the greatest, most long-lasting threat to Bristol Bay as a result of developing the Pebble Mine. And such contamination would be controlled by the terms of a NPDES permit. Yet addressing that threat is not part of the EPA’s proposed action, and is left to state control.

As the EPA notes in the executive summary,

This evaluation does not include footprint impacts associated with all of the components necessary to construct and operate such a mine (e.g., a major transportation corridor, pipelines, a power-generating station, wastewater treatment plants, housing and support services for workers, administrative offices, and other infrastructure). It also does not rely upon impacts resulting from potential accidents and failures as a basis for its findings. There is a high likelihood that wastewater treatment plant failures would occur, given the long management horizon expected for the mine (i.e., decades). There is also real uncertainty as to whether severe accidents or failures, such as a complete wastewater treatment plant failure or a tailings dam failure, could be adequately prevented over a management horizon of centuries, or even in perpetuity, particularly in such a geographically remote area subject to climate extremes. If such events were to occur, they would have profound ecological ramifications. By not relying on potential accidents and failures, EPA Region 10 has employed a conservative analysis of adverse effects.

So, what does the EPA propose? A smaller Pebble Mine. Again, from the executive summary:

Accordingly, the Regional Administrator proposes that EPA restrict the discharge of dredged or fill
material related to mining the Pebble deposit into waters of the United States within the potential
disposal site that would, individually or collectively, result in any of the following.

1. Loss of streams
a. The loss of 5 or more linear miles of streams with documented anadromous fish5 occurrence; or
b. The loss of 19 or more linear miles of streams where anadromous fish are not currently
documented, but that are tributaries of streams with documented anadromous fish occurrence;
or
2. Loss of wetlands, lakes, and ponds. The loss of 1,100 or more acres of wetlands, lakes, and ponds
contiguous with either streams with documented anadromous fish occurrence or tributaries of
those streams; or
3. Streamflow alterations. Streamflow alterations greater than 20% of daily flow in 9 or more linear
miles of streams with documented anadromous fish occurrence.

Thus, the EPA proposes that it will not authorize Section 404 (wetlands discharge, dredge or fill) permits for a mine whose initial construction size and operation would cause damage greater than these restrictions. Can a Pebble Mine be built that can conform to these parameters? I am sure that the folks at the Pebble Limited Partnership will find a way to say that they can. If, as one person I spoke to suggested, the Pebble Mine did not use a tailings impoundment but instead shipped all waste out via the road corridor to waiting barges at a deep water port in Cook Inlet, then the Pebble Mine would be even less restricted in scope as it would not need a “disposal site” within the defined geographic area. It could also avoid the defined geographic area by constructing the tailings facility somewhere else nearby that was not within the SFK, NFK or UTC areas. Additionally, this determination affects primarily the proposed open pit, not the underground portion of the mine design. Pebble could start with a smaller open pit, mine it completely, remediate it, and then start another pit to continue mining in a scaled approach.

And that’s the real crux of the proposed action by the EPA. Unlike what so many people were hoping for, the EPA is not proposing scuttling the Pebble Mine development, just making it smaller or changing its design. It could still be built and ultimately contaminate the sensitive watershed that produces half of the world’s sockeye salmon supply.

 

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