[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Notices]
[Pages 45749-45756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18596]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R10-OW-2017-0369; 9998-93-Region 10]


Notification of Decision 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) Region 
10 Regional Administrator is providing notice of the EPA's decision to 
withdraw the Proposed Determination 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.

FOR FURTHER INFORMATION CONTACT: Visit www.epa.gov/bristolbay. Erik 
Peterson is the project manager. Please call a Bristol Bay-specific 
phone line at (206) 553-0040, or email r10bristolbay@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

    EPA Region 10 is providing notice under 40 CFR 231.5(c) of EPA's 
withdrawal of the Proposed Determination 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 
issued under EPA's Clean Water Act (CWA) Section 404(c) authority. EPA 
is concluding the process it started in July 2017, suspended in January 
2018, and resumed in June 2019 to withdraw the Proposed Determination. 
EPA has decided that now is the appropriate time to complete the 
withdrawal of the Proposed Determination in light of developments in 
the record and the availability of processes for EPA to address record 
issues with the U.S. Army Corps of Engineers (Corps) prior to any 
potential future decision-making by EPA regarding this matter.
    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=EPAR10-OW-2017-0369.
    D. How to Obtain a Copy of Notification of Suspension: The February 
2018 notice announcing the EPA's decision to suspend the proceeding to 
withdraw the Proposed Determination at that time is available via the 
internet on the EPA Region 10 Bristol Bay site at www.epa.gov/bristolbay.

II. Factual Background

    In 2011, EPA initiated an assessment to determine the significance 
of the Bristol Bay watershed's ecological resources and evaluate the 
potential impacts of large-scale mining on these resources. The stated 
purpose was to characterize the biological and mineral resources of the 
Bristol Bay watershed; increase understanding of the potential impacts 
of large-scale mining on the Region's fish resources; and inform future 
decision-making. Also in 2011, Northern Dynasty Minerals, which wholly 
owns the Pebble Limited Partnership (PLP), submitted information to the 
United States Securities and Exchange Commission that detailed its 
intention to develop a large-scale mine at the Pebble deposit. EPA 
Region 10 used this information to develop its mining scenarios for the 
Bristol Bay Watershed Assessment. After two rounds of public comments 
on drafts of the Bristol Bay Watershed Assessment in 2012 and 2013 that 
generated over one million comments, as well as independent external 
peer review, EPA Region 10 finalized the Assessment in January of 2014.
    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 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

[[Page 45750]]

material associated with mining the Pebble deposit. This Proposed 
Determination was issued preemptively; in other words, it was issued 
prior to PLP's submission of a CWA Section 404 permit application to 
the Corps. 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. In addition to 
testimony taken at the hearings, EPA Region 10 received more than 
670,000 written comments during the public comment period.
    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). However, PLP filed a lawsuit that alleged that EPA formed 
three advisory committees in violation of the Federal Advisory 
Committee Act to assist EPA ``in developing and implementing an 
unprecedented plan to assert EPA's purported authority under section 
404(c) of the federal Clean Water Act . . . in a manner that will 
effectively preempt [p]laintiff from exercising its right through the 
normal permit process to extract minerals from the Pebble Mine deposit 
in Southwest Alaska.'' Second Amended Complaint for Declaratory and 
Injunctive Relief at 2, Pebble Limited Partnership v. EPA, No. 3:14-cv-
00171 (D. Alaska July 7, 2015). As part of this litigation, the court 
issued a preliminary injunction against EPA on November 25, 2014 after 
the court determined that PLP had ``a fair chance of success on the 
merits'' with respect to one of the alleged federal advisory 
committees. Order Granting Preliminary Injunction at 1-2, Pebble 
Limited Partnership v. EPA, No. 3:14-cv-00171 (D. Alaska. Nov. 25, 
2014). The injunction halted EPA Region 10's section 404(c) review 
process until the case was resolved. EPA and PLP resolved all 
outstanding lawsuits in a May 11, 2017 settlement agreement, and the 
court subsequently dissolved the injunction and dismissed the cases. As 
part of the settlement, EPA agreed that it would not advance to the 
next interim step in the section 404(c) review process (i.e., a 
Recommended Determination), if such a decision is made, until either 
May 11, 2021 or EPA publishes a notice of the Corps' final 
environmental impact statement (EIS) for the project, whichever is 
earlier. EPA also agreed to ``initiate a process to propose to withdraw 
the Proposed Determination.''
    In July 2017, EPA Region 10 issued a notice of a proposal to 
withdraw its July 2014 Proposed Determination that was published in the 
Federal Register (82 FR 33123, July 19, 2017). In this notice, EPA 
defined the scope of the input it was seeking on its proposal to 
withdraw. Specifically, EPA sought input on three reasons underlying 
its proposed withdrawal:
    1. Provide PLP with additional time to submit a CWA 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.
    The notice opened a public comment period that closed on October 
17, 2017. During the public comment period, EPA received more than one 
million public comments regarding its proposal to withdraw. EPA also 
held two hearings in the Bristol Bay watershed during the week of 
October 9, 2017. Approximately 200 people participated in the hearings. 
EPA also consulted with federally recognized tribal governments from 
the Bristol Bay region and Alaska Native Claims Settlement Act Regional 
and Village Corporations with lands in the Bristol Bay watershed on the 
Agency's proposal to withdraw.
    On December 22, 2017, PLP submitted a CWA Section 404 permit 
application to the Corps to develop a mine at the Pebble deposit. On 
January 5, 2018, the Corps issued a notice that provided PLP's permit 
application to the public and stated that an EIS would be required as 
part of its permit review process consistent with the National 
Environmental Policy Act (NEPA). The Corps also invited relevant 
federal and state agencies, including EPA, to be cooperating agencies 
on the development of the EIS.
    On January 26, 2018, EPA Region 10 issued a notice announcing a 
``suspension'' of the proceeding to withdraw the Proposed 
Determination. This action was published in the Federal Register on 
February 28, 2018 (83 FR 8668).
    On March 1, 2018, EPA Region 10 accepted the Corps' invitation to 
serve as a cooperating agency for development of the EIS for the Pebble 
project. As a cooperating agency, EPA has participated in meetings and 
provided comments on early drafts of EIS material, including on 
sections of the Preliminary DEIS in December of 2018. EPA also provided 
scoping comments to the Corps on June 29, 2018.
    The Corps released a Draft EIS and Section 404 Public Notice (404 
PN) on February 20, 2019. The public comment periods for both opened on 
March 1, 2019 and closed on July 1, 2019. The Corps received over 
100,000 comments on the Draft EIS. EPA submitted over 100 pages of 
comments to the Corps on the Draft EIS and over 50 pages of comments on 
the 404 PN.
    On June 26, 2019, the EPA General Counsel, acting by delegated 
authority for the Administrator, directed EPA Region 10 ``to continue 
deliberating regarding whether to withdraw the 2014 Proposed 
Determination or alternatively, decide to leave the 2014 Proposed 
Determination in place.'' The General Counsel's memorandum indicated 
that the suspension notice had created confusion regarding the status 
of the 2014 Proposed Determination and that by ``making a decision one 
way or the other, the Region will provide much-needed clarity and 
transparency to the public on this issue.'' In addition, the General 
Counsel also asked the Region to ``reconsider its previous statement 
that it would seek additional public comment on the 2014 Proposed 
Determination, in light of the ample opportunity for public comment 
previously provided and the current public comment opportunity on the 
more than 1,400-page [Draft EIS].''

III. Legal Background

A. CWA Section 404(c)

    CWA Section 404(a) allows the Corps to issue permits authorizing 
the discharge of dredged or fill material at specified disposal sites. 
Section 404(b) provides that ``[s]ubject to subsection (c) . . ., each 
such disposal site shall be specified for each such permit by the 
Secretary. . . .'' CWA Section 404(c) authorizes EPA to deny or 
restrict the use of defined areas as a disposal site:

    The Administrator is authorized to prohibit the specification 
(including the withdrawal of specification) of any defined area as a 
disposal site, and he is authorized to deny or restrict the use of 
any defined area for specification (including the withdrawal of 
specification) as a disposal site, whenever he determines, after 
notice and opportunity for public hearings, that the discharge of 
such materials into such area will have an unacceptable adverse 
effect on municipal water supplies, shellfish beds and fishery areas 
(including spawning and breeding areas), wildlife, or recreational 
areas. Before making such determination, the Administrator shall 
consult with the Secretary. The Administrator shall set forth in 
writing and make public his findings and his reasons for making any 
determination under this subsection.

    The statute authorizes, but does not mandate, EPA to initiate the 
section 404(c) process. City of Olmstead Falls v. EPA, 266 F. Supp. 2d 
718, 723 (N.D. Ohio 2003). EPA's decision whether or

[[Page 45751]]

not to exercise section 404(c) is akin to enforcement discretion where 
an agency's discretion is at its broadest. EPA may decide to exercise 
its discretionary authority under section 404(c) ``whenever'' it makes 
a determination that a discharge will have an 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). Once it makes the 
required determination, EPA has the authority to fully prohibit 
discharges or issue restrictions or conditions on discharges.

B. CWA Section 404(c) Regulations

    EPA's regulations in 40 CFR part 231 establish the procedures for 
EPA's consideration of whether to use its section 404(c) authority:
     Step 1: Initial Notification. If the EPA Regional 
Administrator has reason to believe, after evaluating the available 
information, that an unacceptable adverse effect could result from the 
specification or use for specification of a defined area as a disposal 
site, the Regional Administrator may initiate the section 404(c) 
process by notifying the Corps, the applicant (if any), and the site 
owner that he intends to issue a proposed determination. Each of those 
parties then has 15 days to demonstrate to the satisfaction of the 
Regional Administrator that no unacceptable adverse effects will occur, 
or the District Engineer can provide notice of an intent to take 
corrective action to prevent an unacceptable adverse effect.
     Step 2: Proposed Determination. If within 15 days no such 
notice is provided, or if the Regional Administrator is not satisfied 
that no unacceptable adverse effect will occur, the Regional 
Administrator must publish a notice of the proposed determination in 
the Federal Register, soliciting public comment and offering an 
opportunity for public hearing.
     Step 3: Withdrawal of Proposed Determination or 
Preparation of Recommended Determination. Following the public hearing 
and close of the comment period, the Regional Administrator must either 
withdraw the proposed determination or prepare a recommended 
determination. A decision to withdraw may be reviewed at the discretion 
of the Assistant Administrator for Water at EPA Headquarters.\1\ If the 
Regional Administrator prepares a recommended determination, the 
Regional Administrator then forwards it and the complete administrative 
record compiled in the Regional Office to the Assistant Administrator 
for Water.
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    \1\ In 1984, the EPA Administrator delegated the authority to 
make final determinations under section 404(c) to EPA's national CWA 
Section 404 program manager, who is the Assistant Administrator for 
Water. That delegation remains in effect. With regard to EPA's 
Section 404(c) action for the Pebble deposit area, on March 22, 
2019, Administrator Wheeler delegated to the General Counsel the 
authority to perform all functions and responsibilities retained by 
the Administrator or previously delegated to the Assistant 
Administrator for Water.
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     Step 4: Final Determination. Within 30 days the Assistant 
Administrator for Water will consider the recommended determination of 
the Regional Administrator and the information in the administrative 
record, and also consult again with the Corps, the applicant (if any), 
and the site owner. Following consultation and consideration of all 
available information, the Assistant Administrator for Water makes the 
final determination affirming, modifying, or rescinding the recommended 
determination.
    With regard to Step 1, the regulations provide that the Regional 
Administrator ``may'' initiate certain actions if he or she ``has 
reason to believe'' that an unacceptable adverse effect ``could 
result.'' 40 CFR 231.3(a). The regulations do not require immediate 
action where the Regional Administrator makes such a finding because 
the Regional Administrator has the ``necessary discretion in deciding 
when to act or whether to act at all.'' 44 FR 58079, October 9, 1979. 
In addition, EPA uses the term ``could'' for this early stage ``because 
the preliminary determination merely represents a judgment that the 
matter is worth looking into.'' 44 FR 58078, October 9, 1979. 
Importantly, a ``proposed determination does not represent a judgment 
that discharge of dredged or fill material will result in unacceptable 
adverse effects; it merely means that the Regional Administrator 
believes that the issue should be explored.'' 44 FR 58082, October 9, 
1979.
    Although the regulations provide a standard for the Regional 
Administrator's decision regarding whether to issue a recommended 
determination (i.e., discharge of material ``would be likely to have an 
unacceptable adverse effect.''), the regulations do not provide a 
regulatory standard for the Regional Administrator's decision to 
withdraw a proposed determination. 40 CFR 231.5(a), (c). Such a 
decision is at the discretion of the Regional Administrator ``after 
review of the available information.'' 44 FR 50582, October 9, 1979. 
Instead, the regulations only include procedural requirements for the 
withdrawal of a proposed determination. In particular, the Regional 
Administrator must notify the Administrator of the decision who then 
has 10 days to notify the Regional Administrator of his or her intent 
to review. 40 CFR 231.5(c). In addition, the Regional Administrator 
must send copies of such notification to all ``persons who commented on 
the proposed determination or participated at the hearing.'' Id. The 
regulations provide that ``[s]uch persons may submit timely written 
recommendations concerning review.'' Id. EPA's final rule preamble 
explains that the purpose of this requirement was to allow for ``public 
input into the Administrator's decision whether to review the Regional 
Administrator's withdrawal of a proposed determination.'' 44 FR 58081, 
October 9, 1979.
    In addition, EPA's implementing regulations recognize the statutory 
mandate for EPA to consult with the Corps on its section 404(c) 
decision. Indeed, EPA's regulations require consultation with the Corps 
throughout the various stages of the regulatory process. Of particular 
note, the regulations contemplate two specific engagements with the 
Corps during the initial stages of the section 404(c) process.
    First, EPA's regulations generally contemplate that where there is 
a permit application pending, the Regional Administrator's initial 
determination of whether the discharge ``could'' result in an 
unacceptable adverse effect would be made after considering the record 
developed during its coordination with the Corps on the permit 
application. Section 231.3(a) provides that the Regional 
Administrator's decision under that provision must be based on an 
evaluation of ``information available to him, including any record 
developed under the section 404 referral process specified in 33 CFR 
323.5(b).'' \2\ 40 CFR

[[Page 45752]]

231.3(a). The regulations also include a comment stating that ``[i]n 
cases involving a proposed disposal site for which a permit application 
is pending, it is anticipated that the procedures of the section 404 
referral process will normally be exhausted prior to any final decision 
of whether to initiate a 404(c) proceeding.'' 40 CFR 231.3. Although 
the Corps removed the section 404 referral process from its regulations 
that are still referenced in EPA's current regulations, the regulatory 
history associated with the Corps' revisions to its regulations 
indicates that its intent was to update that reference to reflect 
current coordination processes with EPA established under CWA Section 
404(q).\3\
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    \2\ ``Coordination with EPA. Prior to actual issuance of permits 
for the discharge of dredged or fill material in water of the United 
States, Corps of Engineers officials will advise appropriate 
Regional Administrators, EPA of the intent to issue permits to which 
EPA has objected, recommended conditions, or for which significant 
changes are proposed. If the Regional Administrator advises, within 
fifteen days of the advice of the intent to issue, that he objects 
to the issuance of the permits, the case will be forwarded to the 
Chief of Engineers in accordance with 33 CFR 325.11 for further 
coordination with the Administrator, EPA and the decision. The 
report forwarding the case will contain an analysis of the economic 
impact on navigation and anchorage that would occur by failing to 
authorize the use of a proposed disposal site, and whether there are 
other economically feasible methods or sites available other than 
those to which the Regional Administrator objects.'' 33 CFR 323.5(b) 
(1979).
    \3\ Congress added CWA Section 404(q) to the statute in 1977. 
EPA issued its 404(c) regulations in 1979. 44 FR 58076, October 9, 
1979. In 1980, the Corps proposed amendments to reflect the 1977 
amendments to the CWA. 54 FR 62732, September 19, 1980. 
Specifically, the Corps proposed to move section 323.5 to 323.6 and 
amended paragraph (b), which is still the language included in the 
Corps' current regulations. When issuing its 1980 proposal, the 
Corps explained that ``[p]aragraph (b) would be revised in 
accordance with interagency agreements called for by section 404(q) 
of the CWA and EPA regulations for section 404(c) veto procedures 
(40 CFR part 231).'' 45 FR 62733, September 19, 1980. When 
finalizing its revised rule language in 1982, the Corps further 
explained that the purpose was ``to be consistent with current 
agreements between the Corps and EPA which reflect EPA authority to 
veto disposal site specifications under section 404(c).'' 47 FR 
31795, July 22, 1982. Therefore, this regulatory history 
demonstrates that the 404 referral process referenced in 231.3(a) is 
now manifested as the coordination processes EPA and the Corps have 
established under CWA Section 404(q).
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    In addition, EPA's final rule preamble promulgating its regulations 
in 40 CFR part 231 states:

    EPA's announcement of intent to start a 404(c) action will 
ordinarily be preceded by an objection to the permit application, 
and under Sec.  325.8 such objection serves to halt issuance of the 
permit until the matter is resolved. . . .
    The promulgation of regulations under 404(c) will not alter 
EPA's present obligations to make timely objections to permit 
applications where appropriate. It is not the Agency's intention to 
hold back and then suddenly to spring a veto action at the last 
minute. The fact that 404(c) may be regarded as a tool of last 
resort implies that EPA will first employ its tool of ``first 
resort,'' e.g. comment and consultation with the permitting 
authority at all appropriate stages of the permit process.

44 FR 58080, October 9, 1979. Therefore, the comment that exists in 
EPA's regulations indicates that where there is a permit application 
pending it is anticipated that the 404(q) process ``will normally be 
exhausted prior to any final decision of whether to initiate a section 
404(c) proceeding'' and that the record developed under the 404(q) 
process would be considered by the Region Administrator when evaluating 
information under 40 CFR 231.3(a).

    Second, once the Regional Administrator has made the requisite 
finding, the regulations provide an opportunity for the Corps, among 
others, to consult with the Regional Administrator prior to the 
issuance of a proposed determination. The purpose of this consultation 
is to provide information to demonstrate that no unacceptable adverse 
effects will occur or for the Corps to notify the Regional 
Administrator of his or her intent to take corrective action to prevent 
unacceptable adverse effects. 40 CFR 231.3(a)(2).
    In addition to the initial stages, the remainder of the 404(c) 
process, including the opportunity for public comment and consultation 
with the Corps, is intended to obtain information relating to whether 
corrective action is available to reduce the adverse impacts of the 
discharge. 40 CFR 231.4(a), 231.6. EPA's final rule preamble recognized 
the role the Corps permitting process would play in implementing 
corrective action identified during the section 404(c) process. In 
response to a commenter that asked for EPA to provide an opportunity 
for public comment on any corrective action ``proposed by the 
permitting authority during the consultative process, where the effect 
of such corrective measures is to obviate the need for the 404(c) 
action,'' EPA indicated that ``in such a situation, it would be more 
appropriate for the public comment to come as part of the permit 
process rather than the 404(c) procedure, since it will be the 
permitting authority who will have the responsibility for incorporating 
appropriate corrective measures into a permit.'' 44 FR 58081, October 
9, 1979.
    It is important to note that the regulations envision that all the 
404(c) regulatory steps would occur over relatively short timeframes. 
40 CFR 231.3(a)(2), 231.4(a), 231.5(a), 231.6. Although EPA's 
regulations allow for an extension of time, this exception was only 
intended where there is good cause. 40 CFR 231.8; see 44 FR 58079, 
October 9, 1979.

C. CWA Section 404(q)

    Section 404(q) directs the Secretary of the Army to enter into 
agreements with various federal agencies, including the EPA ``to 
minimize, to the maximum extent practicable, duplication, needless 
paperwork, and delays in the issuance of permits under this section.'' 
The agreements must be developed ``to assure that, to the maximum 
extent practicable'' the Corps decision on a permit application will be 
made no later than 90 days after the application is published.
    EPA and the Corps have entered into various agreements pursuant to 
section 404(q). The operative agreement was entered in 1992. Part IV, 
paragraph 3 of the 1992 EPA and Army Memorandum of Agreement to 
implement section 404(q) (hereinafter referred to as the ``404(q) 
MOA''), sets forth the ``exclusive procedures'' for elevation of 
individual permits cases. Once the process is initiated, the 404(q) MOA 
outlines a process to resolve EPA's concerns that, if necessary, 
culminates with the Corps providing EPA with a copy of the Statement of 
Findings/Record of Decision prepared in support of the permit decision 
``to assist the EPA in reaching a decision whether to initiate 404(c) 
before the permit is issued or activity may begin.'' The MOA provides a 
10-day period for EPA to initiate the section 404(c) process before the 
permit is issued or the activity may begin.

IV. Withdrawal of the Proposed Determination

    After conferring with EPA's General Counsel, EPA Region 10 is 
concluding the withdrawal process that was initiated on July 19, 2017. 
EPA's July 19, 2017 notice stated that it was proposing to withdraw the 
2014 Proposed Determination ``[b]ecause 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.'' 82 FR 33124. In suspending this withdrawal process, EPA noted 
that ``the factual record regarding the permit application can develop 
notwithstanding the Proposed Determination'' and EPA ``has discretion 
to consider that factual record after it has developed.'' 83 FR 8670, 
February 28, 2018.
    EPA has carefully considered the positions articulated in 2014 
Proposed Determination and the 2017 and 2018 notices in light of the 
developments since they were published. First, the Corps' DEIS includes 
significant project-specific information that was not accounted for in 
the 2014 Proposed Determination and, based on that information, the 
Corps has reached

[[Page 45753]]

preliminary conclusions that in certain respects conflict with 
preliminary conclusions in EPA's 2014 Proposed Determination. Second, 
there are other processes available now, including the 404(q) MOA 
process, for EPA to resolve any issues with the Corps as the record 
develops. EPA believes these processes should be exhausted prior to EPA 
deciding, based upon all information that has and will be further 
developed, to use its section 404(c) authority. The issues relating to 
the development of the record align with EPA's original, July 2017 
rationale for withdrawing the 2014 Proposed Determination. For these 
reasons, Region 10 has now concluded that it is more appropriate to use 
well-established mechanisms to raise project-specific issues as the 
record develops during the permitting process and consider the full 
record before potential future decision-making on this matter, instead 
of maintaining a section 404(c) process that is now five years old and 
does not account for the voluminous information provided in the 
permitting process.

A. Record Developments

    EPA is withdrawing the 2014 Proposed Determination because there is 
new information that has been generated since 2014, including 
information and preliminary conclusions in the Corps' DEIS, that 
conflict with EPA's Proposed Determination and that EPA will need to 
consider before any potential future decision-making regarding this 
matter. As discussed below, the current record before the agency is 
different from the one considered by the Regional Administrator in 2014 
and, consistent with general administrative law principles for agency 
decision-making, EPA must consider the entire record of this 
proceeding. As a result, any decision-making process under section 
404(c) should, if initiated, be based on the available information at 
that time rather than based on a proposed determination which, through 
the passage of time, the submittal of a permit application, and a 
significant expansion of the record, has effectively grown stale.
    Shortly after EPA issued the 2014 Proposed Determination, EPA was 
enjoined from working on the 2014 Section 404(c) process when a Federal 
District court issued a preliminary injunction. That injunction 
remained in place until May 11, 2017 when EPA and PLP settled the 
pending cases. EPA's record and work relating to the Proposed 
Determination was completely frozen from November 2014 until May 2017. 
Within a few months of its settlement with EPA, PLP submitted its 
permit application, and since that time, the Corps' record has grown 
significantly to include project-specific information, analyses, and 
preliminary conclusions developed during the permitting process.
    The record will only continue to grow until the Corps issues a 
final EIS, and during this time Region 10 is precluded under the 
settlement agreement from forwarding a Recommended Determination to EPA 
Headquarters until the Corps issues a final EIS or May 2021, whenever 
is sooner. EPA used its extension authority under 40 CFR 231.8 to 
suspend the process and keep the Proposed Determination pending during 
the timelines provided in the settlement agreement. 83 FR 8671, 
February 28, 2018. Although the regulations allow extensions for the 
short regulatory timeframes if there is good cause, these timeframes 
provide evidence that extensions authorized under 40 CFR 231.8 were not 
intended to allow for long-term gaps, as in this case, that could 
result in decision-making without the full record.
    When EPA entered into the settlement agreement in 2017 and proposed 
to withdraw the Proposed Determination, EPA did not know if or when PLP 
would submit a CWA Section 404 permit application. And even once PLP 
submitted a permit application and despite the Corps' estimated 
schedule, EPA did not know and could not know when it issued its 2018 
suspension exactly how long the NEPA process would take and how it 
would proceed. Given the current status of the NEPA process, it is now 
clear that EPA's 2014 Proposed Determination does not account for the 
significant project-specific information that has been developed and 
will be developed during the multi-year permitting process.
    In particular, PLP's current proposal is to produce 1.3 billion 
tons of ore from the Pebble deposit over 20 years. The 2014 Proposed 
Determination relied heavily on the Bristol Bay Watershed Assessment, 
which evaluated three hypothetical mine scenarios that represented 
different stages of mining at the Pebble deposit, based on the amount 
of ore processed: Pebble 0.25 (approximately 0.25 billion tons of ore 
over 20 years), Pebble 2.0 (approximately 2.0 billion tons of ore over 
25 years), and Pebble 6.5 (approximately 6.5 billion tons of ore over 
78 years). These hypothetical mine scenarios drew on preliminary 
information developed by Northern Dynasty Minerals in 2011 and 
submitted to the Securities and Exchange Commission, consultation with 
experts, and baseline data collected by PLP to characterize the mine 
site, mine activities, and the surrounding environment. EPA 2014 ES-10, 
Ch. 6. The Assessment disclosed the uncertainties associated with these 
hypothetical scenarios and recognized that the exact details of any 
future mine plan for the Pebble deposit or for other deposits in the 
watershed would differ from EPA's mine scenarios. Id.
    Although a number of aspects of the PLP's current proposal 
evaluated in the DEIS are similar to the mine scenarios evaluated in 
the Bristol Bay Watershed Assessment, there are aspects of PLP's 
proposal that differ from EPA's scenarios considered in the Assessment. 
While the agencies do not know the extent of the differences on the 
overall impacts of the project and how they may relate to the Corps' 
NEPA and 404 analyses, the distinctions themselves are evidence that 
there is now different information in the Agencies' records than in 
2014.
    While any subsequent mine expansion may change the mine components 
and impacts, differences between the 2014 projected mining proposal 
evaluated by EPA and PLP's current 20-year mining proposal include the 
following:
     The movement of most mine component facilities out of the 
Upper Talarik Creek watershed which may result in reduced impacts to 
aquatic resources in the Upper Talarik Creek watershed;
     The elimination of cyanide leaching as part of the ore 
processing, which eliminates risks of impacts due to cyanide that would 
otherwise be in tailings and process water and eliminates risk of 
cyanide spills;
     The placement of a liner under the disposal facility 
containing pyritic tailings and potentially acid generating (PAG) waste 
rock, which would minimize the potential for groundwater contamination;
     The reduction in waste rock, which may make it more 
feasible to backfill PAG waste rock into the open pit at closure;
     The separation of pyritic tailings from bulk tailings, 
which may make it more feasible to backfill pyritic tailings into the 
open pit at closure and may result in the ability to more effectively 
reclaim the pyritic tailings/PAG waste rock site and reduce surface 
impacts and reduce water management needs of this site following 
closure; and
     The relocation of treated water discharge locations, which 
allows flow augmentation and may reduce impacts due to open pit 
dewatering.

[[Page 45754]]

    In addition to these differences in the mining proposal, the Corps' 
DEIS and EPA's 2014 Proposed Determination draw some conflicting 
preliminary conclusions regarding the information about the project. 
EPA recognizes that these documents have different purposes and that 
the Corps has not yet prepared its specific section 404(b)(1) 
Guidelines analysis. DEIS, Section 4.22 Wetlands and Other Waters/
Special Aquatic Sites, 4.22-4. In addition, EPA's issuance of a 
Proposed Determination represents a judgment that the matter should be 
``look[ed] into'' or ``explored.'' While the Proposed Determination 
describes EPA's basis for its 2014 preliminary determinations, EPA has 
not rendered a final determination on this matter. The Corps' 
conclusions are also preliminary, and EPA provided detailed comments on 
the Draft EIS and 404 PN on July 1, 2019 which raise issues for the 
Corps' consideration about some of the Corps' analyses and preliminary 
conclusions (including the examples discussed below). EPA's July 1, 
2019 letters also make recommendations to provide significant 
additional information about key project components and plans and 
improve the environmental modeling and other aspects of the impact 
assessment.
    In this decision, EPA is not seeking to resolve any conflicting 
preliminary conclusions of the Agencies or conclusively address the 
merits of the underlying technical issues. Rather, in withdrawing the 
Proposed Determination, EPA has considered the full record as it now 
stands, including the conflicting preliminary conclusions of the 
Agencies. EPA is providing a few examples of the divergent views 
expressed by the Agencies on some key questions that will ultimately 
need to be resolved. The examples are not an exhaustive list but are 
included to illustrate that the Agencies have expressed divergent views 
on important issues related to the impact of the proposed project.
    For example, the DEIS states in a section regarding fish 
displacement and habitat loss that ``there is sufficient available 
habitat for relocation without impacts to existing populations . . . 
[t]he extent or scope of these impacts would [be] limited to waters in 
the vicinity of the mine site footprint, and may not be observed 
downstream from the affected stream channel.'' DEIS Section 4.24, page 
4.24-8. However, EPA's 2014 Proposed Determination states that ``[t]he 
elimination and dewatering of anadromous fish streams would also 
adversely affect downstream habitat for salmon and other fish 
species.'' Proposed Determination 2014, 4-9 (citations omitted).
    As another example, the Alaska District's DEIS preliminarily 
concluded in a section discussing impacts on coho and Chinook 
populations that:

    [C]onsidering the low quality and low use of coho and Chinook 
rearing habitat, the lack of spawning in SFK east reaches impacted, 
and the low level of coho spawning in NFK Tributary 1.190, 
measurable impacts to salmon populations would be unlikely . . . 
modeling indicates that indirect impacts associated with mine 
operations would occur at the individual level, and be attenuated 
upstream of the confluence of the NFK and SFK with no measurable 
impacts to salmon populations.

DEIS, Section 4.24, page 4.24-6. For comparison, EPA's Proposed 
Determination preliminarily concluded that:

    The headwater and beaver-modified habitats eliminated or 
dewatered by the Pebble 0.25 stage mine could support [coho and 
Chinook] populations that are distinct from those using habitats 
farther downstream in each watershed. Besides destroying the intact, 
headwater-to-larger river networks of the SFK, NFK, and UTC 
watersheds, stream losses that eliminate local, unique populations 
could translate into a substantial loss of genetic variability with 
impacts extending well beyond the footprints of the lost habitats. . 
. . Thus, loss of the SFK, NFK, and UTC watersheds' discrete fish 
populations could have significant repercussions well beyond that 
suggested by their absolute proportion within the larger watersheds. 
. . . Thus, the elimination or dewatering of nearly 5 miles (8 km) 
of salmon streams caused or facilitated by the discharge of dredged 
or fill material for the Pebble 0.25 stage mine could reduce the 
overall productivity of the SFK, NFK, and UTC watersheds for both 
species, at a level that the aquatic ecosystem may not be able to 
afford.

Proposed Determination 2014, 4-8 (citations omitted). Furthermore, EPA 
anticipates that additional information will continue to become 
available through the Corps' ongoing permit review process that was not 
available at the time of the Proposed Determination. The Corps' Draft 
EIS received over 100,000 public comments. In addition to these 
comments now in the record, EPA expects that additional information 
relevant to EPA's decision-making will become available through the 
permitting process. All this information represents the full record 
that EPA would ultimately need to consider as part of any regulatory 
decision-making.
    Given the need for any final EPA 404(c) decision to be based on the 
entire record, EPA has concluded that a Proposed Determination which in 
its current form does not account for the full record and does not 
grapple with differing conclusions, including those noted previously, 
cannot serve as a basis for such a decision. If in the future EPA 
decides to proceed under its 404(c) authority, a new proposed 
determination would be appropriate to ensure consideration by the 
Regional Administrator of the full record prior to making the required 
determination under 40 CFR 231.3(a) and ensure meaningful public 
engagement through the public comment period on any new proposed 
determination. As discussed below, EPA concludes that the proper avenue 
for considering the full available record and resolving technical 
issues, including conflicting information and conclusions, should be 
through the now available processes before any potential decision-
making by EPA.

B. Process Opportunities as the Record Develops

    EPA is also withdrawing the 2014 Proposed Determination because it 
has determined that given the record developments, as well as the 
language and structure of the 404(c) regulations, as discussed 
previously, at this time, the appropriate sequencing is to resolve 
technical issues during the Corps' permitting process rather than 
through a separate 404(c) process initiated in 2014 that does not 
reflect the full record.
    EPA is participating in the Corps' NEPA process as a cooperating 
agency for the preparation of the EIS pursuant to the Corps' invitation 
and schedule. In this role, EPA has provided significant technical 
comments to the Corps relating to impacts of the project. EPA has and 
will continue to work constructively with the Corps as a cooperating 
agency, providing special expertise in specific areas requested by the 
Corps, including: Alternatives; recreation; aesthetics and visual 
resources; soils; surface- and groundwater hydrology; water and 
sediment quality; wetlands and special aquatic sites; vegetation; and 
mitigation. EPA plans to continue to work with the Corps and the other 
cooperating agencies on the next steps in the NEPA process, including 
the development of the final EIS and other information to inform the 
Corps' permit decision.
    In addition to supporting the Corps as a cooperating agency, EPA is 
evaluating the information relevant to the section 404(b)(1) Guidelines 
analysis and providing feedback to the Corps. EPA's July 1, 2019 
comments on the 404 PN for Pebble's permit application stated that it 
``has concerns regarding the extent and magnitude of the substantial 
proposed impacts to streams, wetlands, and other aquatic resources that 
may result, particularly in light of the

[[Page 45755]]

important role these resources play in supporting the region's valuable 
fishery resources.''
    In its section 404 letter, EPA Region 10 also invoked the process 
to resolve these concerns pursuant to the 404(q) MOA. EPA's June 1, 
2019 letter stated that ``Region 10 finds that this project as 
described in the PN may have substantial and unacceptable adverse 
impacts on fisheries resources in the project area watersheds, which 
are aquatic resources of national importance.''
    EPA recognizes that the Corps, through well-established processes 
of continued analysis and coordination with EPA, may resolve some of 
the issues raised by EPA's letter. In addition, EPA recognizes that it 
is incumbent on the Agency to reanalyze its prior position, which was 
based on hypothetical scenarios, now that there is actual, non-
speculative information before EPA in the form of a section 404 permit 
application and associated information.
    As such, EPA believes it is appropriate to defer to the Corps' 
decision-making process to sort out the information before deciding 
whether to initiate a section 404(c) process based on the full record 
before the agencies. This approach is appropriate in these 
circumstances in light of the record developments and EPA's regulations 
as described previously. Under the statute and regulations, the Corps 
is the lead agency for issuing permits under section 404(a). The Corps 
should have the first opportunity to consider project-specific 
information here without having to contend with a 404(c) proposal that 
does not account for all of the available information.
    Moreover, when EPA is considering use of its authority under 
section 404(c), the Corps plays an important coordination and 
consultation role in the initial stages of EPA's decision-making, and 
that role may differ depending on whether or not there is a pending CWA 
404 permit application. As discussed previously, the regulations 
provide that where there is a permit application pending, ``it is 
anticipated'' that the coordination process ``will normally be 
exhausted prior to any final decision of whether to initiate a 404(c) 
proceeding.'' The current coordination procedures between EPA and the 
Corps on individual permitting decisions is now memorialized in the 
1992 404(q) MOA. The elevation procedures represent a longstanding, 
well-understood, and agreed-upon process that the agencies have 
utilized for more than two decades.
    Importantly, EPA could not have initiated the 404(q) MOA process 
when EPA Region 10 started its section 404(c) process for the Pebble 
deposit area in 2014 or when EPA issued its February 2018 suspension 
notice. After the Corps noticed PLP's 404 permit application for public 
comment, EPA could and did initiate the section 404(q) MOA procedures. 
Now that the 404(q) MOA process is available to resolve issues, EPA has 
determined that it is most appropriate to use that process to resolve 
issues as the record develops before engaging in any possible future 
decision-making regarding its section 404(c) authority. By initiating 
the 404(q) MOA process, EPA Region 10 is following an avenue to work 
with the Corps Alaska District throughout the permitting process to 
resolve concerns. If unresolved, EPA Region 10 can elevate to EPA 
Headquarters, which can decide whether to engage with the Department of 
the Army. If EPA proceeds through this process and its concerns remain 
outstanding when the Corps is ready to issue the permit, the MOA 
specifically contemplates that EPA will have an opportunity to consider 
exercising its section 404(c) authority at that time. If EPA believes 
that these processes are not addressing its concerns, EPA retains the 
discretion and the authority to decide to use its section 404(c) 
authority ``whenever'' it determines, in its discretion, that the 
statutory standard for exercising this authority has been met, 
including at the end of 404(q) MOA process, by initiating a new section 
404(c) process that is informed by the entirety of the facts and the 
Corps' decision-making known to the Agency at that time.\4\
---------------------------------------------------------------------------

    \4\ The 404(q) MOA states that ``This agreement does not 
diminish either Agency's authority to decide whether a particular 
individual permit should be granted, including determining whether 
the project is in compliance with the Section 404(b)(1) Guidelines, 
or the Administrator's authority under section 404(c) of the Clean 
Water Act.'' Part I, paragraph 5.
---------------------------------------------------------------------------

    The Corps, in addition to the public, also plays an important role 
in identifying information or potential corrective actions to address 
EPA's unacceptable adverse effects finding. In particular, EPA's 
regulations provide a 15-day opportunity for the Corps to provide such 
information prior to the issuance of the proposed determination. 
Although the Corps participated in EPA's 2014 process prior to the 
issuance of the Proposed Determination, the nature of the Corps' 
engagement in this instance was somewhat limited because there was no 
permit application pending. Now that PLP submitted a permit 
application, the Corps is in a different position regarding its ability 
to provide information relating to corrective actions to prevent 
unacceptable adverse effects and that information should be accounted 
for in the Corps' permitting process as well as by EPA.
    For these reasons, EPA has determined that it is most appropriate 
to participate in the 404 permitting processes to address concerns as 
the record develops rather than continue with a separate 404(c) action 
initiated in 2014. This approach will ensure that both agencies will be 
able to consider the full record and engage on issues consistent with 
their respective roles provided for under the Clean Water Act and EPA's 
implementing regulations.

V. Response to Comments

    EPA's February 2018 Federal Register notice summarized the comments 
EPA received on the proposal to withdraw. Two of EPA's bases for 
withdrawal in 2017 focused on giving time for PLP to submit a permit 
application and to allow for Corps review of that permit application. 
EPA acknowledges that given the developments since EPA's July 2017 
notice those rationales for withdrawal no long apply to this situation.
    As discussed previously, EPA's withdrawal action aligns with the 
third basis included in EPA's original July 2017 proposed withdrawal 
relating to the factual development of the record for PLP's permit 
application and EPA's ability, consistent with its settlement 
agreement, to exercise section 404(c) prior to any potential Corps 
authorization of discharge of dredged or fill material associated with 
mining the Pebble deposit. EPA is focusing its responses on that issue 
and on comments that EPA explained that it was not addressing in its 
2018 suspension notice.
    EPA's February 28, 2018 notice indicated that ``in light of EPA's 
forbearance from proceeding to the next step of the section 404(c) 
process . . ., EPA concludes that the factual record regarding the 
permit application can develop notwithstanding the Proposed 
Determination.'' 83 FR 8670. Although that remains true, given the need 
for any final EPA 404(c) decision to be based on the entire record, EPA 
has concluded that a Proposed Determination which in its current form 
does not account for the full record and does not grapple with 
differing conclusions, including those noted previously, should not 
serve as a basis for such a decision.
    In response to comments that EPA cannot withdraw a Proposed 
Determination without considering the

[[Page 45756]]

proposed restrictions or the science and technical information, EPA's 
February 28, 2018 notice stated that such comments were ``moot'' in 
light of EPA's decision not to withdraw the Proposed Determination. 83 
FR 8670. Although EPA is now withdrawing the Proposed Determination, 
such comments remain outside the bounds of EPA's basis for its 
decision. Indeed, EPA's July 19, 2017 notice indicated that it was 
``not soliciting comment on the proposed restrictions or science or 
technical information underlying the Proposed Determination.'' 82 FR 
33124. Moreover, EPA's February 28, 2018 notice made clear that such 
comments were outside the scope. 83 FR 8898. As in EPA's prior notices, 
EPA is not basing its decision-making on technical consideration or 
judgments about whether the mine proposal will ultimately be found to 
meet the requirements of the 404(b)(1) Guidelines or results in 
``unacceptable adverse effects'' under CWA section 404(c). The 
technical information is continuing to evolve through the ongoing 
section 404 and NEPA processes, and determinations under section 404 
will be made in conjunction with, and based on, the record when it is 
fully developed. Rather, EPA is withdrawing its 2014 Proposed 
Determination based on the considerations described in this notice and 
is continuing to consider the technical issues through its engagement 
with the Corps in these procedures. EPA will continue to consider the 
relevant science and technical information, including the information 
underlying its 2014 Proposed Determination, as part of the ongoing 
permitting process. This effort includes consideration of ``any other 
information that is relevant to 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.'' 83 FR 8670, 
February 28, 2018.
    EPA's February 28, 2018 notice indicated that comments received on 
the Administrator's review ``do not need to be addressed'' because the 
Proposed Determination was not being withdrawn. See 83 FR 8670. In 
general, these comments advocated for or against the Administrator's 
review. Some commenters asked for additional opportunities for public 
input. EPA has satisfied all of the procedural requirements for 
withdrawing a proposed determination provided in 40 CFR 231.5(c). EPA's 
regulations do not require EPA to propose a withdrawal of a proposed 
determination and take public comment. EPA took that step to comply 
with its settlement agreement obligation. EPA's regulations only 
require notification to all those that commented on the proposed 
determination or participated at the hearing and allow an opportunity 
for such persons to provide timely written recommendations concerning 
whether the Administrator should review the Regional Administrator's 
decision. 40 CFR 231.5(c); 44 FR 58081, October 9, 1979. EPA satisfied 
this requirement through its July 2017 notice. Through this process, 
the public had a full opportunity to comment on the very basis for 
EPA's withdrawal of the Proposed Determination and on whether the 
Administrator should review and reconsider the withdrawal. 82 FR 33124, 
July 19, 2017. EPA has now completed consideration of the issues raised 
as described in this notice. The General Counsel, who is the delegated 
official to act for the Administrator, did not notify the Regional 
Administrator of his intent to review as described in the regulations, 
thus ending the regulatory process.
    EPA has also determined that it is unnecessary to seek additional 
public comment as indicated by the February 2018 Federal Register 
notice. Such an additional public comment is not required under EPA's 
regulations. EPA notes that it provided numerous opportunities for the 
public to comment on the Bristol Bay Watershed Assessment and Proposed 
Determination, including on the rationale for EPA's decision to 
withdraw the Proposed Determination. Furthermore, the Corps has 
provided an opportunity for the public to comment on the Draft EIS and 
the public has an opportunity to comment on the final EIS. See 40 CFR 
1503.1(b). Finally, if EPA initiates the section 404(c) process 
pursuant to 40 CFR 231.3 in the future and proceeds to publish a new 
Proposed Determination, such a decision would be subject to notice and 
comment under EPA's regulations.

VI. Conclusion

    This decision provides clarity and certainty that EPA Region 10 
will be working through the Corps' permitting process, including as a 
cooperating agency, and the 404(q) MOA process for engagement on this 
matter. This notice concludes EPA's withdrawal process that was 
initiated on July 19, 2017 and suspended on January 26, 2018. As 
Regional Administrator and after conferring with EPA's General Counsel, 
I am providing notice of withdrawal of the 2014 Proposed Determination 
described herein under 40 CFR 231.5(c)(1).

    Dated: July 30, 2019.
Chris Hladick,
Regional Administrator, EPA Region 10.
[FR Doc. 2019-18596 Filed 8-29-19; 8:45 am]
 BILLING CODE 6560-50-P


