The Environmental Protection Agency's (EPA) attempt to use its regulatory powers under the Federal Water Pollution Control Act (FWPCA) Amendments of 1972 to limit the injection of industrial wastes into deep wells has apparently come to naught. The first court to face the issue ruled in 1975 that deep-well injection does not constitute the discharge of a pollutant into navigable waters and thus is not subject to regulation under §§301 and 402 of the Act.¹ Sidestepping this ruling, EPA continued to assert that it nevertheless had ancillary power under §402 to control deep-well injection which is directly associated with surface discharges covered by EPA-issued National Pollutant Discharge Elimination System (NPDES) permits. The Fifth Circuit Court of Appeals recently rejected even this less ambitious interpretation, holding that the FWPCA does not give EPA the authority to place conditions governing related deep-well disposal in NPDES permits which it issues for surface discharges.² This leaves EPA with only the as yet not fully implemented Safe Drinking Water Act of 1974³ as a basis for federal regulation of deep-well injection. It also means further delays in federal efforts to deal with this aspect of the groundwater pollution problem in the 22 states that have not yet assumed control of the NPDES permit program.

For more than 40 years, brine brought up during oil and gas production has been injected into the underground hydrocarbon reservoirs. Also, deep-well disposal of toxic industrial wastes began in the 1950s because in many instances it was much cheaper to pump the substance underground than to render it harmless through chemical treatment. In the latter case, an additional factor was often the lack of sufficient available water to provide adequate above-ground dilution for the waste. More than 300 such industrial wells are now in operation,⁴ and deep-well injection remains a popular method of industrial waste disposal.