9th Circuit wants Beaufort permit review

Requires EPA to correct a technical error in Beaufort Sea exploration NPDES permit but otherwise rejects whaling commission appeal

ALAN BAILEY

Petroleum News

The Court of Appeals for the 9th Circuit has ordered a correction to the Environmental Protection Agency’s waste discharge permit for Beaufort Sea exploration but has otherwise rejected an appeal by the Alaska Eskimo Whaling Commission against the validity of the permit. After making the permit correction, the federal agency must reconsider its original decision that discharges within the terms of the permit would not cause unreasonable degradation of the marine environment, a panel of three 9th Circuit judges said in a June 29 opinion.

The Environmental Protection Agency issued its new general permit for wastewater discharges into the Beaufort Sea on Nov. 28, 2012. The permit, which applies to offshore oil and gas exploration but not to oil or gas field development, comes under the National Pollutant Discharge Elimination System. The permit replaced an earlier general permit that had applied to a broad area of the Arctic offshore. The new permit only applies to the Beaufort Sea - EPA has issued a similar NPDES general permit for the Chukchi Sea.

An oil company can conduct exploration activities in the Beaufort Sea without the need for a specific wastewater discharge permit provided it operates within the terms of the general permit and provided it notifies the relevant government agencies of its planned operations.

The Beaufort Sea NPDES general permit authorizes 13 types of discharge from exploration activities, including exploration drilling. Discharges include water-based drilling fluids and drill cuttings; deck drainage; sanitary and domestic waste; and bilge water.

The Alaska Eskimo Whaling Commission appealed the permit, claiming that the EPA had failed to adequately consider the impact of the authorized discharges on subsistence activities, particularly bowhead whale hunting. The whaling commission wanted to see a total prohibition on six of the approved discharge streams, with seasonal restrictions on an additional five streams.

Following normal court practice, the 9th Circuit judges assessed whether the EPA had adequately and rigorously applied the appropriate permitting process when issuing the permit, while the judges deferred to the EPA’s technical expertise used in the permitting decision. And the judges subsequently found that the agency had properly issued the permit.

However, when submitting evidence to the court the EPA had admitted to a technical error in that it had inadvertently used data for drilling-related effluents rather than cooling water when modeling the impact of the discharge of cooling water into the sea. The court has, therefore, remanded the permit to EPA for rework, requiring the agency to use the correct data to re-evaluate the potential environmental impact of cooling water discharges. However, the judges denied the appeal against the permit in all other respects, saying that EPA had not been “arbitrary or capricious” in its permit decision.