« Ind. Courts - More problems with the Camm trial transcript? | Main | Ind. Courts - More on: More problems with the Camm trial transcript? »

Thursday, August 16, 2007

Environment - Petition filed to block BP permit from taking effect

Tom Coyne of the AP reported late yesterday:

SOUTH BEND, Ind. (AP) -- An environmental group on Wednesday appealed a state permit that allows BP PLC to release more pollution into Lake Michigan from its Whiting oil refinery, arguing that it and other opponents never had a chance to fight the decision.

The Alliance for the Great Lakes filed the petition asking the Indiana Office of Environmental Adjudication to block the refinery's permit. The petition also asks that opponents be given a chance to appeal the permit granted to the refinery located just east of Chicago. * * *

The appeal contends that IDEM should have served notice of final action on the permit to each person who submitted written comments on the permit application. Alliance contends it and others were not notified, so they never had the chance to appeal.

"The issue raised in this case is whether a permit appeal can expire - let alone even begin - if relevant parties were never adequately served about the permit issuance in the first place," the petition said.

IDEM issued a statement Wednesday, saying: "We believe we followed appropriate notification procedures."

IDEM spokeswoman Amy Hartsock said the agency would have no further comment.

Alliance contends because it was never notified that the permit was issued, the 15-day appeal process never started. Alliance also argues that there was no reason for it to expect the permit to be granted so quickly because Indiana "is widely known to take several years to reissue its most complicated" National Pollutant Discharge Elimination System permits.

"In this instance, the last time an NPDES permit was reissued for the BP-Whiting facility was 1990. As a result, the Alliance could not have anticipated that permit issuance this time would have been uncharacteristically expeditious, occurring approximately one month after the close of the comment period," the appeal says.

Alliance also argues that it had no way of knowing that the permit was final, saying the version posted to the IDEM web site did not have an effective date on it.

As the ILB understands it, it is the receipt of the notices of decision (NOD) mailed to the interested parties that start the clock. But if IDEM is going to set up a webpage and label it "BP Products North America Inc., Whiting Refinery NPDES Permit Information", it must be complete and accurate, as the public is likely to rely on it.

Here is the IDEM BP page as it exists today, many documents have been added to it in the past several weeks. (The ILB has retained a copy of the earlier version.) Even so, the updated page still does not address the objections the ILB posted on July 14th, at the end of this entry. The objections included:

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 ILB 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.

At the time the ILB first wrote this, it seemed like these were oversights IDEM would quickly correct. Now, a month later, it looks more that IDEM is simply clueless about its obligation to make information about permits (particularly one as important as this) readily accessible to those, other than the permitee itself, outside of IDEM. And it may be an indication that the same haphazard standard was used in notifying by mail those required by law to be notified of the permit issuance and of the opportunity to appeal.The AP story concludes:
Cameron Davis, president of Alliance, said he wants IDEM to start the clock on the appeal again.

"Just at a time when we are trying to restore the Great Lakes and have a massive restoration campaign, people deserve their say on these permits that would allow more pollution," he said. "That's the point of this thing."

Chief Environmental Judge Mary Davidsen said if the petition is complete, she likely would schedule a pretrial hearing in about 30 days. She said a hearing date on the stay request would likely be set then.

Davidsen said the pretrial hearing would focus on coming up with a schedule for how the case would proceed. She said by law she must consider whether mediation is an option.

The Office of Environmental Adjudication provides a Guide to the Administrative Appeals Process here. IDEM has information here.

Gitte Laasby of the Gary Post-Tribune also reports on this story today. She writes:

The Alliance for the Great Lakes has appealed BP's wastewater permit, saying the Indiana Department of Environmental Management failed to provide proper notice that the final permit was issued as state law requires.

In a petition to the Indiana Office of Environmental Adjudication, the Alliance argues that IDEM failed to send notice of permit issuance to people who participated during the public comment period, including the Alliance for the Great Lakes and the LaPorte County Environmental Association.

Indiana law requires IDEM to notify "each person who submitted written comments" when a permit is issued or denied. The notice must contain information on how to appeal the permit.

"This petition raises serious issues that go to the heart of citizens' rights to fully scrutinize governmental decisions to allow pollution discharges to the waterways they use for drinking, fishing, swimming or even spiritual renewal," Cameron Davis, president of the Alliance for the Great Lakes, said in the petition. "Fundamental to those decisions is the public's right to be notified of those governmental decisions."

Davis said the public "never had much of a chance" to challenge BP's permit.

"Indiana went from the close of the public comment period to permit issuance in about a month. This is unheard of," Davis said in a news release.

The OEA reviews IDEM's implementation of state and federal rules. In general, the OEA can give those who made comments permission to file a belated appeal if they weren't properly notified.

"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," Catherine Gibbs, environmental law judge with the OEA, previously told the Post-Tribune.

IDEM posted notice that the final permit had been issued on its Web site, but Davis said it does not contain an effective date.

In the petition, the Alliance asks IDEM to give an effective date of the permit, provide notice to people of the final permit issuance and start the appeal period again. It also asks the agency for a "stay" -- a request that the approved action not be allowed to take place until a decision has been made regarding the appeal.

The petition would not block BP's wastewater permit. That would require granting another appeal that shows that IDEM did not properly implement state and federal law.

Davis said he wants to "bump open" the door to file an appeal of the contents of the permit. At a minimum, anybody who commented and wasn't notified would be able to file an appeal. He also wants the appeal period to start over so anyone can appeal.

Davis said he, Gary environmentalist Lee Botts and Tom Anderson, who represented the LaPorte County Environmental Association, never received notification. That deprived them of their right to appeal the permit, Davis states in the petition, because they did not know when the 15-day appeal period started. The appeals clock doesn't start ticking until people have been notified, Davis states.

Posted by Marcia Oddi on August 16, 2007 07:57 AM
Posted to Environment