Pebble Partnership quietly submits mitigation plan amid political shifts opposing the mine

A helicopter lands near a test drilling site for the Pebble Mine in Southwest, Alaska on July,...
A helicopter lands near a test drilling site for the Pebble Mine in Southwest, Alaska on July, 23, 2007.(AL Grillo | ASSOCIATED PRESS)
Published: Nov. 17, 2020 at 2:29 PM AKST
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ANCHORAGE, Alaska (KTUU) - The day after a record number of Americans voted in the Nov. 3 election, the Pebble Partnership submitted a plan for how it would mitigate damage to wetlands when building the country’s largest open-pit mine, completing one of the final requirements needed before the U.S. Army Corps of Engineers decides whether or not to issue a federal permit for the project.

Though the permitting process is intended to be science-based and apolitical, candidates for both the presidency and Alaska’s congressional seats addressed a mine that has become controversial as it sits at the headwaters of the largest sockeye salmon fishery in the world.

In late August, one month after the Army Corps published the project’s final environmental impact statement, the Army Corps said the project could not be permitted as proposed and gave the Pebble Partnership 90 days to provide a compensatory mitigation plan. Before the company would submit its mitigation plan, undercover recordings would lead to the resignation of the company’s CEO, both Alaska senators would state their clear opposition to the project and then-candidate Joe Biden pledged that his administration would block the project.

Despite the string of public relations setbacks, the company maintains that it will be able to move forward with the project, but with a transition in the executive branch expected to bring tighter environmental regulation, the company faces several potential threats during the home stretch of its federal permitting process.

Former EPA administrator expects less executive intervention from Biden’s EPA

Rollbacks of environmental regulation in the name of economic development were a hallmark of the Trump Administration. For the Pebble Project, the primary example of that action was the Environmental Protection Agency’s withdrawal of its 2014 Proposed Determination, which had preemptively vetoed the project.

The Clean Water Act allows the EPA to veto a permit that the Army Corps may issue if the project would have “unacceptable adverse impacts” to certain resources, such as the Bristol Bay fishery. The law allows the EPA to exercise its veto authority before a permit for a project has been issued, while the permit is being evaluated or after a permit is issued.

The EPA during former President Barack Obama’s administration conducted an analysis of impacts of mining the Pebble deposit based on hypothetical scenarios and data Northern Dynasty Minerals provided in the 2014 Bristol Bay Watershed Assessment. The agency then executed its veto authority to block the project before the company applied for a permit. Then five years later under President Donald Trump, the EPA reversed that decision.

Though President-elect Biden vowed his administration would block the project, the president is not typically directly involved with such specific agency decisions.

“I think it depends on the administration," said Dennis McLerran, EPA Administrator for Region 10 under Obama. "Certainly during the Trump administration, there was a more direct engagement by the president. He met with the Alaska governor, Governor Dunleavy on his way to Korea apparently, and that resulted in some directives back down to EPA. But typically, and certainly, this was the process during the Obama administration, it really is a whole process.”

McLerran says that if the Army Corps grants a permit for the project, people in Alaska would be able to petition the EPA under a new administration to reexamine the issues.

However, Pebble Partnership spokesperson Mike Heatwole says that the Army Corps' environmental review has shown that the mine can be built responsibly.

“The Obama era EPA’s actions against the project came when there was not a mine plan in the permitting process, and now we have a plan that has gone through near completion to the federal environmental review process, where again, the EIS has stated that the project can successfully coexist with the fishery in Bristol Bay,” Heatwole said. “In terms of next steps if there is that type of challenge it would have to stand on a concrete record other than speculation.”

Biden campaigned promising more active steps to address climate change, and Heatwole says developing the Pebble deposit helps the country meet that need.

“As a nation, especially as we look to our president-elect and his stated goals of changing U.S. climate policy to a lower carbon future, that’s going to require a significant increase in domestic mining, especially copper, and there aren’t exactly a lot of sources of copper out there that can fill that demand. And we certainly think that a project like ours that can coexist responsibly with the environment can help the nation meet those goals, and that would be a key message that we would take to the incoming administration,” Heatwole said.

Mine opponents have long raised concerns that the 20-year plan the Pebble Partnership submitted a permit for was just the tip of the iceberg and that the company intended to build a larger, longer operating mine. That intention was confirmed in September when secretly recorded conversations with then Pebble Partnership CEO Tom Collier and Ron Thiessen, CEO of Pebble’s parent company Northern Dynasty Minerals, showed the executives detailing their intent and plans to further develop the deposit.

McLerran says that the 2014 Watershed Assessment produced on his watch is still valid and that the company’s long term plans could be taken into consideration. The watershed assessment was based on a document from Nothern Dynasty called an order report, which outlined scenarios for how the Pebble deposit could be mined.

“The watershed assessment really did take a look at the various mining scenarios and what the impacts could be,” McLerran said. “And if that intention is to fully develop the entire deposit, then I think the science is still valid, the concerns are still valid and certainly people have a right to petition the EPA to take another look at the current plans of Pebble and perhaps what’s been revealed in terms of their intentions longer term. The scope of the environmental impact statement done by the Corps was limited to a specific small mine proposal by Pebble, and we now know their intentions are much more than that.”

Senators stand against Pebble Mine

The late August letter from the Army Corps requesting a compensatory mitigation plan was interpreted by many, including Alaska’s senators, to mean that the Army Corps would not permit the mine.

In the race for senate, independent candidate Al Gross used the Pebble Tapes to amplify his attacks on Sen. Dan Sullivan for his position on the project. As a result, Sullivan tweeted his outright opposition to the project and during Senate Fisheries Debate the senator inaccurately declared that the permitting process was over.

Sen. Lisa Murkowski also said that she opposed the project and believed it could not be permitted because it was unlikely that the company could provide a compensatory mitigation plan sufficient enough to meet environmental standards given the damage the project would create.

Last week, Murkowski, who is the Chairman of the Senate Appropriations Interior and Environment Subcommittee, drew flak from mine opponents after providing funds for the Army Corps in a 2021 appropriations bill. In the explanatory text accompanying the bill, the text reads, “If the Pebble Limited Partnership is unable to provide a full and functional compensatory mitigation plan that meets all requirements within the Corps' requested 90-day timeframe, the Committee encourages the agencies to proceed to a decision denying the permit for the project.”

Critics interpreted this as Murkowski being soft on the project by doing nothing more than telling the agencies to do their jobs. Some called on the senator to not allocate any funds to the Corps for completing the permit review process.

Murkowski said last Thursday that she and her staff struggled with the wording in the bill, but that she decided the best path forward was ensuring the Army Corps can finish its evaluation process given the belief that the Army Corps' final decision would be to deny a permit.

Pebble had not announced that it had submitted its compensatory mitigation plan on Nov. 4. As of Tuesday afternoon, the plan has not been made publicly available by either Pebble or the Army Corps.

“The message that I wanted to send very clearly in my appropriations language was you submit a compensatory mitigation plan that meets these requirements, which almost everyone will tell you is not possible, but you do it within this deadline, and after that it’s not an open-ended thing,” Murkowski said. “What I want to be able to do is say Corps, do your job, we’ve said it can’t be permitted, there was no compensatory mitigation plan that was submitted, or if there was within that time period, it didn’t meet that high threshold, deny that permit. Because once that permit is denied, that ends it.”

Murkowski says she prefers the project to be stopped by the Army Corps denying to issue a permit rather than an EPA veto because of the finality of the permit rejection and the potential negative impacts on other resource development projects should the EPA issue a veto after a permit is already granted. However, if the Army Corps were to grant Pebble a permit, Murkowski says an EPA veto would make sense as one way to end the project.

Also in the appropriations bill, Murkowski allocated funds for appraising lands such as those in the Bristol Bay ecosystem for a potential land exchange.

“If we’re going to move forward with an exchange or a conveyance, the first step is knowing what the value is because you have to be able to do like-kind exchanges,” Murkowski said. “So I’m not only ending the process and doing it now, I’m also beginning that next step which permanently takes this watershed area, this very environmentally sensitive ecosystem, taking it off the table through an exchange so that the people in the region don’t have to deal with yet another generation of folks who are worried about what may or may not happen there.”

The compensatory mitigation plan is the last major outstanding document the Army Corps has requested from Pebble before issuing a record of decision.

A spokesperson for the Army Corps told Alaska’s News Source that the agency is reviewing the document now, and if the Army Corps determines it to be compliant with applicable regulations, then the Army Corps will post it to the PebbleProjectEIS website. The spokesperson did not have a timeline for how long that may take.

The State of Alaska must also issue either a certification or waiver of certification under Sector 401 of the Clean Water Act before the Army Corps can issue a Record of Decision.

A spokesperson for the Alaska Department of Environmental Conservation said, “DEC continues to review the comments received during the public notice period and is deliberating on the 401 Certificate of Reasonable Assurance process. DEC has not yet received a copy of the Compensatory Mitigation Plan and are therefore unable to comment about the contents.”

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