ELR Citation: ELR 20062
No(s). 90-2158 (8th Cir. Sep 3, 1991)

The court holds that the Environmental Protection Agency's (EPA's) exemption regulations are a permissible interpretation of the Safe Drinking Water Act (SDWA), that EPA's exemption of 3,000 acres of aquifer for injection is not arbitrary or capricious, that EPA's enforcement of the SDWA is the functional equivalent of complying with the National Environmental Policy Act (NEPA), and that EPA's procedural approach is consistent with its regulations and the SDWA. EPA upheld Nebraska's exemption of an aquifer underlying 3,000 acres of uranium ore from SDWA's prohibition on underground injection because the aquifer does not and will not serve as a source of drinking water. The court holds that EPA's broad definition of covered underground waters coupled with a discretionary exemption are a plainly permissible interpretation of the SDWA to which the court must defer. The court holds that EPA's approval was not arbitrary and capricious because the area of the exemption was carefully drawn to exclude present wells, did not improperly expand the exempted area to provide a buffer zone, and EPA correctly found that the uranium deposits are commercially producible. The court holds that EPA did not violate NEPA by not preparing an environmental assessment because EPA performed the functional equivalent by enforcing the SDWA. The court holds that EPA met the procedural obligations under the SDWA. The Administrator did not improperly delegate authority to approve exemptions to the Regional Administrator. EPA's approval was properly based on Nebraska's notice and opportunity for public hearing. Plaintiff environmental group cannot now challenge EPA's failure to hold hearings on its decision to hold the application for exemption in abeyance while it approved a pilot project, when it should have raised the issue in litigation on the pilot project. In addition, EPA held hearings when it approved both the exemption for the pilot project and the full 3,000-acre injection approval.

Counsel for Appellant
Andrew B. Reid
Star Route 1, Chadron NE 69337
(308) 432-4259

Counsel for Appellee
Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before McMILLIAN, ARNOLD, and LOKEN, Circuit Judges.