Shell Offshore, Inc. (Board decision, April 30, 2009)

Plain-English summary

EPA Region 10 issued Shell Offshore, Inc. a minor-source air permit for the Kulluk drilling vessel to operate in the Beaufort Sea off Alaska. Bill MacClarence, the North Slope Borough and other Alaska organizations, and the Alaska Wilderness League and other environmental organizations petitioned the Environmental Appeals Board to review the permit. Shell later withdrew its application, EPA ended permitting activity and declared the permit null and void, and the petitioners did not oppose dismissal. The Board granted EPA Region 10's motion and dismissed all three petitions with prejudice as moot.

Decision snapshot

• Cited authorities: 42 U.S.C. § 7627; 40 C.F.R. part 55.
• Outcome: The petitions for review were dismissed with prejudice as moot after the permit application was withdrawn and the permit was declared null and void.
• Key point: A permit appeal becomes moot when the permit application is withdrawn and the agency ends the permitting action.

Full text (EPA EAB public release)

                     BEFORE THE ENVIRONMENTAL APPEALS BOARD
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                 WASHINGTON, D.C.

APR 30 2009
Clerk, Environmental Appeals Board
INITIALS [illegible]

                                  )

In re: )
)
Shell Offshore, Inc. )
Kulluk Drilling Unit ) OCS Appeal Nos. 08-01, 08-02, & 08-03
)
OCS Permit No. R10OCS-AK-07-01 )
(Revised) )
)

               ORDER DISMISSING PETITIONS FOR REVIEW

    On June 18, 2008, U.S. EPA Region 10 ("Region") issued an Outer Continental Shelf

("OCS") air regulation minor source permit to Shell Offshore, Inc. ("SOI"), pursuant to Clean Air Act section 328, 42 U.S.C. § 7627, and the applicable regulations governing air emissions from OCS sources at 40 C.F.R. part 55. The permit authorized SOI to "mobilize, operate, and demobilize" a drilling vessel for placement and anchoring in the Beaufort Sea floor off the North Slope of Alaska, for the purpose of oil exploration. Three petitioners sought review of the permit: 1) Bill MacClarence, P.E.; 2) The North Slope Borough, Inupiat Community of the Arctic Slope, and the Alaska Eskimo Whaling Commission (collectively: "NSB"); and 3) the Alaska Wilderness League, Center for Biological Diversity, Natural Resources Defense Council, Northern Alaska Environmental Center, Pacific Environment, and Resisting Environmental Destruction on Indigenous Land (collectively: "AWL").

    On December 18, 2008, this Board stayed proceedings in this matter pending a final mandate

from the United States Court of Appeals for the Ninth Circuit in Alaska Wilderness League v. Kempthorne, No. 07-71457.[1] The Court's final mandate has yet to issue. However, by submission filed with the Board on April 27, 2009, the Region states as follows:

                     EPA Region 10 hereby notifies the Board that Region 10 received a letter from
              SOI on March 26, 2009, stating that SOI was “withdrawing its application * * * for
              operation of the Kulluk drilling vessel in the Beaufort Sea” and requesting that
              “Region 10 terminate and cancel the proposed permit immediately.” In response, EPA
              Region 10 has terminated all permitting activity on the Kulluk OCS permit application,
              will not move to finalize the revised OCS Air Quality Control Minor Permit issued to
              SOI, and has declared [the OCS permit in this matter] to be null and void.”

    Accordingly, EPA Region 10 hereby moves that the Board dismiss the pending

petitions as moot and close this permit appeal.

    Notice of Permit Withdrawal and Partially Unopposed Motion to Dismiss Petitions as Moot at 2

(Apr. 27, 2009) ("EPA Motion") (internal citations omitted). The Region represents that NSB and SOI do not oppose the EPA Motion.[2] Id. at 3. By submission filed with the Board on April 27, 2009, SOI confirms that it does not oppose EPA's Motion. Shell Offshore Inc.'s Notice of Non-Opposition to EPA Motion to Dismiss Appeal (Apr. 27, 2009). Similarly, AWL has informed the Board that it does not oppose EPA's Motion. [AWL's] Non-Opposition to Motion to Dismiss as Moot (Apr. 29, 2009).

[1] In a November 28, 2008 decision, the Ninth Circuit vacated the Mineral Management Service's approval of SOI's exploration plan for proposed drilling in the Beaufort Sea. Subsequently, the Ninth Circuit withdrew its opinion and indicated it will issue a new decision, but has not yet done so.

[2] The Region states that it has also contacted Mr. Bill MacClarence but that Mr. MacClarence “has not yet responded to phone and e-mail messages regarding this filing.” EPA Motion at 3.

    Upon consideration, the Region's motion to dismiss the petitions for review in the above-

captioned matter as moot is granted and the petitions are hereby dismissed with prejudice.

    So ordered.

Dated: April 30, 2009

                                  ENVIRONMENTAL APPEALS BOARD

                                  By: ______________________________
                                      Charles J. Sheehan
                                      Environmental Appeals Judge

                          CERTIFICATE OF SERVICE

    I hereby certify that copies of the foregoing Order Dismissing Petitions for Review in the

matter of Shell Offshore, Inc., OCS Appeal Nos. 08-01, 08-02, & 08-03, were sent to the following persons in the manner indicated:

First Class Mail:

Christopher Winter Eric Jorgensen
Crag Law Center EARTHJUSTICE
917 SW Oak Street, Suite 417 325 Fourth Street Portland, OR 97205 Juneau, AK 99801

Peter Van Tuyn Duane A. Siler
Bessenyey & Van Tuyn, L.L.C. Susan Mathiascheck 310 K. St #200 Patton Boggs LLP Anchorage, AK 99507 2550 M Street N.W.
Washington, D.C. 20036

Thomas Llewellyn
Thomas, Sayre, Llewellyn
1215 17th Street, NW, Suite 101
Washington, DC 20036

First Class Mail:

Bill MacClarence, P.E.
10840 Glazanof Drive
Anchorage, Alaska 99507

Interoffice Mail:

Elliot B. Zenick

Kristi M. Smith

Air and Radiation Law Office
Office of General Counsel

Pouch Mail:

Juliane R. B. Matthews

Margaret B. Silver

Office of Regional Counsel (ORC-158)
U.S. EPA, Region 10
1200 Sixth Avenue, Suite 900
Seattle, WA 98101

Dated: APR 30 2009

Annette Duncan
Secretary