Native Village of Kivalina v. EPA

A petitioner has not shown that an agency’s responses to comments are clearly erroneous, irrelevant, insufficient, or an abuse of discretion, as required for review of permitting decisions under 40 C.F.R.§ 124.19, where the petitioner reiterates previously submitted comments but does not engage the agency’s responses to those comments.

Petitioners, Native Village of Kivalina IRA Council, Native Village of Point Hope IRA Council, Alaska Community Action on Toxics, and Northern Alaska Environmental Center (“Kivalina”), petitioned the Ninth Circuit to review an order by the United States Environmental Protection Agency Environmental Appeals Board (“EAB”). The order denied review of Kivalina’s challenges to an EPA permit allowing discharge of contaminated, but treated, wastewater from an open pit zinc and lead mine into a river that empties into the sea near Kivalina. The EPA issued the permit having invited and responded to public comments, completed an EIS, and the AK Conservation Dept. certified that discharge would comply with state and federal standards. After the EAB reviewed Kivalina’s challenges, the EPA withdrew most of the contested portions of the permit. The EAB declined to review Kivalina’s remaining challenges (regarding reduced requirements, and lack of third-party and bio-monitoring), stating that Kivalina had not shown why EPA responses to comments were clearly erroneous, irrelevant, insufficient, or an abuse of discretion, as required for review under 40 C.F.R.§ 124.19. The Ninth Circuit denied review on the same basis. The Court noted that Kivalina had not engaged EPA responses but merely reiterated previously submitted comments. Specifically, Kivalina (1) made “four unresponsive, conclusory sentences” that didn’t mention, let alone contest, EPA’s response that the challenged reductions predated current permit standards; (2) did not challenge EPA’s reasoning or argue that it was inappropriate or inadequate to allocate biomonitoring to the state; and (3) never addressed EPA’s explanation that self-monitoring and periodic inspections…would [sufficiently] ensure [] compliance…despite the EPA’s awareness of [permitee’s] checkered compliance history.” Having found the EAB properly declined to review Kivalina’s challenges, the Ninth Circuit declined Kivalina’s petition for review. DENIED.