Today's post examines an unrecognized circuit split (and perhaps a conflict within a circuit as well) involving the Safe Drinking Water Act (SDWA), which regulates underground injections. The SDWA created the Underground Injection Control Program (UIC Program) to establish and enforce regulations for improper underground injections.
"Underground injection" refers to a particular type of technology used to inject fluids into porous, underground rock formations. See EPA Report, Safe Drinking Water Act Enforcement. The SDWA defines this term as meaning “the subsurface emplacement of fluids by well injection.” 42 U.S.C § 300h(d)(1)(A). Building on the provisions of the SDWA, these EPA regulations prohibit the "movement of fluid" into underground sources of drinking water absent a permit if the fluid contains any contaminent. See 40 C.F.R. § 144.12(a). The EPA's UIC Program establishes five classes of underground-injection wells for determining whether a permit is required before moving a particular fluid into the ground. (A summary of these classes can be found in a "pocket guide" published on the EPA's website here.)
An intercircuit split has emerged within the Eleventh Circuit over the scope of the phrase "fluid movement." For example, in Miami-Dade County v. EPA, the Eleventh Circuit adopted the "no fluid movement" standard for a Class I injection, explaining, “Under this ‘no fluid movement’ or the ‘no migration’ standard, any evidence ‘indicat[ing] the [unauthorized] movement of any contaminant into a [an underground source of drinking water]’ requires ‘the Director [to] prescribe such additional requirements . . . as are necessary to prevent such movement.” 529 F.3d 1049 (11th Cir. 2008). In Legal Environmental Assistance Foundation, Inc. v. EPA, however, the court held that for purposes of a Class V injection involving hyrdaulic fracturing, the term "injection" refers to the “forc[ing of] a liquid into passage, cavity, or tissue.” 18 F.3d 1467 (11th Cir. 1997) [hereafter "LEAF"].
District courts outside of the Eleventh Circuit have also reached divergent results on this issue. See, e.g., Incorporated Village of Garden City v. Genseco, Inc., 596 F. Supp. 2d 587 (E.D.N.Y. 2009) (construing "injection activity" to require some affirmative use of force to inject or channel fluid prohibited by the SDWA into an underground water source); Goliad Cnty. v. Uranium Energy Corp., No. V-08-18, 2009 WL 1586688, at *17–19 (S.D. Tex. June 5, 2009) (mem. op.) (citing LEAF and Genseco in support of its conclusion that a "subsequent [well] owner's mere failure to close the well was insufficient as a matter of law to allow the SDWA claim to stand").
These decisions simply do not align. Miami-Dade, for example, applied the no-fluid-movement standard to wells in Classes I, II, and III, which appears to contradict the standard set forth in Goliad requiring “knowledge” of the injection or “some level of intent” to inject proscribed fluid into the ground. So where do the federal courts stand on what action (or inaction) is required to hold an individual liable for violating the SDWA’s UIC provisions?
As American industries continue to explore for alternative forms of energy, issues related to underground injections will become more pervasive. In turn, the SDWA and EPA regulations will continue to become increasingly relevant as local communities try to protect their drinking water. Based on the early cases discussed above, this issue will likley blossom into a widespread circuit split over time.
(Image courtesy of checksandbalancesproject.org)