ELR Citation: ELR 20889
No(s). s. 89-1405, -1442 (7th Cir. May 8, 1990)

The court rules that deep well injection is subject to corrective action requirements under §3004(u) of the Resource Conservation and Recovery Act (RCRA). Two steel manufacturers in northern Indiana argue that a deep injection well is a point source subject to the permit requirements of §402 of the Federal Water Pollution Control Act (FWPCA) and is therefore entitled to RCRA's §1004(27) exemption for discharges subject to FWPCA §402. But the court holds that deep well injections are not discharges under FWPCA §402. The FWPCA is designed for the protection of navigable waters, and a well that injects wastes more than one-quarter-mile below the lowest known aquifer is not discharging wastes into navigable waters. Moreover, whereas the RCRA §1004(27) exemption is for discharges, what deep injection wells do is better described as disposal, which encompasses both discharge and injection under its RCRA definition. The court notes that although its earlier decision in United States Steel Corp. v. Train, 7 ELR 20419, held that deep injection well wastes could pollute navigable waters, it did not hold that keep injection wells are point sources of industrial discharges subject to the FWPCA. The court further concludes that the purpose of the RCRA §1004(27) exemption is to avoid duplicative regulation, not to create a regulatory hole through which billions of gallons of hazardous wastes can be pumped into the earth without any controls, provided they are pumped deeply enough to endanger neither navigable waters nor the supply of drinking water. No indication exists that Congress intended to exempt the owners of deep injection wells from regulation under RCRA, nor does the language of the Act compel such a result. Finally, the court upholds EPA's decision that RCRA §3004(u) requires the companies to obtain a permit to dispose of solid wastes and to take corrective action with respect to all solid waste management units on their property, including inactive injection well units in which toxic wastes have been stored for many years.

Counsel for Petitioners
Dean Calland
Babst, Calland, Clements & Zomnir
Two Gateway Ctr., Eighth Fl., Pittsburgh PA 15222
(412) 394-5400

Counsel for Respondents
Charles Sutfin
U.S. Environmental Protection Agency
230 S. Dearborn St., Chicago IL 60604
(312) 353-2000

Before POSNER, FLAUM, and RIPPLE, Circuit Judges.