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November 2010

Vol. 15, No. 45 Week of November 07, 2010

Court rules on Cook Inlet discharges

9th Circuit says ADEC must invite public comments on its revised certification of discharges; discharge permit remains in place

Alan Bailey

Petroleum News

A panel of three judges in the U.S. Court of Appeals for the 9th Circuit has ruled in an appeal against the U.S. Environmental Protection Agency’s general permit for discharges into Alaska’s Cook Inlet from offshore oil platforms. In a memorandum filed on Oct. 21 the judges said that the Alaska Department of Environmental Conservation must rework its certification for the discharges, publish a public notice about the proposed certification and then allow a period for public comments.

Since ADEC certification of the discharges is a perquisite for the EPA permit, rework of the certification will trigger the issuance of a revised permit. But, if a new permit were to significantly reduce the quantities of allowable discharges from the platforms, required modifications to the platforms could presumably prove uneconomic, given the low and declining oil production rates from the aging Cook Inlet oil fields.

Old platforms

Cook Inlet oil platforms built in the 1960s were designed to discharge drilling waste and produced water into the sea. And when in 1995 EPA introduced new zero-discharge standards for offshore platforms, the agency issued a general permit exempting the Cook Inlet facilities from the new standard, saying that it would be impractical to retrofit the platforms with the required disposal technology and that the platforms had a limited remaining life expectancy.

Although the quantities of pollutant discharged from the platforms are subject to defined limits, environmental organizations, commercial fishermen and some Native villages have criticized the continuing discharges from the platforms, claiming that toxic pollutants dumped into the seawater impact important subsistence, commercial and recreational fisheries in Cook Inlet. The oil industry has countered by saying that the strong tidal currents in the inlet rapidly disperse the waste material from the platforms and that numerous studies have found no evidence of industry contamination of water or sediments.

Some Cook Inlet oil producers have said that they have taken voluntary steps to reduce or eliminate the discharge of produced water from the platforms, while EPA has said that the permit ensures that the platform discharges meet federal water quality standards.

2007 appeal

After EPA renewed the general permit for the discharges in May 2007, Cook Inletkeeper, Cook Inlet Fishermen’s Fund, United Cook Inlet Drift Association and the Native villages of Port Graham and Nanwalek appealed to the 9th Circuit Court over the permit renewal. One of the issues raised in the appeal was an apparent relaxation of the stipulations governing allowed discharges.

But the involvement of both the State of Alaska and the federal government in the permitting process complicates the legal situation in the appeal: The permit is federal, under EPA jurisdiction, but EPA requires the Alaska Department of Environmental Conservation to certify that a permitted operation will meet state water quality standards before the permit can be issued.

In their Oct. 21 ruling, the 9th Circuit judges accepted an EPA motion to require ADEC to publish its certification findings for public review, saying that the state had neither issued a public notice nor allowed a public review period for the certification, as required under federal law for a federal permit following the relaxation of permit stipulations.

EPA also conceded, and the judges agreed, that ADEC had not published a methodology for applying the state water anti-degradation policy, as required under federal law.

Permit still in place

In making its ruling, the court allowed EPA to keep the discharge permit in place, given the disruption that cancelling the permit would cause, provided that ADEC reports periodically on progress toward publishing its anti-degradation methodology.

And although by requiring a rerun of the state’s certification of the platform discharges the 9th Circuit Court appears to have somewhat addressed the concerns raised by the organizations appealing the discharge permit renewal, the court also rejected other claims in the appeal, including requests for consideration of additional information about the Cook Inlet discharges. The judges said that some of this information was only relevant to state certification of the discharges and, therefore, not relevant to the EPA permitting procedure. In other cases Cook Inletkeeper should have voiced its concerns during the public comment period for the permit renewal, the judges said.

Sharmon Stambaugh, ADEC’s program manager for water quality, told Petroleum News Nov. 2 that, following the court ruling, EPA is characterizing the court-ordered rework of the Cook Inlet general permit as a “re-proposal of less stringent limits in a new permit.” EPA is going to revise the permit and an associated fact sheet for review by ADEC, with a request for ADEC’s preliminary draft certification by Dec. 20, Stambaugh said.

The federal and state agencies will then work together, with the intention of issuing a public notice for a new permit and draft certification at the end of January. That will lead to a public comment period ending sometime in early March, with the final permit coming out in April or May.

Already complied

Stambaugh said that ADEC has already complied with the court’s ruling on the state’s anti-degradation methodology, with the state having on July 14 published an interim anti-degradation implementation policy as guidance for ADEC permit writers.

About a year ago ADEC convened an Alaska conference involving experts in water anti-degradation policies and methods, with the intention of informing people about ways of implementing anti-degradation policies. And the agency is now planning a workgroup of Alaska stakeholders to review the state’s anti-degradation approach, Stambaugh said. The state anti-degradation policy, a part of ADEC’s regulations, has much wider application than just the Cook Inlet platform discharges, she said.






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