The Louisiana Department of Environmental Quality “abused its discretion” when it issued a general permit that allows material associated with oil and gas production to be dumped into the state’s territorial seas, according to a 1st Circuit Court of Appeals decision.
At issue is a general permit originally issued by U.S. Environmental Protection Agency in 1997, but that expired in 2002. The permit conditions were continued by DEQ while a renewal application for the permit was reviewed, according to the ruling.
A new general permit, a blanket way to cover a large number of facilities doing the same type of activity, went into effect in 2010. Territorial seas are waters from the shoreline to three miles offshore.
On Friday, the state appellate court overturned a lower court’s decision involving a DEQ general permit that allows for discharges of material such as deck drainage, produced water — water either extracted from the well during production or pumped into a well to help it — and other fluids.
Although the ruling will require additional work from DEQ, it will have no effect on how companies operate in the near term, DEQ Assistant Secretary Sam Phillips said. “The permit was remanded, not vacated, so the permit remains in effect,” he said.
The Louisiana Environmental Action Network sued the state with a number of concerns about the 2010 general permit.
The lower court’s judgment was wrong, LEAN argued, because DEQ did not have the facts needed to support the conclusions that led to the permit being issued.
“They can’t show that there is no impact,” said Wilma Subra, an environmental chemist and member of LEAN.
The appellate court ruling from Judges Randolph Parro, John Michael Guidry and Jeff Hughes says that DEQ relied on general studies but did not look specifically at the potential impact of what was being permitted.
LEAN would like to see potential impact information included in a modified permit DEQ has been court-ordered to prepare — a process the agency will use to evaluate the impact of dumping produced water. “The potential is there to accumulate in the sediment,” Subra said.
The ruling points out that there appeared to be an intent to do follow-up testing after the original general permit was approved in 1997, but that was not done.
“The general permit expired in 2002, but still no studies,” Subra said. “We come up to DEQ reissuing the permit and still no studies.”
Although the 2010 permit included additional monitoring, Subra said, it did not limit how much of certain compounds like radium could be released.
“We’re talking about things that will be in the environment for a very long time,” she said.
The court said the discharging of produced water in coastal and inshore areas of the state was banned in the 1990s because of studies done by DEQ showing that there was potential for harm.
However, that same information was not available to show if damage occurred from the discharges in the territorial seas, the court said.
DEQ staff will start evaluating what studies the agency needs to do, Phillips said. However, he said, the state did look at two studies by other groups and relied heavily on a permit the EPA did for the same areas of water in Texas.
“I thought we had a really good permit based on that,” Phillips said, adding that it’s too soon to tell if DEQ will appeal the ruling.
Richard Metcalf, director of environmental affairs with Louisiana Mid-Continent Oil and Gas Association, said the association has not made a decision on whether to appeal the ruling.
The association entered the lawsuit after it was filed because it involved an interest to its members, Metcalf said. The association will see what DEQ’s approach is going to be and then make a decision, he said.
The EPA approved the general permit for Louisiana and it fits within the EPA’s guidelines, so it’s unclear what happens now with the ruling saying that’s not enough, Metcalf said.
“EPA issued the same permit for Texas for the same waters and didn’t have all these requirements,” Metcalf said.