is the linchpin for understanding the CWA as a whole.6 As noted above (pp. 4-5), although EPA previously exercised authority over UIC wells under the CWA, EPA has never considered well injection to isolated groundwaters to be a "discharge" under CWA § 402. Most courts that have directly addressed the issue agree. See Exxon Corp., 554 F.2d at 1317-31; Kelley v. United States, 618 F. Supp. 1103, 1104-07 (W.D. Mich. 1985); United States v. GAF Corp., 389 F.Supp. 1379, 1383-85 (S.D. Tex. 1975). An examination of the text of the CWA demonstrates the soundness of these decisions. The CWA defines "discharge" in relevant part as the addition of any pollutant into "navigable waters".7 The term "navigable waters" is defined as "waters of the United States" (33 U.S.C.A. 1362(7)) and goes beyond traditional notions of navigability, but it is not unlimited. BSC is obviously not injecting waste directly into surface water through its injection wells. Nor does BSC contend that it is injecting waste into ground water. Even assuming arguendo that it is, however, well injections into isolated ground water do not constitute "discharges" under the CWA. Many provisions of the CWA expressly refer to both "ground waters" and "navigable waters." For example, CWA 102(a) and 104(a)(5) direct EPA to develop programs to monitor and eliminate the pollution of "the navigable waters and ground waters." 33 U.S.C.A. 1252(a) and 1254(a)(5). Section 106(e)(1) prohibits certain grants to states that fail to monitor "the quality 6 See H.R. Rep. 911, 92d Cong., 2d Sess. 125 (1972) (“it is extremely important to an understanding of [CWA §402] to know the definition of the various terms used and a careful reading of the definitions in section 502 is recommended. Of particular significance is [sic] the words 'discharge of pollutants.") BSC has submitted portions of its NPDES permit authorizing injection into the wells at issue here. Although this permit refers to BSC's well injections as "discharges,” this loose reference has no bearing on the meaning of that word as used in CWA $402. 7 The statutory definition of "discharge," although somewhat circuitous, is ultimately clear. Under CWA 502(16), “[t]he term 'discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants." 33 U.S.C.A. 1362(16). The terms "discharge of a pollutant" and "discharge of pollutants" are defined in relevant part as "any addition of any pollutant to navigable waters from any point source * *.” Id. 1362(12)(A). The phrase "navigable waters' means the waters of the United States, including the territorial seas." Id. 1362(7). Although not directly relevant here, the term "discharge of a pollutant" also includes the "addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.” Id. 1362(12)(B). 8 See. e.g., GAF Corp., 389 F. Supp. at 1383 (citing cases). 9 BSC does not allege in its Petition that its wells inject waste into ground water with a direct hydrologic connection to surface water. Today's decision should not be read to suggest that waste disposal into such ground water may never be a “discharge” under CWA § 402. of navigable waters and to the extent practicable, ground waters." Id. 1256(e)(1). Section 304(a)(2)(A) requires EPA to publish information on the integrity "of all navigable waters, ground waters, waters of the contiguous zone, and the oceans." Id. 1314(a)(2)(A). If ground water were within the meaning of "navigable waters," the specific references to ground water in these provisions would be redundant. A better interpretation of the CWA, one which gives meaning and effect to every term, 10 is to view ground water as outside the scope of "navigable waters." Because a "discharge" is the addition of a pollutant to "navigable waters," well injection into isolated ground water cannot be a "discharge" under the CWA.11 Further light is shed on the issue by CWA § 402 itself. Section 402 uses the word "discharge" (or forms thereof) numerous times. The sole reference to well injection in CWA 402, however, does not use the term "discharge," but instead refers to "the disposal of pollutants into wells." 33 U.S.C.A. 1342(b)(1)(D) (emphasis added). Section 304(f) likewise refers to "the disposal of pollutants in wells or in subsurface excavations." Id. 1314(f)(2)(D). The use of the word "disposal" to describe well injection, despite the consistent use of the word "discharge” elsewhere in CWA § 402, indicates that the terms have different meanings, and that well injection into isolated ground water is something other than a "discharge." 12 There is no evidence that the use of both "discharge" and "disposal" was the result of carelessness, or that these terms are used interchangeably throughout the CWA. Indeed, to interpret the words as synonymous would defeat the effect of the express definition of "discharge" in CWA § 502, which establishes that word as a term of art. Other portions of the CWA likewise distinguish between "discharge" and "disposal." For example, Section 201(b) states that [w]aste treatment management plans and practices 10 See. e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) ("In construing a statute we are obliged to give effect, if possible, to every word Congress used."); United States v Menasche, 348 U.S. 528, 538-39 (1955) (same). 11 See Kelley, 618 F.Supp. at 1104-07. Sometimes the distinction between ground water and surface water is elusive. See United States v. Weisman, 489 F. Supp. 1331, 1347 (M.D. Fla. 1980). It is unnecessary to address the precise boundaries of these terms in this case. 12 See, e.g., Tafoya v. U.S. Dep't of Justice, LEAA, 748 F.2d 1389, 1391-92 (10th Cir. 1984) (use of different terms within statute evidences intentional differentiation); Lankford v. Law Enforcement Assistance Administration, 620 F.2d 35, 36 (4th Cir. 1980) (same); United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (same). ticable waste treatment technology before any dis- 33 U.S.C.A. 1281(b) (emphasis added). The words "confined disposal" here describe the placement of waste as an alternative to "discharges" into surface water subject to permits under the CWA. This textual analysis of the CWA and the federal court decisions cited above show that well injections to isolated ground waters are not "discharges" under CWA §402. Thus, these well injections do not fall within the exclusion from the definition of solid waste in RCRA § 1004(27). BSC's contention to the contrary collides headon not only with the meaning of the word "discharge," but also with basic policies and legal principles that flow directly from the statutes at issue. If well injection were a "discharge," no well would ever be subject to regulation under RCRA no matter how toxic the waste. 13 RCRA itself, however, makes crystal clear that its provisions extend to injection wells. RCRA § 3004(f), for example, expressly requires EPA to regulate the underground injection of certain hazardous wastes into deep injection wells. See 42 U.S.C.A. §6924(f). Another section prohibits hazardous waste injection into or above certain formations. See id. §6939b. These two provisions, both added by the 1984 amendments to RCRA, reflect the bedrock congressional policy and consistent Agency position that the RCRA regulatory program applies to injection wells used to inject hazardous waste. See 52 Fed. Reg. 45,792-93 (December 1, 1987); 50 Fed. Reg. 28,712 (July 15, 1985). If well injections were excluded from the definitions of "solid waste" and "hazardous waste" under RCRA, as BSC argues, these key RCRA provisions would be rendered meaningless nullities. Finally, BSC's reliance on the Seventh Circuit's decision in U.S. Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977), is misplaced. There, the court held that waste injected into wells is a "pollutant" subject to regulation under the CWA, but it did not decide the precise issue presented here, i.e., whether well injections are "discharges" subject to permits under the CWA, and thus excluded from regulation under RCRA. Id. at 851-53. Although the court loosely used the 13 BSC argues that RCRA is inapplicable to wells covered by an existing NPDES permit, as well as those subject to any future NPDES permits. BSC Reply at 20. Because well injection is a "discharge" under BSC's theory, this alleged exclusion from RCRA would cover virtually every UIC well. word "discharge" (rather than "disposal") to describe well injection (id. at 852), its reliance on the position of EPA's General Counsel (id. at 852 n.61) undercuts any suggestion that it deemed well injections to be "discharges" as defined in CWA § 502(16).14 In view of the sweeping statutory and regulatory changes since that decision, particularly the 1984 amendments to RCRA, I doubt that a court would rely on U.S. Steel Corp. today to hold that BSC's wells are beyond the reach of protective regulation under RCRA. B. The Applicability of the Corrective Action Requirements of RCRA $3004(u) Having established that RCRA generally applies to UIC wells, the next issue is whether the specific corrective action requirements of RCRA § 3004(u) apply. As noted above, UIC permittees of hazardous waste disposal wells need not go through the formal RCRA permit application process. Instead, UIC permittees may qualify for a RCRA permit-by-rule under 40 CFR §270.60(b). For UIC permits for Class I hazardous waste wells issued after November 8, 1984, one requirement for obtaining a RCRA permit-by-rule is compliance with 40 CFR §264.101, which incorporates the statutory corrective action requirements of RCRA § 3004(u). See 40 CFR § 270.60(b)(3). BSC contends that RCRA § 3004(u) by its terms applies only to "issued" RCRA permits, and that BSC's RCRA permit-by-rule has not been "issued" within the meaning of that section. The distinction between permits-by-rule and those acquired by formal application, however, appears only in the implementing regulations, not in the statute itself. The word "issued" in RCRA § 3004(u) and elsewhere in the statute plainly encompasses both kinds of permits. The natural import of the word is "to cause to come forth" or "to put forth." 15 The Agency issues RCRA permits-by-rule by operation of its regulations just as it issues RCRA permits in response to formal applica 14 As noted above, EPA did not justify this jurisdiction by arguing that well injection is a "discharge" under the CWA. Instead, it based its position on 33 U.S.C.A. § 1342(a)(3), which requires the federal NPDES program to be subject to the same terms and conditions as the approved state programs, and on Section 1342(b)(1)(D), which requires an authorized state program to control well disposal. See U.S. Steel Corp., 556 F.2d at 85153; see also Exxon Corp., 554 F.2d at 1318-19. The federal courts disagreed as to whether the CWA grants EPA authority over injection wells. Compare U.S. Steel Corp., 556 F.2d at 851-53 with Exxon Corp., 554 F.2d at 131731. EPA no longer asserts CWA authority over injection into isolated ground water, but instead regulates these wells under the SDWA and RCRA §§ 3004(f) and (k), which expressly grant EPA regulatory authority over wells. 15 See The American Heritage Dictionary 680 (1982); Webster's Third New International Dictionary (unabridged) 1201 (1967). tions. Only this reading of the word "issued" in RCRA §3004(u) is consistent with RCRA §3005(a), which directs EPA to require each person owning or operating a hazardous waste facility "to have a permit issued pursuant to this section." 42 U.S.C.A. §6925(a) (emphasis added). If BSC's permit-by-rule were not "issued" within the meaning of RCRA, the regulations authorizing permits-by-rule (as well as BSC's facility) would not be in compliance with RCRA § 3005(a).16 BSC also argues that RCRA § 3004(u) on its face applies only to a facility "seeking a [RCRA] permit." In UIC Appeal No. 858, BSC contends that it is not "seeking a [RCRA] permit" because its discharges are excluded from the definition of "solid waste." As shown above in Section I, however, this assertion is incorrect. In UIC Appeal No. 86-13, BSC states the argument somewhat differently; it contends that its ability to obtain a RCRA permit-byrule does not transform it into one "seeking a [RCRA] permit." BSC appears to interpret the phrase "seeking a [RCRA] permit" to require a specific subjective intent or desire on its part before Section 3004(u) applies. This is not the case. Despite BSC's insistence that it seeks only a UIC permit under the SDWA, RCRA §3005(a) requires the Agency's rules to compel BSC to obtain a RCRA permit, and the RCRA regulations do so.17 A RCRA permit-by-rule is merely one kind of authorization by which BSC is allowed to comply with RCRA. In other words, because BSC seeks authorization to inject hazardous waste into its wells, by necessity it seeks both a UIC permit and a RCRA permit. Its ability to obtain authorization through a RCRA permit-by-rule serves only to streamline its paperwork requirements, not to dilute its substantive obligations under RCRA and the regulations implementing that statute. See 52 Fed. Reg. 45,792-93 (December 1, 1987). 16 BSC relies on an assertion by the Agency in 1980 that "RCRA permits will not be issued for UIC wells injecting hazardous wastes." BSC Reply at 12 (quoting 45 Fed. Reg. 33,326 (May 19, 1980)). This statement was not, however, an interpretation of RCRA §3004(u) or 3005. The context makes clear that the word "issued" was being used, not in its broad statutory sense, but simply to describe permits obtained through the formal application process (as opposed to permits-by-rule). Id. Moreover, even if BSC's reading of this statement were correct, the 1984 amendments to RCRA make clear that the RCRA permit program applies to UIC wells used to inject hazardous waste. BSC also cites an Agency interpretation of § 3004(u) as applying only to facilities required "to obtain a Subtitle C [RCRA § 3005] permit." BSC Reply at 13 (citing 50 Fed. Reg. 28,711-12 (July 15, 1985)). As explained above, however, BSC's RCRA permit-by-rule is a RCRA Subtitle C permit. 17 Injection wells that dispose of hazardous waste are specifically included among those facilities that must have a RCRA permit. 40 CFR § 270.1(c)(1)i). |