United States Court of AppE Eleventh Circuit 56 Forsyth Street, N.W. Atlanta, Georgia 30303 Court Ha'e: IJSCA 11 Office of the Clerk Division: I Receipt Nunber: 4788B1BE5 Cashier ID: tporter Transaction Date: 7/E9/2B15 Payer Kane: Steven Horn Douglas J. Mincher Clerk of Court MEMORANDUM REGARDING F RECORD RETRIEVAL-ONE BOX For: Steven Horn Anount: S64.B RECORD RETRIEVAL-ONE BOX For: Steven Horn Aeount: $64.8 In response to your request, the required charges for services pursuan CHECK Check/honey Order Nun: 586 Ant Tendered: $128.BB $4.00 for each copy of an opinion per page for reproducing any record or paper Total Due: $IEB.BB Total Tendered: $128.B8 Change Ant: $8. $9.00 for certification of any document or paper B-1B38l $64.00 for retrieval of the court's file from the Federal Recor Only when a bank clears the check money order, or verifies credit funds is the fee or debt officiall paid or discharDed. A 53 fee wil be charged for any payient returned/denied for insufficient funds. $64.00 for retrieval of briefs in a case from the Federal Reco: Prepayment is required. A check or money order for the approp riate Clerk, 11" Circuit Court of Appeals. 11 Your request is enclosed. Please return it with your payment. l You have requested copies of specified portions of documents. Jhe total number of pages to be copiedis Thetotalfeeforcopyingis$ ."°. l JO'/ . .S2 You have requested certification of specified documents. The number of documents to be certified is _____________. The total fee for certification is _____________ The total payment required to fill your request is $_______________ Sincerely, Douglas i, Mincher, CLERK B•7. rs Daniel Richardson -Deputy Clerk c c- k- T2 E'cz ic 'T IN THE UNITED STATES COURT OF APJç'T FOR THE ELEVENTH CIRCUIT LEGAL ENVrRONMENTAL ASSISTANCE FOUNDATION, INC. Petitioner V. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Respondent MOTION TO INTERVENE OF HALLIBURTON ENERGY SERVICES. INC. Pursuant to Rule 15(d) of the Federal Rules of Appellate Procedure, Halliburton Energy Services, Inc. ("Halliburton") hereby moves for leave to intervene in the above-named action. As grounds for this motion, Halliburton states as follows: CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Rules 26.1-1 through 26.1-3 of the Rules of the U.S. Court of Appeals for the Eleventh Circuit, I hereby certify that the following is a list of attorneys, persons, associations of persons, firms, partnerships or corporations known to Halliburton to have an interest in the outcome of the above-named action: Alabama Petroleum Council American Petroleum Institute Conrad P. Armbreclit, II attorney for River Gas Corporation and Dominion Black Warrior Basin, Inc. L.E.A.F. v. U.S.E.P.A., No. OO-10381-D Beverly Banister, Deputy Director, Water Management Environmental Protection Agency, Region IV Division, U.S. Andrew Bartlett, Chief, Ground Water and UIC Section, Grou nd Water and Drinking Water Branch, Water Management Divis ion, U.S. Environmental Protection Agency, Region [V Connie Bosma, Chief, Regulatory Implementation Branch, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agen cy Carol Browner, Administrator, U.S. Environmental Protection Agency Larry Cole, Ground Water and UIC Section, Ground Water and Drinking Water Branch, Water Management Division, U.S. Environme ntal Protection Agency, Region IV James I-I. Curtin, U.S. Environmental Protection Agency, Office of General Counsel Coalbed Methane Association of Alabama and its members: AmSouth Bank Armbrecht, Jackson, DeMouy, Crowe, Holmes, & Reeves Arrow Specialty Company Baich & Bingham LLP Black Warrior Methane Corp. Brookwood Oilfield Service, Inc. Capstone Drilling, Inc. CDX Gas Chevron U.S.A. Inc. CH2M Hill Consolidated Pipe & Supply Dc-Gas, Inc. I)CO I .JACKT. I 053411 1 L.E.AF. v. U.S.E.P.A, No. OO-10381-D Dexter Fortson Associates, Inc. Dominion Reserves, Inc. Dresser-Rand Compression Services Division El Paso Intrastate -. Alabama EL Paso Marketing Company E Paso Production Company Energen Resources, Corp. GeoMet, Inc. Halliburton Energy Services Buddy Jones Excavating Company, Inc. J.R. Holland and Associates Jim Walter Resources, Inc. Tom Joiner & Associates, Inc. Justiss Oil Co., Inc. KIJKUI Operating Company Land and Natural Resource Development Corporation McGiffert and Associates, Inc. P.E. LaMoreaux & Associates, Inc. Pennsylvania Castle Energy Corp. Pense Bros. Drilling Co., Inc. River Gas Corporation Roland Pugh Construction, Inc. The Bank of Tuscaloosa DCOI JACKi1O534. 3 () L.E.A.F. v. U.S.E.P.A., No. OO-10381-D Torch Operating Company TTL, Inc. Universal Compression USx Virginia Oil and Gas Association Watson, deGraffenried, Hardin, & Tyra LLP Wesley West Interests, Inc. Wilson Supply Company M. Stephen Dampier, Member, State Oil and Bas Board of Alabama Dominion Black Warrior Basin, Inc. Dominion Energy, Inc., parent corporation of Dom inion Black Warrior Basin, Inc. Dominion Resources, Inc., parent corporation of Dom inion Energy, Inc. Cynthia Dougherty, Director, Office of Ground Wat er and Drinking Water, U.S. Environmental Protection Agency Elizabeth Fellows, Deputy Director, Office of Grou nd Water and Drinking Water, U.S. Environmental Protection Agency C. Charles Fox, Assistant Administrator, Office of Water, U.S. Environmental Protection Agency Andrew Robert Greene, attorney for Coalbed Meth ane Association of Alabama Halliburton Company, parent corporation of Halliburt on Energy Services, Inc. Halliburton Energy Services, Inc. John I-I. Hankinson, Jr., Regional Administ rator, Office of Water, U.S. Environmental Protection Agency E. Stallings Howell, Chief, Ground Water and Drin king Water Branch, Water Management Division, U.S. Environmental Protectio n Agency, Region IV I)COIJACK1.105348 I 4 L.E.A.F. v. U.S.E.P.A., No. OO-10381-D Thomas C. Jackson, counsel for Halliburton Energy Services, Inc. Cecilia E. Kim, Environmental Defense Section, Environme nt and Natural Resources Division, U.S. Department of Justice Bruce J. Kobeiski, UIC Team Leader, Regulatory Implementa tion Branch, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency Dennis Lathem, Executive Director, Coalbed Methane Association of Alabama Legal Environmental Assistance Foundation, Inc., petitioner David A. Ludder, General Counsel for the petitioner, L.E.A.F. Nancy March. Ground Water and Drinking Water Branch. Wate r Management Division, U.S. Environmental Protection Agency, Region W Gaines C. McCorquodale, Member, State Oil and Gas Board of Alabama Patricia Ross McCubbin, U.S. Department of Justice Mike McGhee, Director, Water Management Division, U.S. Envir onmental Protection Agency, Region IV Cynthia Ann McMillian Reuben DeVaughn McMillian Matthew S. Metcalfe, Member, State Oil and Gas Board of Alaba ma Dana Minerva, Deputy Assistant Administrator, Office of Wate r, U.S. Environmental Protection Agency Office of the Attorney General, State of Alabama Donald F. Oltz, State Oil and Gas Supervisor, State Oil and Gas Board of Alabama Susan M. Ponce, counsel for Halliburton Energy Services, Inc. Bill Pryor, Attorney General, Office of the Attorney General, State Zilpha Pryor, U.S. Environmental Protection Agency, Region IV I)COI JACKT.: 10534S I 5 of Alabama D L.E.AF. v. U.S.E.P.A., No. OO-10381-D Dana Regas, Acting Deputy Assistant Administrator, Office of Water, U.S. Environmental Protection Agency River Gas Corporation Strudwick Marvin Rogers, Assistant Attorney General, State Oil and Gas Board of Alabama B. Suzi Ruhi, President, Legal Environmental Assistant Foundation, Inc. Louis J. Schiffer, Assistant Attorney General, U.S. Department of Justice State Oil and Gas Board of Alabama Daniel M. Steinway, counsel for Halliburton Energy Services, Inc. U.S. Environmental Protection Agency, respondent U.S. Environmental Protection Agency, Region IV William T. Watson, attorney for River Gas Corporation and Dominion Black Warrior Basin, Inc. Attorney for Interveikr, Halliburton Energy Services, Inc. DCO1JACKiIO534 I 6 As grounds for this motion, Halliburton states as follows: 1. Intervention in a proceeding to review an agency order is governed Rule 15(d) of the Federal Rules of Appellate Procedure. The courts of appeals have generally granted such motions to intervene where the moving party has been agency action which is the subject of the petition for review or has substantial interest in the outcome of the petition. by directly affected by the otherwise demonstrated a New Mexico Dept. of Human Servs. v. Department of Health and Human Servs. Health Care Fin. Admin., 4 F.3d 882, 884 n.2 (101h Cir. 1993) ("[G]iven the intervenors' substantial and unique interest in the outcome - ultimately their Medicaid benefits hang in the balance - we would reaffirm the decision to permit intervention.'t); Yakima Valley Cable Vision. Inc. v, Federal Communications Comm ission, 794 F.2d 737, 744 (D.C. Cir. 1986) ("[B}ecause the petitioners have been directly affect ed by the [FCC's] forbearance policy, and have raised their objection in a timely fashio n, we will permit them to intervene in ACLU v. FCC, {another review of an agency order]."); Bales v. National Labor Relations Bd., 914 F.2d 92, 94 (6th Cir. 1990) ("Because the [inter venor] has a substantial interest in the outcome of the petition [for review of an order of the NLRB ], the Court granted its petition to intervene pursuant to Fed. R. App. P. 15(d)."). 2. In this case Halliburton has been and will be directly and substantially affected by the rule promulgated by respondent U.S. Environmental Protec tion Agency ("EPA") that has been challenged by petitioner Legal Environmental Assistance Foundation, Inc. ("LEAF") in this proceeding. In adopting the rule at issue here, EPA approv ed revisions to Alabama's Underground injection Control ("UIC") program for Class II underground injection wells. Those revisions were proposed by the Alabama Oil and Gas Board to hydraulic fracturing of coalbeds in connection with the production of IXOI JA('K 1 10534a I 7 regulate so-called coalbed methane gas. The 0 Alabama regulations brought hydraulic fracturing activities associated with coalbed methane gas production wells within the State's Class II UIC program for the first time. 3. Hydraulic fracturing is a longstanding practice in the oilfield services industry, dating back to 1947. Halliburton is a $17 billion/year company, and one of the three largest hydraulic fracturing companies in the world. Halliburton was the first company in the world to use hydraulic fracturing to dramatically increase the productivity of an oil and gas well. Halliburton spends significant research and development dollars understanding and improving the techniques that are necessary to fracture a formation such as a coalbed successfully while ensuring that the fracturing does not adversely impact the formation or potential sources of drinking water in the vicinity. Halliburton currently employs 30 people in the State of Alabama , providing a full range of field services to assist in the exploration and production of oil and natural gas, including coalbed methane gas. Over 90 percent of the work Halliburton perform s in Alabama relates to the hydraulic fracturing of coalbed methane gas wells. 4. As a result of its ongoing involvement in the production of coalbed methane gas through hydraulic fracturing in Alabama, Halliburton is required to comply with Alabama's new regulations that have now been approved by EPA. As a result, Halliburton is being directly affected by EPA's approval of Alabama's program for the regulation of hydraulic fracturing. Moreover, if the petition for review were granted and EPA were required to impose more stringent requirements on hydraulic fracturing activities, Halliburton's business would be directly affected in ways that could have significant adverse effects on that business. As a result, Halliburton has a very substantial interest in the outcome of this proceeding. Consistent with this strong interest, J-Talliburton actively participated in the proceedings before EPA that led to the rule that petitioner now challenges. 8 DCW iAcKr10534w1 9 5. '9 While Halliburton's interests in this case are similar in many respects to the interests of respondent EPA, those interests are not identical and EPA will not fully represen t Halliburton's interests. In fact, the comments that Halliburton submitted to EPA in the course of the rulemaking proceeding at issue here were critical of EPA's proposed decision to approve the inclusion of certain provisions of Alabama's regulations for hydraulic fracturing that Halliburton believes are neither necessary nor appropriate in light of the absence of any substantiated cases of contamination of drinking water due to hydraulic fracturing activities. Moreover, as a company that has actually engaged for more than 50 years in the hydraulic fracturing activities that are the subject of the regulations at issue here, Halliburton has substantially greater expertise regarding hydraulic fracturing than either of the parties and can provide an informed and useful perspective on the issues before this Court. 6. This motion has been timely filed pursuant to Rule 15-3 of the Rules of the U.S. Court of Appeals for the Eleventh Circuit because it was filed with the clerk of the court and served on all parties within 35 days of the date the petition for review was filed. Therefore, Halliburton respectfully requests that this Court grant its motion to intervene in this proceeding. DCoI.JAcKr'1o5348.t 9 r Dated: Fevciii' y 2 S 2-ooo Respectfully submitted, L4 c. Thomas C. Jackson, Es KELLEY DRYE & WARREN LLP 1200 19th Street, N.W., Suite 500 Washington, DC 20036 (202) 955-9600 Attorneys for Intervenor Halliburton Energy Services, Inc. Of Counsel: Daniel M. Steinway. Esq. KELLEY DRYE & WARREN LLP 1200 19th Street, N.W., Suite 500 Washington, DC 20036 (202) 955-9600 Susan M. Ponce, Esq. HALLIBURTON ENERGY SERVICES, INC. 4100 Clinton Drive Building 0I-ÔO1A Houston, TX 77020 (713) 676-5209 10 I)CO1 JACKI 10534S () CERTIFICATE OF SERVICE I hereby certify that I have this 284L day of February, 2000, mailed a copy of foregoing Motion to Intervene via overnight mail, to: David A. Ludder, Esq. Legal Environmental Assistance Foundation, Inc. 1114 Thomasville Road, Suite E Tallahassee, Florida 32303 Patricia Ross McCubbin, Esq. Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice 601 D Street, N.W. - Suite 8000 Washington, D.C. 20004 William T. Watson, Esq. Watson, deGraffenried, Hardin & Tyra, LLP 1651 McFarland Boulevard North Tuscaloosa, Alabama 35406 Conrad P. Armbrecht, II, Esq. Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves P.O. Box 290 Mobile, Alabama 36601 Andrew Robert Greene Bradley Arant Rose & White LLP 2001 Park Place, Suite 1400 Birmingham, AL 35203-2736 DCOI •JAcKr1o5348. I IN THE UNITED STAT LfW AI FOR THE ELE ENTH C1RCUIED t. . LS cotjRr O PPEALs IEVENJH CPRCtJT LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC., ) LM± THOMAS . MiN Petitioner CLERK V. Case No. 00-1 0381-D UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent INTERSTATE OIL AND GAS COMPACT COMMISSION, In tervenor MOTION TO INTERVENE COMES NOW the Interstate Oil and Gas Compact Commission (herei nafter referred to as the "IOGCC") and, pursuant to Rule 15(d) of the Federal Rules of Appellate Procedure and 11th Circuit Rule 15-3, moves to intervene as a party in the above-capti oned proceeding. The 100CC seeks an order that will permit it to participate with full rights as briefs and be heard during oral argument. a party, including the right to file CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT The undersigned counsel for the Interstate Oil and Gas Compact Commission, in compliance with Rule 26 of the Federal Rules of Appellate Procedure and Rule 26.1-I of the Eleventh Circuit Rules, certifies that the following listed persons and parties have an interest in the outcome of the case: Alabama Department of Environmental Management American Petroleum Institute Interstate Oil and Gas Compact Commission Conrad P. Armbrecht, II attorney for River Gas Corporation and Dominion Black Warrior Basin, Inc. Beverly Banister, Deputy Director, Water Management Division, U.S. Enviro nmental Protection Agency, Region 4 Andrew Bartlett, Chief, Ground Water and UTC Section, Ground Water and Drinkin g Water Branch, Water Management Division, U.S. Environmental Protection Agenc y, Region 4 Connie Bosma, Chief, Regulatory Implementation Branch, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency Carol Browner, Administrator, U.S. Environmental Protection Agency Larry Cole, Ground Water and UIC Section, Ground Water and Drinking Water Branch, Water Management Division, U.S. Environmental Protection Agency, Region 4 James H. Curtin, U.S.E.P.A,, Office of General Counsel M. Stephen Danipier, Member, State Oil and Gas Board of Alabama Dominion Black Warrior Basin, Inc. Dominion Energy, Inc., parent corporation of Dominion Black Warrior Basin, Inc. Dominion Resources, Inc., parent corporation of Dominion Energy, Inc. Cynthia Dougherty, Director, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency Elizabeth Fellows, Deputy Director, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency C. Charles Fox, Assistant Administrator, Office of Water, U.S. Environmental Protection Agency Andrew Robert Greene, attorney for Coalbed Methane Association of Alabama John H. Hankinson, Jr., Regional Administrator, Office of Water, U.S. Enviro nmental Protection Agency E. Stallings Howell, Chief, Ground Water and Drinking Water Branch, Water Manag ement Division, U.S. Environmental Protection Agency, Region 4 Cecilia E. Kim, Environmental Defense Section, Environment and Natural Resources Division, U.S. Department of Justice Bruce J. Kobeiski, UTC Team Leader, Regulatory Implementation Branch, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency Dennis Lathem, Executive Director, Coalbed Methane Association of Alabam a Legal Environmental Assistance Foundation, Inc., petitioner David A. Ludder, General Counsel for the petitioner, L.E.A.F. Nancy March, Ground Water and Drinking Water Branch, Water Management Division, U.S. Environmental Protection Agency, Region 4 Gaines C. McCorquodale, Member, State Oil and Gas Board of Alabama Patricia Ross McCubbin, U. S. Dept. of Justice Mike McGhee, Director, Water Management Division, U.S. Environmental Protection Agency, Region 4 Cynthia Ann McMillian Reuben DeVaughn McMillian Matthew S. Metcalfe, Member, State Oil and Gas Board of Alabama Dana Minerva, Deputy Assistant Administrator, Office of Water, U.S. Enviro nmental Protection Agency Office of the Attorney General, State of Alabama Donald F. Oltz, State Oil and Gas Supervisor, State Oil and Gas Board of Alabam a Bill Pryor, Attorney General, Office of the Attorney General, State of Alabama Zylpha Pryor, U.S.E.P.A., Region IV Dana Regas, Acting Deputy Assistant Administrator, Office of Water, U.S. Enviro nmental Protection Agency River Gas Corporation Strudwick Marvin Rogers, Assistant Attorney General, State Oil and Gas Board ofAlaba ma B. Suzi RuhI, President, Legal Environmental Assistance Foundation, Inc. Louis J. Schiffer, Assistant Attorney General, U.S. Department of Justice State Oil and Gas Board of Alabama Jarred 0. Taylor II, Attorney for Interstate Oil and Gas Compact Commission U.S.E.P.A., respondent U.S.E.P.A., Region IV William T. Watson, attorney for River Gas Corporation and Dominion Black Warrior Basin, Inc. H. Thomas Wells, Jr., attorney for Interstate Oil and Gas Compact Commission As grounds for this motion, the 100CC shows unto the Court as follows: 1. The Interstate Compact to Conserve Oil and Gas was established on August 27, 1935, with the approval of the United States Congress. Presently, 30 states, includi ng Alabama, are members of the compact, now known as the Interstate Oil and Gas Compact Commission. The following states are members of the IOGCC: Alabam a, Alaska, Arizona, Arkansas, California, Colorado, Florida, Illinois, Indiana, Kansas , Kentucky, Louisiana, Maryland, Michigan, Mississippi, Montana, Nebraska. Nevada , New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Utah, Virginia, West Virginia, and Wyoming. The purpose of the 100CC is to promote the conservation and efficient recovery of domestic oil and natural gas resources, while protecting health, safety and the environment. Tony Knowles, Governor of Alaska, presently serves as Chairman of the 100CC. 2. The member states of the IOGCC have a substantial interest in the case at bar. 3. In this appeal, Petitioner Legal Environmental Assistance Foundation, Inc. (hereinafter referred to as "LEAF") appealed an order of the U.S. EPA approving the regulations of Alabama relating to the protection of underground sources of drinkin g water during the hydraulic fracturing of coal beds. 4. Hydraulic fracturing is an operation commonly utilized in the oil and gas industr y in the member states of the 100CC, and the decision of this Court will affect the regulatory practices of the member states of the 100CC. 5. Being the representative of all oil and gas producing states, if permitted to interve ne, the IOGCC will address the issues before this Court from the perspective of all oil and gas producing states-a perspective different from U.S. EPA and other persons who seek to intervene. Thus, the interests of the IOGCC and its member states are not adequately represented by the existing parties. WHEREFORE, PREMISES CONSIDERED, the IOGCC respectfully requests that the Court grant its Motion to Intervene as a party which will be aligned with Respondent EPA. ys for Interstate Oil and Gas Compact Commission OF COUNSEL: MAYNARD, COOPER & GALE, P.C. 1901 Sixth Avenue North 2400 AmSouth/Harbert Plaza Birmingham, Alabama 35203-2602 (205) 254-1000 CERTIFICATE OF SERVICE I hereby certify that I have this date mailed a copy of the foregoing Motioii to Intervene via U.S. Mail, postage prepaid and properly addressed to: David A. Ludder, Esq. Legal Environmental Assistance Foundation, Inc. 1114 Thomasville Road, Suite E Tallahassee, Florida 32303 Zylpha Pryor, Esq. U. S. Environmental Protection Agency, Region IV - EAD Sam Nunn Federal Building 61 Forsyth Street SW Atlanta, Georgia 30303 James H. Curtin, Esq. Office of General Counsel U. S. Environmental Protection Agency 401 M. St. S.W. Washington, D. C. 20460 Patricia Ross McCubbin, Esq. Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice 601 D. St. N.W., Suite 8000 Washington, D.C. 20004 Andrew Robert Greene Bradley, Arant, Rose, and White 2001 Park Place Suite 1300 Birmingham, Alabama 35203 William T. Watson, Esq. Watson, deGraffenried, Hardin & Tyra, LLP 1651 McFarland Boulevard North Tuscaloosa, Alabama 35406 Conrad P. Armbrecht, II, Esq. Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves P. 0. Box 290 Mobile, Alabama 36601 Strudwick Marvin Rogers Assistant Attorney General State Oil and Gas Board of Alabama P. 0. Box 869999 Tuscaloosa, AL 35486-6999 Done this r''ay of February, 2000. UNITED STATES COURT OF APPEA FOR THE ELEVENTH CIRCUIT LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC., L Petitioner, ((j ,, ,,,• . •' /5 ' Docket1jJQO7 I 03B1'I V. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. / PETITIONER'S RESPONSE TO MOTION TO INTERVENE BY HALLIBURTON ENERGY SERVICES. INC. Cert/icate of Interested Persons And Corporate Disclosure Statement Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26,1 to 26.3, Environmental Assistance Foundation, Inc. submits this Certificate Petitioner Legal of Interested Persons and Corporate Disclosure Statement. American Petroleum Institute Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves, Attorneys for River Gas Corporation and Dominion Black Warrior Basin, Inc. Conrad P. Armbrecht, II, Attorney for River Gas Corporation and Domin ion B lack Warrior Basin, Inc. Beverly Banister, Deputy Director, Water Management Division, U.S. Environmental Protection Agency, Region 4 Andrew Bartlett, Chief, Ground Water and UIC Section, Ground Water and Drinking Water Branch, Water Management Division, U.S. Environmental Protection Agency, Region 4 Connie Bosma, Chief, Regulatory Implementation Branch, Office of Groun d Water and Drinking Water, U.S. Environmental Protection Agency C-l T LEAF V. U.S. EPA, No. OO-10381-D Bradley, Arant, Rose & White, LLP, Attorneys for Coalbed Methane Association of Alabama Carol Browner, Administrator, U.S. Environmental Protection Agency Coalbed Methane Association of Alabama Larry Cole, Ground Water and UIC Section, Ground Water and Drink ing Water Branch, Water Management Division, U.S. Environmental Protection Agency, Regio n4 James H. Curtin, Office of General Counsel, U.S. Environmental Protec tion Agency M. Stephen Dampier, Member, State Oil and Gas Board of Alabama Dominion Black Warrior Basin, Inc. Cynthia Dougherty, Director, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency Elizabeth Fellows, Deputy Director, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency C. Charles Fox, Assistant Administrator, Office of Water, U.S. Enviro nmental Protection Agency Andrew Robert Greene, Attorney for Coalbed Methane Association of Alabama Halliburton Energy Services, Inc. John H. Hankinson, Jr., Regional Administrator, U.S. Environmental Protec tion Agency, Region 4 E. Stallings Howell, Chief, Ground Water and Drinking Water Branc h, Water Management Division, U.S. Environmental Protection Agency, Region 4 Thomas C. Jackson, Attorney for Halliburton Energy Services, Inc. Greg L. Johnson, Attorney for American Petroleum Institute Kelley, Drye & Warren LLP, Attorneys for Halliburton Energy Servic es, Inc. Cecilia E. Kim, Environmental Defense Section, Environment and Natura l Resources Division, U.S. Department of Justice C-2 LEAF v. U.S. EPA, No. OO-10381-D Bruce .1. Kobelski, UIC Team Leader, Regulatory Implementation Branch, Office of Ground Water and Drinking Water, U.S. Environmental Protection Agency Legal Environmental Assistance Foundation, Inc. Lisko & Kewis, Attorneys for American Petroleum Institute David A. Ludder, General Counsel, Legal Environmental Assistance Found ation, Inc. Nancy Marsh, Ground Water and Drinking Water Branch, Water Manag ement Division, US. Environmental Protection Agency, Region 4 Maynard, Cooper & Gale, P.C., Attorneys for Interstate Oil and Gas Compa ct Commission Gaines C. McCorquodale, Member, State Oil and Gas Board of Alabama Patricia Ross McCubbin, Environmental Defense Section, Environment and Natural Resources Division, U.S. Department of Justice Mike McGhee, Director, Water Management Division, U.S. Environment al Protection Agency, Region 4 Cynthia Ann McMillian Reuben DeVaughn McMillian Matthew S. Metcalfe, Member, State Oil and Gas Board of Alabama Dana Minerva, Deputy Assistant Administrator, Office of Water, U.S. Enviro nmental Protection Agency Office of the Attorney General, State of Alabama Donald F. Oltz, State Oil and Gas Supervisor, State Oil and Gas Board of Alabama Susan M. Ponce, Attorney for Halliburton Energy Services, Inc. Bill Pryor, Attorney General, Office of the Attorney General, State of Alabam a Zyipha Pryor, Office of Regional Counsel, U.S. Environmental Protection C-3 Agency, Region 4 LEAF v. U.S. EPA, No. OO-10381-D River Gas Corporation Dana Regas, Acting Deputy Assistant Administrator, Office of Water, U.S. Environmental Protection Agency Strudwick Marvin Rogers, Assistant Attorney General, State Oil and Gas Board of Alabama B. Suzi Ruhl, President, Legal Environmental Assistance Foundation, Inc. Louis J. Schiffer, Assistant Attorney General, U.S. Department of Justice State Oil and Gas Board of Alabama Daniel M. Steinway, Attorney for Halliburton Energy Services, Inc. Jarred 0. Taylor II, Attorney for Interstate Oil and Gas Compact Commission U.S. Environmental Protection Agency U.S. Environmental Protection Agency, Region 4 Christopher S. Vaden, Environmental Defense Section, Environment and Natura l Resources Division, U.S. Department of Justice William 1. Watson, Attorney for River Gas Corporation and Dominion Black Warrio r Basin, Inc. Watson, deGraffenried, Hardin, & Tyra, LLP, Attorneys for River Gas Corporation and Dominion Black Warrior Basin, Inc. H. Thomas Wells, Jr., Attorney for Interstate Oil and Gas Compact Commission Craig Wyman, Attorney for American Petroleum Institute DAVID A. LUDDER Attorney for Petitioner C-4 Petitioner Legal Environmental Assistance Foundation, Inc. opposes the interve ntion of Halliburton Energy Services, Inc. and as grounds therefore adopts the argume nts and authorities contained in Petitioner's Opposition to Motion to Intervene Filed By River Gas Dominion Black Warrior, Inc. included herewith. Respectfully submitted, DAVID A. LUDDER Attorney for Petitioner Address: Legal Environmental Assistance Foundation, Inc. 1114 Thomasville Road, Suite E Tallahassee, Florida 32303 Phone: (850) 681-2591 Fax: (850)224-1275 Corporation and CERTIFICATE OF SERVICE Pursuant to Fed. R. App. P. 25(b), 1 hereby certify that a copy of the foregoing has served upon the persons named below by delivery to a commercial overnight deliver been y service (Airborne Express) prepaid, and addressed to: William T. Watson Attorney for River Gas Corporaif on and Dominion Black Warrior Basin, Inc. Watson, deGraffenried, 1-lardin, & Tyra, LLP 1651 McFarland Boulevard North Tuscaloosa, Alabama 35406 Conrad P. Armbrecht, II Attorney for River Gas Corporation and Dominion Black Warrior Basin, Inc. Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves 1300 Riverview Plaza 63 South Royal Street Mobile, Alabama 36602 Andrew Robert Greene Attorney for Coal bed Methane Association ofAlabama Bradley, Arant, Rose & White, LLP 2001 Park Place, Suite 1400 Birmingham, Alabama 35203 J. Berry St. John, Jr. Craig Wyman Greg L. Johnson A tiorneys for American Petroleum Institute Lisko & Kewis One Shell Square, 50th Floor New Orleans, Louisiana 70139-5099 2 H. Thomas Wells, Jr. Jarred 0. Taytor 11 Attorneys for Interstate Oil and Gas Compact Commission Maynard, Cooper & Gale, P.C. 1901 Sixth Avenue North 2400 AmSouth/Harbert Plaza Birmingham, Alabama 35203-2602 Christopher S. Vaden Attorney for US. Environmental Protection Agency U.S. Department of Justice 601 I). Street, N.W. Washington, D.C. 20004 James I-I. Curtin Attorney for US. Environmental Protection Agency United States Environmental Protection Agency Office of General Counsel 401 M. Street, SW (2355) Washington D.C. 20460 Zyipha Pryor Attorneyfor US. Environmental Protection Agency U.S. Environmental Protection Agency Sam Nunri Atlanta Federal Center 61 Forsyth Street, S.W. Atlanta Georgia 303 03-8960 Strudwick Marvin Rogers Assistant Attorney General Attorney for State Oil and Gas Board ofAlabama 420 Hackberry Lane Tuscaloosa, Alabama 35486-8699 Thomas C. Jackson Attorney for Halliburton Energy Services, Inc. Kelley, Drye & Warren 1200 19th Street, N.W. Suite2O03fr SOC) Washington, D.C. 20036 3 II. II Done this Jj?l?day of M, 2000. QMW David A. Ludder J1 a UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION. NC., Petitioner, Docket No. 00-10381-D V. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. PETITIONER'S OPPOSITION TO MOTION TO INTERVENE FILED BY RIVER GAS CORPORATION AND DOMINIO N BLACK WARRIOR. INC. I. NATURE OF PROCEEDING Part C of the SDWA establishes a regulatory prog ram for the protection of underground sources of drinking water, See 42 U.S.C. § 300h to 300h-8. This program requires EPA to promulgate regulatio ns that set forth minimum requirements for state 1_TIC programs. Id. § 300h . A state must submit to EPA a proposed UIC program that meets these minimum req uirements, and receive EPA approval, in order to obtain primary regulatory arid enforcement responsibility for underground injection activities within that state . Ed. § 300h-1. The state retains primary responsibility until EPA determines, by rule, that the state UIC program no longer meets the minimum requirements establishe d under the SDWA. Id. § 300hI (b)(3). Legal Envtl. Assistance Found.. Inc. v. U.S. Envtl. Prot. Aencv, 118 F.3d 1467, 1469-70 (11 Cir. 1997). See also Legal Envtl. Assistance Found.. Inc. v. Board of County Conun'rs of Brevard County. Florida, 10 F.3d 1579. 1580 (11th Cir. 1994 ) (per curiam). If EPA promulgates a rule disapproving a state underground injection cont rol program, EPA must promulgate a federal underground injection control program for the state with in 90 days. 42 U.S.C. § 300h-l(c).1 EPA must provide opportunity for a public hear ing respecting any proposed rule (continued...) i) Alabama's underground injection control program for Class II wells2 was initially approved by EPA in 1982. In 1994, LEAF petitioned EPA to initiate proceedings to withdr aw approval of the program because it failed to regulate the injection of fluids associated with the hydraulic fracturing of coalbeds to enhance the recovery of methane gas. EPA denied LEAF' s petition and LEAF sought review in this Court. The Court granted LEAF's petition, held that the injection of fluids associated with the hydraulic fracturing of coalbeds is required to be regulat ed by the Safe Drinking Water Act, and remanded the matter to EPA for further proceedings. Legal Assistance Found., Inc. v. U.S. Envtl. Prot. Agency, 118 F.3d 1467 (11th Cir. Envtl. 1997). Following the Court's grant of a writ of mandamus to enforce its mandate, In re Legal Assistance Found.. Inc., No. 98-06929 (11th Cir. Feb. 18, 1999), and the subseq uent Envtl. initiation of proceedings by EPA to withdraw approval of the Alabama underground injectio n control program, see 64 Fed. Reg. 27744(1999) (proposed rule), Alabama submitted a revised underground injection control program to EPA. On January 19, 2000, EPA promulgated a rule approv ing Alabama's revised underground injection control program. 65 Fed. Reg. 2889 (2000). On January 25, 2000, LEAF tiled a petition for review of EPA's decision to approve Alabama's revised underground injection control program. In its Civil Appeal Statem ent, LEAF has preliminarily identified the issues as follows: I (, .continued) withdrawing approval of a state program, 42 U.S.C. § 300h- I (b)(4), and any propos ed rule imposing a federal underground injection control program. 42 U.S .C. § 300h- 1(c). See also 5 U.S.C. § 553(c). 2 A Class II well includes any well which injects fluids for enhanced the recovery of natural gas. 40 C.F.R. § 144,6(b). Whether the underground injection of hydraulic fracturing fluids through wells to enhance the recovery of methane gas from coal beds is "underground injection for the secondary or tertiary recovery of. . . natural gas" under 42 U.S.C. § 300h(b)(2) and therefore is not required to be regulated by the State of Alabama in strict compliance with the requirements of 40 C.F.R. Part 145. Whether wells which inject hydraulic fracturing fluids to enhance the recovery of methane gas from coal beds are "Class II wells" as defined in 40 C.F.R. § 144.6(b) and therefore are required to be regulated by the State of Alabama in strict compliance with the requirements for Class II wells in 40 C.F,R. Part 145. Whether the EPA-approved revisions to the underground injection control program for the State of Alabama which address the underground injection of hydraulic fracturing fluids through wells to enhance the recovery of methane gas from coal beds comply with the requirements of 40 C.F.R. Part 145. II. MOTION TO INTERVENE River Gas Corporation and Dominion Black Warrior Basin, Inc. (hereinafter, "movants") have moved to intervene in the above-captioned proceeding pursuant to Fed. R. App. P. 15(d). Rule 15(d) provides that a motion to intervene must contain a concise "statement of the interest of the moving party and the grounds for intervention." "[The] rule provides no standard for resolvin g intervention questions, but the [Supreme] Court has identified two considerations: first, the statutory design of the act and second, the policies underlying intervention in the trial courts pursuant to Fed. R. Civ. P. 24.' Texas v. U.S. Dep't of Energy, 754 F,2d 550, 551(5th Cir. 1985) (citing Int'l Union, United Auto., Aerospace and Agricultural Implement Workers v. Scofield. 382 U.S. 205,217 n. 10 (1965)). Accord, Bldg. & Constr. Trades Dep't. AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994). A. THE DESIGN OF THE SAFE DRINKING WATER AcT. The judicial review provision of the Safe Drinking Water Act is silent on the subject of intervention. 42 U.S.C. § 300j-7. However, the design of the Act provides evidence that the 3 movants' intervention at this juncture is premature. if this Court determines that EPA erred in its approval of Alabama's revised underground injection control program and remand s the matter to EPA for further proceedings, the statute provides the movants with three discret e opportunities to protect its interests from any adverse action by EPA. First, if after receiving instruc tions from the Court, EPA publishes a proposed rule disapproving the revised program, the statute provides the movants with an opportunity for a public hearing thereon. 42 U.S.C. § 300h-l (b)(4). U.S.C. § 553(c). Such a proposed rule would have no regulatory effect on the See also 5 movants. Moreover, if EPA subsequently promulgates afinal rule disapproving the revised progra m, such disapproval would have no regulatory effect on the movants. Second, if EPA then publish es a proposed rule prescribing a federal program for the state, the statute again provides the movants with an opportunity for a public hearing thereon. 42 U.S.C. § 300h-l (c). See also 5 U.S.C. § 553(c). Such a proposed rule would also have no regulatory effect on the movants. Only if EPA promulgates a final rule prescribing a federal program for the state would there be any regulat ory effect on the movants. When and if this occurs, the movants may seek judicial review, 42 U.S.C. § 300j-7 , or intervene in any pending proceeding for judicial review. LEAF submits that this statutory design militates against intervention at this time. B. THE POLICIES UNDERLYING FED. R. Civ. P. 24. Intervention under Rule 24(a) requires, among other things, that the applica nt claim an interest relating to the property or transaction which is the subject of the action; that the applicant be so situated that the disposition of the action may as a practical matter impair 4 or impede the 0 applicant's ability to protect his interest; and that the applicant's interes t is not adequately represented by existing parties.3 1. Tu MOVANTS' ECONOMIC INTERESTS ARE NOT LEGAL LY PROTECTED INTERESTS. Entervention of right must be supported by a direct, substantial, legally protect able interest in the proceeding. In essence, the intervenor must be at least a real party in interes t in the transaction which is the subject of the proceeding. Athens Lumber Co.. Inc. v. Federal Electio n Comm'n, 690 F.2d 1364, 1366(1 Ith Cir. 1982); Chiles v. Thornburh, 865 F.2d 1197, 1213-1 4(11th Cir. 1989). In this circuit, intervention of right has been denied when the intervenor-applicant 's claim was not supported by a legally protectable interest which was threatened in the pending litigati on. In United States v. South Florida Water Management Dist., 922 F.2d 704 (11th Cir.), denied, 512 U.S. 953 (1991), the court affirmed the district court's denial of interve ntion in several counts of the amended complaint because the intervenor-applicants failed to show that the pending proceedings threatened some property or other legal right.4 There, the United States claimed that Rule 24 also requires that a motion to intervene be filed in a timely manner. The timeliness of the movants' motion is not contested. In Count I of its amended complaint, the United States sought to have the court translate narrative water quality standards into numeric limits, a task usually reserved to the administrative agency. The intervention-applicants were determined to have a legally protec table right to participate and comment on the development of numeric limits by the administrative agency. The intervention-applicants were allowed to intervene in this count only because the litigation threatened the protection of that right. 922 F.2d at 708-09. If LEAF prevails in obtaining review and a remand of EPA's approval of Alabam a's revised underground injection control program, the movants will be afforded an opportu nity to comment on and challenge any new rules promulgated by EPA. 42 U.S.C. § 300h-1(b)(4), 300h-1(c); 5 U.S.C. § 553(c). 5 0 the defendant had violated state law by engaging in activities without the require d permits and had breached two contracts. Although the relief which might be granted could have impacted the economic interests of the intervention-applicants, the court rejected such interes ts as insufficient to sustain intervention. The court said: "By requiring that the applicant's interest be ... 'legally protectable,' it is plain that something more than an economic interest is necessary. What is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant." . at 710 (quoting New Orleans Public Serv.. Inc. v. United Gas Pipe Line Co., 732 F.2d 452,464 (5th Cir.) (en banc), cert. denied, 469 U.S. 1019 (1984)). In ManaSota-88, Inc. V. Tidwell, 896 F.2d 1318 (1! th Cir. 1990), plaintiff filed under the Federal Water Pollution Control Act (FWPCA) to compel the EPA a citizen suit to promulgate total maximum daily loads, or TMDLs, for waters in Florida which do not meet water quality because the State had failed to do so. An industry association (FCG) sought standards and was denied intervention. The court said: Although appellant contends that the relief requested could have a profound impact upon the environmental obligations of its member electric utilities, such a generalized grievance does not impart to FCG the kind of legally protectabte interes t in the ManaSota-88 litigation necessary to support intervention as of right. The only interest which the movants have identified in the case sub judice is their economic interest. While this interest may be of great importance to the movants, the movan ts have failed to explain how this interest is a legally protectable interest. The movants' interes t is no more than the economic interest which is associated with the possible futare imposition 6 of more restrictive pollution control requirements5 which were held to be insufficient to support intervention in several claims in United States v. South Florida Water Management Dist., 922 F.2d 704 (11th Cir.). denied, 512 U.S. 953 (1991). 2. THE OUTCOME OF THIS PROCEEDIG WILL NOT IMPAIR OR IMPEDE THE MOVANTS' ABILITY TO PROTECT ITS ECONOMIC INTERESTS. In ManaSpta-88, inc. v. Tidwell, 896 F.2d 1318 (11th Cit. 1990), an action under the FWPCA to compel EPA action, the court held that the disposition of the action would not as a practical matter impair the intervention-applicant's ability to protect its interests. The court said: Resolution of ManaSota-88's litigation in its favor will not produce any immediate effect on FCG and will not impede its ability later to be heard if specific rules are developed directly affecting FCG's interests. Appellant acknowledges that it would be permitted to participate in andjudicially challenge the results of any court-ordered rulemaking by the EPA, as it states it has done in the past. Similarly, resolution of this proceeding will not produce any immediate effect on the movants. This is so because Alabama's current underground injection control requirements will remain in place until EPA has proposed and promulgated a rule disapproving such requirements and proposed and promulgated federal regulations to supplant them. The movants' ability to participate in the development of these two rule making proceedings will not be impaired or impeded by the outcome of this proceeding. The movants' right to comment on any proposed regulations, 42 U.S.C. § 300h-1(b)(4), 300h-l(c); 5 U.S.C. § 553(c), and to judicially challenge any subsequently promulgated final regulations. 42 U.S.C. § 300j-7, remains undisturbed by this proceeding. The movants' alleged economic interests will not be impaired if the Court grants the petition for review and remands the agency action to the EPA for further action. The movants' economic interests will be implicated only f the EPA thereafter promulgates a rule disapproving Alabama's revised underground injection control program and thereafter promulgates a federal rule imposing more stringent operational requirements that make gas production less economical. 7 1) The outcome of this proceeding will not, as a practical matter, impair or impede the movants' ability to protect their economic interest. 3. THE MOVANTS' INTERESTS ARE ADEQUATELY REPRESENTED BY THE EPA. Fed. R. Civ. P. 24(a) prohibits intervention if the intervention-applicant's interests are adequately represented by existing parties. "When applicants for intervention seek to achieve the same objectives as an existing party in the case, that party is presumed to represent the applicants' interests adequately." Meek v. Metro. Dade County. Florida, 985 F.2d 1471, 1477(11th Cir. 1993). "Representation is adequate if no collusion is shown between the representative and the opposing party, if the representative does not have or represent an interest adverse to the proposed intervenor, and if the representative does not fail in fulfillment of his duty." !4. at 1478 (quoting Federal Say. and Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 215 (11th Cir. 1993)). In this proceeding, the objectives of the movants and EPA are the same: both seek to uphold EPA's approval of Alabama's revised underground injection control program. Since the objectives are the same, the movants' interests are presumed to be adequately represented by EPA.6 Furthermore, movants have not shown that there is collusion between EPA and LEAF, or that EPA has or represents an interest adverse to the movants, or that EPA has failed in the fulfillment of its duty. Absent any such showing, it is inappropriate to conclude that the movants' interests are not adequately represented by EPA. 6 To the extent that the movants assert that EPA will not adequately protect its economic interests, those interests are not legally prolectable interests and insufficient to authorize intervention. 8 T) IlL CONCLUSION For the foregoing reasons, LEAF submits that the movants' motion to intervene is due to be denied. DAVID A. LUDDER Attorney for Petitioner Address: Legal Environmental Assistance Foundation, Inc. 1114 Thomasville Road, Suite E Tallahassee, Florida 32303 Phone: (850) 681-2591 Fax: (850)224-1275 9 CERTIFICATE OF SERVICE Pursuant to Fed. R. App. P. 15(c) and 25(b), I hereby certify that a copy of the foregoing has been served upon the persons named below by delivery to a commercial overnight delivery service (Airborne Express) prepaid, and addressed to: William T. Watson Watson, deGraffenried, Hardin, & Tyra, LLP 1651 McFarland Boulevard North Tuscaloosa, Alabama 35406 Conrad P. Armbrecht, II Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves 1300 Riverview Plaza 63 South Royal Street Mobile, Alabama 36602 Christopher S. Vaden U.S. Department of Justice 601 D. Street, N.W. Washington, D.C. 20004 Strudwick Marvin Rogers Assistant Attorney General 420 Hackberry Lane Tuscaloosa, Alabama 35486-8699 and upon the persons named below by placing the same with the U.S. Postal Service, postage prepaid, and addressed to: Bill Pryor, Attorney General Office of Attorney General Alabama State House 11 South Union Street, Third Floor Montgomery, Alabama 36130 Done this 28th day of February, 2000. David A. Ludder 10 / UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT I L.( A I I I',FI (%AIr L'I',IA I LdN V 1IJ1N LVLJIN I J1,L ASSISTANCE FOUNDATION, INC. Petitioner, vs. I - .1 ) ) ) ) ) '\