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'Loophole' Cited in BP Permit Ruling

Jul 20, 2007

'Loophole' cited in BP permit ruling

By Gitte Laasby Post-Tribune staff writer

When the Indiana Department of Environmental Management allowed BP to discharge 54 percent more ammonia and 35 percent more suspended solids at its reconfigured refinery, it happened because of a loophole in Indiana law, environmentalists say.

"Clearly something went wrong with the implementation of the Clean Water Act," said Ann Alexander, senior attorney with the Natural Resources Defense Council based in Chicago. "Anti-degradation regulations are supposed to make sure things like this don't happen. Yes, some minimal discharge can occur when it's genuinely necessary for social and economic development. But that should be the exception, not a gaping loophole in the Clean Water Act."

Indiana's anti-degradation law is turning into a large loophole in the absence of a better definition, Alexander said.

State officials, environmentalists and industry representatives worked between 2003 and 2005 to fill in that gap and define how the federal anti-degradation policy should be implemented.

A draft was issued in early 2005, but after Gov. Mitch Daniels was elected, industry representatives decided they weren't happy with the outcome and demanded an overhaul. Then the project was shelved, said Albert Ettinger, who represented the Sierra Club in the rulemaking process.

He said the draft version of the law would have required the polluter and IDEM to consider alternatives to increasing pollution, for instance better wastewater treatment.

"My understanding is, basically they have never studied how much more this (treatment) is going to cost. Their line was, we don't have any more space for a treatment plant. Frankly, that's a pretty lame excuse," Ettinger said.

BP Whiting's refinery manager, Dan Sajkowski said Wednesday that he wasn't sure the company is technologically able to reduce pollution more, even with more wastewater treatment.

"An expansion wouldn't necessarily bring a reduction," Sajkowski said. "It's not a financial viability as much as, you look at what you can reduce it down to. It's very difficult to see what we could get it down to."

Ettinger said another big problem with BP's permit is that it allows the company to dilute pollution through a diffuser at the bottom of the lake rather than removing it before discharge.

"By and large, under the Clean Water Act, we do not believe the solution to pollution is dilution," Ettinger said. "The problem is, BP was never required to prove this pollution was necessary."

IDEM said the additional pollution was justified.

"The increased number of jobs, the long-term viability of the existing job/business and the value of a new source of petroleum from a neighboring friendly country are additional positive social and economic results of the BP refinery reconfiguration," IDEM stated in its response to public comments.

In Illinois, the anti-degradation policy has already been fleshed out. That means a polluter in a similar situation to BP would have been required to examine alternatives and their cost, Ettinger said.

Ettinger said as a result, the permit for a wastewater treatment plant in the village of New Lenox granted by the U.S. Environmental Protection Agency was appealed and revised.

Save the Dunes has expressed concern about the precedence BP's permit may be setting.

"We are concerned that this opens the door for other industries to claim that their operations, or expansion of operations, deserve the same sort of permitting review as afforded BP," said Susan MiHalo, President of Save the Dunes Council, in a press release.

She said IDEM should be more transparent about the factors it uses to determine compliance with Indiana's water rules.

"This experience points out the need to review the administrative process used to create permits and bring them to the attention to the public that will be impacted by them," MiHalo said.

Environmental groups are focusing on getting the rulemaking process started in Indiana again to limit IDEM's discretion on exemptions to the Clean Water Act in the future.

Environmentalists also hope public pressure on BP will force the company to do more than the permit requires.


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