Native Vill. of Kivalina Ira Council v. U.S. Envtl. Prot. Agency

• Decision Date: 09 August 2012
• Docket Number: No. 11–70776.,11–70776.
• Citation: 2012 Daily Journal D.A.R. 11048,75 ERC 1097,12 Cal. Daily Op. Serv. 9054,687 F.3d 1216
• Parties: NATIVE VILLAGE OF KIVALINA IRA COUNCIL; Native Village of Point Hope IRA Council; Alaska Community Action on Toxics; Northern Alaska Environmental Center, Petitioners, v. 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, Respondents, Nana Regional Corporation; Teck Alaska Incorporated, Respondents–Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

687 F.3d 1216

75 ERC 1097

12 Cal. Daily Op. Serv. 9054

2012 Daily Journal D.A.R. 11,048

NATIVE VILLAGE OF KIVALINA IRA COUNCIL; Native Village of Point Hope IRA Council; Alaska Community Action on Toxics; Northern Alaska Environmental Center, Petitioners,

v.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, Respondents,Nana Regional Corporation; Teck Alaska Incorporated, Respondents–Intervenors.

No. 11–70776.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 26, 2012.

Filed Aug. 9, 2012.

Victoria Clark, Brook Brisson, Trustees for Alaska, Anchorage, AK, for petitioners Native Village of Point Hope IRA Council, Alaska Community Action on Toxics, and Northern Alaska Environmental Center.

Brent Newell (argued), Sofia Parino, Center on Race, Poverty & the Environment, San Francisco, CA, 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, WA, for intervenor NANA Regional Corporation, Inc.Eric B. Fjelstad, James N. Leik (argued), Perkins Coie LLP, Anchorage, AK, for intervenor Teck Alaska Incorporated.

On Petition for Review of an Order of the United States Environmental Protection Agency Environmental Appeals Board.

Before: ALFRED T. GOODWIN, WILLIAM A. FLETCHER, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

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 warranted review. We agree that Kivalina did not meet the requirements of § 124.19, and we deny Kivalina's petition for review.

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 Kivalina.

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 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, 2011.

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 pursuant to 33 U.S.C. § 1369(b)(1)(F).

DISCUSSION

“The [EAB]'s analysis of NPDES permits is guided by the preamble to the permitting regulations, which states that 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 following requirements:

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 (EAB 2001).

“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 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 at 11.

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).

A. 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...