Court puts Tongass wood waste permits in question

Posted: Thursday, February 14, 2002

SAN FRANCISCO - A federal appeals court has ordered the Environmental Protection Agency to get public comment on as many as 100 logging permits issued mainly to timber companies in the Tongass National Forest.

The 9th U.S. Circuit Court of Appeals on Wednesday said environmentalists and others should have been given a legal forum to protest new rules allowing logging companies to produce more wood waste in estuaries and coastal zones than previously permitted.

It is unclear whether the decision voids the permits, as was earlier reported, said Lori Cora, attorney for the EPA.

"We're still reviewing it and deciding what it means to the permits," Cora said.

At issue are the federal permits to run logging transfer facilities, coastal areas into which harvesters dump logs before they are shipped. The logs are tied together to form rafts and are floated to market, a process that can leave bark and other wood debris in coastal inlets.

Two years ago, the EPA issued new guidelines that permitted harvesters to increase the amount of waste, but did not give environmentalists an opportunity to oppose the new measures. The three-judge panel pointed out that, had the government imposed stricter rules, logging interests would be making the same argument.

"If the EPA had reached the opposite conclusion, and had added additional requirements to the final permits, Alaskan logging interests would surely have taken the position that notice and comment had been inadequate," Judge Sidney R. Thomas wrote for the San Francisco-based court.

Sharon Buccino, a Natural Resources Defense Council attorney, said the transfer facilities, which she called "logging dumps," kill marine life and ruin coastlines.

"The ultimate goal is to preserve the ability of Alaskan Natives and others to continue to use these waters for a variety of uses: subsistence fishing, commercial fishing, recreation and ecotourism," she said. "The timber companies should not be allowed to monopolize this public resource."

Juneau-based Sealaska Corp., which is owned by Alaska Natives, holds some of the permits and intervened in the case. Sealaska attorney Jon Tillinghast said a state hearing officer ruled last month the permits were in compliance with environmental laws, following a challenge by the Natural Resources Defense Council, or NRDC.

The environmental group lost at the state level and won only a procedural point at the federal level, said Tillinghast, adding the federal court declined to address environmental issues raised by NRDC.

"NRDC lost the war and after that has now won a battle. It's the first thing they've had to cheer about however minor it might be," said Tillinghast, who interpreted the court decision to mean the permits are still valid.

The court instructed the EPA to renew the permit-formulating process and allow the public the "ability to comment on whether the proposed permit complied with water quality standards."

"They've sent the matter back to the EPA to solicit additional public comments but that in and of itself does not affect continued operations," Tillinghast said.

Generally, under most of the previous permits, logging companies were allowed to cover one acre of an estuary's floor with up to 10 centimeters of waste. The new rules eliminated the one-acre rule and said the so-called "zone of deposit" could comprise a company's "project area," which could be several acres.

Empire reporter Kathy Dye contributed to this article.

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