83_FR_8708 83 FR 8668 - Notification of Decision Not To Withdraw Proposed Determination To Restrict the Use of an Area as a Disposal Site; Pebble Deposit Area, Southwest Alaska

83 FR 8668 - Notification of Decision Not To Withdraw Proposed Determination To Restrict the Use of an Area as a Disposal Site; Pebble Deposit Area, Southwest Alaska

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 40 (February 28, 2018)

Page Range8668-8671
FR Document2018-04092

The United States Environmental Protection Agency (EPA) Administrator and Region 10 Regional Administrator are announcing the EPA's decision not to withdraw at this time the EPA Region 10 July 2014 Proposed Determination that was issued pursuant to Section 404(c) of the Clean Water Act and EPA's implementing regulations. Today's notice suspends the proceeding to withdraw the Proposed Determination and leaves that Determination in place pending further consideration by the Agency of information that is relevant to the protection of the world- class fisheries contained in the Bristol Bay watershed. The Agency intends at a future time to solicit public comment on what further steps, if any, the Agency should take under Section 404(c) to prevent unacceptable adverse effects to the watershed's abundant and valuable fishery resources in light of the permit application that has now been submitted to the U.S. Army Corps of Engineers.

Federal Register, Volume 83 Issue 40 (Wednesday, February 28, 2018) 
[Federal Register Volume 83, Number 40 (Wednesday, February 28, 2018)]
[Notices]
[Pages 8668-8671]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-04092]



[[Page 8668]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R10-OW-2017-0369; FRL 9974-52--Region 10]


Notification of Decision Not 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) 
Administrator and Region 10 Regional Administrator are announcing the 
EPA's decision not to withdraw at this time the EPA Region 10 July 2014 
Proposed Determination that was issued pursuant to Section 404(c) of 
the Clean Water Act and EPA's implementing regulations. Today's notice 
suspends the proceeding to withdraw the Proposed Determination and 
leaves that Determination in place pending further consideration by the 
Agency of information that is relevant to the protection of the world-
class fisheries contained in the Bristol Bay watershed. The Agency 
intends at a future time to solicit public comment on what further 
steps, if any, the Agency should take under Section 404(c) to prevent 
unacceptable adverse effects to the watershed's abundant and valuable 
fishery resources in light of the permit application that has now been 
submitted to the U.S. Army Corps of Engineers.

FOR FURTHER INFORMATION CONTACT: Visit www.epa.gov/bristolbay or 
contact a 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 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=EPA-R10-OW-2017-0369.

II. Background

    On July 19, 2017, EPA Region 10 published in the Federal Register 
(82 FR 33123) a notice of a proposal to withdraw its July 2014 Proposed 
Determination under section 404(c) of the Clean Water Act (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 material associated with mining the Pebble deposit, a copper-, 
gold- and molybdenum-bearing ore body. A Proposed Determination is the 
second step in EPA's four-step CWA Section 404(c) review process of: 
(1) Initiation, (2) Proposed Determination, (3) Recommended 
Determination, and (4) Final Determination (40 CFR part 231).
    The July 19, 2017 (82 FR 33123), notice opened a public comment 
period that closed on October 17, 2017. EPA held two public hearings in 
the Bristol Bay watershed during the week of October 9, 2017. EPA also 
consulted with federally recognized tribal governments from the Bristol 
Bay region and Alaska Native Claims Settlement Act (ANCSA) Regional and 
Village Corporations with lands in the Bristol Bay watershed on the 
Agency's proposal to withdraw.
    EPA agreed to initiate a process to propose to withdraw the 2014 
Proposed Determination as part of a May 11, 2017, settlement agreement 
with the Pebble Limited Partnership (PLP), whose subsidiaries own the 
mineral claims to the Pebble deposit. The settlement agreement resolved 
all of PLP's outstanding lawsuits against EPA. Also under the terms of 
the settlement agreement, Region 10 may not forward a signed 
Recommended Determination, if such a decision is made, before either 
May 11, 2021, or until EPA provides public notice of a final 
Environmental Impact Statement (EIS) issued by the U.S. Army Corps of 
Engineers (Corps) on PLP's CWA Section 404 permit application regarding 
the Pebble deposit, whichever comes first. For a link to a copy of the 
settlement agreement, see Section I of this notice.
    In its July 19, 2017, notice and during the concurrent tribal and 
ANCSA Corporation consultation periods, EPA defined the scope of the 
input it was seeking on its proposal to withdraw. Specifically, EPA 
sought public comment and tribal and ANCSA Corporation input on three 
reasons underlying its proposed withdrawal. EPA's reasons were that 
withdrawing the Proposed Determination now would:
    1. Provide PLP with additional time to submit a 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.
    In addition to seeking comment on whether to withdraw the July 2014 
Proposed Determination at this time for the reasons stated above, in 
the event that the final decision was to withdraw the Proposed 
Determination, EPA also sought comment on whether the Administrator 
should review and reconsider the withdrawal decision consistent with 40 
CFR 231.5(c).

III. Summary of Input From Public Comment, Tribal Consultation, and 
ANCSA Corporation Consultation Periods

    During the public comment period, EPA received more than one 
million public comments regarding its proposal to withdraw. An 
overwhelming majority of these commenters expressed opposition to 
withdrawal of the Proposed Determination. EPA also held two public 
hearings in the Bristol Bay watershed on the proposal to withdraw; 
approximately 200 people participated in the hearings. Of the 119 
participants who testified, an overwhelming majority also expressed 
opposition to withdrawal of the Proposed Determination. Similarly, the 
vast majority of tribal governments and ANCSA Corporation shareholders 
who consulted with EPA expressed opposition to the proposed withdrawal. 
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 effort; see Section I of this notice for 
information on how to access this docket.

A. Comments Opposing Withdrawal That Were Within the Scope of EPA's 
July 2017 Notice

    A large number of commenters expressed opposition to the proposal 
to withdraw. Commenters stated that withdrawal of the Proposed 
Determination is not necessary to allow for PLP to submit its permit 
application

[[Page 8669]]

because nothing in the regulations prevents PLP from submitting a 
permit application while a section 404(c) review is ongoing. Other 
commenters indicated that regardless of whether the Proposed 
Determination is withdrawn, other provisions of the settlement 
agreement pause EPA's section 404(c) review and provide PLP with 
additional time to submit its permit application and allow that permit 
application to be reviewed by the Corps. EPA received many comments 
noting that withdrawal of the Proposed Determination is not necessary 
to ensure that the Corps' 404 permit and National Environmental Policy 
Act (NEPA) review processes proceed. The applicable regulations prevent 
the Corps from issuing a final permit decision for a project while a 
section 404(c) review is ongoing (33 CFR 323.6(b) and 40 CFR 
231.3(a)(2)), but affirmatively provide that the Corps will continue to 
complete its administrative processing of PLP's permit application, 
including final coordination with EPA under 33 CFR part 325, while 
EPA's section 404(c) review is underway.
    Commenters also stated that it is not necessary to withdraw the 
Proposed Determination in order to allow the factual record associated 
with a permit application from PLP to develop because nothing in the 
statute, its implementing regulations, or the Proposed Determination 
preclude PLP from submitting a permit application and the Corps from 
reviewing that application. In addition, some commenters stated that 
the Proposed Determination is supported by a sufficient factual record 
that does not need further development.
    Commenters also noted that there is precedent for EPA leaving a 
Proposed Determination in place while it awaits additional project-
related information and cited EPA's section 404(c) review process 
relating to the Pamo Dam project where EPA kept its Proposed 
Determination in place pending completion and review of additional 
information and analysis by the project proponent.\1\ Commenters also 
noted that EPA's section 404(c) regulations allow it to extend the 
timeframes for section 404(c) decisions for ``good cause'' (40 CFR 
231.8) and argued that EPA has good cause in this case to extend the 
specific time period at 40 CFR 231.5(a) for the Regional Administrator 
to decide whether to withdraw a Proposed Determination or prepare a 
Recommended Determination (which is the next step in the section 404(c) 
review process). Commenters also noted that when EPA first initiated 
its section 404(c) action in February 2014, PLP told EPA that it 
supported pausing EPA's section 404(c) review process for ``good 
cause'' pursuant to 40 CFR 231.8 to allow time for it to submit its 
permit application and for that application to be reviewed.\2\
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    \1\ 54 FR 30599 (July 21, 1989).
    \2\ Letter from Tom Collier, CEO, PLP to Dennis McLerran, former 
EPA R10 Regional Administrator, (March 11, 2014).
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    Commenters also asserted that EPA's July 2017 notice was 
inappropriately limited to process and policy arguments and did not 
adequately consider the underlying scientific and technical record in 
the July 2014 Proposed Determination.

B. Comments Supporting Withdrawal That Were Within the Scope of EPA's 
July 2017 Notice

    Commenters in support of withdrawal of the Proposed Determination 
indicated that EPA preemptively issued its Proposed Determination 
before PLP submitted a permit application or the Corps initiated the 
NEPA review process. These commenters stated that this was an overreach 
by EPA and that it denied PLP due process. Commenters felt that the 
Section 404 permitting process should be allowed to proceed, which 
would allow future decisions to be made based on the permit application 
materials, related mitigation strategies, and NEPA review. Commenters 
stated that this would allow the Agency to examine all possible merits 
of a project, as well as potential environmental impacts, through an 
EIS. Commenters noted that the NEPA process considers the views of a 
much broader group of constituents, including the Secretary of the 
Interior, Fish and Wildlife Service, National Marine Fisheries Service, 
State Historic Preservation Office, and the Coast Guard.
    Some commenters asserted that EPA does not have the authority to 
initiate the section 404(c) process or issue a Proposed Determination 
in the absence of a permit application. In addition, some commenters 
indicated that, in their view, withdrawing the Proposed Determination 
was necessary in order for the Corps to accept and review a permit 
application from PLP and conduct the NEPA review process.
    Commenters also expressed a belief that the issuance of the 
Proposed Determination prevents the development of a full record by 
stifling the extensive permitting process that would be required to 
permit a mine of this scale, including local, state, and federal 
permits. They noted that the permit application will provide 
comprehensive, site-specific data and alternatives analysis, and that 
the process will ensure a rigorous review, including development of an 
EIS, and consideration of mitigation strategies. Several commenters 
stated that the fate of the project should not be decided without 
consideration of the full social, economic, and environmental impacts, 
which would occur during permit review.
    Many of the other reasons offered by commenters in support of the 
withdrawal revolved around their policy view that EPA should not take a 
section 404(c) action in advance of the filing of a permit application 
because such an action would have negative repercussions for the 
business and investing community. Commenters noted that maintaining the 
integrity of the existing regulatory review process and ensuring due 
process for all projects is important to Alaska's economy for future 
investment in natural resource development.

C. Comments Received That Were Outside the Scope of EPA's July 2017 
Notice

    EPA received comments regarding the specific scientific and 
technical record underlying the Proposed Determination and subsequent 
public process. Certain commenters expressed support for the analysis 
conducted as part of EPA's Bristol Bay Watershed Assessment (BBWA) 
completed in 2014 (for more information regarding the BBWA see: 
www.epa.gov/bristolbay), which these commenters indicated did not 
support withdrawal of the Proposed Determination. Other commenters 
argued that the BBWA was flawed and should not be a basis for agency 
decision making. EPA also received comments relating to economic value 
of a potential mine and metals to be mined as a general matter and the 
potential value of the mine for the local and national economy.
    EPA also received comments regarding the amount of public input 
relating to this issue as a general matter and the amount of resources 
that both EPA and stakeholders have expended on Bristol Bay-related 
issues associated with mining of the Pebble deposit. Comments also 
focused on the ecological, cultural, and economic value of Bristol 
Bay's fishery resources, and potential environmental, cultural, and 
economic harms to these and other resources associated with potential 
mining activity.

[[Page 8670]]

IV. Recent Developments

    Since the close of the public comment, tribal consultation, and 
ANCSA Corporation consultation periods on October 17, 2017, there have 
been a number of other relevant developments. On December 22, 2017, PLP 
submitted a section 404 permit application to the Corps that proposes 
to develop a mine at the Pebble deposit. On January 5, 2018, the Corps 
issued a public notice that provides PLP's permit application to the 
public and states that an EIS will be required as part of its permit 
review process consistent with NEPA. The Corps also invited relevant 
federal and state agencies to be cooperating agencies on the 
development of this EIS.
    Since PLP has now submitted its CWA Section 404 permit application 
to the Corps regarding the Pebble deposit, Region 10 will not forward a 
signed Recommended Determination, if such a decision is made, before 
either May 11, 2021, or public notice of a final EIS on PLP's Section 
404 permit application regarding the Pebble deposit, whichever comes 
first.

V. Conclusions

    In making its decision regarding whether to withdraw the Proposed 
Determination at this time, EPA considered its relevant statutory 
authority, applicable regulations, and the input it received as part of 
the tribal consultation, ANCSA consultation, and public comment periods 
regarding the Agency's reasons for its proposing withdrawal as well as 
the recent developments.
    1. Additional time to submit Section 404 permit application and 
initiate permit review. As several commenters noted, PLP has had the 
ability as a legal matter to submit a permit application while a 
section 404(c) review is ongoing. In fact, PLP submitted its 
application on December 22, 2017, notwithstanding the pending section 
404(c) review and existing Proposed Determination, and the Corps issued 
a public notice that provides PLP's permit application to the public 
and states that an EIS will be required as part of its permit review 
process consistent with NEPA. As a result, withdrawal of the Proposed 
Determination at this time is not necessary to provide PLP with 
additional time to submit a section 404 permit application to the Corps 
and potentially allow the Corps permitting process to initiate.
    2. Remove uncertainty regarding PLP's ability to submit Section 404 
permit application and have it reviewed. As many commenters pointed out 
and as EPA noted in its proposal, the Corps' regulations allow it to 
accept, review, and process a permit application for a proposed project 
even if EPA has an ongoing section 404(c) review for that project. In 
addition, since PLP has now submitted its permit application to the 
Corps regarding the Pebble deposit and the Corps has initiated its 
permit review process and begun taking steps to initiate development of 
an EIS for this project, any potential uncertainty about PLP's ability 
to submit a permit application and have that permit application 
reviewed by the Corps has been resolved. The Corps' regulations state 
that it will continue to complete its administrative processing of a 
permit application for a proposed project if EPA has an ongoing section 
404(c) review for that project. While the Corps cannot issue a final 
decision on the permit application while a section 404(c) process 
remains open and unresolved (33 CFR 323.6(b)), in this case, such a 
decision is likely a number of years away. Therefore, this reason to 
withdraw the Proposed Determination at this time is no longer 
applicable.
    3. Allow factual record for Section 404 permit application to 
develop. As previously noted, the Corps has already initiated its 
permit review process for PLP's application. Even if EPA leaves the 
Proposed Determination in place at this time, EPA will provide PLP with 
nearly three and a half years (unless a final EIS for the project is 
noticed sooner) to advance through the permit review process before 
Region 10 could forward a signed Recommended Determination to EPA 
Headquarters, if such a decision is made. Thus, in light of EPA's 
forbearance from proceeding to the next step of the section 404(c) 
process until a later time as described above, EPA concludes that the 
factual record regarding the permit application can develop 
notwithstanding the Proposed Determination. EPA has discretion to 
consider that factual record after it has been further developed before 
Region 10 determines whether to forward a signed Recommended 
Determination to EPA Headquarters and, if such a decision is made, to 
determine the contents of such a Recommended Determination. As such, 
this reason does not support withdrawal of the Proposed Determination 
at this time.
    Further, in light of recent developments and the framework outlined 
in the settlement agreement, many of the key concerns raised by those 
who supported withdrawal have already been resolved, even while the 
Proposed Determination remains in place. For example, concerns 
regarding EPA potentially finalizing its section 404(c) review in 
advance of PLP submitting a permit application, concerns that the Corps 
would not accept or process PLP's permit application with an open 
section 404(c) action, and concerns that PLP should be provided more 
time to advance through the Section 404 permit and NEPA review 
processes before EPA makes any decisions regarding potentially 
advancing its section 404(c) review are moot.
    Given the relevant statutory authority, applicable regulations, 
recent developments, public comments, tribal input, and ANCSA 
Corporation input described above, the Agency has decided not to 
withdraw the 2014 Proposed Determination at this time. Today's notice 
suspends the proceeding to withdraw the Proposed Determination and 
leaves that Determination in place pending consideration of any other 
information that is relevant to the 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. As noted above, 
EPA also sought comment on whether the Administrator should review and 
reconsider the withdrawal decision consistent with 40 CFR 231.5(c) in 
the event that the final decision was to withdraw the Proposed 
Determination. Since today's decision is not to withdraw the Proposed 
Determination at this time, comments received on this issue do not need 
to be addressed.
    EPA acknowledges the significant public interest on this issue and 
remains committed to listening to all stakeholders as the permitting 
process progresses. Neither this decision nor the previous settlement 
agreement guarantees or prejudges a particular outcome in the 
permitting process or any particular EPA decision-making under section 
404(c) or otherwise constrain EPA's discretion except as provided in 
the terms of the settlement agreement.
    EPA received several comments stating that EPA cannot withdraw a 
Proposed Determination without considering the proposed restrictions or 
the science or technical information underlying the Proposed 
Determination. In light of EPA's decision not to withdraw the Proposed 
Determination, those comments are moot.
    EPA also received comments that it has to withdraw the Proposed 
Determination because it does not have the statutory authority to 
initiate the section 404(c) process before a permit application has 
been filed with the

[[Page 8671]]

Corps. To the contrary, EPA has the authority whenever it makes the 
requisite finding of 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). As such, EPA need not withdraw the Proposed 
Determination on the basis of a lack of statutory authority because EPA 
had authority to issue the Proposed Determination.

VI. Further Proceedings

    EPA's regulations at 40 CFR 231.5(a) provide a specific time period 
for the Regional Administrator to decide whether to withdraw a Proposed 
Determination or prepare a Recommended Determination. As explained 
above, the Agency has decided not to withdraw the Proposed 
Determination at this time and is suspending this withdrawal proceeding 
and leaving the Proposed Determination in place. As previously noted, 
however, under the terms of the May 2017 settlement agreement, Region 
10 may not forward a signed Recommended Determination, if such a 
decision is made, before either May 11, 2021, or until public notice of 
a final EIS on PLP's CWA Section 404 permit application regarding the 
Pebble deposit, whichever comes first.
    The Agency intends at a future time to solicit public comment on 
what further steps, if any, the Agency should take in the section 
404(c) process in order to prevent unacceptable adverse effects to the 
watershed's world-class fisheries in light of the permit application 
that has now been submitted to the Corps. EPA will review and consider 
any other relevant information that becomes available during the 
interim. EPA has determined that there is good cause under 40 CFR 231.8 
to extend the regulatory time frames in 40 CFR 231.5(a) in order to 
allow for an additional public comment period and to align with the 
timeframes established in the settlement agreement.

    Dated: January 26, 2018.
Chris Hladick,
Regional Administrator, EPA Region 10.
[FR Doc. 2018-04092 Filed 2-27-18; 8:45 am]
BILLING CODE 6560-50-P

8668 Federal Register / Vol. 83, No. 40 / Wednesday, February 28, 2018 / Notices ENVIRONMENTAL PROTECTION Bay site at www.epa.gov/bristolbay. Corporation consultation periods, EPA AGENCY Information regarding the proposal to defined the scope of the input it was withdraw can also be found in the seeking on its proposal to withdraw. [EPA–R10–OW–2017–0369; FRL 9974–52— docket for this effort at Specifically, EPA sought public Region 10] www.regulations.gov, see docket ID No. comment and tribal and ANCSA Notification of Decision Not To EPA–R10–OW–2017–0369 or use the Corporation input on three reasons Withdraw Proposed Determination To following link: https:// underlying its proposed withdrawal. Restrict the Use of an Area as a www.regulations.gov/docket?D=EPA- EPA’s reasons were that withdrawing Disposal Site; Pebble Deposit Area, R10-OW-2017-0369. the Proposed Determination now would: Southwest Alaska 1. Provide PLP with additional time to II. Background submit a section 404 permit application AGENCY: Environmental Protection On July 19, 2017, EPA Region 10 to the Corps, Agency (EPA). published in the Federal Register (82 2. Remove any uncertainty, real or ACTION: Notice. FR 33123) a notice of a proposal to perceived, about PLP’s ability to submit withdraw its July 2014 Proposed a permit application and have that SUMMARY: The United States Determination under section 404(c) of permit application reviewed, and Environmental Protection Agency (EPA) the Clean Water Act (CWA) to restrict 3. Allow the factual record regarding Administrator and Region 10 Regional the use of certain waters in the South any forthcoming permit application to Administrator are announcing the EPA’s Fork Koktuli River, North Fork Koktuli develop. decision not to withdraw at this time River, and Upper Talarik Creek In addition to seeking comment on the EPA Region 10 July 2014 Proposed watersheds (located within the larger whether to withdraw the July 2014 Determination that was issued pursuant Bristol Bay watershed) as disposal sites Proposed Determination at this time for to Section 404(c) of the Clean Water Act for dredged or fill material associated the reasons stated above, in the event and EPA’s implementing regulations. with mining the Pebble deposit, a that the final decision was to withdraw Today’s notice suspends the proceeding copper-, gold- and molybdenum-bearing the Proposed Determination, EPA also to withdraw the Proposed ore body. A Proposed Determination is sought comment on whether the Determination and leaves that the second step in EPA’s four-step CWA Administrator should review and Determination in place pending further Section 404(c) review process of: (1) reconsider the withdrawal decision consideration by the Agency of Initiation, (2) Proposed Determination, consistent with 40 CFR 231.5(c). information that is relevant to the (3) Recommended Determination, and III. Summary of Input From Public protection of the world-class fisheries (4) Final Determination (40 CFR part 231). Comment, Tribal Consultation, and contained in the Bristol Bay watershed. ANCSA Corporation Consultation The Agency intends at a future time to The July 19, 2017 (82 FR 33123), notice opened a public comment period Periods solicit public comment on what further steps, if any, the Agency should take that closed on October 17, 2017. EPA During the public comment period, under Section 404(c) to prevent held two public hearings in the Bristol EPA received more than one million unacceptable adverse effects to the Bay watershed during the week of public comments regarding its proposal watershed’s abundant and valuable October 9, 2017. EPA also consulted to withdraw. An overwhelming majority fishery resources in light of the permit with federally recognized tribal of these commenters expressed application that has now been governments from the Bristol Bay region opposition to withdrawal of the submitted to the U.S. Army Corps of and Alaska Native Claims Settlement Proposed Determination. EPA also held Engineers. Act (ANCSA) Regional and Village two public hearings in the Bristol Bay Corporations with lands in the Bristol watershed on the proposal to withdraw; FOR FURTHER INFORMATION CONTACT: Visit Bay watershed on the Agency’s proposal approximately 200 people participated www.epa.gov/bristolbay or contact a to withdraw. in the hearings. Of the 119 participants Bristol Bay-specific phone line, (206) EPA agreed to initiate a process to who testified, an overwhelming majority 553–0040, or email address, propose to withdraw the 2014 Proposed also expressed opposition to withdrawal r10bristolbay@epa.gov. Determination as part of a May 11, 2017, of the Proposed Determination. SUPPLEMENTARY INFORMATION: settlement agreement with the Pebble Similarly, the vast majority of tribal Limited Partnership (PLP), whose governments and ANCSA Corporation I. General Information subsidiaries own the mineral claims to shareholders who consulted with EPA A. How to Obtain a Copy of the the Pebble deposit. The settlement expressed opposition to the proposed Proposed Determination: The July 2014 agreement resolved all of PLP’s withdrawal. The public comments, Proposed Determination is available via outstanding lawsuits against EPA. Also transcripts from the public hearings, the internet on the EPA Region 10 under the terms of the settlement and summaries of the tribal and ANCSA Bristol Bay site at www.epa.gov/ agreement, Region 10 may not forward Corporation consultations can be found bristolbay. a signed Recommended Determination, in the docket for this effort; see Section B. How to Obtain a Copy of the if such a decision is made, before either I of this notice for information on how Settlement Agreement: The May 11, May 11, 2021, or until EPA provides to access this docket. 2017, settlement agreement is available public notice of a final Environmental via the internet on the EPA Region 10 Impact Statement (EIS) issued by the A. Comments Opposing Withdrawal Bristol Bay site at www.epa.gov/ That Were Within the Scope of EPA’s sradovich on DSK3GMQ082PROD with NOTICES U.S. Army Corps of Engineers (Corps) bristolbay. on PLP’s CWA Section 404 permit July 2017 Notice C. How to Obtain a Copy of the application regarding the Pebble A large number of commenters Proposal to Withdraw the Proposed deposit, whichever comes first. For a expressed opposition to the proposal to Determination: The July 2017 proposal link to a copy of the settlement withdraw. Commenters stated that to withdraw the Proposed agreement, see Section I of this notice. withdrawal of the Proposed Determination is available via the In its July 19, 2017, notice and during Determination is not necessary to allow internet on the EPA Region 10 Bristol the concurrent tribal and ANCSA for PLP to submit its permit application VerDate Sep<11>2014 17:25 Feb 27, 2018 Jkt 244001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\28FEN1.SGM 28FEN1

Federal Register / Vol. 83, No. 40 / Wednesday, February 28, 2018 / Notices 8669 because nothing in the regulations that when EPA first initiated its section permit application will provide prevents PLP from submitting a permit 404(c) action in February 2014, PLP told comprehensive, site-specific data and application while a section 404(c) EPA that it supported pausing EPA’s alternatives analysis, and that the review is ongoing. Other commenters section 404(c) review process for ‘‘good process will ensure a rigorous review, indicated that regardless of whether the cause’’ pursuant to 40 CFR 231.8 to including development of an EIS, and Proposed Determination is withdrawn, allow time for it to submit its permit consideration of mitigation strategies. other provisions of the settlement application and for that application to Several commenters stated that the fate agreement pause EPA’s section 404(c) be reviewed.2 of the project should not be decided review and provide PLP with additional Commenters also asserted that EPA’s without consideration of the full social, time to submit its permit application July 2017 notice was inappropriately economic, and environmental impacts, and allow that permit application to be limited to process and policy arguments which would occur during permit reviewed by the Corps. EPA received and did not adequately consider the review. many comments noting that withdrawal underlying scientific and technical of the Proposed Determination is not record in the July 2014 Proposed Many of the other reasons offered by necessary to ensure that the Corps’ 404 Determination. commenters in support of the permit and National Environmental withdrawal revolved around their Policy Act (NEPA) review processes B. Comments Supporting Withdrawal policy view that EPA should not take a proceed. The applicable regulations That Were Within the Scope of EPA’s section 404(c) action in advance of the prevent the Corps from issuing a final July 2017 Notice filing of a permit application because permit decision for a project while a Commenters in support of withdrawal such an action would have negative section 404(c) review is ongoing (33 of the Proposed Determination indicated repercussions for the business and CFR 323.6(b) and 40 CFR 231.3(a)(2)), that EPA preemptively issued its investing community. Commenters but affirmatively provide that the Corps Proposed Determination before PLP noted that maintaining the integrity of will continue to complete its submitted a permit application or the the existing regulatory review process administrative processing of PLP’s Corps initiated the NEPA review and ensuring due process for all projects permit application, including final process. These commenters stated that is important to Alaska’s economy for coordination with EPA under 33 CFR this was an overreach by EPA and that future investment in natural resource part 325, while EPA’s section 404(c) it denied PLP due process. Commenters development. review is underway. felt that the Section 404 permitting Commenters also stated that it is not process should be allowed to proceed, C. Comments Received That Were necessary to withdraw the Proposed which would allow future decisions to Outside the Scope of EPA’s July 2017 Determination in order to allow the be made based on the permit Notice factual record associated with a permit application materials, related mitigation application from PLP to develop EPA received comments regarding the strategies, and NEPA review. because nothing in the statute, its specific scientific and technical record Commenters stated that this would implementing regulations, or the underlying the Proposed Determination allow the Agency to examine all Proposed Determination preclude PLP and subsequent public process. Certain possible merits of a project, as well as from submitting a permit application commenters expressed support for the potential environmental impacts, and the Corps from reviewing that analysis conducted as part of EPA’s through an EIS. Commenters noted that application. In addition, some the NEPA process considers the views Bristol Bay Watershed Assessment commenters stated that the Proposed of a much broader group of constituents, (BBWA) completed in 2014 (for more Determination is supported by a including the Secretary of the Interior, information regarding the BBWA see: sufficient factual record that does not Fish and Wildlife Service, National www.epa.gov/bristolbay), which these need further development. Marine Fisheries Service, State Historic commenters indicated did not support Commenters also noted that there is Preservation Office, and the Coast withdrawal of the Proposed precedent for EPA leaving a Proposed Guard. Determination. Other commenters Determination in place while it awaits Some commenters asserted that EPA argued that the BBWA was flawed and additional project-related information does not have the authority to initiate should not be a basis for agency and cited EPA’s section 404(c) review the section 404(c) process or issue a decision making. EPA also received process relating to the Pamo Dam Proposed Determination in the absence comments relating to economic value of project where EPA kept its Proposed of a permit application. In addition, a potential mine and metals to be mined Determination in place pending some commenters indicated that, in as a general matter and the potential completion and review of additional their view, withdrawing the Proposed value of the mine for the local and information and analysis by the project Determination was necessary in order national economy. proponent.1 Commenters also noted that for the Corps to accept and review a EPA’s section 404(c) regulations allow it EPA also received comments permit application from PLP and regarding the amount of public input to extend the timeframes for section conduct the NEPA review process. 404(c) decisions for ‘‘good cause’’ (40 relating to this issue as a general matter Commenters also expressed a belief and the amount of resources that both CFR 231.8) and argued that EPA has that the issuance of the Proposed good cause in this case to extend the EPA and stakeholders have expended Determination prevents the on Bristol Bay-related issues associated specific time period at 40 CFR 231.5(a) development of a full record by stifling with mining of the Pebble deposit. sradovich on DSK3GMQ082PROD with NOTICES for the Regional Administrator to decide the extensive permitting process that whether to withdraw a Proposed Comments also focused on the would be required to permit a mine of ecological, cultural, and economic value Determination or prepare a this scale, including local, state, and Recommended Determination (which is of Bristol Bay’s fishery resources, and federal permits. They noted that the the next step in the section 404(c) potential environmental, cultural, and review process). Commenters also noted 2 Letter from Tom Collier, CEO, PLP to Dennis economic harms to these and other McLerran, former EPA R10 Regional Administrator, resources associated with potential 1 54 FR 30599 (July 21, 1989). (March 11, 2014). mining activity. VerDate Sep<11>2014 17:25 Feb 27, 2018 Jkt 244001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\28FEN1.SGM 28FEN1

8670 Federal Register / Vol. 83, No. 40 / Wednesday, February 28, 2018 / Notices IV. Recent Developments out and as EPA noted in its proposal, place. For example, concerns regarding Since the close of the public the Corps’ regulations allow it to accept, EPA potentially finalizing its section comment, tribal consultation, and review, and process a permit 404(c) review in advance of PLP ANCSA Corporation consultation application for a proposed project even submitting a permit application, periods on October 17, 2017, there have if EPA has an ongoing section 404(c) concerns that the Corps would not been a number of other relevant review for that project. In addition, accept or process PLP’s permit developments. On December 22, 2017, since PLP has now submitted its permit application with an open section 404(c) application to the Corps regarding the action, and concerns that PLP should be PLP submitted a section 404 permit Pebble deposit and the Corps has provided more time to advance through application to the Corps that proposes to initiated its permit review process and the Section 404 permit and NEPA develop a mine at the Pebble deposit. begun taking steps to initiate review processes before EPA makes any On January 5, 2018, the Corps issued a development of an EIS for this project, decisions regarding potentially public notice that provides PLP’s permit any potential uncertainty about PLP’s advancing its section 404(c) review are application to the public and states that ability to submit a permit application moot. an EIS will be required as part of its Given the relevant statutory authority, and have that permit application permit review process consistent with applicable regulations, recent reviewed by the Corps has been NEPA. The Corps also invited relevant developments, public comments, tribal resolved. The Corps’ regulations state federal and state agencies to be that it will continue to complete its input, and ANCSA Corporation input cooperating agencies on the administrative processing of a permit described above, the Agency has development of this EIS. application for a proposed project if decided not to withdraw the 2014 Since PLP has now submitted its EPA has an ongoing section 404(c) Proposed Determination at this time. CWA Section 404 permit application to review for that project. While the Corps Today’s notice suspends the proceeding the Corps regarding the Pebble deposit, cannot issue a final decision on the to withdraw the Proposed Region 10 will not forward a signed permit application while a section Determination and leaves that Recommended Determination, if such a 404(c) process remains open and Determination in place pending decision is made, before either May 11, unresolved (33 CFR 323.6(b)), in this consideration of any other information 2021, or public notice of a final EIS on case, such a decision is likely a number that is relevant to the protection of the PLP’s Section 404 permit application of years away. Therefore, this reason to world-class fisheries contained in the regarding the Pebble deposit, whichever withdraw the Proposed Determination Bristol Bay watershed in light of the comes first. at this time is no longer applicable. permit application that has now been V. Conclusions 3. Allow factual record for Section submitted to the Corps. As noted above, 404 permit application to develop. As EPA also sought comment on whether In making its decision regarding previously noted, the Corps has already the Administrator should review and whether to withdraw the Proposed initiated its permit review process for reconsider the withdrawal decision Determination at this time, EPA PLP’s application. Even if EPA leaves consistent with 40 CFR 231.5(c) in the considered its relevant statutory the Proposed Determination in place at event that the final decision was to authority, applicable regulations, and this time, EPA will provide PLP with withdraw the Proposed Determination. the input it received as part of the tribal nearly three and a half years (unless a Since today’s decision is not to consultation, ANCSA consultation, and final EIS for the project is noticed withdraw the Proposed Determination public comment periods regarding the sooner) to advance through the permit at this time, comments received on this Agency’s reasons for its proposing review process before Region 10 could issue do not need to be addressed. withdrawal as well as the recent forward a signed Recommended EPA acknowledges the significant developments. Determination to EPA Headquarters, if public interest on this issue and remains 1. Additional time to submit Section such a decision is made. Thus, in light committed to listening to all 404 permit application and initiate of EPA’s forbearance from proceeding to stakeholders as the permitting process permit review. As several commenters the next step of the section 404(c) progresses. Neither this decision nor the noted, PLP has had the ability as a legal process until a later time as described previous settlement agreement matter to submit a permit application above, EPA concludes that the factual guarantees or prejudges a particular while a section 404(c) review is record regarding the permit application outcome in the permitting process or ongoing. In fact, PLP submitted its can develop notwithstanding the any particular EPA decision-making application on December 22, 2017, Proposed Determination. EPA has under section 404(c) or otherwise notwithstanding the pending section discretion to consider that factual record constrain EPA’s discretion except as 404(c) review and existing Proposed after it has been further developed provided in the terms of the settlement Determination, and the Corps issued a before Region 10 determines whether to agreement. public notice that provides PLP’s permit forward a signed Recommended EPA received several comments application to the public and states that Determination to EPA Headquarters stating that EPA cannot withdraw a an EIS will be required as part of its and, if such a decision is made, to Proposed Determination without permit review process consistent with determine the contents of such a considering the proposed restrictions or NEPA. As a result, withdrawal of the Recommended Determination. As such, the science or technical information Proposed Determination at this time is this reason does not support withdrawal underlying the Proposed Determination. not necessary to provide PLP with of the Proposed Determination at this In light of EPA’s decision not to additional time to submit a section 404 sradovich on DSK3GMQ082PROD with NOTICES time. withdraw the Proposed Determination, permit application to the Corps and Further, in light of recent those comments are moot. potentially allow the Corps permitting developments and the framework EPA also received comments that it process to initiate. outlined in the settlement agreement, has to withdraw the Proposed 2. Remove uncertainty regarding many of the key concerns raised by Determination because it does not have PLP’s ability to submit Section 404 those who supported withdrawal have the statutory authority to initiate the permit application and have it already been resolved, even while the section 404(c) process before a permit reviewed. As many commenters pointed Proposed Determination remains in application has been filed with the VerDate Sep<11>2014 17:25 Feb 27, 2018 Jkt 244001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\28FEN1.SGM 28FEN1

Federal Register / Vol. 83, No. 40 / Wednesday, February 28, 2018 / Notices 8671 Corps. To the contrary, EPA has the ENVIRONMENTAL PROTECTION Ave. NW, Washington, DC 20460; authority whenever it makes the AGENCY telephone number: (202) 564–9651; fax requisite finding of unacceptable number: (202) 564–7083; email address: [EPA–HQ–OECA–2017–0438; FRL–9974– adverse effect. 33 U.S.C. 1344(c); 40 CFR taveras.raquel@epa.gov. 30–OEI] 231.1(a) & (c); see also Mingo Logan SUPPLEMENTARY INFORMATION: Coal Co. v. EPA, 714 F.3d 608, 613 (DC Information Collection Request Supporting documents, which explain Cir. 2013). As such, EPA need not Submitted to OMB for Review and in detail the information that the EPA withdraw the Proposed Determination Approval; Comment Request; Annual will be collecting, are available in the on the basis of a lack of statutory Public Water Systems Compliance public docket for this ICR. The docket authority because EPA had authority to Report (Renewal) can be viewed online at issue the Proposed Determination. www.regulations.gov or in person at the AGENCY: Environmental Protection EPA Docket Center, WJC West, Room VI. Further Proceedings Agency (EPA). 3334, 1301 Constitution Ave. NW, ACTION: Notice. Washington, DC. The telephone number EPA’s regulations at 40 CFR 231.5(a) for the Docket Center is 202–566–1744. provide a specific time period for the SUMMARY: The Environmental Protection For additional information about EPA’s Regional Administrator to decide Agency has submitted an information public docket, visit http://www.epa.gov/ whether to withdraw a Proposed collection request (ICR), Annual Public dockets. Determination or prepare a Water System Compliance Report (EPA Abstract: Section 1414(c)(3)(A) of the Recommended Determination. As ICR No. 1812.06, OMB Control No. Safe Drinking Water Act (SDWA) explained above, the Agency has 2020–0020), to the Office of requires that each state (a term that decided not to withdraw the Proposed Management and Budget (OMB) for includes states, commonwealths, tribes Determination at this time and is review and approval in accordance with and territories) that has primary suspending this withdrawal proceeding the Paperwork Reduction Act. This is a enforcement authority under the SDWA and leaving the Proposed Determination proposed extension of the ICR, which is shall prepare, make readily available to currently approved through April 30, the public, and submit to the in place. As previously noted, however, 2018. Public comments were previously Administrator of EPA, an annual report under the terms of the May 2017 requested via the Federal Register on of violations of national primary settlement agreement, Region 10 may September 29, 2017 during a 60-day drinking water regulations in the state. not forward a signed Recommended comment period. This notice allows for These Annual State Public Water Determination, if such a decision is an additional 30 days for public System Compliance Reports are to made, before either May 11, 2021, or comments. A fuller description of the include violations of maximum until public notice of a final EIS on ICR is given below, including its contaminant levels, treatment PLP’s CWA Section 404 permit estimated burden and cost to the public. requirements, variances and application regarding the Pebble An agency may not conduct or sponsor exemptions, and monitoring deposit, whichever comes first. and a person is not required to respond requirements determined to be The Agency intends at a future time to a collection of information unless it significant by the Administrator after to solicit public comment on what displays a currently valid OMB control consultation with the states. To further steps, if any, the Agency should number. minimize a state’s burden in preparing take in the section 404(c) process in DATES: Additional comments may be its annual statutorily-required report, order to prevent unacceptable adverse submitted on or before March 30, 2018. EPA issued guidance that explains what effects to the watershed’s world-class ADDRESSES: Submit your comments, Section 1414(c)(3)(A) requires and fisheries in light of the permit referencing Docket ID Number EPA– provides model language and reporting application that has now been HQ–OECA–2017–0438 to (1) EPA online templates. EPA also annually makes submitted to the Corps. EPA will review using www.regulations.gov (our available to the states a computer query and consider any other relevant preferred method), by email to that generates for each state (from docket.oeca@epa.gov or by mail to: EPA information states are already separately information that becomes available Docket Center, Environmental required to submit to EPA’s national during the interim. EPA has determined Protection Agency, Mail Code 28221T, database on a quarterly basis) the that there is good cause under 40 CFR required violations information in a 231.8 to extend the regulatory time 1200 Pennsylvania Ave. NW, Washington, DC 20460, and (2) OMB via table consistent with the reporting frames in 40 CFR 231.5(a) in order to template in EPA’s guidance. allow for an additional public comment email to oira_submission@omb.eop.gov. Address comments to OMB Desk Officer Form numbers: None. period and to align with the timeframes Respondents/affected entities: States for EPA. established in the settlement agreement. that have primacy enforcement EPA’s policy is that all comments Dated: January 26, 2018. received will be included in the public authority and meet the definition of docket without change including any ‘‘state’’ under the SDWA. Chris Hladick, Respondent’s obligation to respond: Regional Administrator, EPA Region 10. personal information provided, unless Mandatory Section 1414 (c)(3)(A) of [FR Doc. 2018–04092 Filed 2–27–18; 8:45 am] the comment includes profanity, threats, SDWA. information claimed to be Confidential Estimated number of respondents: 55 BILLING CODE 6560–50–P Business Information (CBI) or other sradovich on DSK3GMQ082PROD with NOTICES (total). information whose disclosure is Frequency of response: Annually. restricted by statute. Total estimated burden: 4,400 hours FOR FURTHER INFORMATION CONTACT: (per year). Burden is defined at 5 CFR Raquel Taveras, Monitoring, Assistance 1320.03(b). and Media Programs Division, Office of Total estimated cost: $470,000 (per Compliance, MC–2227A, Environmental year), includes $0 annualized capital or Protection Agency, 1200 Pennsylvania operation & maintenance costs. 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Document Created: 2018-02-28 03:20:04
Document Modified: 2018-02-28 03:20:04
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
ContactVisit www.epa.gov/bristolbay or contact a Bristol Bay-specific phone line, (206) 553-0040, or email
FR Citation83 FR 8668 
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