Teck Cominco Alaska, Inc., Red Dog Mine (Board decision, October 10, 2007)

Plain-English summary

EPA Region 10 issued an NPDES permit to Teck Cominco Alaska, Inc. for the Red Dog Mine. The City of Kivalina, the Native Village of Kivalina IRA Council, and other Kivalina petitioners challenged permit conditions in NPDES Appeal No. 07-08, while Teck Cominco filed a separate petition in NPDES Appeal No. 07-09. After the Region withdrew the permit and planned to prepare a new draft permit, the Environmental Appeals Board dismissed both petitions without prejudice. The order does not state a penalty.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(d).
• Outcome: NPDES Appeal Nos. 07-08 and 07-09 were dismissed without prejudice after the Region withdrew the permit.
• Key point: Withdrawal of the permitting decision before the Board issued its decision ended the appeals without prejudice.

Full text (EPA EAB public release)

                BEFORE THE ENVIRONMENTAL APPEALS BOARD
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                              WASHINGTON, D.C.

                                                                             OCT 10 2007
                                                                             Clerk, Environmental Appeals Board
                                                                             INITIALS

In re: )
)
Teck Cominco Alaska, Inc. ) NPDES Appeal Nos. 07-08 & 07-09
Red Dog Mine )
)
NPDES Permit No. AK-003865-2 )

                 ORDER DISMISSING PETITIONS FOR REVIEW

     On or about March 7, 2007, U.S. Environmental Protection Agency Region 10 (the

"Region") issued National Pollutant Discharge Elimination System (NPDES) Permit No. AK-

0003865-2 (the "Permit") to Teck Cominco Alaska, Inc. ("Teck Cominco"). On April 9, 2007,

the following entities and individuals jointly filed a petition (NPDES Appeal No. 07-08) seeking

review of certain conditions of the Permit: the City of Kivalina; the Native Village of Kivalina

IRA Council; Jerry Norton, as an individual and in his capacity as President of the Native Village

of Kivalina IRA Council; Austin Swan, as an individual and in his capacity as Mayor of the City

of Kivalina; Collene Swan, as an individual and in her capacity as Administrator of the Native

Village of Kivalina IRA Council; Enoch Adams, Jr., as an individual and in his capacity as Vice

     1 A document is "filed" on the date it is received by the Clerk of the Environmental

Appeals Board.

Mayor of the City of Kivalina; Leroy Adams; Andrew Koenig; Joseph Swan, Sr.; the Alaska

Center for the Environment; Alaska Community Action on Toxics; and Northern Alaska

Environmental Center (collectively the "Kivalina Petitioners"). On April 11, 2007, Teck

Cominco filed a petition (NPDES Appeal No. 07-09) seeking review of certain conditions of the

Permit.

   On September 28, 2007, the Region filed notice that it has withdrawn the Permit pursuant

to 40 C.F.R. § 124.19(d), which allows the Region to withdraw its permitting decision at any

time before the Board issues its decision and to prepare a new draft permit. Accordingly,

because the Region's permitting decision has been withdrawn, the petitions filed by Kivalina

Petitioners and Teck Cominco are hereby dismissed without prejudice.

   So ordered.

Dated: 10/10/2007 ENVIRONMENTAL APPEALS BOARD

                             By:

                             Anna L. Wolgast
                             Environmental Appeals Judge


                                  -2-


                          CERTIFICATE OF SERVICE

   I hereby certify that copies of the foregoing Order Dismissing Petitions for Review, in the

matter of Teck Cominco Alaska, Inc., NPDES Appeal Nos. 07-08 & 07-09, were sent to the
following persons in the manner indicated:

Telecopier and Pouch Mail: Keith E. Cohon
U.S. EPA, Region 10
1200 Sixth Avenue
Seattle, WA 98101
Fax: 206-553-0163

Telecopier and U.S. Mail: Robert K. Reges, Jr.
Hartig, Rhodes, Hoge & Lekisch, P.C.
500 L Street, Suite 300
Anchorage, AK 99501
Fax: 907-222-7199

                                      Luke W. Cole
                                      Center on Race, Poverty & the Environment
                                      47 Kearny Street, Suite 804
                                      San Francisco, CA 94108
                                      Fax: 415-346-8723

                                      Matthew Cohen
                                      Heller Ehrman LLP
                                      701 Fifth Avenue, Suite 6100
                                      Seattle, WA 98104-7098
                                      Fax: 206-515-8966

Dated: OCT 10 2007

                                      Annette Duncan
                                      Secretary