Original source: The Atlanta Progressive News

(APN) ATLANTA -- A group of Atlanta neighborhood activists have been engaged in a years-long battle to get the City of Atlanta to seek a permit for the shafts--through which waste water is sent into deep underground tunnels--something they believe is a requirement of the federal Safe Drinking Water Act.

The tunnels go long distances to treatment plants, where the water is treated at the surface and then is discharged to a river or stream.

The first problem is that non-drinkable water, including sewage, is not supposed to be injected underground into tunnels, according to the Code of Federal Regulations Title 40, Section 144.12, "Prohibition of movement of fluid into underground sources of drinking water."

"No owner or operator shall construct, operate, maintain, convert, plug, abandon, or conduct any other injection activity in a manner that allows the movement of fluid containing any contaminant into underground sources of drinking water, if the presence of that contaminant may cause a violation of any primary drinking water regulation under 40 CFR part 142 [National Primary Drinking Water Quality Regulations] or may otherwise adversely affect the health of persons," the regulation states.

Advocates are particularly concerned about the part of Atlanta's sewer system which is combined, meaning that sewage and stormwater travel in the same tunnel to the treatment plant.

"There's concern that contamination of the aquifers could occur. When the wastewater's in the tunnel there's the potential for it to contaminate the aquifer. Whether it [the water in the aquifer] gets used in the future or presently is not the concern. The concern is federal law says the aquifer must be protected whether it's being used for drinking water wells or not," Robert Schreiber, former President of the Atlanta Planning Advisory Board and former Chairman for Neighborhood Planning Unit (NPU) N, told Atlanta Progressive News.

Advocates--including Schreiber and Kate Bryant, former Chair of the Atlanta Zoning Review Board--have argued for years the City could have chosen an even better solution than the one it's pursuing, by requiring complete separation of the sewer pipes for sewage and ground water. This would have eliminated the need for the tunnels or the combined sewer system.

Advocates had also argued the City could have created more stormwater ponds to deal with the stormwater, but chose not to.

Schreiber says the City of Atlanta has tried to take the cheap and easy way out of its wastewater woes, by keeping a combined system for part of the City, rather than separating the systems citywide.

Schreiber argues that the City should have planned for growth and charged developers fees along the way which would have paid for the improvements.

The City of Atlanta has committed to spending over four billion dollars addressing its sewer problems.

"I am a dyed-in-the-wool advocate of good stewardship... [but] we pay the highest rate of any city in the United States for water service," Bryant said. "People do not understand this is for the sewer."

In addition, the shafts through which sewage and stormwater is injected to the tunnels, were never permitted.

"Atlanta has several sewer tunnels. None of the shafts have the permits," Schreiber said.

"The key of all of this is to protect public health. The permitting thing is a regulatory issue but the concern is to protect public health," Schreiber said.

Advocates have been focusing on the permitting requirement for the shafts, however, because they believe that if the City were to apply for such a permit, they would have to address the injection of sewage through the shafts into the tunnels. Moreover, the City may not be able to even qualify for such a permit.

Even if the permit for the shafts were approved, as part of the permitting process, the City would have to establish a formal groundwater monitoring system for the water to ensure it is drinkable.

The City of Atlanta refuses to acknowledge the Safe Drinking Water Act requires the City to obtain a permit for the shafts.

Rob Hunter, Commissioner of the City of Atlanta Watershed Department, did not respond to a request for comment.

In this stance, the City has been aided and abetted by the very federal and state agencies that are supposed to ensure compliance with federal laws.

"You have the regulators failing to require the permits be obtained. The City of Atlanta says it doesn't need to apply for the permit. Together, they are violating the Safe Drinking Water Act," Schreiber said.

11TH CIRCUIT DECISION AND THE DEFINITION OF A WELL

The requirement for the permits is in regulations which implement the SDWA. In addition, the 11th Circuit Court issued a ruling in 1997 from a separate lawsuit in Alabama--Legal Environmental Assistance Foundation v. US EPA--that advocates say prove that Atlanta must obtain a permit for its shafts.

"To achieve the statutory purpose of 'preventing underground injection which endangers drinking water sources'... Congress chose the regulatory strategy of requiring that state programs approved under the UIC [Underground Injection Control] regulations 'shall prohibit any underground injection in such State which is not authorized by a permit issued by the State," the ruling states, according to a copy obtained by APN.

"Thus, it is clear that Congress dictated that all underground injections be regulated under the UIC programs," the ruling states.

APN reviewed the Code of Federal Regulations--Title 40, Section 144.3 "Definitions"--to determine what is an underground injection.

The CFR states that an underground injection is a well injection. A "well" is defined as "A bored, drilled, or driven shaft whose depth is greater than the largest surface dimension; or, a dug hole whose depth is greater than the largest surface dimension..."

Schreiber states that Atlanta's shafts meet the definition of a well under the Underground Injection Control regulations, and therefore, injections through the shafts are, by legal definition, underground injections covered by the SDWA, the UIC, and the 11th Circuit ruling.

Meanwhile, EPA has acknowledged that any underground pipe or tunnel could leak, according to an internal memo obtained by Schreiber through FOIA request, a copy of which has been provided to APN.

"It is concluded that all pipes (and tunnels) have the potential to leak. However, the leakage process depends on the pressure (as results from the volume) of the sewage and water in the tunnel," Soloman Pollard, Senior Toxicologist, Office of Police Management for the EPA Region IV, wrote in the July 03, 2001, memo.

Schreiber said this is of concern even though the tunnels themselves technically do not have to be permitted, because the tunnels themselves would likely be addressed in the permitting process.

EPA DETERMINATION

Schreiber sent an inquiry on June 28, 2007, to EPA Region IV requesting a determination as to the legality of Atlanta's non-permitted shafts.

On September 28, 2007, Cynthia Dougherty, Director of the Office of Ground Water and Drinking Water for the EPA, sent a memo to Jim Giattina, Division Director of the Water Management Division of EPA Region IV.

"Based on the information that you have provided, a tunnel conveying sewage to Publicly Owned Treatment Works (POTWs) for treatment is not underground injection [sic] that is required to have a permit under the Safe Drinking Water Act," Dougherty wrote, according to a copy of the memo obtained by APN.

"The response I got from EPA headquarters determined that a tunnel is not a well requiring a UIC permit. Here's where they confuse you. But they didn't address where sending wastewater through shafts... into the tunnel... requires a permit. They gave me half an answer. They didn't give the whole truth. I would agree the tunnel doesn't have to have a permit, but they didn't address the shaft," Schreiber said.

"They both neglected the 11th Circuit decision which says you need to have a permit for the shaft," Schreiber said.

"Tunnels do not need to be permitted; shafts do by law. But the City has been trying to circumvent the law's requirements by saying tunnels don't need permits, but they never address the shaft issue," Schreiber said.

"Cracks and fissures of the acquifer and not permitting the shafts as required by law... is going to contaminate and threaten the public water supply and either [it should be] allowed or disallowed to move forward. No one wants to address it because it is after the fact," Bryant said.

"If there are cracks in these tunnels down the road, and just the shifting of the ground... pollution will leak into the public water supply; this is not rocket science," Bryant said.

BACKGROUND: HISTORY OF CITY VIOLATIONS

The City of Atlanta previously violated the Clean Water Act many times and Atlanta was repeatedly fined in the late 1990s and is still being fined, although for lesser amounts, today.

On March 23, 1990, EPA's Office of the Inspector General (OIG) reported that Georgia and EPA Region 4 (EPA-R4) failed to require Atlanta to obtain Clean Water Act permits for the oldest part of its sewer system; did not require monitoring or sampling; and issued unauthorized waivers of the Clean Water Act in Atlanta, according to a copy of a memo obtained by APN.

However, EPD and EPA-R4 allowed the violations to continue without enforcement.

At that point, the City's old combined sewer system could not handle the increased level of stormwater that resulted from the growth of Atlanta, and had inadequate capacity. "When it rained, when the stormwater entered the combined pipes, there was inadequate capacity and the sewage spilled into creeks," Schreiber recalled.

In 1995, the Upper Chattahoochee Riverkeeper (UCR) filed a lawsuit and in 1997 won a summary judgment against Atlanta from federal Judge Thomas W. Thrash because of the recurring CWA violations.

In 1998, Mayor Bill Campbell representing Atlanta, agreed to bring the oldest part of its sewer system into compliance with the CWA and similar Georgia laws by entering into a legally binding agreement with UCR, EPA, and EPD, known as the Combined Sewer Overflow Consent Decree (CSO-CD), which was to be completed by 2007.

By 1999, Atlanta agreed to bring the other parts of its sewer system into compliance with the CWA and similar Georgia law, entering into another consent decree, known as the First Amended Consent Decree (FACD), which is supposed to be completed by 2014.

New tunnels were to be made along with new sewage plants so that pipes were not over run by sewage when it rained. The City promised that local rivers and streams would no longer be polluted with sewage.

Atlanta's plans included increasing the capacity of the sewer system in Atlanta's Buckhead neighborhood. In 2002, the City decided to create the Nancy Creek tunnel to address the issue.

Judge Thrash retains jurisdiction over both consent decrees, which task the City of Atlanta with complying not only with the CWA but "achieving and maintaining compliance with all applicable federal and state laws, regulations, and permits," according to a copy obtained by APN. This would include the SDWA.

On April 30, 2010, Rob Hunter, on behalf of the City of Atlanta, asked the EPA and Georgia EPD to extend the terms of the First Amended Consent Decree. The City of Atlanta originally agreed to bring its sewer system into compliance with the Clean Water Act by 2014. Hunter asked for an extension to 2029. The City has argued there was no way to complete the requirements of the decree under the current budget by the original date, unless they were to raise the already-high water rates on homeowners.

UPCOMING MEETING BEFORE JUDGE THRASH

There will be a meeting to review the City's extension request in Judge Thrash's court within the next few weeks, according to Schreiber.

If there is a decision to extend the 2014 deadline, there will likely be a posting in the Federal Register allowing for a 30 day period of public comment.

About six months after this upcoming meeting, after consideration of all comment by federal agencies, a final amendment will be presented to the Judge for signing.

Advocates, including Schreiber, have already sent letters, including a legal opinion, to Judge Thrash and are hopeful that he will consider the issue.

Common Cause Georgia (CCG) has been supporting the advocates in their efforts, including in getting agencies to be more forthcoming with information.

Bill Bozarth, Executive Director of CCG, has accompanied Schreiber on some of his meetings with public officials concerning regulation of the sewer system.

"Any suggestion that anything might be amiss seems to be looked on [by government officials] with skepticism... We [the City] are not being as careful as we should be on these issues... some valid issues have been raised," Bozarth said.