ELR Citation: ELR 20535
No(s). CV85-L-159 (D. Neb. Apr 2, 1986)

In an action challenging Nebraska's underground injection control (UIC) program promulgated under §1421(a)(1) of the Safe Drinking Water Act (SDWA), the court rules that the court of appeals has exclusive jurisdiction. The court first holds that the Administrator of the Environmental Protection Agency (EPA) did not fail to perform a nondiscretionary duty and thus the §1449 citizen suit provisions are not triggered. The court holds that EPA held the necessary public hearings and comment period prior to the approval of the Nebraska UIC program that replaced the one EPA administered, which was implemented after Nebraska submitted its plan but prior to its approval by EPA. The court finds that plaintiff's challenge is, in fact, to the adequacy of EPA action, not to dereliction of statutory duty, which is properly addressed by the court of appeals. Next the court holds that the procedures followed by EPA in approving a revision to the UIC program that exempted portions of the Chadron aquifer were proper. The court finds that the challenges to the inclusion of an aquifer exemption within the Nebraska program and the nondesignation of the Chadron aquifer as an underground source of drinking waterin the program approval are essentially challenges to the Nebraska program and are thus properly reviewed in the court of appeals. Further, the court holds that EPA did not violate its duty to notify a state of noncompliance; EPA made no finding of a violation nor was it compelled to do so.

The court also holds that the Eleventh Amendment does not preclude plaintiff's action seeking prospective relief against the Director of the Nebraska Department of Environmental Control (NDEC) for violation of federal law. The court, however, holds that the citizen suit provisions are not triggered. The NDEC properly provided notice and a comment period before submission of the UIC program; NDEC failure to reduce the exempted area from 3,000 acres to 6.7 acres to match with the EPA determination, pending further study, was proper; the SDWA does not require a valid exemption prior to approval of a permit; and the SDWA does not require a permit issued by a state to correspond to the area exempted by EPA.

The court then holds that neither the National Environmental Policy Act (NEPA), the Administrative Procedure Act, the Declaratory Judgment Act, the Due Process Clauses of the Fifth and Fourteenth Amendments, nor pendent state claims provide the court with jurisdiction. Finally, the court finds that the majority of claims brought by the plaintiff were not filed within the 45-day period prescribed by §1338 and thus are untimely. However, the NEPA claim is subject to transfer to the court of appeals.

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

Counsel for Defendants
Richard Fanyo
Wilborn, Dufford, Brown & Tooley
1700 Broadway, Suite 1100, Denver CO 80290-1199
(303) 861-8013

Erik Olson
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 382-7700

Barry Neuman, Ann Hurley
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2664

Ruth Anne Galter, Ass't Attorney General
Rm. 2115, State Capitol, P.O. Box 94906
Lincoln NE 68509-4906
(402) 471-2682