Permitting

National Environmental Policy Act (NEPA)

Understanding What NEPA is

EIS and NEPA terminologies are often misunderstood. These are not avenues to make a decision about whether a project should be developed or not; they are, however, about the stipulations, or requirements that a developer must agree to which will minimize the environmental impacts brought on by the development. The agreement then allows the developer to receive the permits to legally develop a project.

Lead Federal Agencies: Laws and Roles

For large mining projects, EPA and other federal agencies, appoint points of contacts, often referred to as Project Managers to coordinate permitting activities within their agencies as well as other agencies and to participate in development of Environmental Impact Statements.

Specifically, EPA is responsible for issuing National Pollutant Discharge Elimination System (NPDES) permits as authorized in Section 402 of the Clean Water Act (CWA 402). These permits allow discharge of wastewater into Alaska waterbodies in compliance with federal regulations and state water quality standards.

For facilities where CWA New Source Performance Standards have been promulgated, such as some hardrock mining operations, EPA must comply with the National Environmental Policy Act, which requires preparation of an Environmental Impact Statement or an Environmental Assessment.

The lead federal agency for preparation of this document will be determined by the involved federal agencies based on the necessary major permitting actions and agency resources. Under Section 309 of the Clean Air Act, EPA is required to review all federal EIS's. Therefore, EPA may be a lead NEPA agency, cooperating agency, or reviewing agency.

EPA Region 10 has issued a handbook that describes the CWA permitting processes and NEPA environmental review requirements for metal mining operations in Region 10. EPA is the agency responsible for reviewing and approving or disapproving state water quality standards revisions and total maximum daily loads (TMDLs). In addition, EPA maintains the Toxics Release Inventory (TRI), which requires mining operators to disclose the amount of metals and other pollutants generated by mining activities such as disposal tailings and wasterock and wastewater discharges.

Section 404 of the Clean Water Act

The head agency responsible for issuing permits under Section 404 of the CWA for the discharge of dredge and fill materials into wetlands and waters of the United States is the Army Corps of Engineers (ACOE). EPA role is to review section 404 (wetland) permit applications and also has a responsibility to ensure 404 compliance.

EPA is also responsible for regulation of ocean disposal and Safe Drinking Water Act (SDWA) Underground Injection Control (UIC) programs in the state. EPA is responsible for administering the Resource Conservation & Recovery Act (RCRA) and Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) (CERCLA) programs in Alaska. In administering these laws, EPA performs site assessment, removal, and remedial work. EPA reviews site assessment plans prepared by other federal and state agencies, such as the Bureau of Land Management and the U.S. Forest Service and scores these sites under CERCLA to determine if the sites are worthy for consideration on the National Priority List (NPL) for Superfund designation.

Two other federal agencies also need to be mentioned. The consultation requirements for Endangered Species Act (ESA) apply to all federal agencies and to be complete The US Fish and Wildlife Service (US F&WS) and National Marine Fisheries Service (NMFS) should prepare a section on their responsibilities for any EIS document.

Mixing Zones

According the Alaska State Department of Environmental Conservation, "Mixing zones are areas within water bodies where treated wastewater does not have to meet (the) strictest water quality standards. To qualify for a mixing zone, a discharge must first be treated…and then pass a multiple-part test to ensure that there are no significant impacts to fish, other aquatic life, humans and other water uses."

A major concern by many residents who live in the Bristol Bay area is that water discharged from a mine will have significant impacts to fish, other aquatic life, humans and others, even if the discharge is treated as prescribed in a permit. This is the essential the concern with current mixing zone policies. Note that discharge is not allowed when salmon are spawning, however, it is allowed after eggs have developed in a stream or waterbody.

Key Mixing Zone references
Guidance on Mixing Zones in EPA:
www.epa.gov/waterscience/standards/handbook/

New Mixing Zone regulations, 18 AAC 70, Water Quality Standards Mixing Zone Regulation Changes, Adopted January 12, 2006. See:
www.dec.state.ak.us/water/wqsar/trireview/pdfs/Mixing_Zones_with_TitlePage1.pdf

DEC draft implementation guidance to 2005 proposed mixing zone regulations, wastewater discharge. Go to:
www.dec.state.ak.us/water/wqsar/pdfs/mxguidance100405.pdf

Current Mixing Zone Policy within Alaska Water Quality Standards, Alaska State Regulations: 18 AAC 70.240-270
www.dec.state.ak.us/regulations/pdfs/70mas.pdf

NEPA Review and Compliance: EPA's Regulatory Role

EPA will most likely be the lead federal agency on the proposed Pebble mine as water bodies will likely be impacted with this mining development. If so then a NPDES permit will be required in order to meet EIS/NEPA compliance. NDM plans to submit this application when it has financing in place for the Pebble mine and the baseline studies it believes are necessary have been completed. The current project manager for the Pebble Project at EPA is located in the Anchorage Operations Office, Dianne Soderlund, P: (907) 271-3425. This contact may change in the future, but the phone reference should remain the same.

Major Federal Laws Required Under NEPA

• Clean Water Acct (CWA)
• Clear Air Act (CAA)
• Safe Drinking Water Act (SDWA)
• Marine Protection, Research, and Sanctuaries Act (MPRSA)
• Coastal Zone Management Act (CZMA)
• Wild and Scenic Rivers Act (WSRA)
• Endangered Species Act (ESA)
• National Historic Preservation Act (NHRA)
• Marine Mammal Protection Act (MMPA)
• Magnuson-Stevens Fisheries Management Act
• Section 106 of the National Historic Preservation Act
• Fish & Wildlife Coordination Act
• Endangered Species Act - Section 7
• Resource Conservation & Recovery Act
• Federal Insecticide, Fungicide & Rodenticide Act
• Toxic Substances Control Act
• Asbestos Hazard Emergency Response Act (AHERA on Asbestos in schools)
• American Indian Religious Freedom Act