Monday, June 9, 2008

Miami-Dade County v. EPA

Jun 6: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 06-10551, 10-574- 76, 10579, 10583. Miami-Dade County, four cities, and a regional wastewater treatment facility and the Sierra Club all petition for review a Final Rule promulgated by U.S. EPA that amended the current Federal underground injection control (UIC) requirements for Class I municipal disposal wells in Florida. The petitioners argued that the Final Rule conflicts with the plain language of the authorizing statute, that EPA’s approach to UIC regulation in South Florida is arbitrary and capricious, and that EPA gave insufficient notice of certain terms of the Final Rule in violation of the Administrative Procedure Act (APA). The Eleventh Circuit denied the petition.

Some of the many arguments raised by the petitioners include the following. The Sierra Club said EPA impermissibly considered the utility of underground injection of waste in comparison with other disposal options, and EPA failed to address the existence of several potential threats to human health posed by pathogens, nutrients, and other contaminants. The Municipalities and County complained that the Final Rule failed to take into account differences in Florida geology and hydrology. The County also argued that the Final Rule’s imposition of a high-level disinfection requirement, as opposed to some lower level of
disinfection, is arbitrary and capricious.

The Municipalities also argued that the Final Rule is not supported by the record due to four alleged flaws in the Risk Assessment’s methodology: (1) failure to consider the concentration of contaminants already present in the aquifers, (2) failure to employ a quantitative probabilistic risk analysis methodology, (3) failure to consider the results of a then-unpublished University of Miami study of well disposal practices, and (4) faulty assumptions about contaminant plumes. The criticisms were based on a review of the Risk Assessment performed by two scholars, a geologist, and a public utilities manager.

In a 49-page decision the Appeals Court said, "We conclude that the EPA afforded sufficient public notice of both the elimination of the non-endangerment demonstration requirement and the application of the Final Rule to new Class I wells as required by the APA. We further conclude that the petitioners have failed to show that the Final Rule is inconsistent with the statutory authority granted the EPA under the SDWA or that the Final Rule is unsupported by the record, or otherwise arbitrary and capricious."

Access the complete opinion (
click here).

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