ELR Citation: ELR 20383
No(s). 00-10381 (11th Cir. Dec 21, 2001)

The court grants in part and denies in part an environmental group's petition to review the U.S. Environmental Protection Agency's (EPA's) approval of Alabama's revised underground injection control (UIC) program for the underground injection of fracturing fluids to enhance the recovery of methane gas from coal beds. The court first holds that although the U.S. Congress has not spoken directly on point, a state's program for underground injection of hydraulic fracturing fluids to enhance the recovery of methane gas from coal beds may be approved under the alternative approval method of Safe Drinking Water Act (SDWA) §1425, which is more flexible than the approval requirements under §1422. SDWA §1425 evinces Congress' intent to permit a portion of a state's UIC program to fall under §1425 provided that the activity controlled by that portion relates to "the underground injection of brine or other fluids which are brought to the surface in connection with oil or natural gas production or natural gas storage operations" or "any underground injection for the secondary or tertiary recovery of oil or natural gas" as required by the statute. Based on that definition, the process of hydraulic fracturing, while not technically identical to secondary or tertiary recovery of natural gas, is analogous to secondary and tertiary recovery and therefore covered by the alternate approval method set forth in SDWA §1425. The court further holds that EPA was not arbitrary or capricious in finding that Alabama's revised UIC program meets the statutory criteria of SDWA §1425. The court, however, holds that EPA erred in concluding that hydraulic fracturing does not fit into one of the five classifications for underground injection wells. Where, as here, the classification system sets forth five classes, one of which serves as a catchall for any well not covered by the first four, EPA must classify hydraulic fracturing into one of those categories. Therefore, on remand EPA must determine whether Alabama's revised UIC program complies with the requirements for one of the five classifications.

A prior decision in this litigation is published at 27 ELR 21385.]

Counsel for Petitioner
David A. Ludder
Legal Environmental Assistance Foundation, Inc.
1115 N. Gadsen St., Tallahassee FL 32303
(904) 681-2591

Counsel for Respondent
Patricia McCubbin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Black, J. Before Marcus and Hancock,¹ JJ.

1. Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting by designation.