Renkiewicz SWD-18

Plain-English summary

John H. French Jr. challenged a UIC permit issued to Muskegon Development Company for a disposal well near his property in Otsego County, Michigan. He raised concerns about information on other wells, pressure precautions, endangered species, and financial responsibility. The Environmental Appeals Board remanded the question of whether other wells existed within the area of review and directed the Region to investigate the Endangered Species Act issues. It denied review of the remaining challenges because they were not preserved or did not meet the standard for EAB review.

Decision snapshot

• Cited authorities: 42 U.S.C. § 300f; 16 U.S.C. § 1531; 40 C.F.R. §§ 124.10, 124.13, 124.16(a)(1), 124.19, 144.4, 144.39, 144.52(a)(7), and 144.54(a)
• Outcome: Two issues were remanded, and review of the remaining issues was denied.
• Key point: Permit appeals may be remanded when the administrative record does not resolve whether required permit information or species protections were addressed.

Full text (EPA EAB public release)

RENKIEWICZ SWD-18 61

IN THE MATTER OF RENKIEWICZ SWD-18
UIC Appeal No. 91-4

ORDER DENYING REVIEW IN PART AND REMANDING IN
PART

Decided June 24, 1992

Syllabus

Petitioner John H. French, Jr., has filed an appeal of an underground injection
control (UIC) permit issued by U.S.E.P.A. Region V to Muskegon Development Com-
pany for a disposal well on property abutting that of Mr. French. Petitioner contends
that the permit is inadequate in respect to the adequacy of the information in the
permit application, precautions for protection of the confining zone, protection of threat-
ened or endangered species, and demonstration of financial responsibility.

Held: The issues of the adequacy of the permit application as it relates to the
location of other wells and of the applicability and effect of the Endangered Species
Act are remanded to Region V for further investigation and appropriate action. Review
of two of the remaining issues is denied because they were not properly preserved
for review. Review of the final issue is denied for failure to demonstrate that review
is appropriate under the applicable appeal provision, 40 CFR § 124.19.

Before Environmental Appeals Judges Ronald L.
McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion of the Board by Judge Reich:

I. BACKGROUND

This case involves an appeal of a permit issued by U.S. Environ-
mental Protection Agency Region V to the Muskegon Development
Company of Mt. Pleasant, Michigan. The permit authorizes the oper-
ation of a newly drilled injection well located in Otsego County,
Michigan. The purpose of the well is for disposal of salt water from
production wells owned and operated by the Permittee. The well,
named Renkiewicz SWD-18, is classified as a Class II well} under

1Class II wells are defined as:
(b) * * * Wells which inject fluids:

Continued

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62 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the regulations implementing the Safe Drinking Water Act, as
amended (42 U.S.C. 300f et seq.).?

The Petitioner is John H. French, Jr., the owner of property
abutting the well site. The Petition for Review sets forth five bases
on which review is being sought, as discussed below.

II. DISCUSSION

Initially, it should be noted that under the rules that govern
this proceeding, a UIC permit ordinarily will not be reviewed unless
it is based on a clearly erroneous finding of fact or conclusion of
law, or involves an important matter of policy or exercise of discretion
that warrants review. See 40 CFR § 124.19; 45 Fed. Reg. 33412 (May
19, 1980). The preamble to § 124.19 states that “this power of review
should be only sparingly exercised,” and that “most permit conditions
should be finally determined at the Regional level * * *.” Id. The
burden of demonstrating that review is warranted is on the peti-
tioner.

The Petition sets forth the following five bases for seeking review:

(a) Attachment B of the Permit Application does not contain
sufficient information for issuance of a UIC permit;

(b) The UIC permit does not contain adequate precautions
to prevent fracturing of the confining zone;

(c) Attachment G of the Permit Application does not contain
sufficient information for issuance of a UIC permit;

(d) U.S.E.P.A. did not establish permit conditions as required
for protection of endangered or threatened species under
the Endangered Species Act; and

(1) Which are brought to the surface in connection with natural
gas storage operations, or conventional oil or natural gas produc-
tion and may be commingled with waste waters from gas plants
which are an integral part of production operations, unless those
waters are classified as a hazardous waste at the time of injection.

(2) For enhanced recovery of oil or natural gas; and

(3) For storage of hydrocarbons which are liquid at standard
temperature and pressure.

40 CFR § 144.6(b).

2Regulations implementing the underground injection control portion of the Safe
Drinking Water Act relevant to this appeal are found at 40 CFR Parts 144, 146
and 147.

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RENKIEWICZ SWD—18 63

(e) Muskegon Development Company has not adequately dem-
onstrated its financial responsibility as required under 40
CFR § 144.52(a)(7).

Region V responded to the Petition at the request of the Chief
Judicial Officer. In its Response, the Region contends that Petitioner
cannot appeal these issues because they have not been preserved
for review. The Region also addresses the merits of the five issues
for consideration should the issues be found to have been preserved
for review.

The procedures for the issuance of a UIC permit are found in
40 CFR Part 124. Two important provisions of Part 124 relate to
the obligation of persons to raise their objections to a permit prior
to an appeal. 40 CFR § 124.13 provides in part:

All persons, including applicants, who believe
any condition of a draft permit is inappropriate * * *
must raise all reasonably ascertainable issues and
submit all reasonably available arguments support-
ing their position by the close of the public comment
period (including any public hearing) under § 124.10.

In addition, 40 CFR § 124.19 provides in part:

any person who filed comments on that draft permit
or participated in the public hearing may petition
the Administrator to review any condition of the per-
mit decision. Any person who failed to file comments
or failed to participate in the public hearing on the
draft permit may petition for administrative review
only to the extent of the changes from the draft
to the final permit decision * * . The petition shall
include a statement of the reasons supporting that
review, including a demonstration that any issues
being raised were raised during the public comment
period (including any public hearing) to the extent
required by these regulations * * .

3 At that time, the Agency’s Judicial Officers provided support to the Administrator
in his review of permit appeals. Subsequently, effective on March 1, 1992, the position
of Judicial Officer was abolished and all cases pending before the Administrator,
including this case, were transferred to the Environmental Appeals Board. 57 Fed.
Reg. 5321 (Feb. 13, 1992).

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64 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Adherence to these requirements is necessary to ensure that the
Region has an opportunity to address potential problems with the
draft permit before the permit becomes final.4 Therefore, a threshold
analysis is required to determine whether Petitioner complied with
§§ 124.13 and 124.19 and thus preserved these issues for review.
As noted, Region V contends that he did not.

Petitioner provided comments on the draft permit to Region V
by letter of July 23, 1991. We have examined that letter to see
whether it raises the issues subsequently raised on appeal. Since
the comments in the letter are substantially less specific than the
issues framed for appeal, it is only with a very generous reading
that we find the necessary correspondence for any of the issues.

Even with this liberal reading, two of the issues raised on appeal
clearly were not raised in Petitioner’s earlier comments. These are
the issues relating to the adequacy of Attachment G and the dem-
onstration of financial responsibility. No reason has been given to
conclude that these issues were not reasonably ascertainable at the
time of the public comment period. There were no changes from
the draft to the final permit that bear on these issues. Therefore,
these two issues have not been preserved for review, and review
is accordingly denied.

Adequacy of Attachment B: We now turn to the remaining three
issues, which were preserved for review. The first of these issues
relates to the adequacy of Attachment B of the Permit Application.
Attachment B states that “[t]here are no water wells within the
area of review. There are no wells or dry holes within the area
of review that have penetrated the intended disposal zone.” Attach-
ment A defines the area of review as the area within ¼ mile of
the proposed Renkiewicz SWD-18.

The Petitioner, both in his comments on the draft permit and
in his petition, indicates that he has two water wells on his property,
which is within the area of review. The Petition also states that
he believes that Muskegon Development Company has five producing
wells within the area of review. In Region V’s Response to the Peti-
tion, the Region indicates that it has no information in the Adminis-
trative Record to decide whether this deficiency exists. The Region
indicates that it would be concerned if the representations in the

4See In re Shell Oil Company, RCRA Appeal No. 88-48, at 3 (March 12, 1990)
(“These rules help to ensure that the Region has an opportunity to address any
concerns raised by the permit, thereby promoting the Agency’s longstanding policy
that most permit issues be resolved at the Regional level.”).

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RENKIEWICZ SWD-18 65

Permit Application were not accurate, and is investigating this issue
through its permit review authority under 40 CFR § 144.39, relating
to modification or revocation or reissuance of permits. The Region
thus suggests that if this issue is found to be preserved for review,
it be remanded to the Region for further investigation. Accordingly,
this issue is remanded to Region V to determine whether there are
any other wells within the area of review and to make any modifica-
tions to the permit necessitated by the results of this investigation.

Protection of Endangered or Threatened Species: 40 CFR § 144.4
lists Federal laws that may apply to the issuance of permits under
Part 124. Included in this list is the Endangered Species Act, 16
U.S.C. § 1531 et seq. This provision requires the Regional Adminis-
trator to ensure “that any action authorized by EPA is not likely
to jeopardize the continued existence of any endangered or threatened
species or adversely affect its critical habitat.” 40 CFR § 144.4(c).

Petitioner asserts that Region V ignored the applicability of this
act, notwithstanding that the area is a nesting area for the American
Bald Eagle (a threatened species) and part of a limited breeding
area for the Kirkland Warbler (an endangered species). Petitioner
in particular expresses concern about the effects of the noise and
air emissions from the engine(s) used to drive the injection pump.

The Region, in its Response, concedes that if threatened or en-
dangered specifies are impacted, the Region must take that into con-
sideration. The Region indicates, however, that it does not have
enough information to determine whether the Endangered Species
Act applies and, if so, what impact the well would have on endan-
gered or threatened species. It suggests that if this issue is found
to be preserved for review, it be remanded to the Region for further
investigation. Therefore, this issue is remanded to the Region for
further review and appropriate action.

Precautions to Prevent Fracturing of the Confining Zone: Finally,
the Petitioner expresses a concern that the calculated fracture pres-
sure of the confining zone is 650 PSI (see Permit Application Attach-
ment H) while the specification sheet for the pump to be used in
the well indicates a discharge pressure of 970 PSI (see Permit Appli-
cation Appendix, National J-60 Triplex pump specification sheet).
Petitioner thus is concerned that with a discharge pressure greater
than the calculated fracture pressure, there will be fracturing of
the confining zone.

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66 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Region V, in its Response to the Petition, notes that the permit,
on page A-1 of 1, limits injection pressure to a maximum of 625
PSI. The footnote to this limitation makes clear that it is being
established to prevent confining-formation fracturing. The permit also
includes a provision expressly prohibiting “injection at a pressure
which initiates fractures in the confining zone * * *” Section
II(B)(1)(b); Permit at 11. Region V further states that it is up to
the permittee to determine how to achieve compliance; EPA will
not normally dictate the precise method of compliance with a limita-
tion on injection pressure.

Petitioner further challenges the permit because it does not
“specify requirements concerning the proper use, maintenance and
installation of monitoring equipment” as allegedly required by 40
CFR § 144.54(a). However, the Petition does not accurately quote
this section. The section actually requires specification of require-
ments “concerning the proper use, maintenance and installation,
when appropriate, of monitoring equipment” (emphasis added). This
provision allows broad discretion in determining whether any such
requirements should be specified. The Region has included a provision
relating to the monitoring of wellhead injection pressure which speci-
fies a minimum monitoring frequency of weekly and a minimum
reporting frequency of monthly. Section II(B)(2)(d); Permit at 12. Peti-
tioner has not shown why this provision is inadequate or inconsistent
with § 144.54(a).

We believe the limitation on injection pressure and the provision
for monitoring such pressure fully comply with the requirements of
the UIC regulations; Petitioner has failed to meet his burden under
40 CFR § 124.19, and thus review is denied.

III. CONCLUSION

The issues of the adequacy of Attachment G of the Permit Appli-
cation and demonstration of financial responsibility have not been
preserved for review, and review is accordingly denied. Review of
the issue of the adequacy of precautions against fracturing the confin-
ing zone is denied for failure to demonstrate that review is warranted
under 40 CFR § 124.19. The issues relating to the adequacy of Attach-
ment B to the Permit Application (existence of other wells) and the
applicability and effect of the Endangered Species Act are hereby
remanded to the Region for further proceedings consistent with this

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RENKIEWICZ SWD—18 67

order.5 The Region should give public notice of this remand under
40 CFR § 124.10. Appeal of the remand decision will not be required
to exhaust administrative remedies under § 124.19(f)(1)(iii) of the
rules. In accordance with 40 CFR § 124.16(a)(1), since the contested
permit is for a new injection well, the permit will remain stayed
pending final agency action on remand.

So ordered.

5 Although § 124.19 of the rules contemplates that additional briefing will be sub-
mitted upon the grant of a Petition for Review, a direct remand without additional
submissions is appropriate where, as here, it does not appear that further briefs
on appeal would shed light on the issues to be addressed on remand. See, e.g., In
re Chemical Waste Management, Inc., RCRA Appeal No. 87-12, at 5 (May 27, 1988).

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