No USDWs? - 40 CFR §144.16(a) Relief

Some US EPA and Department of Justice (DOJ) personnel suggest that the underground injection control (UIC) regulations are applicable to all injection wells, even those not injecting into, through, or above an underground source of drinking water (USDW).  They cite 40 CFR §144.16 as offering only discretionary relief in the absence of USDWs, but the explicit statutory language of the Safe Drinking Water Act (SDWA), not to mention EPA's own preamble language, bounds said discretion at the very least.

The UIC regulations were promulgated pursuant to the SDWA.  It is a basic legal principle that administrative regulations may not extend their reach beyond the enabling legislation.  It is therefore arguable that the UIC regulations simply do not apply to injection wells that cannot endanger USDWs.  Supporting this notion, at the insistence of a few oil states legislators, the SDWA contains some interesting language about how the UIC regulations are not supposed to "interfere with or impede" oil and gas related injection "...unless such requirements are essential to assure that underground sources of drinking water will not be endangered by such injection."  But above and beyond the foregoing proscription, the explicit language of the SDWA covers only that injection that can endanger drinking water sources in cases of "...underground water which supplies or can reasonably be expected to supply any public water system…."  The SDWA defines a public water system (PWS) as follows:

  "The term ''public water system'' means a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals."

The UIC regulations contain the following definition at 40 CFR §144.3:

"Underground source of drinking water (USDW) means an aquifer or its portion:
   (a)(1)  Which supplies any public water system; or
   (2)  Which contains a sufficient quantity of ground water to supply a public water system…."

And 40 CFR §144.1(g) states as follows:

"Aquifers which do not fit the definition of "underground sources of drinking water"….  They are simply not subject to the special protection afforded USDWs."

Obviously, the UIC regulations seem to track the provisions in the SDWA up to this point.  However, the UIC regulations then purport to give discretionary authority over injection where
no USDWs exist through the language at 40 CFR §144.16 as follows:

   "(a)  When injection does not occur into, through, or above an underground source of drinking water, the Director may authorize a well or project with less stringent requirements for area of review, construction, mechanical integrity, operation, monitoring, and reporting than required in 40 CFR Part 146 or §144.52 to the extent that the reduction in requirements will not result in an increased risk of movement of fluids into an underground source of drinking water."

So where congress apparently did not intend to extend EPA authority over injection where no USDWs exist, EPA chose to make any such relief from the regulations discretionary with the Director.  Why?  In the June 24, 1980 Federal Register preamble to the final rule, EPA explains its reasoning.  EPA tells us that it earlier considered not applying the UIC regulations to injection wells not underlain by a USDW, but there were two concerns, first, "...such a provision could leave an injector uncertain about whether he is or is not covered by these regulations", and second, there "...could still be a potential cause of endangerment by displacing formation fluids, through a hydraulic connection, into an underground source of drinking water."  40 CFR §144.16 was added to address these concerns and was explained further in the preamble:

"In this regard EPA contemplated excluding such wells entirely from these regulations.  However, it is only prudent that as long as an injection facility has some potential to contaminate underground sources of drinking water through lateral displacement, some minimal control should be exercised over it.  At a minimum, the Director should have the opportunity to assess the potential for contamination.  Thus, wells that do not inject into, through or above [an] underground source of drinking water are still covered by the UIC program, so that they can be inventoried and their potential for endangerment reviewed.  However, discretion is given to the Director to determine whether any additional requirements need be applied in particular instances." [Emphasis added.]

And thus we have the current UIC regulations that would seem to apply to all injection wells, even those that do not inject into, through or above a USDW.  But even under this arguably improper expansion of the UIC program, the drafters of the regulations tell us in the 1980 preamble that EPA agreed with commenters that injection wells without USDWs "...should be given recognition in some form."  Given the statutory language, the preamble language, and the language at 40 CFR §144.1(g), the only reasonable and legally defensible conclusion is that wells that do not inject into, through or above a USDW are only to be regulated to the extent necessary to prevent lateral movement of contaminants into a USDW.  Stated otherwise, in the absence of USDWs, EPA is to start with the assumption that no regulation is necessary, then "...determine whether any additional requirements need be applied in particular instances."  Acting with an abundance of caution, it is reasonable to examine even those wells with no USDWs immediately nearby on a case by case basis to be sure they cannot threaten USDWs elsewhere by accidental lateral migration of injectant, but to attempt to regulate such wells further is in direct conflict with the SDWA.  In some cases any such lateral movement is limited by local geology, and in other cases the nearest real USDW may be many times the area of review (AOR) away (the AOR is typically a 1/4 mile radius from an injection well).  Further, EPA is bound by the SDWA to apply a reasonable standard as to what constitutes a USDW, and that standard is "...underground water which supplies or can
reasonably be expected to supply any public water system".  [Emphasis added.]

How has 40 CFR §144.16 been applied?  In US EPA Region IV, relief has never been formally granted pursuant to 40 CFR §144.16, despite compelling and credible evidence that no USDW exists in certain areas of Western Kentucky.  Region IV has insisted that the burden of proof lies with the applicant, but has refused to fairly consider submissions, even when they come from world class experts.  Region IV has even gone so far as to abandon their own ridiculously low USDW yield criteria guidance (the only such document ever created by an EPA region) in favor of an obscure EPA headquarters memorandum specifying an even lower yield number (bizarrely, Region IV continues to use the headquarters memorandum as replacement regional guidance despite a written statement from headquarters that their memorandum was not intended to replace any regional guidance).  And that new USDW yield criteria is one (1) gallon per minute (gpm); in other words Region IV believes that a well or spring yielding one gpm can reasonably serve a PWS!

Disregarding the legal argument that the UIC regulations simply cannot apply where no USDWs exist, the discretion contemplated at 40 CFR §144.16 must be bounded by the explicit statutory language of the SDWA, and by EPA's own preamble language.  Absent USDWs and absent the possibility of lateral migration into a USDW, EPA must cut an operator a break.  EPA should fairly address injection activities where no USDW exists.

PS:  In February, 2001, EPA formally declared no USDW exists under certain oil and gas leases in Western Kentucky.  Despite attempts to backtrack, a US District Judge has apparently taken them at their word that there are no USDWs in the area at issue.

See also Pro Se UIC Permit Appeal.

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Last 10-20-10