EPA sued over inlet waste

Fishing, conservation groups protest industry discharge permit

Posted: Tuesday, June 19, 2007

Calling the move a last resort, a coalition of Alaska Native villages, commercial fishing organizations and Cook Inletkeeper are suing the Environmental Protection Agency challenging the general permit recently issued by the agency allowing the oil and gas industry to continue dumping toxic wastes into Cook Inlet.

Plaintiffs filed suit June 15 in the 9th Circuit Court of Appeals in San Francisco contending that the EPA ignored hundreds of public comments raising issue with EPA’s proposal to relax limits on certain pollutants. Plaintiffs also contend that the agency violated the Clean Water Act when it recently OK’d the new five-year discharge permit, said Justin Massey, an attorney with Trustees of Alaska, the nonprofit law firm representing the plaintiffs.

Central to the plaintiff’s case is that the permit illegally relaxes existing pollutant limits, and that there is no excuse for continuing to allow the industry to discharge into Cook Inlet, Massey said.

The plaintiffs include Cook Inletkeeper, a conservationist organization focusing on the Cook Inlet watershed, as well as the United Cook Inlet Drift Association, Cook Inlet Fishermen’s Fund, and the Native villages of Port Graham and Nanwalek.

Dianne Soderlund, EPA’s communications coordinator for the Alaska oil and gas sector, said it was too early to make a specific response to the lawsuit. But she did say the permit was issued only after three years of dialogue during which 900 comments were received. EPA responded to those comments in a 500-page document that is publicly available at the Anchorage, Kenai and Homer libraries, she said.

EPA attempted to address “in good faith” the concerns raised by the public, she added,

In a press release Monday, plaintiff representatives took issue with what they see as EPA’s skewed priorities.

“EPA is happy to slap a small fish processor with a big fine, but they bend over backwards to let the oil and gas industry dump million of gallons of toxics into our fisheries,” said Dave Martin of the Cook Inlet Fishermen’s Fund.

Martin was referring to a recent case in which the agency fined a Ninilchik processor $10,500 for violating the Clean Water Act by dumping fish carcasses into the Ninilchik River, an action the violator had believed he was entitled to perform.

In permitting the industry to continue polluting, EPA is ignoring its primary duty to enhance the cleanliness of the nation’s waterways and protect the fisheries, Martin said. The decision could impact the ability of the fishing industry to market inlet salmon, he said.

“Litigation is a last resort,” said Chief Patrick Norman of the Native Village of Port Graham, “but this dumping is damaging our culture and our subsistence lifestyle and resources.”

EPA issued the new general permit in late May allowing Alaska oil and gas facilities to continue to discharge wastes into Cook Inlet as they have for decades. It becomes effective July 2 and is good for five years.

The new permit expands the existing coverage area, alters existing limits for the discharge of certain chemicals, changes existing monitoring requirements, essentially increasing monitoring for violators, and decreasing it for facilities with good compliance records, and requires the industry to plan, conduct and pay for a new baseline study of the possible effects of discharge on the environment.

Since the Clean Water Act became law in 1972, Cook Inlet is the only coastal water body in the country where EPA allows such discharges, Massey noted. Originally, it was expected that technology eventually would eliminate pollution. Yet under the new permit, industry will discharge approximately 100,000 gallons of oil and over 835,000 pounds of toxic metals into the inlet each year, nearly triple the amount allowed under the previous permit, plaintiffs say.

Asked how the claim that EPA ignored public comment could be interpreted by the court as anything more than a “he-said, she-said” dispute, Massey acknowledged the government would likely contend that public comment is not an election and that they did not ignore any testimony. But Massey argues EPA is prohibited by law from relaxing pollutant limits, and that the agency ignored comments making that point.

Massey said it would likely be fall before the court sets a briefing schedule, he said.

Discussing the suit Monday, Marilyn Crockett, deputy director of the Alaska Oil and Gas Association, said it was simply too early to respond to the suit’s particulars. In fact, she said, the industry is still digesting the 700 or so pages of the new permit.

“We’re still trying to understand what it will and won’t allow,” she said.

She did take issue with the plaintiffs’ press release saying in an aging field the volumes of water compared to volumes of oil are significantly higher. But those discharges are treated and what’s pumped back into the inlet meets state water quality standards.

She also said “significant studies” done over the years have failed to show bioaccumulation of toxics and have shown that Cook Inlet remains a healthy environment.

“We believe that discharges that have occurred and operations of the platforms have been protective of the environment and that there have been no degradations,” Crockett said.

Hal Spence can be reached at hspence@ptialaska.net.

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