The Environmental Protection Agency repeatedly manipulated and sometimes falsified discharge data to justify its June 2007 decision to increase the amount of toxic pollution 19 aging oil and gas facilities could legally dump into Cook Inlet, alleges a suit filed in federal court Monday.
Trustees for Alaska has asked the Ninth Circuit Court of Appeals to hold the discharge permit governing industry operations in the inlet as unlawful and set it aside. The nonprofit public interest law firm is working on behalf of the Native villages of Nanwalek and Port Graham, Cook Inlet Fishermen's Fund, the United Cook Inlet Drift Association, and Cook Inletkeeper.
The Cook Inlet General Permit is a renewable 5-year permit authorizing increasingly large effluent discharges by the oil and gas industry.
According to a press statement issued Monday, the suit alleges that EPA Administrator Stephen L. Johnson violated the Clean Water Act when he reissued the permit allowing Union Oil Company of California (Unocal) and other operators to dump, among other pollutants, 279 tons of oil and grease into Cook Inlet every year. According to Trustees, 95 percent of the pollution comes from Unocal's Trading Bay Production Facility.
"EPA is bending the rules to let the oil companies extract the last penny of profit from these aging facilities," said Trustees for Alaska attorney Justin Massey. "And Cook Inlet is paying the price."
Bob Shavelson, director of Cook Inletkeeper, said Chevron, which realized record profits in 2008, "...shouldn't treat Cook Inlet fisheries as their private dumping grounds."
In order to extract oil and gas, the industry maintains pressure in the oil reservoir beneath Cook Inlet by injecting millions of gallons of seawater into the substrata. When that water returns to the surface along with oil and gas, it is contaminated with oil, grease, heavy metals and other pollutants.
The EPA requires reinjection of contaminated fluids in coastal waters everywhere except in Cook Inlet, where the dumping permit allows operators to discharge the toxic mixture to sea, Trustees said.
The amount of seawater needed to extract Cook Inlet product is increasing. According to Trustees, EPA documents demonstrate that the waste stream has doubled since 1999, and is projected to grow to nearly 10 million gallons per day during the 5-year life of the challenged permit.
To accommodate those discharge levels, the EPA has increased the size of so-called "mixing zones," areas downstream of outlets where pollutants are expected to dilute to safe levels by the time they reach zone boundaries as much as two miles away. Today's mixing zones are 10 times larger than those approved by the EPA in 1999, according to Trustees.
"Instead of telling the operators to recycle their wastewater -- like they do everywhere else in the U.S. -- EPA has labeled more and more of Cook Inlet as a waste dump for the exclusive use of these oil companies," Massey said.
Trustees for Alaska argues that the increased pollution allowed by the EPA violates "anti-backsliding" provisions of the Clean Water Act, which specifically ban relaxation of water quality-based effluent limitations.
EPA spokeswoman Hanh Shaw, whose office is in Seattle, said the Trustees' Ninth Circuit petition was under review and in the hands of the Department of Justice and she was not able to comment in detail. She did say the EPA knew the petition was coming.
"Trustees for Alaska had filed a petition with the Ninth Circuit just after we issued the permit in June 2007," she said. "We have been in mediation with Trustees since then, but couldn't reach an agreement."
The EPA will have to respond with a filing of its own, but Shaw could not say how soon that would happen.
"We will be on it as soon as possible," she said.
Other allegations contained in the Trustees' brief charge that the EPA:
* Ignored "hundreds of effluent samples" and three years of the most recent data in evaluating pollution levels from current discharges;
* In at least one instance "fabricated" a pollution concentration, inflating a copper concentration by a factor of 10, using that to justify relaxing pollution limits and expanding mixing zones;
* Used a "fictional scenario" to model the discharge plume from Trading Bay to make "environmental risks disappear";
* Manipulated data entered into its computer model, such as: listing above water outfalls on six platforms as underwater discharges, modeling toxic discharges as non-toxic, and relying on imaginary 48-hour tidal cycles for Cook Inlet; and
* "Fabricated or omitted" values needed to accurately calculate pollution limits.
Asked if he thought the EPA's actions were criminal, Massey said he didn't know.
"We only deal with civil matters," he said in an interview Tuesday.
Essentially, Massey said, the EPA purposefully inflated some pollution amounts, overestimated Cook Inlet's ability to dilute the pollution, and drew enormous mixing zones so that water quality levels would be met at their boundaries.
Trustees learned of the 48-hour tidal cycle factor only after repeated requests for information from the Alaska Department of Environmental Conservation, which works with the EPA in the permit process. In its brief, Trustees for Alaska asserted that the EPA failed miserably in modeling Cook Inlet's estuarial nature. Tides were calculated as always positive -- that is out-flowing, where flow velocities increase and decrease, but never reverse.
"They treated Cook Inlet like a river," Massey said.
In addition, according to the brief, the EPA misused its computer model, called CORMIX, when in response to a program prompt during a first group of model runs, failed to enter that discharges were toxic, and in a second group both modeled discharges as non-toxic, and later "made the run nonsensical by modeling the pollutant concentrations as 100 percent."
Among the effects of that action, the brief says, was that the EPA eliminated the ability of CORMIX to properly account for toxicity in determining the dilution of the effluent.
Furthermore, the law firm charges, the EPA failed to model slack tide, tidal reflux, thermal or saline stratification, realistic current speeds, spring and neap tide currents, or the actual inlet tidal cycle.
The EPA "fabricated conditions" to make effluent appear to disperse more rapidly than it would under real circumstances, Massey said, adding that the EPA was "hiding behind the complexity of its computer model," expecting no one would see the inconsistencies.
The EPA is preparing to turn over to the Alaska Department of Environmental Conservation the authority to issue future permits, a step that also has been challenged in court. Shavelson said that information that led to the latest filing in the Ninth Circuit "shines a light" on problems DEC may face if it takes over the permitting process. He noted that Gov. Sarah Palin's latest budget could provide the agency too little to conduct adequate permitting activities.
"They're going to have to do more with less," he said.
Hal Spence can be reached at firstname.lastname@example.org.
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