About the Environmental Section
The Environmental Section provides advice and representation to several agencies, including primarily the Department of Environmental Conservation, to assist them in the performance of their duties related to environmental matters.
Oil spill prevention and response: The department advises and defends DEC regarding oil spill contingency plan approvals. When spills occur, the department provides investigative, enforcement, and litigation services to ensure that the response is prompt and complete, that state costs and damages are reimbursed, and that violations of law are assigned fair consequences. Advice is provided with respect to the prevention and amelioration of fuel oil spills from above and underground storage tanks.
Contaminated sites: In consultation with DEC, department attorneys pursue appropriate enforcement actions to ensure cleanup at contaminated sites or recommend to DEC that the state initiate a state led cleanup. In either case, the department pursues appropriate reimbursement of any state cleanup expenditures. The department consults with DEC in decisions to release a potentially responsible party from liability when available evidence indicates that the party is not, in fact, liable. Department attorneys work with DEC to negotiate prospective purchaser agreements for contaminated sites when appropriate. The section's representation includes instances where the state is seeking to enforce cleanup or secure cost recovery as well as in those cases where the state is sued with respect to its role in a contaminated site or in carrying out its regulatory function.
Air and water quality: The Department provides legal advice to DEC regarding air permits and provides legal representation for enforcement of clean air laws and regulations. The Department also provides advice on water quality issues including permitting for large mines, NPDES primacy, marine vessel wastewater discharges, domestic wastewater, and drinking water. Advice is provided to the Village Safe Water program on a variety of issues related to that program.
Public health: The Department provides legal advice to DEC's Division of Environmental Health on public health issues, such as food safety, animal health, and pesticides.
Homeland security: Legal advice is provided to various state officials regarding efforts to improve security of critical facilities, such as the Trans Alaska Pipeline and drinking water supplies.
Legal defense of state actions: The environmental law component defends state agencies and officials when they are sued for the performance of their duties. These include cleanup decisions, issuance of permits, approval of contingency plans, and other matters.
Significant Environmental Matters
Cruise Ship Program Revisions
DEC and Law continue to work diligently in developing significant revisions to DEC's cruise ship program in order to implement new requirements relating to Ocean Rangers and cruise ship wastewater discharges established under Ballot Measure 2 (the Cruise Ship Initiative), which voters approved in August of 2006. Ocean Rangers are now conducting on-board monitoring of large cruise ship operations, including observations of air emissions and wastewater discharges. In the spring of 2010, DEC issued a new general permit for large cruise ship wastewater discharges. The permit was administratively appealed to the Commissioner, who affirmed the permit. Appeal was then taken to Superior Court, which clarified the issues the court believed appellants intended to raise in the administrative appeal. The court remanded the matter back to the Commissioner for further consideration of the clarified issues. The court did not stay, however, implementation of and cruise ship wastewater discharges under the 2010 general permit. A decision from the Commissioner on remand is pending. Meanwhile, DEC cruise ship program staff are developing a new wastewater discharge general permit that will be issued and effective starting with the 2013 cruise ship season. Revisions to the cruise ship program regulations will also be undertaken in the future.
For more information on the cruise ship program, please visit the Department of Environmental Conservation's Cruise Ship Program web site.
Water and Wetlands Permitting Issues
Given that there are more than 174 million acres of wetlands found within Alaska, the exercise of federal jurisdiction over waters and wetlands in Alaska is of keen interest to the State of Alaska. Law, DEC and DNR continue to review new or evolving policies and guidance (including controversial draft 2011 joint guidance) generated by EPA and the U.S. Army Corps of Engineers to assess the potential impact they will have for projects and activities within the Alaska.
Exxon Valdez Oil Spill
The 1991 agreement settling the state and federal governments' civil claims against Exxon as a result of the Exxon Valdez oil spill includes a provision which allows the governments to reopen the settlement and require Exxon to make additional payments totaling as much as $100 million to fund specific restoration projects identified by the governments to address injuries that meet the Reopener criteria. On June 1, 2006, the State of Alaska Department of Law and the U.S. Department of Justice announced that they have taken the first step in asserting a claim under the Reopener provision by providing ExxonMobil Corporation with a detailed project plan for the cleanup of lingering oil at an estimated cost of $92 million. On August 31, 2006, the Department of Law and the U.S. Department of Justice submitted a demand letter to ExxonMobil for $92 million pursuant to the EVOS settlement Reopener provision. In September 2011, Exxon filed a Motion to Enforce the Consent Decree, seeking to have the court order that the Consent Decree released Exxon from financial obligations for further clean-up activities after the Final Approval of the Consent Decree, and arguing that any attempt to base a Reopener claim on a clean-up plan violates the Consent Decree. On February 15,2012, Judge Holland issued an order denying Exxon’s Motion to Enforce the Consent Decree, concluding that Exxon’s Motion was premature and that waiting for the Governments to complete ongoing studies and potentially file a formal Reopener claim with the court imposes no particular hardship on Exxon. The Exxon Valdez Oil Spill Trustee Council continues to fund research related to the bioremediation of lingering oil in Prince William Sound. The governments continue to pursue this matter.
For more information on the governments' settlement with Exxon and the Reopener provision and the research related to lingering oil, please visit the Exxon Valdez Oil Spill Trustee Council web site.
Selendang Ayu Grounding and Oil Spill
On December 8, 2004, the 738-foot cargo vessel M/V Selendang Ayu, ran aground and broke in half off Unalaska Island in the Aleutian Islands. The cargo vessel, which was bound to Asia with a 60,000-ton soybean load, was carrying approximately 425,000 gallons of Intermediate Fuel Oil 380 and 21,000 gallons of marine diesel oil; an estimated 354,218 gallons of those oils were released into the environment. Six of the vessel's crew members were lost in the rescue effort. Representatives of natural resources trustee agencies, which for the state include the Departments of Law, Natural Resources, Environmental Conservation, and Fish and Game, have undertaken pre assessment activities associated with the natural resource damage assessment and restoration process. On March 30, 2007, the trustee agencies published a notice of intent to conduct restoration planning in the federal register. The Trustees and the Responsible Party continue to work towards completion of a Restoration Plan.
The United States Fish & Wildlife Service is the federal lead administrative trustee agency and maintains a web site with information on the natural resource damage assessment process.
The Department of Law, on behalf of the Departments of Environmental Conservation, Natural Resources and others, asserted civil claims against the owner and operator of the M/V Selendang Ayu arising out of the grounding and oil spill. The State recovered oil spill penalties, wreck removal, trespass and other non-natural resource damages. Included in these civil claims was recovery of the State's costs responding to and overseeing the response to oil spill from the Selendang Ayu and the company's wreck removal efforts. Claims for natural resource damages await the completion of a Restoration Plan by the Natural Resource Trustees and the Responsible Party.
Appeal of Red Dog Mine Discharge Permit
A few residents of Kivalina, along with some environmental advocacy groups, appealed the most recent discharge permit EPA issued for the mine, as well as the state's certification that the federal permit also satisfies state law. EPA withdrew some of its permit limits, so the scope of the federal appeal before the EAB was relatively narrow. The EAB upheld the challenged permit, and their decision is now on appeal to the Ninth Circuit Court of Appeals. Oral argument is scheduled for June, 2012. In the meantime, the challenge to the state's certification of the federal permit pending before the state Office of Administrative Hearings has been stayed as the appeal of the federal permit proceeds.
Exploration Permitting For The Pebble Mine Project
The Pebble Project is a copper – gold –molybdenum porphyry deposit located on state land in the Bristol Bay Region of southwest Alaska. Exploration activities have been conducted for several years.
In 2009, a lawsuit was filed requesting that the court declare that the permits issued in connection with exploration be held void, that the State be enjoined from issuing any further permits, and that the entire administration and permitting process for upland hard rock mining exploration be held unconstitutional.
In 2011, the Superior Court found that DNR had complied with the provisions of the Alaska Land Act and that the plaintiffs had failed to sustain their challenges to the statutory regulatory permitting regime for upland hard rock mining exploration. In addition, the Court concluded that plaintiffs had failed to prove that there were long term or harmful impacts to the environment from PLP's exploration activities. The case is now on appeal to the Alaska Supreme Court.
North Slope Spill Enforcement Matters
The Section is working on a number of north slope pipeline spill cases on behalf of the Alaska Department of Environmental Conservation. These matters include the November 2009 Lisburne flow line spill, the December 2009 drill site 6, Well 11 spill and other spills at facilities operated by BP Exploration (Alaska) Inc. We seek to recovery civil assessments and penalties for the spills, cost recovery and to ensure that appropriate procedures and remedial measures are in place. We are coordinating our efforts with EPA who is also pursuing civil enforcement actions for some of these spills.
State Brings Nuisance Lawsuit Involving Outdoor Wood Boilers in Fairbanks
The Alaska Department of Environmental Conservation is suing the owners of two outdoor wood boilers that are located near the Woodriver Elementary School in Fairbanks. ADEC has received numerous complaints about air quality in the area near the school over the past five years, including many that identified these particular boilers as the source of the problem. After a lengthy investigation, ADEC concluded that these boilers were a public nuisance and issued a nuisance abatement order. After the owners refused to stop operating the boilers, and after numerous additional complaints to ADEC, the State filed a lawsuit seeking an injunction that would permanently abate this public nuisance. The Alaska Superior Court has granted a preliminary injunction. The State continues to litigate against the owners of the boilers in order to obtain a permanent injunction, restitution, and civil penalties.
Alaska Joint Assessment Team (JAT)
The goal of the Alaska JAT is to facilitate Natural Resource Damage Assessment (NRDA) and restoration planning in Alaska among NRDA practitioners. The JAT consists of Natural Resource Trustees, both State and federal, as well as industry representatives. The Department of Law is a natural resource Trustee in Alaska. In the near-term, the Alaska JAT will concentrate on NRDA and restoration planning for oil spills in the Arctic. The JAT is working to enhance the effectiveness and efficiency of NRDA following a potential spill through the development of tools and products; thereby increasing the likelihood of successful cooperative assessments and restoration in the event of an oil spill. For more information about NRDA, please visit NOAA's Damage Assessment, Remediation, & Restoration Program (DARP) at: http://www.darrp.noaa.gov/about/nrda.html.
For further information on Environmental Law contact:
Chief Assistant Attorney General, Section Supervisor