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The following letter has been converted from the original "Professional Write" word processor fixed pitch format to the proportional spaced type face below.  Line breaks and page breaks differ from the original, but the content is identical, with the exception of deletion of references to the identity of the respondent in the case under discussion.

January 7, 1997



Kathy Wilde
Environmental Accountability Division
a/k/a The Lawyers
U.S. EPA - Region IV
Atlanta Federal Center
100 Alabama Street, SW
Atlanta, Georgia  30303


Re:  The [Deleted for Privacy Reasons] Case
        Docket No. 4-UICC-[Deleted for Privacy Reasons]


Dear Ms. Wilde:

As always, it was a pleasure talking with you today.

During our conversation, the circumstances surrounding the inventory submission of Mr. [Deleted for Privacy Reasons] were discussed at some length.  Many operators, including companies in which I am personally involved, submitted inventory data for wells that were not used during the first year of the UIC program in Kentucky (U.S. EPA DI program), and which wells had not been used for many years previous to the "magic date" of June 25, 1984.  Had such wells not been inventoried, they would be totally "invisible" to the UIC program, and in Mr. [Deleted for Privacy Reasons] case, he would not be looking at a $52,546.00 proposed civil penalty.

Under the previous rule, existing Class II-R injection wells became rule authorized if they were used during the first year of the UIC program (of course they must also have been used for injection prior to June 25, 1984, to be considered "existing").  The inventory submission at 40 CFR §144.26 was required in order to retain rule authorization, with said authorization "automatically" terminating upon failure to submit a timely inventory.

EPA's reasoning behind the previous rule involved EPA's belief that wells that were used during the first year of the program were a safer bet for rule authorization, and that long abandoned wells were more likely to have problems better addressed by the permitting process.  The original 1976 rule proposal granted temporary rule authorization to all classes of injection wells, with permit application required by a date certain.  Subsequent reproposals included the concept of rule authorization for the life of the well for Class II-R wells, granting such lifetime authorization only to those wells in use during the first year of the program.  It was acknowledged that though rule authorized wells were subject to the same performance standards as permitted wells, they would not necessarily receive the same degree of scrutiny as quickly as those subject to the permitting process.  Hence, existing injection wells not used during the first year of the UIC program were to be diverted into the permitting program.

A number of operators tried to weasel out of responsibility for wells inventoried, but never used during the first year of the UIC program; thus was born "reg-fix".  "Reg-fix" purports to reverse EPA's earlier posture by granting rule authorization to wells used during the first year of the UIC program, or to wells inventoried pursuant to the requirements of 40 CFR §144.26.  The wee little problem with this aspect of "reg-fix" is that the inventory requirements of the previous version of 40 CFR §144.26 did not exist as an independent right; stated otherwise, submitting the inventory was required to maintain rule authorization, not to obtain it.  The post "reg-fix" version of 40 CFR §144.26 does not resolve this controversy; it states that inventory submissions are required for "... an injection well which is authorized by rule under this subpart ...", setting up a circular "chicken and egg" reference between 40 CFR §§144.22 and 144.26.  In other words, 40 CFR §144.22 now allows rule authorization for existing wells used during the first year of the UIC program or inventoried pursuant to 40 CFR §144.26, but 40 CFR §144.26 still contemplates inventory submissions for wells already "... authorized by rule under this subpart ...".

It should also be noted that the regulatory history of 40 CFR §§ 144.22 and 144.26 has been even more complicated than what is outlined above.  A clerical error in the previous version of 40 CFR §144.26 referenced subparagraph (c) rather than the correct subparagraph (d) on deadlines for inventory submission.  40 CFR §144.26(c) required notice to "... owners or operators of injection wells of their duty to submit inventory information", in such a manner as to "... assure the owners or operators will be made aware of the inventory requirement."  That notice was never given, and as a result, Region IV adopted an informal policy allowing late inventory submittals.  Recently, this office pointed out that the removal of the "automatic termination" language for failure to timely submit inventory information opened the door to cure said defect with a late inventory submission rather than permit acquisition.  Region IV rejected this suggestion necessitating a six month letter writing campaign with Washington, which emotionally exhausting campaign finally resulted in a favorable determination from Washington that Region IV has yet to implement.

Without belaboring the point, it is interesting to note that an injection well used for one minute in 1942, and not used during the first year of the UIC program, but timely inventoried, is arguably a legal rule authorized injection well after "reg-fix", but could have been prosecutable as a fraudulent inventory submission prior to "reg- fix".

But the real point of this letter is to explore why operators inventoried wells they later wished they had not.  Stated simply, we did it because EPA told us we must.  Jim Bloom (whose name I could not recall during our conversation), then with Region IV UIC Permits, told me that failure to inventory all injection wells, including wells long ago abandoned, would result in criminal prosecution.  I would be happy to furnish a sworn affidavit if you wish.

We need not depend on my testimony, however.  Enclosed is a copy of the two page instruction document sent out under cover of William J. Taylor's letter of April 22, 1985.  This was part of the original inventory mailing by Region IV to some Kentucky oil operators. Please note at paragraph 1. b) the unambiguous statement, "Wells that are temporarily abandoned must complete the inventory requirements." This document does not contain a hint that a well not used during the first year of the UIC program, and not inventoried, would remain completely "invisible" to the program.  In my own case, when I raised this question with Mr. Bloom, I was told that such a position was absurd and that failure to inventory all injection wells, abandoned or otherwise, would result in prosecution.  Further, none of the documentation prepared at the time by SMC Martin, Inc., under contract to EPA, honestly addressed this issue.  It is also noteworthy that someone at EPA altered EPA Form 7520-10 (2-84) in the Well Activity field to include boxes labeled "Operating" and "Temporarily Abandoned", most probably without OMB approval.

Without a doubt, many operators, including Mr. [Deleted for Privacy Reasons], would likely not have inventoried injection wells not used for many years prior to June 25, 1984, had EPA been honest about the consequences of said inventory.  I agree that the circumstances surrounding Mr. [Deleted for Privacy Reasons] inventory submission and other similar cases should carry weight in the equitable disposition of enforcement cases against affected operators.

I would offer one final question for you to ponder - why would the inventory of wells not used for years before June 25, 1984, and not used subsequently, not be revocable?  There is nothing in the regulations to suggest that as long as the well is never used after June 25, 1984, that an operator should not be able to elect out of rule authorization under a theory of innocent mistake, especially when the innocent mistake was made as a result of misleading advice and threats from EPA.

Thank you.


Sincerely,



Syd H. Levine
President

SHL/SC:116/C/M/[Deleted for Privacy Reasons].007

enclosure

pc:  Morris Levine, Attorney
      133 Alton Road
      Nashville, TN  37205

      [Deleted for Privacy Reasons]

      Mary Kay Lynch
      U.S. EPA - Region IV
      Water Management Division
      Water Programs Enforcement Branch
      100 Alabama Street
      Atlanta, GA  30303

      Dan Ahern
      Ken Harris
      U.S. EPA - Region IV
      Water Management Division
      Water Programs Enforcement Branch
      SDWA Enforcement Section
      100 Alabama Street
      Atlanta, GA  30303

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