[Federal Register Volume 86, Number 223 (Tuesday, November 23, 2021)]
[Notices]
[Pages 66548-66550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25515]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-R10-OW-2017-0369; FRL-9281-01-R10]


Proposed Determination To Restrict the Use of an Area and a 
Disposal Site; Pebble Deposit Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: In light of the U.S. District Court for the District of 
Alaska's recent decision to remand and vacate the United States 
Environmental Protection Agency (EPA)'s 2019 decision to withdraw the 
Proposed Determination to Restrict the Use of an Area and a Disposal 
Site; Pebble Deposit Area, Southwest Alaska pursuant to the Clean Water 
Act (CWA), EPA Region 10 is providing notice that EPA has good cause to 
extend the time requirement to allow the EPA Region 10 Regional 
Administrator to consider available information, including information 
that has become available since EPA issued the 2014 Proposed 
Determination in order to determine appropriate next steps in the 
review process.

FOR FURTHER INFORMATION CONTACT: Visit www.epa.gov/bristolbay or 
contact Cami Grandinetti through the Bristol Bay-specific phone line, 
(206) 553-0040, or email address, [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

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 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.

II. Factual Background

A. Bristol Bay Watershed Assessment and 2014 Proposed Determination

    In 2011, after EPA received petitions to use its CWA section 404(c) 
authority to protect Bristol Bay's salmon fishery, EPA initiated a 
three-year ecological risk assessment to determine the significance of 
the Bristol Bay watershed's ecological resources and to evaluate the 
potential impacts of large-scale mining on those resources. In January 
2014, EPA finalized the peer-reviewed Bristol Bay Watershed Assessment 
(BBWA), which it prepared through an open and inclusive process that 
included two opportunities for public comment, eight public meetings, 
interagency coordination, and consultation with 13 federally recognized 
tribal governments.
    On February 28, 2014, after careful consideration of available 
material, including information collected as part of the BBWA, other 
existing science and technical information, and information provided by 
stakeholders, EPA Region 10 notified the U.S. Army Corps of Engineers 
(Corps), the State of Alaska (State), and the Pebble Limited 
Partnership (PLP) that it had decided to proceed under its CWA section 
404(c) regulations to review potential adverse environmental effects of 
discharges of dredged and fill material associated with mining the 
Pebble deposit in southwest Alaska. In accordance with its regulations 
at 40 CFR 231.3(a)(1), EPA Region 10 offered the Corps, the State, and 
PLP the opportunity to demonstrate to the satisfaction of the Region 10 
Regional Administrator that no unacceptable adverse effects would occur 
as a result of such discharges.
    On July 21, 2014, EPA Region 10 published in the Federal Register 
notice of its 2014 Proposed Determination 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 the discharge of dredged 
or fill material associated with mining the Pebble deposit (79 FR 
42314, July 21, 2014). EPA Region 10 held seven public hearings 
throughout southwest Alaska during the week of August 11, 2014 and 
received more than 670,000 public comments, more than 99% of which 
supported the 2014 Proposed Determination.

[[Page 66549]]

B. PLP's Litigation and Settlement Agreement

    Before EPA could reach the next step in the CWA section 404(c) 
review process--to either withdraw the 2014 Proposed Determination or 
prepare a recommended determination pursuant to 40 CFR 231.5(a)--PLP 
filed multiple lawsuits against the Agency. On November 25, 2014, the 
U.S. District Court for the District of Alaska issued a preliminary 
injunction against EPA in one of those lawsuits 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 all of PLP's 
outstanding lawsuits--and the court subsequently dissolved the 
injunction and dismissed the case with prejudice.
    Under the terms of the settlement, EPA agreed to ``initiate a 
process to propose to withdraw the Proposed Determination.'' EPA also 
agreed not to forward a signed recommended determination to EPA 
Headquarters until May 11, 2021 or until EPA published a notice of the 
Corps' final environmental impact statement (EIS) on PLP's CWA section 
404 permit application for the proposed Pebble mine, whichever came 
first. To take advantage of this period of forbearance, PLP was 
required to submit its CWA section 404 permit application to the Corps 
within 30 months of execution of the settlement agreement. For a link 
to a copy of the settlement agreement, see Section I of this document.

C. Proposal To Withdraw the 2014 Proposed Determination, 
``Suspension,'' and Withdrawal

    On July 19, 2017, in accordance with the terms of the settlement 
agreement, EPA Region 10 published in the Federal Register a notice of 
its proposal to withdraw the 2014 Proposed Determination (82 FR 33123, 
July 19, 2017). In its July 19, 2017 publication, EPA identified three 
reasons for its proposed withdrawal--that withdrawing the 2014 Proposed 
Determination would (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. EPA explained that ``[i]n light of the basis upon which EPA is 
considering withdrawal of the Proposed Determination, EPA is not 
soliciting comment on the proposed restrictions or on science or 
technical information underlying the Proposed Determination.'' (82 FR 
33124, July 19, 2017)
    EPA received more than one million public comments regarding its 
proposal to withdraw. Approximately 99% of commenters expressed 
opposition to the withdrawal of the 2014 Proposed Determination. The 
public comments, transcripts from the public hearings, and summaries of 
the tribal and ANCSA Corporation consultations can be found in the 
docket for this proceeding; see Section I of this document for 
information on how to access this docket.
    On December 22, 2017, PLP submitted to the Corps a CWA section 404 
permit application that proposed to develop a mine at the Pebble 
deposit. On January 5, 2018, the Corps issued a public notice that 
provided PLP's permit application to the public, stated that an EIS 
would be required as part of its permit review process consistent with 
the National Environmental Policy Act (NEPA), and 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 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).
    On August 30, 2019, after conferring with EPA's General Counsel,\1\ 
EPA Region 10 published in the Federal Register its decision to 
withdraw the 2014 Proposed Determination, thereby concluding the 
withdrawal process that was initiated on July 19, 2017 (84 FR 45749, 
August 30, 2019). EPA identified that it was withdrawing the Proposed 
Determination because:
---------------------------------------------------------------------------

    \1\ In 1984, the EPA Administrator delegated the authority to 
make final determinations under CWA section 404(c) to EPA's national 
CWA section 404 program manager, who is the Assistant Administrator 
for Water. That general delegation remains in effect. On March 22, 
2019, EPA 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 for EPA's section 404(c) action for the 
Pebble deposit area.
---------------------------------------------------------------------------

    (1) New information had been generated since 2014, including 
information and preliminary conclusions in the Corps' Draft EIS, that 
EPA would need to consider before any potential future decision-making 
regarding the matter;
    (2) The record would continue to develop throughout the permitting 
process; and
    (3) EPA could and then had initiated the section 404(q) MOA process 
and it was appropriate to use that process to resolve issues before 
engaging in any potential future decision-making regarding the matter.
    In its August 30, 2019 notice of withdrawal of the 2014 Proposed 
Determination, EPA stated that ``[a]s 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).'' (84 FR 45756, August 30, 
2019)
    In November 2020, the Corps denied PLP's CWA section 404 permit 
application. The denial addresses only that specific permit 
application, and PLP filed an administrative appeal of the Corps' 
decision pursuant to the Corps' regulations at 33 CFR part 331.

D. Legal Challenge To Withdrawal of the 2014 Proposed Determination

    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, 
asserting that EPA's withdrawal decision was not supported by the 
record and that EPA had failed to consider the science and technical 
information, including whether the proposed project would result in 
unacceptable adverse effects. The District Court dismissed the action, 
holding that EPA's decision to withdraw a proposed determination was 
unreviewable for lack of a meaningful legal standard governing the 
Agency's action.
    On appeal, in June 2021, the Ninth Circuit reversed the District 
Court's holding that EPA's decision to withdraw a proposed 
determination was unreviewable, finding instead that EPA's regulation 
at 40 CFR 231.5(a) provides a standard for review. Specifically, the 
Ninth Circuit concluded that EPA is authorized to withdraw a proposed 
determination ``only if the discharge of materials would be unlikely to 
have an unacceptable adverse effect.'' Trout Unlimited v. Pirzadeh, 1 
F.4th 738, 757 (9th Cir. June 17, 2021) (emphasis in original). The 
Ninth Circuit remanded the case to the District Court for further 
proceedings.
    On September 28, 2021, EPA filed a motion in the District Court 
requesting

[[Page 66550]]

that the court vacate the Agency's decision to withdraw the 2014 
Proposed Determination and remand the action to the Agency to 
reconsider its action. In its motion, EPA explained that, in making the 
withdrawal decision, the Agency had not addressed the ``unlikely to 
have an unacceptable adverse effect'' standard that the Ninth Circuit 
subsequently held must be met when EPA withdraws a proposed 
determination and that such an omission ``was serious and 
fundamental.'' The District Court granted EPA's motion on October 29, 
2021.

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 prohibit the 
specification of any defined area or deny or restrict the use of any 
defined area as a disposal site for the discharge of dredged or fill 
material into waters of the United States within the defined area 
``whenever'' it determines that the discharge of such material 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).

B. CWA Section 404(c) Regulations

    EPA's regulations at 40 CFR part 231 provide a four-step process 
for the Agency to follow in exercising its 404(c) authority.
    Step 1: Initial Notification. If the EPA Regional Administrator has 
reason to believe, after evaluating 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 owner of record of the site that 
s/he intends to issue a public notice of the proposed determination to 
prohibit or withdraw the specification, or to deny, restrict or 
withdraw the use for specification, whichever the case may be, of any 
defined area as a disposal site. 40 CFR 231.3(a)(1).
    Step 2: Proposed Determination. If within 15 days of receipt of the 
Regional Administrator's notice under Step 1, it has not been 
demonstrated to the satisfaction of the Regional Administrator that no 
unacceptable adverse effect(s) will occur or the Corps does not notify 
the Regional Administrator of its intent to take corrective action to 
prevent an unacceptable adverse effect satisfactory to the Regional 
Administrator, 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. 40 CFR 
231.3(a)(2); 40 CFR 231.3(b).
    Step 3: Withdrawal of Proposed Determination or Preparation of 
Recommended Determination. Within 30 days after the conclusion of the 
public hearing (but not before the end of the comment period), or, if 
no hearing is held, within 15 days after the expiration of the comment 
period on the public notice of the proposed determination, the Regional 
Administrator must either withdraw the proposed determination or 
prepare a recommended determination. If the Regional Administrator 
prepares a recommended determination, the Regional Administrator must 
promptly forward the recommended determination and administrative 
record to the Assistant Administrator for Water. 40 CFR 231.5(a) 
and(b).
    Step 4: Final Determination. Within 30 days of receipt of the 
recommendations and administrative record, the Assistant Administrator 
for Water shall initiate consultation with the Corps, the applicant (if 
any), and the owner of record of the site. Each of those parties shall 
have 15 days to notify the Assistant Administrator for Water of their 
intent to take corrective action to prevent unacceptable adverse 
effects, satisfactory to the Assistant Administrator for Water. Within 
60 days of receipt of the recommendations and administrative record, 
the Assistant Administrator for Water shall make a final determination 
affirming, modifying, or rescinding the recommended determination.
    EPA's regulations authorize it to extend the regulatory deadlines 
``upon a showing of good cause.'' 40 CFR 231.8. ``Notice of any such 
extension shall be published in the Federal Register and, as 
appropriate, through other forms of notice.'' Id.

IV. Extension of Regulatory Time Requirements for Good Cause

    The District Court's vacatur of the decision to withdraw the 2014 
Proposed Determination reinstates the 2014 Proposed Determination and 
reinitiates the CWA section 404(c) review process. The next step in the 
CWA section 404(c) review process requires the Region 10 Regional 
Administrator to, within 30 days, decide whether to withdraw the 2014 
Proposed Determination or prepare a recommended determination. See 40 
CFR 231.5(a). EPA Region 10's 2014 Proposed Determination relied on 
EPA's authority under section 404(c) of the CWA; was issued in 
accordance with the regulations at 40 CFR part 231; and reflected EPA 
Region 10's robust consideration of the extensive science and technical 
information available to the Agency at the time. Since EPA issued the 
2014 Proposed Determination, new information has become available, 
including the voluminous 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 Corps' Final EIS and 
its permit denial; as well as new and potentially relevant science and 
technical information produced through other contemporaneous efforts. 
EPA has concluded that it should consider this information in its 
decision-making. EPA has therefore determined that good cause exists 
under 40 CFR 231.8 to extend the thirty-day regulatory time requirement 
in 40 CFR 231.5(a). An extension through May 31, 2022 will allow the 
Region 10 Regional Administrator to consider available information in 
order to determine appropriate next steps, which may include revising 
the 2014 Proposed Determination.

    Dated: November 17, 2021.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2021-25515 Filed 11-22-21; 8:45 am]
BILLING CODE 6560-50-P


