Keeper hearing request referred to OAH

DEC decision says first issue for Office of Administrative Hearings is timeliness of Trustees’ request on behalf of Cook Inletkeeper

Kristen Nelson

Petroleum News

Alaska Commissioner of Environmental Conservation Larry Hartig has referred a request for an adjudicatory hearing on a certification under the Clean Water Act for Cook Inlet oil and gas facilities to the Office of Administrative Hearings.

In a Dec. 22 decision Hartig said OAH first needs to determine whether the request from Trustees for Alaska on behalf of Cook Inletkeeper is timely and then deal with issues raised in the request.

“The threshold issue is over the timeliness of this request,” he said in the decision. The request is for a hearing on state certification of Environmental Protection Agency National Pollutant Discharge Elimination System general permit AKG-31-5000 Cook Inlet oil and gas exploration, development and production facilities in state and federal waters, which allows discharges into Cook Inlet from oil and gas production facilities.

On the timeliness issue, Hartig said while “an agency’s failure to comply with its own procedural regulations in this manner would excuse the tardiness of a hearing request,” ConocoPhillips pointed out in its objection to the request that Cook Inletkeeper had “some knowledge” that DEC had issued a final certification because that final certification was included in the administrative record prepared for Cook Inletkeeper’s appeal to the U.S. Court of Appeals for the 9th Circuit Court.

The commissioner said he is concerned that as late as July 26, 2007, DEC staff told Cook Inletkeeper “that DEC still planned to serve the final certification on those who commented.” Cook Inletkeeper also described “subsequent actions by DEC to effectively deny CIK access to the final certification and supporting administrative record.” Hartig said that while the DEC actions complained of by Cook Inletkeeper are “disconcerting” it is hard to conclude that Cook Inletkeeper didn’t know that the NPDES permit and accompanying certification were complete when it filed it appeal with the 9th Circuit in August 2007.

“Given the complexity of the facts and the rights at stake in this appeal, I conclude that it is best to refer this preliminary question of timeliness to the Office of Administrative Hearings to determine whether, under the facts and law applicable to this case,” Cook Inletkeeper’s Oct. 21, 2008, request for an adjudicatory hearing is timely.

A decision that the request was not timely would end the matter and be final for purposes of judicial review, Hartig said.

If request timely

Cook Inletkeeper has raised two issues — whether certification is legally deficient because DEC has not adopted implementation guidance and whether DEC failed to comply with mixing zone regulations because it relied on “allegedly ‘flawed and scientifically suspect assumptions.’”

Hartig said no adjudicatory hearing is called for on the first issue because there are no facts in dispute and the request fails to raise a “disputed and significant issue of law or policy.”

On the issue of the scientific adequacy of DEC’s mixing zone analyses, the commissioner said the regulations “do not require DEC staff to follow any particular model or methodology in calculating the dilution ratios to use in the authorization of mixing zones in marine waters.” He said issues of disagreement on the mixing zone issue are technical, making this a question of whether the challenges raise issues of “disputed fact material to the decision.” Cook Inletkeeper’s challenges are framed as a critique of model inputs. DEC staff response said Cook Inletkeeper’s comments have already been considered and “whatever mistakes DEC staff may have made do not constitute professional negligence. Neither argument has merit,” Hartig said.

Regulations require that a party seeking a hearing has presented “its factual contentions or expert opinions to the department, during the comment period. ... Given that requirement, it would be incongruous indeed to deny a hearing request because they had done so,” the commissioner said.

On the other issue — Cook Inletkeeper’s disagreement with judgment calls made by DEC staff — “no hearing is warranted. Any review of those judgment calls could be made on the existing administrative record.”

He said if there are “genuine issues of disputed fact material to the mixing zone analysis and conclusions” then an evidentiary hearing might be useful. “Unfortunately, it is very difficult to discern from the pleadings ... whether such issues exist or, if so, what they may be.”

Hartig said if OAH determines the request is timely, then it “should proceed to determine if this request does indeed raise any genuine issues of disputed fact material to the decision,” which would warrant an adjudicatory hearing.