Chink In The Casing: Finding Fault With Government Management Of UIC Programs, And How Citizens Can Protect Themselves

Among the many possible ways to manage industrial waste is underground injection in what are called Underground Injection Control wells. As the name suggests, underground injection is the process of injecting liquid waste into a porous subsurface geologic layer in a manner that attempts to keep the waste isolated and to prevent harm to drinking water sources. UIC wells provide the conduit for the waste to reach the subsurface layer.

The federal Safe Drinking Water Act creates a permitting and enforcement program for UIC wells of various kinds, including so-called Class II-D wells that are for injection of waste generated by oil and gas exploration and production. The federal Environmental Protection Agency is the default agency that implements the UIC program, though states can earn the right to implement it on their own subject to EPA oversight.

UIC wells have been in the news quite often this summer. In June, after much public comment and a legal challenge, EPA’s Region 3 voluntarily withdrew a UIC permit for a well proposed in northwestern Pennsylvania. Significant efforts by the Natural Resources Defense Council to ensure proper state enforcement of UIC laws culminated in an August letter to EPA detailing dangerously lax enforcement against illegal underground injection in West Virginia. The Environmental Integrity Project published assertions that many companies are using diesel during the hydraulic fracturing process for natural gas wells, which diesel use would cause the operator to require a UIC permit for the natural gas well operation (that would otherwise not require such a permit due to the loophole created by the Energy Policy Act of 2005).

Amidst all this, the federal Government Accountability Office published a report in July that is highly critical of UIC program oversight whether conducted by EPA or by individual states that implement the federal UIC program. The report revealed a steady decline in funds available for state UIC programs. Report at 18. Despite an increase in program responsibilities, staffing has remained flat or has decreased in many states and EPA regions. Report at 20. Perhaps surprisingly, the report notes that while none of the officials interviewed knew of an instance of contamination, many states and EPA regions do not require the kind of groundwater monitoring that might identify a contamination event. Report at 34. Generally, the report concluded that there is insufficient EPA oversight of state programs. Report at 39.

The report highlighted at least three new risks to Class II-D permitting, in part resulting from the increase in shale gas development: induced seismicity; overpressurization of formations; and the use of diesel fuel in hydraulic fracturing operations. Report at 35. All three pose increased risk to the safety of drinking water sources, which are the primary resources the UIC programs are obligated to protect.

Managing the use of diesel in hydraulic fracturing is one example from the report that highlights the new risks posed. EPA issued program guidance in early 2014 requiring UIC permits for hydraulic fracturing operations that utilized diesel fuel. However, there is evidence that EPA and some states are ill prepared to implement this guidance due to the lack of chemical disclosure information. In other words, permitting authorities may not have an effective way to discover whether operators plan to use diesel and so will find it difficult to know when to require a UIC permit and when not to. Report at 37-39.

To EPA’s credit, it agreed with much of the criticism and has committed to addressing it moving forward. Report at 54-57. One takeaway, though, is that with the current state of inadequate federal oversight, and with the insufficiency of state and federal program resources, it is more important than ever for citizens to be involved to protect the drinking water resources we all rely on. Luckily, UIC programming provides plenty of space for citizen involvement.

First, depending on whether a state issues its own UIC permits or whether the federal government does so (as in Pennsylvania), there should be a public notice and comment period. It is critical to participate in the comment period in part because doing so can help to preserve one’s ability to challenge the permit later should an inadequate version of it be issued. Region 3 publishes its UIC permit notices online. There may also be a public hearing where interested citizens can attend and voice any concerns. Second, if a permit is issued, there are often ways to challenge the issuance. In Pennsylvania, for example, EPA’s Region 3 issues the permits, and so challenges in the form of “petitions for review” can be brought at the Environmental Appeals Board, a Washington D.C.-based group of administrative judges that reviews challenges to certain EPA permits. Third, assuming a permit is issued and survives any administrative challenges, the operator must still comply with the permit’s conditions. Under the Safe Drinking Water Act, if a citizen finds that an operator has violated a permit condition, she may have the opportunity to enforce the permit by bringing a “citizen suit” against the operator. 

Oday Salim