Notice2022-10976
Proposed Determination To Prohibit and Restrict the Use of Certain Waters Within Defined Areas as Disposal Sites; Pebble Deposit Area, Southwest Alaska
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Published
May 26, 2022
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 102 (Thursday, May 26, 2022)</title>
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[Federal Register Volume 87, Number 102 (Thursday, May 26, 2022)]
[Notices]
[Pages 32021-32024]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>.
II. How to Submit Comments to the Docket at <a href="http://www.regulations.gov">www.regulations.gov</a>:
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 <a href="http://www.regulations.gov">http://www.regulations.gov</a> for submitting comments.
Email: <a href="/cdn-cgi/l/email-protection#513e267c353e323a3425113421307f363e27"><span class="__cf_email__" data-cfemail="deb1a9f3bab1bdb5bbaa9ebbaebff0b9b1a8">[email protected]</span></a>. 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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
<a href="http://www.regulations.gov">http://www.regulations.gov</a> or email. The <a href="http://www.regulations.gov">http://www.regulations.gov</a>
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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
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 <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>. 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
<a href="http://www.regulations.gov">www.regulations.gov</a>.
Registration is required to participate in the public hearings.
Please visit <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a> 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 <a href="/cdn-cgi/l/email-protection#9ceeadacfeeef5efe8f3f0fefde5dcf9ecfdb2fbf3ea"><span class="__cf_email__" data-cfemail="83f1b2b3e1f1eaf0f7ecefe1e2fac3e6f3e2ade4ecf5">[email protected]</span></a>.
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
<a href="http://www.regulations.gov">www.regulations.gov</a>. 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 <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>. 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:
<a href="/cdn-cgi/l/email-protection#4d223a29222e2628390d283d2c632a223b"><span class="__cf_email__" data-cfemail="b6d9c1d2d9d5ddd3c2f6d3c6d798d1d9c0">[email protected]</span></a>. For information concerning the proposed
determination, contact Erin Seyfried; telephone (206) 553-0040 or
email: <a href="/cdn-cgi/l/email-protection#6715565705150e1413080b05061e2702170649000811"><span class="__cf_email__" data-cfemail="97e5a6a7f5e5fee4e3f8fbf5f6eed7f2e7f6b9f0f8e1">[email protected]</span></a>. For more information about EPA's efforts
in Bristol Bay, copies of the Section 404(c) proposed determination,
see <a href="http://www.epa.gov/bristolbay">http://www.epa.gov/bristolbay</a>.
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,
[[Page 32023]]
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 <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>.
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 <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>.
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 <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>.
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
[[Page 32024]]
Bay site at <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>. Information regarding the proposal
to withdraw can also be found in the docket for this effort at
<a href="http://www.regulations.gov">www.regulations.gov</a>, see docket ID No. EPA-R10-OW-2017-0369 or via the
following website located at <a href="https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369">https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369</a>.
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 <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>. Information regarding the suspension can also be found in
the docket for this effort at <a href="http://www.regulations.gov">www.regulations.gov</a>, see docket ID No.
EPA-R10-OW-2017-0369 or via the following website located at <a href="https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369">https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369</a>.
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 <a href="http://www.epa.gov/bristolbay">www.epa.gov/bristolbay</a>. Information
regarding the proposal to withdraw can also be found in the docket for
this effort at <a href="http://www.regulations.gov">www.regulations.gov</a>, see docket ID No. EPA-R10-OW-2017-
0369 or via the following website located at <a href="https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369">https://www.regulations.gov/docket?D=EPA-R10-OW-2017-0369</a>.
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
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