since the Region states in its June 4, 1987 brief that it now "takes no position on the application of Section 144.53(b) within the context of this case." Region IX Brief, June 4, 1987, p. 3. III. CONCLUSION For the reasons stated above, I hereby grant Southwest's request to withdraw its applications for UIC permits for Roach-Baker Wells #1 and #2. So ordered. IN THE MATTER OF MARSHALL OGLESBY UIC Appeal No. 87-6 ORDER DENYING REVIEW Decided September 8, 1988 Before the Administrator, U.S. Environmental Protection Agency Opinion by Lee M. Thomas, Administrator: Pursuant to 40 CFR § 124.19, Marshall Oglesby, Applicant, filed a petition requesting that I review a determination made by the Regional Administrator, Region IV, on May 8, 1987, to deny five Underground Injection Control (UIC) permit applications. The applications are for salt water disposal wells (SWDWs) to inject salt water generated as a by-product of oil production operations. The SWDWs are located in Wayne and Clarke Counties, Mississippi. Petitions for review of UIC permits are not usually granted unless the permit determination is clearly erroneous or involves an exercise of discretion or policy that is important and therefore should be reviewed as a discretionary matter. 40 CFR § 124.19(a) (1) and (2). The preamble to the regulations containing this standard states that "this power of review should only be sparingly exercised [and] most permit conditions should be finally determined at the Regional level ***." 45 Fed. Reg. 33,412 (May 19, 1980). The burden of demonstrating that the permit decision should be reviewed is therefore on those requesting review. Oglesby has not met that burden. 1. BACKGROUND Oglesby's operation of the instant SWDWs predates the Agency's assumption of primacy over the UIC program in Mississippi. Upon the Agency's assumption of primacy, the SWDWs became “rule au thorized" and continued operation. On February 28, 1986, Region IV directed Oglesby to submit permit applications for the SWDWs.2 The Region issued its Notice of Intent to Deny on January 23, 1987, and after an extended public comment period, the Region issued its Notice of Denial of the permits on May 8, 1987. In its Statement of Basis for the Denial, the Region concluded that Oglesby is injecting directly into the Lower Wilcox Aquifer, which it also concluded was an underground source of drinking water (USDW); therefore, according to the Region, Oglesby is not entitled to a permit because his injections would violate the prohibition against allowing movement of contaminants into a USDW.3 On June 8, 1987, Oglesby filed his petition for review. II. DISCUSSION Oglesby argues that he has not had an opportunity to participate in the Region's permit decision-making process. Oglesby also argues that the Region erred in not explaining the basis for its Denial other than by reference to the Statement of Basis issued with the Region's Notice of Intent to Deny. Further, Oglesby argues that denial of his permit applications would cause him to close down his operations. Finally, Oglesby argues that the Region erred in its characterization of the Lower Wilcox Aquifer as a USDW. None of these allegations merits review. The Region complied with all the rules of procedure governing this proceeding.4 Further, the Region twice extended the public comment period and apprised Oglesby of his right to submit comments at appropriate times throughout the decision-making process. Oglesby chose to comment only as to the economic effect of the proposed denial of the permits. I also find that the Region did not err by incorporating its Statement of Basis, issued January 23, 1987, by reference in its Notice of Denial, dated May 8, 1987. The Statement of Basis sets forth the Region's reasons supporting its proposed denial of the permits. 1 See 40 CFR Part 144, Subpart C ("Authorization of Underground Injection by Rule"). 2 See 40 CFR § 144.25 (requiring a permit of a well authorized by rule). 3 See 40 CFR § 144.12(a) (prohibiting movement of fluid into USDWS and placing the burden of showing compliance on the owner or operator). 4 As required by the regulations, the Region stated in its Notice of Intent to Deny that Oglesby could submit comments during the public comment period. See 40 CFR § 124.10 (public notice of permit actions and public comment period); see also Statement of Basis, dated January 23, 1987, which provided the Region's rationale underlying the Notice of Intent and stated the availability of a public hearing. See 40 CFR § 124.7 (statement of basis); 40 CFR § 124.11 (requests for public hearing). Oglesby's sole comment in response to the proposed denial did not address the reasons contained in the Statement of Basis. Therefore, no further explanation for the denial of the permits was required. See 40 CFR § 124.17 (response to comments shall respond to all significant comments on the draft permit). Oglesby's comment was that the permit denials would have an adverse economic effect on his oil production operations. While such considerations are arguably relevant to the development of UIC regulations, 5 here the Region merely applied the existing regulations and concluded that denial of the permits was essential to assure that the USDW would not be endangered by injection. Further, this allegation is not supported by evidence in the administrative record. Therefore, Oglesby has not persuaded me that any adverse economic impact should or could outweigh the Region's unrebutted conclusion, contained in the Statement of Basis, that Oglesby has been injecting directly into a USDW, contrary to the prohibition in 40 CFR § 124.12(a) against allowing the movement of contaminants into USDWs. Finally, since his comment on the proposed denial of the permits was restricted to the alleged economic impact of the denial on his oil production operations, Oglesby obviously did not offer or present any rebuttal to the Region's conclusion that the Lower Wilcox Aquifer is a USDW. Therefore, this issue is not amenable to review. See 40 CFR § 124.19(a) (the petition shall include a demonstration that any issues being raised were raised during the public comment period).6 Accordingly, the petition for review is denied. So ordered. 5 See 42 U.S.C. §300h(b)(2) (regulations may not interfere with or impede underground injection of brine unless such requirements are essential to assure that USDWs are not endangered). 6 Because Oglesby did not avail himself of the opportunity to challenge the Region's characterization of the Lower Wilcox Aquifer as a USDW during the public comment period, and because the rules governing this proceeding do not provide for a hearing or the presentation of additional evidence on a petition for review, Oglesby's request for a hearing is denied. IN THE MATTER OF CITY OF FAYETTEVILLE, NPDES Appeal No. 88–1 ORDER DENYING RECONSIDERATION Decided September 12, 1988 Before the Administrator, U.S. Environmental Protection Agency Opinion by Lee M. Thomas, Administrator: On July 29, 1988, the City of Fayetteville, Arkansas, filed a motion asking me to reconsider the Chief Judicial Officer's (CJO's) Order on Petitions for Review, dated June 28, 1988, in which the CJO issued a remand directing the Administrative Law Judge (ALJ) to determine, inter alia, whether the Fayetteville discharge will result in a detectable violation of the applicable EPA-approved Oklahoma water quality standards.1 On August 9, 1988, the City joined with the State of Arkansas, the Arkansas Department of Pollution Control, and the Beaver Water District (collectively the "Arkansas parties") in filing a separate motion and brief, also asking me to reconsider the CJO's June 28, 1988 Order.2 Neither the City, separately, nor the Arkansas parties, jointly, have demonstrated any need to reconsider the CJO's Order at this time.3 The case is now pending before 1 The City stated in the motion that it was adopting a Joint Motion for Reconsideration and Brief of the Beaver Water District, the State of Arkansas, and the Arkansas Department of Pollution Control and Ecology. No such documents had been filed by anyone at the time the City filed its motion. 2 The August 9, 1988 motion and brief are presumably the documents adopted by the City of Fayetteville in its July 29, 1988 motion. See note 1 supra. 3 No allegations respecting the necessity issue are made by the City in its individual motion. The Arkansas parties devote only one sentence to the issue in their 100-plus page joint submission. That sentence states: "Remand is unnecessary and a waste of judicial and administra- * * Continued |