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
North Pole Refinery Groundwater Contamination
An industrial chemical, sulfolane, was discovered in drinking water wells near the North Pole Refinery in 2009. Since then a major site investigation has been underway, and affected residents have been provided with temporary alternative drinking water supplies or treatment systems to remove the sulfolane from their drinking water. The sulfolane plume is in the groundwater to the north and west of the refinery. The plume is approximately 2 ˝ miles wide and 3 miles long, and at the deepest has been measured at nearly 300 feet beneath the surface. It has been detected in over 300 wells in the area. Sulfolane is an emerging contaminant, and the long-term health effects of exposure are still being studied. Due to a number of economic and environmental concerns, the owner/operator of the refinery, Flint Hills Resources Alaska, LLC (FHRA) announced in February 2014 that it would be closing the refinery later this year and putting it up for sale.
The department has been assisting DEC at each step in the cleanup process, as DEC directs the work of FHRA on various contaminants of concern, including sulfolane. In December 2013, Flint Hills filed a request for adjudicatory hearing with the Commissioner of DEC, challenging the final cleanup level set by DEC for the chemical sulfolane. The matter is currently on remand to the agency, which has commissioned an independent scientific peer review study of the toxicity studies which have been completed with regard to sulfolane. In March 2014, the State filed a case against Williams Alaska Petroleum, Inc., the former owner operator of the refinery, and FHRA, the current owner, seeking declaratory and injunctive relief, and natural resource damages. The case is in its initial stages. Meanwhile, work continues toward a cleanup plan and development of a long-term solution to the contaminated groundwater that will insure protection of the public health.
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 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. The Exxon Valdez Oil Spill Trustee Council continues to fund research related to the bioremediation of lingering oil in Prince William Sound and the Governments are awaiting the report from the final bioremediation study. The governments continue to pursue the Reopener 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. The Trustees and the Responsible Party are preparing an Assessment Plan, which will be submitted to the National Pollution Funds Center for approval and funding sometime in the spring of 2015, and will be followed by 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.
Appeal of Red Dog Mine Discharge Permit
In 2013, some environmental advocacy groups appealed the most recent discharge permit that the State issued for the mine. As the State is now the agency that issues APDES permits, having taken over that program from EPA, appeals are subject to state law procedures. The Commissioner of DEC granted the request for a hearing and referred the matter to the Office of Administrative Hearings. After briefing and oral argument, an administrative law judge recommended that the appeal be denied. That recommendation is pending before the Commissioner. The permit remains in effect.
Exploration Permitting For The Pebble Mine Deposit
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 failed to prove long term or harmful impacts to the environment from PLP's exploration activities. The case is now on appeal to the Alaska Supreme Court.
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