IN THE MATTER OF PENNZOIL EXPLORATION AND PRODUCTION COMPANY UIC Appeal No. 87-3 REMAND ORDER Decided February 28, 1989 Before the Administrator U.S. Environmental Protection Agency Opinion by William K. Reilly Administrator: Pursuant to 40 CFR § 124.19, David and Mary Lou Williams, jointly, and Metro Petrosky, Jr., James D. Powell, and J. Adrian Wilhelm, separately, all citizens of Washington County, Pennsylvania, filed petitions requesting that I review a permit determination made by the Regional Administrator, Region III, on April 16, 1987, to grant Pennzoil Exploration and Production Company's application for an Underground Injection Control (UIC) area permit.1 The permit would allow Pennzoil to develop 185 Class II enhanced oil recovery wells in Washington County over a period of several years. Petitions for review of UIC permits are not usually granted unless the permit determination 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. 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 determination should be reviewed is therefore on those requesting review. * 1 See 40 CFR § 144.33 (area permits). Petitioners have raised eighteen issues for review.2 Many of the issues are interrelated. As discussed below, I am remanding this matter to the Region for reconsideration. 1. DISCUSSION The rules governing the issuance of UIC permits prohibit the movement of fluid containing any contaminant into underground sources of drinking water (USDWs), as a result of underground injection activity, if the contaminant may cause a violation of any primary drinking water standard or may otherwise adversely affect human health. 40 CFR § 144.12(a). To assist the Agency in determining whether contamination will occur, the regulations require an applicant to provide to the Agency: * * * A topographic map (or other map if a topographic 40 CFR § 144.31(e)(7). This information must be considered by the Region in authorizing Class II wells. See 40 CFR § 146.24(a)(1). During the public hearing in the instant case, participants questioned whether all wells within the project's boundary had been located by Pennzoil. See Transcript at 34. During the subsequent public comment period on the draft permit, Petitioners presented documents purporting to establish the existence of abandoned wells that had not been identified by Pennzoil or considered by Region III in reaching its draft permit determination.3 These documents included a copy of a Pennsylvania Oil and Gas Commission map, dated October 1911, which shows the existence of sixteen wells within the project boundary that Pennzoil had not identified in its permit application.4 In 2 The Region consolidated the issues raised by Petitioners into eighteen issues. See Response to Appeals on UIC Permit, dated July 9, 1987. Despite Petitioners' objection, I find that the consolidation is reasonable and renders the petitions more amenable to analysis. The Region's Response to Appeals was organized and presented in an excellent manner and I recommend it as a model in future UIC cases. 3 See Williams' Letter of January 29, 1987; Wilhelm Letter of January 27, 1987. 4 Petitioners stated that they obtained the map from the Pennsylvania Department of Environmental Resources. See Williams' Letter of January 29, 1987 (comment). Continued addition, Petitioner Wilhelm notified the Region of the existence of an alleged abandoned well (Jason Noble #1), which Pennzoil had failed to identify in its permit application. Petitioners assert that these wells might act as a conduit for the migration of contaminating fluids into USDWS. In its response to Petitioners' comments on the draft permit, the Region stated that it recognized that abandoned wells may present an avenue for fluid migration into USDWs. However, the Region did not respond to the identification of the additional sixteen wells contained in the 1911 map or to the identification of the Jason Noble #1 well. Instead, it merely averred that previously abandoned wells identified by Pennzoil would be "addressed through corrective action" and that injection pressure monitoring well data would provide early notification of potential threats to USDWS. In its subsequent response to the petitions for review, the Region states that Pennzoil had identified all known wells documented in the public record or otherwise known to Pennzoil. It claims that the identification and location of abandoned wells (beyond those identified by Pennzoil in its permit application) was not reasonably ascertainable. The Region also claims that Petitioners have not submitted any information to ascertain reasonably the existence and location of unidentified wells within the project's boundary. However, in making the latter claim, the Region has not explained why the 1911 map does not achieve that end. The regulations governing this proceeding direct the Region to respond to all significant issues raised during the public comment period when it issues its permit decision. 40 CFR § 124.17(a)(2). Petitioners' submission of the 1911 map identifying additional wells, and Wilhelm's identification of an abandoned well on his property, within the project's boundary, are significant comments. The Region's conclusion that Pennzoil identified all known wells documented in the public record or otherwise known to Pennzoil is contradicted by Petitioners' 1911 map, which Petitioners Williams obtained from the Pennsylvania Department of Environmental Resources 5 and is a matter of public record, and by Wilhelm's comment. Therefore, the Region's failure to respond adequately to Petitioners' comments-by explaining why the 1911 map or Wilhelm's comment do not cast serious doubt The map is admissible into the administrative record under 40 CFR § 124.11 (persons may submit comments) and § 124.13 (obligation to provide information during the public comment period). 5 Williams' Letter of January 29, 1987. on whether Pennzoil had identified all known wells within its project's boundary-is clear error.6 The rules allocate to Pennzoil, not to Petitioners, the burden of identifying all known wells within the project's boundary. 40 CFR § 144.31(e)(7). Pennzoil has evidently failed to identify the wells in the 1911 map or on Wilhelm's property. Therefore, it is not known whether the locations of these wells are ascertainable and whether the wells might allow the movement of fluids containing contaminants into USDWs. Accordingly, I remand this matter to the Region for reconsideration of its permit determination. II. REMAND The Region is directed to issue a new permit determination after taking the 1911 map and Wilhelm's comment into consideration in the manner prescribed by the regulations. If the Region decides to reissue the permit, it shall include specific and detailed findings in the permit determination respecting the following issues: 1. Whether the 1911 map and Wilhelm's comment are adequate to identify wells within the project's boundary that had not been identified by Pennzoil; whether the Region or Pennzoil attempted to locate these wells; and whether there are reasonable grounds to believe that the wells are not possible conduits for the migration of contaminating fluids into USDWs. 2. If the existence of the wells identified by Petitioners cannot be ruled out, can the Region grant Pennzoil's permit application and assure that USDWs will not be endangered by underground injection? 7 The preamble to 40 CFR § 124.17 states that "one of the major purposes of a comment period is to bring new material to the Agency's attention." 45 Fed. Reg. at 33,412 (May 19, 1980). See also 40 CFR § 124.18 (comments are part of the administrative record and the Regional Administrator shall base his final decision on the administrative record). 7 See 40 CFR § 144.1(g): All owners or operators of these injection wells must be authorized * * by permit ** by the Director. In carrying out the man- See also 40 CFR § 144.3 (Definitions): Continued * 3. The Region has acknowledged that "once contamination occurs in shallow water supply or monitoring wells, the preventive or corrective provisions of the program have been compromised." Response to Appeal at 2. Is injection pressure monitoring, without prophylactic corrective action for the wells identified by Petitioners, adequate to protect groundwater resources? 4. In its Response to Appeals the Region notes: Injection formation pressures in the immediate area Response to Appeals at 10. Assuming that the wells identified by Petitioners exist and are not currently subject to corrective action requirements, is containment of contaminating fluids assured in view of Pennzoil's proposed injection formation pressurization? As to the remainder of the issues raised by Petitioners, I find that Petitioners have not shown that the Region's determination was clearly erroneous or involved an exercise of discretion or policy that is important and that should be reviewed as a discretionary matter. The Region has adequately addressed these issues In its Response to Appeals. Accordingly, I decline to grant review of those issues. So ordered. When there is no approved State program, and there is an EPA trator. |