Nunam Kitlusisti v. Arco Alaska, Inc.

No. A82-254 CIV (D. Alaska June 28, 1984)

The court rules that the Federal Water Pollution Control Act (FWPCA) does not require injunction of discharges not covered by national pollutant discharge elimination system (NPDES) permits. The court first rules that the unpermitted discharges from defendants' offshore drilling violate the FWPCA. The Act does not require injunction of such discharges, the court rules, but does require that the discharges be brought into compliance. After reviewing the applicable requirements of the Act, the court allows drilling to continue without a permit during the 1984 season, provided that defendants comply with best available technology pollution control standards, which would be called for in a lawful permit. In addition, the court bars 1985 drilling absent new NPDES permits, noting that plaintiffs' right to comment on proposed permits will be vindicated in the associated proceedings.

[The full reasons for the court's decision are set out in the court's opinion of July 24, 1984, 14 ELR 20691. Also, in a minute order dated July 24, 1984 (not reprinted in ELR), the court vacated holding (2) in the opinion printed below — Ed.]

Counsel for Plaintiffs
Jeffrey M. Eustis
Trustees for Alaska
833 Gambell St., Suite B, Anchorage AK 99501
(907) 276-4244

Counsel for Defendants
Thomas E. Meacham
Burr, Pease & Kurtz
810 N St., Anchorage AK 99501
(907) 276-6100

Bruce Landon, Ass't U.S. Att'y
701 C St., Box 9, Anchorage AK 99513
(907) 271-5071

Counsel for Defendant-Intervenor
Carl Bauman
Hughes, Thorsness, Gantz, Powell & Brundin
509 W 3d Ave., Anchorage AK 99501
(907) 274-7527

[14 ELR 20691]

von der Heydt, J.:

Memorandum and Order

THIS CAUSE comes before the court on the court's show cause order and plaintiffs' original motion for preliminary injunction. Having heard oral argument and reviewed the briefs of the parties, the court holds the following:

(1) Neither the 60-day notice requirement contained in 33 U.S.C. § 1365 nor the judicial review procedures contained in 33 U.S.C. § 1369 prevent this court from assuming jurisdiction over this cause as currently situated;

(2) That the Administrative Procedure Act, 5 U.S.C. § 558(c), cannot be used to modify the statute-based technology requirements contained in the Federal Water Pollution Control Act, 33 U.S.C. § 1311. The FWPCA, being the more specific statutory scheme, must take procedence over the more general scheme contained in the APA.

(3) Since neither Arco nor Exxon have applied for or been granted individual NPDES permits, they are not operating under a valid discharge permit. The discharge of any pollutant without a permit is unlawful. 33 U.S.C. § 1311(a).

(4) Given that defendants are violating the FWPCA, the court has a duty "to order relief that will achieve compliance with the Act." Weinberger v. Romero-Barcelo, 456 U.S. 305, 318 [12 ELR 20538] (1982). The court is not required to enjoin all discharges in violation of the Act.

The court has balanced the public interest in allowing oil exploration, the environmental protections now in place, and the finding by the EPA that the exploratory drilling in Norton Sound will not cause unreasonable degradation of the marine environment against plaintiffs' interest in their right to be heard during NPDES permit proceedings and their right to have their water resources protected to the full extent mandated by Congress in the FWPCA. In regards to the latter right, i.e., the FWPCA protection, the court finds that complete statutory compliance by the EPA and oil companies would not have prevented drilling in Norton Sound. Rather, statutory compliance would have required Arco and Exxon to follow stricter discharge requirements incorporating BAT standards. It would have been possible for EPA to formulate such standards given that they were implemented for the Beaufort and Bering Sea drilling regions. Thus, the court finds that plaintiffs have a reasonable expectation that any discharges into Norton Sound after June 30, 1984 will comply with BAT standards.

Therefore, it is reasonable as a remedy to order Exxon, Arco, and EPA to follow the BAT guidelines contained in the Beaufort and Bering Sea general permits in the Norton Sound region. The court declines to enjoin all drilling. A total injunction will merely delay, not stop, oil exploration in Norton Sound. Further, it appears unlikely to the court that BAT guidelines for Norton Sound will substantially differ from those now in place in the Bering and Beaufort Sea areas.

Finally, to allow drilling for the 1985 drilling season in Norton Sound, the EPA must issue either a new general permit or individual NPDES permits. The process for these permits will allow plaintiffs an opportunity to submit comments, request a hearing, or otherwise be heard. Given the shortness of the drilling season, to require defendant oil companies to apply for permits for the 1984 drilling season would be a useless act.

A memorandum setting forth this court's legal reasoning shall follow.

Accordingly, IT IS ORDERED:

(1) THAT notwithstanding the expiration of the Norton Sound general permit, defendants shall continue to be bound by the terms of the permit as issued. See 48 Fed. Reg. 54881 (Dec. 7, 1983). However, to the extent that the Bering and Beaufort Seas general permits contain stricter discharge requirements that those in the current Norton Sound permit, those stricter discharge requirements shall apply to all Norton Sound drilling operations. See 49 Fed. Reg. 23734 (June 7, 1984). The EPA shall determine whether changes in monitoring or reporting requirements are required, and if necessary to implement this court's order, require such changes.

(2) THAT no exploratory drilling shall occur in Norton Sound after January 1, 1985 unless a new general NPDES permit or individual NPDES permits have been issued;

(3) THAT defendants Arco and Exxon shall have until July 10 to bring their Norton Sound drilling operations into compliance with this order. Arco and Exxon shall report the status of their compliance with this order to the court no later than July 16.