(CN) – A mine operator with a “checkered compliance history” can discharge wastewater, the 9th Circuit ruled, rejecting objections from Native Alaskan villagers and environmentalists.
Teck Alaska operates Red Dog Mine as a partner of Nana Regional, a corporation controlled by Native Alaskans of Inupiat descent.
Though mining zinc and lead out of the open pit in northwestern Alaska produces wastewater contaminated with metals, the Environmental Protection Agency found that discharge of the pollutants would comply with the Clean Water Act and state standards.
In 2010, the agency issued the mine a discharge permit that would send Teck’s treated wastewater to the Wulik River, which flows into the Chukchi Sea near the Native Village of Kivalina.
To fight this permit, the councils of that village and another, Point Hope, teamed up with Alaska Community Action on Toxics and the Northern Alaska Environmental Center.
The groups claim that the permit improperly removes the requirements by which the EPA must monitor human exposure to environmental chemicals, a process known as biomonitoring. They also claim that the permit reduces other monitoring requirements and omits third-party monitoring.
After an EPA appeals board rejected the challenge, the groups brought their case to a three-judge panel of the 9th Circuit in Anchorage.
That panel affirmed Thursday, finding no evidence that the EPA appeals board should have reviewed the monitoring requirements.
“The EPA explained in its response to comments that requiring greater monitoring was unnecessary to ensure compliance with the 2010 permit’s conditions,” Judge Milan Smith Jr. wrote for the court, adding that the EPA also “thoroughly explained the reasons behind the 2010 Permit’s biomonitoring requirements.”
Self-monitoring requirements are a required permit component under the Clean Water Act, according to the EPA. Though the agency will supplement monitoring data through inspections, it said that it has no authority to require third-party monitoring.
Teck will have to certify the validity of its sampling results, and it will face periodic compliance inspections from the EPA and the state, the EPA said.
“Kivalina 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,” Smith wrote. “Because Kivalina did not do so, it did not explain how the EPA’s conclusion that self-monitoring was appropriate was wrong.
Judges Alfred Goodwin and William Fletcher concurred in Smith’s opinion.