EPA Pebble, Transboundary Update

Environmental Protection Agency Region 10 administrator Dennis McLerran told the Alaska Forum on the Environment in Anchorage this week that he feels the agency will prevail in lawsuits in progress regarding the Pebble mine.
Three separate lawsuits filed in federal court by the Canadian-owned Pebble Limited Partnership have kept the EPA from taking action under Section 404 (c) of the Clean Water Act. That’s the provision that authorizes the EPA to prohibit, restrict or deny the discharge of dredged or fill material at defined sites in federal waters, if it is determined that use of such sites for disposal would have unacceptable adverse impact on fisheries, wildlife, municipal water supplies, or recreational areas.
US District Judge H. Russel Holland has already dismissed a complaint that challenged the EPA’s authority to perform the Bristol Bay watershed assessment, and Holland’s decision was upheld by the Ninth Circuit Court of Appeals last May.
Two other lawsuits are still before the court, one alleging collusion of the EPA with those opposed to the mine, in violation of the Federal Advisory Committee Act, and another contending that EPA violated the Freedom of Information Act.
McLerran said in an interview that he feels the EPA will prevail in both cases.
The lawsuit alleging collusion is in the discovery phase, and it will be some time before EPA can engage in things like a summary judgment motion he said. The EPA also feels the agency is meeting all its requirements under FOIA, he said.
An injunction currently in place because of the litigation prevents the EPA from taking action under the Clean Water Act until these cases are resolved. McLerran said the earliest that could happen would be sometime later in 2016.
EPA is also working with state and federal officials and Canadian officials to resolve concerns of Alaskan fish harvesters and others regarding several mines in operation and planned along transboundary waterways in British Columbia that flow into Southeast Alaska.

McLerran also spoke about transboundary salmon rivers at a breakaway session at the Alaska Forum on the Environment before a panel of state and tribal representatives and environmental entities. “There are many (mining) projects in the planning stages and others long term that have not been dealt with,” McLerran said. “This engagement now is incredibly important.”