Avery Lake Property Owners Association

Plain-English summary

Avery Lake Property Owners Association challenged a Class II underground injection control permit issued to Trendwell Oil Corporation for disposing of salt water from oil production wells in Montmorency County, Michigan. The association sought a hearing, a moratorium on nearby well drilling, and review of all UIC permits in the area. The Environmental Appeals Board held that the petition did not identify specific permit conditions or show that the issues had been properly raised during the public-comment period. It also found no other basis for reviewing the permit and denied the petition.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.2, 124.12, 124.13, 124.19, 144.40, 144.51, and 147.1150; 42 U.S.C. §§ 300f and 300h-1.
• Outcome: Review of the Trendwell UIC permit was denied.
• Key point: A permit appeal must identify specific permit conditions and preserve the issues through the public-comment process before the Board will review them.

Full text (EPA EAB public release)

AVERY LAKE PROPERTY OWNERS ASSOCIATION 251
IN THE MATTER OF AVERY LAKE PROPERTY
OWNERS ASSOCIATION
UIC Appeal No. 92-1
ORDER DENYING REVIEW
Decided September 15, 1992
Syllabus

Petitioner, a property owners association, seeks review of an underground injec-
tion control (UIC) permit issued for disposal of salt water from production wells
owned or operated by an oil company. Petitioner seeks a hearing on various issues
and review by the EPA regional office of all UIC permits in its vicinity.

Held: The petition for review is procedurally defective and does not otherwise
raise any issues warranting review of the UIC permit determination. Accordingly,
the petition for review is denied.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge McCallum:

Petitioner, Avery Lake Property Owners Association, seeks re-
view of a Class II underground injection control (UIC) permit issued
by Region V of the U.S. Environmental Protection Agency pursuant
to Part C of the Safe Drinking Water Act (SDWA), 42 U.S.C. §300f
et seq., as amended. The permit was issued to Trendwell Oil Corpora-
tion for disposal of salt water from oil production wells in
Montmorency County, Michigan. Petitioner is an association of prop-
erty owners seeking review of the permit determination. The Environ-
mental Appeals Board has jurisdiction under §§ 124.2 and 124.19
of the Code of Federal Regulations (CFR). 57 Fed. Reg. 5320, et
seq. (Feb. 13, 1992).

A.

In March 1992, Region V gave public notice of a draft permit
prepared for the Trendwell Oil Corporation, the permit applicant.
In response to the notice, Petitioner submitted a brief, one-page letter

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252 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

of comments on April 9, 1992, and requested a public hearing. As
a general matter, the comment letter did not focus on any specific
permit conditions in the draft permit; instead, it expressed concern
over increased well activity in general and concern over the risks
that this type of activity might pose to water resources in the area.
The Region responded to Petitioner by letter dated April 24, 1992,
and assured Petitioner that the Trendwell permit was drafted in
accordance with applicable requirements intended to address Petition-
er’s concerns. The Region issued the permit a few days later, on
May 1, 1992. Petitioner then filed a timely, one-page petition for
review with the Environmental Appeals Board on May 11, 1992.
The petition reiterates the earlier request for a hearing and also
seeks a moratorium on all UIC well drilling in the vicinity of the
local aquifer. Petitioner designated several issues it wished to have
reviewed.!

B.

As a threshold matter, the Region did not commit error or abuse
its discretion by not granting Petitioner’s request for an administra-
tive hearing. Under the regulations, the Region’s decision to hold
a public hearing is largely discretionary. In re Spokane Regional
Waste-to-Energy Project, PSD Appeal No. 89-4, at 2 (Jan. 2, 1990);
cf. Pennzoil Exploration and Production Company, UIC Appeal No.
88-1, at 2 (Nov. 16, 1990). The applicable regulations direct the
permit issuer to hold a public hearing only when the permit issuer
finds that there is a “significant degree of public interest in a draft
permit.” 40 CFR §124.12(a). There was no such finding in this in-
stance, and Petitioner has not shown or alleged in its petition that
there was a significant degree of public interest warranting such
a hearing.”

1The grounds for review as set forth in the petition are as follows: First, Petitioner
maintains that geological information adduced in a separate permit proceeding and
presented in “studies by several university geologists and the U.S. Government” indi-
cates that the information upon which the instant permit is based is out of date
and demonstrates that the impermeability of the rock formations in northern Michigan
are subject to question. Second, it maintains that the Agency is unaware of various
old wells which may pose a threat to the local aquifer. Third, it maintains that
the number of wells and applications for wells in its area has created a “threat
of errors caused by haste and sloppy work” with respect to the monitoring and over-
sight of well operations. Fourth, it maintains that the Michigan Department of Natural
Resources is incapable of properly monitoring and enforcing its responsibilities for
the wells in its area. Finally, it challenges “EPA’s practice of depending on data
supplied by the applicants for the issuance and monitoring of UIC sites, resulting
in de facto self-regulation on the part of the oil and gas industry.”

2The petition for review does not disclose any facts about the membership or
size of Petitioner’s organization.

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AVERY LAKE PROPERTY OWNERS ASSOCIATION 253
C.

Ordinarily, the scope of review of a UIC permit is confined to
specific conditions in the permit, and those permit conditions will
not be reviewed unless they are based on a clearly erroneous finding
of fact or conclusion of law, or involve an important matter of policy
or exercise of discretion that warrants review.2 See In the Matter
of Renkiewicz SWD-18, UIC Appeal No. 91-4, p. 2 (June 24, 1992);
40 CFR §124.19 (persons may petition the Board to review “any
condition” of the permit decision); 45 Fed. Reg. 33,412 (May 19,
1980). The burden of demonstrating that review is warranted is on
the petitioner. Renkiewicz, supra, at 2; see 40 CFR § 124.19.

To acquire standing to seek review of any condition in a permit
determination, a petitioner must have either commented on the draft
permit or participated in a public hearing on the permit, if one
was held. Id. In addition, the petition must include a statement
of reasons supporting 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 the[] regula-
tions.” Id. If a petitioner does not meet these requirements, the peti-
tion will not be considered unless it concerns “changes from the
draft to the final permit decision.” Id. (Since there were no changes
to the Trendwell permit, Petitioner is held to the “comment” stand-
ard.)

Under the regulations, the duty to comment on the draft permit
requires persons who believe any condition of a draft permit is inap-
propriate to raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting their position by the close
of the public comment period. 40 CFR § 124.13. Commenters are
required to make supporting materials available to the permit issuer
upon request. Id. The collective purpose behind the various standing
requirements in the regulations is explained in In re Union County
Resource Recovery, PSD Appeal No. 90-1 (Nov. 28, 1990):

[Tlhe purposes of these regulations is to ensure that
all matters are first raised with the permit issuer.
In this manner, the permit issuer can make timely
and appropriate adjustments to the permit deter-
mination, or, if no adjustments are made, the permit

3With respect to permit appeals under Part 124, Agency policy is that most
permits should be finally adjudicated at the Regional level. 45 Fed. Reg. 33,412.
While the Board has broad power to review decisions in UIC permit cases, the Agency
intended this power to be exercised “only sparingly.” Id.

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254 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
issuer can include an explanation of why none are
necessary. As explained in the preamble to the regu-
lations, “[t]he later stages [of the permit proceedings]
are appellate in nature and new issues should not
be raised on appeal.” 45 Fed. Reg. 33411 (discussing
§ 124.13).

Id. at 2-3.

In the opinion of the Board, the Petitioner has not met its burden
of showing that the Region’s permit determination should be re-
viewed.

D.

First, except in one or two minor instances, the issues and re-
quests in the petition are unrelated to conditions of the Trendwell
permit, and thus they fall outside of the scope of matters ordinarily
considered on review of a permit determination. Petitioner’s requests
for review of all UIC permits in the area, and for a moratorium
on all permit applications and UIC operations, are two examples
of such requests.* These matters go well beyond the individual permit
conditions at issue in this proceeding. Therefore, they are not eligible
for review.

Second, Petitioner has not demonstrated, nor even attempted
to demonstrate, that any of the issues it is now seeking to raise
on appeal were first raised in comments on the draft permit. See
40 CFR § 124.19. This procedural shortcoming, by itself, is grounds
for dismissal of the petition. As previously indicated, this demonstra-
tion is critical to the integrity of the permitting process, for without
it there can be no assurance that the permit issuer will have had
an opportunity to address matters being raised on appeal.

Third, even if we ignore the previous deficiency, there are only
a couple of instances where it can be fairly said that the Petitioner’s
comments gave the permit issuer an opportunity to preview a matter
before the Petitioner had raised it on appeal. Even so, in those in-
stances, we are not persuaded that they in anyway compel review
of the Region’s permit determination. Our reasons follow.

The first such instance centers on Petitioner’s expressions of con-
cern about the adequacy of the geological data underlying the Re-
gion’s permit determination. Petitioner expresses this concern both

4See note 1, supra.
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AVERY LAKE PROPERTY OWNERS ASSOCIATION 255
in its comments on the draft permit and in the petition for review.
In its comments, Petitioner asserts that it was aware of “opinions
from good authorities which show that the aquifer will be in definite
danger of contamination through natural joints, fissures, cracks and
cavities in the rock.” Petitioner did not, however, provide the identity
of these sources, or otherwise furnish the underlying geological evi-
dence attributable to them. In its petition for review, Petitioner ex-
presses similar, general concerns about the geological data but never
supplies the information necessary to actually identify the sources,
despite having received a specific request therefor from the Region.5
Petitioner merely refers to the sources as the “U.S. Government,”
“several university geologists,” and “data brought forth in the public
hearing on Draft Permit #MI-119-2D-0029, a nearby site * * *.”6

These expressions of concern fail to establish a basis for review-
ing the permit determination. As noted previously, the Region asked
the Petitioner to be more specific in referring to the basis for its
concern but the Petitioner did not comply. The Region’s request was
reasonable and clearly authorized by the regulations. 40 CFR
§ 124.13. Without greater specificity in the petition, the Region prop-
erly relied on its own information and expertise in evaluating the
permit application. Petitioner’s apparent refusal or unwillingness to
provide more specific information leaves us no alternative but to
conclude that its concerns are unsubstantiated. Indeed, a petitioner
should not be heard to complain when its own disregard of the Re-
gion’s request to supply information effectively prevents the Region
and this tribunal from performing a further assessment of its conten-
tions. Accordingly, the Board must dismiss this issue from consider-
ation for review.

There is arguably one other matter that Petitioner has raised
in its comments and therefore has preserved for consideration in
a petition for review. It concerns an alleged disregard of the environ-
ment by well operators and an alleged inability of Michigan authori-

5The Region requested that Petitioner provide it with the referenced geological
information. As of the date of the Region’s response to the petition, Petitioner had
not submitted the information.

6This reference to a specific UIC permit proceeding does not satisfy the specificity
requirement. It is simply not practicable for the Region to suspend its normal activities
to conduct a search of files in another proceeding for information that may or may
not be the same information that prompted the Petitioner to make its assertions.
Petitioner is in the best position to identify the documents that it believes support
its position. The process for formulating permits is set forth in the Agency's regulations
and, as stated in the body of the text above, places the burden on the Petitioner
to persuade the reviewing tribunal that the Region’s permit determination warrants
review. Petitioner has not met that burden in this instance.

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256 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

ties to exercise adequate oversight over the well operators. In regard
to the well operators, Petitioner asserts in its comments that “too
many of the [well] operators are here for the ‘quick’ buck and will
leave us with a ruined forest, criss-crossed with roadways, eroded
hillsides, contaminated waters and polluted streams.” According to
Petitioner, Michigan authorities are unable to regulate these opera-
tors properly. Petitioner states that it is therefore unable to “see
why the Michigan DNR continues to process permits for such ques-
tionable [inadequately bonded and regulated] ventures.”7

There are two reasons why these expressions of concern must

be rejected as grounds for reviewing the Region’s permit determina-
tion. First, as they relate to alleged irresponsible conduct of other
well operators, they are simply irrelevant to the well operator whose
permit is under consideration in this proceeding. There has been
no allegation or proof of irresponsibility respecting Trendwell Oil
Corporation. Moreover, the well operator’s conduct will be governed
by current requirements. For example, the instant permit incor-
porates conditions for operating standards as required by 40 CFR
§ 144.51(e), and the permittee is obligated to comply with these condi-
tions or risk imposition of sanctions. See, e.g., 40 CFR § 144.40 (failure
to comply with permit conditions is grounds for termination of per-
mit). Second, Petitioner’s concerns about the oversight capacity of
the State suggest that it is unaware that the UIC program for Michi-
gan is administered by EPA, not the State of Michigan. 40 CFR
§ 147.1150. The UIC program consists of the requirements set forth
in 40 CFR Parts 124, 144, 146, 148, and relevant portions of
§ 147.1150 of Part 147, and has been in effect since June 25, 1984,
when EPA assumed responsibility for the program for Michigan.’
In view of EPA’s role as the administrator of the UIC program in
the State, the State’s alleged inability to monitor and enforce what-

7 Similarly, in its petition, Petitioner expresses concern that the number of appli-
cants for wells in the vicinity has created a “threat of errors caused by haste and
sloppy work by the crews and by those charged with monitoring and overseeing the
operations.” In regard to the oversight capacity of State authorities, Petitioner asserts
that the Michigan Department of Natural Resources is incapable of properly monitoring
and enforcing its responsibilities in connection with wells in Petitioner’s area.

8 Section 1422(c) of the SDWA, 42 U.S.C. §300h-1(c), requires the Agency to admin-
ister the UIC program in States which do not have approved UIC programs. Michigan
has not acquired primacy over the UIC program.

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AVERY LAKE PROPERTY OWNERS ASSOCIATION 257
ever separate responsibilities it retains under State law is clearly
outside the scope of this UIC permit proceeding.

For the reasons stated above, the petition for review is denied.
So ordered.
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