ANCHORAGE - Pebble Limited Partnership is asking for legal fees to wrap up one lawsuit against the Environmental Protection Agency and hopes to settle another out of court.
The company pursuing the embattled massive copper and gold mining project in the Bristol Bay area filed a motion in U.S. District Court of Alaska Nov. 22 to recover $227,056 in attorneys’ fees stemming from a suit filed in October 2014 in which Pebble claimed the EPA withheld documents after a Freedom of Information Act request.
While the suit was ongoing the EPA released more than 320 documents to Pebble related to its FOIA filing, and additional documents were shared during a June 2016 private review of the materials ordered by Judge H. Russel Holland.
Pebble filed the FOIA request in January 2014 — shortly after the EPA released its Bristol Bay Watershed Assessment that determined a large mine would cause irreparable harm to the region’s world-class salmon fisheries — to unearth the process the agency used in reaching the conclusions in the Bristol Bay Assessment.
The mining company has claims the assessment is based on hypothetical scenarios and it was developed strictly as a means to substantiate the EPA’s predetermined effort to prohibit the Pebble project.
Pebble ultimately contends the EPA should cover its attorneys fees “because it substantially prevailed in obtaining scores of improperly withheld documents that it would not have obtained” if not for the suit.
The legal action caused the agency to produce “scores of previously “undiscovered’ documents” and Pebble successfully challenged about 75 percent of the documents the EPA had withheld under privilege claims, the motion states.
In a related lawsuit also before Holland, Pebble and the EPA have agreed to go before a mediator and negotiate issues prior to a trial.
Here, Pebble sued the EPA in September 2014 on the belief the agency was not objective in compiling the Bristol Bay Assessment and violated federal laws by improperly collaborating with mine opponents in the crafting of the Bristol Bay assessment.
Pebble spokesman Mike Heatwole said the group is hopeful the whole suit can be resolved outside of court, but declined to offer any further detail on the issues being negotiated.
A Justice Department spokeswoman said the attorneys representing the EPA could not comment on the ongoing litigation.
The motion to enter mediation was filed Oct. 27, but Heatwole said he did not think the sides had convened yet.
After a preliminary review, the Alaska Department of Natural Resources is downplaying the conclusions drawn in a report published Nov. 3 that is highly critical of Pebble’s efforts to clean up after its extensive exploration program.
Conducted by the Center for Science in Public Participation, or CSP2, and titled, “Investigation of Reclaimed Drill Sites, Pebble Prospect,” the report concluded that more than 40 percent of the 107 exploration drill sites the CSP2 team inspected had “environmental issues” including dead vegetation, water leaking from the boreholes and open drill casings.
The report proves a need, at a minimum, for increased monitoring of Pebble’s exploration sites, according to a release by United Tribes of Bristol Bay, the group that commissioned the work and has fought hard against Pebble.
“DNR needs to stop rubberstamping Pebble’s (miscellaneous land use) permits and instead require Pebble to clean up the mess it left behind before taxpayers are stuck with the cleanup bill,” UTBB Executive Director Alannah Hurley said in a statement when the report was released.
Pebble has applied with DNR for a two-year MLUP permit to allow it to continue reclamation and maintenance work through 2018 on the more than 1,300 holes it drilled during exploration and its equipment that remains at the claims.
Pebble’s activity occurred on state land.
Pebble Partnership was not required to put up a reclamation bond to back its work because it did not cumulatively impact more than five acres of land. The group chose to conduct operations via helicopter, thus reducing its footprint, and all of its temporary facilities were placed on “tundra mats,” which limit impacts to vegetation that will grow back once the equipment is removed, according to DNR officials monitoring the project.
A report following a DNR inspection of Pebble’s work this summer concluded that Pebble’s “operation is in good condition and is consistent with industry standards.”
DNR spokeswoman Elizabeth Bluemink said agency staff requested a full copy of the report from CSP2 after the summary was released in early November and found the Montana-based research group “may have misunderstood or misstated” some requirements of the state’s reclamation statutes and land use permits.
“For example, dead vegetation, as observed by both DNR and CSP2 in the field, does not constitute a violation of permit conditions,” Bluemink wrote in an email.
Further, the exposed drill casings highlighted in the report are “allowed, and expected” in exploration projects, according to Bluemink.
She noted that DNR and staff from other state agencies have performed 56 field inspections of Pebble since 2003, the most for any mineral exploration project in the state.
At the same time, the state welcomes public input and uses pertinent information provided from any source in regulating state lands.
“A number of the observations reported by CSP2 could be helpful to DNR as it continues to regulate (Pebble’s) activities,” Bluemink wrote. “DNR staff will be able to take the CSP2 observations into account when we visit those sites in the future.”
• Elwood Brehmer is a reporter for the Alaska Journal of Commerce and can be reached at firstname.lastname@example.org.