AGO 96-F-015.

• Court: North Dakota

North Dakota Attorney General Opinions 1996. AGO 96-F-015. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-15Date Issued: July 26, 1996Requested by: Wes Norton Director, Oil & Gas Division- QUESTIONS PRESENTED - I. Whether an applicant for an underground injection permit under N.D. Admin. Code ch. 43-02-05 must satisfy all the elements set forth in N.D. Admin. Code § 43-02-05-03, concerning the definition of "exempt aquifers." II. Whether the Industrial Commission may use the authority of N.D. Admin. Code § 43-02-03-02 to grant exceptions to the requirements of N.D. Admin. Code § 43-02-05-03, concerning the definition of "exempt aquifers."- ATTORNEY GENERAL'S OPINION - It is my opinion that an applicant for an underground injection permit under N.D. Admin. Code ch. 43-02-05 is not obligated to satisfy all the elements set forth in N.D. Admin. Code § 43-02-05-03, concerning the definition of "exempt aquifers." It is my opinion that the Industrial Commission may use the authority of N.D. Admin. Code § 43-02-03-02 to grant exceptions to the requirements of N.D. Admin. Code § 43-02-05-03, concerning the definition of "exempt aquifers," provided that the granting of an exception is not inconsistent with the objectives of the Commission's duty to protect underground sources of drinking water. - ANALYSES - I. Chapter 43-02-05 of the North Dakota Administrative Code governs the underground disposal of saltwater. Its purpose is to protect underground sources of drinking water. These rules are the result of the Safe Drinking Water Act of 1974 (SDWA). 42 U.S.C.A. §§ 300f-300j (1991). "The SDWA establishes a regulatory mechanism to insure the quality of publicly supplied drinking water." Phillips Petroleum Co. v. United States Environmental Protection Agency, 803 F.2d 545, 547 (10th Cir. 1986). The Environmental Protection Agency implements the Act, but may allow states to regulate underground injection if they meet the minimum requirements established by EPA. Id. at 548. North Dakota's program, N.D. Admin. Code ch. 43-02-05, has been approved by the EPA. 40 C.F.R. § 147.1750 (1995). Disposal into an underground source of drinking water is prohibited unless the source is an "exempted aquifer." N.D. Admin. Code § 43-02-05-02. An "exempted aquifer" is described in N.D. Admin. Code § 43-02-05-03. In preparing this...