UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION THE UNITED STATES OF AMERICA AND THE

STATE OF GEORGIA, Plaintiffs, v. THE CITY OF ATLANTA, Defendant. ) ) ) ) ) ) ) CIVIL ACTION FILE 1:98-CV-1956-TWT

MEMORANDUM IN SUPPORT FOR THE RECONSIDERATION OF THE UNDERGROUND INJECTION CONTROL PROGRAM COME NOW, NOCRAP (Newly Organized Citizens Requesting Aquifer Protection); the Little Mountain Water Association, Inc.; and the South River Watershed Alliance, Inc.; previously before this Court on September 20, 2012, as Commenters in Federal Register Notice for this Court to consider the approval of the Second Amendments to the First Amended Consent Decree (hereinafter referred to collectively as "the Commenters"), and pursuant to the Court's grant of the Commenters' request to brief the Court on the issue of Georgia's Safe Drinking Water Act/Underground Injection Control program, submit this Memorandum.

I. Introduction. This Court entered the First Amended Consent Decree between the United States of America, the State of Georgia and the City of Atlanta on December 20, 1999, acknowledging the parties' agreement to undertake certain comprehensive remedial measures to bring the City's sewer system into compliance with the Clean Water Act and

the Georgia water Quality Control Act. By letter dated July 20, 2001, the U.S. Environmental Protection Agency (EPA) and the Georgia Environmental Protection Division (EPD) authorized the City of Atlanta's Remedial Measures Plan subject to several comments. Letter attached as Exhibit A. First and foremost, the EPA/EPD stated [t]he tunnels shall be sited, designed and constructed to minimize the infiltration of groundwater into the tunnels and the ex filtration of combined sewage out of the tunnels. Moreover, EPA/EPD clearly directed the City that its [d]ecisions regarding the choice of routes, tunnel boring activities (including ground water withdrawal and discharge), lining, maintenance, and operation of the tunnels must ensure that these actions do not pose an endangerment to public health through the introduction and emplacement of contaminants into underground sources of drinking water. Emphasis supplied. This letter was copied to the U.S. Dept. of Justice, the Dept. of Law for the State of Georgia, and to the Upper Chattahoochee Riverkeeper and its legal counsel. On August 14, 2002, a consultant (named redacted by US- DOJ in FOIA request) opposed to tunnels as a means to store and treat wastewater effluent wrote the Assistant Attorney General concerning the Proposed Amendments to First Amended Consent Decree related to the proposed change of the Nancy Creek Tunnel from a force main to a tunnel. Amid the extensive comments addressing why this proposed change from the Force Main to the tunnel option is a severe environmental liability that must be fully investigated prior to approving it as a means to attain the goals of the Clean Water Act , the commenter clearly states that one of two other aspects of the Water Quality Control Act that should be looked into is Section 391-3-6-.13, Underground Injection Control. This tunnel may fall under the conditions and definitions of that section. The commenter concludes by asking the Attorney General to postpone the construction of the
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tunnel for the sake of the community and the environment until [a]n investigation by this office into the potential inclusion of the tunnels as an Injection Well [pursuant to the rules and regulations of the Georgia Water Quality Control Act], the impacts of that regulation on the environment, and the comparison of the US EPA's Underground Injection Control Program. Subsequently, on or about January 30, 2003, the Plaintiffs, United States of America and the State of Georgia submitted their Plaintiffs' Memorandum in Support of Proposed Amendments to First Amended Consent Decree. The genesis of the The parties urged amendments was the Plaintiffs' belief that the proposed new tunnel projects offered superior approaches to the previously planned diversion projects. the Court to adopt the proposed amendments as a better approach for protecting the public health and the environment while advancing the objectives of the Clean Water Act specifically the chief objective of the Clean Water Act, 33 U .S .C . 1251, to restore and maintain the chemical, physical and biological integrity of the Nation's waters ." The State of Georgia and the United States concluded that the Proposed Amendments are fair, reasonable, consistent with the mandate of the Clean Water Act and the Georgia Water Quality Control Act, and protective of public health, welfare, and the environment. Plaintiffs' Memorandum affirms the goal in administering the Consent Decree is to assure that the City of Atlanta achieve compliance with the Clean Water Act and the Georgia Water Quality Control Act consistent with applicable federal and state laws and regulations as is required in Section XV of the Decree. In their primary response to the public comments, Plaintiffs incorrectly opine As will be shown, the comments do not suggest that the tunnel proposal will not achieve compliance with the Clean Water Act and the Georgia Water Quality Control Act .
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In fact, Plaintiffs fail to address the

above referenced August 14, 2002, comments of whether the tunnel falls under the purview of the underground injection control provisions of the Water Quality Control Act by summarily misrepresenting to this Court that this is not an underground injection well and therefore the comment does not fall within this purview. Beginning in June, 2007, Robert Schreiber contacted the U.S. Environmental Protection Agency and this Court seeking clarification regarding EPA's policies relating to waste water conveyance tunnels as underground injection wells subject to regulation under the Safe Drinking Water Act. From this early date Mr. Schreiber was informed by EPA simply that because such tunnels are not intended to emplace fluids below the surface of the ground water through a well [but] rather they are distribution systems intended to convey waste water . . . [such] tunnels are not required to be permitted under the UIC program. Letter EPA Region 4, Giattina to Schreiber, Oct. 18, 2007. On subsequent occasions Mr. Schreiber and others (including a twenty two member citizens group, and NOCRAP) submitted to this Court, the U.S. EPA, and the Georgia EPD a detailed legal opinion from this attorney dated November 24, 2008, to the effect that the activity of emplacing waste water through a shaft into subsurface tunnels is underground injection for which a permit is required under the Safe Drinking Water Act and the Georgia Water Quality Control Act and its implementing rules and regulations. See, e.g. Letter from Schreiber to Hon. Judge Thomas V. Thrash dated December 10, 2008; Letter from twenty-two citizens to Hon. Judge Thomas V. Thrash date June 14, 2009; and Letter from Schreiber to Hon. Judge Thomas V. Thrash dated August 3, 2009. On two occasions, the U.S. EPA, through Mr. Weinischke with the U.S.- DOJ, offered but a tacit response to Mr. Wright's legal opinion; See Letter from Weinischke to Hon. Judge Thomas V. Thrash dated January 9, 2009 (After again reviewing Mr.
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Schreiber's December 10, 2008 letter and the attached letter from Attorney Hal F. Wright, EPA's position as set forth in its October 18, 2007 letter [from Giattina to Schreiber] remains the same.); letter from Weinischke to Hon. Judge William V. Thrash dated July 29, 2009 ([A]s we pointed out in our January 9 letter to your Honor, . . . EPA went further by writing directly to Mr. Schreiber . . . to address the specific concerns he raised concerning the tunnels.); this, despite the fact that on each of the above occasions, the EPA and DOJ were requested to specifically respond to the issues addressed by Mr. Wright's legal analysis with a substantive legal response offered through the Giattina letter and being parroted by EPA, DOJ and others). On August 10, 2012, Plaintiffs filed their Plaintiffs' Memorandum in Support of Entry of Second Amendment to First Amended Consent Decree, affirming [t]he chief objective of the Clean Water Act,33 U.S.C. 1251, is 'to restore and maintain the chemical, physical and biological integrity of the Nation's waters.'" In their memo, the State of Georgia and the United States again affirmed the Proposed Amendments are fair, reasonable, consistent with the mandate of the Clean Water Act and the Georgia Water Quality Control Act, and protective of public health, welfare, and the environment repeating that the Proposed Amendments are appropriate under the circumstances and consistent with the goal of achieving compliance with the Clean Water Act and the Georgia Water Quality Control Act. NOCRAP (Newly Organized Citizens Requesting Aquifer Protection), the Little Mountain Water Association, Inc., and the South River Watershed Alliance, Inc. submitted comments to the DOJ on the Second Amendment to First Amended Consent Decree through their attorney, Hal Wright. The essence of these comments were: in approving the proposed Second Amendments, the Court must first assure that both the
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(i.e. ,

something more than the semantic, tautological, and evasive legal conclusion being

amendments and the underlying consent decree are lawful, specifically in keeping with the Safe Drinking Water Act; because the City of Atlanta's waste water storage and conveyance activities are considered "underground injection" activity it is subject to regulation under the SDWA's Underground Injection program as specifically interpreted by the 11th Circuit in LEAF I; EPA's opinion that because tunnels are not intended to emplace fluids below ground they do not qualify as underground injection requiring a permit is erroneous and not in keeping with the plain meaning of the statute; and the Court owes EPA no deference on this matter because the statutory language is clear and unambiguous in establishing that the subsurface emplacement of waste water into cavities or passages in the ground through a well is underground injection for which a permit is required under SDWA/UIC. Plaintiffs' response to Commenters (and to this Court) was again the conclusory evasive (and false) phrase: The Plaintiffs have already responded in detail to all of those arguments and have not changed their position that the commenters are wrong. A motion hearing was held on September 20, 2012, for this Court to consider the approval of the Second Amendments to the First Amended Consent Decree. At the conclusion of the the comments by the attorneys representing both Plaintiffs and the Defendant City, Mr. Wright was allowed by the Court to speak. Mr. Wright's comments were directed at the public interest component of the Court's approval of the consent decree and the necessity that the Court assure the terms of the decree, including the amendments thereto, do not violate the law. At the conclusion of Mr. Wright's remark's, counsel for Plaintiffs were allowed to respond and this Court gave its opinion as well.

MR. WEINISCHKE: Your Honor, just with respect to Mr. Wright's comments, the Court has seen our responses to those comments previously. . . . We also don't believe that procedurally Mr. Wright is properly before this Court. The case that they relied on frequently is the LEAF case before the 11th Circuit, and in that case the issue that was presented to the Court was whether EPA properly denied a petition to withdraw the State's I think it was the State of Alabama's Safe Drinking Water Act authority. And that's how that case got before the 11th Circuit. If there are parties that want to challenge the State of Georgia's authority to regulate under the Safe Drinking Water Act and specifically the UIC program that's part of the Safe Drinking Water Act, there are mechanisms to do that. William Weinischke, U.S. Dept. of Justice, Counsel to the U.S. EPA,Transcript of the Motion Hearing Before the Honorable Thomas W. Thrash, U.S. District Court Judge; N. Dist. GA. ; Case No. 1:98-CV-1956-TWT; September 20,2012; p. 27. THE COURT: Well, I consider the safe drinking water issue completely separate from the issue that's before us today which is do I approve or do I disapprove the proposed amendments to the First Amended Consent Decree. Transcript at p. 28. MR. HENNELLY: All of those entities [state regulatory agencies] have reviewed the issue and determined that the position of Mr. Schreiber is not supportable under the existing law. John Hennelly, Office of the Attorney General, State of Georgia, Counsel to Ga. EPD; Transcript at 28. THE COURT: Well, again, I'm not going to comment on whether Mr. Schreiber and Mr. Wright's position is correct or incorrect. I'm simply going to say it's a separate issue from what I'm here today to decide in my opinion. Transcript at 28. THE COURT: It was the biggest case on my docket 15 years ago in terms of the impact on the community and impact on the environment, remains the biggest case on my docket 15 years later. And so I'm not going to be a rubber stamp. But I am
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going to give appropriate deference to the expertise of the agencies, the EPA and others. Transcript at 31-32. THE COURT: And,finally, I agree with the State of Georgia and the United States' position that the proposed amendments are fair, reasonable, consistent with the mandate of the Clean Water Act and the Georgia Water Quality Control Act and protect public health, welfare and the environment. Transcript at 32-33. The above comments from the hearing highlight three issues which are addressed below. 1. Is the Safe Drinking Water Act a separate issue from the approval of the consent decree and amendments thereto? 2. Is the case Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467(11th Cir. 1997) (LEAF-I) applicable to the current case? 3. What effect will not deciding the issue of underground injection have on the legacy of the Riverkeeper v City of Atlanta case? II. The Safe Drinking Water Act (SDWA), Underground Injection Control program, is an essential tool for achieving the purposes of the Clean Water Act and the Georgia Water Quality Control Act and therefore should be considered by the Court in approving the second amendments to the Consent Decree. This Court granted Plaintiffs' motion affirming the amendments in part because it agree[d] with the State of Georgia and the United States' position that the proposed amendments are fair, reasonable, consistent with the mandate of the Clean Water Act and the Georgia Water Quality Control Act and protect public health, welfare and the environment. Transcript at 32-33. The Court expressed its view that the review and approval of the proposed amendments was a separate and distinct matter from the issue Commenters raise before the court of the applicability of the Underground Injection program of the Safe Drinking Water Act to the City of Atlanta's activity of emplacing
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wastewater in subsurface tunnels. It is argued below, with all due respect to this Court, that because the UIC program is a key component of protecting the public health, welfare and environment under the GWQCA, that the City's non-compliance with the UIC program is not only relevant, but serves as a legitimate basis for this Court to declare that the amendments and the consent decree are unreasonable, not legal, and not consistent with the mandate of the GWQCA. The federal Clean Water Act (CWA) (33 USC 1251 et seq.) and the corresponding Georgia Water Quality Control Act (GWQCA) (OCGA 12-5-20 et seq.) including the implementing Georgia Comprehensive Rules and Regulations (Ga. Comp. R. & Regs.)( r. 391-3-6-.01 et seq.) regulate the discharge of pollutants into the waters of the state of Georgia.

A. The purpose of the SDWA is to protect public health by protecting underground sources of drinking water from contamination. The Safe Drinking Water Act was passed in 1974 as part of the overall attempt of the federal government to protect the nation's waters. The Act delegates primary enforcement responsibility to the states. Each state was required to submit for approval by the EPA an "underground injection control program" designed "to assure that underground injection will not endanger drinking water sources." 42 U.S.C. 300h-1(a)(b). U.S. v. Overholt, 307 F.3d 1231 (10th Cir., 2002). The SDWA establishes a regulatory mechanism to insure the overall quality of publicly supplied drinking water. Part C of the SDWA (the underground injection control program section) establishes a regulatory program designed to prevent the
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endangerment of underground drinking water sources, now and in the future. As in the Clean Water Act itself, Part C envisions a joint federal-state system to regulate the discharge of pollutants by injection wells into underground water systems. The EPA is directed to promulgate regulations establishing the minimum requirements for state underground injection control programs. Section 1421, 42 U.S.C. Sec. 300h. The states may impose requirements more stringent than the federal requirements. The 10th Circuit Court of Appeals in Phillips Petroleum Co. v. U.S. E.P.A., 803 F.2d 545, 555 (C.A.10, 1986) provides a succinct analysis of the purpose of this legislation by citing to the report of the House Committee on Interstate and Foreign Commerce, H.R.Rep. No. 1185, 93d Cong., 2nd Sess. 1 (1974), U.S.Code Cong. & Admin.News 1974, p. 6454 which stated: "[T]he purpose of the legislation is to assure that the water supply systems serving the public meet minimum national standards for protection of public health. Indeed, the legislative history indicates that the phrase "underground injection which endangers drinking water sources" was to have the broadest applicability: It is the Committee's intent that the definition be liberally construed so as to effectuate the preventative and public health protective purposes of the bill. The Committee seeks to protect not only currently-used sources of drinking water, but also potential drinking water sources for the future.... The Committee was concerned that its definition of 'endangering drinking water sources' also be construed liberally. Injection which causes or increases contamination of such sources may fall within this definition even if the amount of contaminant which may enter the water source would not by itself cause the maximum allowable levels to be exceeded. The definition would be met if injected material were not completely contained in the well, and if it may enter either a present or potential drinking water source, and if it (or some form into which it might be converted) may pose a threat to human health or render the water source unfit for human consumption.
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Natural

Resources Defense Council, Inc. v. U.S.E.P.A., 824 F.2d 1258, 1271 (C.A.1, 1987) citing H.R.Rep. No. 1185, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News at 6484. B. The Georgia Water Quality Control Act is specifically meant to protect Georgia's ground water resources including underground sources of drinking water. Congress has shown its high regard for the states' environmental concerns by providing that the CWA, through the NPDES permit system, will enforce state water quality standards stricter than the minimums required by the CWA. Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 490 (C.A.9 (Alaska), 1984). The CWA, 33 U.S.C. Sec. 1311(b)(1)(C), requires that there shall be achieved [within state waters] ... any more stringent limitation, including those necessary to meet water quality standards ... established pursuant to any state law or regulation .. Similarly, under the underground injection control program of the SDWA, the state may impose requirements more stringent than the federal requirements. Indeed the regulatory scheme of the CWA and the SDWA merges federal water pollution control requirements with state water quality standards and policy. Within this framework, the Georgia Water Quality Control Act (GWQCA) was passed to restore and maintain water purity and supplies within the state and require reasonable treatment of sewage, industrial wastes, and other wastes prior to their discharge into the waters of the state. O.C.G.A. 12-5-21(a); Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 276, 507 S.E.2d 460 (Ga., 1998). 1. Georgia specifically intends to protect its subsurface waters for the well-being of the people of Georgia. Establishing that the well-being of [t]he people of the State of Georgia are dependent upon the rivers, streams, lakes, and subsurface waters of the state for public
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and private water supply and for agricultural, industrial, and recreational uses the Georgia General Assembly adopted the GWQCA for the expressed purposes that the water resources of the state shall be utilized prudently for the maximum benefit of the people, in order to restore and maintain a reasonable degree of purity in the waters of the state and an adequate supply of such waters, and to require where necessary reasonable usage of the waters of the state and reasonable treatment of sewage, industrial wastes, and other wastes prior to their discharge into such waters. GWQCA, O.C.G.A. 12-521(a). "Water" or "waters of the State" are defined broadly to mean any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells, wetlands, and all other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the State which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation. GWQCA; Ga. Comp. R. & Regs. r. 391-3-6-.03(3)(n). 2. Georgia protects all state waters, including subsurface waters, from contamination from materials associated with municipal sewage. In order to meet the mandate in the GWQCA to restore and maintain the reasonable degree of purity in the waters of the state so that these waters may be utilized prudently for the maximum benefit of the people, Georgia, through the GWQCA, has developed certain criteria deemed necessary and applicable to all waters of the State: (a) All waters shall be free from materials associated with municipal or domestic sewage, industrial waste or any other waste which will settle to form sludge deposits that become putrescent, unsightly or otherwise objectionable. (c) All waters shall be free from material related to municipal, industrial or other discharges which produce turbidity, color, odor or other objectionable conditions
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which interfere with legitimate water uses. GWQCA; Ga. Comp. R. & Regs. r. 391-3-6-.03(5)(a)&(c); See also. O.C.G.A. 12-5-29 (a). 3. The UIC program is an integral part of Georgia Water Quality Control Act. In 1974, Congress enacted the Safe Drinking Water Act (SDWA), Pub. L. No. 93-523, 88 Stat. 1660 (codified as amended at 42 U.S.C. 300f et seq. (1988)), which empowers the Environmental Protection Agency (EPA) to regulate the underground injection of wastewater. The SDWA established a regulatory program to be administered by the EPA or a state if the EPA approves the state underground injection control (UIC) program. Congress established several minimum requirements for state UIC programs, including the requirement that underground injection be prohibited unless authorized by permit. The Georgia UIC program was approved by EPA on April 19, 1984. 49 Fed. Reg. 15553 (1984). See 40 C.F.R. 147.550 (2007). Included in Georgias approved UIC program is Ga. Comp. R. & Regs. r. 391-3-6-.13., a part of the rules and regulations promulgated in furtherance of the purposes of the Georgia's Water Quality Control Act, Ga. Comp. R. & Regs. r. 391-3-6-.01 et seq. Georgia's UIC program, consistent with the purposes and scope of the GWQCA, is a program to protect the subsurface waters of the State from contamination including from municipal sewage. OCGA 12-5-21(a); Ga. Comp. R. & Regs. r. 391-3-6-.13; Ga. Comp. R. & Regs. r. 391-3-6-.03(3)(n); Ga. Comp. R. & Regs. r. 391-3-6-.03(5)(a)&(c). Indeed, the State of Georgia's UIC program is one method or tool for achieving the mandate of the Clean Water Act and the Georgia Water Quality Control Act and [to] protect public health, welfare and the environment.
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C. The protection of underground sources of drinking water from the subsurface emplacement of wastewater through a shaft (well) is a matter which this Court should consider as part of its review of the proposed second amendments to the First Amended Consent Decree. Prior to approving the proposed Second Amendment the Court should first assure that the settlement the parties have reached is legal and the actions to be taken pursuant to the decree are consistent with federal law. In deciding whether to approve a consent decree, the district court must evaluate whether the decree is fair, reasonable, and lawful. Stovall v. City of Cocoa, Fla., 117 F.3d 1238, 1244 (11th Cir. 1997). In other words, district courts should approve consent decrees so long as they are not unconstitutional, unlawful, unreasonable, or contrary to public policy. In making this determination the district court must first determine whether the consent decree "represent[s] a reasonable factual and legal determination based on the record, and ensure that it [does] not violate federal law. Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.1989). As established above, Georgia's UIC program which purpose is to prevent underground injection which endangers drinking water sources is germane to the Court's determination that the terms of the amendments (as well as the underlying consent decree) are not unconstitutional, unlawful, unreasonable, or contrary to public policy. This Court is certainly able to further review whether the UIC rules and regulations require the City of Atlanta to obtain a permit for the activity of emplacing wastewater in subsurface tunnels. However, it is respectfully suggested that the Court's position that its review and approval of the proposed amendments is a separate and distinct matter from the applicability of the Underground Injection program of the Safe Drinking Water Act to the City of Atlanta's activity of emplacing wastewater in
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subsurface tunnels is erroneous. Likewise, and with the same level of respect, Commenters urge the Court to reconsider its conclusion that the proposed amendments are fair, reasonable, consistent with the mandate of the Clean Water Act and the Georgia Water Quality Control Act and protect public health, welfare and the environment as not in keeping with spirit or substance of the relevant laws. III. The LEAF I case controls the analysis for determining whether the City of Atlanta's activities of emplacing waste water through a shaft into subsurface tunnels is underground injection regulated under the UIC program. In responding to Mr. Wright's comments to this Court, U.S. EPA's counsel, Mr. Weinischke, stated in part: The case that they relied on frequently is the LEAF case before the 11th Circuit, and in that case the issue that was presented to the Court was whether EPA properly denied a petition to withdraw the State's I think it was the State of Alabama's Safe Drinking Water Act authority. If there are parties that want to challenge the State of Georgia's authority to regulate under the Safe Drinking Water Act and specifically the UIC program that's part of the Safe Drinking Water Act, there are mechanisms to do that. Transcript at 28. Because, Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467(11th Cir. 1997) (LEAF-I) is the foundation for the Wright legal opinion that the City of Atlanta's activity of emplacing wastewater through a shaft (injection well) into subsurface excavated tunnels or caverns is considered underground injection activity for which a permit is required under the SDWA/UIC program, the veracity of EPA's representations to this Court needs testing.

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A. LEAF I betray's EPA's veracity. Contrary to EPA's representation to this Court that the issue addressed in LEAF I dealt with LEAF's petition for withdrawing approval of the Alabama UIC program, the Eleventh Circuit Court of Appeals stated at the very outset of its opinion: The issue in this petition for review is whether the United States Environmental Protection Agency ("EPA") is legally required to regulate hydraulic fracturing, a production enhancement technique used by the oil and gas industry, under the underground injection control ("UIC") programs established pursuant to Part C of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. 300h to 300h-8. EPA determined that hydraulic fracturing does not fall within the statutory or regulatory definition of "underground injection." Because we find EPA's interpretation inconsistent with the language of the statute, we grant the petition for review and remand for further proceedings. Clearly, EPA and its counsel could not misread this case. Indeed, as

acknowledged by Mr. Weinischke, the LEAF I case is so heavily cited in the Wright legal opinion in support of the statutory interpretation of underground injection within the context of the UIC rules that for EPA to not acknowledge that the LEAF I case addresses the regulatory definition of underground injection is disingenuous. B. The LEAF I case is central to the comments previously submitted to this Court that the City of Atlanta's activity of emplacing waste water underground is underground injection for which a permit is required under the UIC program. As set forth in the Introduction, Part I, Commenters have previously raised the question of whether the activity of emplacing wastewater through a shaft (injection well) into subsurface excavated tunnels or caverns is considered underground injection activity for which a permit is required under the SDWA/UIC program. There are two positions put forth to answer this question. The first, held by the
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Commenters, holds that because the activity is underground injection a permit is required. This position tracks the statutory language as interpreted by the 11th Circuit Court of Appeals in its decision as set forth in Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467(11th Cir. 1997) (LEAF-I) . The second position is that held by EPA which holds that because tunnels are not intended to emplace wastewater underground, it is not underground injection and therefore a permit is not required under the UIC program. Reviewing both these positions leaves no doubt that the clear statutory language of the SDWA/UIC program requires a permit for emplacing wastewater through a shaft (injection well) into a subsurface excavated tunnel (cavity).

1. A Permit is required for Underground Injection: the Wright Atlanta Opinion/LEAF-I. The case for why the City of Atlanta's waste water storage activities is considered "underground injection" activity and subject to the SDWA's UIC program is detailed in the formal legal opinion by Hal Wright, Esq., hereinafter the Wright Atlanta Opinion. As previously stated, the Wright Atlanta Opinion is substantially based in the controlling opinion of the 11th Circuit in Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467, 1474 (11th Cir. 1997)(LEAF-I) (Thus, it is clear that Congress dictated that all underground injection be regulated under the UIC programs.) The Wright Atlanta Opinion concludes in part: Untreated wastewater will be injected through the dropshafts into the subsurface excavated tunnels. Thus, fluids will be emplaced in the subsurface, either temporarily or permanently, by well injection. Accordingly, the owners/operators of the dropshafts are engaged in underground injection activities1. 1The dropshafts are also injection wells. Ga. Comp. R. & Regs. r.391-3-617

2. EPAs erroneous opinion: tunnels are not intended to emplace fluids below ground and therefore do not qualify as underground injection requiring a permit. An official of the U.S. Environmental Protection Agency has opined that the emplacement of untreated wastewater in the sewer tunnels is not underground injection. He wrote: The UIC program regulates the subsurface emplacement of fluids by well injection. Regulations promulgated under Part C of the Safe Drinking Water Act (SDWA) prevent underground injection from endangering underground sources of drinking water. Tunnels that convey sewage to a Publicly Owned Treatment Works (POTW) for treatment do not fall within the scope of the definitions set forth in the regulations promulgated under Part C of the SDWA. This is because the tunnels are not intended to emplace fluids below the surface of the ground through a well; rather, they are distribution systems intended to convey wastewater to POTWs from intake sites that collect both sewer flow and flow from a treatment plant during high usage times. Therefore, wastewater conveyance tunnels are not required to be permitted under the UIC program. Letter from James D. Giattina, Director, Water Management Division, EPA-R4, to Robert Schreiber (Oct. 18, 2007) (emphasis added).

3. The Chevron Doctrine applied to uphold the emplacement of wastewater as underground injection. When issues of statutory construction are raised, a court must first determine whether Congress has "directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If Congress did not express its intent unambiguously, we defer to the agency's .13(2)(bb) ( a well into which fluids are being, or intended to be, injected). See also 40 C.F.R. 144.3 (a well into which fluids are being injected).
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interpretation if it "is based on a permissible construction of the statute." Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d 1467, 1473 (11th Cir.1997) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. at 2782). Miami Dade County v.EPA, 529 F.3d 1049, 1062 (11th Cir.1997). a. Congressional Intent is clear and Unambiguous. As the Court emphasized in LEAF-I, and as detailed in the Wright Atlanta Opinion, the UIC regulations establish in clear and unambiguous language that underground injection means the subsurface emplacement of fluids by forcing them into cavities and passages in the ground through a well. Legal Envtl. Assistance Found., Inc. v.EPA, 118 F.3d at 1474. As set forth in detail in the Wright Atlanta Opinion, the regulatory language provides the dropshafts by which the City emplaces waste water into the subsurface excavated tunnels are injection wells within the meaning of the UIC program. Therefore, the clear statutory language of the SDWA/UIC program requires a permit for emplacing wastewater through a shaft (injection well) into a subsurface excavated tunnel (cavity). This interpretation is reinforced given the UIC programs statutory purpose of prevent[ing] underground injection which endangers drinking water sources, 42 U.S.C. 300h(b)(1) Id. together with [t]he statute's precautionary purpose [which] is clear [that] the 'actual contamination of drinking water is not a prerequisite either for the establishment of regulations or permit requirements or for the enforcement thereof.' See H.R. Rep No. 93-1185, at 32 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6484. Miami Dade County v. EPA, 529 F.3d at 1064. b. EPAs interpretation is unreasonable and otherwise contradicted by the clear statutory language.

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Even if the UIC regulations were to be deemed less than clear on what constituted underground injection EPAs proferred interpretation of the statutory language is contrary to clear wording of the statute and is otherwise arbitrarily contrived. An agency's construction of a statute is "deemed reasonable if it is not arbitrary, capricious, or clearly contrary to law." Ala. Power Co. v. FERC, 22 F.3d 270, 272 (11th Cir.1994). EPA contends that the term underground injection and hence the UIC regulations does not apply to the emplacement of wastewater through a shaft into subsurface excavated tunnels ...because the tunnels are not intended to emplace fluids below the surface of the ground through a well; rather, they are distribution systems intended to convey wastewater.... EPAs opinion is ill-conceived on several levels. i. EPA's attempt to argue for a narrow definition for underground injection is rejected by the Court in LEAF I. Foremost, it should be pointed out that a very similar argument was attempted by EPA in LEAF-I. EPA unsuccessfully argued in LEAF-I that because the statutory definition of underground injection was allegedly ambiguous its interpretation of underground injection should be accepted by the Court. (EPA suggesting hydraulic fracturing should be excluded from the definition of "underground injection" because the well by which the fluid was emplaced was used primarily as a gas production well and not to inject the hydraulic fracturing liquid). The Court, finding such argument to be spurious held: Congress directed EPA to regulate underground injection activities, not injection wells'. In view of clear statutory language requiring the regulation of all such activities, they must be regulated, regardless of the other uses of the well in which these activities occur. Legal Envtl. Assistance Found., Inc. v. EPA, 118 F.3d at 1475. Similarly, in the present case, EPA attempts to avoid the mandates of the clear
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language of the UIC regulations by attempting to reinterpret the same unambiguous term addressed in LEAF-I, the term underground injection. injection is equally as spurious. ii. EPA's interpretation of underground injection ignores LEAF-I. EPA did not take the LEAF-I courts admonition to heart. Congress directed EPA to regulate underground injection activities, not injection wells. EPA still is not focusing on underground injection activities. Substituting tunnels for injection wells does not change the overall thrust of the UIC program to regulate underground injection activities so as to protect underground sources of drinking water. Moreover, the fact that the focus of EPAs argument is a tunnel rather than a well is of no effect on the ultimate outcome of the discussion. That is simply to say, EPAs reasoning avoids the question, "Is the activity of emplacing wastewater through a shaft (injection well) into a subsurface excavated tunnel 'underground injection' requiring a permit?". The answer is yes, it is underground injection which requires a permit. Second, also in an argument similar to the one raised in LEAF-I, EPA suggests that because the tunnels are used for the conveyance of wastewater and not for the emplacement of wastewater they should not be considered underground injection subject to regulation under the UIC regulations. This interpretation is nonsensical as well. Merely because the intended purpose of the injection of untreated wastewater is not permanent emplacement in the subsurface, but rather to convey the wastewater to treatment facilities, does not alter the fact that the untreated wastewater is emplaced in the subsurface by well injection. Accordingly, it is underground injection. To summarize: as detailed in LEAF-I by the Court in interpreting the statutory
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EPAs present attempt to

disregard the clear language of the UIC regulations and to reinterpret underground

language defining underground injection, because the intent of Congress as expressed in the statutory and regulatory language of the SDWA and the UIC regulations is clear and unambiguous, the emplacement of wastewater through a shaft into subsurface excavated tunnels is underground injection for which a permit is required. EPAs offered interpretation should be discounted as contrived and unreasonable. [I]t is clear that Congress dictated that all underground injection be regulated under the UIC programs. Legal Envtl. Assistance Found., Inc. v. U.S. Envtl. Prot. Agency, 118 F.3d at 1475.
IV. The legacy of Upper Chattahoochee RiverKeeper v. City of Atlanta could well be

determined by whether Atlanta's underground waters are protected by the UIC program. The Agencies may assert several jurisprudential reasons why these Commenters should not be in front of this Court. In fact, Commenters NOCRAP, South River Watershed Alliance, and Little Mountain Water Association are not parties to this action. Commenters are more in the nature of Amicus Curiae, having both this Court's and the public's interest in clean water and public health at heart. As widely recognized by the parties, these Commenters, and the greater public, this Court has performed an exemplary task over the past 15 years in addressing Atlanta's combined waste water and storm water management system woes. addressing this critical problem. As a multi-generational citizen of this community who literally grew up playing in the streams and tributaries of the Chattahoochee River, this attorney can particularly appreciate the need to protect these valuable water resources.
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This

Court's firmness, leadership, and fairness to all involved parties have been pivotal to

Moreover, as a trained

water economist as well as a lawyer , it is agreed that the RiverKeeper case is truly a threshold case in the history of the City of Atlanta. It is precisely for this reason that the issue associated with the UIC program is so critical. The effective implementation of the Consent Decree to date has arguably been a success with but one notable exception, the City's failure to comply with the UIC regulations. For whatever reason, the Agencies (EPA and EPD) have chosen to figuratively kick the can down the road when dealing with future violations of the SDWA. The present failure by this Court to address the UIC regulations will sometime in the future allow a third party to threaten the entire wastewater and stormwater management infrastructure system which this Court has labored so strenuously to implement. As the Court will acknowledge, the costs of constructing the underground wastewater storage and conveyance systems have been large and controversial. Delay in implementing the UIC program and in assuring the wastewater infrastructure currently under construction is not threatening the area's ground water resources will result in an increased financial burden in the future. The Court will recall that one of the criticisms of the City of Atlanta prior to the RiverKeeper litigation was that the City was guilty of simply putting off to future generations the necessary investment to safeguard the area's water resources. The Court should not allow the same to be said in connection with implementing the safeguards of the UIC program. Finally, the legacy of this case, and indeed of this Court, may be determined by how this Court handles the UIC program issue. The issue of whether to enforce the measures to protect current and future drinking water supplies is not a matter that can await some future harm or catastrophic event. It is best handled now and by this Court.
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The Court in Natural Resources Defense Council, Inc. v. U.S.E.P.A., 824 F.2d 1258, 1271 (C.A.1, 1987), addressing the threat to underground sources of drinking water from the disposal of the growing amounts of radioactive wastes under the 1982 Nuclear Waste Act stated it best: We cannot accept the Agency's claim that it may close its eyes to the possible and very likely future violations of the SDWA that will result from these design criteria, while blithely asserting that in the future the SDWA's regulations will still apply so as to protect drinking water. Enforcing the SDWA sometime in the future might well be too late since Congress's intent in enacting Part C of the SDWA was to prevent the endangerment of drinking water sources and thus ensure that there will be sufficient quantities of usable groundwater for future generations. Once those drinking water resources are contaminated, the other regulations under the SDWA may guard against improper use of this water for drinking, but the SDWA will not restore the drinking water sources to their original quality. As friends of this Court and of this community, Commenters urge the close review and enforcement of the Underground Injection Control program of the Safe Drinking Water Act.
REQUEST FOR ACTION

Commenters respectfully request this Court to declare the rules and regulations implementing Georgia's Underground Injection Control program, Ga. Comp. R. & Regs. r. 391-3-6-.13, are applicable to the City of Atlanta's activities of emplacing wastewater through a shaft (injection well) into subsurface excavated tunnels and caverns (cavities).

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Respectfully submitted, this

day of October, 2012.

Howell Franklin Wright, Jr., Esq. Bar No. 778109

Hal Wright, Esq., P.C. 3781 Parian Ridge Rd. Atlanta, Ga 30327 404-694-7789

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