[2] First Letter to US District Judge Thomas W. Thrash & Original Legal Opinion

LINK: Letter & NOCRAP's Atlanta Legal opinion
    
A citizen notified US District Judge Thomas W. Thrash about legal inconsistencies with Atlanta's Consent Decrees. Judge Thrash offered to receive and review anything that was submitted in writing.

On December 10, 2008, a citizen sent a letter and a legal opinion to Judge Thomas W. Thrash.

Excerpt from the letter (bottom of page 3 of 6):

By failing to acknowledge and apply SDWA/UIC permitting requirements, Mayor Shirley Franklin, Atlanta; Mr. Jimmy Palmer, EPA Region-4 Administrator; Dr. Carol Couch, Director of the Georgia Environmental Protection Division; and Ms. Sally Bethea, Executive Director, Upper Chattahoochee Riverkeeper (hereinafter "the four parties") have acted collectively to omit protection of public health and the environment from consideration under both Consent Decrees.

As a result of their actions, assessments of near-term and long-term threats to public health and potential adverse impacts to underground sources of drinking water have been neglected. Without the required permits, the completion of both Consent Decrees will result in unenforceable violations of SDWA water quality standards. This has all been concealed from the public and the Court.

Excerpt from the legal opinion (page 2 of 10):

LEGAL QUESTIONS and SHORT ANSWERS:

II. QUESTIONS PRESENTED:

1. Are the owners/operators of the dropshafts engaged in “underground injection” activities?

2. Are the construction and operation of the dropshafts required to be authorized by an underground injection permit?

3. Are the construction and operation of the dropshafts presently authorized by an underground injection permit?

4. Is recognition that the dropshafts are used for “underground injection” important?

SHORT ANSWERS:

1. Yes, the owners/operators of the dropshafts are engaged in “underground injection” activities. SDWA, 42 U.S.C. § 300h(d)(1) (definition of “underground injection”); Ga. Comp. R. & Regs. r. 391-3-6-.13(2)(ss) (definition of “well injection”); 40 C.F.R. § 144.3 (definition of “underground injection” and “well injection”); Ga. Comp. R. & Regs. r. 391-3-6-.13(2)(qq) (definition of “well”); 40 C.F.R. § 144.3 (same).

2. Yes, underground injection is required to be authorized by a permit. SDWA, 42 U.S.C. § 300h(b)(1)(A). The dropshafts are classified as Class V wells under Ga. Comp. R. & Regs. r. 391-3-6-.13(3)(e) & (11)(d). See also 40 C.F.R. § 144.6(e).No person shall construct or operate a Class V injection well without first having applied for and obtained a permit from the Director. Ga. Comp. R. & Regs. r. 391-3-6-.13(11), 391-3-6-.13(12). See also 40 C.F.R. §§ 144.11, 144.24.

3. No, the construction and operation of the dropshafts are not presently authorized by an underground injection permit. Because the owner/operator of the dropshafts has not applied for and obtained a permit, the owner/operator is prohibited from injecting fluids into the sewer tunnels. Ga. Comp. R. & Regs. r. 391-3-6-.13(11)(a). See also 40 C.F.R. § 144.24(c).

4. Yes, recognition that the dropshafts are being used for “underground injection” is important because such recognition allows regulators to impose siting, construction and operational requirements to ensure that underground sources of drinking water are not endangered. Ga. Comp. R. & Regs. r. 391-3-6-.13(5)(a), (11)(f), (11)(h), (12)(b), (12)(c), (12)(e), (13). See also 40 C.F.R. § 144.12(a), (c) & (d).