State of Alabama: Underground Injection Control Program Revision; Proposed Response to Court Remand

In this document, the Environmental Protection Agency (EPA) is requesting public comment on its proposed response to the Eleventh Circuit Court of Appeals' remand in Legal Environmental Assistance Foundation, Inc., v. United States Environmental Protection Agency, 276 F.3d 1253 (11th Cir. 2001) (hereinafter LEAF II), directing EPA to determine whether Alabama's revised underground injection control (UIC) program covering hydraulic fracturing of coal bed seams to recover methane gas complies with the requirements for Class II wells. In LEAF II, the Eleventh Circuit Court affirmed EPA's decision to review Alabama's hydraulic fracturing program pursuant to the approval criteria in section 1425 of the Safe Drinking Water Act (SDWA), 42 U.S.C. 300h et seq., instead of the approval criteria in section 1422 of the SDWA, and rejected LEAF's claim that EPA's approval of the program pursuant to section 1425 was arbitrary. However, the Court remanded the matter, in part, for EPA "to determine whether Alabama's revised UIC program complies with the requirements for Class II wells." After considering this issue, EPA has preliminarily determined that the hydraulic fracturing portion of the State's UIC program relating to coal bed methane production, which was approved under section 1425 of the SDWA, complies with the requirements for Class II wells within the context of section 1425's approval criteria. EPA is requesting comment on this proposed determination.