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Phillips Petroleum Co. v. EPA

Citation: 17 ELR 20387
No. No. 85-1039, 803 F.2d 545/25 ERC 1033/(10th Cir., 10/10/1986)

The court rules that the Environmental Protection Agency (EPA) is empowered to promulgate underground injection control regulations for Indian lands under the Safe Drinking Water Act (SDWA), and upholds EPA's program for the Osage Indian Mineral Reserve in Oklahoma. The court initially holds that the 1986 SDWA amendments authorize judicial review of EPA's underground injection control regulations in any appropriate circuit, and that the jurisdictional amendment is retroactive and applies to cases previously filed but still pending. The court next holds that the SDWA permitted EPA to exercise jurisdiction over Indian lands prior to the 1986 amendments, despite the lack of express language conferring such jurisdiction, and accordingly holds that regulations for the Osage Reserve promulgated prior to 1986 are valid and enforceable. In so holding, the court rejects challenges to EPA's authority based on a literal reading of the SDWA, that EPA's interpretation is not to be accorded deference because it was not adopted proximate in time to the SDWA's original enactment, and that prior to amendment the SDWA could not affect existing Indian sovereignty over land and water rights. The court holds that EPA did not act arbitrarily under the Administrative Procedure Act in refusing to extend the 45-day comment period for the Osage regulation by an additional 30 days because there was no evidence that the 45-day period was inherently short or inadequate and because the plaintiffs had fully participated in the comment process and were not prejudiced by the refusal to extend the period. The court also holds that the injection wells on the Osage Reserve complied with the mechanical integrity test to determine that there is no significant leak from the wells, and that the integrity test meets the SDWA's requirements to protect underground sources of drinking water and not to interfere with oil production. The court also holds that the integrity test properly considered the geologic, hydrological, and historical conditions of the Osage Reserve, as required by SDWA § 1421. Finally, the court holds that EPA is not required to undertake a case-by-case determination of whether the integrity test should apply for all injection wells since the testing of individual wells for leaks on a case-by-case basis is committed to agency discretion.

Counsel for Petitioners
Reese B. Copeland
Phillips Petroleum Company
1248 Adams Bldg., Bartlesville OK 74004
(918) 661-3818

Counsel for Respondent
John F. Cermak Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before HOLLOWAY, Chief Judge, McWILLIAMS and ANDERSON, Circuit Judges.