Cherry Berry B1-25-SWD (Board decision, August 13, 2010)

Plain-English summary

EPA Region 5 issued a Class II underground injection control permit for the Cherry Berry B1-25 SWD well in Grand Traverse County, Michigan. Grobbel Environmental and Planning Associates, LLC, petitioned for review, raising concerns about groundwater protection, the need for the well, and possible future reclassification. The EAB found the petition timely, supported by prior participation, and based on preserved issues, but it did not identify specific permit conditions for review or explain why the Region's response was erroneous. The Board denied review.

Decision snapshot

• Cited authorities: 42 U.S.C. § 300h; 40 C.F.R. §§ 124.13, 124.19, 144.1, and 147.1151
• Outcome: Review of the UIC permit was denied.
• Key point: A permit petition must identify the challenged conditions specifically and explain why the permitting authority's response warrants review.

Full text (EPA EAB public release)

                    ENVIRONMENTAL APPEALS BOARD
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY          AUGUST 13, 2010
                           WASHINGTON, D.C.

In re: )
)
Cherry Berry B1-25 SWD ) UIC Appeal No. 09-02
)
UIC Permit No. MI-055-2D-0042 )

                              ORDER DENYING REVIEW

      The U.S. Environmental Protection Agency ("EPA"), Region 5 ("Region"), issued a

Class II underground injection control ("UIC") permit for a well in Grand Traverse County,

Michigan, number MI-055-2D-0042 ("Permit"), 1 to O.I.L. Energy Corp. ("OEC") on October 9,

2009. Grobbel Environmental & Planning Associates, LLC ("Grobbel"), filed a timely petition

for review ("Petition") before the Environmental Appeals Board ("Board") on November 4,

2009. For the reasons set forth below, the Board denies Grobbel's request for review of the

Permit.

The standards applicable to petitions for review of UIC permits, among others, are set

forth in 40 C.F.R. part 124.2 The threshold procedural requirements that a petitioner must meet

     Pursuant to Part C of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §§ 300h to
      I

300h-8, the Administrator is required to promulgate regulations for state underground injection control programs to protect underground sources of drinking water. See 42 U.S.C. § 300h. The regulations governing underground injection wells are codified at 40 C.F.R. parts 144 to 148. EPA administers the UIC program in states, including Michigan, that have not obtained authorization to administer their own UIC program. See 40 C.F.R. §§ 144.1(e), 147.1151.

     The preamble to the part 124 rules states that the Board's power of review "should only
      2

be sparingly exercised" and that most permit conditions should be finally determined at the Regional level. Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); accord In re Beeland Group, LLC, UIC Appeal No. 08-02, slip op. at 10, (EAB Oct. 3, 2008), 14 E.A.D. . In re Envtl. Disposal Sys., Inc., 12 E.A.D. 254, 263-64 (EAB 2005); In re Am. Soda, LLP, 9 E.A.D. 280, 286 (EAB 2000); In re Puna Geothermal Venture, 9 E.A.D. 243, 246 (EAB 2000). The Board may grant review of a UIC permit if it is based on a clearly erroneous before obtaining Board review are "timeliness, standing, preservation of issues for review, and

articulation of the challenged permit condition with sufficient specificity." 3 In re Beeland

Group, LLC, UIC Appeal No. 08-02, slip op. at 8 (EAB Oct. 3, 2008), 14 E.A.D. _; 40 C.F.R.

§ 124.19(a). The Board has frequently dismissed petitions that failed to meet these standards.

See, e.g., In re Avon Custom Mixing Servs., Inc., 10 E.A.D. 700, 708 & n.17 (EAB 2002)

(discussing denial of review based on petitioner's failure to meet multiple threshold procedural

requirements); In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 128, 173 (EAB 1999)

(''Knauf1"); see also In re Beeland Group, LLC, UIC Appeal Nos. 08-01 and 08-03, at 3-5, 11

(EAB May 23, 2008) (Order Denying Review).

    In the present case, Grobbel submitted a three-page letter alleging that the Region "failed

to adequately demonstrate its fulfillment of its Safe Drinking Water Act obligations to protect

subsurface drinking water resources," and that the Region failed to assess both OEC's need for

finding of fact or conclusion of law, or if it involves an important matter of policy or exercise of discretion that warrants review. 40 C.F.R. § 124.19(a); see, e.g., Beeland, slip op. at 9-10, 14 E.A.D. The petitioner bears the burden of demonstrating that review is warranted. E.g., Envtl. Disposal Sys., 12 E.A.D. at 264; In re Wash. Aqueduct Water Supply Sys., 11 E.A.D. 565, 573 (EAB 2004); Am. Soda, 9 E.A.D. at 286; Puna Geothermal, 9 E.A.D. at 246.

    3 In addition to filing a petition within thirty days after a final permit decision is issued by

the Region, a petitioner must establish standing to appeal by demonstrating prior involvement in the public review process, either by filing written comments on the draft permit or participating in a public hearing. 40 C.F.R. § 124.19(a). The petition for review must also demonstrate that any issues raised on appeal were raised during the public comment period (including the public hearing) on the draft permit. 40 C.F.R. §§ 124.13, .19(a); accord, Beeland, slip op. at 9, 14 E.A.D. _ ; In re Weber # 4-8,11 E.A.D. 241, 244 (EAB 2003); Am. Soda, 9 E.A.D. at 288. Further, the petition must meet the standard of specificity for review, and contain, at a minimum, "two essential components: (1) clear identification of the conditions in the permit [that are] at issue, and (2) argument that the conditions warrant review." Puna Geothermal, 9 E.A.D. at 274 (quoting In re Beckman Prod. Servs., 5 E.A.D. 10, 18 (EAB 1994)); accord Beeland, slip op. at 9, 14 E.A.D.

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the proposed well, and the potential for OEC to apply for reclassification ofthe Cherry Berry

well from a Class II to a Class I well in the future. Upon review, the Petition satisfies the

threshold procedural requirements of timeliness, standing, and preservation of issues for review.

The Petition was timely filed within thirty days of the Region issuing the final Cherry Berry

permit; Grobbel provided written and oral public comment at the public hearing held on May 19,

2009, in addition to submitting earlier written comments on May 9, 2009; and the issues raised in

the Petition were all previously raised so that the Region had an opportunity to address them

before issuing a final permit.

   However, the Petition does not articulate any specific permit conditions for review, and

thus Grobbel fails to satisfy this final threshold procedural requirement that must be met in order

for the Board to review a UIC permit. In the paragraphs that follow Grobbel's allegation that the

Region "failed to adequately demonstrate its fulfillment of its Safe Drinking Water Act

obligations to protect subsurface drinking water resources," there is not a single reference to the

Permit or any conditions therein. Petition at 1-2. Rather, Grobbel highlights the details of the

geologic and topographic conditions that exist in the area of the proposed well, observing, among

other things, that these conditions result in a high water table, that the residences in the area of

the proposed Cherry Berry site rely solely on groundwater for drinking water, and that the

proposed injection well would be near a potable water welL 4 Id. Grobbel's failure to articulate

   4 Moreover, Grobbel's Petition also refers to concerns not falling within the UIC

permitting program, including using an existing well for disposal as an alternative to construction of a new one, the potential impacts of a surface or near-surface spill, and the potential future reclassification of the well that might allow it to accept liquid industrial waste. Petition at 2-3. The UIC permitting process is narrowly focused, with the SDWA statutory provisions and the UIC regulations establishing the only criteria a Region may use to decide whether to issue a permit. Am. Soda, 9 E.A.D. at 286,289; In re NE Hub Partners, LP, 7 E.A.D. 561,567

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any challenged permit condition with sufficient specificity is fatal to its appeal. See 40 C.F.R.

§ 124.19(a); see also, Beeland, slip op. at 15, 14 E.A.D. _ (denying review where only

"generalized concerns" are set forth to demonstrate clear error or an abuse of discretion); Avon

Custom Mixing, 10 E.A.D. at 708 (denying review when "Avon's arguments as to why the Board

should grant review are general, unsubstantiated, and in part inapposite to the considerations of

the [Clean Water Act]."); In re Phelps Dodge Corp., 10 E.A.D. 460, 495-96 (rejecting challenge

to endangered species analysis for lack of sufficient specificity); In re Westborough and

Westborough Treatment Plant Bd., 10 E.A.D. 297, 311 (EAB 2002) (denying review because

"mere allegations of error are insufficient to support review") (citations omitted); Puna

Geothermal, 9 E.A.D. at 274-75,277 (same); Envotech, 6 E.A.D. at 269-71 (same).

   Because Grobbel does not appear to be represented by legal counsel, the Board endeavors

to construe its Petition liberally. See, e.g., Envtl. Disposal Sys., 12 E.A.D. at 292 n.26; In re

Sutter Power Plant, 8 E.A.D. 680, 687 (EAB 1999); KnaufI, 8 E.A.D. at 127; In re Federated

Oil & Gas ofTraverse City, Michigan, 6 E.A.D. 722, 727 n.5; In re Envotech, LP, 6 E.A.D. 260,

268 & n.13 (EAB 1996). However, "[w]hile the Board does not expect or demand that [pro se]

petitions will necessarily conform to exacting and technical pleading requirements, a petitioner

must nevertheless comply with the minimal pleading standards and articulate some supportable

reason why the [permit issuer] erred in its permit decision in order for the petitioner's concerns to

be meaningfully addressed by the Board." Envtl. Disposal Sys., 12 E.A.D. at 292 n.26 (quoting

In re Beckman Prod. Servs., 5 E.A.D. 10, 19 (EAB 1994)); accord In re Chukchansi Gold Resort

(EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. Us. EPA, 185 F.3d 862 (3d Cir. 1999) ("protection of interests outside of the UIC program [is] beyond [the Board's] authority to review in the context of [a UIC] case").

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and Casino Wastewater Treatment Plant, NPDES Appeal Nos. 08-02 through 08-05, slip op. at 7

(EAB Jan. 14,2009), 14 E.A.D. _ . Here, Grobbel's petition does not "provide sufficient

specificity such that the Board can ascertain what issue is being raised," and thus even construing

the Petition liberally, the Board must deny review. Knauf1,8 E.A.D. at 127 (discussing

procedural requirements for petitions for review and their application to petitioners who are not

represented by counsel).

   Finally, Grobbel's Petition also is deficient because it fails to state why the Region's

response to Grobbel's comments on the draft permit is erroneous. Upon further inspection, it is

evident that the entire Petition consists of the comments, reorganized and reprinted, often

verbatim, that Grobbel previously submitted on the draft Cherry Berry permit. This Board has

frequently stated that "[i]t is not sufficient simply to repeat objections made during the comment

period; instead, a petitioner must demonstrate why the permit issuer's response to those

objections is clearly erroneous or otherwise warrants review." In re Shell Qffshore, Inc., Kulluk

Drilling Unit and Frontier Discoverer Drilling Unit, 13 E.A.D. 357,399 (EAB 2007) (citations

omitted); accord In re Indeck-Elwood, 13 E.A.D. 126, 190 (EAB 2006); In re Prairie State

Generating Co., 13 E.A.D. 1, 10-11 (EAB 2006); In re Peabody W. Coal Co., 12 E.A.D. 22, 33

(EAB 2005); In re Teck Cominco Ala. Inc., 11 E.A.D. 457, 472-73 (EAB 2004); Westborough,

10 E.A.D. at 305; In re Town ofAshland Wastewater Treatment Facility, 9 E.A.D. 661, 668

(EAB 2001); In re KnaufFiber Glass, GmbH, 9 E.A.D. 1,5 (EAB 2000) ("KnaufI!");

Federated Oil & Gas, 6 E.A.D. at 726-27.

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For these reasons, the Petition does not meet the requisite standards for Board review, and

the Petition is therefore denied.

     So ordered. 5

Dated: ENVIRONMENTAL APPEALS BOARD

   5 The three-member panel deciding this matter is comprised of Environmental Appeals

Judges Edward E. Reich, Kathie A. Stein, and Anna L. Wolgast. See 40 C.F.R. § 1.25(e)(1).

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CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Order Denying Review in the matter of Cherry
Berry B1-25 SWD, UIC Appeal No. 09-02, were sent to the following persons in the manner indicated:

By Facsimile and First Class U.S. Mail:

Christopher P. Grobbel
Grobbel Environmental & Planning Associates LLC
800 Cottageview Drive, Suite 211 B
Traverse City, MI 49684
Telephone: (231) 933-8400
Facsimile: (231) 944-1709

By First Class U.S. Mail:

O.I.L. Energy Corporation
954 Business Park Drive - Suite #5
Traverse City, MI 49686

By Facsimile and EPA Pouch Mail:

Ann L. Coyle
Associate Regional Counsel
U.S. Environmental Protection Agency, Region 5
77 West Jackson Boulevard (C-14J)
Chicago, IL 60604
Telephone: (312) 886-2248
Facsimile: (312) 692-2117

Tinka Hyde
Acting Director, Water Division
U.S. Environmental Protection Agency, Region 5
77 West Jackson Boulevard (W-15J)
Chicago, IL 60604
Telephone: (312) 886-9296
Facsimile: (312) 697-2562

Date:
AUG 1 3 2010
[signature]
Secretary