Native Village of Kivalina Ira Council v. United States Environmental Protection Agency
687 F.3d 1216
9th Cir.2012Background
- Red Dog Mine in northwestern Alaska discharges metal-contaminated wastewater into the Wulik River as part of Teck Alaska Inc.’s operations.
- EPA proposed and drafted a reissued NPDES permit in 2008; Alaska certified CWA §401 compliance.
- EPA issued its final 2010 NPDES permit after a 2009 supplemental EIS and responses to comments.
- Kivalina filed an administrative petition challenging remaining sections of the 2010 Permit in February 2010; EPA later withdrew some objections as moot.
- EAB denied review of the remaining petition under § 124.19(a) for lack of sufficiently detailed challenge to EPA’s comment responses; Kivalina petition was ultimately denied on review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kivalina satisfied § 124.19(a) for review. | Kivalina argues the petition challenged monitoring provisions and EPA responses. | EPA argues petition failed to show EPA responses were clearly erroneous or warranted review. | No; petition failed to meet the § 124.19(a) standard. |
| Adequacy of challenge to reduction in monitoring requirements. | Kivalina contested reduced monitoring, arguing EPA overstepped authority. | EPA explained responses showing monitoring remained sufficient; Kivalina did not engage. | EAB’s denial of review as to monitoring reduction affirmed. |
| Adequacy of challenge to removal of biomonitoring provisions. | Kivalina argued biomonitoring removal undermined protection of aquatic life. | EPA explained biomonitoring remained enforceable and assigned to state certifications. | EAB’s denial of review as to biomonitoring provisions affirmed. |
| Adequacy of challenge to third-party monitoring requirement. | Kivalina asserted EPA could require independent monitoring. | EPA stated permit self-monitoring plus inspections suffice; no third-party mandate. | EAB correctly denied review; petition insufficient. |
Key Cases Cited
- Anaheim Mem'l Hosp. v. Shalala, 130 F.3d 845 (9th Cir. 1997) (standard of review under APA for final agency action)
- Citizens for Clean Air v. U.S. EPA, 959 F.2d 839 (9th Cir. 1992) (burden on petitioner to show review warranted)
- City of Pittsfield v. U.S. EPA, 614 F.3d 7 (1st Cir. 2010) (two-part § 124.19(a) demonstration; engage EPA responses)
- Mich. Dep't of Envtl. Quality v. U.S. EPA, 318 F.3d 705 (6th Cir. 2003) (requirement to engage EPA’s responses; deference to agency findings)