United States Court of Appeals,

Tenth Circuit.

PHILLIPS PETROLEUM COMPANY, Phillips Oil

Company, Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 85-1039.

Oct. 10, 1986.

Oil company petitioned for review of Environmental Protection Agency regulation establishing

underground injection control program for Indian

mineral reserve in Oklahoma. The Court of Appeals, Anderson, Circuit Judge, held that Environmental Protection Agency was empowered to implement underground injection control program on

Indian lands and Agency complied with all necessary procedural requirements in promulgating underground injection control program.

Petition for review dismissed.

West Headnotes

[1] Federal Courts 170B 1134

170B Federal Courts

170BXIII Concurrent and Conflicting Jurisdiction and Comity as Between Federal Courts

170Bk1131 Exclusive or Concurrent Jurisdiction

170Bk1134 k. Environmental cases; atomic energy. Most Cited Cases

Jurisdictional amendment to Safe Drinking

Water Act, which simply withdrew jurisdiction

from Court of Appeals for District of Columbia,

and in its place, vested jurisdiction over underground injection control programs in the circuit in

which the petitioner resided or transacted business

directly affected by the action of the Administrator

of the Environmental Protection Agency, did not

affect the ultimate availability of relief for claims at

issue so that Court of Appeals for circuit in which

oil company transacted business was proper forum

to entertain oil company's petition challenging regulation promulgated by Administrator even though

petition was filed before amendments. Public

Health Service Act, §§ 1448, 1448(a)(1, 2), as

amended, 42 U.S.C.A. §§ 300j-7, 300j-7(a)(1, 2).

[2] Indians 209 210

209 Indians

209V Government of Indian Country, Reservations, and Tribes in General

209k210 k. In general. Most Cited Cases

(Formerly 209k32(1))

Water Law 405 1997

405 Water Law

405XII Public Water Supply

405XII(B) Domestic and Municipal Purposes

405XII(B)8 Purity of Water and Protection from Pollution or Diversion

405k1992 Permits for or Restrictions

on Activities That Endanger Water Quality

405k1997 k. Injection wells. Most

Cited Cases

(Formerly 405k196, 209k32(1))

The Environmental Protection Agency had authority, pursuant to Safe Drinking Water Act to promulgate underground injection control regulations

for Indian lands despite oil company's contention

that Environmental Protection Agency could only

regulate where state governments could, but failed

to do so. Public Health Service Act, §§ 1421, 1422,

1422(a, c), as amended, 42 U.S.C.A. §§ 300h,

300h-1, 300h-1(a, c).

[3] Administrative Law and Procedure 15A

395

15A Administrative Law and Procedure

15AIV Powers and Proceedings of AdministratPage 1

803 F.2d 545, 25 ERC 1033, 17 Envtl. L. Rep. 20,387

(Cite as: 803 F.2d 545)

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ive Agencies, Officers and Agents

15AIV(C) Rules and Regulations

15Ak392 Proceedings for Adoption

15Ak395 k. Notice and comment, sufficiency. Most Cited Cases

Water Law 405 1997

405 Water Law

405XII Public Water Supply

405XII(B) Domestic and Municipal Purposes

405XII(B)8 Purity of Water and Protection from Pollution or Diversion

405k1992 Permits for or Restrictions

on Activities That Endanger Water Quality

405k1997 k. Injection wells. Most

Cited Cases

(Formerly 405k196, 199k25.7(12) Health and

Environment)

Environmental Protection Agency's refusal to

extend 45-day comment period for underground injection control regulation for Indian lands an additional 30 days was not arbitrary, capricious or an

abuse of discretion and Administrative Procedure

Act only required the agency to provide notice of

proposed rule making and give interested persons

an opportunity to participate in the rule making

through submission of written data views, or other

arguments and there were no requirements concerning how many days the Environmental Protection

Agency must allow comment or that the Agency

must reopen comment period at the request of one

of participants. Public Health Service Act, §§

1421(a)(2), 1422(c), as amended, 42 U.S.C.A. §§

300h(a)(2), 300h-1(c); 5 U.S.C.A. §§ 553, 553(c).

[4] Water Law 405 1997

405 Water Law

405XII Public Water Supply

405XII(B) Domestic and Municipal Purposes

405XII(B)8 Purity of Water and Protection from Pollution or Diversion

405k1992 Permits for or Restrictions

on Activities That Endanger Water Quality

405k1997 k. Injection wells. Most

Cited Cases

(Formerly 405k196, 199k25.7(12) Health and

Environment)

Mechanical integrity requirement of underground injection control rule for Indian reservation,

which required wells pass pressure test demonstrating that there was no significant leak in casing,

tubing or packer, promulgated by Environmental

Protection Agency, did not violate Safe Drinking

Water Act and oil company challenging rule failed

to establish that “no significant leak” requirement

interfered with or impeded oil production, or that

there was not substantial evidence to justify Administrator's conclusion that mechanical integrity test

was essential to protect underground sources of

drinking water. Public Health Service Act, §

1422(c), as amended, 42 U.S.C.A. § 300h-1(c).

[5] Administrative Law and Procedure 15A

383

15A Administrative Law and Procedure

15AIV Powers and Proceedings of Administrative Agencies, Officers and Agents

15AIV(C) Rules and Regulations

15Ak382 Nature and Scope

15Ak383 k. Matters subject. Most

Cited Cases

Water Law 405 1997

405 Water Law

405XII Public Water Supply

405XII(B) Domestic and Municipal Purposes

405XII(B)8 Purity of Water and Protection from Pollution or Diversion

405k1992 Permits for or Restrictions

on Activities That Endanger Water Quality

405k1997 k. Injection wells. Most

Cited Cases

(Formerly 405k196, 199k25.7(12) Health and

Environment)

To require Environmental Protection Agency to

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803 F.2d 545, 25 ERC 1033, 17 Envtl. L. Rep. 20,387

(Cite as: 803 F.2d 545)

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undertake case-by-case determination of whether

mechanical integrity test should apply for each underground injection well would severely handicap

the implementation of the Safe Drinking Water Act

by the Environmental Protection Agency and the

Agency was well within its discretion to utilize

generic streamline approach or procedures. Public

Health Service Act, § 1401 et seq., as amended, 42

U.S.C.A. § 300f et seq.; 5 U.S.C.A. §§ 500-576.

*546 Reese B. Copeland (C.J. Roberts, with him on

briefs), Phillips Petroleum Co., Bartlesville, Okl.,

for petitioners.

John F. Cermak, Jr., Land and Natural Resources

Div., U.S. Dept. of Justice and Erik D. Olson, U.S.

E.P.A., (F. Henry Habicht*547 II, Asst. Atty. Gen.,

U.S. Dept. of Justice, with them on briefs), Washington, D.C. for respondent.

Before HOLLOWAY, Chief Judge, McWILLIAMS

and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Phillips Petroleum Company and Phillips Oil

Company (“Phillips”), petition this court to review

an Environmental Protection Agency (“EPA”) regulation establishing an underground injection control

program for the Osage Indian Mineral Reserve in

Oklahoma. The underground injection control program regulation was established pursuant to the

Safe Drinking Water Act of 1974, Section 1401, 42

U.S.C. §§ 300f-300j-10 (1982) (“SDWA”). Issues

raised by Phillips include: (1) whether the SDWA

empowers the EPA to promulgate an underground

injection control program regulation for the Osage

Indian Mineral Reserve; (2) whether the EPA violated the Administrative Procedures Act, 5 U.S.C.

§§ 500-576 (1982) (“APA”), by declining to extend

the informal rule comment period 30 days; and (3)

whether the mechanical integrity requirement of the

Osage underground injection control regulation was

lawful. The EPA, in turn, challenges this court's

jurisdiction to entertain Phillips' petition, asserting

that review belongs to the United States Court of

Appeals for the District of Columbia.

For the reasons discussed below, we hold that

the Osage underground injection control regulation

is reviewable in this court. We also hold that the

SDWA empowers the EPA to promulgate underground injection control regulations for Indian

lands. Phillips' other contentions are without merit,

and we therefore uphold the Osage injection program regulation promulgated by the EPA for the

Osage Indian Mineral Reserve in its entirety.

I.

INTRODUCTION

A. The Safe Drinking Water Act.

The SDWA establishes a regulatory mechanism

to insure the quality of publicly supplied drinking

water.FN1 Part C of the SDWA establishes a regulatory program designed to prevent the endangerment of underground drinking water sources. In

particular, Part C envisions a joint federal-state system to regulate the discharge of pollutants by injection wells into underground water systems.FN2 The

EPA is directed to promulgate regulations establishing the minimum requirements for state underground injection control programs. Section 1421,

42 U.S.C. § 300h.FN3 No injection*548 is to be allowed that may endanger “drinking water sources.”

Section 1421(b)(1), 42 U.S.C. § 300h(b)(1). An injection is presumed to endanger drinking water

sources if it might result in a public water system's

“not complying with any national primary drinking

water regulation” or might otherwise adversely affect the public health. Section 1421(d)(2), 42

U.S.C. § 300h(d)(2).

FN1. The SDWA is the first federal legislation to specifically address the problem

of groundwater pollution.

FN2. Underground injection is defined by

the SDWA to mean the “subsurface emplacement of fluids by well injection.”

Section 1421(d)(1), 42 U.S.C. §

300h(d)(1). Underground injection is a poPage 3

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tentially widespread hazardous waste disposal practice that poses serious threats to

groundwater sources of drinking water.

Congress was particularly aware of the potential adverse effects of oil and gas related injection. The House Committee on

Interstate and Foreign Commerce noted the

“[e]nergy production companies are using

injection techniques to increase production

and dispose of unwanted brines brought to

the surface during production.... Part C is

intended to deal with all of the foregoing

situations insofar as they may endanger underground drinking water sources.”

H.R.Rep. No. 1185, 93d Cong., 2d Sess. 29

(1974), U.S.Code Cong. & Admin.News

1974, pp. 6454, 6481.

FN3. Section 1421 of the SDWA, 42

U.S.C. § 300h, provides in part:

(a)(1) The Administrator shall publish

proposed regulations for State underground injection control programs within

180 days after December 16, 1974.

Within 180 days after publication of

such proposed regulations, he shall promulgate such regulations with such

modifications as he deems appropriate.

Any regulation under this subsection

may be amended from time to time.

In requiring the EPA to promulgate minimum requirements for effective state

programs to prevent underground injection which endangers drinking water

sources, Congress intended to

ratify EPA's policy of deep well injection. (See 39 Fed.Reg. 12922-3, April

19, 1974). This policy was first adopted

by the Federal Water Quality Administrator of the Department of the Interior

on October 15, 1970. The policy opposes

storage or disposal of contaminants by

subsurface injection without strict control and clear demonstration that such

wastes will not interfere with present or

potential subsurface water supplies, contaminate interconnected surface waters

or otherwise damage the environment.

Comm. on Interstate and Foreign Commerce, Safe Drinking Water Act,

H.R.Rep. No. 1185, 93d Cong., 2d Sess.

29 (1974), U.S.Code Cong. & Admin.News 1974, p. 6481.

Individual states may apply and receive approval (“primacy”) to implement their own underground injection control programs if they meet the

minimum requirements established by the EPA's

regulations. Section 1422, 42 U.S.C. § 300h-1.FN4

FN4. A State program, in order to be approved:

(A) shall prohibit, effective on the date

on which the applicable underground injection control program takes effect, any

underground injection in such State

which is not authorized by a permit issued by the State (except that the regulations may permit a State to authorize underground injection by rule);

(B) shall require (i) in the case of a program which provides for authorization of

underground injection by permit, that the

applicant for the permit to inject must

satisfy the State that the underground injection will not endanger drinking water

sources, and (ii) in the case of a program

which provides for such an authorization

by rule, that no rule may be promulgated

which authorizes any underground injection which endangers drinking water

sources;

(C) shall include inspection, monitoring,

recordkeeping, and reporting requirements; and

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(D) shall apply (i) as prescribed by §

300j-6(b) of this title, to underground injections by Federal agencies, and (ii) to

underground injections by any other person whether or not occurring on property

owned or leased by the United States.

Section 1421(b)(1), 42 U.S.C. §

300h(b)(1).

If a state fails to adopt or adequately enforce an

approved underground injection control program,

the EPA must install its own federally administered

program for the state or that part of the state not

covered by an EPA approved program. Section

1422(c), 42 U.S.C. § 300h-1(c).

As passed in 1974, the SDWA made no mention of Indian tribes or Indian lands other than to

include an “Indian tribal organization” within the

definition of “municipality.” Section 1401(10), 42

U.S.C. § 300f(10). In 1986, Congress amended Part

E of the SDWA by adding section 1451 which specifically authorizes the Administrator of the EPA

“to treat Indian tribes as States under this title.”

Safe Drinking Water Amendments of 1986, Pub.L.

No. 99-339, § 302, 100 Stat. 642, 665-66 (1986).

FN5

FN5. Section 302 of the Safe Drinking

Water Amendments states, in relevant part:

(a) IN GENERAL-Part E of the Safe

Drinking Water Act is amended by

adding the following new section after

section 1450:

SEC. 1451. INDIAN TRIBES

(a) IN GENERAL-Subject to the provisions of subsection (b), the Administrator-

(1) is authorized to treat Indian Tribes as

States under this title,

(2) may delegate to such Tribes primary

enforcement responsibility for public

water systems and for underground injection control, and

(3) may provide such Tribes grant and

contract assistance to carry out functions

provided by this title.

(b) EPA REGULATIONS-

(1) SPECIFIC PROVISIONS-The Administrator shall within 18 months after

the enactment of the Safe Drinking Water Act Amendments of 1986, promulgate final regulations specifying those

provisions of this title for which it is appropriate to treat Indian Tribes as States.

Such treatment shall be authorized only

if:

(A) the Indian Tribe is recognized by the

Secretary of the Interior and has a governing body carrying out substantial

governmental duties and powers;

(B) the functions to be exercised by the

Indian Tribe are within the area of Tribal

Jurisdiction; and

(C) the Indian Tribe is reasonably expected to be capable, in the Administrator's

judgment, of carrying out the functions

to be exercised in a manner consistent

with the terms and purposes of this title

and of all applicable regulations.

*549 Moreover, the 1986 amendments altered

section 1422 of the SDWA to clarify the role of the

EPA where Indian lands are concerned vis-a-vis

powers now permitted to the tribes:

If an applicable underground injection control

program does not exist for an Indian Tribe, the

Administrator shall prescribe such a program pursuant to subsection (c) of this section, and consistent with section 1421(b), within 270 days

after the enactment of the Safe Drinking Water

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Act Amendments of 1986, unless an Indian Tribe

first obtains approval to assume primary enforcement responsibility for underground injection

control.

Pub.L. No. 99-339, § 302, 100 Stat. 666.

An Indian Tribe may assume primary enforcement responsibility for underground injection control consistent with the regulations the Administrator has prescribed pursuant to Part C and Section

1451 of the SDWA. Id. However, “[u]ntil an Indian

Tribe assumes primary enforcement responsibility,

the currently applicable underground injection control program shall continue to apply.” Id.

B. Regulatory Framework and Phillips' Participation.

In 1980, the EPA promulgated the national

technical minimum requirements for all state underground injection control programs. 45 Fed.Reg.

42,472 (June 24, 1980); 45 Fed.Reg. 33,290 (May

19, 1980).FN6 Subsequently, the EPA proposed a

regulation for promulgating EPA administered underground injection control programs for Indian

lands that would satisfy the minimum requirements

of section 1421, but also consider tribal preferences

and allow maximum uniformity with adjacent state

programs. 47 Fed.Reg. 17,578 (Apr. 23, 1982). In

1983, the EPA promulgated a final rule allowing

the agency to prescribe “alternate” underground injection control programs for Indian lands. 40 C.F.R.

§ 144.2 (1985).FN7

FN6. These minimum requirements are

now codified at 40 C.F.R. pts 124, 144-46

(1985).

FN7. 40 C.F.R. § 144.2 states:

Notwithstanding the requirements of this

part or parts 124 and 146 of this chapter,

the Administrator may promulgate an alternative UIC program for Class II wells

on any Indian reservation or Indian

lands. In promulgating such a program

the Administrator shall consider the following factors:

(a) The interest and preferences of the

tribal government having responsibility

for the given reservation or Indian lands;

(b) The consistency between the alternate program and any program in effect in

an adjoining district; and

(c) Such other factors as are necessary to

carry out the Safe Drinking Water Act.

On December 2, 1981, the EPA approved Oklahoma's application for underground injection control primacy for the entire state except the Osage

Indian Reserve. 46 Fed.Reg. 58,488-89 (Dec. 2,

1981). The State of Oklahoma made no attempt to

assert jurisdiction over the Osage Reserve and does

not contest the EPA's authority to promulgate the

Osage regulation. Thereafter, the EPA began to

study and develop an underground injection control

program for the Osage Reserve. The EPA held a

public hearing on October 14, 1983, outlining the

draft Osage and Indian lands underground injection

control programs for Oklahoma. 48 Fed.Reg.

40,098-99 (Sept. 2, 1983). On May 11, 1984, the

EPA published the proposed underground injection

control rule for the Osage Reserve. Public comments were accepted for 45 days. Phillips participated in the public hearing and filed extensive comments, but requested a 30-day extension of the

comment period. The EPA denied Phillips' request

and the final Osage underground injection control

program was adopted on May 11, 1984. 49

Fed.Reg. 20,238 and 20,256-63 (May 11, 1984).

On January 10, 1985, Phillips filed a petition

for review of the Osage underground injection control regulation in this court. The next day, Phillips

filed an identical petition for review in the United

States Court of Appeals for the District of

Columbia. That court is holding Phillips' petition in

abeyance until we determine whether we *550 have

jurisdiction to hear the present case. Phillips PetroPage 6

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leum Co. v. EPA, No. 85-1026 (D.C.Cir.1985)

(Order of March 11, 1985; modified May 23,

1985). On March 5, 1985, the EPA filed a motion

to transfer the case to the United States Court of

Appeals for the District of Columbia. By Order

dated April 9, 1985, we denied the motion to transfer, but directed the parties to address the jurisdictional issue in their briefs on the merits.

II.

JURISDICTION

[1] The EPA contends that only the United

States Court of Appeals for the District of

Columbia may consider Phillips' petition. Phillips

responds by arguing that judicial review of its petition falls under another section of the SDWA authorizing review in any appropriate circuit.

Prior to 1986, the SDWA's review provisions

read in part as follows:

A petition for review of-

(1) action of the administrator in promulgating

... any regulation for State underground injection

control programs under section 300h of this title,

or any general regulation for the administration

of this subchapter may be filed only in the United

States Court of Appeals for the District of

Columbia Circuit; and

(2) action of the administrator in promulgating

any other regulation under this subchapter ... may

be filed only in the United States Court of appeals for the appropriate circuit.

Section 1448(a), 42 U.S.C. § 300j-7(a).

The 1986 amendments of the SDWA changed

the judicial review section with respect to the underground water provisions. The theory for that

change is apparently that diversity of review

provided by all the circuits is more valuable than

developing expertise and uniformity by centralized

review in the D.C. Circuit.FN8 The judicial review

provisions now read as follows:

FN8. The Senate Report to the 1986

amendments states:

The justification for centralized judicial

review of environmental regulations is

that it eliminates the possibility of conflicting interpretations of the law in different circuits and allows a single court

to develop expertise in this complex area

of the law. However, in the judgment of

the Committee these advantages, to the

extent they exist, are insufficient to offset

the disadvantage of centralized judicial

review, which include inconvenience to

litigants who do not reside in Washington, D.C. and an unwarranted concentration of power in a single tribunal, which

may in turn generate undesirable political pressures on the appointment of

judges. Centralizing review in a single

court may also deprive the law of diverse views on complex legal issues, and

as a result may make the task of the Supreme Court more difficult. Although

other Circuit Courts of Appeal may not

at present possess as much technical expertise as the D.C. Circuit, the responsibility of a Court of Appeals is to review

regulations for conformity with law, not

to undertake technical review of regulations.

S.Rep. No. 99-56, 99th Cong., 2nd Sess.

24 (May 15, 1985).

The Senate bill to which the above cited

legislative history applies was subsequently altered by the joint SenateHouse Conference Committee. The Senate bill proposed that an application for

review of EPA regulations could be filed

in either the D.C. Circuit or the court of

appeals for the circuit in which the applicant resides or transacts business

which is directly affected by such regulation. The Senate bill also proposed a

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random selection procedure to be administered by the Administrator's Office of

the United States Courts to determine the

court of appeals in which a regulation

was to be reviewed. Although the Conference Committee altered the Senate's

proposal in the final draft, we feel that

the Senate Committee's language accurately portrays congressional concern

over centralized review of the specified

EPA regulations under the SDWA.

A petition for review of-

(1) actions pertaining to the establishment of

national primary drinking water regulations

(including maximum contaminant level goals)

may be filed only in the United States Court of

Appeals for the District of Columbia Circuit; and

(2) any other action of the Administrator under

this Act may be filed in the circuit in which the

petitioner resides or transacts business which is

directly affected by the action.

*551 Pub.L. No. 99-339, § 303, 100 Stat. 667

(amending section 1448 of the SDWA).

Subsection (a)(1) of section 1448 applies to

Part B of the SDWA. Phillips' petition relates to

Part C which falls under subsection (a)(2) of section 1448 as “any other action of the Administrator” under the SDWA. Therefore, the 1986 amendments give us jurisdiction. The question is whether

the newly conferred jurisdiction applies to previously filed but still pending petitions, such as Phillips'. We hold that it does.

The Supreme Court has held that “when a law

conferring jurisdiction is repealed without any reservation to pending cases, all cases fall with the

law.” Bruner v. United States, 343 U.S. 112,

116-17, 72 S.Ct. 581, 584-85, 96 L.Ed. 786 (1952);

accord Ex parte McCardle, 74 U.S. (7 Wall) 506,

19 L.Ed. 264 (1868); Garrett v. Bamford, 582 F.2d

810, 817 (3d Cir.1978); Adams v. Brinegar, 521

F.2d 129 (7th Cir.1975); Koger v. Ball, 497 F.2d

702 (4th Cir.1974); De Rodulfa v. United States,

461 F.2d 1240 (D.C.Cir.), cert. denied, 409 U.S.

949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972).

“Conversely, a statutory expansion of jurisdiction

suffices to vest power in federal courts to adjudicate cases which arose prior to enactment of the jurisdictional statute.” Garrett, 582 F.2d at 817. As the

Supreme Court has consistently held, congressional

alteration of the subject matter jurisdiction of federal courts results in retroactive application to

pending cases. United States v. Alabama, 362 U.S.

602, 80 S.Ct. 924, 4 L.Ed.2d 982 (1960); Bruner,

343 U.S. at 116-17, 72 S.Ct. at 584-85.

The 1986 SDWA jurisdiction amendment

“takes away no substantive right, but simply

changes the tribunal that is to hear the case.” Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct.

202, 203, 60 L.Ed. 409 (1916). Indeed, “Congress

has not altered the nature or validity of petitioner's

rights,” Bruner, 343 U.S. at 117, 72 S.Ct. at

584-85; see also, McGee v. International Life Insurance Co., 355 U.S. 220, 224, 78 S.Ct. 199,

201-02, 2 L.Ed.2d 223 (1957), but has simply withdrawn jurisdiction from the Court of Appeals for

the District of Columbia and, in its place, vested

jurisdiction over underground injection control programs in the “circuit in which the petitioner resides

or transacts business which is directly affected by

the action” of the Administrator, Pub.L. No.

99-339, § 303, 100 Stat. 667. Since the statutory

changes are purely jurisdictional in nature and do

not affect the ultimate availability of relief for the

claims at issue, this court is the proper forum to entertain Phillips' petition.FN9

FN9. Even though the review provisions in

question are framed in jurisdictional terms,

they are in fact procedural and more related to venue than fundamental grants of

subject matter jurisdiction. Thus, our authority to review a previously filed petition

is even more manifest.

Finally, Phillips is probably correct in its

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contention that when the EPA acted to

define its own authority, 40 C.F.R. §

144.2, it went beyond section 1421. In

doing so, it derived power from the general authorization provision of the

SDWA contained in section 1450. As to

any action of the Administrator under

that section, judicial review would always have been in this circuit. Section

1448(a)(2), 42 U.S.C. § 300j-7(a)(2).

Therefore, we have had authority to review at least part of the EPA's action

from the outset.

III.

APPLICATION OF PART C OF THE SDWA

(PROTECTION OF UNDERGROUND SOURCES

OF DRINKING WATER) TO INDIAN LANDS

[2] Phillips first challenges the regulation in

question by arguing that the EPA had no jurisdiction over Indian lands.FN10 Brief for Petitioners at

14. Before examining that position, we note that

this issue *552 cannot recur and in the future will

be no more than a historical curiosity, probably

confined to this case. The 1986 amendments to the

SDWA resolve any doubt concerning coverage of

the SDWA by expressly including Indian tribes.

Pub.L. No. 99-339, § 302, 100 Stat. 665-66.

FN10. Issues relating to the application of

environmental protection laws to Indian

lands have generated considerable discussion. See generally F. Cohen, Handbook of

Federal Indian Law, 282-86 (1982); see

also Will, Indian Lands Environment-Who

Should Protect It, 18 Nat. Resources J.

465, 485-86 (1978); Petros, The Applicability of the Federal Pollution Acts to Indian

Reservation: A Case for Tribal SelfGovernment, 48 U.Colo.L.Rev. 63 (1976).

We must also address the EPA's strenuous arguments that Phillips is foreclosed from asserting

its jurisdictional challenge. The EPA makes two

points: (a) Phillips did not first raise the issue before the agency as is normally required with respect

to objections to proceedings of an administrative

agency, United States v. L.A. Tucker Truck Lines,

344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54

(1952); Unemployment Compensation Commission

of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct.

245, 251, 91 L.Ed. 136 (1946); Wilson v. Hodel,

758 F.2d 1369, 1373 (10th Cir.1985); accord NLRB

v. Thompson Transport Co., 406 F.2d 698, 701-02

(10th Cir.1969); Garvey v. Freeman, 397 F.2d 600,

611 (10th Cir.1968); and, (b) Phillips' challenge is

untimely because it was not brought within 45 days

after the EPA promulgated 40 C.F.R. § 144.2, a

general regulation articulating its jurisdiction over

Indian lands. Section 1448(a), 42 U.S.C. §

300j-7(a); see generally American Association of

Meat Processors v. Costle, 556 F.2d 875, 876-77

(8th Cir.1977) (Federal Water Pollution Control

Act); Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d

885, 892-93 (8th Cir.1977) (Clean Air Act); Granite City Steel Co. v. EPA, 501 F.2d 925, 926-28 (7th

Cir.1974) (Clean Air Act); cf. Selco Supply Co. v.

EPA, 632 F.2d 863 (10th Cir.1980), cert. denied,

450 U.S. 1030, 101 S.Ct. 1740, 68 L.Ed.2d 225

(1981).

As the EPA points out, Phillips is raising the

jurisdictional issue for the first time in its petition

for review of the agency's action. Such belated timing is unfortunate. Phillips has both known of and

participated in the EPA's rulemaking process with

respect to Indian lands for a number of years

without once challenging the agency's jurisdiction.

Doing so now appears to be little more than an afterthought. It is a disservice to the agency, other affected parties, and to an orderly rulemaking process

to thus omit or delay such fundamental challenges,

even if legally permissible.

However, we cannot overlook an issue of jurisdiction as basic as that asserted here. If the SDWA

did not apply in relevant part to Indian lands when

the EPA attempted to assume and exercise jurisdiction under the SDWA, we would take notice of that

jurisdictional defect on our own initiative. Accordingly, we entertain the question of the reach of the

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statute. We do so in the exercise of our own discretion, in the interest of judicial economy, and to put

the matter to rest in the context of this limited time

period. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct.

2868, 49 L.Ed.2d 826 (1976); United States v.

Cheama, 783 F.2d 165 (10th Cir.1986); Pell v. Azar

Nut Co., 711 F.2d 949 (10th Cir.1983); Gomes v.

Williams, 420 F.2d 1364 (10th Cir.1970). It may be

that Phillips' legal arguments in favor of its right to

bring up the issue at this late date also have merit.

But in view of the exercise of our own discretion in

the matter we do not find it necessary to explore in

depth the positions of either party on the timeliness

of the jurisdictional issue. FN11

FN11. We do note, however, that the EPA

unsuccessfully raised similar arguments in

Washington, Dept. of Ecology v. E.P.A.,

752 F.2d 1465, 1468-69 (9th Cir.1985).

For the reason that prior actions related to

matters too general to act as a bar to Phillips' petition here, we also reject the EPA's

argument that Phillips is barred by provisions of a settlement agreement in another

action, dated September, 1981.

The nub of Phillips' jurisdiction argument is

that the EPA can only regulate under Part C of the

SDWA where state governments can, but fail to do

so. All parties agree that the Oklahoma state government has no power to prescribe an underground

injection control program regulating the Osage Indian Reserve. Therefore, Phillips argues, the EPA

has no power either. The matter is supposedly left

by Congress to the Bureau of Indian Affairs.

*553 Phillips develops its position as follows.

The EPA grant of authority to prescribe underground injection control programs is codified as

subsection (c) of section 1422, 42 U.S.C. §

300h-1(c), which provides:

(c) If the Administrator disapproves a State's

program (or part thereof) under subsection (b)(2)

of this section, if the Administrator determines

under subsection (b)(3) of this section that a State

no longer meets the requirements of clause (i) or

(ii) of subsection (b)(1)(A) of this section, or if a

State fails to submit an application or notice before the date of expiration of the period specified

in subsection (b)(1) of this section, the Administrator shall by regulation within 90 days after the

date of such disapproval, determination, or expiration (as the case may be) prescribe (and may

from time to time by regulation revise) a program

applicable to such State meeting the requirements

of section 300(h)(b) of this title.

As set forth in subsection (c), when a “State”

fails to implement or maintain a program as required, then, and only then, the EPA shall prescribe

a program “ applicable to such State. ” (emphasis

added). Section 1422, 42 U.S.C. § 300h-1(a), requires that the Administrator of the EPA list the

states subject to the SDWA. Oklahoma was listed.

No Indian tribe or land was listed.

A major underlying premise of Phillips' argument is that Part C of the SDWA refers only to

states as sovereign political entities-not geographic

areas. There is much to support that premise.

“State” is always capitalized in the SDWA, and appears as a noun. Sections 1421 and 1422 of the

SDWA, 42 U.S.C. §§ 300h and 300h-1, concentrate

on actions by state government entities (adoption

and implementation of programs, issuance of permits, prohibitions, authorizations, inspections, monitoring, recordkeeping, reporting, and so on). State

is defined by the SDWA, insofar as pertinent here,

as referring only to “the several States.” Section

1401, 42 U.S.C. § 300f(13).

Phillips thus concludes that a literal reading of

the statute shows it does not and cannot invest the

EPA with jurisdiction over the Osage Mineral Reserve, or any other Indian land, reservation or tribe

which is not under the jurisdiction of a state government. From a technician's standpoint the argument is a strong one. The statute clearly reflects

congressional concern with the state-federal partnership. It shows that the drafters did not expressly

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ereignty, but were concentrating on the major thrust

of the SDWA. The question is whether the argument is so strong that it absolutely precludes any

interpretation of the statute which would allow it to

apply to Indian lands; so strong that it compels the

conclusion that the SDWA did not cover vast areas

of the United States, until amended in 1986.

We are not persuaded by Phillips. Its view of

the statute is too narrow. Considering the amount of

oil and gas exploration and production on Indian

lands from 1974 to 1986, the SDWA would be eviscerated in large part by Phillips' interpretation. The

statute is sufficiently ambiguous on its face to permit us to explore and apply congressional intent,

search for national policy, and be guided by general

legal precepts relating to Indian tribes and lands.

Where the words are ambiguous the judiciary

may properly use the legislative history to reach a

conclusion. And that method of determining congressional purpose is likewise applicable when

the literal words would bring about an end completely at variance with the purpose of the statute.

(citations omitted).

United States v. Public Utilities Commission,

345 U.S. 295, 315, 73 S.Ct. 706, 717-18, 97 L.Ed.

1020 (1953); see also Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620, 84

L.Ed.2d 674 (1985). It is readily apparent from the

legislative history that the underground drinking

water provisions of the SDWA apply throughout

the country, border to border, ocean to ocean. It is

triggered by area (state) designations by the Administrator, but its reach covers the country.

*554 Ambiguity in the statute appears in several ways. The definitions section of the SDWA

refers directly to Indian tribal organizations in defining “municipality.” Section 1401, 42 U.S.C. §

300f. In turn, the definition of “person” includes

“municipality” Section 1401(12), 42 U.S.C. §

300f(12). Both sections 1421 and 1422 of the

SDWA, 42 U.S.C. § 300h and § 300h-1, contain

provisions relating to “persons.” Thus, for example,

section 1421(b)(1)(D)(ii) provides that a State program shall apply “to underground injections by any

other person whether or not occurring on property

owned or leased by the United States.” Section

1421(b)(1)(D), 42 U.S.C. § 300h(b)(1)(D)

(emphasis added). Section 1421(d)(2), 42 U.S.C. §

300h(d)(2) provides:

(2) Underground injection endangers drinking

water sources if such injection may result in the

presence in underground water which supplies or

can reasonably be expected to supply any public

water system of any contaminant, and if the presence of such contaminant may result in such system's not complying with any national primary

drinking water regulation or may otherwise adversely affect the health of persons.

(emphasis added).FN12 Section 1445, 42

U.S.C. § 300j-4, authorizes inspection of the

premises of “any supplier of water or other person”

subject to criteria sufficiently broad to include Indian lands.

FN12. Phillips acknowledges that the public water systems portion of the SDWA

(Part B), referred to in section 1421(d)(2),

does apply to Indian tribes and lands.

Reply Brief for Petitioner at 9-10.

In addition, various parts of the statute can

fairly be interpreted to mean that the term State

(even though capitalized) refers to a geographic

area, not necessarily a political entity. In section

1422(c), 42 U.S.C. § 300h-1(c), where the EPA is

given the power to act, the statute states that an

EPA prescribed program “shall apply in such State

to the extent that a program adopted by such State

which the Administrator determines meets such requirements is not in effect. ” (emphasis added). Finally, sections 1421(b)(3)(A) and (c), 42 U.S.C. §

300h(b)(3)(A) and (c), provide:

(3)(A) The regulations of the Administrator under this section shall permit or provide for consideration of varying geologic, hydrological, or

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historical conditions in different States and in different areas within a State.

(C) Nothing in this section shall be construed

to alter or affect the duty to assure that underground sources of drinking water will not be endangered by any underground injection.

(emphasis added).FN13

FN13. The statutory definition of States as

“the several States,” section 1401(13), 42

U.S.C. § 300f(13), does not rule out the ordinary concept of a geographic area with

prescribed borders. Maps of the United

States show States by their familiar boundaries.

We now examine congressional intent as an aid

to interpreting the statute. That intent is so clearly

expressed in legislative history and so strong that it

is dispositive of the issue of the statute's reach.

When “interpreting a statute, the court will not look

merely to a particular clause in which general

words may be used, but will take in connection

with it the whole statute (or statutes on the same

subject) and the objects and policy of the law, as indicated by its various provisions, and give to it such

a construction as will carry into execution the will

of the Legislature. ” Kakoszka v. Belford, 417 U.S.

642, 650, 94 S.Ct. 2431, 2436, 41 L.Ed.2d 374

(1974) (quoting Brown v. Duchesne, 60 U.S. (19

How.) 183, 194, 15 L.Ed. 595 (1857) (emphasis added). Similarly, the Supreme Court has recognized

that statutes must be interpreted “not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law,

and the circumstances under which the words were

employed.” District of Columbia v. Carter, 409

U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613

(1973) (quoting Puerto Rico v. Shell Co., 302 U.S.

253, 258, 58 S.Ct. 167, 169-70, 82 L.Ed. 235

(1937).

*555 The SDWA was passed in 1974. The accompanying report from the House Committee on

Interstate and Foreign commerce stated: “[T]he

purpose of the legislation is to assure that the water

supply systems serving the public meet minimum

national standards for protection of public health,”

H.R.Rep. No. 1185, 93d Cong., 2nd Sess. 1 (1974),

U.S.Code Cong. & Admin.News 1974, p. 6454

(emphasis added), and Congress “anticipated that

this list [of areas needing UIC programs] ... would

include all 50 states,” Id. at 32. “Until relatively recently,” the report observes, “the fundamental elements of life-clean air to breathe, safe water to

drink-have been taken for granted in the United

States.” Id. at 4. The report proceeds in the most

express terms to state “[t]hat the causes and effects

of unhealthy drinking water are national in scope,”

as evidenced by the spread of water-borne diseases,

contagious and otherwise; and adverse impact on

interstate commerce, travel, productivity, and other

factors limiting the national economy. Id. at 8.

Then the obvious but most significant point is made

by the Committee:

Other factors also illustrate the need for national concern about unsafe drinking water. Underground drinking sources which carry contaminants may cross State boundaries. In general, water in the hydrologic cycle does not respect State

borders.

Id. (emphasis added). Therein lies the difference between Phillips' view of this legislation, and

that of Congress. Phillips interprets the statute by

emphasizing borders (state political entity versus

Indian land). Congress emphasizes a national policy

of clean water. So, therefore, must we in interpreting the statute.

In other contexts, the Supreme Court has recognized the existence of national policy in legislative acts. Bob Jones University v. United States,

461 U.S. 574, 593, 103 S.Ct. 2017, 2029, 76

L.Ed.2d 157 (1983) (“Over the past quarter of a

century, every pronouncement of this Court and

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ation and discrimination in public education.”);

Barrentine v. Arkansas-Best Freight System, Inc.,

450 U.S. 728, 735, 101 S.Ct. 1437, 1441-42, 67

L.Ed.2d 641 (1981) (“The national policy favoring

collective bargaining and industrial selfgovernment was just expressed in the National

Labor Relations Act of 1935, 29 U.S.C. § 151, et

seq. It received further expression and definition in

the Labor Management Relations Act, 1947, 29

U.S.C. § 141, et seq. ”) (the Taft-Hartley Act);

Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623,

660, 97 S.Ct. 2881, 2902, 53 L.Ed.2d 1009 (1977)

(discussing “overriding expressions of national

policy embodied in statutes like the Ku Klux Klan

Act of 1871 or the Sherman Act of 1890”); see also

Sinclair Refining Co. v. Atkinson, 370 U.S. 195,

217, 82 S.Ct. 1328, 1340-41, 8 L.Ed.2d 440 (1962)

(discussing the Norris-Laguardia Act as “one of

several statutes which, taken together, shape the national labor policy.”)

Finally, in adopting the SDWA, Congress expressly stated its concern that Indians should enjoy

the benefits of clean drinking water as should all

Americans, noting that:

The Indian Health Service ... operates a direct

construction program to provide sanitation facilities to Indian and Alaskan natives. However, in

the Committee's view these grant programs to

construct drinking water supply systems are not

necessarily adequate to assure that safe drinking

water will be available [to Indians], even from

those systems which are constructed with such

aid.

H.R.Rep. No. 1185, 93d Cong., 2d Sess. at 9,

U.S.Code Cong. & Admin.News 1974, p. 6462.

We conclude, therefore, that there is no sound

policy reason to exclude Indian lands from the

SDWA's application, and every reason to include

them. As indicated above, the SDWA clearly establishes national policy with respect to clean water,

including sources of underground water. To hold,

as Phillips suggests, that the EPA did not have authority to promulgate underground*556 injection

control programs for Indian lands would contradict

the clear meaning and purpose of the SDWA by

creating, prior to 1986, a vacuum of authority over

underground injections on Indian lands, leaving

vast areas of the nation devoid of protection from

groundwater contamination. Indeed, it is a well established canon of statutory construction that a

court should go beyond the literal language of a

statute if reliance on that language would defeat the

plain purpose of the statute. Bob Jones University,

461 U.S. at 586, 103 S.Ct. at 2025.

The conclusion that the SDWA empowered the

EPA to prescribe regulations for Indian lands is

also consistent with the presumption that Congress

intends a general statute applying to all persons to

include Indians and their property interests. See

Federal Power Commission v. Tuscarora Indian

Nation, 362 U.S. 99, 116-18, 80 S.Ct. 543, 553-55,

4 L.Ed.2d 584 (1960).FN14 Although this rule of

construction can be rescinded where a tribe raises a

specific right under a treaty or statute which is in

conflict with the general law to be applied, Morton

v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41

L.Ed.2d 290 (1974); Donovan v. Navajo Forest

Products Industries, 692 F.2d 709 (10th Cir.1982);

United States v. White, 508 F.2d 453 (8th

Cir.1974), no such right under statute or treaty has

been demonstrated. To the contrary, the Osage Indian Tribe supports the EPA's adoption of the injection program on the reserve. Doc. E-1084 (1980

Tribal Council resolution supporting the EPA's implementation of the program); Doc. D-1572 at

17-18 (Chief of Osage Tribe at June 1984 hearing

supporting protection of groundwater by EPA).

FN15

FN14. This general principle has been used

to apply general statutes to Indian lands in

many situations. This circuit has held that

the National Environmental Policy Act

(“NEPA”) applies to federal decisions on

Indian lands. In Davis v. Morton, 469 F.2d

593, 597 (10th Cir.1972), we held that

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“[t]he fact Indian lands are held in trust

does not take it out of NEPA jurisdiction.

Id. at 597 (citing Tuscarora ). In Manygoats v. Kleppe, 558 F.2d 556 (10th

Cir.1977), we noted that NEPA is designed

to address national environmental interests,

and while tribal interests may not coincide

with national inerests, we could find

“nothing in NEPA which exempts Indian

lands from national policy.” Id. at 599. In

Tuscarora, the Supreme Court held that

the general authority of the Federal Power

Commission includes the power to condemn nontreaty Indian lands. See also

Choteau v. Burnet, 283 U.S. 691, 51 S.Ct.

598, 75 L.Ed. 1353 (1931) (general revenue laws apply to reservation Indians);

Navajo Tribe v. NLRB, 288 F.2d 162

(D.C.Cir.), cert. denied, 366 U.S. 928, 81

S.Ct. 1649, 6 L.Ed.2d 387 (1961) (NLRB

can hold elections on the reservation even

if the tribe opposes them).

More on point, the United States Court

of Appeals for the Ninth Circuit has held

that the Resource Conservation and Recovery Act of 1976 (“RCRA”), section

1002 et seq., 42 U.S.C. § 6901 et seq.

(1976), empowers the EPA to implement

“state hazardous waste programs” on Indian lands. Washington, 752 F.2d at

1472. Like the SDWA, the RCRA

provides for a comprehensive federalstate scheme to regulate the disposal of

hazardous waste. Similarly, RCRA does

not directly address the problem of how

to implement “state hazardous waste

management programs” on Indian reservations. Yet, the Washington court recognized that Congress intended to create a comprehensive waste management

scheme and did not intend to leave any

lands, regardless of the jurisdictional

control over those lands, unprotected.

Thus, the court held:

The absence of state enforcement power

over reservation Indians, however, does

not leave a vacuum in which hazardous

wastes go unregulated. EPA remains responsible for ensuring that the federal

standards are met on the reservations.

Those standards are designed to protect

human health and the environment.

[citation omitted]. The state and its citizens will not be without protection.

Id.

FN15. We also find persuasive the long

history of congressional involvement with

the oil and gas affairs of the Osage Indians.

At the time of Oklahoma statehood, Congress reserved the minerals including the

oil and gas to the Osage Tribe. Act of June

28, 1906, Chap. 3572, 34 Stat. 540 (1906).

Congress specifically provided for the

leasing of oil and gas on the reserve by the

Osage Tribal Council with the approval of

the Secretary of the Interior upon such

rules and regulations that the Secretary

might prescribe. Id. at 543. Furthermore,

the federal government has already imposed regulations for the reserve requiring

that oil and gas operations be conducted

“in a manner that will prevent pollution

and the migration of oil, gas, saltwater or

other substance from one stratum to another, including any freshwater bearing formation.” 25 C.F.R. § 226.22 (1986). While

these actions were not undertaken pursuant

to the SDWA, we nonetheless find them

supportive of a continuing intent by Congress to exercise its jurisdiction over the

oil and gas affairs of the Osage Indian

Tribe.

*557 Finally, we have taken into consideration

the EPA's own interpretation of the statute. Soon

after passage of the 1977 amendments to the Act,

the EPA's general counsel ruled that the EPA has

the authority to prescribe an underground injection

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program for the Osage Reserve. See Opinion of the

General Counsel No. 78-2, Doc. E-1088. As stated

previously, the EPA promulgated its regulation asserting jurisdiction over Indian lands under Part C

of the SDWA. 48 Fed.Reg. 2,938 (January 21,

1983) (codified at 40 C.F.R. § 144.2). Appropriate

deference is due to the agency's own interpretation

of the statute. Udall v. Tallman, 380 U.S. 1, 85

S.Ct. 792, 13 L.Ed.2d 616 (1965); Hoover &

Bracken Energies, Inc. v. Dept. of Interior, 723

F.2d 1488 (10th Cir.1983), cert. denied, 469 U.S.

821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984). We accord that deference taking into account, however,

that the agency's position was not adopted proximate in time to the passage of the SWDA in 1974.

Additionally, we cannot abdicate our independent

responsibility to pass on lawful interpretations of a

statute, since “the courts are the final authorities on

issues of statutory construction.” Volkswagenwerk

Aktiengesellschaft v. FMC, 390 U.S. 261, 272, 88

S.Ct. 929, 935-36, 19 L.Ed.2d 1090 (1968).

Phillips urges that no vacuum of statutory coverage existed under its theory because Congress intended the Bureau of Indian Affairs to control pollution on Indian lands. The 1986 amendments to the

SDWA foreclose further debate on that point. In

any event, Phillip's argument makes no sense. Two

federal agencies regulating side by side, one following the SDWA and the other its own ad hoc regulations, hardly reflects either congressional intent

or the national policy embodied in the statute.

Phillips also suggests that since the 1986

amendments cover Indian tribes in detail for the

first time, the SDWA could not previously have

covered Indian lands. It mounts a similar argument

with respect to language in the 1977 amendments

that existing Indian sovereignty over both land and

water rights would not be affected.FN16 We reject

both arguments. The 1986 amendments provide detailed guidance as to the mechanics and application

of the SDWA where Indian tribes are concerned.

Tribes are included for the first time. But the

amendments do not confer EPA jurisdiction over

Indian lands themselves for the first time. “Statutes

may be passed purely to make what was intended

all along even more unmistakably clear.” United

States v. Montgomery County, Maryland, 761 F.2d

998, 1003 (4th Cir.1985). As the Sixth Circuit has

also expressed, an amendment to an existing statute

is not an acknowledgement by Congress that the

original statute is invalid. It is a common and *558

customary legislative procedure to enact amendments strengthening and clarifying existing laws.

United States v. Tapert, 625 F.2d 111, 121 (6th

Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 609,

66 L.Ed.2d 496 (1980), cert. denied sub nom. 449

U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980).

Legislative history concerning the 1986 amendments is silent on the question of EPA jurisdiction

over Indian lands under the 1974 SDWA. To the

extent any meaning can be inferred from that silence it supports our conclusion. If the 1986 amendments were intended to vest jurisdiction in the EPA,

pursuant to Part C of the SDWA, over Indian lands

for the first time, surely an explanation or comment

would have been contained in the committee reports. See Brown v. Marquette Savings & Loan Association, 686 F.2d 608, 615 (7th Cir.1982) (“We

are persuaded ... by the absence of any indication of

intent to change the law in the legislative history of

the 1980 Act, that a change in the law was not intended by the addition of section 1640(d)”). FN17

FN16. Congress explicitly limited the jurisdiction of state governments over Indian

lands. Section 8 of the 1977 Amendments

to the SDWA, Pub.L. No. 95-190, 91 Stat.

1393, 1396-97 (1977), codified at section

1447, 42 U.S.C. § 300j-6, states:

(c)(1) Nothing in the Safe Drinking Water Amendments of 1977 shall be construed to alter or affect the status of

American Indian lands or water rights

nor to waive sovereignty over Indian

lands guaranteed by treaty or statute.

(2) For the purpose of this chapter, the

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strued to refer to or include any American Indian tribe, nor to the Secretary of

the Interior in his capacity as trustee of

Indian Lands.

Section 1447(c) was enacted largely due

to concern expressed by the Osage tribe

that section 8 of the 1977 amendments,

without this provision, would give jurisdiction over Indian lands to the State of

Oklahoma. See Opinion of the General

Counsel No. 78-2, Doc. E-1088. By concluding that Indian tribes are not

“Federal agencies,” Congress precluded

any arguments that Indian tribes could

be subject to state substantive and procedural laws through the provisions of

the SDWA that require federal agencies

to adhere to the oil and gas regulations

of the state government.

FN17. Following oral argument in this

case, both sides were granted full opportunity to submit their views on the effect,

if any, of the 1986 Amendments to the

SDWA. We have fully considered those

views.

IV.

THE OSAGE REGULATION

A. Standard of Review.

We examine Phillips' contentions regarding the

Osage regulation pursuant to established standards

of review. The arbitrary and capricious standard of

review provided by section 706(2)(A) of the APA,

5 U.S.C. § 706(2)(A) (1977), applies to informal

rulemaking proceedings such as those provided in

the SDWA. American Mining Congress v. Marshall, 671 F.2d 1251, 1255 (10th Cir.1982). The

United States Supreme Court has explained the arbitrary and capricious standard as follows:

To make this finding the court must consider

whether the decision was based on a consideration of the relevant factors and whether there has

been a clear error of judgment. Although this inquiry into the facts is to be searching and careful,

the ultimate standard is a narrow one. The court

is not empowered to substitute its judgment for

that of the agency.

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28

L.Ed.2d 136 (1971) (citations omitted). In reviewing the Osage regulation, we must be aware that

Congress delegated broad authority to the Administrator. Because Congress has conferred such sweeping authority on the Administrator, courts afford

considerable deference to the EPA's construction of

the statutory scheme that it is entrusted to administer. See Chemical Manufacturers Association v.

Natural Resources Defense Council, Inc., 470 U.S.

116, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985); Chevron v. Natural Resources Defenses Council, Inc.,

467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984); Emery Mining Corp. v. Secretary of Labor,

744 F.2d 1411, 1415 (10th Cir.1984); Hoover and

Bracken Energies, 723 F.2d at 1489; American

Mining Congress, 671 F.2d at 1255. We need not

find that the EPA's interpretation is the only permissible construction but only that the EPA's understanding of the statute is a sufficiently rational

one to preclude a court from substituting its judgment for that of the EPA. See Chemical Manufacturers, 105 S.Ct. at 1108. “The need for judicial restraint is further heightened by the realization that

courts do not share the [Administrator's] expertise

in this highly technical area.” American Mining

Congress, 671 F.2d at 1255.

B. Extension of Comment Period.

[3] Phillips argues that the Administrator acted

arbitrarily and capriciously in refusing to extend the

45 day Osage regulation comment period 30 days.

Phillips further contends that the EPA's refusal to

extend the comment period deprived them of the

opportunity to fully develop a record before the

agency. We find those arguments to be without

merit.

*559 The SDWA provides for an informal rulemaking process when the EPA promulgates rules

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under statutory authority.FN18 Section 1421(a)(2),

42 U.S.C. § 300h(a)(2). As mentioned, the procedures necessary in informal rulemaking are set forth

in § 553 of the APA. 5 U.S.C. § 553 (1982). The

agency must provide notice of the proposed rulemaking, and “give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or

without opportunity for oral presentation.” 5 U.S.C.

§ 553(c). This opportunity to participate is all that

the APA requires. There is no requirement concerning how many days the EPA must allow for comment or that the EPA must re-open the comment

period at the request of one of the participants.

“Absent constitutional constraints or extremely

compelling circumstances the ‘administrative agencies should be free to fashion their own rules of

procedure and methods of inquiry permitting them

to discharge their multitudinous duties.’ ” Vermont

Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, 435 U.S. 519, 543, 98 S.Ct. 1197,

1211, 55 L.Ed.2d 460 (1978) (quoting FCC v.

Schreiber, 381 U.S. 279, 290, 85 S.Ct. 1459,

1467-68, 14 L.Ed.2d 383 (1965) ). “Congress intended that the discretion of the agencies and not that

of the courts be exercised in determining when extra procedural devices should be employed.” Vermont Yankee, 435 U.S. at 546, 98 S.Ct. at 1213

(emphasis in original). To impose upon the agency

more stringent procedural requirements, absent extraordinary circumstances, would clearly violate the

Supreme Court's holding in Vermont Yankee that

the formulation of procedure is to be basically left

within the discretion of the agencies to which Congress has confined the responsibility for substantive

judgments. Id. at 524, 98 S.Ct. at 1202.

FN18. The SDWA also provides the additional requirement of a public hearing. See

sections 1421(a)(2) and 1422(c), 42 U.S.C.

§§ 300h(a)(2), 300h-1(c).

It is evident to us that Phillips was given a full

and fair opportunity to comment on all significant

issues in the rulemaking proceeding. The EPA informed Phillips of its intent to adopt an underground injection control program for the Osage

Mineral Reserve in 1980, four years prior to the actual proposal of the Osage program. Doc. E-1078.

The EPA sent Phillips a draft of the Osage program, and met with Phillips to discuss that draft, in

December 1982, almost one and a half years prior

to the agency's formal publication of the rule in the

Federal Register. See Fed.Reg. 20,238 (May 11,

1984); see also Doc. E-1048. The EPA also held a

public hearing in October 1983, on the Indian lands

program for Oklahoma. See 48 Fed.Reg. 40,098-99

(Sept. 2, 1983). The EPA formally proposed the

Osage rule in May 1984. See 49 Fed.Reg. 20, 238

(May 11, 1984). The EPA held a public hearing on

the Osage program on June 14, 1984, at which Phillips actively participated. Doc. E-1572. Phillips

also commented in detail on the proposed rule.

Doc. D-1013.

We further note that Phillips has presented no

evidence that they were prejudiced by the EPA's refusal to extend the comment period. Nor does the

record indicate that the 45 day comment period was

inherently short or inadequate. Courts have uniformly upheld comment periods of 45 days or less.

Connecticut Light & Power Co. v. NRC, 673 F.2d

525, 534 (D.C.Cir.), cert. denied, 459 U.S. 835, 103

S.Ct. 79, 74 L.Ed.2d 76 (1982) (denying petitioner's

claim that a 30 day comment period was unreasonable, notwithstanding petitioner's complaint that the

rule was a novel proposition); North American Van

Lines v. ICC, 666 F.2d 1087, 1092 (7th Cir.1981)

(claim that 45 day comment period was insufficient

rejected as “without merit.”) The administrative record demonstrates that Phillips was consistently involved from 1980 to the promulgation of the Osage

rule in final form, and that it had ample opportunity

to comment. We cannot find that the EPA's refusal

to extend the comment period 30 days is arbitrary,

capricious or an abuse of discretion.

C. EPA's Mechanical Integrity Test.

[4] Phillips next asks us to review the mechanical integrity requirement of the Osage*560 rule.

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Under the mechanical integrity test, every well is

required to demonstrate mechanical integrity by

successful completion of an annulus pressure test

which demonstrates that there is not a significant

leak in the casing, tubing, or packer.FN19 40

C.F.R. § 147.2912 (1985). Phillips maintains that

the no significant leak rule violates the SDWA's requirement that an underground injection program

may not “interfere with or impede” the underground injection of brine in natural gas production

or any underground injection for the enhanced recovery of oil, “unless such requirements are essential to assure that underground sources of drinking

water will not be endangered by such injection.”

Section 1422(c), 42 U.S.C. § 300h-1(c). FN20 The

thrust of Phillips' argument is that there are a number of old injection wells on the Osage Mineral Reserve with casings of questionable integrity, but

which pose no threat to underground drinking water

sources since they are being operated in accordance

with Bureau of Indian Affairs (“BIA”) requirements

that require the installation of injection tubing set

on a packer. Brief for Petitioners at 3. The cost of

installing new cement casings or performing cement squeeze jobs, Phillips alleges, may cause

many marginally producing wells to be shut down.

Id.

FN19. The no significant leak requirement

of the mechanical integrity test (“MIT”)

requirement was first adopted by the EPA

as a national technical minimum requirement rule for underground injection control programs. 45 Fed.Reg. 42,473, 42,481,

42,505 (June 24, 1980) (codified at 40

C.F.R. § 146.08 (1984). This rule requires

that operators demonstrate the absence of a

“significant leak” in their tubing, casing,

and packer. Id. The EPA ultimately adopted the annulus pressure test in the national

rules. See, 40 C.F.R. § 146.08, §

147.2912(a).

The EPA also adopted the mechanical

integrity test requirement for the Osage

program. See 49 Fed.Reg. 45,292,

45,312 (Nov. 15, 1984) (codified at 40

C.F.R. § 147.2912(a)(1)(i) and (ii). The

Osage rule required that all “wells must

demonstrate that there is no significant

leak in the casing, tubing, and packer.”

Id. Based on this requirement, the EPA

decided to consider no options that

would allow “wells to operate [in Osage]

if there are significant leaks in the casing.” 49 Fed.Reg. at 45,303.

FN20. Section 1422(c), 42 U.S.C. §

300h-1(c), provides that “[s]uch program

may not include requirements which interfere with or impede-

(1) the underground injection of brine or

other fluids which are brought to the surface in connection with oil or natural gas

production, or

(2) any underground injection for secondary or tertiary recovery of oil or natural gas,

unless such requirements are essential to

assure that underground sources of

drinking water will not be endangered

by such injection. (emphasis added).

The principle basis for rejecting Phillips' argument is the wording of the statute. Section 1422(c),

42 U.S.C. § 300h-1(c), directs the EPA to guard

against the contamination of underground sources

of drinking water. If a requirement “is essential to

assure that underground sources of drinking water

will not be endangered,” then it is of no import

whether underground injections are impeded. Id.

Indeed, the clear overriding concern of Congress

was that of “assuring the safety of present and potential sources of drinking water.” H.R.Report No.

1185, 93d Cong., 2d Sess. at 31, U.S.Code Cong. &

Admin.News 1974, p. 6484. Section 1422(c), 42

U.S.C. § 300h-1(c), was not intended “to require ...

EPA to bear an impossible burden of proof as a

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condition of promulgation of any such regulation.”

Id. Moreover, the phrase “ ‘underground injection

which endangers drinking water sources' is to be

liberally construed so as to effectuate the preventative and public health protective purposes of the

[SDWA].” H.R.Rep. No. 1185, 93d Cong., 2d Sess.

32 (1974), U.S.Code Cong. & Admin.News 1974,

pp. 6484.FN21

FN21. The SDWA itself expressly emphasizes that “nothing in this section [1421]

shall be construed to alter or affect the

duty to assure that underground sources of

drinking water will not be endangered by

any underground injection.” Section 1421,

42 U.S.C. § 300h(b)(3)(C).

We simply cannot conclude that the EPA's

mechanical integrity requirement violates the strictures of the SDWA. The EPA, in its expert judgment, concluded after*561 extensive and detailed

studies that the protection of a cement casing with

mechanical integrity is essential to protect underground sources of drinking water. Docs. D-1532, E1035, E-1064; see also Fed.Reg. 45,292, 45,303

(November 15, 1985).FN22 Phillips, in essence,

asks this court to substitute its judgment for that of

the Administrator, although there is substantial

evidence to justify the Administrator's conclusion

that the mechanical integrity test is essential to protect underground sources of drinking water. This

we cannot do. Citizens to Preserve Overton Park,

401 U.S. at 416, 91 S.Ct. at 823-24.

FN22. The agency found that casing is an

important protection of underground drinking water contamination in the event of a

cement, tubing, or packer failure. Docs. D1532, E-1035. Corrosive materials, such as

highly salty deep formation brine, may attack the tubing if the casing has holes. Id.

Finally, the EPA determined that the casing tubing of a well with a corroded casing

may serve as a conduit for movement of

fluids from salty formations into underground sources of drinking water just as an

improper cementing outside the casing

may allow such movement. Id.; cf. 49

Fed.Reg. 45,296 (Nov. 15, 1984). 49

Fed.Reg. 45,296 states:

improper cementing at the borehole

through strata other than the injection

zone could allow fluid to migrate from

one formation to another, a situation that

would have no effect on the enhanced recovery operation, but which could result

in a significant contamination of a

USDW.

Phillips has also failed to produce any demonstrable evidence that the “no significant leak” requirement interferes with or impedes oil production. The legislative history suggests that absent a

“prior showing” that a rule “stop[s] or substantially

delay[s]” oil production, no inquiry need be made

into whether the rule is “essential” to protection of

underground sources of drinking water. H.R.Rep.

No. 1185, 93d Cong., 2d Sess. at 31, U.S.Code

Cong. & Admin.News 1974, p. 6484. In using the

words “interefere with or impede,” Congress “did

not intend to include every regulatory requirement

which would necessitate the expenditure of time,

money, or effort.” H.R.Rep. No. 1185, 93d Cong.,

2d Sess. at 31, U.S.Code Cong. & Admin.News

1974, p. 6484. Rather, the Committee intended to

refer to those requirements which could stop or

substantially delay production of oil or natural gas.

Id. Phillips, however, has produced no such evidence. To the contrary, even after repeated requests

by the EPA for input and data regarding the effect

of the mechanical integrity requirement, Docs. E1073, E-1078, E-1048, Phillips produced no

demonstrable support for its proposition. As such,

Phillips cannot attack the Administrator's conclusion, that while some costs and production losses

were likely, no substantial impediment to oil and

gas production would result from implementation

of the mechanical integrity requirements. See 45

Fed.Reg. 42,472, 42,487-500 (June 24, 1980).

D. Consideration of Geologic, Hydrological, or

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Historical Conditions.

Phillips also argues that the Osage mechanical

integrity test violates Section 1421's mandate that

“regulations ... under this section shall permit or

provide for consideration of varying geologic, hydrological, or historical conditions in different

States and in different areas within a State.” Section

1421(b)(3)(A), 42 U.S.C. § 300h(b)(3)(A). Phillips

suggests that the EPA did not consider these factors

because it dismissed Phillips' evidence of “the very

large number of very old injection wells [on the Osage reserve] with questionable integrity.” Brief of

Petitioners at 24.

Phillips misinterprets the import of Section

1421(b)(3)(A). Section 1421(b)(3)(A) was intended

to insure that national rules would be sufficiently

flexible to allow for consideration of local factors.

It was not intended to allow increased risk or endangerment of underground sources of drinking water. H.R. No. 338, 95th Cong., 1st Sess. at 9 (1977).

The provision should not be interpreted as

“requiring the Administrator to subordinate the

concern for protection of underground water

sources to that of energy production.” H.R.Rep. No.

338, 95th Cong., 1st Sess. at 10.

The Record is replete with evidence that the

EPA considered the local geologic, hydrological,

*562 and historical conditions of the Osage reserve

prior to the adoption of the Osage underground injection control program. Doc. E-1035 (analysis of

injection well integrity); Doc. E-1064 (analysis of

the types of wells used at the Osage reserve and of

the underground sources of drinking water on the

reserve); Doc. E-1034 (study regarding the prevention of contamination of underground drinking water); and Doc. E-1034 (inventory of the geology of

the Osage reserve). The agency also considered tribal preferences, underground injection control programs of adjacent states, and the BIA requirements

for the Osage reserve in drafting the final Osage

rule. See 49 Fed.Reg. at 45,300-301 (Nov. 15,

1984). As such, we cannot say that the EPA abused

its discretion.

E. Case-By-Case Review.

[5] Finally, Phillips argues that the EPA unlawfully failed to include in the underground injection

program a mechanism for a case-by-case review of

whether the mechanical integrity test would cause a

loss of oil and gas production without being essential to insure that underground sources of drinking

water will not be endangered. Phillips suggests that

the regulation precludes any alternate mechanical

integrity test that would permit a well to operate

with holes in the casing although the tubing, packer, and cement job were sufficient to insure that

contaminated fluid is not allowed to enter sources

of drinking water.

Phillips' argument is simply a restatement of its

earlier argument that the mechanical integrity test

violates the SDWA's mandate that no regulations

may adversely affect oil production unless essential

to protect underground sources of drinking water.

The EPA has made a determination that in the Osage reserve, a significant leak in the casing, tubing,

or packer is per se an endangerment to the sources

of drinking water underlying the Osage reserve. See

49 Fed.Reg. at 45,303 (Nov. 15, 1984). In its expert

judgment, the EPA “decided to consider no options

which would allow wells to operate if there are significant leaks in the casing.” Id. Therefore, the EPA

concluded that the prevention of substantial leaks is

essential to assure the protection of underground

sources of drinking water.

Phillips now suggests, however, that it should

be permitted to contest the necessity of the mechanical integrity test on a case-by-case basis, even

though the EPA has already determined that the

mechanical integrity test is essential. We have

already determined that the EPA's decision to adopt

the mechanical integrity test was not arbitrary or

capricious and we need not redirect our attention to

that issue here.

There are approximately 3,600 injection wells

in Osage County. About 1,250 of those wells utilize

salt water disposal techniques, while the other

2,350 are enhanced recovery wells. Doc. D-1572 at

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10-11. To require the EPA to undertake a caseby-case determination of whether the mechanical

integrity test should apply for each well would

severely handicap the implementation of the act the

EPA was entrusted by Congress to administer. The

EPA was well within its discretion to utilize a generic streamlined approach or procedure “where the

conventional course, typically case-by-case determinations, would, as a practical matter, prevent the

agency from carrying out the mission assigned to it

by Congress.” Alabama Power Co. v. Costle, 636

F.2d 323, 358 (D.C.Cir.1979). As the Supreme

Court has recognized, “ ‘considerations of feasibility and practicality are certainly germane’ to the issues before us. Bowles v. Willingham [321 U.S.

503, 517, 64 S.Ct. 641, 648-49, 88 L.Ed. 892

(1944) ].... We cannot, in these circumstances, conclude that Congress has given authority inadequate

to achieve with reasonable effectiveness the purpose for which it has acted.” Permian Basin Area

Rate Cases, 390 U.S. 747, 777, 88 S.Ct. 1344,

1365, 20 L.Ed.2d 312 (1968); accord E.I. du Pont

de Nemours & Co. v. Train, 430 U.S. 112, 132, 97

S.Ct. 965, 977, 51 L.Ed.2d 204 (1977); Environmental Defense Fund v. EPA, 598 F.2d 62, 84-85

(D.C.Cir.1978). Furthermore, we note that the Osage rule does not prevent each well from receiving

a case-by-case review if it has a significant leak.

Moreover, the *563 Osage rule provides that alternate “[t]esting and monitoring programs [may be]

approved by the Regional Administrator on a caseby-case basis” to demonstrate the absence of a significant leak. 40 C.F.R. § 147.2912(a)(1)(v).

CONCLUSION

In summary, we hold that the EPA is empowered by the SDWA to implement underground

injection control programs on Indian lands. We further hold that the EPA complied with all necessary

procedural requirements in promulgating the Osage

underground injection control program and that that

program is within the statutory and regulatory

guidelines of the SDWA. We have considered all of

Phillips' arguments. To the extent they are not discussed, they are insufficiently meritorious for independent comment. The petition for review is dismissed.

C.A.10,1986.

Phillips Petroleum Co. v. U.S. E.P.A.

803 F.2d 545, 25 ERC 1033, 17 Envtl. L. Rep.

20,387

END OF DOCUMENT

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