NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0123n.06
Filed: February 12, 2009
No. 08-3049
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT B. LeBLANC & JOAN S. LeBLANC,
Petitioners,
v. On Petition for Review of a
Final Agency Action
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
/
Before: GUY and GRIFFIN, Circuit Judges; WATSON, District Judge.*
MICHAEL H. WATSON, District Judge. Plaintiffs seek judicial review of the
final agency action taken by the Environmental Protection Agency (“EPA”), Region V
(“Region 5”) to issue an underground injection control (“UIC”) permit to Core Energy, LLC
(“Core Energy” or “permittee”). Because the EPA and the Environmental Appeals Board
(“Board”) properly followed all statutorily mandated procedures in issuing the UIC permit
to Core Energy and the Board correctly determined that the LeBlancs failed to satisfy the
requirements for Board review, we deny the relief sought under the petition for review.
I.
*
The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio,
sitting by designation.
No. 08-3049 2
The Safe Drinking Water Act (“SDWA”) requires the EPA to regulate the
underground injection of fluids through wells to protect the quality of underground sources
of drinking water (“USDW”). SDWA, 42 U.S.C. 300f, et seq. This is achieved by issuing
permits for underground injection wells. Under Part C of the SDWA, enacted for the
purpose of protecting groundwater, the EPA is required to establish a regulatory program to
prevent underground injections that endanger drinking water sources. 42 U.S.C. §300h(b).
The SDWA directs the EPA to promulgate requirements for UIC programs; however, in
states where the EPA has not approved a state UIC program, the EPA implements its own
regulations for that state’s UIC program. In this case, the state of Michigan does not have
an approved state UIC program, so the EPA implements its own regulations for the UIC
program.
The UIC well permitting process involves significant procedures detailing the
requirements for each step of the process from the draft permit to the public notice and
comment period to the final permit decision to the appeal to the Board. 40 C.F.R. §§
124.3-19. A person who contests any condition of the draft permit must raise all “reasonably
ascertainable” issues during the comment period. 40 C.F.R. § 124.13. If a final permit is
issued, 40 C.F.R. § 124.15, a person who submitted comments is notified of the permit. 40
C.F.R. § 124.17. To obtain review by the Board, a petitioner is required to show the permit
is based on “a finding of fact or conclusion of law which is clearly erroneous” or rests on “an
exercise of discretion or an important policy consideration which the Environmental Appeals
Board should, in its discretion, review.” 40 C.F.R. § 124.19(a)(1)-(2).
No. 08-3049 3
Core Energy, as part of the Midwest Regional Carbon Sequestration Partnership,
applied for a Class V injection well permit to operate a limited test of carbon dioxide
(“CO2”) sequestration into underground rock formations (a developing technology known
as carbon sequestration). On July 23, 2007, a public notice was issued by Region 5 of the
EPA notifying the public at large of a proposed plan to allow Core Energy a Class V UIC
well permit for the testing of CO2 in underground rock formations in Otsego County,
Michigan. The public notice informed citizens of the public comment period in which
written comments and requests for a public hearing could be sent to Region 5.
The proposed testing site was a parcel of land adjacent to the plaintiffs-petitioners’,
Robert B. LeBlanc and Joan S. LeBlanc (hereinafter “plaintiffs” or “petitioners” or “the
LeBlancs”), property. Robert and Joan LeBlanc are husband and wife, pro se litigants, and
both residents of 9300 Island Drive, Grosse Ile, Michigan. The LeBlancs responded to the
notice by mailing comments in a letter dated August 14, 2007, objecting to the proposed
permit and requesting a public hearing. The crux of the plaintiffs’ objections to the well is
that possible problems with the safety and storage of CO2 could result in “plume migration”
and possible subsurface trespass. The plaintiffs point out that a well permit does not convey
any property rights nor the right to injure property or persons, 40 C.F.R. § 144.35(b)-(c),1 yet
the possible subsurface trespass results in a taking of their private property for private use.
1
The effect of an UIC “permit does not convey any property rights of any sort . . . nor does it
authorize any injury to persons or property or invasion of other rights, or any infringement of State or local
law or regulations.” 40 C.F.R. § 144.35(b)-(c).
No. 08-3049 4
In a letter dated August 23, 2007, the Chief of the Direct Implementation Section of
Region 5 responded to the LeBlancs’ letter to notify them that Region 5 “did not receive
enough public comments to warrant a public hearing, and no issues have been raised which
indicate the draft permit violated any federal [underground injection control] requirement.”
The letter also notified the LeBlancs that Region 5 issued a final permit for the well and that
the LeBlancs could petition the Board to review any condition of the final permit decision.
The letter also set forth the requirements for such a petition to the Board.
The LeBlancs subsequently filed an appeal (“petition for review”) which the Board
received on September 21, 2007. In their petition for review, the LeBlancs stated the key
issues before the Board were the “matter of liability . . . i.e., no adequate policy exists
defining the roles and financial responsibilities of the industry and government” (“liability
issue”), and adverse possession in that CO2 injection violates property rights of adjacent
landowners under whose land the CO2 sequestration will occur (“property right issue”).
Furthermore the LeBlancs suggested the liability and property right issues are important
policy considerations the Board should review.
Region 5 responded to the petition for review arguing that the LeBlancs waived the
liability issue by failing to properly raise it during the comment period therefore waiving the
liability issue and that the Board lacked authority to resolve the LeBlancs’ property right
concerns. Furthermore Region 5 argued both issues were beyond the scope of what Region
5 could consider in determining whether to issue a UIC permit.
No. 08-3049 5
The Board then denied the LeBlancs’ petition for review. The Board stated the UIC
permitting process is narrow in its focus and review of UIC permit decisions extends only
to the boundaries of the UIC permitting program itself, with its SDWA protection of
underground sources of drinking water. The Board stated:
“[it] is only authorized to review UIC permit conditions to the extent that they affect
a well’s compliance with the SDWA and applicable UIC regulations. Accordingly,
where petitioners raise concerns outside the scope of the UIC program, the [Board]
will deny review.”
Furthermore, the Board explained it does not grant review unless the petition demonstrates
the permit is based on a clearly erroneous finding of fact or conclusion of law, or involves
an exercise of discretion that warrants Board’s review. The Board ruled the LeBlancs had
not demonstrated a review of the permit was warranted. Since the LeBlancs failed to
mention the liability issue in their comments and the issue was reasonably ascertainable, the
Board found the LeBlancs waived consideration of the liability issue. The Board went on
to hold that although the LeBlancs had raised the property right issue during the comment
period, the LeBlancs failed to make even a minimal demonstration as to why Region 5’s
response to their comment was clearly erroneous or otherwise warranted review as required
by 40 C.F.R. § 124.19(a)(1)-(2).
The LeBlancs then filed a motion for reconsideration of the Board’s order reiterating
their property rights issue for subsurface trespass. The Board, however, denied the motion
for reconsideration, finding that the LeBlancs still failed to indicate how Region 5’s response
to the property right issue is clearly erroneous and also failed to establish that the Board’s
No. 08-3049 6
previous order resulted from a demonstrable error of fact or law. This petition for review
followed.
II.
A. Standard of Review
Pursuant to the Federal Administrative Procedure Act (“APA”), a court can hold
unlawful and set aside a final agency action if it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). See also
Michigan Dept. of Envtl. Quality v. U.S. E.P.A., 318 F.3d 705, 707 (6th Cir. 2003). A final
agency action is subject to a deferential standard of judicial review under the APA. See
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44
(1984); Northeast Ohio Regional Sewer Dist. v. U.S. E.P.A., 411 F.3d 726, 731 (6th Cir.
2005). In considering whether an agency action was arbitrary and capricious, a “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.” Marsh v. Oregon Natural Res. Council,
490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971)).
B. Denial of Review by the Board
No. 08-3049 7
This petition for judicial review of a final agency action turns on whether the Board
correctly determined that the LeBlancs failed to satisfy the requirements for Board review.
The Board’s order denying the LeBlancs’ petition for review is a final agency action by the
EPA under the SDWA. 40 C.F.R. §124.19(f)(1)(i).
In their petition for review, the petitioners allege the permit violates their property
rights as adjacent land owners and the possibility of subsurface trespass creates an unresolved
issue of liability. Respondent contends that the actions of issuing the permit are reasonable
and the other claims raised by petitioners are outside the scope of this Court’s review, which
is limited to reviewing the Board’s denial of the petition for review.
The Board has the authority to enforce rules of procedural regularity in cases before
it. Michigan Dept. of Envtl. Quality, 318 F.3d at 707. Precedent from the Board holds that
a petitioner bears the burden of demonstrating that review is warranted and the petitioner
must satisfy the pleading requirements set out in the regulations in order to meet this burden.
Id. A party seeking review by the Board must submit a statement of the reasons supporting
the review, including:
a demonstration that any issues being raised were raised during the public comment
period (including any public hearing) to the extent required by these regulations and
when appropriate, a showing that the condition in question is based on:
(1) A finding of fact or conclusion of law which is clearly erroneous, or
(2) An exercise of discretion or an important policy consideration which the
Environmental Appeals Board should, in its discretion, review.
40 C.F.R. § 124.19(a)(1)-(2).
No. 08-3049 8
In the present case, the Board dismissed the LeBlancs’ petition for failure to comply
with this rule. We have jurisdiction to review the Board’s order as a final agency action 2 by
the EPA under the SDWA pursuant to 42 U.S.C. §300j-7(a)(2), and “will only overturn the
[Environmental Appeals] Board’s ruling if ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Spitzer Great Lakes Ltd., Co. v. U.S. E.P.A., 173
F.3d 412, 414 (6th Cir. 1999) (citation omitted). See also 5 U.S.C. § 706(2)(A); Michigan
Dept. of Envtl. Quality v. Browner, 230 F.3d 181, 183 n.1 (6th Cir. 2000) (noting that an
argument petitioners failed to sufficiently raise during a comment period is waived for
purposes of appellate review).
In their three-page petition before the Board, the LeBlancs raised the issue of liability
for the first time and reiterated their concerns over subsurface property rights and adverse
possession. The Board denied the petition, finding: (1) the LeBlancs waived consideration
of the liability issue by failing to mention it in their comments despite the fact the issue was
reasonably ascertainable, and; (2) although the LeBlancs had raised the property right issue
during the comment period, the LeBlancs failed to make even a minimal demonstration as
to why Region 5’s response to their comment was clearly erroneous or otherwise warranted
review even under a liberal reading in deference to the pro se petitioners. The Board cited
several Board decisions for the specific rule that a petitioner must raise issues that are
2
40 C.F.R. §124.19(f)(1)(i): For purposes of judicial review under the appropriate Act, final
agency action occurs when a final . . . UIC . . . permit decision is issued by EPA and agency review
procedures under this section are exhausted. A final permit decision shall be issued by the Regional
Administrator:
(i) When the Environmental Appeals Board issues notice to the parties that review has been denied.
No. 08-3049 9
reasonably ascertainable during the public comment period in order to preserve the issue for
review by the Board, see In re BP Cherry Point, 12 E.A.D. 209, 218-20 (EAB 2005), and
such issue must be raised with a reasonable degree of clarity and specificity during the
comment period in order for the issue to be considered by the Board on appeal. See, e.g. In
re New England Plating, 9 E.A.D. 726, 732 (EAB 2001) (petition denied when issue was
reasonably ascertainable but not raised during public comment period and thus EPA was
denied fair opportunity to respond). The Board also cited several Board decisions for its
specific rule that a petitioner may not simply restate its original comments in order to be
granted review without demonstrating why the Region’s response was clearly erroneous or
otherwise warranted review. See, e.g., In re Newmont Nev. Energy Inv., L.L.C., 12 E.A.D.
429, 472 (EAB 2005).
We hold that the Board’s interpretation and application of its procedural rules,
specifically 40 C.F.R. § 124.19(a)(1)-(2), was not an abuse of discretion nor arbitrary and
capricious. The Board correctly determined that the petitioners did not preserve the liability
issue because they failed to mention it in their comments and that the issue was reasonably
ascertainable. In reviewing the comments the LeBlancs submitted to Region 5, there is no
mention of liability. Hence, the LeBlancs failed to preserve the liability issue. With regard
to the property issue, the LeBlancs merely restated their grievances regarding subsurface and
mineral property rights without offering any reasons why the Region’s responses were clearly
erroneous or otherwise warranted review. The LeBlancs procedurally defaulted and failed
to meet their burden under 40 C.F.R. § 124.19(a)(1)-(2).
No. 08-3049 10
C. New Arguments Advanced by Petitioner before this Court are Improper
In their briefs before this Court, the LeBlancs advance several arguments outside the
scope of the appeal 3 and never previously presented to the Board. The Board’s review of
an EPA-issued permit decision extends to the boundaries of the UIC permitting program
itself, with its SDWA-directed focus on the protection of USDWs, and no farther. See, e.g.,
In re Am. Soda, L.L.P., 9 E.A.D. 280, 286 (EAB 2000) (“the SDWA and the UIC regulations
authorize the Board to review UIC permitting decisions only as they affect a well’s
compliance with the SDWA and applicable UIC regulations”); In re NE Hub Partners, L.P.,
7 E.A.D. 561, 567 (EAB 1998) (“protection of interests outside of the UIC program [is]
beyond our authority to review in the context of [a UIC] case”), review denied sub nom. Penn
Fuel Gas, Inc. v. U.S. EPA, 185 F.3d 862 (3d Cir. 1999); In re Federated Oil & Gas of
Traverse City, Michigan, 6 E.A.D. 722, 725-26 (EAB 1997). A reviewing court may not
consider arguments that were not previously raised before an administrative agency under
the doctrine of issue exhaustion or the administrative waiver doctrine. See e.g., U.S. v. L. A.
Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) (stating that “simple fairness to those who
are engaged in the tasks of administration, and to litigants, requires as a general rule that
courts should not topple over administrative decisions unless the administrative body not
3
The LeBlancs repeatedly assert in their Petitions before this Court that they have “already proven
their case against the State and the State Actors in U.S. District Court.” See, e.g., Pet.’s Pet. For Judicial
Review, p.17. The LeBlancs are referring to another case they have before this Court (Case No. 07-2095)
stemming from an appeal of a case from the U.S. District Court for the Eastern District of Michigan in front
of the Honorable Gerald Rosen. Petitioners repeatedly invite this Court to construe their arguments they
have put forth in that separate case into this case. The Court declines to do so and will address only the
issues properly brought before it.
No. 08-3049 11
only has erred but has erred against objection made at the time appropriate under its
practice”); Kentucky Utilities Co. v. U.S. F.E.R.C., 766 F.2d 239 (6th Cir. 1985) (reiterating
that judicial review of any issue not particularized in objections submitted to the agency is
simply not available).
Accordingly, the Court will not consider nor address the LeBlancs’ various other
arguments asserted for the first time in this appeal.
III.
Concluding that the LeBlancs failed to satisfy the requirements for Board review, we
DENY the relief sought under the petition for review.