North of 60 Mining News - The mining newspaper for Alaska and Canada's North

After two years of legal wrangling, Pebble Limited Partnership and the U.S. Environmental Protection Agency have traded the courtroom floor for a negotiating table to resolve differences that would likely influence the viability of developing a mine at the world-class Pebble copper deposit in Southwest Alaska.

In 2014, the Pebble Partnership filed a suit action in federal district court in Alaska, alleging that EPA violated the Federal Advisory Committee Act by working inappropriately close to anti-Pebble groups as it put together a case for pre-emptive restrictions on yet to be applied for permits for the development of Pebble.

Northern Dynasty Minerals Ltd., currently the sole owner of the Pebble Partnership, now hopes a middle ground can be found outside of the courtroom that lifts EPA’s proposed limitations and allows a mine plan to be vetted under the staunch permitting regulations already in place.

To find out if such a workable agreement can be found, Pebble Partnership and EPA notified the court on Oct. 27 of their intention to enter into mediation to resolve the FACA case.

Behind the scenes

In its suit filed in September 2014, the Pebble Partnership alleged that EPA worked behind the scenes with lawyers, scientists, non-governmental agencies and other anti-Pebble activists to develop a strategy to use Section 404 (c) of the U.S. Clean Water Act to prevent Pebble from entering the permitting process.

“In this case, EPA wanted to kill the Pebble Mine before it ever got off the ground,” the Pebble Partnership summarized in its complaint. “It thus set out to develop a scheme that would prohibit mining activities before any application had even been filed, rather than to follow normal permitting procedures that would have involved open, objective, and public review by all interested parties. Instrumental to this scheme was EPA’s clandestine use of the de facto advisory committees – made up of individuals and groups who have been vehemently opposed to any mining of the Pebble deposit – to help the agency plan and then implement unprecedented steps designed to guarantee that no mining of the Pebble Deposit would ever take place.”

Just two months after Pebble filed its complaint, Judge H. Russel Holland, who is presiding over the case, found Pebble’s allegations credible enough to issue a preliminary injunction ordering EPA to halt efforts to finalize the implementation of its plans to pre-emptively restrict Pebble permits.

Tainted process

Over the ensuing two years, EPA has maintained the position that it got involved with Pebble at the behest of Native Alaska groups from the Bristol Bay region urging the regulator to take pre-emptive action to prevent Pebble from obtaining permits and its dealings with anti-mine groups were out in the open and part of valid outreach as it determined how to proceed.

Documents obtained by Pebble Partnership through Freedom of Information Act requests, however, provide compelling evidence that Phillip North, an Alaska-based EPA biologist, and senior agency officials were discussing the pros and cons of using presumed veto power under an untested EPA interpretation of the Clean Water Act to prevent the Pebble Partnership from applying for permits to develop its world-class deposit as early as 2008, which pre-dates the 2010 request by Alaska Native groups that EPA has claimed as its impetus to take such an action.

The emails and other documents obtained by Pebble Partnership also provide evidence that North, who has since left EPA and the United States, was a key liaison between anti-Pebble activists and upper EPA officials in Washington D.C. The former EPA biologist also helped recruit the team utilized to build the Bristol Bay Assessment, according to evidence provided in the documents.

EPA used the Bristol Bay study to support unprecedented proactive restrictions that would, if allowed to be fully implemented, detrimentally limit the footprint of any mine allowed to be developed at Pebble.

The Pebble Partnership asserts that the behind-the-scenes collaboration between EPA and the anti-mine groups to devise and execute this plan violates advisory committee law and taints the entire process on which the environmental agency is basing its Clean Water Act determination with regards to Pebble.

“From the tens of thousands of pages of communication, memos and reports obtained under discovery and the Freedom of Information Act, and from the deposition of key government employees, it’s now clear that EPA’s frequent, intensive and ongoing engagement with ENGOs (environmental non-government organizations) and anti-mining activists in planning and executing its BBWA (Bristol Bay Watershed Assessment) study and CWA 404(c) strategy occurred in violation of federal laws intended to provide for open, honest and transparent decision-making,” Northern Dynasty President and CEO Ron Thiessen said.

Finding middle ground

With the discovery phase of the trial scheduled to wrap up before the end of the year and a decision expected early in 2017, it seems that EPA and Pebble Partnership are now looking to find common ground outside of the courtroom.

The joint notice filed in federal court indicates the willingness of both parties to work toward a negotiated resolution to the current impasse.

"Northern Dynasty and EPA share a strong conviction that any mine developed at Pebble must meet the highest environmental standards, and protect the fisheries resources of Southwest Alaska, or it should not be permitted," said Thiessen. "We are optimistic that a resolution can now be found through mediation that will allow Pebble to propose a development plan for the project, and advance into the federal and state permitting process."

According to court documents, the two sides have already found some common ground outside the courtroom.

“While the parties have engaged in several productive discussions, certain key disagreements remain,” according to documents filed to notify the court of planned mediation.

Pebble Partnership and EPA are looking for a mediator to help find middle ground in these contentious areas.

In the meantime, the FACA case will remain open and the Pebble Partnership will continue to collect evidence as part of the discovery phase of the proceedings.

Author Bio

Shane Lasley, Publisher

Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.

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