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Wednesday, August 01, 2007

Environment - "BP permit appeal may be possible"

That is the headline to this story today by Gitte Laasby of the Gary Post-Tribune. Some quotes:

Environmental groups and residents who commented on BP's new wastewater permit may be able to appeal the permit even though the appeal period is officially over.

The LaPorte County Environmental Association and the Alliance for the Great Lakes claim that the Indiana Department of Environmental Management failed to notify them that the permit was issued and inform them about appeal procedures. Several residents told the Post-Tribune the same.

State law requires that IDEM notifies "each person who submitted written comments" to a permit when a permit is issued or denied. That way people know when the appeal period starts.

IDEM says it did respond to comments, but could not confirm whether those responses included notification that the permit was issued.

IDEM spokeswoman Amy Hartsock said the state did notify a list of "interested parties," but a Post-Tribune analysis shows that list was outdated and did not include the addresses given by the people who commented.

If IDEM did, indeed, fail to notify people, that could be the basis for asking the Indiana Office of Environmental Adjudication for permission to file a belated appeal, said Lew Beckwith, a Baker & Daniels partner and environmental lawyer.

"You might be allowed to file a belated appeal. It's certainly an argument that ought to be addressed," Beckwith said.

Catherine Gibbs, environmental law judge with the OEA, confirmed that her office may give permission to file a belated appeal under certain circumstances.

"If you did not receive notice and you're not on time filing your appeal, we can possibly allow them to go forward with their appeal," Gibbs said.

Tom Anderson, who represented the LaPorte County Environmental Association in a letter to IDEM, said his group was never notified and that it appears IDEM did not follow the required procedure.

"That you have to find out for yourself even though you followed their process doesn't seem fair," he said. "They need to provide their notice." * * *

"The comments we received, along with the responses, were sent to the folks who submitted comments," Hartsock said. "I can promise you, we did mail or e-mail this post-public notice addendum. Staff confirmed that e-mail and mailings were sent."

She could not say when that information was sent.

IDEM did post a notice on its Web site that the final permit had been issued.

Well, not exactly. As the ILB pointed out near the end of its initial entry on the BP permit, from July 14th:
Want to know more? Currently one can view "BP Products North America Inc., Whiting Refinery NPDES Permit Information" at the IDEM site, at the bottom of this page.

Oddly, these documents are not available as PDFs. The "final permit" is a 53-page Word document. The first page of the cover letter, where the date is, is available only as a TIFF document! There is no Notice of Decision (NOD) posted.

(The ILB has converted the 21-page Fact Sheet (see particularly pp. 15-17) and the 35-page Response to Comments to PDF files and posted them for its readers.)

Although the IDEM page states:

The permits listed for final issuance will remain open for appeal for a period of 18 days. This period is available for the request of an adjudicatory hearing (appeal) of a permit being issued, not for public comment.
one cannot access the date the Final Permit was issued without opening and reading the TIFF document. Once opened, the first page of the cover letter, which indicates it was sent by certified mail, is dated June 21, 2007. The remaining pages of the cover letter are not posted.

[More] The ILB has now been able to convert the TIFF document to PDF, using Photoshop. You may now access the first-page only (surely there were more pages ... ) of the dated letter to BP announcing issuance of the final permit here.

In short, IDEM appears to have made only a cursory effort to make even some of the BP documents accessible online. No one at IDEM appears to have taken a look at this page which it has referenced as the place to go for BP permit information, even after all the controversy. Particularly egregious, in my opinion, is (1) the fact that the cover letter to BP is in TIFF format, and only the first page is available, and (2) the fact that no Notice of Decision is posted. There should be little surprise then, that actual notice of permit issuance and opportunity to appeal was not mailed out as required by law.

Posted by Marcia Oddi on August 1, 2007 09:48 AM
Posted to Environment