[Federal Register Volume 87, Number 102 (Thursday, May 26, 2022)]
[Notices]
[Pages 32021-32024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10976]



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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R10-OW-2022-0418; FRL-9860-01-R10]


Proposed Determination To Prohibit and Restrict the Use of 
Certain Waters Within Defined Areas as Disposal Sites; Pebble Deposit 
Area, Southwest Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability and public hearing.

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SUMMARY: Pursuant to Section 404(c) of the Clean Water Act (CWA), the 
Environmental Protection Agency (EPA) Region 10 is requesting public 
comments on its 2022 Proposed Determination to prohibit and restrict 
the use of certain waters in the South Fork Koktuli River (SFK), North 
Fork Koktuli River (NFK), and Upper Talarik Creek (UTC) watersheds as 
disposal sites for the discharge of dredged or fill material associated 
with mining the Pebble deposit, a copper-, gold-, and molybdenum-
bearing ore body located in Southwest, Alaska. EPA Region 10 also is 
announcing public hearings on this proposed determination.

DATES: Submit comments on the proposed determination on or before July 
5, 2022. See PUBLIC HEARING section below for public hearing dates and 
related information.

ADDRESSES: 
    I. How to Obtain a Copy of the Proposed Determination: The proposed 
determination is available primarily via the internet on the EPA Region 
10 Bristol Bay site at www.epa.gov/bristolbay.
    II. How to Submit Comments to the Docket at www.regulations.gov: 
Submit your comments, identified by Docket ID No. EPA-R10-OW-2022-0418, 
by one of the following methods:
    Federal eRulemaking Portal (recommended method of comment 
submission): Follow the online instructions at http://www.regulations.gov for submitting comments.
    Email: [email protected]. Include the docket number EPA-R10-OW-
2022-0418 in the subject line of the message.
    Mail and Hand Delivery/Courier: Send your original comments and 
three copies to: Water Docket, Environmental Protection Agency, Mail 
Code 2822T, 1200 Pennsylvania Avenue NW, Washington, DC 20460, 
Attention: Docket ID No. EPA-R10-OW-2022-0418.
    Hand Delivery/Courier: Deliver your comments to EPA Docket Center, 
EPA West, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20460, 
Attention: Docket ID No. EPA-R10-OW-2022-0418. Such deliveries are 
accepted only during the Docket's normal hours of operation, 8:30 a.m. 
to 4:30 p.m. ET, Monday through Friday (excluding legal holidays). 
Special arrangements should be made for deliveries of boxed 
information. The telephone number for the Water Docket is (202) 566-
2426.
    Submit at Public Hearing: see PUBLIC HEARINGS section below.
    Instructions: EPA's policy is that all comments received will be 
included in the public docket without change and will be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
disclosure of which is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected information through 
http://www.regulations.gov or email. The http://www.regulations.gov 
website is an ``anonymous access'' system, which means EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an email comment directly to EPA 
without going through http://www.regulations.gov, your email address 
will be captured automatically and included as part of the comment that 
is placed in the public docket and made publicly available on the 
internet. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.
    III. Public Hearings: In accordance with EPA regulations at 40 CFR 
231.4, the Regional Administrator determined that public hearings on 
this CWA Section 404(c) proposed determination are in the public 
interest. Give the continued uncertainty related to COVID, EPA intends 
to host a virtual hearing in addition to in-person hearings. The 
hearing dates and locations are as follows:

June 16, 2022--9am to 12pm, AKDT, Dillingham, Alaska
June 16, 2022--5pm to 8pm, AKDT, Virtual
June 17, 2022--2pm to 5pm, AKDT, Iliamna, Alaska

    Additional hearing details and any changes to the schedule are 
available at www.epa.gov/bristolbay. The purpose of the public hearings 
is to obtain public testimony and comment on EPA Region 10's CWA 
Section 404(c) proposed determination to prohibit and restrict the use 
of certain waters in the Bristol Bay watershed for disposal of dredged 
or fill material associated with mining the Pebble deposit. The 
Regional Administrator will designate the official who will preside at 
the public hearing (the Presiding Officer). Any person may appear at 
the hearing and submit oral and/or written statements or data and may 
be represented by counsel or other authorized representatives. If you 
would like to submit written comments, you may do so at the public 
hearings or by one of the methods described in the section of this 
public notice entitled: How to Submit Comments to the Docket at 
www.regulations.gov.
    Registration is required to participate in the public hearings. 
Please visit www.epa.gov/bristolbay for information on how to register. 
Online preregistration is available and includes an option to register 
to speak during the public hearing. The last day to preregister is June 
13, 2022.
    Members of the public can also sign up to make a comment at the 
venue on the day of the meeting. The following information will be 
requested for each commenter: First name, last name, organization and 
title (if applicable), city, state, email address, and phone number. 
Tribal elders and elected officials will be invited to comment first. 
The facilitator will then use a random number system to select 
individuals who signed up to determine speaking order. Audio-visual 
equipment will not be provided.
    To maximize the number of individuals who are able to speak at the 
hearing, oral statements may be limited to three minutes per person. 
EPA encourages commenters to provide the agency with a copy of their 
oral testimony electronically by emailing it to [email protected]. 
EPA also recommends submitting the text of your oral comments as 
written comments to the docket.
    EPA may ask clarifying questions during the oral presentations but 
there will be no cross examination of any hearing participant.

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    EPA Region 10 will not respond to questions/comments during the 
hearing. EPA Region 10 will consider the oral and written statements 
received at the public hearings and other written comments submitted 
pursuant to the instructions set forth in the section of this public 
notice entitled: How to Submit Comments to the Docket at 
www.regulations.gov. Any person may present written statements for the 
hearing file, including rebuttals to other commenter statements, prior 
to the time the hearing file is closed to public submissions.
    Please note that any updates made to any aspect of the hearing will 
be posted online at www.epa.gov/bristolbay. While the agency expects 
the hearing to go forward as set forth above, please monitor our 
website to determine if there are any updates. EPA does not intend to 
publish a document in the Federal Register announcing updates.

FOR FURTHER INFORMATION CONTACT: For information on the public comment 
period, contact the Water Docket; telephone: (202) 566-2426 or email: 
[email protected]. For information concerning the proposed 
determination, contact Erin Seyfried; telephone (206) 553-0040 or 
email: [email protected]. For more information about EPA's efforts 
in Bristol Bay, copies of the Section 404(c) proposed determination, 
see http://www.epa.gov/bristolbay.

SUPPLEMENTARY INFORMATION:

I. Clean Water Act Section 404(c) Review Process

    EPA's mission is to protect human health and the environment. The 
CWA, the objective of which is to ``restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters,'' 33 U.S.C. 
1251(a), is essential to EPA's mission and establishes the basic 
structure for regulating discharges of pollutants into waters of the 
United States. To advance this overall objective, Section 301(a) of the 
CWA, 33 U.S.C. 1311(a), prohibits the discharge of any pollutant by any 
person into waters of the United States except as authorized by 
specific provisions of the Act, including a permit issued pursuant to 
Sections 402 or 404, 33 U.S.C. 1342; 33 U.S.C. 1344. Section 404(a) of 
the CWA authorizes the United States Army Corps of Engineers (USACE) to 
issue permits for the discharge of dredged or fill material into waters 
of the United States. 33 U.S.C. 1344(a). Section 404(c) of the CWA 
authorizes EPA to prohibit the specification (including the withdrawal 
of specification) of any defined area as a disposal site, and to deny 
or restrict the use of any defined area for specification (including 
the withdrawal of specification) as a disposal site, ``whenever'' it 
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. 33 U.S.C. 1344(c). EPA's regulations at 40 CFR part 
231 govern the Agency's exercise of its CWA Section 404(c) authority.

II. 2014 Proposed Determination

    In July 2014, after careful consideration of available information, 
including the findings of EPA's Bristol Bay Watershed Assessment and 
consultation with PLP and the State of Alaska, EPA Region 10 published 
a Proposed Determination under Section 404(c) of the CWA to restrict 
the use of certain waters in the SFK, NFK, and UTC watersheds as 
disposal sites for dredged or fill material associated with mining the 
Pebble deposit (2014 Proposed Determination) for public comment.
    On November 25, 2014, the U.S. District Court for the District of 
Alaska, in litigation brought by PLP, issued a preliminary injunction 
against EPA that halted EPA Region 10's CWA Section 404(c) review 
process until the case was resolved. Order Granting Preliminary 
Injunction at 1-2, Pebble Limited Partnership v. EPA, No. 3:14-cv-00171 
(D. Alaska Nov. 25, 2014). On May 11, 2017, EPA and PLP settled that 
lawsuit and the court subsequently dissolved the injunction and 
dismissed the case with prejudice. As part of that settlement 
agreement, EPA Region 10 agreed to ``initiate a process to propose to 
withdraw the [2014] Proposed Determination'' and ultimately withdrew it 
in August 2019.\1\ In October 2019, twenty tribal, fishing, 
environmental, and conservation groups challenged EPA's withdrawal of 
the 2014 Proposed Determination in the U.S. District Court for the 
District of Alaska. This litigation ultimately resulted in an October 
29, 2021 District Court decision to vacate EPA's 2019 decision to 
withdraw the 2014 Proposed Determination and remand the action to the 
Agency for reconsideration.
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    \1\ On January 26, 2018, EPA Region 10 announced a 
``suspension'' of the proceeding to withdraw the 2014 Proposed 
Determination at that time. This action was published in the Federal 
Register on February 28, 2018 (83 FR 8668, February 28, 2018).
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    The District Court's vacatur of EPA's 2019 decision to withdraw the 
2014 Proposed Determination had the effect of reinstating the 2014 
Proposed Determination and reinitiating EPA's CWA Section 404(c) review 
process. The next step in the CWA Section 404(c) review process 
required the Region 10 Regional Administrator to decide whether to 
withdraw the 2014 Proposed Determination or prepare a recommended 
determination within 30 days. On November 23, 2021, EPA Region 10 
published in the Federal Register a notice extending the applicable 
time requirements through May 31, 2022, to provide sufficient time for 
the Agency to consider information that has become available since EPA 
issued the 2014 Proposed Determination and determine the appropriate 
next step in the CWA Section 404(c) review process.

III. Proposed Mine at the Pebble Deposit

    The Pebble deposit is a large, low-grade copper-, gold-, and 
molybdenum-bearing ore body deposit located at the headwaters of the 
pristine Bristol Bay watershed that underlies portions of the SFK, NFK, 
and UTC watersheds. The SFK, NFK, and UTC watersheds drain to two of 
the largest rivers in the Bristol Bay watershed, the Nushagak and 
Kvichak Rivers.
    In December 2017, the PLP submitted a CWA Section 404 permit 
application to USACE to develop a mine at the Pebble deposit that 
triggered the development of an Environmental Impact Statement (EIS) 
pursuant to the National Environmental Policy Act (NEPA). In response 
to the CWA Section 404 permit review and NEPA processes, PLP submitted 
a revised permit application to USACE in June 2020 (i.e., the 2020 Mine 
Plan).
    On July 24, 2020, USACE published a Notice of Availability for the 
Final EIS (FEIS) in the Federal Register and on November 20, 2020, 
USACE issued its Record of Decision (ROD) denying PLP's CWA Section 404 
permit application on the basis that the 2020 Mine Plan would not 
comply with the CWA Section 404(b)(1) Guidelines and would be contrary 
to the public interest. By letter dated November 25, 2020, USACE 
notified PLP that the proposed project failed to comply with the CWA 
Section 404(b)(1) Guidelines because ``the proposed project would cause 
unavoidable adverse impacts to aquatic resources which would result in 
Significant Degradation to aquatic resources.''

IV. Summary of Factual Basis for the 2022 Proposed Determination

    The Bristol Bay watershed is an area of unparalleled ecological 
value,

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boasting salmon diversity and productivity unrivaled anywhere in North 
America. The watershed provides intact, connected habitats--from 
headwaters to ocean--that support abundant, genetically diverse wild 
Pacific salmon populations. The Bristol Bay watershed supports the 
world's largest runs of Sockeye Salmon, producing approximately half of 
the world's Sockeye Salmon, as well as significant Chinook, Coho, Chum, 
and Pink salmon populations. Bristol Bay's salmon populations support 
world-class, economically important commercial and sport fisheries, as 
well as a more than 4,000-year-old subsistence-based way of life for 
Alaska Natives.
    EPA Region 10 has considered the information that has become 
available since EPA issued the 2014 Proposed Determination, including 
the more than 670,000 public comments EPA received on the 2014 Proposed 
Determination; technical information contained in PLP's CWA Section 404 
permit application and updated mine plan; analysis developed during the 
NEPA process and contained in USACE's FEIS and its permit denial; as 
well as new and potentially relevant science and technical information 
produced through other contemporaneous efforts. As a result of its 
review, EPA Region 10 has determined that the appropriate next step in 
this CWA Section 404(c) review process is to revise the 2014 Proposed 
Determination.
    Construction and routine operation of the mine proposed in the 2020 
Mine Plan would result in discharge of dredged or fill material into 
waters of the United States, including streams, wetlands, lakes, and 
ponds overlying the Pebble deposit and within adjacent watersheds. The 
direct and certain secondary effects of such discharges would result in 
the total loss of aquatic habitats important to anadromous fishes. 
These losses are the result of the construction and routine operation 
of the various components of the mine site, including the open pit, 
bulk tailings storage facility, pyritic tailings storage facility, 
power plant, water management ponds, water treatment plants, milling/
processing facilities, and supporting infrastructure. According to the 
FEIS and ROD, discharges of dredged or fill material to construct and 
operate the mine site proposed in the 2020 Mine Plan would result in 
the total loss of approximately 99.7 miles (160.5 km) of stream 
habitat, representing approximately 8.5 miles (13.7 km) of streams with 
documented anadromous fish occurrence and 91.2 miles (146.8 km) of 
additional stream habitat. Such discharges of dredged or fill material 
would also result in the total loss of approximately 2,113 acres (8.6 
km\2\) of wetlands and other waters at the mine site.
    Additional secondary effects of the proposed discharges of dredged 
or fill material at the mine site would degrade anadromous fishery 
areas downstream of the mine site. Specifically, the stream, wetland, 
and other aquatic resource losses from the footprint of the 2020 Mine 
Plan would reverberate downstream, depriving downstream anadromous fish 
habitats of nutrients, groundwater inputs, and other ecological 
subsidies from lost upstream aquatic resources. Further, streamflow 
alterations from water capture, withdrawal, storage, treatment, or 
release at the mine site are another secondary effect of the discharge 
of dredged or fill material associated with the construction and 
routine operation of the 2020 Mine Plan. Such streamflow alterations 
would adversely impact at least 29 miles (46.7 km) of anadromous fish 
streams downstream of the mine site due to greater than 20 percent 
changes in average monthly streamflows. These streamflow alterations 
would result in major changes in ecosystem structure and function and 
would reduce both the extent and quality of anadromous fish habitat 
downstream of the mine. All instances of complete loss of aquatic 
habitat and most impairment to fish habitat function would be 
permanent.
    EPA Region 10 believes that the discharge of dredged or fill 
material associated with mining the Pebble deposit within the mine site 
footprint for the 2020 Mine Plan could result in unacceptable adverse 
effects on anadromous fishery areas in the SFK and NFK watersheds due 
to losses of documented anadromous fish habitat and degradation of 
downstream anadromous fish habitat.
    Based on the same record, including information about the pristine 
condition and productivity of the SFK, NFK, and UTC watersheds and the 
documented anadromous fish habitat throughout the watersheds, EPA 
Region 10 has reason to believe that discharges of dredged or fill 
material for the construction and routine operation of a mine at the 
Pebble deposit anywhere in the SFK, NFK, and UTC watersheds could 
result in unacceptable adverse effects on anadromous fishery areas in 
these watersheds if the effects of such discharges are similar or 
greater in nature and magnitude to the adverse effects of the 2020 Mine 
Plan.
    Accordingly, consistent with 40 CFR 231.3(a)(2), EPA Region 10 is 
providing public notice of and requesting public comment on the 2022 
Proposed Determination to prohibit and restrict the use of certain 
waters in the NFK, SFK, and UTC watersheds for disposal of dredged or 
fill material associated with mining the Pebble deposit. The Defined 
Area for Prohibition is the mine site footprint for the 2020 Mine Plan. 
The Defined Area for Restriction encompasses certain headwaters of the 
SFK, NFK, and UTC watersheds where discharges associated with mining 
the Pebble deposit are likely.

V. Solicitation of Comments on the 2022 Proposed Determination

    EPA Region 10 is soliciting comments on all matters and issues 
discussed in the 2022 Proposed Determination. Please see the section 
entitled ADDRESSES (above) for information about how to obtain a copy 
of the 2022 Proposed Determination and how to submit comments.
    Any interested persons may submit written comments on the proposed 
determination. All relevant data, studies, or informal observations are 
appropriate. The Regional Administrator will fully consider all such 
comments as she decides whether to withdraw the proposed determination 
or forward to EPA Headquarters a recommended determination to prohibit/
restrict the use of certain waters in the SFK, NFK, and UTC watersheds 
in southwest Alaska as disposal sites for the discharge of dredged or 
fill material associated with mining the Pebble deposit.

VI. Additional Background on EPA's CWA Section 404(c) Review Process 
for the Pebble Deposit Area

    A. How to Obtain a Copy of the Bristol Bay Watershed Assessment: 
The Bristol Bay Watershed Assessment 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 2014 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.
    C. 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.
    D. How to Obtain a Copy of the Proposal to Withdraw the 2014 
Proposed Determination: The July 2017 proposal to withdraw the 2014 
Proposed Determination is available via the internet on the EPA Region 
10 Bristol

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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 via the 
following website located at https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369.
    E. How to Obtain a Copy of Notification of Suspension: The February 
2018 notice announcing EPA's decision to suspend the proceeding to 
withdraw the 2014 Proposed Determination at that time is available via 
the internet on the EPA Region 10 Bristol Bay site at www.epa.gov/bristolbay. Information regarding the suspension can also be found in 
the docket for this effort at www.regulations.gov, see docket ID No. 
EPA-R10-OW-2017-0369 or via the following website located at https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369.
    F. How to Obtain a Copy of the Notice of Withdrawal of the 2014 
Proposed Determination: The August 2019 notice of withdrawal of the 
2014 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 via the following website located at https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369.

    Dated: May 17, 2022.
Casey Sixkiller,
Regional Administrator, Region 10.
[FR Doc. 2022-10976 Filed 5-25-22; 8:45 am]
BILLING CODE 6560-50-P


