[5] Article: Atlanta Progressive News, 9/4/2010

LINK: Advocates Claim Atlanta Violating SDWA
Excerpt: "...EPA has acknowledged that any underground pipe or tunnel could leak, according to an internal memo obtained...through [a Freedom of Information Act request], a copy of which has been provided to APN."

[4] Stream of 17 COMMENTS to article in "Creative Loafing" by Sally Bethea (Upper Chattahoochee Riverkeeper)

LINK: Next mayor can’t slack on Atlanta’s sewer overhaul
See Juliet Cohen's comment: October 27, 2009 at 11:35 AM
See Bob Schreiber's response: October 27, 2009 at 1:14 PM

[3] Article: Buckhead Reporter, 9/17/2009

LINK: Atlanta is polluting aquifers, violating SDWA

[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).

[1] ELEVENTH CIRCUIT COURT OF APPEALS DECISION, LEAF v. US EPA See Paragraph 23

LINK: The Legal Environmental Assistance Foundation (LEAF) litigated against EPA in the Eleventh Circuit Court of Appeals for allowing hydraulic fracturing without UIC permits in Alabama.  In its 1997 decision, the Eleventh Circuit found that EPA interpretations of the UIC laws were in error.  The decision confirmed Congress’ intent that human health and Underground Sources of Drinking Water must be protected and that underground injection requires permits.  The Eleventh Circuit said:

(PARA. 23) To achieve the statutory purpose of "prevent[ing] underground injection which endangers drinking water sources," 42 U.S.C. § 300h(b)(1), Congress chose the regulatory strategy of requiring that state programs approved under the UIC regulations "shall prohibit ... any underground injection in such State which is not authorized by a permit issued by the State (except that the regulations may permit a State to authorize underground injection by rule)." Id. § 300h(b)(1)(A) (emphasis added). Thus, it is clear that Congress dictated that all underground injection be regulated under the UIC programs. An applicant may receive a permit to conduct underground injection activity if the applicant "satisf[ies] the State that the underground injection will not endanger drinking water sources." Id. § 300h(b)(1)(B). Whether a particular activity ... must be regulated under the UIC programs therefore turns solely on whether such activity falls within the statutory definition of "underground injection." This statutory definition is as follows: "The term "underground injection' means the subsurface emplacement of fluids by well injection. Such term does not include the underground injection of natural gas for purposes of storage." 42 U.S.C. § 300h(d)(1).

The Eleventh Circuit also said that (a) even the temporary subsurface emplacement of fluids through a well is "underground injection"; (b) the emplacement of fluids into the subsurface need not be the primary purpose or principle function of the well; and (c) EPA lacks authority to revise the statutory definition.