By Sean Pearson
The state applauded a recent decision by the U.S. Ninth Circuit Court of Appeals that gives power over regulating water pollution from the federal to the state government, but while toxic dumping continues, the change gives little comfort to conservation groups.
The higher court is upholding the transfer of the permitting program for discharges under the Federal Clean Water Act from the U.S. Environmental Protection Agency to the Alaska Department of Environmental Conservation. At the same time, the court sent back a Cook Inlet dumping permit for additional review.
The first decision has no impact on the second as of yet, since the EPA is still the permitting authority for Cook Inlet. That’s not much consolation to a coalition of fishing, Alaska Native and conservation groups who continue to shake their heads about how to mitigate the dumping of toxic oil and metals into the fisheries-rich waters.
According to Cam Leonard, attorney handling the case for the Alaska Department of Law, the DEC is taking over the permitting process in four stages, with oil and gas being the very last.
“The DEC hasn’t actually taken over the permitting process yet,” Leonard said. “That will happen a year from now. For now, the EPA retains permitting authority.”
In the most recent petition for review of an order of the Environmental Protection Agency, Cook Inletkeeper and four other petitioners had originally challenged the EPA’s grant of a permit under the National Pollution Discharge Elimination System. The permit authorizes water pollution caused by continued operation of natural gas and oil extraction facilities in Cook Inlet.
On Oct. 21, the Ninth Circuit Court of Appeals issued an unpublished decision which left in place a Clean Water Act permit that the coalition says, “allows the oil and gas industry to virtually triple the amount of toxic pollution it dumps annually into Cook Inlet fisheries.”
The decision also recognized flaws in the State of Alaska’s efforts to implement “anti-degradation” policy when establishing the dilution allowances or “mixing zones” for industry wastes. It remanded the permit to EPA to correct these deficiencies.
According to the coalition of fishing, and Alaska Native and conservation groups, the recent court opinion recognizes significant flaws in the State of Alaska’s Clean Water Act permitting program, yet still allows toxic oil and gas dumping to continue unabated in Cook Inlet’s rich and productive fisheries.
Cook Inlet is the only coastal waterbody in the United States where EPA allows the oil and gas industry to dump toxic drilling and production wastes into important subsistence, commercial and recreational fisheries. When Congress passed the Clean Water Act in 1972, it established five-year terms for discharge permits, with the intent that technology would improve over time and pollution eventually would be eliminated. However, according to the groups who brought the challenge to the oil and gas industry permit — Cook Inletkeeper, United Cook Inlet Drift Association, Cook Inlet Fishermen’s Fund, the Native Village of Port Graham, and the Native Village of Nanwalek — the current permit vastly increases the amount of toxic dumping in Cook Inlet compared to the previous permit. The industry is now authorized to discharge approximately 100,000 gallons of oil and over 835,000 pounds of toxic metals each year.
For illustration, the groups point out that 100,000 gallons is what it takes to fill an Olympic-size swimming pool.
“The oil and gas industry continues to put profits over our fisheries and the countless families they support,” said Bob Shavelson, Executive Director of Cook Inletkeeper. “When the oil jobs and taxes are gone, we’ll still need healthy, intact fisheries to sustain our communities.
“The court’s decision clearly shows EPA needs to get serious about protecting our fisheries.”
When the DEC takes over in a year, and the new permitting process begins, the groups will monitor to see if promised changes take place in Cook Inlet water standards. In the meantime, public input will be sought by the DEC in meeting dates to be announced, according to state attorney Leonard.