ELR Citation: ELR 20664
No(s). 92-3200 (11th Cir. Jan 12, 1994)

The court holds that under the U.S. Environmental Protection Agency's (EPA's) Safe Drinking Water Act regulation listed at 40 C.F.R. §144.37(d), a Florida agency acted properly when it based its determination of whether to extend an expired state construction and testing permit for an exploratory test injection well during the period the permittee's application for an operating permit was pending, on all existing Florida law. Section 144.37(d) allows any state with an EPA-approved underground injection control (UIC) program, such as Florida, to grant extensions of such permits "if State law allows." The court first notes that the agency's interpretation of a section of the Florida Administrative Procedure Act that deals with license renewals is not entitled to deference, because the Act applies to all Florida administrative agencies, and the department of environmental regulation has no special expertise in interpreting it. The court remands determination of this issue to the Florida Supreme Court, because it involves a matter of state law. The court holds that §144.37(d) authorized the agency to interpret all relevant Florida law in determining whether to grant the permit extension. This includes an amended rule that has not yet been included in Florida's EPA-approved UIC program. The phrase "if State law allows" is not limited to the state's EPA-approved UIC program, but refers to all existing state law. The Court certifies to the Florida Supreme Court the question of whether, under existing state law, an expired construction and testing permit continues in effect until the department of environmental regulation acts on the permittee's pending application for an injection well operating permit.

Counsel for Plaintiff
David A. Ludder, Barbara Sue Ruhl
Legal Environmental Assistance Foundation
1115 N. Gadsden St., Tallahassee FL 32303
(904) 681-2591

Counsel for Defendant
Nina Boniske
Brevard County Attorney's Office
2725 St. John St., Melbourne FL 32940
(407) 633-2090

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON, Senior Circuit Judge.