Native Village of Kivalina IRA, et al v. USEPA, et al
FILED OPINION (ALFRED T. GOODWIN, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.) DENIED. Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE VILLAGE OF KIVALINA IRA
COUNCIL; NATIVE VILLAGE OF POINT
HOPE IRA COUNCIL; ALASKA
COMMUNITY ACTION ON TOXICS;
NORTHERN ALASKA ENVIRONMENTAL
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; LISA JACKSON,
in her official capacity as
Administrator of the U.S.
Environmental Protection Agency;
DENNIS MCCLARREN, in his official
capacity as Regional Administrator
for Region X of the U.S.
Environmental Protection Agency,
NANA REGIONAL CORPORATION;
TECK ALASKA INCORPORATED,
On Petition for Review of an Order of the
United States Environmental Protection Agency
Environmental Appeals Board
Argued and Submitted
June 26, 2012—Anchorage, Alaska
Filed August 9, 2012
Page: 1 of 13
KIVALINA v. EPA
Before: Alfred T. Goodwin, William A. Fletcher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
Page: 2 of 13
KIVALINA v. EPA
Page: 3 of 13
Victoria Clark, Brook Brisson, Trustees for Alaska, Anchorage, Alaska, for petitioners Native Village of Point Hope IRA
Page: 4 of 13
KIVALINA v. EPA
Council, Alaska Community Action on Toxics, and Northern
Alaska Environmental Center.
Brent Newell (argued), Sofia Parino, Center on Race, Poverty
& the Environment, San Francisco, California, for petitioner
Native Village of Kivalina IRA Council.
Ignacia S. Moreno, Paul Cirino (argued), Kimberly A. Owens,
Pooja S. Parikh, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.,
for the respondents.
Jeffrey W. Leppo (argued), Jason T. Morgan, Stoel Rives
LLP, Seattle, Washington, for intervenor NANA Regional
Eric B. Fjelstad, James N. Leik (argued), Perkins Coie LLP,
Anchorage, Alaska, for intervenor Teck Alaska Incorporated.
M. SMITH, Circuit Judge:
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 United States Environmental Protection Agency 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 United
States Environmental Protection Agency’s (the EPA)
responses to comments were clearly erroneous or otherwise
KIVALINA v. EPA
Page: 5 of 13
warranted review. We agree that Kivalina did not meet the
requirements of § 124.19, and we deny Kivalina’s petition for
FACTUAL AND PROCEDURAL BACKGROUND
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
On December 5, 2008, the EPA proposed to re-issue a
National Pollutant Discharge Elimination System (NPDES)
permit to the Red Dog Mine and issued a draft permit for public comment. Contemporaneously, the Alaska Department of
Environmental Conservation certified that the proposed activity and resulting discharges would comply with section 401 of
the Clean Water Act (CWA) and Alaska Water Quality Standards.
In October 2009, the EPA completed a Final Supplemental
Environmental Impact Statement and issued responses to public comments in December 2009. On January 8, 2010, the
EPA issued its record of decision and final NPDES permit
(the 2010 Permit.)
On February 15, 2010, Kivalina filed an administrative
petition for review with the EAB, challenging many conditions of the 2010 Permit. After Kivalina filed its petition, the
EPA withdrew those portions of the 2010 Permit to which
most of Kivalina’s objections were addressed. The EAB concluded that the EPA’s withdrawal of certain effluent limitations in the 2010 Permit rendered moot the challenges to those
limitations in sections II.C.1, II.C.2, and II.C.4 of Kivalina’s
Page: 6 of 13
KIVALINA v. EPA
petition, and dismissed those sections of the petition. As a
result, only section II.C.3 of Kivalina’s petition remained
pending before the EAB.
On November 18, 2010, the 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,
STANDARD OF REVIEW AND JURISDICTION
“Final agency action is reviewed under the Administrative
Procedure Act, 5 U.S.C. § 706(2), and can be set aside only
if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . [or] without observance
of procedure required by law.’ ” Anaheim Mem’l Hosp. v.
Shalala, 130 F.3d 845, 849 (9th Cir. 1997) (citation omitted).
Thus, we review the EAB’s procedural default ruling under
the deferential standard of 5 U.S.C. § 706(2). See id.; see also
City of Pittsfield v. U.S. EPA, 614 F.3d 7, 10 (1st Cir. 2010);
Mich. Dep’t of Envtl. Quality v. U.S. EPA, 318 F.3d 705, 707
(6th Cir. 2003).
We have jurisdiction
 “The [EAB]’s analysis of NPDES permits is guided by
the preamble to the permitting regulations, which states that
KIVALINA v. EPA
Page: 7 of 13
the Board’s power of review ‘should be only sparingly exercised.’ ” In re Chukchansi Gold Resort, NPDES Appeal Nos.
08-02, 08-03, 08-04, 08-05, 2009 WL 152741, at *5 (EAB
Jan. 14, 2009).
Under 40 C.F.R. § 124.19(a), a petition to the EAB for
review of any condition of a permit decision must satisfy the
The petition shall include a statement of the reasons
supporting that review, including a demonstration
that any issues being raised were raised during the
public comment period (including any public hearing) to the extent required by these regulations and
when appropriate, a showing that the condition in
question is based on:
(1) A finding of fact or conclusion of law which is
clearly erroneous, or
(2) An exercise of discretion or an important policy
consideration which the Environmental Appeals
Board should, in its discretion, review.
40 C.F.R. § 124.19(a). The petitioner bears the burden of
demonstrating that review is warranted. See Citizens for
Clean Air v. U.S. EPA, 959 F.2d 839, 845 (9th Cir. 1992); In
re Cherry Berry B1-25 SWD, UIC Appeal No. 09-02, 2010
WL 3258139, at *1 n.2 (EAB Aug. 13, 2010); In re New
England Plating Co., 9 E.A.D. 726, 2001 WL 328213, at *3
 “Section 124.19(a) is admittedly not the most pellucid
of regulations . . . .” City of Pittsfield, 614 F.3d at 12. However, “the EAB has consistently interpreted the regulation as
requiring that the petitioner set forth an argument in its petition as to why the permit condition it is challenging is either
based on a clearly erroneous finding of fact or conclusion of
Page: 8 of 13
KIVALINA v. EPA
law or raises an important policy consideration.” Id. at 11; see
In re Chukchansi Gold Resort, 2009 WL 152741, at *5. “The
[EAB] has interpreted this requirement as mandating two
things: ‘(1) clear identification of the conditions in the permit
at issue, and (2) argument that the conditions warrant
review.’ ” In re Chukchansi Gold Resort, 2009 WL 152741,
at *7 (citation omitted). “Additionally, the [EAB] has repeatedly stated that the petitioner must explain why the challenged conditions merit review.” City of Pittsfield, 614 F.3d
 Applying these principles, the EAB denies review
where petitioners merely reiterate or attach comments previously submitted regarding a draft permit and do not engage
the EPA’s responses to those comments. See id.; see also In
re Cherry Berry B1-25 SWD, 2010 WL 3258139 (“This Board
has frequently stated that ‘[i]t is not sufficient simply to repeat
objections made during the comment period; instead, a petitioner must demonstrate why the permit issuer’s response to
those objections is clearly erroneous or otherwise warrants
review.’ ”) (citation omitted); In re Chukchansi Gold Resort,
2009 WL 152741, at *5 (“Assuming the issues have been preserved, the petitioner must then explain with sufficient specificity why a permit issuer’s previous responses to those
objections [raised during the public comment period on the
draft permit] were clearly erroneous, an abuse of discretion,
or otherwise warrant Board review.”).
Kivalina does not challenge the EPA’s interpretation of
§ 124.19(a) but rather argues that its petition meets the
requirements of § 124.19(a) as the EPA interprets it. 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. We address in turn the sufficiency of each challenge under the requirements of § 124.19(a).
KIVALINA v. EPA
Page: 9 of 13
Reduction in Monitoring Requirements
The portion of Kivalina’s petition challenging the alleged
reduction in monitoring requirements consisted of the following four sentences:
EPA’s attempt to justify the reduction of monitoring
and refusal to monitor compounds associated with
mining activities is not supported by the plain language of the CWA, constitutes clear error and is an
abuse of discretion. Section 308(a)(A) of the Act
confers broad authority on EPA to require monitoring beyond the permit’s effluent limitations. EPA
absolutely has the authority to require monitoring of
the Red Dog Mine’s effluent and ambient conditions
in the aquatic environment upstream and downstream of the mine, regardless of whether it is necessary to monitor compliance with permit terms. The
fact that EPA has done so historically further demonstrates EPA’s abuse of discretion.
Nowhere in this paragraph does Kivalina mention the EPA’s
responses to public comments.
In its response to public comments, the EPA (1) addressed
a comment arguing that the EPA should require monitoring of
additional constituents; (2) said that the 2010 Permit included
all of the effluent and ambient monitoring necessary to determine compliance with permit limits; (3) noted that the Red
Dog Mine had to meet certain limitations that account for
toxic effects of parameters that were not necessarily limited
in the 2010 Permit, and that influent monitoring was not
required or necessary because such monitoring was irrelevant
to determining permit compliance and effects on receiving
waters; (4) stated that monitoring performed to date provided
a long-term record of the background conditions throughout
the watershed, and that ceasing monitoring in tributaries
would not affect water quality in the streams downstream of
Page: 10 of 13
KIVALINA v. EPA
the mine’s discharge; and (5) explained that it changed a monitoring location to the boundary of the mixing zone in the
main stem of Red Dog Creek.
 As the EAB found, the EPA’s responses provide a
rationale for the monitoring requirements. Kivalina never
addressed this rationale or argued that the EPA’s reasoning
was incorrect in any way. Even if Kivalina’s argument that
the EPA has authority to require monitoring beyond the permit’s effluent limitations is correct, that is beside the point.
The real question is whether the EPA properly exercised its
authority. The EPA explained in its response to comments
that requiring greater monitoring was unnecessary to ensure
compliance with the 2010 Permit’s conditions. Kivalina simply did not argue or explain why the EPA’s responses were
 We do not judge a petition based merely on its length
or discourage brevity. However, § 124.19(a) clearly requires
more than Kivalina provided. Its four unresponsive, conclusory sentences did not satisfy the requirements of § 124.19(a).
Because Kivalina did not engage the EPA’s responses to public comments, it did not meet its burden of showing that EAB
review of the alleged reduction in monitoring requirements
was warranted. See City of Pittsfield, 614 F.3d at 11; Mich.
Dep’t of Envtl. Quality, 318 F.3d at 708. Thus, we hold that
the EAB did not err in declining to review Kivalina’s challenge to the reduction in monitoring requirements.
Removal of Biomonitoring Provisions
Kivalina’s petition also challenged the alleged removal of
biomonitoring provisions, as follows:
EPA also has authority to ensure that the mine complies with water quality standards established under
Section 303, 42 U.S.C. § 1313. EPA itself concedes
that the biomonitoring is not actually being reduced,
KIVALINA v. EPA
Page: 11 of 13
just made unenforceable under the CWA by transferring the bulk of biomonitoring requirements to the
state solid waste permit.
In its response to public comments, the EPA addressed concerns that biomonitoring and bioassessment requirements
would be removed from the 2010 Permit. The EPA explained
that (1) certain bioassessment monitoring requirements were
initially required by the state in a 1998 certification, but were
not required by the state’s current certification and (2) the
bioassessment requirements in the 2010 Permit were consistent with the state’s certification, and were intended to assure
that the conditions of the 2010 Permit protect aquatic life. The
EPA indicated that it was appropriate to follow the state’s recommendations because the state initially included bioassessment requirements in the certification of the 1998 permit and
has had the primary responsibility for reviewing the bioassessment data collected to date. The EPA also observed that
bioassessment requirements that are included in the 2010 Permit remain enforceable under both the 2010 Permit and the
CWA and explained why it had allocated the ambient biomonitoring requirements to the state.
 The EAB correctly found that Kivalina did not sufficiently engage the EPA’s response to public comments concerning biomonitoring requirements. Kivalina never argued
that allocating biomonitoring to the state was inappropriate, or
that the state’s bioassessment requirements were inadequate.
Kivalina’s argument that the EPA has authority to ensure that
the mine complies with water quality standards is irrelevant.
The relevant issue is not whether the EPA has authority—the
EPA never denied that it did—but whether the EPA properly
exercised its authority in setting the 2010 Permit’s biomonitoring requirements. The EPA thoroughly explained the reasons behind the 2010 Permit’s biomonitoring requirements.
Kivalina never challenged those reasons. Because Kivalina
did not engage the EPA’s responses, the EAB did not err in
denying review of Kivalina’s challenge to the alleged removal
Page: 12 of 13
KIVALINA v. EPA
of biomonitoring provisions. See City of Pittsfield, 614 F.3d
at 11; Mich. Dep’t of Envtl. Quality, 318 F.3d at 708.
Failure to Require Third-Party Monitoring
Kivalina also attempted to require third-party monitoring,
Finally, while EPA may not compel a third-party to
conduct monitoring as EPA correctly observes, EPA
does have authority to mandate that the owner or
operator of a point source conduct monitoring “as he
may reasonably require.” EPA’s response to comments failed to consider its broad discretion in section 308(a)(A) of the Act, 42 U.S.C. § 1318(a)(A), to
require a permittee to conduct such monitoring.
Nothing in Section 308 prohibits EPA from requiring a permittee to retain and pay for an independent
third-party to monitor effluent or to undertake other
In its response to public comments, the EPA addressed
whether the final permit should require “some competent,
independent party” to conduct additional water quality monitoring, stream sediment sampling, flow measurement, and
toxicity testing. It stated that (1) the CWA requires that permits contain self-monitoring requirements; (2) that it supplements monitoring data through inspections, but that it had no
authority to require independent parties to monitor for compliance with a permit; (3) that the permittee is required to certify
the validity of its sampling results; and (4) that the EPA and
the state conduct periodic NPDES compliance inspections at
the site. The EPA also acknowledged Teck’s past violations
and the EPA’s enforcement actions.
 The EAB correctly found that Kivalina did not adequately address the EPA’s responses about the sufficiency of
self-monitoring coupled with periodic inspections. Kivalina
KIVALINA v. EPA
Page: 13 of 13
never addressed the EPA’s explanation that self-monitoring
and periodic inspections by federal and state authorities would
be sufficient to ensure permit compliance by Teck, despite the
EPA’s awareness of Teck’s checkered compliance history.
Because Kivalina did not do so, it did not explain how the
EPA’s conclusion that self-monitoring was appropriate was
wrong. Thus, the EAB properly declined to review Kivalina’s
challenge to the permit’s failure to require third-party monitoring. See City of Pittsfield, 614 F.3d at 11; Mich. Dep’t of
Envtl. Quality, 318 F.3d at 708; In re Cherry Berry B1-25
SWD, 2010 WL 3258139, at *1 n.2.
For the foregoing reasons, we deny Kivalina’s petition for
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?