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

_____________________________ IGNACIA S. MORENO Of Counsel: Assistant Attorney General MARNA MCDERMOTT Environment & Natural Resources Office of General Counsel (2355A) Division U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW JOHN C. CRUDEN Washington, DC 20460 Deputy Assistant Attorney General TINA ARNOLD BRIAN H. LYNK Office of Regional Counsel, 6RC-D Environmental Defense Section U.S. Environmental Protection Agency U.S. Department of Justice 1445 Ross Avenue, Suite 1200 P.O. Box 23986 Dallas, TX 75202-2733 Washington, D.C. 20026-3986 (202) 514-6187 May 9, 2011 Attorneys for Respondent

i 

STATEMENT REGARDING ORAL ARGUMENT

Respondent United States Environmental Protection Agency (“EPA”)

requests oral argument. EPA believes oral argument would be useful to the Court.

ii 

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. STATUTORY BACKGROUND ................................................................... 2 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY .................. 6 A. EPA’s Concerns About Explosivity and Other Health Risks Posed by Methane and Benzene Contamination ................................... 6 B. State Agency Proceedings and Federal Court Litigation ...................... 9 STANDARD OF REVIEW ..................................................................................... 10 SUMMARY OF ARGUMENT ............................................................................... 12 ARGUMENT ........................................................................................................... 15 I. THE EMERGENCY ORDER IS A “FINAL ACTION” SUBJECT TO REVIEW BY THIS COURT .................................................................. 15 II. THERE IS NO DUE PROCESS VIOLATION BECAUSE RANGE HAS NOT BEEN DEPRIVED OF A PROTECTED INTEREST WITHOUT AN OPPORTUNITY FOR A HEARING ................................. 19 III. EVEN IF RANGE HAD BEEN AFFORDED ONLY A POST- DEPRIVATION HEARING, IT WOULD SATISFY DUE PROCESS REQUIREMENTS GIVEN THE EMERGENCY CIRCUMSTANCES OF THIS CASE ............................................................................................. 22

iii 

A. A Pre-Deprivation Hearing Is Not Required in Emergency Circumstances ..................................................................................... 22 B. The Act’s Judicial Review Provisions Would Satisfy Due Process Even If the Hearing Occurred After Deprivation of a Protected Interest ................................................................................. 24 1. Review on the administrative record by the Court of Appeals satisfies procedural due process requirements ............ 24 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 ....................................................... 26 3. Under Mathews v. Eldridge, the balance of interests favors the Government ......................................................................... 27 C. Range’s Reliance on TVA Is Misplaced .............................................. 28 IV. 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 B. EPA Reasonably Determined That State and Local Authorities Had Not Acted to Protect Human Health ............................................ 38 C. EPA Reasonably Limited the Scope of the Order to Actions “Necessary” to Respond to the Endangerment ................................... 42 D. EPA Had a Rational Basis in the Record to Determine that Range “Caused or Contributed to the Endangerment” ................................... 46

iv 

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 2. EPA’s determination was reasonable notwithstanding certain limitations in the record evidence ................................. 54 CONCLUSION ........................................................................................................ 57

v 

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.

vi 

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  

vii 

*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

viii 

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

ix 

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

x 

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  

xi 

GLOSSARY

Act Safe Drinking Water Act

Agency United States Environmental Protection Agency

AR Administrative Record

CAA Clean Air Act

CERCLA Comprehensive Environmental Response, Compensation, and

Liability Act

CWA Clean Water Act

DOI Department of Interior

EPA United States Environmental Protection Agency

JA Deferred Joint Appendix

MCL Maximum Contaminant Level

Range Range Resources Corporation and Range Production Company

RCRA Resource Conservation and Recovery Act

RRC Railroad Commission of Texas

SDWA Safe Drinking Water Act

UIC Underground Injection Control

USDW Underground Source of Drinking Water

1 

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. § 300j-

7(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 EPA’s Emergency Order a “final action” subject to this Court’s review

under 42 U.S.C. § 300j-7(a)(2)?

2. Should the Court reject Range’s due process challenge, given Range’s

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 EPA’s 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

court’s 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 Range’s motion to dismiss, in addition to its Respondent’s 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

3 

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).

4 

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. §§ 300g-

3(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,                                                             1  The 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). 

5 

988 (2d Cir. 1984) (quoting United States v. Waste Indus. Inc., 734 F.2d 159, 164

(4th Cir. 1984)). As reflected in the Act’s 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

                                                            2  Section 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). 

6 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. EPA’s 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

7 

administration of the UIC Program, see 40 C.F.R. § 147.2201 – looked first (and

only) at Range’s 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 μg/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 μg/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 Range’s 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

8 

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

EPA’s 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.

9 

¶ 50.(E) (JA xx). Finally, it directed Range to develop and submit for EPA’s

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 Range’s 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 EPA’s decision not to testify. That court ordered EPA

to produce a witness to testify at deposition. In compliance with the court’s 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                                                             3  The district court committed error by ordering a deposition without ever determining that the RRC had jurisdiction over EPA or whether, instead, RRC’s 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).

10 

arising out of Range’s 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 EPA’s

administrative record with nine documents included in the addendum to Range’s

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 Court’s 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 EPA’s 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 Court’s 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 agency’s reasons and policy choices conform to minimal standards

11 

of rationality, then its actions are reasonable and must be upheld.” Texas Oil &

Gas Ass’n 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 agency’s 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 EPA’s interpretation of a statute it

administers. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). In reviewing

an agency’s 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 agency’s 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).

12 

SUMMARY OF ARGUMENT

In its initial arguments that the Emergency Order should be considered “not

final” or that it alternatively violates Range’s due process rights, Range seeks to

curtail EPA’s authority under the “Emergency powers” provision of the Act (i.e.,

section 1431) in a manner that would seriously harm EPA’s 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 Range’s 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

                                                            4  The 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.”)

13 

the initial choice of filing a civil action or issuing an administrative order. Plainly,

Range’s desired outcome is not what Congress intended; therefore the Court

should not countenance the abridgment of EPA’s emergency powers sought by

Range.

As an initial matter, contrary to Range’s argument, the Emergency Order is a

“final” action because it represents the consummation of EPA’s 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 Order’s 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 Court’s 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.

14 

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. Ass’n, 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 EPA’s authority under section 1431. First, the record supported EPA’s

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

15 

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 Range’s 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 agency’s 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

16 

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.6  Accordingly, the Order

bears the hallmarks of finality and is neither tentative nor interlocutory.

Moreover, contrary to Range’s argument (Petitioners’ Brief (“Pet. Br.”)18-

19), 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

Commission’s final decision would judicial review be available. Id. at 241.

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

6  Range 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).  

17 

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, Int’l 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                                                             7  American 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.

8 Nor can Range rely on cases holding that other statutes categorically preclude pre-enforcement 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).  

9  Although 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.

18 

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 court’s

assessment of civil penalties. Thus, unlike an administrative compliance order

issued under section 1423 to a person violating a requirement of the UIC Program,

here EPA has imposed on Range new obligations with legal consequences. Under

Bennett, therefore, the Emergency Order is a final action. See Alaska Dep’t of

Envt’l Conserv. v. EPA, 244 F.3d 748, 750-51 (9th Cir. 2001) (administrative stop-

construction order issued under the Clean Air Act was “final” under the

circumstances), aff’d, 540 U.S. 461, 481 n.10 (2004) (noting, in dicta, EPA’s

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 Circuit’s 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                                                             10 In 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).

19 

distinguishable even if taken at face value. Specifically, TVA involved a Clean

Air Act administrative compliance order, not an emergency order under that

statute’s 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 court’s 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 Amendment’s Due Process Clause. Pet.Br. 24-

31.11 If Range succeeds, it must then establish that the only way to save the statute

                                                            11  If 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).

20 

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. Ass’n 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.

                                                            12  Because 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). 

21 

Furthermore, even if Range had asserted a protected interest in the costs it

expended following EPA’s 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 Order’s 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.

22 

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 Range’s 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”), reh’g 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 POST-DEPRIVATION 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

23 

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).  

24 

Range are much less significant than in Hodel, considering the differences in the

private interests at stake.  

B. The Act’s 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 Range’s 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 government’s interest. 424 U.S. at 335. Here, the

government’s interest in being able to respond promptly to potential threats to

public drinking water supplies outweighs Range’s 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 recipient’s

25 

compliance with the order and the assessment of penalties are heard in district

court. This statutory review scheme would fully protect Range’s 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 party’s 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

director’s 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 Court’s review of

the validity of the Emergency Order satisfies due process.14

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

26 

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 non-

compliance with EPA’s Emergency Order, following this Court’s resolution of

Range’s petition for review. This additional process further undermines Range’s

assertion that it is subject to an unconstitutional deprivation of a protected interest.  

  Range erroneously claims that under EPA’s 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 Envt’l Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010); supra at 10.  

27 

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 government’s interest. 424 U.S. at 335. Here, the government’s interest in

being able to respond promptly to potential threats to public drinking water

supplies outweighs Range’s 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 Order’s 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

28 

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 government’s 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 Range’s competing interests and the due process concerns are

thus eliminated.

C. Range’s 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 EPA’s

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  Range 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.   

29 

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 Act’s

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 government’s ability

to impose “severe civil and criminal penalties” on the basis of a respondent’s

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

30 

to EPA’s 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 TVA’s

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 TVA’s

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

                                                            16  Sackett – 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).

31 

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”:

                                                            17 Range attempts to bootstrap TVA’s 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 Ass’ns, 531 U.S. 457, 472 (2001) (reversing D.C. Circuit’s invalidation of other Clean Air Act provisions on non-delegation grounds).

32 

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, EPA’s 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.”

EPA’s 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.

33 

¶ 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 Interior’s

(“DOI’s”) 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).

34 

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 EPA’s 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 ¶ 37 (JA xx); Lister Decl. ¶ 6 (JA xx).  

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

35 

also supported EPA’s 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, Range’s 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

36 

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 court’s 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 EPA’s 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                                                             20  RRC’s 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).

37 

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 Act’s 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).   

38 

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 Range’s gas production

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

39 

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 EPA’s

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 EPA’s Regional Administrator,

RRC’s Chair confirmed that the State did not plan to take action because it

disagreed with EPA’s conclusion that the existing data indicated the gas detected

in the Domestic Wells and Range’s deep production gas “are [from] the same

source.” AR 668 (JA xx). The Regional Administrator explained that while he

understood that RRC believed EPA’s 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

40 

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 RRC’s 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, RRC’s 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] state’s efforts,

41 

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

42 

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 state’s

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 Range’s contention that EPA’s 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

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

43 

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 EPA’s 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 time-

limited.” 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 Range’s 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 order’s validity).

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

44 

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 Range’s 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. 146-

47 (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

45 

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 EPA’s 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 wasn’t related to [Range’s] activities there’s 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 Range’s argument. In that case, the

emergency order “require[d] that Grace engage in a long-term cleanup” using a

46 

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 EPA’s 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, EPA’s 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

47 

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

administrator’s 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

                                                            25  Range 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).

26  It 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

48 

The remainder of the Order may, and should, be upheld as valid without reaching

this issue.

Moreover, EPA’s 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 EPA’s 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.  

49 

gas sampled from Domestic Well 1 and of produced gas sampled from Range’s

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 Range’s 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

                                                            27 Isotopes 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). 

50 

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 EPA’s isotopic fingerprinting analysis on the gas samples from

Domestic Well 1 and from Range’s production wells were reviewed by both in-

house 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. Beak’s 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 Range’s activities were a potential cause of or contributing

factor to the endangerment, though EPA did not act on this basis alone.

Compositional analysis – EPA’s 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 Range’s 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).  

51 

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. Beak’s 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

52 

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 2’s 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 Range’s

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. Beak’s recommendations) (JA xx), with Pet.Br.

42 (claiming EPA ignored Dr. Beak’s 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

53 

Range’s 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 443-

44 (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 EPA’s determination that Range’s 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, Range’s 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.

                                                            29  Range 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).   

54 

In summary, the evidence provided a rational basis to determine that

Range’s gas production activities caused or contributed to the endangerment.

2. EPA’s determination was reasonable notwithstanding certain limitations in the record evidence.

Range appears principally to attack the record basis for EPA’s “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 Range’s 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 EPA’s 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 order’s requirement to provide

55 

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 Trinity’s 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 Range’s 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

Range’s 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 EPA’s 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

                                                            30  In re Bell Petroleum Servs., Inc., 3 F.3d 889 (5th Cir. 1993), is distinguishable. There, this Court held that EPA’s 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.  

56 

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 Range’s 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 Range’s wells. As Mr. Blevins explained:

I don’t think EPA . . . has ever said that we don’t believe there’s 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.

                                                            31  EPA 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.

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Because of that fact we don’t 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 EPA’s 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

                                                            32  Contrary to Range’s 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.

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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

 

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 Court’s

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 Circuit’s 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