FOR PUBLICATION

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

CENTER,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; LISA JACKSON, No. 11-70776

in her official capacity as 

OPINION 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. 

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

9021
Before: Alfred T. Goodwin, William A. Fletcher, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

9022 NATIVE VILLAGE OF KIVALINA v. EPA
COUNSEL

Victoria Clark, Brook Brisson, Trustees for Alaska, Anchorage, Alaska, for petitioners Native Village of Point Hope IRA

NATIVE VILLAGE OF KIVALINA v. EPA 9023
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

Corporation, Inc.

Eric B. Fjelstad, James N. Leik (argued), Perkins Coie LLP,

Anchorage, Alaska, for intervenor Teck Alaska Incorporated.

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

9024 NATIVE VILLAGE OF KIVALINA v. EPA
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

NATIVE VILLAGE OF KIVALINA v. EPA 9025
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

[1] “The [EAB]’s analysis of NPDES permits is guided by

the preamble to the permitting regulations, which states that

9026 NATIVE VILLAGE OF KIVALINA v. EPA
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).

[2] “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

NATIVE VILLAGE OF KIVALINA v. EPA 9027
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. 

[3] 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).

9028 NATIVE VILLAGE OF KIVALINA v. EPA
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 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

NATIVE VILLAGE OF KIVALINA v. EPA 9029
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.

[4] 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

incorrect.

[5] 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.

B. 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,

9030 NATIVE VILLAGE OF KIVALINA v. EPA
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.

[6] 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

NATIVE VILLAGE OF KIVALINA v. EPA 9031
of biomonitoring provisions. See City of Pittsfield, 614 F.3d

at 11; Mich. Dep’t of Envtl. Quality, 318 F.3d at 708.

C. Failure to Require Third-Party Monitoring

Kivalina also attempted to require third-party monitoring,

as follows: 

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

monitoring.

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.

[7] 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

9032 NATIVE VILLAGE OF KIVALINA v. EPA
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.

CONCLUSION

For the foregoing reasons, we deny Kivalina’s petition for

review.

DENIED.

NATIVE VILLAGE OF KIVALINA v. EPA 9033