Deep Injection Wells:

EPA Needs to Involve Communities Earlier and Ensure That Financial Assurance Requirements Are Adequate

GAO-03-761: Published: Jun 13, 2003. Publicly Released: Jul 14, 2003.

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Billions of gallons of hazardous liquid waste are injected into underground wells each year. These Class I hazardous deep injection wells are designed to inject waste into an area below the lowermost underground source of drinking water. EPA and the states grant permits to commercial operators to construct and operate these wells and must obtain public comments on the permits. Communities often raise concerns about well safety and other matters. GAO examined the extent to which EPA and the states (1) address these community concerns, (2) consider environmental justice issues, and (3) ensure that financial assurances adequately protect the taxpayer if bankruptcy occurs. GAO, among other things, examined the permit process in the four states that have commercial Class I wells.

Although EPA provides opportunities for public comment on proposed commercial Class I deep injection wells as required by regulations, these opportunities come late in the process, after a draft permit has been prepared and this timing may limit the extent to which concerns are addressed. EPA responds to all public comments, but it cannot deny a permit on the basis of community concerns if all regulatory requirements for protecting drinking water are met. However, earlier involvement could give communities more time to contact appropriate state or local officials to address concerns that are not within the scope of EPA's authority. In Michigan, where EPA issues injection well permits, communities believe that their concerns are often not fully resolved; in some instances, communities have filed legal actions and complaints to prevent well construction. In contrast, the three states to which EPA has authorized responsibility for issuing permits have enacted requirements for earlier and more public involvement. Overall, they believe that early involvement better addresses community concerns, mitigates controversial issues, and avoids litigation. EPA addresses environmental justice issues in two basic ways--first, as part of its process for deciding whether to issue a permit for well construction, and second, in response to specific civil rights complaints filed with the agency after permits are issued. EPA encourages its regional offices issuing construction permits to determine if minority and low-income populations are disproportionately affected by a proposed well's location. Individuals and communities may appeal EPA permit decisions with EPA's Environmental Appeals Board or, for other permit decisions, file complaints under Title VI of the Civil Rights Act with EPA's Office of Civil Rights. Only one community has filed complaints related to deep injection wells; these complaints did not result in changes to the permit decisions. Court decisions have recently limited the basis for filing Title VI complaints, making the process an unlikely avenue for changing permit decisions. Current financial assurance requirements may not ensure that adequate resources are available to close a commercial deep injection well in the event of bankruptcy or ceased operations. While only four sites have gone into bankruptcy or ceased operating since the program began in 1980; two did not have adequate financial resources to plug and abandon wells and for the other two, financial assurance was not tested because other companies purchased and continued operating the wells. EPA has questioned the adequacy of some financial assurance requirements in other programs that are similar to those for Class I deep injection wells. EPA's Office of Inspector General has reported that financial assurance requirements for another waste management program, which the requirements for deep injection wells mirror, may not be adequate to close facilities; an EPA working group is also reviewing similar aspects of financial assurance requirements for a different type of injection well for possible changes.

Status Legend:

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  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: To allow more time for community concerns to be addressed, the Administrator, EPA, should involve communities earlier in the permitting process for constructing a well.

    Agency Affected: Environmental Protection Agency

    Status: Closed - Not Implemented

    Comments: EPA stated that it currently complies with the Safe Drinking Water Act regarding public participation and meets the requirements of 40 CFR Part 124 and 40 CFR Parts 144 and 146. Site and land use issues and decisions, which contributed to the lengthy debate on the construction of the deep injection well in Michigan, are the responsibility of state and local officials.

    Recommendation: Furthermore, to ensure that requirements are adequate to cover the costs of plugging and abandonment of Class I hazardous deep injection wells and thereby reducing the public's financial risk, the Administrator, EPA, should review and, if warranted, strengthen financial assurance requirements for Class I hazardous deep injection wells. In so doing, the Administrator should consider the applicability of the Office of the Inspector General's findings and recommendations for Resource Conservation and Recovery Act financial assurance.

    Agency Affected: Environmental Protection Agency

    Status: Open

    Comments: EPA will review public comments on the findings contained in the Office of the Inspector General's report on the issue and the work of the Class II financial assurance workshop. The workshop is scheduled to complete its tasks in 2004. At that time, EPA will decide what revisions may be necessary, if any.

    Recommendation: Furthermore, to ensure that requirements are adequate to cover the costs of plugging and abandonment of Class I hazardous deep injection wells and thereby reducing the public's financial risk, the Administrator, EPA, should review and, if warranted, strengthen financial assurance requirements for Class I hazardous deep injection wells. In so doing, the Administrator should consider the applicability of the results and recommendations of the ongoing work group for Class II wells.

    Agency Affected: Environmental Protection Agency

    Status: Closed - Not Implemented

    Comments: EPA believes that revisions to the financial assurance regulations are unnecessary based on the 23-year successful history of the financial assurance provisions. This position is based on the fact that the vast majority of the Class I wells have never experienced financial assurance issues, and the cases cited in the study were caused by extraordinary events.

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