ELR Citation: ELR 20902
No(s). 85-1431 (8th Cir. Jun 6, 1986)

The court holds that petitioner's challenge to the Environmental Protection Agency's (EPA's) approval of Nebraska's underground injection control program (UIC) under the Safe Drinking Water Act (SDWA) is untimely and that EPA's approval of Nebraska's request to exempt an aquifer from the UIC program's requirements was supported by substantial evidence. The court first holds that petitioner's challenge to EPA's approval of the state UIC program, filed nine months after the approval, was untimely. Under SDWA §1448(a), such challenges must be filed within 45 days after promulgation of the regulation approving that state program.

The court next rejects petitioner's procedural challenges to EPA's approval of the aquifer exemption. The court holds that petitioner's challenge to EPA's UIC program regulations authorizing the agency to grant aquifer exemptions is barred by the 45-day limit in §1448(a). Even if timely, attacks on EPA's UIC program regulations may be brought only in the Court of Appeals for the District of Columbia. The court also holds that EPA's approval of only 6.7 acres of the requested 3,000-acre aquifer exemption to conduct research into subsurface uranium mining could be approved by an acting EPA regional administrator and without formal rulemaking. EPA had determined that the 6.7-acre exemption was a nonsubstantial program revision and, the court holds, the decision of whether a proposed UIC program revision is substantial or nonsubstantial lies with the agency. The court next holds that EPA's approval of the aquifer exemption was proper under either the arbitrary and carpricious standard or the substantial evidence standard. EPA reasonably concluded that the 6.7-acre area met its criteria for exempted aquifers based on its findings that the aquifer is not used as a source of drinking water, that the area contains commercial amounts of uranium, and, in the alternative, that the area is so contaminated by uranium that it would be impractical to produce drinking water fit for human consumption. EPA also properly considered several other relevant factors in granting the exemption, including the impact of the proposed project on human health and the environment.

[A related opinion is published at 16 ELR 20535.]

Counsel for Petitioner
Andrew Reid
Western Nebraska Resources Council
Star Route 1, Chadron NE 69337
(308) 432-4259

Counsel for Respondent
Ann C. Hurley, Erik Olson
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20001
(202) 475-8040

Before LAY, Chief Judge, FAGG, Circuit Judge, and ROSENBAUM,^* District Judge.