Phillips Petroleum Co. v. U.S. E.P.A.
| Decision Date | 10 October 1986 |
| Docket Number | No. 85-1039,85-1039 |
| Citation | 803 F.2d 545 |
| Parties | , 17 Envtl. L. Rep. 20,387 PHILLIPS PETROLEUM COMPANY, Phillips Oil Company, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Reese B. Copeland (C.J. Roberts, with him on briefs), Phillips Petroleum Co., Bartlesville, Okl., for petitioners.
John F. Cermak, Jr., Land and Natural Resources Div., U.S. Dept. of Justice and Erik D. Olson, U.S. E.P.A., (F. Henry Habicht
II, Asst. Atty. Gen., U.S. Dept. of Justice, with them on briefs), Washington, D.C. for respondent.
Before HOLLOWAY, Chief Judge, McWILLIAMS and ANDERSON, Circuit Judges.
Phillips Petroleum Company and Phillips Oil Company ("Phillips"), petition this court to review an Environmental Protection Agency ("EPA") regulation establishing an underground injection control program for the Osage Indian Mineral Reserve in Oklahoma. The underground injection control program regulation was established pursuant to the Safe Drinking Water Act of 1974, Section 1401, 42 U.S.C. Secs. 300f-300j-10 (1982) ("SDWA"). Issues raised by Phillips include: (1) whether the SDWA empowers the EPA to promulgate an underground injection control program regulation for the Osage Indian Mineral Reserve; (2) whether the EPA violated the Administrative Procedures Act, 5 U.S.C. Secs. 500-576 (1982) ("APA"), by declining to extend the informal rule comment period 30 days; and (3) whether the mechanical integrity requirement of the Osage underground injection control regulation was lawful. The EPA, in turn, challenges this court's jurisdiction to entertain Phillips' petition, asserting that review belongs to the United States Court of Appeals for the District of Columbia.
For the reasons discussed below, we hold that the Osage underground injection control regulation is reviewable in this court. We also hold that the SDWA empowers the EPA to promulgate underground injection control regulations for Indian lands. Phillips' other contentions are without merit, and we therefore uphold the Osage injection program regulation promulgated by the EPA for the Osage Indian Mineral Reserve in its entirety.
The SDWA establishes a regulatory mechanism to insure the quality of publicly supplied drinking water. 1 Part C of the SDWA establishes a regulatory program designed to prevent the endangerment of underground drinking water sources. In particular, Part C envisions a joint federal-state system to regulate the discharge of pollutants by injection wells into underground water systems. 2 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. 3 No injection Individual states may apply and receive approval ("primacy") to implement their own underground injection control programs if they meet the minimum requirements established by the EPA's regulations. Section 1422, 42 U.S.C. Sec. 300h-1. 4
is to be allowed that may endanger "drinking water sources." Section 1421(b)(1), 42 U.S.C. Sec. 300h(b)(1). An injection is presumed to endanger drinking water sources if it might result in a public water system's "not complying with any national primary drinking water regulation" or might otherwise adversely affect the public health. Section 1421(d)(2), 42 U.S.C. Sec. 300h(d)(2)
If a state fails to adopt or adequately enforce an approved underground injection control program, the EPA must install its own federally administered program for the state or that part of the state not covered by an EPA approved program. Section 1422(c), 42 U.S.C. Sec. 300h-1(c).
As passed in 1974, the SDWA made no mention of Indian tribes or Indian lands other than to include an "Indian tribal organization" within the definition of "municipality." Section 1401(10), 42 U.S.C. Sec. 300f(10). In 1986, Congress amended Part E of the SDWA by adding section 1451 which specifically authorizes the Administrator of the EPA "to treat Indian tribes as States under this title." Safe Drinking Water Amendments of 1986, Pub.L. No. 99-339, Sec. 302, 100 Stat. 642, 665-66 (1986). 5
Moreover, the 1986 amendments altered section 1422 of the SDWA to clarify the role of the EPA where Indian lands are concerned vis-a-vis powers now permitted to the tribes:
If an applicable underground injection control program does not exist for an Indian Tribe, the Administrator shall prescribe such a program pursuant to subsection (c) of this section, and consistent with section 1421(b), within 270 days after the enactment of the Safe Drinking Water Act Amendments of 1986, unless an Indian Tribe first obtains approval to assume primary enforcement responsibility for underground injection control.
Pub.L. No. 99-339, Sec. 302, 100 Stat. 666.
An Indian Tribe may assume primary enforcement responsibility for underground injection control consistent with the regulations the Administrator has prescribed pursuant to Part C and Section 1451 of the SDWA. Id. However, "[u]ntil an Indian Tribe assumes primary enforcement responsibility, the currently applicable underground injection control program shall continue to apply." Id.
In 1980, the EPA promulgated the national technical minimum requirements for all state underground injection control programs. 45 Fed.Reg. 42,472 (June 24, 1980); 45 Fed.Reg. 33,290 (May 19, 1980). 6 Subsequently, the EPA proposed a regulation for promulgating EPA administered underground injection control programs for Indian lands that would satisfy the minimum requirements of section 1421, but also consider tribal preferences and allow maximum uniformity with adjacent state programs. 47 Fed.Reg. 17,578 (Apr. 23, 1982). In 1983, the EPA promulgated a final rule allowing the agency to prescribe "alternate" underground injection control programs for Indian lands. 40 C.F.R. Sec. 144.2 (1985). 7
On December 2, 1981, the EPA approved Oklahoma's application for underground injection control primacy for the entire state except the Osage Indian Reserve. 46 Fed.Reg. 58,488-89 (Dec. 2, 1981). The State of Oklahoma made no attempt to assert jurisdiction over the Osage Reserve and does not contest the EPA's authority to promulgate the Osage regulation. Thereafter, the EPA began to study and develop an underground injection control program for the Osage Reserve. The EPA held a public hearing on October 14, 1983, outlining the draft Osage and Indian lands underground injection control programs for Oklahoma. 48 Fed.Reg. 40,098-99 (Sept. 2, 1983). On May 11, 1984, the EPA published the proposed underground injection control rule for the Osage Reserve. Public comments were accepted for 45 days. Phillips participated in the public hearing and filed extensive comments, but requested a 30-day extension of the comment period. The EPA denied Phillips' request and the final Osage underground injection control program was adopted on May 11, 1984. 49 Fed.Reg. 20,238 and 20,256-63 (May 11, 1984).
On January 10, 1985, Phillips filed a petition for review of the Osage underground injection control regulation in this court. The next day, Phillips filed an identical petition for review in the United States Court of Appeals for the District of Columbia. That court is holding Phillips' petition in abeyance until we determine whether we
have jurisdiction to hear the present case. Phillips Petroleum Co. v. EPA, No. 85-1026 (D.C.Cir.1985) (Order of March 11, 1985; modified May 23, 1985). On March 5, 1985, the EPA filed a motion to transfer the case to the United States Court of Appeals for the District of Columbia. By Order dated April 9, 1985, we denied the motion to transfer, but directed the parties to address the jurisdictional issue in their briefs on the merits.
The EPA contends that only the United States Court of Appeals for the District of Columbia may consider Phillips' petition. Phillips responds by arguing that judicial review of its petition falls under another section of the SDWA authorizing review in any appropriate circuit.
Prior to 1986, the SDWA's review provisions read in part as follows:
A petition for review of--
(1) action of the administrator in promulgating ... any regulation for State underground injection control programs under section 300h of this title, or any general regulation for the administration of this subchapter may be filed only in the United States Court of Appeals for the District of Columbia Circuit; and
(2) action of the administrator in promulgating any other regulation under this subchapter ... may be filed only in the United States Court of appeals for the appropriate circuit.
Section 1448(a), 42 U.S.C. Sec. 300j-7(a).
The 1986 amendments of the SDWA changed the judicial review section with respect to the underground water provisions. The theory for that change is apparently that diversity of review provided by all the circuits is more valuable than developing expertise and uniformity by centralized review in the D.C. Circuit. 8 The judicial review provisions now read as follows:
A petition for review of--
(1) actions pertaining to the establishment of national primary drinking water regulations (including maximum contaminant level goals) may be filed only in the United States Court of Appeals for the District of Columbia Circuit; and
(2) any other action of the Administrator under this Act may be filed in the circuit in which the petitioner resides or transacts business which is directly affected by the action.
Pub.L. No. 99-339, Sec. 303, 100 Stat. 667 ().
Subsection (a)(1) of section 1448 applies to Part B of the SDWA. Phillips' petition relates to Part C which falls under subsection (a)(2) of section 1448 as "any other action of the Administrator" under the SDWA. Therefore, the 1986 amendment...
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