HYDRO30213

• Permit No: M1999002
• IBM Index Class Name: Hydrology
• Doc Date: 2/10/2000
• Doc Name: UIC INFO
• Media Type: D
• Archive: No

The issue of the need for a formal EIS was raised eazly on during the development of
EPA's UIC regulations as mandated by the Safe Drinking Water Act (SDWA). As a result, the
General Counsel for EPA researched this issue and issued an opinion dated August 1, 1979,
which clearly stated that EPA does not need to prepare an EIS because EPA's Permitting process
is the functional equivalent of the NEPA process. (This document is contained in the
administrative record of the permit.) The General Counsel's opinion presents case law that details
the position that EPA need not comply with 102(2)(C) of NEPA because EPA's own statutory
obligations designed to protect the environment amount to the "functional equivalent" of the EIS
process. The "functional equivalent" standard was first azticulated in Portland Cement Assn v.
Ruckelshaus 486 F.2d 375 (D.C. Cir.1973}, in which the court determined that EPA's
procedures for establishing stationary source standazds under the Clean Air Act resulted in an
environmental review that met the same goals and objectives as iVEPA. This same functionally
equivalent standard has since been applied to various EPA programs, including those under the
Safe Drinking Water Act, by more than a dozen courts. In addition, public participation in the
Administrator's process for authorizing UIC Permits is assured both by statute and by EPA's
impiementing regulations. See SDWA sections 1422(b) and 1424(b), and 40 C.F.R. section
124.3. EPA believes that the UIC permitting process used for this permitting action complies with
the provisions of 102(2)(c) and therefore does not intend to either directly adopt the EIS finalized
by BLM for the Yankee Gulch Project or prepare a sepazate EIS.
One commentor has indicated that EPA should issue a supplemental EIS covering the
pipeline spill and well failure response plans mentioned in BLM's draft EIS on the Yankee Gulch
Project. As indicated in the previous pazagraph, the scope of the UIC Permit is very narrow and
only covers the injection portion of the project. A spill plan for the product pipeline, for instance,
is beyond the scope of EPA's UIC authority and is covered under the BLM Mine Plan and
associated EIS. Failure of an injection well, however, is covered by the Permit. As part of the
Permit application review and determination, it was decided that periodic ground-water
monitoring was needed during the life of the Permit.
Regazding the absence of availability of a ground-water monitoring and surface water
monitoring plan and a Subsidence Monitoring Plan for public comment, the applicant was
required to submit a Ground Water and Surface Water Monitoring Plan (Water Monitoring Plan)
and a Subsidence Monitoring plan. These were submitted in preliminary draft form on April 11,
1999. The final drafts of the Water Monitoring and the Subsidence Monitoring Plans (both dated
Apri122, 1999) were submitted on April 27, 1999, and were included in the administrative record
for comment. EPA made the Water Monitoring and Subsidence Monitoring Plans available for
public review along with the Draft Statement ofBasis and the Draft Class III UIC Area Permit on
May 19, 1999, which was the commencement of the public comment period. These plans have
been revised to incorporate all changes required by EPA and other regulatory agencies in
response to public comments. These revised plans, dated December 23, 1999, have been
incorporated into the Final Pernvt.
Response actions for potential failure situations are also provided in the applicant's Water
Monitoring Plan and Subsidence Monitoring plans. These plans have been finalized and
incorporated into the Permit. If there is a well or cavity failure, the Permit requires the operator