[14] March 19, 2013 - Press Release

Atlanta Mayor Kasim Reed invites environmental lawsuit

Atlanta Mayor Kasim Reed's failure to respond to a non-litigious notice is leading the city into litigation. The Atlanta City Council can pass legislation which requires Mayor Reed to obtain clarification from U.S. District Judge Thomas W. Thrash about protecting public health and Atlanta's water resources as required in the Safe Drinking Water Act (SDWA) and the Georgia Water Quality Control Act (GWQCA).
   Link to Complete PRESS RELEASE
If you are not able to access the Complete PRESS RELEASE by clicking on the hot-link above, please send an e-mail to < NOCRAP.Ga@gmail.com > and we will send you a copy.
   Thanks for your interest

  

 

[13] October 30, 2012 - Response from DOJ and Follow-up from Hal Wright

LINKS: - October 19, 2012, Response from DOJ 
- A "MUST READ" October 30, 2012, Follow-up from Attorney Hal Wright

The one-page October 19, 2012 letter from William Weinischke (US DOJ representing US EPA) completely omits the legal issues which were presented to Judge Thrash by Hal Wright in his legal brief.  Instead, Weinischke directs attention to other issues.

On October 30, 2012, Hal Wright writes to Judge Thrash.
   EXCERPT: My clients are outraged that EPA/EPD, the two governmental entities charged with protecting the waters of the State of Georgia as a public trust resource, would so blatantly continue to mislead this Court with untruths, false innuendos, and misrepresentations. While “the Governments” are entitled to their “view that there is nothing in Memorandum that has not already been addressed by these Governments”, this “convenient conclusion” is simply that. The Governments' position is contrary to the facts.
 

[12] Attorney Hal Wright Submits Legal Brief to Federal Judge Thomas W. Thrash

Links: - Legal Brief, submitted to Judge Thomas Thrash by Hal Wright
- Exhibit "A", Supplemental document referred to in Wright's Legal Brief

When approving consent decrees or amendments to consent decrees, Courts must assure that they are lawful. Excerpt from Hal Wright's brief:

"It is argued below, with all due respect to this Court, that because the UIC program is a key component of protecting the public health, welfare and environment under[Georgia law], that the City's non-compliance with the UIC program is not only relevant, but serves as a legitimate basis for this Court to declare that the amendments and the consent decree are unreasonable, not legal, and not consistent with the mandate of [Georgia law]."
 

Background

On September 20, 2012, Judge Thrash held a hearing for the final motion to extend the completion deadline for Atlanta's First Amended Consent Decree (FACD) an additional 13 years.  After allowing the attorneys for the Plaintiffs (EPA and Georgia EPD) and the attorneys for the Defendant (Atlanta) to make presentations, Judge Thrash allowed citizens to make comments.

Attorney Hal Wright arose and requested that he be allowed to submit a legal brief on behalf of his clients, NOCRAP, the South River Watershed Alliance, and the Little Mountain Watershed Alliance.  Judge Thrash granted Wright's request which was immediately followed by a similar request from William A. Weinischke, US Department of Justice (representing EPA). Judge Thrash also granted Weinischke's request.
Wright's legal brief includes:

   Section I - A summary of more than eleven years of citizen-efforts to have the Plaintiffs  implement established Underground Injection Control (UIC) law in regard to protecting  public health by requiring permits for injecting sewage into aquifers (underground sources of drinking water).  The summary also cites the Plaintiff's failures to address the legalities when responding to a variety of communications from the citizens.

  Section II - An explanation of both federal Safe Drinking Water Act law/regulations and Georgia's Water Quality Control Act.

  Section III - Background information about the Eleventh Circuit Court of Appeals decision from 1997 which affirms the intent of Congress, “Thus, it is clear that Congress dictated that all underground injection be regulated under the UIC programs” as well as critiques of the Plaintiffs erroneous interpretations of the intent of Congress, federal regulations, and the 11th Circuit's decision.

  Section IV - Addresses the legacy of Atlanta's consent decree and the exposure to future financial burden.

   Wright concludes with a Request for Action from the Court,
"Commenters respectfully request this Court to declare the rules and regulations implementing Georgia's  Underground Injection Control program, Ga. Comp. R. & Regs. r. 391-3-6-.13, are applicable to the City of Atlanta's activities of  emplacing wastewater through a shaft (“injection well”) into subsurface excavated tunnels and caverns (cavities)."

[11] Judge Thrash: Extends Atlanta decree - Grants Attorney's request to brief the Court

Link: Atlanta gets 13-year extension for mandatory sewer work
This article from the Atlanta Journal-Constitution reports that Judge Thomas W. Thrash approved Atlanta’s request for a 13 year time extension to complete the First Amended Consent Decree.

The article omits that attorney Hal Wright spoke at the hearing on behalf of NOCRAP, the South River Watershed Alliance, and the Little Mountain Water Association.

Mr. Wright requested an opportunity to brief the Court about the unresolved Underground Injection Control permit issue and its applicability to Atlanta's five sewer tunnels.

Judge Thrash granted Mr. Wright's request and also granted a request from William A. Weinischke (US Department of Justice, on behalf of EPA) to submit a brief.

[10] Notification letter to Atlanta's Mayor Kasim Reed

LINK:  A "MUST READ"   Notification letter to Atlanta's Mayor Kasim Reed
This letter to Mayor Kasim Reed briefly describes deficiencies with Atlanta's wastewater tunnel projects and was written on behalf of three citizen groups by attorney Hal Wright.

The letter notifies Mayor Reed that Atlanta’s continued failure to obtain permits which are required by environmental regulations is unnecessarily threatening Atlanta’s present and future water resources.
 

After briefly summarizing relevant law, Mr. Wright explains how Atlanta’s position is untenable because it relies on a regulatory interpretation by the EPA which has already been discredited by the Eleventh Circuit Court of Appeals.

The letter concludes with urging Mayor Reed to do “the right thing” by obtaining regulatory clarity, not from the EPA, but rather from the Court (Judge Thrash).

[9] Public Comment to Atlanta's proposed amendment to the "First Amended Consent Decree"

NOCRAP along with the South River Watershed Alliance, and the Little Mountain Water Association submitted a Comment and Four Appendices to the Department of Justice.
   Outline of the Comment:

I. The Court must assure that the FACD and Second Amendment are lawful,in keeping with the SDWA

I. The Court must assure that the FACD and Second Amendment are lawful,in keeping with the SDWA

I. The Court must assure that the FACD and Second Amendment are lawful, in keeping with the Safe Drinking Water Act

A. A Permit is required for “Underground Injection”

B. EPA’s erroneous opinion: tunnels are not intended to emplace fluids below ground and therefore do not qualify as “underground injection” requiring a permit.
C. The Chevron Doctrine applied to uphold the emplacement of wastewater as “underground injection”. 

    [When issues of statutory construction are raised, a court must first determine whether Congress has

    directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of 

    the matter.]

     i. Congressional Intent is clear and Unambiguous.
     ii. EPA’s interpretation is unreasonable and otherwise contradicted by the clear statutory

       language.

D. The Court should carefully scrutinize the FACD and the Proposed Second Amendment to the FACD and declare that the emplacement of wastewater through a shaft into subsurface excavated tunnels is underground injection for which a permit is required under the SDWA/UIC program.

II. The DOJ, as EPA’s lawyer, owes a duty of candor to the Court. 

LINKS to:
   NOCRAP'S (et al) COMMENT to the US DEPARTMENT of JUSTICE,
   - Exhibit "A" - NOCRAP's Letter to EPA, March 4, 2010, (public distribution version) and  
   - Exhibit "B" - Exhibit List and Excerpts from NOCRAP'S Letter to EPA, March 4, 2010

Note: A previously undisclosed internal memo from EPA Region-4 (July 3, 2001) acknowledges that releases from Atlanta's West Area CSO Storage Tunnel cannot be quantified but are highly likely and that potential contamination of the water table should be considered.   (See Exhibit "B", page 5, Excerpt D-5).

   ABOUT Underground Injection Control Regulations
Underground Injection Control regulations prohibit activity that might endanger USDWs (underground sources of drinking water, aquifers). See UIC regulation §144.82.
§144.82 WHAT MUST I DO TO PROTECT UNDERGROUND SOURCES OF DRINKING WATER?
If you own or operate any type of Class V well, the regulations below require that you cannot allow movement of fluid into USDWs that might cause endangerment...

   (a) Prohibition of fluid movement. (1) As described in §144.12(a), your injection activity cannot allow the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of the primary drinking water standards under 40 CFR part 141, other health based standards, or may otherwise adversely affect the health of persons. This prohibition applies to your well construction, operation, maintenance, conversion, plugging, closure, or any other injection activity. 

[8] Article: Atlanta Journal-Constitution, 3/10/12

LINK: City wants more time
 Excerpt:  Local environmental activist Robert Schreiber says he believes Atlanta’s sewer pipes are contaminating local aquifers, and plans to use the public comment period to publicize it.

“That’s a direct violation of underground injection regulations,” said Schreiber, who hopes to raise the issue with federal judge Thomas Thrash, who has overseen the federally mandated improvements.
--------------------------------------------------
Follow-up by Robert Schreiber: I neither support nor oppose the request for the time extension in the manner that it is being presented to Judge Thomas W. Thrash.
 
Instead, judge Thrash should first render a legal decision which resolves a conflict that was first presented to the city, its consultants, and its attorneys almost 11 years ago.

The conflict involves a type of permit that protects the aquifer that underlies metro-Atlanta and public health.

The permit is required for the large pipes that are used to send wastewater into hundreds of millions of dollars of tunnel projects that have been built and/or are being designed to achieve compliance with the consent decrees.

All parties to both of Atlanta’s consent decrees and the attorneys who represent them fail to disclose the permit requirement to the public and to Judge Thrash.

However, their position is in conflict with regulations and established law.

The Court of Appeals which is above Judge Thrash has already ruled that permits are required.

If Judge Thrash also rules that the permits are required then the city has legal recourse (a) against the consultants who failed to confirm the applicability of the requirement and (b) against the private attorneys who were hired to provide expert counsel during implementation of the decrees.

It is important to understand the “permit question” has also been presented to Judge William S. Duffey in the DeKalb consent decree and has been presented to others in several cities around the country.

If nothing is done, then the consultants and attorneys who were paid to protect the city’s interests will be long-gone thereby leaving ratepayers saddled with the burden of paying to fix what should have never been allowed to happen.

[7] Summary of NOCRAP's Comment re: DeKalb County (Ga) Consent Decree AND Rockdale County's Support

(A) LINK: GreenLaw (pro publico), 1/19/11
(SEE page 11 of 12) VI. EPA Should Require that the County obtain a Permit for the Use of Shafts to Emplace Fluid into Wastewater Storage Tunnels, 1/19/11

(B) LINK: Rockdale County's (Ga.) Cover Letter to the US Dept. of Justice:
"We respect the request of our neighboring county but also want to ensure their plan for possible construction of a tunnel system within Rockdale does not have a negative impact on our aquifers.", 2/10/11

(C) LINK: Rockdale County's Resolution #R-2011-03
"Now, Be It Resolved that Rockdale County is committed to protecting its aquifers and the health, safety, welfare, and water supply of its citizens who use well-water."

[6] Article: Rockdale Citizen, 12/21/2010

LINK: DeKalb says sewer tunnel put on hold, 12/21/10

Excerpt: "The federal Environmental Protection Agency has stated that shafts used for sewer tunnels do not require permits while [Cary] Bond contends federal court rulings say they do.“ Everybody seems to be singing from different hymnals,” he said.

[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.