Miami-Dade County v. U.S. E.P.A.
| Decision Date | 06 June 2008 |
| Docket Number | No. 06-10575.,No. 06-10576.,No. 06-10574.,No. 06-10583.,No. 06-10579.,No. 06-10551.,06-10551.,06-10574.,06-10575.,06-10576.,06-10579.,06-10583. |
| Citation | 529 F.3d 1049 |
| Parties | MIAMI-DADE COUNTY, a political subdivision of the State of Florida, Petitioner, v. THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Stephen L. Johnson, Administrator, U.S. Environmental Protection Agency, Respondents. City of Cooper City, Florida, a municipal corporation, Petitioner, v. The United States Environmental Protection Agency, Stephen L. Johnson, Administrator, U.S. Environmental Protection Agency, Respondents. City of Miramar, Florida, a municipal corporation, Petitioner, v. The United States Environmental Protection Agency, Stephen L. Johnson, Administrator, U.S. Environmental Protection Agency, Respondents. City of Sunrise, a Municipal Corporation, E. Central Regional Wastewater Treatment Facilities Operation Board, an Interlocal Entity Created pursuant to Section 163.01, et. seq., Fla. Stat., Petitioners, v. The United States Environmental Protection Agency, Stephen L. Johnson, Administrator, U.S. Environmental Protection Agency, Respondents. Sierra Club, Petitioner, v. The United States Environmental Protection Agency, Stephen L. Johnson, Administrator, U.S. Environmental Protection Agency, Respondents. City of Margate, FL, Petitioner, v. The United States Environmental Protection Agency, Stephen L. Johnson, Administrator, U.S. Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Sanders, Turner Environmental Law Clinic-Emory University School of Law, Atlanta, GA, David G. Bookbinder, Sierra Club, Washington, DC, for Petitioners.
Matthew Oakes, Pamela S. Tonglao, Lily N. Chinn, Heather Gange, U.S. Dept. of Justice, Washington, DC, Charles R. Fletcher, Shumaker, Loop & Kendrick, LLP, Tampa, FL, for Respondents.
Petitions for Review of a Decision of the Environmental Protection Agency.
Before BIRCH, PRYOR and KRAVITCH, Circuit Judges.
Miami-Dade County ("the County"), City of Miramar, City of Margate, City of Cooper City, City of Sunrise, East Central Regional Wastewater Treatment Facilities Operation Board (collectively "Municipalities"), and the Sierra Club petition for review of the Final Rule promulgated by the EPA amending the current federal underground injection control ("UIC") requirements for Class I municipal disposal wells in Florida. 40 C.F.R. § 146.15, 146.16. The petitioners argue that the Final Rule conflicts with the plain language of the authorizing statute, that the EPA's approach to UIC regulation in South Florida is arbitrary and capricious, and that the EPA gave insufficient notice of certain terms of the Final Rule in violation of the Administrative Procedure Act ("APA"). We DENY the petition.
In 1974, concerned that drinking water across the country contained unsafe levels of a wide variety of contaminants, Congress passed the Safe Drinking Water Act ("SDWA"). Part C of the act addresses the protection of underground sources of drinking water ("USDW") against contamination by underground injection of effluent.1 42 U.S.C. §§ 300h to 300h-8. Under the SDWA, the EPA promulgates regulations setting parameters for state UIC programs. 42 U.S.C. § 300h(b)(1). State requirements must at least meet, but may also exceed EPA requirements for protection. In protecting USDWs, § 1421(d)(2) of the SDWA states that:
[u]nderground injection endangers drinking water sources if such injection may result in the presence in underground water which supplies or can reasonably be expected to supply any public water system of any contaminant, and if the presence of such contaminant may result in such system's not complying with any national primary drinking water regulation or may otherwise adversely affect the health of persons.
Id. § 300h(d)(2).2 Additionally, EPA regulations "shall permit or provide for consideration of varying geologic, hydrological, or historical conditions in different States and in different areas within a State." Id. § 300h(b)(3)(A).
The EPA has implemented Part C of the SDWA at 40 C.F.R. Parts 144-46. In its initial UIC regulations, the EPA defined five classes of injection wells. See 40 C.F.R. §§ 144.6, 146.5. The County and Municipalities own and operate municipal disposal wells, which inject treated domestic wastewater from a variety of facilities. These constitute one type of Class I well, and this is the only class of well at issue in this case.3
Regulatory requirements vary by well class. However, no injection well may cause "the movement of fluid containing any contaminant into [USDWs], if the presence of that contaminant may cause a violation of any primary drinking water regulation ... or may otherwise adversely affect the health of persons." 40 C.F.R. § 144.12(a). Within this limitation, the EPA has recognized several approaches for preventing the endangerment of USDWs by underground injection. These include bans on certain types of wells and particular practices, waste isolation, and waste treatment.
Currently applied to wells in Classes I, II, and III, the waste isolation approach keeps injected wastewater from coming into contact with USDWs. Under this "no fluid movement" or the "no migration" standard, any evidence "indicat[ing] the [unauthorized] movement of any contaminant into [a USDW]" requires "the Director [to] prescribe such additional requirements ... as are necessary to prevent such movement." 40 C.F.R. § 144.12(b). This rule has applied even in the absence of evidence that a USDW has actually been endangered.
Because this no-fluid-movement standard "is operationally meaningful (i.e., it can be measured or otherwise determined) and because it can be achieved through the use of available, good engineering practices," the EPA has applied it to wells in Classes I, II, and III since 1980. Consolidated Permit Regulations, 45 Fed.Reg. 33,290, 33,330 (May 19, 1980) (). However, EPA regulations have also long recognized the viability of alternative approaches. For instance, the regulations give the permitting authority discretion to relieve existing or new Class II wells in existing injection fields of casing and cementing requirements as long as such wells comply with the casing and cementing regulations extant at the time of drilling or when the field was submitted to the state program for approval, and as long as any resulting "movement of fluids into an underground source of drinking water [will not] create a significant risk to the health of persons." 40 C.F.R. § 146.22(c)(2), (d)(2). Also, under 40 C.F.R. § 144.82, Class V well operators have discretion to employ a wide range of measures to prevent USDW endangerment — at base, they are prohibited only from injection activities that will result in the presence of a contaminant of concern in a USDW. See 40 C.F.R. § 144.82. As a result, many such wells "inject non-hazardous fluids into and above USDWs." Consolidated Permit Regulations, 45 Fed.Reg. at 33,330. The EPA recognizes that implementing § 1421(d) in this manner is different from employing the no-fluid-movement approach, but views it as no "more stringent or more inclusive." Water Programs; Consolidated Permit Regulations and Technical Criteria and Standards; State Underground Injection Control Programs, 45 Fed.Reg. 42,472, 42,477 (June 24, 1980) ().
(1) No-Fluid-Movement Standard & Florida Class I Municipal Disposal Wells.
For more than 20 years, Florida municipalities have injected large quantities of treated domestic effluent into deep underground caverns as an alternative to surface disposal. The Florida Department of Environmental Protection (FDEP) has administered the federally-approved UIC program that regulates Class I underground injection wells in Florida since 1983. When the FDEP first began issuing permits to Class I wells, it was thought that these cavernous formations would adequately confine the wastewater, isolating it from USDWs. Revision to the Federal Underground Injection Control (UIC) Requirements for Class I — Municipal Wells in Florida, 65 Fed.Reg. 42,234, 42,235 (July 7, 2000) (). Since then, however, groundwater monitoring wells have detected unpermitted fluid movement that has, in some cases, reached USDWs. Additional investigation has shown this fluid movement to have resulted from a failure of the porous rock around the Floridan Aquifer adequately to confine the effluent.4
(2) Alternative Treatment-Based Approach
Responding to the detection of this fluid movement and having held a meeting with industry representatives, environmental groups, local governments and other stakeholders, the EPA issued a proposed revision of its regulations on 7 July 2000. This revision would have allowed existing Class I wells in specific areas in Florida to continue to inject if the owners or operators of those wells met certain further treatment requirements. More specifically, the EPA proposed two options that were to apply to all existing Class I municipal disposal wells that had caused or might cause movement of contaminants into USDWs. Revision to UIC Requirements, 65 Fed.Reg. 42,234.
Option 1 would have allowed the continued use of wells as long as the facility in question provided advanced wastewater treatment, high-level disinfection, and a non-endangerment demonstration to show that the injectate would not...
To continue reading
Request your trial
-
Animal Legal Def. Fund v. U.S. Dep't of Agric.
...S.Ct. at 2781 n. 9. These include “examination of the text of the statute, its structure, and its stated purpose.” Miami—Dade Cnty. v. EPA, 529 F.3d 1049, 1063 (11th Cir.2008). “As with any question of statutory interpretation, we begin by examining the text of the statute to determine whet......
-
Georgia v. Wheeler
...in the record to support their objections to the rule and thereby enhance the quality of judicial review." Miami-Dade Cty. v. E.P.A., 529 F.3d 1049, 1058 (11th Cir. 2008) (quoting Envtl. Integrity Project v. E.P.A., 425 F.3d 992, 996 (D.C. Cir. 2005) ). An agency satisfies the notice requir......
-
Cal. Wilderness Coal. v. Dumps
...adopted the D.C. Circuit's rule for showing prejudice when the agency has made a procedural error. See, e.g., Miami–Dade Cnty. v. EPA, 529 F.3d 1049, 1061 (11th Cir.2008) (citing the D.C. Circuit's decision in Owner–Operator and holding that to show prejudice from the lack of opportunity to......
-
Oceana v. Bureau of Ocean Energy Mgmt.
...the course of action to be taken.") (quoting Hammond v. Norton, 370 F. Supp. 2d 226, 240 (D.D.C. 2005)); see also Miami-Dade Cnty. v. EPA, 529 F.3d 1049, 1065 (11th Cir. 2008) ("courts must be extremely deferential when an agency's decision rests on the evaluation of complex scientific data......
-
TEXTUALISM AND THE ADMINISTRATIVE PROCEDURE ACT.
...the logical outgrowth test to South Terminal Corporation v. EPA, 504 F.2d 646 (1st Cir. 1974)). (191) See, e.g., Mia.-Dade Cnty. v. EPA, 529 F.3d 1049, 1058-59 (11th Cir. 2008) (describing the logical outgrowth test and citing (192) See, e.g.. Agape Church, Inc. v. FCC, 738 F.3d 397, 411 (D......
-
Environmental Law
...144 F.3d 1446, 1450 (11th Cir. 1998)).130. Id. at 1250.131. Id. at 1249-50.132. Id. at 1250.133. Id. (quoting Miami-Dade Cnty. v. EPA, 529 F.3d 1049, 1065 (11th Cir. 2008)).134. Id. at 1250-51; see also 43 U.S.C. § 1346(d).135. Defenders of Wildlife, 684 F.3d at 1251. 136. Id. at 1251-52.13......
-
Environmental Law - Travis M. Trimble
...8. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1363 (11th Cir. 2008). 9. 42 U.S.C. Sec. 300f-300j (2006); Miami-Dade County v. EPA, 529 F.3d 1049,1071 (11th Cir. 2008). 10. 42 U.S.C. Sec. 9601-9675 (2006). 11. OSI, Inc. v. United States, 525 F.3d 1294, 1299 (11th Cir. 2008). 12. 541 F.3d 125......