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In re American Soda, LLP

Case Number:Appeal Nos. 00-1 & 00-2
ELR Citation:30 ELR 41230



On February 9, 2000, EPA Region VIII ("the Region") issued a Class III Underground Injection Control ("UIC") area permit to American Soda, LLP ("American Soda"), pursuant to §§ 1421(b) and 1422(c) of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §§ 300h(b) and 300h-1(c). The permit authorizes American Soda to construct and operate solution mining wells on its Yankee Gulch Joint Venture sodium leases in Rio Blanco County, Colorado. Prior to receiving approval to commence commercial operations, the permit requires American Soda to submit for EPA review additional groundwater data. After the groundwater at the site is further characterized, American Soda will use the wells to mine for the mineral nahcolite, utilizing a solution mining process.

Three petitioners, the Sierra Club, IMC Chemicals, Inc. ("IMC"), and Tom Dodson and Associates ("Dodson"), have challenged the Region's permitting decision. The petitions raise the following allegations as grounds for review of the Region's permitting decision: failures in the Department of Interior's Bureau of Land Management's ("BLM") National Environmental Policy Act ("NEPA") process; EPA's failure to prepare its own Environmental Impact Statement ("EIS") under NEPA; the Region's improper consideration of applicant's groundwater data in issuing the permit; improper inclusion of a hydrology report submitted after the public comment period closed; and the Region's failure to require a complete hazardous waste determination before issuing the permit. In the Region's response to petitioners' briefs, the Region challenged the appeal of IMC and Dodson as untimely. Further, the Region argued that IMC lacked standing to file an appeal in this matter.


The Board concludes that all petitions for review were timely filed. The Board finds that IMC lacks standing to challenge some of the issues it raised on appeal. Additionally, the Board finds that all challenges regarding BLM's process are beyond the scope of Board review. With respect to the remaining issues for review, the Board concludes as follows: (1) under the plain language of the regulations governing the issuance of the permit, the Region was not required to prepare an EIS in support of the permit; (2) the Region's consideration of applicant's groundwater data in issuing the permit does not amount to clear error where the permit protects all aquifers, not only [underground sources of drinking water], where the permit provides for additional groundwater sampling and analysis prior to initiation of mining activities, and where the Region has adequately explained its rationale and addressed comments; (3) the Region did not err in considering material received after the close of the public comment period and including the material in the administrative record; and (4) the governing regulations do not require the Region to fully characterize the hazardous nature of all sources of injection fluid prior to permit issuance. Accordingly, the Board rules that petitioners have not met the standards necessary to invoke the Board's review of the Region's decision, and thus denies review.