|Mayor Kasim Reed|
In a press release issued Tuesday, the three groups claim “Atlanta Mayor Kasim Reed's failure to respond to a non-litigious notice is leading the city into litigation.”
The groups state that the Atlanta City Council can pass legislation “which requires Mayor Reed to obtain clarification from U.S.District Judge Thomas W. Thrash about protecting public health and Atlanta's water resources as required in the Safe Drinking Water Act (SDWA) and the Georgia Water Quality Control Act (GWQCA).”
The press release states: “Atlanta injects wastewater into deep tunnels without first having applied for and received underground injection control (UIC) permits.”
It says the three citizen groups sent the non-litigious notice to Mayor Kasim Reed and then a legal brief and exhibit to U.S. District Judge Thomas W. Thrash with details.
Both documents were prepared by Atlanta attorney Hal F. Wright on behalf of NOCRAP (Newly Organized Citizens Requesting Aquifer Protection, which has a Buckhead address), the Little Mountain Water Association, Inc., and the South River Watershed Alliance (SRWA).
The three groups claim that when Congress passed the SDWA it established several minimum requirements for state UIC programs, one of which prohibits underground injection unless it is authorized by a permit. The permit requirement was affirmed in a decision by the 11th Circuit Court of Appeals (LEAF vs EPA, 1997).
Atlanta operates five deep sewer tunnels—the Nancy Creek Tunnel crosses through north Buckhead—which it constructed to manage its own wastewater along with wastewater from several nearby cities and northern DeKalb County. Injection wells are used to fill each tunnel but the groups claim Atlanta never obtained UIC permits for the injection wells.
“Atlanta's failure to comply with the SDWA and the GWQCA leaves citizens exposed to the consequences of wastewater contaminating the city's underlying aquifer,” the groups claim in their press release.
“UIC permits can require monitoring wells so that the public knows that the tunnels are being operated in a way which protects public health and its underground water resource. The violations are occurring under the protection of two consent decrees,” the three citizen groups explain in their release.
The press release states that the SRWA “has uncovered violations of the Clean Water Act
which are also
occurring under the decrees.”
|Photo of one of the injection wells for the Nancy Creek|
Tunnel, which runs through north Buckhead.
In 1995, the Upper Chattahoochee Riverkeeper (UCR) made non-litigious efforts to have Atlanta's Mayor Bill Campbell stop polluting surface waters with sewage overflows but Campbell's failure to respond resulted in litigation. Atlanta defended itself against the litigation but eventually entered into two consent decrees as the defendant.
The plaintiffs in the first decree are the UCR, the EPA and the Georgia Environmental Protection Division (EPD). Plaintiffs in the second decree are only the EPA and the EPD. The US Department of Justice (DOJ) represents EPA and Georgia's State Attorney General represents EPD. US District Judge Thomas W. Thrash retains jurisdiction over both of Atlanta's consent decrees.
The 1997 decision by the 11th Circuit Court of Appeals (Alabama, Georgia, and Florida) affirmed the intent of Congress. In that case, the Legal Environmental Assistance Foundation (LEAF) prevailed against the state of Alabama and the US EPA for allowing underground injection without permits. The 11th Circuit established, "...it is clear that Congress dictated that all underground injection be regulated under the UIC programs."
David A. Ludder represented LEAF in the 1997 11th Circuit case and has been a resource to Hal Wright since 2008 when Wright prepared his first legal opinion about unpermitted underground injection.
On August 27, 2012, Hal Wright sent the non-litigious notice to Mayor Kasim Reed which, according to the press release from the three groups, “informed him that Atlanta’s continued failure to obtain UIC permits is unnecessarily threatening Atlanta’s present and future water resources.”
After briefly summarizing relevant law, the notice explains, according to the three groups, “how Atlanta’s position is not defensible because it relies on a regulatory interpretation by the EPA which has already been discredited by the 11th Circuit Court of Appeals.”
|Judge Thomas Thrash|
The notice concludes with urging Mayor Reed to obtain regulatory clarity, not from the EPA, but rather from Judge Thrash. Reed failed to respond, according to the three citizen groups.
On September 20, 2012, Judge Thrash held a hearing to consider the final motion to amend one of Atlanta's consent decrees. Wright and William A. Weinischke (Department of Justice) requested that Judge Thrash entertain briefs about the UIC issue.
According to the press release from the three groups, the briefs were intended to provide differing opinions so that JudgeThrash could decide whether Atlanta's injection wells need UIC permits.
The press release states: “Wright's brief and exhibit include a short history of the consent decree party's failures to address the UIC issue, provides legal background, and explains the relevance of the UIC issue to Atlanta's consent decrees. Weinischke merely wrote that the UIC issues had already been addressed and denied their relevance but provided no legal substance.”
In an October 30, 2012 follow-up submittal, to the Court, Wright wrote, "My clients are outraged that EPA/EPD, the two governmental entities charged with protecting the waters of the State of Georgia as a public trust resource, would so blatantly continue to mislead this Court with untruths, false innuendos, and misrepresentations. While “the Governments” are entitled to their “view that there is nothing in The Memorandum that has not already been addressed by these governments”, this ‘convenient conclusion’ is simply that. The governments' position is contrary to the facts."
Wright continued his writing to Judge Thrash stating, “the reason the EPA/EPD and the governments will not engage in a substantive discussion of the Underground Injection Control issue is because they have nothing of substance with which to engage....This Court is particularly obligated to interpret and apply federal law, especially in circumstances of controversy. We anticipate the Court's written opinion clarifying this matter in the near future."
The three citizen groups claim EPA/EPD's failure to enforce UIC permit requirements does not relieve water/sewer ratepayers from the consequences of the city's compliance failure. “The failure of Mayor Kasim Reed to obtain regulatory clarity from Judge Thrash, along with the absence of any decision from Judge Thrash about the briefs, is an invitation to an indefensible lawsuit,” they state in their press release.
Whether the Atlanta City Council will pass legislation which requires Mayor Reed to obtain regulatory clarity from Judge Thrash remains to be seen.
Here is a link to the blogspot for NOCRAP: http://www.nocrapgeorgia.blogspot.com/.