TORONTO (miningweekly.com) – The US federal court has ruled that the lawsuit in which Alaska-focused explorer Northern Dynasty Minerals alleges that the US Environmental Protection Agency (EPA) violated the Federal Advisory Committee Act (FACA) in advancing the EPA's Bristol Bay Watershed Assessment (BBWA) study and the subsequent pre-emptive veto process under Section 404(c) of the Clean Water Act (CWA), will move forward.

Judge Russel Holland on Thursday rejected an EPA motion to dismiss the Pebble Partnership's FACA case.

Northern Dynasty’s subsidiary, the Pebble Limited Partnership (PLP), last year filed the legal action arguing that without a permit application outlining plans to develop the Pebble polymetallic deposit in hand, the EPA's CWA Section 404 (c) regulatory process exceeded the federal agency's authority and violated federal laws.

The PLP's complaint explained that, while the EPA had the authority under the CWA to veto Section 404 ‘dredge’ or ‘fill’ permits issued by the US Army Corps of Engineers, if it determined that the permitted activity posed an unacceptable risk of adverse effects to aquatic resources, it had to do so based on an actual mine permit application specifying both a specific disposal site and specific fill material.

Judge Holland granted the EPA's motion to dismiss claims that the federal agency ‘established’ two of three advisory committees, but allowed the case to proceed regarding claims that the EPA ‘utilised’ these committees.

In terms of claims that the EPA both established and used a third advisory committee, Judge Holland denied the EPA's arguments to dismiss.

This left in place a preliminary injunction granted in November that forbade the federal agency from advancing the seldom-used action under CWA Section 404(c) affecting the Pebble project until the FACA case had run its course.

CLOSE SCRUTINY
Northern Dynasty said the PLP would now seek discovery – to depose federal employees and external third-parties, and otherwise develop additional evidence regarding its allegations that EPA allowed antimine activists inappropriate access and influence with the BBWA and subsequent Section 404(c) process.

"Today's ruling will help ensure that the truth about EPA's actions at Pebble come to light. We've already made a compelling case that the BBWA, which seeks to assess the environmental effects of a hypothetical mine of the EPA's creation, provides an insufficient scientific basis for the EPA decision-making.

“We believe the discovery phase and final resolution of the FACA case will expose that the EPA and its allies in the environmental community worked together with a predetermined objective before the BBWA was complete to deny the Pebble Project a full, fair and impartial permitting review," Northern Dynasty president and CEO Ron Thiessen said in a statement.

He noted that the Pebble Partnership's FACA lawsuit is one of several initiatives under way to check the EPA's unprecedented pre-emptive veto action at Pebble. Federal Court Judge Holland is also adjudicating a Pebble lawsuit alleging the EPA was illegally withholding documents in contravention of the Freedom of Information Act.

In addition, the independent office of the EPA Inspector General was undertaking a comprehensive review of the EPA actions regarding Pebble. A parallel investigation, commissioned by the PLP, was also under way and led by former Senator and Secretary of Defense William Cohen.

"Through one or several of these actions, we remain confident that the EPA's pre-emptive veto will ultimately be stopped and the Pebble project will be afforded a comprehensive and objective permitting review under the CWA and National Environmental Policy Act, including the preparation of an environmental-impact statement," Thiessen advised.

The Stop Pebble initiative argued that the proposed Pebble mine would be gouged out of an "American paradise" that was filled with salmon, bears, moose, caribou, wolves and whales and that had sustained local livelihoods for thousands of years.

More than 67 varieties of state and federal permits would be required before construction could begin and more than a dozen state and federal entities would oversee the process.

Acquired by Northern Dynasty in 2001, Pebble was, however, a project that could help to close the economic void that was being left by depleting Alaskan oil. The permitting uncertainty, environmental challenges and the low-price environment had, however, seen major partners walk away from developing what was one of the world’s top undeveloped deposits.

The project’s key assets included the near-surface 4.1-billion-tonne openpit-style Pebble West deposit and the deeper and higher-grade 3.4-billion-tonne Pebble East deposit, which was amenable to underground bulk mining methods. The Pebble resources ranked among the world’s most important accumulations of copper, gold and molybdenum.