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Kitlutsisti v. ARCO Alaska, Inc.

Citation: 14 ELR 20691
No. No. A82-254 CIV, (D. Alaska, 06/28/1984) Preliminary order issued

The court holds that defendant offshore oil drillers are vulnerable to a Federal Water Pollution Control Act (FWPCA) citizen suit for discharges without a permit despite the Environmental Protection Agency's (EPA's) decision not to prosecute the 1982 violations and EPA's opinion that an expiring general permit would continue to authorize the 1984 discharges pending renewal. The court first holds that plaintiffs have standing; declines to rule on whether one plaintiff, a state-authorized agency, may sue without representation by the state attorney general; refuses to dismiss the suit for failure to name EPA as a party; and holds the permit issue not moot.

The court chides EPA for declining to issue defendant a national pollutant discharge elimination system (NPDES) permit or enforce the FWPCA against them in 1982; by so doing EPA has exposed defendants to citizen suits, deprived plaintiffs of participation in the permitting process, and frustrated the purposes of the Act. EPA had a duty to process Arco's 1982 individual NPDES permit application even though EPA was contemplating issuing a general NPDES permit covering all drilling in the area at the time. The Administrative Procedure Act (APA) requires agencies to process license applications in a reasonable period of time. The court holds that because there was no likelihood that the general permit would be issued in time for the 1982 drilling season, EPA had a nondiscretionary duty to process Arco's individual permit.

The court then holds that Arco is subject to citizen suits. In the process of drilling, it discharged pollutants without a permit. EPA's compliance order and letter to Arco promising not to prosecute are not the functional equivalent of a permit and do not bar citizen enforcement under FWPCA § 505.

The court leaves open the question of whether plaintiffs may seek relief for EPA's purported illegal authorization of discharges. Plaintiffs have not made clear the remedy they seek, and the issue has not been well briefed. Also, the court may lack jurisdiction to hear the claim. The FWPCA citizen suit provision only allows challenges to failure to perform mandatory duties. Since that provision may be the only route for citizens to challenge EPA actions under the Act and it is not clear whether EPA violated a nondiscretionary duty, the issue must await further analysis.

The court next turns to challenges to EPA's actions governing the 1984 drilling permit. EPA issued a general permit requiring best practicable control technology and expiring June 30, when by law permits must require best available technology (BAT). EPA later informed those covered by the general permit that its terms would continue to apply in the absence of the issuance of a new permit. The court rules that EPA's latter action was not the issuance of a permit and therefore is initially reviewable in district court, not the court of appeals under § 509(b). The court further holds that plaintiffs' citizen suit notice for the challenges to the 1982 discharges suffices to support their challenges to 1984 discharges. Notice is only required for commencement of an action, not for introduction of new arguments. The factual bases of the 1982 and 1984 violations are similar. Requiring additional notice to add the 1984 violations would not serve any purpose of the Act. Reaching the heart of the 1984 challenge, the court holds that the general permit was not extended past its expiration date. EPA did not act to extend the permit, since it failed to give the required public notice and hold hearings. APA § 9(b) did not extend the permit by operation of law, because a general permit is not a "license required by law," since defendants did not apply for the general permit's renewal and EPA regulations allow APA § 9(b) extensions only for individual permits. All discharges after the permit expired are therefore illegal.

Because the violations seem more the fault of EPA than the drillers, the court declines to enjoin all discharges, but orders drillers to comply with BAT standards for the rest of 1984, and to obtain NPDES permits for future drilling seasons.

Counsel are listed at 14 ELR 20691.