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IN THE MATTER OF BETHLEHEM STEEL
CORPORATION

UIC Appeal Nos. 85-8 & 86-13

ORDER DENYING REVIEW

Decided January 19, 1989

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Lee M. Thomas, Administrator:

Before me are two petitions filed by Bethlehem Steel Corporation (BSC) under 40 CFR § 124.19 requesting review of three Underground Injection Control (UIC) permits issued by Region V under the Safe Drinking Water Act (SDWA), 42 U.S.C.A. §§ 300f to 300j-11. Two of the permits, Nos. IN-127-1W-003 and -004, were issued together on September 30, 1985. The third, No. IN-127-1W-001, was issued September 30, 1986. All three authorize continued operation of Class I hazardous waste injection wells for disposal of wastewater at BSC's Burns Harbor Plant in Porter County, Indiana.1

BSC requested review of the first two permits by petition dated November 15, 1985 (UIC Appeal No. 85-8), and of the third by petition dated November 10, 1986 (UIC Appeal No. 86-13). As requested by EPA's Chief Judicial Officer, Region V responded to the petitions. By order dated March 26, 1987, BSC was granted leave to file a reply to EPA's response in UIC Appeal No. 86-13, and it did so on May 15, 1987. Due to the similarity of the issues raised by BSC's petitions, I have consolidated these appeals for unified disposition.

1Class I wells are defined as including those used "to inject hazardous waste beneath the lowermost formation containing, within one-quarter mile of the well bore, an underground source of drinking water." 40 CFR § 144.6(a)(1). The UIC regulations define "hazardous waste" by reference to the definition of that term in the regulations that implement the Resource Conservation and Recovery Act, 42 U.S.C.A. §§ 6901– 6991i. See 40 CFR § 144.3.

The SDWA and implementing regulations do not provide for automatic administrative review of UIC permit decisions. See 40 CFR § 124.19. Generally, petitions for review are not granted unless the permit determination is clearly erroneous (legally or factually) or involves an important policy matter or exercise of discretion.2 The preamble to the regulations states that "this power of review should be only sparingly exercised" and that "most permit conditions should be finally determined at the Regional level ***." 45 Fed. Reg. 33,412 (May 19, 1980). The burden of demonstrating that review should be granted is on the petitioner.

In both petitions, BSC argues that its UIC permits should not include the corrective action requirements imposed under Section 3004(u) of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.A. §6924(u). In UIC Appeal No. 85-8, BSC also challenges permit terms incorporating certain RCRA general facility and postclosure standards. These matters raise issues regarding the relationship between RCRA, the SDWA, and the Clean Water Act, 33 U.S.C.A. §§ 1251-1387. For the reasons set forth below, BSC has failed to show that the Region's permit decision is clearly erroneous or otherwise warrants review.3

1. BACKGROUND

Because this case involves the interrelationship of three major environmental statutes, a brief description of each is in order.

The Clean Water Act: In 1972, Congress established the basic framework for federal water pollution regulation by enacting the Federal Water Pollution Control Act, later renamed the Clean Water Act (CWA). The CWA prohibits the "discharge" of a pollutant into the waters of the United States unless made under a nationwide permit program known as the National Pollutant Discharge Elimination System (NPDES). Id. §§ 1311(a), 1342. EPA may issue NPDES permits itself or authorize a state to issue permits if the state's program meets certain statutory requirements. Id. § 1342.

2 See In re Gelman Science, Inc., UIC Appeal No. 86-14, at 2-5 (Nov. 6, 1987); In re NEA Cross Co., UIC Appeal No. 85-9, at 2-3 (Oct. 10, 1986).

3 BSC's petition in UIC Appeal No. 85-8 challenged several other permit conditions, but after an exchange of correspondence with EPA, BSC limited its request for review to the issues identified above. See Letter from R. Penny (BSC) to C. Sutfin (U.S. EPA Region V) (Apr. 25, 1986); Letter from R. Penny (BSC) to R. McCallum (U.S. EPA) (Apr. 25, 1986); Letter from R. Penny (BSC) to R. McCallum (U.S. EPA) (Feb. 10, 1986); Letter from C. Sutfin (U.S. EPA Region V) to R. Penny (BSC) (Jan. 27, 1986).

One of the requirements for an authorized state NPDES program is the control of "the disposal of pollutants into wells." Id. § 1342(b)(1)(D). EPA does not, however, consider well injection to be a "discharge" and has never asserted wholesale jurisdiction over well injection under the CWA. Initially, EPA issued NPDES permits covering well injection only when such injection was an adjunct to surface water discharges. See Decision of the General Counsel No. 6 (April 8, 1975). As explained by the General Counsel in 1973,

Jurisdiction over a permittee is based upon §301
of the Act, which provides that the "discharge of
a pollutant" is unlawful except as in compliance with
the regulatory provisions of the Act. Section 402 au-
thorizes the Administrator to issue a permit "for the
discharge of a pollutant." Under §502(12) the term
"discharge of a pollutant" is defined so as to include
only discharges into navigable waters (or the contig-
uous zone or the ocean). Discharges into ground wa-
ters are not included. Accordingly, permits may not
be issued, and no application is required, unless a
discharge into navigable waters is proposed or is oc-
curring.

Section 125.26(a) of the NPDES regulations requires
the Regional Administrator to formulate and apply
permit conditions to prevent pollution of surface and
underground water resources whenever disposal into
wells is contemplated as part of a program to comply
with effluent limitations and other requirements in
an NPDES permit. This provision cannot, of course,
extend EPA's jurisdiction to cover disposal into wells
not in connection with discharges into navigable wa-
ters. However, whenever a permit is issued for a
discharge into navigable waters, § 125.26(a) requires
controls to be applied to associated discharges into
wells.

OGC Memorandum (December 13, 1973) (Attachment to OGC Decision No. 6).

In 1977 a federal appeals court held that EPA has no authority under the CWA to regulate well injection to subsurface waters with no direct hydrologic connection to surface waters. See Exxon Corp.

v. Train, 554 F.2d 1310, 1317-31 (5th Cir. 1977). Although another federal appeals court disagreed, see U.S. Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977), consistent with Exxon EPA now declines to exercise CWA jurisdiction over injection wells (except those that inject into ground water with a physically and temporally direct hydrologic connection to surface water). Instead, EPA now regulates such well injection under the SDWA.5 To remain authorized, however, a state NPDES program must continue to "control the disposal of pollutants into wells" as required by 33 U.S.C.A. § 1342(b)(1)(D).

The Safe Drinking Water Act: In 1974, the Congress passed the SDWA to protect drinking water sources from, among other things, contamination by underground well injection. The Act's legislative history suggests that it was enacted due to EPA's limited authority to regulate well injection under the CWA. See H.R. Rep. 1185, 93d Cong., 2d Sess. 4, reprinted in 1974 U.S. Code Cong. & Admin. News 6454, 6457. The SDWA directs EPA to promulgate regulations for the approval of state UIC programs. 42 U.S.C.A. 300h. EPA administers the UIC program in any state without an approved program. Id. § 300h-1(c).

The Resource Conservation and Recovery Act: In 1976, Congress enacted RCRA, the first comprehensive federal control of hazardous waste. It provides for cradle-to-grave management of hazardous waste through the RCRA permitting system, which applies to all facilities that treat, store, or dispose of hazardous waste. 42 U.S.C.A. § 6925(a). As with the CWA and the SDWA, EPA may authorize a state to administer its own RCRA program. Id. §6926(b). In 1984, RCRA was amended to add RCRA §3004(u), which requires "corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subchapter, regardless of the

4 The Fifth Circuit did not address the issue of whether the CWA authorizes jurisdiction over discharges into groundwater that has a direct hydrologic connection to surface waters:

Specifically, EPA has not argued that the wastes disposed of into
wells here do, or might, "migrate" from groundwaters back into
surface waters that concededly are within its regulatory jurisdic-
tion. * *
* We mean to express no opinion on what the result
would be if that were the state of facts.

554 F.2d at 1312 n.1.

5 Although EPA adjusts the NPDES limits for surface water discharges to reflect the extent of well disposal (40 CFR § 122.50), it no longer regulates well disposal into isolated groundwater under the CWA. See 44 Fed. Reg. 32,870 (June 7, 1979).

time at which waste was placed in such unit." Id. §6924(u); see also 40 CFR § 264.101 (implementing RCRA § 3004(u)).

Under the Agency's regulations, wells used to dispose of hazardous waste are subject to regulation under both the UIC and RCRA programs. To streamline paperwork requirements, EPA allows a UIC permittee to qualify for a RCRA permit-by-rule, rather than undergoing the formal RCRA application process. See 40 CFR § 270.60(b); 45 Fed. Reg. 33,335 (May 19, 1980). For UIC permits for Class I hazardous waste wells issued after November 8, 1984 (the date RCRA § 3004(u) was added), one condition for obtaining a RCRA permit-by-rule is compliance with the corrective action requirements of RCRA § 3004(u). See 40 CFR § 270.60(b)(3).

In 1974 (prior to the Exxon decision), EPA issued an NPDES permit to BSC, regulating both the surface water discharges and associated well injections at its Burns Harbor Plant. In January 1975, EPA authorized Indiana to issue NPDES permits under the CWA. Indiana renewed BSC's permit in 1979 under its authorized NPDES program, continuing to regulate BSC's wells under authority conferred by state law.

Indiana has never obtained authority to administer a UIC program under the SDWA. The UIC permits issued here were prepared by U.S. EPA, Region V, and require BSC to comply with the corrective action requirements of RCRA § 3004(u).

II. DISCUSSION

A. The Applicability Of RCRA

BSC requests deletion of all RCRA regulatory requirements from its UIC permits because, in its view, it is not injecting hazardous waste into its wells. Under RCRA, "hazardous waste" is a particular kind of solid waste. 42 U.S.C.A. §6903(5). The statutory definition of "solid waste" excludes "solid or dissolved materials in * * * industrial discharges which are point sources subject to [NPDES] permits under [CWA § 402] * * *" Id. §6903(27). BSC claims the benefits of this exclusion because it has an NPDES permit that covers its well injection activities. BSC believes that its NPDES permit is sufficient to remove its wells from jurisdiction under RCRA. I disagree.

The exclusion extends only to materials in "discharges" subject to permits under CWA § 402. The meaning of the term "discharge"

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