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In December, 1997, Region IV EPA proposed issuance of two underground injection control (UIC) permits covering Class IIR injection wells in southern Hancock County, Kentucky. These particular wells had not been inventoried pursuant to the rule authorization requirements by a previous owner / operator. After the permitting process started, EPA agreed not to require permitting and to consider the permit application as an inventory submission, but for reasons that remain unclear to this day, Region IV reneged and insisted that the permitting process be completed (see A Futile Plea For Reason - Reg-Fix Permitting). The corporate operator, its corporate consultant, and an individual all filed timely comments on the two draft permits. In March, 1998, Region IV EPA issued the final UIC permits without making substantial changes.
In April, 1998, the two corporations, and the individual commenter filed two Petitions for Review with EPA's Environmental Appeals Board (EAB). The EAB decided both Appeals in a single Order Denying Review in Part and Remanding in Part in May, 1999. Seven permit decisions were remanded; for all other issues raised, review was denied. In December, 2000, Region IV EPA addressed the remanded issues (after a fashion), and issued final UIC permits. Petitioners filed a new Petition for Review, and it was denied in January, 2001.
The corporate permittee had no desire to prolong its agony and chose not to pursue a further appeal. The individual petitioner proceeded to file a Petition for Review with the US Court of Appeals for the Sixth Circuit. Ultimately, the case was dismissed for lack of standing (something the court might have considered doing prior to both sides spending a great deal of time and money briefing the issues). The individual petitioner made one last attempt to get the court's attention with a Motion / Petition for Reconsideration, Rehearing, and / or En Banc Hearing, but to no avail.
There were only three issues raised before the court:
1. Whether EPA erred in denying the use of annulus gel after remand by the EAB;
2. Whether EPA erred in continuing to require a closed annulus after remand by the EAB; and
3. Whether the EAB erred in denying review of the failure of EPA to grant relief under 40 CFR §144.16 based on the assertion that EPA has absolute discretion to fully regulate injection wells even in the absence of an underground source of drinking water (USDW) (this issue was withdrawn by the petitioner because of more dire pending litigation, but not before the government filed its brief).
Your humble petitioner would not wish a pro se US Court of Appeals case on his worst enemy, but it was an interesting experience. In the hope that this material may benefit someone, here are the briefs:
BRIEF FOR PETITIONER
BRIEF FOR RESPONDENT (USEPA)
REPLY BRIEF FOR PETITIONER
JOINT APPENDIX (indexes only)
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