Native Village Of Kivalina IRA Council v. U.S. EPA

Aug 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-70776. On Petition for Review of an Order of the U.S. EPA Environmental Appeals Board. Petitioners Native Village of Kivalina IRA Council, Native Village of Point Hope IRA Council, Alaska Community Action on Toxics, and Northern Alaska Environmental Center (collectively, Kivalina) appeal the EPA Environmental Appeals Board's (the EAB) order denying review of their challenges to a permit authorizing Intervenor Teck Alaska, Inc. (Teck) to discharge wastewater caused by the operation of the Red Dog Mine.

 

    The EAB concluded that Kivalina had not satisfied the procedural requirements to obtain review under 40 C.F.R. § 124.19(a) because it did not demonstrate why the EPA responses to comments were clearly erroneous or otherwise warranted review. The Appeals court ruled, "We agree that Kivalina did not meet the requirements of § 124.19, and we deny Kivalina's petition for review."

   

    The Red Dog Mine is an open pit zinc and lead mine in northwestern Alaska, operated by Teck in partnership with Intervenor NANA Regional Corporation. The mine's operations produce wastewater contaminated with metals through contact with mined materials and surfaces. After being treated, the wastewater eventually enters the Wulik River, which flows into the Chukchi Sea near the Native Village of Kivalina. On November 18, 2010, after some of Kivalina's challenges were rendered moot, EAB handed down an order denying review of the remaining portion of Kivalina's petition.

 

    In its order, the EAB observed that section II.C.3 of Kivalina's petition consisted of only slightly more than two pages, and that Kivalina had not set forth sufficient detail about why the EPA's responses to public comments were "irrelevant, erroneous, insufficient, or an abuse of discretion," as required by § 124.19(a). On December 8, 2010, the EPA issued a final permit decision. Kivalina filed a timely petition for review on March 18, 2011.

 

    Specifically, Kivalina claims its petition sufficiently challenged three monitoring conditions in the 2010 Permit: (1) the reduction in monitoring requirements, (2) the removal of biomonitoring provisions, and (3) the EPA's failure to require third-party monitoring. The Appeals Court addresses each challenge under the requirements of § 124.19(a) and determines each to be insufficient and

rules that EAB did not err in denying their review.

 

    Access the complete opinion (click here). [#Water, #CA9]

 

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