ORAL ARGUMENT NOT YET SCHEDULED IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________________

No. 11-60040 _____________________________ RANGE RESOURCES CORPORATION; RANGE PRODUCTION COMPANY, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. _____________________________ On Petition for Review of a Final Action by the United States Environmental Protection Agency _____________________________ BRIEF OF RESPONDENT UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____________________________ Of Counsel: MARNA MCDERMOTT Office of General Counsel (2355A) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 TINA ARNOLD Office of Regional Counsel, 6RC-D U.S. Environmental Protection Agency 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 May 9, 2011

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division JOHN C. CRUDEN Deputy Assistant Attorney General BRIAN H. LYNK Environmental Defense Section U.S. Department of Justice P.O. Box 23986 Washington, D.C. 20026-3986 (202) 514-6187 Attorneys for Respondent

STATEMENT REGARDING ORAL ARGUMENT Respondent United States Environmental Protection Agency (EPA) requests oral argument. EPA believes oral argument would be useful to the Court.

TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT ................................................i GLOSSARY..............................................................................................................xi JURISDICTION......................................................................................................... 1 STATEMENT OF ISSUES ....................................................................................... 1 STATEMENT OF THE CASE .................................................................................. 2 STATEMENT OF FACTS ........................................................................................ 2 I. II. STATUTORY BACKGROUND ................................................................... 2 FACTUAL BACKGROUND AND PROCEDURAL HISTORY.................. 6 A. B. EPAs Concerns About Explosivity and Other Health Risks Posed by Methane and Benzene Contamination ................................... 6 State Agency Proceedings and Federal Court Litigation ...................... 9

STANDARD OF REVIEW ..................................................................................... 10 SUMMARY OF ARGUMENT ............................................................................... 12 ARGUMENT ........................................................................................................... 15 I. II. THE EMERGENCY ORDER IS A FINAL ACTION SUBJECT TO REVIEW BY THIS COURT .................................................................. 15 THERE IS NO DUE PROCESS VIOLATION BECAUSE RANGE HAS NOT BEEN DEPRIVED OF A PROTECTED INTEREST WITHOUT AN OPPORTUNITY FOR A HEARING ................................. 19 EVEN IF RANGE HAD BEEN AFFORDED ONLY A POSTDEPRIVATION HEARING, IT WOULD SATISFY DUE PROCESS REQUIREMENTS GIVEN THE EMERGENCY CIRCUMSTANCES OF THIS CASE ............................................................................................. 22
ii

III.

A. B.

A Pre-Deprivation Hearing Is Not Required in Emergency Circumstances ..................................................................................... 22 The Acts Judicial Review Provisions Would Satisfy Due Process Even If the Hearing Occurred After Deprivation of a Protected Interest ................................................................................. 24 1. 2. Review on the administrative record by the Court of Appeals satisfies procedural due process requirements............ 24 Range is also entitled to a hearing in the district court on whether it should be penalized for non-compliance, which provides additional process ....................................................... 26 Under Mathews v. Eldridge, the balance of interests favors the Government ......................................................................... 27

3. C. IV.

Ranges Reliance on TVA Is Misplaced .............................................. 28

IT WAS REASONABLE FOR EPA TO TAKE EMERGENCY ACTION IN RESPONSE TO THE THREAT OF EXPLOSION AND TOXIC CHEMICAL EXPOSURE ...................................................... 31 A. EPA Reasonably Concluded that Potentially Explosive Levels of Methane and the Risk of Exposure to Carcinogenic Benzene Contamination May Present An Imminent and Substantial Endangerment .................................................................................... 32 EPA Reasonably Determined That State and Local Authorities Had Not Acted to Protect Human Health ............................................ 38 EPA Reasonably Limited the Scope of the Order to Actions Necessary to Respond to the Endangerment ................................... 42 EPA Had a Rational Basis in the Record to Determine that Range Caused or Contributed to the Endangerment................................... 46

B. C.

D.

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1.

The combination of isotopic fingerprinting, compositional analysis, and data regarding the timeline of events and the absence of other nearby production wells provided a rational basis to determine that Range caused or contributed to the endangerment .................................................................. 48 EPAs determination was reasonable notwithstanding certain limitations in the record evidence ................................. 54

2.

CONCLUSION ........................................................................................................ 57

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TABLE OF AUTHORITIES CONSTITUTIONAL AMENDMENT U.S. Const. Amend. V..............................................................................................20 CASES Aerosource, Inc. v. Slater, 142 F.3d 572 (3d Cir. 1998) .................................................................................18 Alaska Dep't of Envt'l Conserv. v. EPA, 244 F.3d 748 (9th Cir. 2001), aff'd, 540 U.S. 461 (2004) ....................................................................................18 American Airlines v. Herman, 176 F.3d 283 (5th Cir. 1999) ................................................................................17
*

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) ................................................................................................20

*Bennett v. Spear, 520 U.S. 154 (1997) ..............................................................................................15 Boddie v. Connecticut, 401 U.S. 371 (1971) ..............................................................................................21

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ..............................................................................................11 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ..............................................................................................10 *Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ..............................................................................................21

An

asterix denotes authorities on which EPA chiefly relies.

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Cox v. City of Dallas, 256 F.3d 281 (5th Cir. 2001) ......................................................................... 36, 37 Daniels v. Williams, 474 U.S. 327 (1986) ..............................................................................................23 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568 (1988) ..............................................................................................20 *Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) ..................................................................... 11, 32, 37 FTC v. Standard Oil Co. of California, 449 U.S. 232 (1980) ..............................................................................................16 *General Elec. Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010), rehearing en banc denied, (Sept. 30, 2010), cert. petition filed, 79 U.S.L.W. 3421 (Dec. 29, 2010) ........................................22 *Hodel v. Virginia Surface Mining & Reclam. Ass'n, Inc., 452 U.S. 264 (1981) ........................................................................... 14, 22, 23, 24 In re Bell Petroleum Servs., Inc., 3 F.3d 889 (5th Cir. 1993) ....................................................................................55 *Industrial Safety Equip. Ass'n v. EPA, 837 F.2d 1115 (D.C. Cir. 1988) ............................................................................20 International Tel. & Tel. Corp. v. Local 134, Int'l Bhd. of Elec. Workers, 419 U.S. 428 (1975) ..............................................................................................17 Louisiana v. Sparks, 978 F.2d 226 (5th Cir. 1992) ..................................................................................9 Massachusetts v. EPA, 549 U.S. 497 (2007) ..............................................................................................32

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*Mathews v. Eldridge, 424 U.S. 319 (1976) ........................................................................... 20, 22, 24, 27 Medina County Envt'l Action Ass'n v. Surface Transp. Bd., 602 F.3d 687 (5th Cir. 2010) ................................................................................26 National Pork Prod. Council v. EPA, 635 F.3d 738 (5th Cir. 2011) ................................................................................15 Parratt v. Taylor, 457 U.S. 527 (1981) ..............................................................................................23 Pennzoil Co. v. FERC, 645 F.2d 394 (5th Cir. 1981) ................................................................................16 Raytheon Aircraft Co. v. United States, 501 F. Supp. 2d 1323 (D. Kan. 2007) ...................................................................30 Sackett v. EPA, 622 F.3d 1139 (9th Cir. 2010) cert. petition filed, 79 U.S.L.W. 3514 (Feb. 23, 2011).................................. 30, 31 Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 (1996) ..............................................................................................11 Tennessee Valley Authority v. Whitman, 336 F.3d 1236 (11th Cir. 2003) .................................................................... passim *Texas Oil & Gas Ass'n v. EPA, 161 F.3d 923 (5th Cir. 1998) ......................................................................... 11, 57 *Trinity Am. Corp. v. U.S. EPA, 150 F.3d 389 (4th Cir. 1998) ........................................................................ passim *Unification Church v. Attorney General, 581 F.2d 870 (D.C. Cir. 1978) ..............................................................................25 United States v. Hooker Chem. & Plastics Corp., 749 F.2d 968 (2d Cir. 1984) ............................................................................ 4, 47
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United States v. Mobil Oil Corp., No. 96-CV-1432 (JG), 1997 WL 1048911 (E.D.N.Y. Sept. 11, 1997) ................17

United States v. Salerno, 481 U.S. 739 (1987) ..............................................................................................19 United States v. Valentine, 856 F. Supp. 621 (D. Wyo. 1994).........................................................................12 United States v.Waste Industries, Inc., 734 F.2d 159 (4th Cir. 1984) ..................................................................................5 W.R. Grace & Co. v. EPA, 261 F.3d 330 (3d Cir. 2001) .......................................................................... 37, 46 Whitman v. American Trucking Ass'ns, 531 U.S. 457, 472 (2001) ......................................................................................31 *Woods v. Federal Home Loan Bank Bd., 826 F.2d 1400 (5th Cir. 1987) ....................................................................... 24, 25 *WWBITV, Inc. v. Village of Rouses Point, 589 F.3d 46 (2d Cir. 2009) ...................................................................................23 *Yearous v. Niobrara Cty. Mem. Hosp., 128 F.3d 1351 (10th Cir. 1997) ............................................................................22 STATUTES 5 U.S.C. 706(2)(A)................................................................................................10 33 U.S.C. 1319(a)(1) .............................................................................................30 33 U.S.C. 1319(b) .................................................................................................30 33 U.S.C. 1364(a) ...................................................................................................3 42 U.S.C. 300g-1.....................................................................................................3 42 U.S.C. 300g-3(a)(1)(B) ......................................................................................4
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42 U.S.C. 300g-3(b) ................................................................................................4 42 U.S.C. 300g-3(g) ................................................................................................4 42 U.S.C. 300h ........................................................................................................3 42 U.S.C. 300h-2(a)-(c) ..........................................................................................4 42 U.S.C. 300h-2(c)(3)(A) ....................................................................................17 *42 U.S.C. 300i .......................................................................................................1 *42 U.S.C. 300i(a) ........................................................................................ passim *42 U.S.C. 300i(a)(1)..............................................................................................3 *42 U.S.C. 300i(a)(2)..............................................................................................3 *42 U.S.C. 300i(b) ................................................................................. 3, 5, 26, 30 *42 U.S.C. 300j-7(a) ...............................................................................................5 *42 U.S.C. 300j-7(a)(2) ............................................................................... 1, 5, 17 42 U.S.C. 7413(a)(1)-(5) .......................................................................................29 42 U.S.C. 7603 ............................................................................................... 19, 29 42 U.S.C. 7603(a) ...................................................................................................3 42 U.S.C. 9607(a) .................................................................................................30 Pub. L. No. 109-58, Title III, 322, 119 Stat. 594, 694 (Aug. 8, 2005) ...................4 CODE OF FEDERAL REGUATIONS 40 C.F.R. 147.2201 .................................................................................................7

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LEGISLATIVE HISTORY *H.R. Rep. No. 93-1185 at 34, 35, reprinted in 1974 U.S.C.C.A.N. 6454, 6487, 6488 ........................................... 5, 12, 32, 41, 47

GLOSSARY Act Agency AR CAA CERCLA Safe Drinking Water Act United States Environmental Protection Agency Administrative Record Clean Air Act Comprehensive Environmental Response, Compensation, and Liability Act CWA DOI EPA JA MCL Range RCRA RRC SDWA UIC USDW Clean Water Act Department of Interior United States Environmental Protection Agency Deferred Joint Appendix Maximum Contaminant Level Range Resources Corporation and Range Production Company Resource Conservation and Recovery Act Railroad Commission of Texas Safe Drinking Water Act Underground Injection Control Underground Source of Drinking Water

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JURISDICTION Petitioners Range Production Company and Range Resources Corporation (collectively, Range) seek judicial review of an Emergency Administrative Order dated December 7, 2010 (Emergency Order or Order), through which the United States Environmental Protection Agency (EPA) exercised its authority under section 1431 of the Safe Drinking Act (SDWA or the Act), 42 U.S.C. 300i. Because the Order was a final action of EPA, this Court has subject-matter jurisdiction to review the Order pursuant to 42 U.S.C. 300j7(a)(2). This petition for review was filed within 45 days after the date of the Order and is therefore timely. STATEMENT OF ISSUES 1. Is EPAs Emergency Order a final action subject to this Courts review

under 42 U.S.C. 300j-7(a)(2)? 2. Should the Court reject Ranges due process challenge, given Ranges

failure to identify any deprivation of a constitutionally-protected interest without an opportunity for a hearing? 3. Was it reasonable for EPA to take emergency action under section 1431 of

the Act when it had evidence of potentially explosive methane levels and carcinogenic contamination in underground drinking water, and was informed that the State had no plans at that time to take action?
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4.

Did EPA have a rational basis to determine that Range caused or

contributed to the endangerment and require Range to provide alternative drinking water supplies? STATEMENT OF THE CASE This case arises from EPAs issuance of the Emergency Order to Range on December 7, 2010. EPA has filed a complaint against Range in the United States District Court for the Northern District of Texas, seeking to enforce several provisions of the Order and to obtain other appropriate relief including, at that courts discretion, statutory civil penalties for non-compliance. Range has filed a motion to dismiss the enforcement complaint, presenting the same non-finality and due process arguments as here. EPA today is filing a brief in district court opposing Ranges motion to dismiss, in addition to its Respondents brief here. STATEMENT OF FACTS I. STATUTORY BACKGROUND Congress enacted the SDWA to assure that water supply systems serving the public meet minimum standards for protection of public health. Trinity Am. Corp. v. U.S. EPA, 150 F.3d 389, 394 (4th Cir. 1998) (internal quotation and citations omitted). The Act authorizes EPA to give paramount importance to the sole objective of the public health. Id. Among other things, the Act requires that EPA establish regulations specifying maximum levels of contaminants in drinking
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water. Id.; 42 U.S.C. 300g-1. It also requires that EPA establish minimum requirements regulating the practice of underground injection, including injection wells related to oil and gas production. Id. 300h. EPA has a number of enforcement options under the Act. First, as it did here, EPA may exercise special emergency authority under section 1431 that, in contrast to the imminent and substantial endangerment emergency powers granted by some other statutes, authorizes issuance of an administrative order upon receipt of information that a contaminant may present an imminent and substantial endangerment. Compare 42 U.S.C. 7603(a) (Clean Air Act) (is presenting an imminent and substantial endangerment) and 33 U.S.C. 1364(a) (Clean Water Act) (same), with 42 U.S.C. 300i(a) (may present an imminent and substantial endangerment). Under section 1431, EPA may issu[e] such orders as may be necessary to protect the health of persons . . . including orders requiring the provision of alternative water supplies by persons who caused or contributed to the endangerment. 42 U.S.C. 300i(a)(1). EPA may also commenc[e] a civil action for appropriate relief, including a restraining order or permanent or temporary injunction. Id. 300i(a)(2). Civil penalties may be awarded by an appropriate federal district court in an action to enforce an emergency order against [a]ny person who violates or fails or refuses to comply with the order. Id. 300i(b).
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Second, with regard to the enforcement of drinking water regulations relating to public water systems, the United States retains authority to issue an administrative order or to commence a judicial action, even where a State has sought and obtained primary enforcement authority. 42 U.S.C. 300g3(a)(1)(B), 300g-3(b), 300g-3(g). In such actions, EPA may seek civil penalties and injunctive relief. Third, in connection with protecting underground sources of drinking water (USDWs) under the Underground Injection Control (UIC) Program, EPA has similar authority to issue orders or commence a civil action, and may seek imposition of civil and criminal penalties for violations of requirements (including administrative compliance orders) relating to the protection of USDWs from the underground injection of fluids. 42 U.S.C. 300h-2(a) through (c).1 Courts have observed that when the government sues to enforce an emergency order under section 1431, such a suit is not one to enforce established regulatory standards. On the contrary, emergency actions are designed to deal with situations in which the regulatory schemes break down or have been circumvented. United States v. Hooker Chem. & Plastics Corp., 749 F.2d 968,

Energy Policy Act of 2005 excluded the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal activities from the definition of underground injection, thereby exempting those practices from the UIC Program. Pub. L. No. 109-58, Title III, 322, 119 Stat. 594, 694 (Aug. 8, 2005).
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The

988 (2d Cir. 1984) (quoting United States v. Waste Indus. Inc., 734 F.2d 159, 164 (4th Cir. 1984)). As reflected in the Acts legislative history, [t]he authority to take emergency action is intended to be applicable not only to potential hazards presented by contaminants which are subject to primary drinking water standards, but also to those presented by unregulated contaminants. H.R. Rep. No. 93-1185 at 34 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6487 (hereinafter 1974 U.S.C.C.A.N.). The recipient of a section 1431 emergency order may seek immediate federal judicial review by filing a petition for review in the appropriate United States Court of Appeals, and must generally do so within 45 days. 42 U.S.C. 300j-7(a)(2); Trinity, 150 F.3d at 394. Congress bifurcated jurisdiction over such orders by placing review of their validity before the courts of appeals, while providing that the enforcement of emergency orders and assessment of penalties for non-compliance would be adjudicated by the federal district courts under section 1431(b). 42 U.S.C. 300i(b).2

1448 of the Act states, in pertinent part, [a]ction of the Administrator with respect to which review could have been obtained [in the courts of appeal] under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or in any civil action to enjoin enforcement. 42 U.S.C. 300j-7(a).
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Section

II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY A. EPAs Concerns About Explosivity and Other Health Risks Posed by Methane and Benzene Contamination

In August 2010, EPA became aware of high levels of methane and other contaminants in a private drinking water well, located approximately 40 miles west of Fort Worth, in Hood County (Domestic Well 1). See Administrative Record (AR) 570-71 (Declaration of Chris Lister (Lister Decl.) 13-14) (JA xx). EPA was aware of at least one instance in which a private well drilled into the Trinity Aquifer produced some gas during or shortly following drilling operations. But what was particularly unusual here is that although Domestic Well 1 was drilled in April 2005, it did not begin to show signs of natural gas contamination until more than four years later after Range initiated drilling and hydraulic fracturing activities at the Butler Unit Well 1-H and the Teal Unit Well 1-H (Butler and Teal Wells) in 2009. Order 12-17 (JA xx). EPA also learned of elevated levels of methane, ethane, and propane and signs of effervescence in the water in a second nearby residential water supply well (Domestic Well 2). Id. 34-37 (JA xx). Domestic Wells 1 and 2 are located approximately 120 feet and 470 feet, respectively, in horizontal distance from the track of the horizontal section of the Butler Well bore. Id. 8-9 (JA xx). When apprised of these circumstances, the Railroad Commission of Texas (RRC) the State entity with primary enforcement responsibility over the
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administration of the UIC Program, see 40 C.F.R. 147.2201 looked first (and only) at Ranges operations. AR 249-52, 293-94 (RRC status reports) (JA xx); AR 667-69 (emails between RRC and EPA) (JA xx). Water samples taken from Domestic Well 1 in or around August 2010 showed elevated levels of benzene, toluene, ethane, and methane (measured at that time at 7,810 micrograms per liter or g/L). Order 18 (JA xx). A subsequent EPA sampling effort in October 2010 revealed that the concentration of dissolved methane in Domestic Well 1 had become much greater (20,100 g/L). Id. 18, 28 (JA xx). EPA memorialized its concern that methane and benzene (among other contaminants) may present an imminent and substantial endangerment to the health of persons in the Emergency Order on December 7, 2010. Id. 41 (JA xx). EPA based this determination on its concern that methane in the levels found by EPA are potentially explosive or flammable, and benzene if ingested or inhaled could cause cancer, anemia, neurological impairment and other adverse health impacts. Id.; infra Argument IV.A. Thereafter, EPA sampled the gas from Domestic Well 1 along with production gas from Ranges Butler Well and performed compositional and isotopic fingerprinting analyses. Order 21 (JA xx); id. 22 (explaining isotopic fingerprinting) (JA xx). EPA ultimately determined that the presence of gas in

Domestic Well 1 is likely to be due to impacts from gas development and production activities in the area. Id. 27 (JA xx); infra Argument IV.D. Starting in August and continuing through December 2010, EPA consulted with representatives of RRC and determined that appropriate State and local authorities had not taken sufficient action to address the endangerment described herein and do not intend to take such action at this time. Order 40 (JA xx); infra Argument IV.B. EPA also consulted with RRC on the accuracy of the information on which the Emergency Order was based. Order 40 (JA xx). The Emergency Order directed Range to notify EPA of its intent to comply with the Order within 24 hours of receiving it, and to provide replacement potable water supplies for the users of water from Domestic Wells 1 and 2 and install explosivity meters in the dwellings served by those wells within 48 hours. Order 50.(A)-(C) (JA xx). Within five days, the Order directed Range to submit to EPA a survey of all private water wells within 3,000 of the Butler wellbore track and 3,000 feet of the Teal wellbore track and all of the Lake Country Acres . . . public water supply system wells, along with a plan to sample air and water at those wells. Id. 50.(D) (JA xx). Within 14 days, it directed Range to submit for EPAs approval a plan to conduct soil gas surveys and indoor air concentration analyses of the properties and dwellings served by Domestic Wells 1 and 2. Id.

 50.(E) (JA xx). Finally, it directed Range to develop and submit for EPAs approval a plan to: 1) identify gas flow pathways to the Trinity Aquifer; 2) eliminate gas flow to the aquifer if possible; and 3) remediate areas of the aquifer that have been impacted. Id. 50.(F) (JA xx). B. State Agency Proceedings and Federal Court Litigation

On December 8, 2010, one day after EPA issued its Emergency Order, RRC called a hearing to consider whether Ranges operation of the Butler and Teal Wells was causing or contributing to contamination of certain domestic water wells. See Deposition of John Blevins (Blevins Dep.) 297 (JA xx). After EPA declined to give testimony at that hearing in response to subpoenas issued by RRC, Range filed a complaint in the United States District Court for the Western District of Texas seeking review of EPAs decision not to testify. That court ordered EPA to produce a witness to testify at deposition. In compliance with the courts order, Mr. Blevins who signed the Emergency Order testified for EPA on January 25, 2011. See generally Blevins Dep. (JA xx).3 On January 18, 2011, the United States commenced a civil enforcement action in the Northern District of Texas seeking injunctive relief and civil penalties

district court committed error by ordering a deposition without ever determining that the RRC had jurisdiction over EPA or whether, instead, RRCs subpoenas were unenforceable against EPA due to sovereign immunity and the Supremacy Clause. See Louisiana v. Sparks, 978 F.2d 226, 235-36 (5th Cir. 1992).
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The

arising out of Ranges non-compliance with three of the six provisions in the Emergency Order directing that actions be taken. Compl. 33-38 (JA xx). On January 20, 2011, Range filed its petition for review of the Order with this Court. Finally, Range filed a motion with this Court to supplement EPAs administrative record with nine documents included in the addendum to Ranges brief. In response, EPA did not object to adding three of the documents (Group A) to the record. EPA opposed supplementing the record with the remaining documents, but did not object to the Courts taking judicial notice of those documents for purposes allowable in a record review case (e.g., to the extent they explain the original record). See EPAs Response in Partial Opp. to Petitioners Mot. to Supplement at 5-8 (filed Apr. 14, 2011). The Court granted the motion as to Group A, and denied it in all other respects. Order dated May 9, 2011. STANDARD OF REVIEW This Courts review is governed by the deferential standard set forth in the Administrative Procedure Act, 5 U.S.C. 706, under which agency action is valid unless, inter alia, it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. 706(2)(A). This standard is a narrow one, under which the Court is not to substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). If the agencys reasons and policy choices conform to minimal standards
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of rationality, then its actions are reasonable and must be upheld. Texas Oil & Gas Assn v. EPA, 161 F.3d 923, 934 (5th Cir. 1998); see also Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (the court must look at an agencys decision not as [a] chemist, biologist, or statistician . . . but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality); Trinity, 150 F.3d at 395 ([W]e do not sit as a scientific body, meticulously reviewing all data under a laboratory microscope.) (internal quotation omitted). Judicial deference also extends to EPAs interpretation of a statute it administers. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). In reviewing an agencys statutory interpretation, the Court must first decide whether Congress has directly spoken to the precise question at issue. Id. at 842. [I]f the statute is silent or ambiguous with respect to the specific issue, the question . . . is whether the agencys answer is based on a permissible construction of the statute. Id. at 843. EPA need not articulate the best interpretation, only a reasonable one. Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 744-45 (1996).

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SUMMARY OF ARGUMENT In its initial arguments that the Emergency Order should be considered not final or that it alternatively violates Ranges due process rights, Range seeks to curtail EPAs authority under the Emergency powers provision of the Act (i.e., section 1431) in a manner that would seriously harm EPAs ability to use this special authority to address potential risks to underground sources of drinking water and public water systems, even in instances of a potential terrorist attack. 42 U.S.C. 300i(a).4 As an alternative to its jurisdictional and constitutional challenges, Range asserts that EPA acted arbitrarily and capriciously in issuing the Emergency Order. Neither claim has merit. In enacting section 1431, Congress intended to confer [on EPA] completely adequate authority to deal promptly and effectively with emergency situations which jeopardize the health of persons. 1974 U.S.C.C.A.N. at 6487. Accepting Ranges argument, however, would leave EPA with the filing of a judicial action for injunctive relief under section 1431(a)(2) as its only effective option for taking emergency action, even though the statute on its face gives EPA

statutory term Emergency should not be read to mean an emergency in lay terms, but rather contamination that may present an imminent and substantial endangerment. See Trinity, 150 F.3d at 399 (only the risk of harm must be imminent to justify a section 1431 order); United States v. Valentine, 856 F. Supp. 621, 626 (D. Wyo. 1994) (An endangerment need be neither immediate nor tantamount to an emergency to be imminent and warrant relief.)
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The

the initial choice of filing a civil action or issuing an administrative order. Plainly, Ranges desired outcome is not what Congress intended; therefore the Court should not countenance the abridgment of EPAs emergency powers sought by Range. As an initial matter, contrary to Ranges argument, the Emergency Order is a final action because it represents the consummation of EPAs decision-making process and imposes new legal obligations on Range. Accordingly, this Court has subject-matter jurisdiction to review its validity. Infra Argument I. Range also cannot substantiate its due process challenge. Upon receipt of the Emergency Order, Range possessed the statutory right to immediately challenge the Orders validity in this Court, without incurring any costs to comply with the Order. This and other hearing opportunities available under the Act mean that Range was not deprived of any constitutionally-protected property or liberty interest without the opportunity for a hearing which is all that the Due Process Clause requires. That Range instead chose to wait to seek this Courts review while incurring costs voluntarily or in compliance with State authority is of no moment constitutionally, because unless Range was deprived of a protected interest without the opportunity for a hearing, there is no due process violation. Infra Argument II.

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Even if Range could show that it suffered such a deprivation, it is long settled law that a post-deprivation hearing may satisfy due process in emergency circumstances. See Hodel v. Virginia Surface Mining & Reclam. Assn, Inc., 452 U.S. 264, 299-303 (1981). Regardless of whether the Court finds that Range suffered a pre-hearing deprivation, Hodel and subsequent caselaw support the conclusion that the substantial process afforded Range under the Act meets constitutional requirements. Moreover, the cases Range relies on to support its finality and due process arguments (primarily Tennessee Valley Auth. (TVA) v. Whitman, 336 F.3d 1236 (11th Cir. 2003)) are easily distinguished. Infra Argument III. On the merits, the Court should uphold the Emergency Order as a reasonable exercise of EPAs authority under section 1431. First, the record supported EPAs conclusion that the risk of explosion from increasing levels of methane contamination in domestic water wells, along with carcinogenic benzene approaching or exceeding the maximum contaminant level for that pollutant, constituted an imminent and substantial endangerment within the meaning of the statute. Second, EPA properly concluded that because the pertinent State agency had no plans, as of December 7, 2010, to take action to prevent or respond to the endangerment, EPA could take action itself. Third, the actions directed by the Emergency Order are reasonably calibrated: (a) to protect the persons who
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were threatened by the contamination in the domestic water wells (i.e., the users of water from those wells); (b) to investigate whether the contamination is also threatening other domestic or public water wells in the vicinity; and (c) and to develop plans for remediating the contamination. Finally, EPA reasonably determined that Ranges nearby gas production activities caused or contributed to the endangerment, though the Agency already had a sufficient basis to act under section 1431 without such a determination. Infra Argument IV. ARGUMENT I. THE EMERGENCY ORDER IS A FINAL ACTION SUBJECT TO REVIEW BY THIS COURT. In Bennett v. Spear, 520 U.S. 154 (1997) the Supreme Court stated: As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agencys decisionmaking process . . . it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. . . . Id. at 177-78 (internal citations omitted); see also National Pork Prod. Council v. EPA, 635 F.3d 738, 756 (5th Cir. 2011). The Emergency Order satisfies both prongs of the Bennett test. First, EPA itself has characterized this Order as a final agency action. Order 71 (JA xx); cf. Trinity, 150 F.3d at 394 (noting EPA did

15

not dispute that the emergency order at issue there was final).5 In addition, EPA has not only prepared and certified the Administrative Record, but also referred the enforcement of the Order to the Department of Justice, which commenced a civil enforcement action in the Northern District of Texas.6Accordingly, the Order bears the hallmarks of finality and is neither tentative nor interlocutory. Moreover, contrary to Ranges argument (Petitioners Brief (Pet. Br.)1819), the administrative complaint at issue in FTC v. Standard Oil Co. of California, 449 U.S. 232 (1980), was not analogous to a section 1431 emergency order and does not support a conclusion that the Emergency Order merely represents a preliminary determination. The complaint in FTC was only the beginning of the administrative process before the Federal Trade Commission, and was to be followed by an evidentiary hearing before an administrative law judge, whose decision could then be appealed to the full Commission; only after the full Commissions final decision would judicial review be available. Id. at 241.

not always decisive of the finality issue, an agencys description [of its own action] is evidence of its character. Pennzoil Co. v. FERC, 645 F.2d 394, 399 (5th Cir. 1981) (citations omitted).
5 6

Though

contends that the issuance of information requests suggests EPA is still in an investigative mode (Pet.Br. 20), but a request for information does not mean that EPA did not consummate an earlier decision-making process. Here, EPA informally requested information from Range to determine the degree to which Range may be complying with the Order or, more importantly, the degree to which an endangerment may be continuing. See Pet.Br. Addendum 27-34 (JA xx).
16

Range

Section 1431, by comparison, requires no additional administrative process before seeking judicial enforcement of an emergency order.7 Range also overreaches in asserting that an agency decision that is preparatory to a court action is not a final action. Pet.Br. at 22. The case it cites involved a National Labor Relations Board proceeding in which, unlike here, [t]he Board does not order anybody to do anything. International Tel. & Tel. Corp. v. Local 134, Intl Bhd. of Elec. Workers, 419 U.S. 428, 443 (1975). 8

Second, the particular Emergency Order at issue here though this may not be the case for all section 1431 orders9 creates new obligations from which legal consequences for non-compliance will flow. As summarized above, the Order

Airlines v. Herman, 176 F.3d 283, 288 (5th Cir. 1999), is similarly inapposite. There, a contractor unsuccessfully sought judicial review of an order remanding to an administrative law judge for further proceedings on the merits of an administrative complaint. Id. at 285-86, 288-89. Such an order is interlocutory in nature, id. at 289, unlike the Emergency Order.
7 8

American

can Range rely on cases holding that other statutes categorically preclude preenforcement review of administrative orders. See, e.g., United States v. Mobil Oil Corp., No. 96-CV-1432 (JG), 1997 WL 1048911, at *6 (E.D.N.Y. Sept. 11, 1997)). To construe the SDWA categorically to bar pre-enforcement review of orders issued under section 1431 would contradict the plain language of section 1448(a)(2), 42 U.S.C. 300j-7(a)(2).
Although

Nor

the Emergency Order at issue here is a final agency action, this does not mean that all administrative compliance orders or emergency orders are final actions. For example, issuance of an administrative compliance order under section 1423 of the Act, which requires that an administrative hearing subsequently be held, see 42 U.S.C. 300h-2(c)(3)(A), is a non-final action.
9

17

required Range to perform a number of tasks for which Range had no pre-existing regulatory or permit obligation (e.g., providing alternative water supplies, installing explosivity meters, and performing requested sampling and analyses), and the failure to comply with the Order could result in the district courts assessment of civil penalties. Thus, unlike an administrative compliance order issued under section 1423 to a person violating a requirement of theUIC Program, here EPA has imposed on Range new obligations with legal consequences. Under Bennett, therefore, the Emergency Order is a final action. See Alaska Dept of Envtl Conserv. v. EPA, 244 F.3d 748, 750-51 (9th Cir. 2001) (administrative stopconstruction order issued under the Clean Air Act was final under the circumstances), affd, 540 U.S. 461, 481 n.10 (2004) (noting, in dicta, EPAs concession that the finality requirement was met because the stop-construction order imposed new legal obligations) (internal quotation marks and citation omitted).10 As noted above, Range premises much of its non-finality argument on the

Eleventh Circuits decision in TVA, which EPA believes was incorrectly decided in a number of important respects. This Court should decline to follow TVA both because it is not binding precedent and because the result in TVA is

contrast, a letter that d[oes] not require [the recipient] to do anything or set forth any provisions with which [the recipient] is expected to comply would not be considered final. Aerosource, Inc. v. Slater, 142 F.3d 572, 580 (3d Cir. 1998).
10

In

18

distinguishable even if taken at face value. Specifically, TVA involved a Clean Air Act administrative compliance order, not an emergency order under that statutes emergency powers provision, 42 U.S.C. 7603. TVA recognized a general distinction between these types of orders for purposes of finality, stating: It is clear from the text of [42 U.S.C. 7603] that Congress enabled the EPA to issue orders with the status of law, but only in an extremely narrow context. There must be an emergency rising to the point of an imminent and substantial endangerment. 336 F.3d at 1249. In short, if the Court chooses to follow TVA, that courts analysis concerning emergency orders as opposed to its holding regarding an administrative compliance order actually supports the conclusion that the Emergency Order is final. II. THERE IS NO DUE PROCESS VIOLATION BECAUSE RANGE HAS NOT BEEN DEPRIVED OF A PROTECTED INTEREST WITHOUT AN OPPORTUNITY FOR A HEARING. Range maintains that section 1431 of the Act, as interpreted by EPA and applied to Range, offends the Fifth Amendments Due Process Clause. Pet.Br. 2431.11 If Range succeeds, it must then establish that the only way to save the statute

this were a facial constitutional challenge, Range would have to establish that no set of circumstances exists under which the [challenged provisions of the] Act would be valid. United States v. Salerno, 481 U.S. 739, 745 (1987).
11

If

19

from suffering this alleged defect is to deem that the Emergency Order is not a final agency action. Range, however, cannot establish a due process violation.12 The Constitution prohibits the government from depriving persons of a protected interest without due process of law. U.S. Const. Amend. V; Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property or liberty. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); see Industrial Safety Equip. Assn v. EPA, 837 F.2d 1115, 1122 (D.C. Cir. 1988). Only after finding the deprivation of a protected interest does the court reach the second inquiry, concerning whether the procedures followed satisfy due process. American Mfrs., 526 U.S. at 59; Industrial Safety, 837 F.2d at 1122. Range describes at length the alleged inadequacies in the available process, but nowhere does Range actually contend that it has been deprived of a constitutionally-protected property or liberty interest, let alone support that contention. Pet.Br. 24-32. For this reason alone, its due process challenge should be rejected.

section 1431 is constitutional, the Court need not apply the canon that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988).
12

Because

20

Furthermore, even if Range had asserted a protected interest in the costs it expended following EPAs issuance of the Emergency Order, it still could not establish that it was deprived of that interest without an opportunity for a hearing. As an initial matter, to the extent Range incurred such costs voluntarily for reasons unrelated to the Emergency Order, or in compliance with State rather than federal authority, it is questionable whether the federal government could be deemed to have deprived Range of its interest in avoiding these costs. But even more important, at the moment EPA issued the Emergency Order, Range had to right to seek immediate judicial review of the Orders validity, and the right to an additional hearing in district court before it could be compelled to take any action to comply with the Order or could be assessed any civil penalties. It could also have asked this Court to stay the effectiveness of the Order. Thus, Range had an opportunity for a hearing multiple hearings, in fact before any conceivable deprivation of a protected interest could occur. That Range chose to begin incurring costs before taking advantage of the hearing opportunities available under the Act does not implicate due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (We have described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of a protected interest) (emphasis added) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)); Yearous v. Niobrara Cty. Mem.
21

Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997) (in employment context, voluntarily relinquishing property rights does not support claim of deprivation without due process). For all of the above reasons, the Court should reject Ranges due process challenge without even considering the balance of interests under Mathews v. Eldridge, 424 U.S. 319 (1976). See, e.g., General Elec. Co. v. Jackson, 610 F.3d 110, 128 (D.C. Cir. 2010) (because the interests identified as subject to pre-hearing deprivation were not constitutionally protected, we need not indeed we may not apply Mathews v. Eldridge to determine what process is due), rehg en banc denied, (Sept. 30, 2010), cert. petition filed, 79 U.S.L.W. 3421 (Dec. 29, 2010) (No. 10-871). III. EVEN IF RANGE HAD BEEN AFFORDED ONLY A POSTDEPRIVATION HEARING, IT WOULD SATISFY DUE PROCESS REQUIREMENTS GIVEN THE EMERGENCY CIRCUMSTANCES OF THIS CASE. A. A Pre-Deprivation Hearing Is Not Required in Emergency Circumstances.

The Supreme Court has long recognized an exception to the requirement of a pre-deprivation hearing in emergency situations. Hodel, 452 U.S. at 299-300 (collecting cases). As the Second Circuit recently stated in applying this exception, [w]here there is an emergency requiring quick action and where meaningful pre-deprivation process would be impractical, the government is
22

relieved of its usual obligation to provide a hearing, as long as there is an adequate procedure in place to assess the propriety of the deprivation afterwards. WWBITV, Inc. v. Village of Rouses Point, 589 F.3d 46, 50 (2d Cir. 2009) (citing Parratt v. Taylor, 451 U.S. 527, 539 (1981)13). Assuming arguendo that the costs of complying with the Emergency Order are a protected property interest, Hodel and its progeny support the conclusion that post-deprivation process is sufficient to satisfy constitutional requirements even if Range could somehow demonstrate that it was deprived of this interest without a pre-deprivation hearing opportunity (though as previously noted, Range cannot actually make this showing). The order at issue in Hodel required the immediate cessation of a mining project, and the statute required the order recipient to pay the proposed amount of its penalty for non-compliance into escrow pending the resolution of a judicial hearing; yet the Supreme Court held that there was no due process violation under the emergency circumstances of the case. Hodel, 452 U.S. at 299-300. Here, in contrast, Range was required neither to cease operations, nor to pay a penalty before seeking judicial review. Thus, any concerns that might be raised if EPA were relying on a post-deprivation hearing to provide due process to

13

Overruled

on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31

(1986).
23

Range are much less significant than in Hodel, considering the differences in the private interests at stake. B. The Acts Judicial Review Provisions Would Satisfy Due Process Even If the Hearing Occurred After Deprivation of a Protected Interest.

As shown above, the Court should reject Ranges due process challenge without applying the Mathews balance-of-interests test. Nevertheless, that balance of interests favors the government. Under Mathews, a three-part test weighs the private interest affected, the risk of an erroneous deprivation of that interest under the process provided and the probable value, if any, of additional or substitute safeguards, and the governments interest. 424 U.S. at 335. Here, the governments interest in being able to respond promptly to potential threats to public drinking water supplies outweighs Ranges private interest and the risk of an erroneous deprivation. 1. Review on the administrative record by the Court of Appeals satisfies procedural due process requirements.

As this Court has observed, [p]rocedural due process is a flexible concept and calls for such procedural protections as the situation demands. Woods v. Federal Home Loan Bank Bd., 826 F.2d 1400, 1410 (5th Cir. 1987) (internal quotations and citation omitted). Congress bifurcated jurisdiction in cases such as this, so that challenges to the validity of a final section 1431 order are raised quickly before the courts of appeals, while disputes over an order recipients
24

compliance with the order and the assessment of penalties are heard in district court. This statutory review scheme would fully protect Ranges due process rights even in the context of a post-deprivation hearing. Woods, in fact, involved a genuine deprivation of property before any

hearing opportunity the seizure of a partys assets through the appointment of a receiver. 826 F.2d at 1410. But even under those circumstances, this Court held that court review of agency action under the arbitrary or capricious standard . . . is adequate to assure against the risk of mistaken deprivations. Id. at 1411. Similarly, in Unification Church v. Attorney General, 581 F.2d 870 (D.C. Cir. 1978), on a petition for review of deportation orders, the D.C. Circuit held that the requirements of due process were met in these circumstances by the availability of judicial review under the Administrative Procedure Act to determine if the district directors decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. at 878. The precedent of Woods, as well as Unification Church, compels the same conclusion here that this Courts review of the validity of the Emergency Order satisfies due process.14

claims that deficiencies in the record compiled by EPA render this Courts review inadequate because they increase the risk of error. Pet.Br. 30. Ranges motion to supplement the record was based on similar assertions which EPA disputed but the issue is now moot, as the Court denied Ranges motion except with respect to Group A documents. Order of May 9, 2011. Further, EPA does not object to the Courts taking judicial notice of the remaining documents for
14

Range

25

2.

Range is also entitled to a hearing in the district court on whether it should be penalized for non-compliance, which provides additional process.

Under section 1431(b), Range is entitled to an additional hearing before the district court as to the amount (if any) of civil penalties to be imposed for its noncompliance with EPAs Emergency Order, following this Courts resolution of Ranges petition for review. This additional process further undermines Ranges assertion that it is subject to an unconstitutional deprivation of a protected interest. Range erroneously claims that under EPAs interpretation, the district court

may not consider anything except that EPA issued the order and the respondent did not comply. Pet.Br. 24. This assertion ignores the text of the Act, which states that [a]ny person who violates or fails or refuses to comply with a section 1431 emergency action may, in an action brought in the appropriate United States district court to enforce such order, be subject to a civil penalty . . . for each day in which such violation occurs or failure to comply continues. 42 U.S.C. 300i(b) (emphasis added). The key word is may, which plainly means that the district court has discretion over whether to assess penalties, and in what amount, based on the evidence that it determines is relevant. Thus, the district court is not limited solely to reviewing evidence of compliance (or the lack thereof); nor is it limited to

purposes allowable in a record review case. See Medina County Envtl Action Assn v. Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010); supra at 10.
26

reviewing evidence in the administrative record, since its function is not decide the validity of the order (unlike this Court). Because a full hearing in district court will precede any award of penalties, due process is satisfied. 3. Under Mathews v. Eldridge, the balance of interests favors the Government.

Under Mathews, a three-part balancing test weighs the private interest affected, the risk of an erroneous deprivation of that interest under the process provided and the probable value, if any, of additional or substitute safeguards, and the governments interest. 424 U.S. at 335. Here, the governments interest in being able to respond promptly to potential threats to public drinking water supplies outweighs Ranges private interest and the risk of an erroneous deprivation. As noted above, Range failed to actually identify any deprivation of a protected interest, though presumably it could have identified, as property interests, compliance costs and possible civil penalties. As to compliance costs, Range was not deprived of that interest on issuance of the Order. To the extent Range may voluntarily have incurred such costs, it had the opportunity for a hearing in district court (i.e., in the civil action to enforce the Order) before it could be required to incur costs, as well as the opportunity to immediately petition this Court for review of the Orders validity (and to seek a judicially-imposed stay of the Order if necessary). As to civil penalties, such penalties cannot be assessed until the district
27

court considers whether Range has complied with the Order and, if not, whether penalties are warranted, and there can be no question that a federal court hearing satisfies due process. The governments interest in protecting human health from the special threat of contamination in a source of drinking water merits ruling here that the process afforded Range satisfies Mathews. Such a strong governmental interest easily outweighs the minimal risk that Range might be erroneously deprived of costs of compliance.15 In summary, if the Court applies Mathews, the government interest easily outweighs Ranges competing interests and the due process concerns are thus eliminated. C. Ranges Reliance on TVA Is Misplaced.

As with its non-finality argument, Range relies principally on TVA to support its due process challenge. Pet.Br. 27-29. For a number of reasons, however, TVA is distinguishable. Most importantly, while the Order here was issued pursuant to EPAs emergency powers authority under the SDWA, TVA involved an administrative compliance order. The TVA panel openly acknowledged that orders issued pursuant to emergency powers authority are different from and might not warrant

15

overstates that risk to the extent it: (a) relies on the purported exclusion of documents from the administrative record; and (b) erroneously describes the evidence that the district court may consider. Supra at 25-27 & n.14.
28

Range

the same degree of due process concern as administrative compliance orders. See 336 F.3d at 1258 n.38 (observing that 42 U.S.C. 7603, the Clean Air Acts emergency powers provision, is certainly less offensive to the Constitution than the provision that the court invalidated). Second, the TVA panel apparently was troubled by the governments ability to impose severe civil and criminal penalties on the basis of a respondents failure to comply with a Clean Air Act administrative compliance order. Id. at 1260 (emphasis added). Section 1431, however, does not authorize criminal penalties. Third, the statutory provision at issue in TVA only authorizes issuance of compliance orders in response to violations of requirements in the Clean Air Act or established thereunder (e.g., through permits or implementation plans). See 42 U.S.C. 7413(a)(1), (2), (3), (4), (5) (all referring to violations). Thus, the Eleventh Circuit believed it would offend due process if EPA obtained civil and criminal penalties for failure to comply with an administrative order without proving an actual violation of the statute. See TVA, 336 F.3d at 1239-40 (EPA must prove the existence of a CAA violation in district court; until then, TVA is free to ignore the ACO without risking the imposition of penalties.). Section 1431(a), though, nowhere refers to violation, liable party, or any other analogous term suggesting that a statutory violation is a necessary predicate either
29

to EPAs issuance of an emergency order, or to a judicial action seeking emergency injunctive relief. 42 U.S.C. 300(i)(a). And section 1431(b) expressly authorizes civil penalties for violations of any order . . . under [1431](a)(1), without any other reference to a statutory violation or liability. 42 U.S.C. 300(i)(b). Therefore, the Act does not provide a textual basis to apply TVAs reasoning.16 Finally, not only is TVA distinguishable due to the differences between section 1431 and the Clean Air Act provision struck down by TVA, but TVAs central conclusion that the Clean Air Act allows imposition of severe civil and criminal penalties on the sole basis of noncompliance with an ACO, 336 F.3d at

involving a Clean Water Act (CWA) administrative compliance order and CERCLA cases similarly are distinguishable because, unlike section 1431, the Agency powers at issue in those cases were tied to violations of, or liability under, the pertinent statute. Compare 33 U.S.C. 1319(a)(1) (under CWA, EPA may issue order [w]henever [it] finds that any person is in violation of any condition or limitation which implements [any of several enumerated statutory provisions]) (emphasis added), and id. 1319(b) (EPA may bring a civil enforcement action for any violation for which [EPA] is authorized to issue a compliance order) (emphasis added), with Sackett v. EPA, 622 F.3d 1139, 1145 (9th Cir. 2010) (construing this text to mean that, in an action to enforce a CWA compliance order, EPA must prove a violation of the CWA, not just the compliance order itself), cert. petition filed, 79 U.S.L.W. 3514 (Feb. 23, 2011) (No. 10-1062); see also Raytheon Aircraft Co. v. United States, 501 F. Supp. 2d 1323, 1327 (D. Kan. 2007) (under CERCLA, EPA may compel only responsible parties (i.e., PRPs) to perform a cleanup); 42 U.S.C. 9607(a) (identifying the four categories of PRPs).
16

Sackett

30

1260 was not a reading compelled by the statutory text at issue. Put simply, TVA was wrongly decided. See Sackett, 622 F.3d at 1144-47 (declining to follow TVA when construing the Clean Water Act).17 IV. IT WAS REASONABLE FOR EPA TO TAKE EMERGENCY ACTION IN RESPONSE TO THE THREAT OF EXPLOSION AND TOXIC CHEMICAL EXPOSURE. Section 1431 of the Act authorized EPA to issue the Emergency Order upon receipt of information that a contaminant which is present in or is likely to enter . . . an underground source of drinking water . . . may present an imminent and substantial endangerment to the health of persons, and that appropriate State and local authorities have not acted to protect the health of such persons. 42 U.S.C. 300i(a). On the merits, Range questions the degree of certainty in the evidence before EPA (Pet.Br. 41), but fails to acknowledge that the standard for taking action may present an imminent and substantial endangerment is, on its face, precautionary. As the D.C. Circuit explained in Ethyl Corp., construing the Clean Air Act phrase will endanger:

attempts to bootstrap TVAs conclusion that the Clean Air Act violates the non-delegation doctrine into an additional ground for invaliding the Order. Pet.Br. 31-32. The Court should decline to follow TVA on this issue for the same reasons given in Arguments I and III.C above, and pursuant to Whitman v. American Trucking Assns, 531 U.S. 457, 472 (2001) (reversing D.C. Circuits invalidation of other Clean Air Act provisions on non-delegation grounds).
17

Range

31

A statute allowing for regulation in the face of danger is, necessarily, a precautionary statute. Regulatory action may be taken before the threatened harm occurs; indeed, the very existence of such precautionary legislation would seem to demand that regulatory action precede, and, optimally, prevent, the perceived threat. 541 F.2d at 13; see also id. at 25 (Both the Clean Air Act and common sense demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.); Massachusetts v. EPA, 549 U.S. 497, 506 n.7 (2007) (citing Ethyl Corp.). The same principle applies here when considering whether EPA reasonably exercised its SDWA emergency powers. See Trinity, 150 F.3d at 399 (EPA may take emergency action if it finds that the public may be harmed by contaminated water unless prompt action is taken to prevent a potential hazard from occurring) (quoting 1974 U.S.C.C.A.N. at 6488). As shown below, EPAs decision was supported by the evidence available to it and was a reasonable exercise of its authority to take preventative action in response to conditions posing a risk of harm to users of underground drinking water. A. EPA Reasonably Concluded that Potentially Explosive Levels of Methane and the Risk of Exposure to Carcinogenic Benzene Contamination May Present An Imminent and Substantial Endangerment.

EPAs imminent and substantial endangerment finding was based primarily on two notable threats to health from the contaminated drinking water in Domestic Wells 1 and 2: the risk of explosion from high levels of methane, and the risk of exposure to benzene, a known human carcinogen. Order 41 (JA xx). See also id.
32

 32 (other contaminants, including hexane, propane, ethane and toluene, may also cause adverse health impacts if inhaled or ingested) (JA xx). The record amply supported this finding. With respect to methane, EPA initially was informed by the well owner that levels in Domestic Well 1 were high enough to be flammable as of July 26, 2010. Order 17 (JA xx); AR 570 (Lister Decl. 14) (JA xx). In a water sample EPA subsequently took on October 26, 2010, methane was detected at a concentration of 20.1 mg/L. Order 28 (JA xx). This represented a nearly three-fold increase from the sample taken by the well owner a couple of months previously (7.8 mg/L). See id. 18 (JA xx). In addition, this concentration was well above the 10 mg/L threshold regarded by the United States Geologic Survey as a possible indication that methane concentrations may be increasing to dangerous levels in ground water. USGS, Methane in West Virginia Groundwater (Jan. 2006), Pet.Br. Addendum 133 (emphasis added) (JA xx). The Department of Interiors (DOIs) Office of Surface Mining advises that well owners encountering concentrations greater than 10 mg/L and less than 28 mg/L might [in addition to venting the wellbore to the atmosphere] wish to contact their local county health department for further assistance and might consider removing ignition sources from the immediate area. Id. 134 (JA xx).

33

In Domestic Well 2, an EPA water sample taken on October 26, 2010, detected methane at a concentration of .627 mg/L. Although below the range of concentrations for which DOI recommends contacting the local county health department, this represented a 60-fold increase from a sample taken by the well owner two months earlier.18 Thus, EPA had reason to be concerned about the risk to human health posed by the increasing concentrations of methane that were being detected in Domestic Wells 1 and 2. See, e.g., Lister Decl. 6 (JA xx). Benzene contamination in drinking water also constituted part of the basis for EPAs endangerment finding. Water samples taken from Domestic Well 1 by the well owner, RRC, and EPA between August and October 2010 all contained detectable levels of benzene contamination, with the highest concentration at 6.84 parts per billion i.e., above the maximum contaminant level (MCL) for benzene (5 parts per billion). Order 18, 19, 28 (JA xx).19 As EPA explained in the Order, [b]enzene is a known human carcinogen [and] can also cause anemia, neurological impairment and other adverse health impacts. Id. 31 (JA xx). Accordingly, the presence of benzene in the water samples from Domestic Well 1

18

Order The

37 (JA xx); Lister Decl. 6 (JA xx).

sampling results for benzene are actually reported in micrograms per liter, but are converted here to parts per billion.
19

34

also supported EPAs finding that the contamination may present an imminent and substantial endangerment to the health of persons. Id. 41 (JA xx). As noted above, Range is not asking the Court to reach the threshold issue of whether the contamination in Domestic Wells 1 and 2 constituted an endangerment. Instead, Range contends that even if there was an endangerment, it was not imminent or substantial, because any risk of harm is remote in time, completely speculative in nature, or de minimis in degree. Pet.Br. 52-53. However, Ranges criticisms are meritless. To begin with, EPA did not take action based upon the mere hypothetical possibility that contamination might enter an underground source of drinking water at some unknown time in the future. Rather, methane and benzene contamination was already present at levels that presented a risk of explosion (in the case of methane), exceeded the MCL for benzene, or otherwise warranted concern for human health and safety. There was nothing remote or speculative about the endangerment. Nor is it accurate to characterize the risk posed under the circumstances as de minimis. Range apparently bases this characterization, in part, on the unlikely notion that Congress did not intend for EPA to treat the risk of explosion as a serious threat to human health. See Pet.Br. 50 (arguing that methane is of concern only with respect to its ignitability in air). Clearly, however, EPA was
35

well within its statutory authority to take emergency action where it had evidence that methane concentrations may be increasing to dangerous levels in groundwater. Pet.Br. Addendum 133 (JA xx). Similarly, the presence of a human carcinogen (benzene) at levels approaching or exceeding the MCL is a substantial, not de minimis endangerment, and a lawful basis for EPA to issue an Emergency Order under section 1431.20 Accord Cox v. City of Dallas, 256 F.3d 281, 300 (5th Cir. 2001) (the evidence, including a significant fire hazard and the detection of benzene and other contaminants in excess of State limits, supported district courts finding that conditions at a dump site posed an imminent and substantial endangerment to health or the environment under the Resources Conservation and Recovery Act (RCRA)). Finally, the fact that EPA had advised the users of Domestic Wells 1 and 2 to consider discontinuing their use, and that Domestic Well 1 had been removed from service due to the contamination, does not invalidate EPAs endangerment finding. The plain language of the statute authorizes EPA to act even when no evidence exists that anyone is actually drinking contaminated water. Trinity, 150 F.3d at 399. Because only the risk of harm must be imminent, not the harm

water sample from Domestic Well 1 detected a benzene concentration exceeding the MCL, Order 19 (JA xx), and EPA was authorized to act based on that information even though it did not collect the sample itself. See 42 U.S.C. 300i(a) (EPA may act upon receipt of information that a contaminant . . . may present an imminent and substantial endangerment) (emphasis added).
20

RRCs

36

itself, EPA need not demonstrate that individuals are presently using the contaminated water to justify issuing an emergency order. See id.; see also W.R. Grace & Co. v. EPA, 261 F.3d 330, 339 (3d Cir. 2001) (the Acts provisions on injunctive relief enhanced the courts traditional equitable powers, since risk of harm is a more lenient standard than the traditional requirement [for injunctive relief] of threatened irreparable harm); Cox, 256 F.3d at 299-300 (citing case law interpreting the RCRA phrase imminent and substantial endangerment to refer to the risk of harm, not actual harm); Ethyl Corp., 541 F.2d at 13 (likewise construing the Clean Air Act phrase will endanger ). Mr. Blevins explained that EPA Region VI understood that it could only ask the users of Domestic Wells 1 and 2 to voluntarily discontinue the wells use, which provided no guarantee against further exposure to benzene or ignitable levels of methane if in the future they resumed using the wells.21 Moreover, the threat posed by methane was a danger of explosion, not harm from ingesting the water; therefore, merely discontinuing use of the wells would not necessarily eliminate the threat. Accordingly, it was reasonable for EPA to conclude that the evidence before it established an imminent and substantial risk of harm.

21

Blevins

Dep. 161-62, 213 (JA xx).

37

B.

EPA Reasonably Determined That State and Local Authorities Had Not Acted to Protect Human Health.

Before EPA could take emergency action, the Act also required a finding that appropriate State and local authorities have not acted to protect the health of such persons. 42 U.S.C. 300i(a). The record shows that this pre-condition was satisfied, and that EPA had a reasonable basis for finding that RRC, while investigating the contamination in Domestic Wells 1 and 2, had not acted to protect health and had no immediate plans for such action. See Order 40 (EPA has determined that [the] appropriate State and local authorities have not taken sufficient action to address the endangerment described herein and do not intend to take such action at this time.) (JA xx).22 Long before it issued the Emergency Order, EPA shared data with TRRC concerning the well contamination and on several occasions discussed the status of the agencies respective investigations. See AR 670-708 (email correspondence from Oct. 20 to Dec. 3, 2011) (JA xx); id. 668-69 (RRC staff have all the data on which [EPA is] contemplating action) (JA xx). Additionally, the agencies participated in joint inspections of the Domestic Wells and Ranges gas production

Range challenges EPAs finding that RRC had not taken action, Range does not dispute EPAs finding that no appropriate . . . local authority had acted. Pet.Br. 58-59 (arguing that EPA failed to give due weight to RRCs investigation, but not identifying any local authority); see Blevins Dep. 34-35 (describing EPAs analysis of local authorities) (JA xx).
22

Although

38

wells on October 26, 2010. AR 293 (JA xx). In short, from the very beginning EPA has cooperated with State authorities to the greatest extent possible under the circumstances. Prior to December 7th, Jerry Saunders, the Associate Director of the Water Enforcement Branch for EPA Region 6, notified RRC regarding EPAs determination that emergency action was necessary and inquired as to whether RRC planned any action in response to the contamination. RRC responded that it did not anticipate doing anything until [it] understood the flow pathway of the contamination detected in the Domestic Wells. AR 728 (JA xx); id. 655, 661 (Saunders Decl. 4 and Ex. A) (JA xx). In subsequent email correspondence with EPAs Regional Administrator, RRCs Chair confirmed that the State did not plan to take action because it disagreed with EPAs conclusion that the existing data indicated the gas detected in the Domestic Wells and Ranges deep production gas are [from] the same source. AR 668 (JA xx). The Regional Administrator explained that while he understood that RRC believed EPAs action would be premature, given [] the potential for either exposure to unsafe levels of compounds in natural gas, or perhaps even a fire or explosion from the natural gas, I have asked my staff to move with all deliberate haste. I cannot justify delaying action, given my

39

confidence in the data we have to date, and the risk to health or life. AR 667 (JA xx). It was reasonable for EPA to move forward with emergency action under these circumstances. RRC had made clear that it did not plan any of the immediate steps EPA believed were necessary to address the potential threat to the health of the Domestic Well users, such as ordering provision of potable water supplies and installation of explosivity meters. See Order 50(B), (C) (JA xx). Nor did RRC plan to take any other enforcement steps until after completing its evaluation of the contaminant flow pathway. AR 728 (JA xx). Moreover, despite RRCs assurances that this evaluation would proceed quickly, there was no way to predict as of December 7th exactly how much longer it would take. Ultimately, RRCs next step RRC was to convene a hearing that lasted another three months. EPA, therefore, was fully within its authority to take immediate action once it determined that the contamination in Domestic Wells 1 and 2 may present an imminent and substantial endangerment. See 42 U.S.C. 300i(a) (EPA Administrator shall consult with State and local authorities [t]o the extent he determines it to be practicable in light of such imminent endangerment) (emphasis added); Trinity, 150 F.3d at 398 (The question is not . . . whether the state acted at all or acted in good faith . . . [but] [r]ather, . . . whether EPA could reasonably conclude that [the] states efforts,

40

while certainly genuine, were not sufficiently effective to protect the public health.). Range essentially argues that the EPA could not take any action under section 1431 unless and until RRC agreed that it was necessary. Pet.Br. 57-59. More precisely, Range believes EPA had no authority to act because RRC had commenced an investigation, id. 58 even though RRC informed EPA that it did not plan any action to respond to the threat to public health. But that is not how Congress intended the federal-state relationship under this Act to work. As the Fourth Circuit has observed, to suggest that any action by a state even if minor or ineffective would strip EPA of its statutory emergency powers is a result at odds with the clear purpose of the statute to preserve and protect the public health. Trinity, 150 F.3d at 397. To fulfill this purpose, the Act gives the EPA Administrator great discretion to take such actions as he may deem necessary . . . when state authorities have not acted to protect the public health. Id. at 398 (emphasis added). State health authorities, therefore, must not only have acted, but acted in a way adequate to protect the public health; and EPA, the agency with expertise in this area, determines if the state efforts were adequate. Id. The legislative history confirms this is what Congress intended. See 1974 U.S.C.C.A.N. at 6487 ([I]f State or local efforts are not forthcoming in timely fashion or are not effective to prevent or treat the hazardous condition, this
41

provision [of section 1431] should not bar prompt enforcement by the Administrator.) (emphasis added).23 Thus, the correct reading of section 1431 is that, under the statute, EPA retains authority to act when it has a rational basis for concluding that a states efforts at abating a potentially hazardous situation are not effective. Trinity, 150 F.3d at 398. Here, EPA had a rational basis to conclude that waiting for RRC to finish investigating was not an adequate response to the immediate risk of harm from benzene exposure and potentially explosive methane contamination. C. EPA Reasonably Limited the Scope of the Order to Actions Necessary to Respond to the Endangerment.

Contrary to Ranges contention that EPAs Emergency Order was not narrowly tailored to require only actions reasonably necessary to protect . . . those persons who are in imminent and substantial danger, Pet.Br. 53, most of the Orders provisions are in fact limited to measures specifically intended to protect the users of Domestic Wells 1 and 2 from the contamination found in those wells. For example, Paragraphs 50.B and C of the Order direct Range to provide replacement potable water supplies for the consumers of water from Domestic Well 1 and Domestic Well 2, and to install explosivity meters, approved by

it resorted in dicta to legislative history, the Fourth Circuit held that the plain language of section 1431 supports this view of EPAs authority. Trinity, 150 F.3d at 398 (the Fourth Circuit does not believe the statute is in any way unclear on the point).
23

Though

42

EPA, in the dwellings served by those two wells. Order 50.B, C (JA xx).24 Paragraph 50.E is equally narrow, requiring Range to submit to EPA a plan to conduct soil gas surveys and indoor air concentrations analyses of the properties and dwellings served by Domestic Wells 1 and 2. Id. 50.E (JA xx). These measures constitutes the minimal steps necessary to address the immediate risks of benzene exposure and of potentially explosive quantities of methane in the two domestic wells that supported EPAs endangerment finding. Range offers little or nothing to show that the three above-described provisions are overly broad. Pet.Br. 56-57. Indeed, its only specific criticism is that the requirement to provide potable water supplies purportedly is not timelimited. Id. 57. But in fact, the Emergency Order acknowledges that its requirements will have a finite duration, stating that it will remain in effect until EPA provides notice of its termination. Order 60 (JA xx). It was reasonable for EPA not to try to predict in advance the precise date on which the circumstances might no longer require ongoing action to prevent the endangerment of public health. However, nothing in the Order supports Ranges speculation that EPA might seek to require perpetual compliance with it. Cf. Trinity, 150 F.3d at 401 (court used common sense in reviewing an emergency orders validity).

50.A simply required Range to notify EPA in writing whether it intended to comply with the Order. Id. 50.A (JA xx).
24

Paragraph

43

Range offers an equally cursory challenge to Paragraph 50.D, which requires submission to EPA of a survey listing and identifying the location description (latitude and longitude) of all private water wells within 3,000 feet of the wellbore tracks of Ranges Butler and Teal gas production wells, and all of the Lake Country Acres . . . public water supply system wells. Order 50.D (JA xx). In addition, Range is directed to submit a plan to sample those wells . . . to determine if any of those wells have been impacted, and to commence head space (air) sampling in the wells no later than five days after submitting the plan. Id. Range disputes the 3,000-foot radius selected by EPA, but does not otherwise support its contention that the actions directed by Paragraph 50.D are not necessary to respond to the endangerment EPA described. Pet.Br. 56 & n.177. Moreover, Mr. Blevins explained that although the Lake Country Acres public water supply system files regular water quality reports with the State, methane is not among the chemicals subject to the reporting requirement. Blevins Dep. 14647 (JA xx). Thus, the sampling EPA ordered is necessary not only to determine whether private water wells are being affected by contamination, but to make sure that [the] public water supply system [i]s not in any way being impacted. Id. 146 (JA xx); accord Trinity, 150 F.3d at 400 (upholding order that calls for a uniform well sampling to determine . . . the effect of the contaminants on surrounding wells

44

used for drinking water); id. at 401 (requirement to identify all potential users of the contaminated wells in the three-quarter-mile area was reasonable). Range primarily attacks Paragraph 50.F, which directs Range to develop and submit to EPA within 60 days a plan to: 1) identify gas flow pathways to the Trinity Aquifer; 2) eliminate gas flow to the aquifer if possible; and 3) remediate areas of the aquifer that have been impacted. Order 50.F (JA xx). Range argues that Paragraph 50.F should be set aside because, when given its broadest possible reading, it purportedly requires actions that may not be feasible and would not be narrowly tailored to address the endangerment. Pet.Br. 54-56. Again, however, the Court need not discard common sense when reviewing this Order. Trinity, 150 F.3d at 401. Plainly, EPA anticipated that any concerns with the feasibility or scope of the plan to be submitted would be resolved through discussions between Range and EPA prior to EPAs approval of the plan. As Mr. Blevins explained , [W]e would want Range to identify the pathways. [But] if Range were able to present data to the Agency that the Agency believed was valid and appropriate . . . that showed that it wasnt related to [Ranges] activities theres always the option that we would not pursue asking Range to do anything beyond what they did. Blevins Dep. 232 (JA xx). Finally, W.R. Grace does not support Ranges argument. In that case, the emergency order require[d] that Grace engage in a long-term cleanup using a
45

specific remedial approach (Approach 1) to remove ammonia from an aquifer. 261 F.3d at 337. The Third Circuit set aside that order, in part, because EPA had failed to articulate a rational basis for its conclusion that Approach 1 is necessary to protect the health of the Lansing public. Id. at 342. Here, however, the Emergency Order does not reflect any decision about the specific form that a remedial plan must take, or about implementation of such a plan; rather, it asks only that Range develop and submit such a plan to EPA for consideration. D. EPA Had a Rational Basis in the Record to Determine that Range Caused or Contributed to the Endangerment.

Range relies heavily on arguments that EPAs determination that Range caused or contributed to the endangerment was arbitrary and capricious. Pet.Br. 35-48. These arguments are both largely irrelevant and without merit. First, EPAs emergency order authority under section 1431 is broad and may properly be exercised whenever EPA finds that contamination may present an imminent and substantial endangerment to the health of persons, and that appropriate State and local authorities have not acted to protect the health of such persons. 42 U.S.C. 300i(a). The only statutory reference to cause or contribute appears in a sentence defining [t]he action which the Administrator may take, which may include (but shall not be limited to) (1) issuing such orders as may be necessary to protect the health of persons . . . including orders requiring the provision of alternative water supplies by persons who caused or contributed to
46

the endangerment . . . . Id. (emphasis added). In Trinity, the Fourth Circuit concluded that the caused or contributed phrase thus limits the actions of [EPA] in one, and only one, instance, i.e., the agency can only order a violator who caused or contributed to the endangerment to provide alternative water supplies. 150 F.3d at 396. The court added, [t]his is a small restriction on the administrators otherwise broad statutory power to take such actions as he may deem necessary to protect the health of the public . . . . Id. (quoting 42 U.S.C. 300i(a)).25 Accordingly, whether EPA had a rational basis to determine that Range caused or contributed to the endangerment only implicates, at most, the validity of Paragraph 50.B, which directs Range to provide alternative water supplies.26

implicitly acknowledges that EPA may issue emergency orders under section 1431 without determining that the order recipient caused or contributed to the endangerment. Pet.Br. at 34-35 (EPA may issue only such orders as may be necessary to protect the health of those endangered, including orders issued to persons who caused or contributed to the endangerment.) (emphasis added).
25

Range

is not difficult to imagine a hypothetical scenario in which EPA does not determine that the section 1431 emergency order recipient caused or contributed to the endangerment, but nonetheless directs them to provide alternative water supplies because they are uniquely situated to take such action quickly enough to prevent harm to the users of contaminated drinking water. See 1974 U.S.C.C.A.N. at 6487 (explaining that the Act authorizes EPA to impose emergency orders on any . . . person whose action or inaction requires prompt regulation to protect public health) (emphasis added); Hooker Chem., 749 F.2d at 988. This case, like
26

It

47

The remainder of the Order may, and should, be upheld as valid without reaching this issue. Moreover, EPAs determination that Range caused or contributed to the endangerment was supported by the record and adequately explained. While EPA did not eliminate every possible alternative explanation for the contamination in Domestic Wells 1 and 2, the statute does not require such exactitude, as Congress recognized the necessity of authorizing emergency action to protect public health even where less than perfect information about the cause of the endangerment may be available. Trinity, 150 F.3d at 397 (EPA need not rule out other possible sources of contamination for it to properly exercise its emergency power to take this action against Trinity, so long as EPAs determination that Trinity contributed to the hazardous condition is rational . . . .) (emphasis in original). 1. The combination of isotopic fingerprinting, compositional analysis, and data regarding the timeline of events and the absence of other nearby production wells provided a rational basis to determine that Range caused or contributed to the endangerment.

In evaluating the possible cause or contributing factors to the endangerment it identified in Domestic Wells 1 and 2, EPA considered several types of analytical data or other information, including: (1) isotopic fingerprint analysis of methane

Trinity, does not involve such facts, and therefore this Court need not reach the question of whether EPA could ever validly issue such an order.
48

gas sampled from Domestic Well 1 and of produced gas sampled from Ranges Butler and Teal wells; (2) compositional analysis of these samples; (3) timeline data (i.e., when the Domestic Wells first began experiencing problems with methane, as compared with the timing of Ranges nearby gas production activities); and (4) whether there were any other nearby gas production wells that could be a possible cause or contributing factor to the endangerment. Blevins Dep. 77 (JA xx): Order 11-27, 34-37 (JA xx). EPA did not rely solely on any one category of data or information, but the totality of the evidence reasonably supported its determination that Range caused or contributed to the endangerment. Isotopic fingerprint analysis As the Order explains, [i]sotopic fingerprinting is a method for determining the ratio of different isotopes27 of a particular element in an investigated material. Understanding this ratio helps scientists know the source of the investigated material. Id. 22 (JA xx). In the case of methane, isotopic fingerprint analysis is widely used as a method of distinguishing thermogenic methane (natural gas and coal gas) from microbial

are atoms of the same element, such as methane, that have different atomic mass because they contain different numbers of neutrons. Order 24 (JA xx).
27

Isotopes

49

methane (swamp gas, marsh gas, sewer gas, landfill gas, etc.). AR 499 (JA xx);28 see AR 499-566 (JA xx) (scientific literature on isotopic fingerprinting analysis). The results of EPAs isotopic fingerprinting analysis on the gas samples from Domestic Well 1 and from Ranges production wells were reviewed by both inhouse and outside experts in the field of isotopic analysis Dr. Douglas Beak of EPA, and Mr. Dennis Coleman of Isotech Laboratories, Inc. See Blevins Dep. 270 (describing Dr. Beaks credentials) (JA xx); AR 499-566 (articles and papers authored or co-authored by Mr. Coleman) (JA xx). Dr. Beak opined that [t]he isotope data for [Domestic Well 1] and the production well look to be identical and are thermogenic in origin. AR 724 (JA xx). Mr. Coleman observed that the isotopic signatures of the samples . . . being as close as they are indicate that 1) both are thermogenic in origin and 2) that they are likely to be from the same source, given the proximity of the production well and the water well. Thus, the analysis indicated Ranges activities were a potential cause of or contributing factor to the endangerment, though EPA did not act on this basis alone. Compositional analysis EPAs compositional analysis involved an evaluation of the ratios of ethane to propane and propane to butane in the gas sampled from Domestic Well 1 and Ranges production well. Both ratios were
28 Coleman, Source Identification

of Stray Gases by Geochemical Fingerprinting, Solution Mining Research Inst.; Spring 2004 Tech. Mtg. (Apr. 2004).

50

very similar in these samples. Blevins Dep. 108-09 (JA xx); Lister Decl. 11 (JA xx). Dr. Beak observed that the gas composition of the production well and [Domestic Well 1] are similar and the compositional changes are what one might expect for a gas that has migrated from the production well to [Domestic Well 1]. AR 724 (JA xx). As EPA further explained in the Order, the data showed that both gases contain significant amounts of heavier hydrocarbon components and that the hydrocarbon portion of each gas contains the same components. [This] further indicates the presence of gas in Domestic Well 1 is likely to be due to impacts from gas development and production activities in the area. Order 27 (JA xx). Timeline data In his comments on the isotopic and compositional data, Dr. Beak observed that this is not conclusive evidence because of the limited data set, and that [w]hat will be very important to document is the timeline of when the [Range] well went into production and the appearance of gas in [Domestic Well 1]. AR 724 (JA xx). Consistent with Dr. Beaks recommendation, EPA evaluated timeline data, which it summarized in the Order. Specifically, Domestic Well 1 was drilled in April 2005 approximately four years before Range commenced its gas production activities and [n]either the consumer, nor the well drilling service, observed or reported that the water from Domestic Well 1 contained any noticeable natural gas at the time of its
51

drilling. Order 12-13 (JA xx). For years, Domestic Well 1 was used for human consumption and in connection with building construction and landscape irrigation, and it experienced no methane problems until beginning in late December 2009 about four months after Range began its nearby gas production activities. Id. 12, 14 (JA xx). Domestic Well 2s timeline was similar. The well was drilled and completed without any report that it contained noticeable natural gas, and for years thereafter was used for human consumption and landscape irrigation. Id. 34-35 (JA xx). The well owner first noticed methane-related problems in May 2010, approximately nine months after Range commenced gas production. Id. 36 (JA xx). Thus, the timeline data further reinforced the evidence pointing to Ranges gas production activities as the potential cause of or a contributing factor to the endangerment, and it also filled the most important data gap Dr. Beak had identified. Compare AR 724 (Dr. Beaks recommendations) (JA xx), with Pet.Br. 42 (claiming EPA ignored Dr. Beaks advice); see also Blevins Dep. 85-86 (timeline data in and of itself does not . . . drive the decision, but was part of the fact pattern EPA considered) (JA xx). Timeline data also differentiates Domestic Well 1 from other nearby wells that contain concentrations of natural gas but do not appear to be impacted by
52

Ranges activities. Range points to the Hurst well as an example of a well that has historically been impacted by natural gas deposits in the Pennsylvania Strawn formation. Pet.Br. 45.29 The State Well Report for the Hurst well notes that natural gas was intermittently entering the well at the time it was drilled. AR 44344 (JA xx). Domestic Well 1, in contrast, did not experience natural gas impacts when it was first drilled, and was not noticeably impacted by natural gas for over four and a half years until after Range began its gas production activities. AR 437-38 (JA xx); Order 12-14 (JA xx). Accordingly, the Hurst well data does not contradict EPAs determination that Ranges activities caused or contributed to the endangerment described in the Order. No other gas production wells in the area Finally, as EPA noted in the Order, Ranges gas production wells are the only ones within approximately 2,000 feet of Domestic Wells 1 and 2. Order 11 (JA xx). Mr. Blevins explained that while the Order refers to this 2,000-foot radius, EPA actually looked beyond that radius, but was not able to identify any other gas producer in the area. Blevins Dep. 285-87 (JA xx). Nor has Range (or RRC) identified any other producers.

also points to historic complaints of gas in other wells. Id. 45-46 & n.139. But these other wells are lmore than a mile from Domestic Well 1 far outside the radius EPA considered relevant as evidenced by plotting and comparing the GPS coordinates provided by RRC. Order 12 (Domestic Well 1 coordinates) (JA xx); AR 708 (other well coordinates) (JA xx).
29

Range

53

In summary, the evidence provided a rational basis to determine that Ranges gas production activities caused or contributed to the endangerment. 2. EPAs determination was reasonable notwithstanding certain limitations in the record evidence.

Range appears principally to attack the record basis for EPAs cause or contribute determination on the following grounds: (1) EPA did not have sufficient data to definitively single out Range as the source of the contamination; and (2) even if Range was the source, EPA did not have data to explain what pathway the contamination took from Ranges production wells to the Domestic Wells. Pet.Br. 39-41. However, the statute does not require EPA to amass such an exacting body of evidence before taking emergency action. Trinity is instructive in this regard. There, EPA had evidence that a number of the same chemicals found in the contaminated groundwater at Trinity [a polyurethane foam plant] were also found off-site, which the court agreed supports EPAs conclusion that Trinity contributed to the groundwater contamination presently found in that area. 150 F.3d at 397. Armed with this information, EPA did not act arbitrarily or capriciously in ordering Trinity to provide alternative water supplies, because it could rationally determine that Trinity caused its groundwater to become contaminated, which in turn, contributed to the contamination of [water supply wells] located downstream from the Trinity site. Id. The Fourth Circuit therefore upheld the orders requirement to provide
54

alternative water supplies even though: (a) EPA could not rule out other possible sources of contamination; and (b) the Court could not determine from the record how the chemicals used in Trinitys manufacturing process would interact with the groundwater to possibly degrade into any of the chemical compounds detected in the water samplings. Id. at 397 and n.1.30 Here, if it did not have complete data, EPA still had sufficient data, at minimum, to support a reasonable inference that Ranges activities contributed to the endangerment of health of users of water from Domestic Wells 1 and 2, even if EPA could not rule out a possible alternative methane source such as a possible shallower natural gas reservoir above the stratigraphic layer in which Ranges production activities occur. See AR 710 (acknowledging that [t]here is a possibility of shallow natural gas in the area) (JA xx). Accordingly, the data limitations Range identifies do not render EPAs Order invalid. For the same reason, it was not arbitrary for EPA address some of the uncertainties Dr. Beak and Mr. Coleman identified e.g., information on the

re Bell Petroleum Servs., Inc., 3 F.3d 889 (5th Cir. 1993), is distinguishable. There, this Court held that EPAs decision to provide an alternative water supply as part of a response action under CERCLA was arbitrary because EPA made no effort to determine whether anyone was drinking contaminated water and, if so, whether they would make use of the alternate water supply if EPA provided it. Id. at 905-06. Additionally, all of the contaminated wells in the area served commercial establishments, which were prohibited from connecting to the alternate water supply. Id.
30

In

55

subsurface geology or structure that would store or transmit the gas from the source to Well 1, Pet.Br. 43 (quoting Mr. Coleman) by requiring Range to develop or collect such information. Compare Order 50(F) (Range must submit a plan to, inter alia, identify gas flow pathways to the Trinity Aquifer) (JA xx), with Trinity, 150 F.3d at 400 (finding reasonable an order provision that calls for a uniform well sampling to determine . . . the effect of the contaminants on surrounding wells used for drinking water). Nor is it accurate to say EPA ignored evidence that some private water wells had experienced natural gas intrusion prior to Ranges gas production activities. Pet.Br. 45-46 & n.139.31 EPA was aware of these occurrences, but this information did not change the conclusions EPA drew from the data concerning Domestic Wells 1 and 2 and the analyses comparing gas samples from those wells to samples from Ranges wells. As Mr. Blevins explained: I dont think EPA . . . has ever said that we dont believe theres drinking water wells that . . . can be impacted by natural gas. We in fact know there are, there have been historically, there always will be. We believe the data we have . . . shows a direct . . . relationship between the gas found in the production well owned by Range Corporation and the gas found in the Lipsky and Hayley wells.

only included in its originally-certified record one example of a complaint of natural gas intrusion, because it was the only one EPA received from RRC prior to issuing the Order. EPA will now file an amended certified index with references to the remaining complaints, which EPA received a few days after issuing the Order.
31

EPA

56

Because of that fact we dont think that the idea of gas from other sources is necessarily contradictory to our findings. Blevins Dep. 58-59 (JA xx). While Range obviously disagrees, it has not shown that EPA failed to consider relevant factors or that EPAs explanation fails to meet minimal standards of rationality. Texas Oil & Gas, 161 F.3d at 934. Finally, the admissions Range cites in Mr. Blevins testimony do not call into question the basis for the Order for reasons already explained.32 CONCLUSION For the foregoing reasons, the Court should deny the petition for review. Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division By: /s/ Brian H. Lynk_______________ BRIAN H. LYNK D.C. Bar No. 459525 Environmental Defense Section Unites States Department of Justice P.O. Box 23986

to Ranges assertion (Pet.Br. 47), Mr. Blevins testified that EPA considered possible alternative scenarios that could explain why methane was occurring in the Domestic Wells. Blevins Dep. 94, 96-67 (JA xx). Furthermore, his testimony that Range may have caused or contributed to the problem in [Domestic Well 1] (Blevins Dep. 225 (JA xx) (emphasis added), does not alter the determination actually stated in the Order, see id. 46 (JA xx), nor the statutory standard.
32

Contrary

57

Washington, D.C. 20026-3986 (202) 514-6187 brian.lynk@usdoj.gov OF COUNSEL: MARNA MCDERMOTT Office of General Counsel (2355A) United States Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, DC 20460 TINA ARNOLD Office of Regional Counsel, 6RC-D United States Environmental Protection Agency 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 DATED: May 9, 2011

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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on May 9, 2011, I electronically filed the foregoing Brief of Respondent EPA and Statutory Addendum using the Courts ECF System, and also sent copies by overnight delivery to each of the following counsel: J. Stephen Ravel, Esq. Diana L. Nichols, Esq. Kelly Hart & Hallman LLP 301 Congress Avenue, Suite 2000 Austin, TX 78701 steve.ravel@kellyhart.com diana.nichols@kellyhart.com John A. Riley, Esq. Bryan J. Moore, Esq. Vinson & Elkins LLP 2801 Via Fortuna, Suite 100 Austin, TX 78746-7568 jriley@velaw.com bmoore@velaw.com David P. Poole, General Counsel Range Production Company 100 Throckmorton Street, Suite 1200 Fort Worth, TX 76102 dpoole@rangeresources.com Dated: May 9, 2011 /s/ Brian H. Lynk_________ Brian H. Lynk

CERTIFICATION OF COMPLIANCE Pursuant to 5th Cir. R. 32.3, I hereby certify the following in regard to the type-volume limitations, typeface requirements, and type style requirements of Fed. R. App. P. 32(a) and 5th Cir. R. 32: 1. This brief contains 13,964 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font. Dated: May 9, 2011 /s/ Brian H. Lynk_________ Brian H. Lynk

CERTIFICATION OF COMPLIANCE WITH 5TH CIR. R. 25.2 Pursuant to 5th Cir. R. 25.2.1, I hereby certify that the electronic submission of the brief is an exact copy of the paper document. Pursuant to 5th Cir. R. 25.2.13, I hereby certify that all required privacy redactions (of which there were none) have been made. Dated: May 9, 2011 /s/ Brian H. Lynk_________ Brian H. Lynk

CERTIFICATION OF COMPLIANCE WITH ECF FILING STANDARDS (virus scan requirement) Pursuant to this Circuits ECF Filing Standards, I hereby certify that Microsoft Forefront Client Security has been run on the electronic version of this brief and that no virus was detected. Dated: May 9, 2011 /s/ Brian H. Lynk_________ Brian H. Lynk