[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.