EPA in ‘regulatory overreach’ with renewed Pebble project veto, says proponent

The U.S. Environmental Protection Agency’s (EPA) Thursday veto of the contentious Pebble copper-gold project in Alaska has again irked the proponent Northern Dynasty Minerals (TSX: NDM; NYSE American: NAK).

In a statement on Friday, Northern Dynasty president and CEO Ronald Thiessen accused the EPA of “regulatory overreach” in once more recommending a pre-emptive strike. When the same tactic was deployed in 2014, it drew a rebuke from a federal judge last year that sent the issue back to the EPA for reconsideration.

The company and its U.S.-based subsidiary Pebble Limited Partnership’s (PLP) proposed Pebble mine in southern Alaska has been controversial for years. Under former president Barack Obama, the EPA proposed restrictions that would rule out the project even before the company had applied for any permits or filed supporting scientific data.

But the agency later withdrew the proposed controls after a legal challenge.

“The EPA tried this in 2014 and was forced to settle and allow Pebble to proceed through the normal, well-established permitting process in the U.S.,” said Thiessen.

“This action remains pre-emptive as PLP is currently appealing a negative Record of Decision. The EPA’s decision to proceed with a second bite at the same apple relies on supposition rather than demonstrating that impacts will occur,” he said.

On Thursday, the White House proposed a ban on mine waste disposal in Alaska’s Bristol Bay, where the Pebble project is located. That ban would place further curbs on the contentious project. The EPA seeks to use a Clean Water Act provision to prohibit certain waters in the Bristol Bay region as waste disposal sites, a move which may be the final nail in the coffin for the mine. Both the Trump and Obama administrations blocked Pebble’s progression.

BMO Capital Markets Global Commodities Research analyst Colin Hamilton said in a note to clients the EPA’s actions further highlight the contrast between recent much-publicized investment in the U.S.’s downstream energy transition industry and the reality of looming raw material shortages.

EPA Region 10 Regional Administrator Casey Sixkiller on Thursday issued a determination to prohibit and restrict the use of certain waters in the Bristol Bay watershed as disposal sites for discharges of dredged or fill material associated with developing Pebble.

That determination, based on Clean Water Act Section 404(c) and sent to EPA’s Office of Water Assistant Administrator Radhika Fox, cited scientific and technical records going back almost 20 years.
Sixkiller determined that the discharges would likely result in “unacceptable adverse effects on salmon fishery areas.” Those include the South Fork and North Fork Koktuli Rivers and the Upper Talarik Creek watersheds.

“EPA Region 10’s action represents the third step in EPA’s four-step Clean Water Act Section 404(c) review process,” Sixkiller said in a statement.

“If affirmed by EPA’s Office of Water, during the fourth and final step, this action would help protect salmon fishery areas that support world-class commercial and recreational fisheries, and that have sustained Alaska Native communities for thousands of years, supporting a subsistence-based way of life for one of the last intact wild salmon-based cultures in the world.”

‘Indefensible’

Northern Dynasty and the PLP criticized the EPA’s determination as based on “indefensible” legal and non-scientific assumptions.

“The process and the decision have been political from the start, as evidenced by White House Climate Change Advisor Gina McCarthy’s stating in November of 2021 that the administration would shut down the project once and for all while praising the action with a ‘hallelujah,’” said PLP CEO John Shively in a statement.

According to the executive, the disconnect between building the green energy economy and society’s aversion to mining has reached a tipping point.

“I suspect the Chinese are laughing at the U.S. for making it so easy for China to become the ‘OPEC’ of producing minerals critical for the world’s economy,” he said.

“We have witnessed the situation unfolding in Europe, which is the direct result of their being dependent on an unfriendly country for essential resources, and yet, for no good reason, the U.S. is heading down a similar path for these critical minerals,” said Shively.

Other agencies have come out in favour of Pebble. The EPA’s proposed course of action contradicts the findings in the U.S. Army Corps of Engineers’ Final Environmental Impact Statement for the Pebble project. It concluded that Pebble could be developed without harm to the Bristol Bay fishery.

In September, a letter to the EPA that was signed by 14 states, including Alaska, expressed their deep concern with the precedence this EPA ‘wildcard’ would set.

Next Steps

EPA’s assistant administrator for water will review all input and give the company a chance to make further representations about their intent to take corrective action to prevent unacceptable adverse effects before issuing a final determination.

Building the Pebble gold mine in southwest Alaska would include the construction of a 270-megawatt power plant and 265-km natural-gas pipeline, as well as a 132-km-long road and large ponds for the tailings. It would also require dredging a port at Iliamna Bay.

When the mine moves into production, it will be the largest in North America. The current resource estimate includes 6.5 billion tonnes in the measured and indicated categories containing 57 billion lb. copper, 71 million oz. gold, 3.4 billion lb. molybdenum, 345 million oz. silver and 2.6 million kg. rhenium.

The deposit holds 4.5 billion tonnes in the inferred category, containing 25 billion lb. copper, 36 million oz. gold, 2.2 billion lb. molybdenum, 170 million oz. silver and 1.6 million kg. rhenium. Palladium also occurs in the deposit.

In October, a U.S. Transportation and Infrastructure House Committee report recommended the attorney general to investigate alleged false statements by Northern Dynasty to Congress.

Democratic Reps. Peter DeFazio of Oregon and Grace Napolitano of California announced they sent evidence of false statements to the U.S. attorney general’s office based on the report’s findings.