Taking the initiative
State regulators adjust to permitting of waste disposal into waters of the US
By Alan Bailey
With the State of Alaska completing its takeover of administration of the federal National Pollutant Discharge Elimination System at the end of October, the Alaska Department of Environmental Conservation, or DEC, now conducts all permitting in Alaska of discharges into U.S. waters, including discharges from the oil and gas industry.
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The state’s system, known as the Alaska Pollutant Discharge Elimination System, or APDES, offers the benefit of local in-state knowledge of environmental issues, coupled with the presence of regulators in the state, rather than regulators resident 1,500 miles away in Seattle, DEC says. DEC also says that its in-house staff can cut the backlog of permits that has tended to pile up on the desks of federal regulators, few in number and handling multiple states.
During Law Seminars International’s annual Energy in Alaska conference on Dec. 4, DEC Commissioner Larry Hartig talked about some of the adjustments that DEC is making to its regulations, to better accommodate the APDES system and to improve the efficiency of the permitting process.
One key difference between the federal permitting process and APDES is the fact that, whereas in the federal system any appeal against a permit triggers a “stay” of the operation being permitted until the appeal is resolved, under state law a stay can be requested but is not automatic: The request for a stay goes through a process involving the DEC commissioner and the state Office of Administrative Hearings, Hartig said.
Under the federal system, an appeal against a water discharge permit goes first to the Environmental Appeals Board, from where it may be escalated to the 9th Circuit Court of Appeals. And it may take as long as two years for the appeal to move through the entire appeals process, during which time the stayed project remains in a state of limbo.
The state is considering an extensive update to its appeals procedures, to improve the efficiency of the appeal process, Hartig said. The update, currently in draft form, should be published early in 2013 for public review and comment, he said.
A key part of the proposed update will be a procedure to deal with challenges to permits early in the permitting process, to avoid having appeals filed after a permit has been issued.
“If it’s raised early enough in the permitting process then we as an agency have an opportunity to look at that issue and decide whether we think there’s some question around that, to get more information,” Hartig said. “We have an ability to analyze it and to make the best decision we can in how we’re going to view the resolution of that issue.”
Specific allegationsAnd, under the proposed procedure, issues raised would need to be specific, rather than vague allegations — a person challenging a permit would need to state which precise aspect of the permit is wrong.
“My thought is that when the final decision comes out from the agency and the final permit is issued, it should truly reflect the agency’s best work — our best thinking, the best science, everything we get from the public on that particular issue,” Hartig said.
And then, if an appeal goes to court, the court would have the best possible record regarding the agency decision, with complete information about the agency’s thinking.
In addition, DEC is trying to better clarify its criteria for granting a stay in the event of a permit appeal, to enable a means of quickly resolving a motion for a stay. The agency also wants to ensure that its criteria for granting a stay are consistent with those of the court, Hartig said.
Water qualityAnother area of reform is the state’s water quality criteria, the criteria used when making a permitting decision under the APDES system. Under the terms of the U.S. Clean Water Act, each state has to have an anti-degradation policy, specifying the circumstances under which pollutants may be put into water. A policy of this type revolves around the classification of water bodies into different levels of protection, with some pollutants allowed in some water bodies, depending on the protection level. No pollutants of any kind are allowed in water with the highest level of protection, known as “outstanding natural resource waters,” but the application of this standard would in effect shut down any possibility of any development adjacent to the water body involved, Hartig said
A couple of years ago, in response to an appeal in the federal 9th Circuit court over the general permit for water discharges from Cook Inlet oil platforms, the state developed interim implementation guidance for anti-degradation, Hartig said. Following publication of that interim guidance, which was challenged in court because it did not go through a process involving a public notice, the state convened a panel of experts, including people from the oil and gas industry, to make recommendations for finalized guidance. That panel made its recommendations in November and DEC anticipates publishing proposed guidelines for public review in early 2013, in hopes of publishing final guidelines towards the end of the year.
“We’ll be doing it in the form of regulations,” Hartig said. “Those regulations would potentially affect just about any project dealing with water in the state. So they’re critical.”
Mixing zonesAnother issue relating to water quality is the question of mixing zones. A mixing zone in the water around a facility allows space within which discharges from the facility can mix with the surrounding water, diluting any material that the discharges contain — water quality standards need to be met at the outer edge of the mixing zone, rather than at the point where the discharge leaves the facility. Without a mixing zone, a discharge from a facility would need to be of drinking-water quality, Hartig said.
“These (mixing zones) are critical to oil and gas projects in the state,” Hartig said.
In 2006 the state published regulations clarifying mixing zone practices in Alaska. But the EPA, with ultimate jurisdiction over water quality under the Clean Water Act, has not yet sanctioned these regulations — the state is pushing the EPA hard, to enable finalization of the regulations, Hartig said.
Fish consumptionWith the safeguarding of human health being a prime purpose of environmental conservation, patterns of human fish consumption are critically important in setting standards for water quality. And, for the purposes of setting standards, the EPA has set a national guideline of 17.5 grams per day of personal fish consumption, Hartig said. But, given a broad diversity of fish consumption in different parts of the country and within individual states, DEC is being pushed to review its own fish consumption assumptions. In fact, the problem of diversity of consumption is particularly acute in Alaska, where there are wide variations in fish usage from one part of the state to another. And several states, including Alaska, have recognized that Native people tend to eat more fish, and different parts of fish, than other members of the community.
The DEC will probably take a fresh look at fish consumption in Alaska and how consumption patterns impact water quality standards. This review could lead to major changes in state regulations, involving a public process and much public interest, Hartig said.
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