EPA  816-2-01-002
                    Federal Register/Vol.  66,  No. 88/Monday, May  7, 2001/Proposed Rules
                                                                                      22971
Section of this Federal Register and
incorporated by reference herein.
  Dated: April 12, 2001.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 01-10989 Filed 5-4-01; 8:45 am]
BILLING CODE 6560-50-P
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 144 and 146
[FRL-6975-3]

Underground Injection Control
Program—Notice of Proposed
Determination for Class V Wells

AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice of Proposed
Determination.

SUMMARY: Today, the Environmental
Protection Agency (EPA) is proposing a
determination for all categories of Class
V injection wells not included in the
final rulemaking on Class V motor
vehicle waste disposal wells and large-
capacity cesspools (64 FR 68546,
December 7,1999). These include
shallow non-hazardous industrial waste
injection wells, large-capacity septic
systems, agricultural and storm water
drainage wells,  and other wells. The
Agency proposes that additional Federal
underground injection control  (UIC)
regulations are not needed at this time
to prevent Class V wells from
endangering underground sources of
drinking water (USDWs). The Agency
will, instead, implement its continuing
statutory obligations and use existing
authorities under the Safe Drinking
Water Act to protect USDWs from any
threatening underground injection
activities. This proposed determination
is based on The Class V Underground
Injection Control Study (EPA Document
               Number EPA/816-R-99-014, dated
               September 1999) and other information
               that has been placed in the public
               docket for comment.
               DATES: EPA will accept public
               comment, in writing, on the proposed
               determination and the 1999 Class V
               Study until July 6, 2001. The Class V
               Study can also be found on EPA's Web
               site at www.epa.gov/safewater/uic/
               cl5study.html.
               ADDRESSES: Send written comments to
               the UIC Class V, W-98-05 Comment
               Clerk, Water Docket (MC-4101); U.S.
               Environmental Protection Agency,  1200
               Pennsylvania Ave., NW, Washington,
               DC 20460. Comments may be hand-
               delivered to the Water Docket, U.S.
               Environmental Protection Agency, 401
               M Street, SW, East Tower Basement,
               Room 57, Washington, DC 20460.
                 Comments: Send one original and
               three copies of your comments and
               enclosures (including any references).
               Please submit all references cited in
               your comments.  Facsimiles (faxes) can
               not be accepted.  Commenters who
               would like EPA to acknowledge receipt
               of their comments should include a self-
               addressed, stamped envelope. To ensure
               that EPA can read, understand and
               therefore properly respond to
               comments, the Agency would prefer
               that commenters cite, where possible,
               the paragraph(s)  or sections in the
               notice or supporting documents to
               which each comment refers.
               Commenters should use a separate
               paragraph for each issue discussed.
                 Comments may also be submitted
               electronically to  ow-docket@epa.gov.
               Electronic comments must be submitted
               as an ASCII, WP5.1, WP6.1 or WPS file
               avoiding the use of special characters
               and form of encryption. Electronic
               comments must be identified by the
               docket number W—98—05. Comments
               and data will also be accepted on disks
               in WP 5.1, 6.1, 8 or ASCII file format.
   The record for this rulemaking has
been established under docket number
W-98-05 and includes supporting
documentation as •well as printed, paper
versions of electronic comments. The
record is available for inspection from 9
to 4 p.m., Monday through Friday,
excluding legal holidays at the Water
Docket, EB 57, USEPA Headquarters,
401 M., Washington, DO. For access to
docket materials, please call 202/260-
3027 to schedule an appointment.
FOR FURTHER INFORMATION CONTACT: For
technical inquiries, contact Joan
Harrigan-Farrelly, Office of Ground
Water and Drinking Water (mailcode
4606), EPA, 1200 Pennsylvania Ave,
NW, Washington, DC 20460. Phone:
202-260-7077. For general information,
contact the Safe Drinking Water Hotline,
phone 800-426-4791. The Safe
Drinking Water Hotline is open Monday
through Friday,  excluding Federal
holidays, from 9:00 a.m. to 5:30 p.m.
Eastern Standard Time.
SUPPLEMENTARY  INFORMATION: Affected
Entities: Although no new regulations
are being proposed, this notice applies
to owners or operators of any type of
Class V well that is not a large-capacity
cesspool or motor vehicle waste
disposal well, as described in 40 CFR
144.81(2) and (16), respectively. The
following table lists categories and
examples of entities that may have such
wells. This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by or interested in this action.
Other types of entities not listed in the
table could also  be interested in it. To
determine whether your injection well
is affected by this action, you should
carefully examine the applicability
criteria in 40 CFR 144.1(g). If you have
questions regarding the applicability of
this action to a particular entity, consult
the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
        Category
                        Examples of entities potentially affected by this action
Industry and Commerce
State and Local Govern-
  ment.
Federal Government
Farms, animal feeding operations, and other agricultural sites that drain excess surface or subsurface water into
  wells; sites that have storm water drainage wells, facilities operating large-capacity septic systems, or nonhaz-
  ardous waste disposal wells; facilities that extract minerals from brine and then inject the spent brine under-
  ground; mines that backfill materials into mine shafts, pipelines, or other holes that are deeper than they are
  wide; aquaculture facilities that dispose of wastewater in underground wells; solution mines that use injection
  wells in the recovery of minerals from ore bodies that have already been conventionally mined; sites that use in-
  jection wells as part of aquifer remediation activities; geothermal power plants that reinject fluids into the ground;
  facilities that  extract direct heat from geothermal fluids and then return  those fluids underground; and sites that
  use "open-loop" heat pump/air conditioning systems.
Municipalities that use storm water drainage wells; publicly owned treatment works that inject sewage treatment ef-
  fluent underground; State and local government entities that inject water underground for the purpose of aquifer
  recharge or aquifer storage and recovery.
Any Federal Agency that owns or operates one of the above entities.

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Federal Register/Vol.  66,  No.  88/Monday,  May  7,  2001/Proposed Rules
 Table of Contents
 I. Background
   A. Statutory and Regulatory Framework
   B. Requirements Applicable to Class V

   C. History of this Rulemaking
   1.1987 Report to Congress
   2.1994 Consent Decree With the Sierra
     Club
   3.1995 Proposed Determination
   4.1997 Modifie'd Consent Decree
   5.1998 Proposal and 1999 Final Rule
   6.1999 Class V Study
   D. Scope of Today's Proposed
     Determination
 II. Factors Considered in Making the
     Proposed Determination
   A. Criteria Proposed in 1995
   B. Public Comments on the  1995 Proposed
     Approach
   C. Proposed Criteria for Today's Notice
 HI. Class V Wells Found to Have a Low
     Potential to Endanger in the 1995
     Proposal
   A. 1995 Proposed Finding
   B. Public Comments  on Well Types
   C. 1999 Class V Study
 IV. Other Class V Wells
   A. Sewage Treatment Effluent Wells
   1.1995 Proposed Finding
   2. Public Comments
   3.1999 Class V Study
   4. Proposed Determination
   B. Mine Backfill Wells
   1.1995 Proposed Finding
   2. Public Comments
   3.1999 Class V Study
   4. Fossil Fuel Combustion Waste Report to
     Congress
   5. Proposed Determination
   C. Storm Water Drainage Wells
   1.1995 Proposed Finding and 1998
    Proposal
   2. Public Comments
   3.1999 Class V Study
  4. Proposed Determination
  D. Large-Capacity Septic Systems
  1.1995 Proposed Finding
  2. Public Comments
  3.1999 Class V Study
  4. Guidelines for Management of Onsite
    Wastewater Systems
  5. Proposed Determination
  E. Agricultural Drainage Wells
  1.1995 Proposed Finding
  2. Public Comments
  3.1999 Class V Study
  4. Concentrated Animal Feeding
    Operations Proposal
  5. Proposed Determination
  F. Industrial Wells
  1.1995 Proposed Finding
  2. Public Comments
  3. Subsequent Actions
  4. Proposed Determination
V. Comment Solicitation

I. Background

A. Statutory and Regulatory Framework

  Class V wells are regulated under the
authority  of Part C of the Safe Drinking
Water Act (SDWA or  the Act) (42 U.S.C.
300h et seq.). The SDWA authorizes
EPA to protect the quality of drinking
                     water in the United States, and Part C
                     specifically mandates the regulation of
                     underground injection of fluids through
                     wells. The Agency has promulgated a
                     series of underground injection control
                     (UIC) regulations under this authority.
                       Section 1421 of the Act requires EPA
                     to propose and promulgate regulations
                     specifying minimum requirements for
                     effective State programs to prevent
                     underground injection that endangers
                     drinking water sources. EPA
                     promulgated administrative and
                     permitting regulations, now codified in
                     40 CFR parts 144 and 146, on May 19,
                     1980 (45 FR 33290), and technical
                     requirements in 40 CFR part 146 on
                     June 24, 1980 (45 FR  42472). The
                     regulations were subsequently amended
                     on August 27, 1981 (46 FR 43156),
                     February 3, 1982 (47 FR 4992), January
                     21,1983 (48 FR 2938), April 1, 1983 (48
                    FR 14146), July 26, 1988 (53 FR 28118),
                    December 3,1993  (58 FR 63890), June
                     10,1994 (59 FR 29958), December 14,
                     1994 (59 FR 64339), June 29, 1995 (60
                    FR 33926), and December 7,1999 (64 FR
                    68546).
                      Section 1422 of the Act provides that
                    States may apply to EPA for primary
                    enforcement responsibility to
                    administer the UIC program; those
                    States receiving such  authority are
                    referred to as "primacy States." Where
                    States do not seek this responsibility or
                    fail to demonstrate that they meet EPA's
                    minimum requirements, EPA is required
                    to prescribe a UIC program for such
                    States by regulation. These direct
                    implementation (DI) program
                    regulations were issued in two phases,
                    on May 11, 1984 (49 FR 20138) and
                    November 15,1984 (49 FR 45308). For
                    the remainder of this preamble,
                    references to the UIC Program
                    "Director" mean either the Director of
                    the EPA program (where the program is
                    implemented directly by EPA) or the
                    Director of the primacy State program
                    (where the State is responsible for
                    implementing the program). Also,
                    currently all UIC Programs in Indian
                    Country are directly implemented by
                    EPA. Therefore, for the remainder of
                    this preamble, references to DI programs
                    include UIC programs in Indian
                    Country.

                    B. Requirements Applicable  To Class V
                    Wells

                      The UIC regulations establish five
                    classes of injection wells. Class I wells
                    are used to inject hazardous and non-
                    hazardous waste beneath the lowermost
                    formation containing an underground
                    source of drinking water (USDW) within
                    one-quarter mile of the well bore. Class
                    II wells are used to inject fluids
                    associated with oil and natural gas
 recovery and storage of liquid
 hydrocarbons. Class in wells are used in
 connection with the solution mining of
 minerals from ore bodies that have not
 been conventionally mined. Class IV
 wells are used to inject hazardous or
 radioactive wastes into or above a
 formation that is within one-quarter
 mile of a USDW. (Class IV wells are
 generally prohibited by 40 CFR 144.13.)
 Class V wells are defined in the
 regulations as any well not included in
 Classes I through IV.
   Class V wells, other than motor
 vehicle waste disposal wells and large-
 capacity cesspools, are currently
 authorized by rule (§3 144.24(a) and
 144.84(a)). Rule authorization expires
 upon the effective date of a permit
 issued pursuant to § 144.25,144.31,
 144.33, or 144.34; upon meeting one of
 the conditions specified in § 144.84(b);
 or upon proper closure of the well as
 described in § 144.82(b). Existing Glass
 V motor vehicle waste disposal wells in
 "ground water protection areas" and
 "other sensitive ground water areas"J
 are banned with a provision that allows
 owners and operators of such wells to
 seek a waiver from the ban and obtain
 a permit (§ 144.88(b)). New Class V
 motor vehicle waste disposal wells and
 new and existing large-capacity
 cesspools were banned nationwide
 (§ 144.88(a) and (b)). These new
 requirements affecting motor vehicle
 waste disposal wells and large-capacity
 cesspools are minimum Federal
 standards—primacy States may impose
 more stringent requirements.
   In addition to these provisions, Class
 V UIC Program Directors have many
 obligations and  authorities under the
 SDWA to ensure the protection of
 USDWs. Specifically, the current
 regulations subject Class V wells to the
 general statutory and regulatory
  1A ground water protection area is defined in
§ 144.86(c) as a geographic area near and/or
surrounding community and non-transient non-
community water systems that use ground water as
a source of drinking water These areas receive
priority for the protection of drinking water
supplies and States are required to delineate and
assess these areas under section 1453 of the SDWA.
Other sensitive ground water areas are defined in
§ 144.85 (g) as additional State-defined areas that are
critical to protecting USDWs from contamination.
The other sensitive ground water areas may include
areas overlying sole-source aquifers; highly
productive aquifers supplying private wells;
continuous and highly productive aquifers at points
distant from public water supply wolls; areas where
water supply aquifers are recharged; karst aquifers
that discharge to surface reservoirs serving as public
water supplies; vulnerable or sensitive
hydrogeologic settings, such as glacial outwash
deposits, eolian sands, and fractured volcanic rock;
and areas of special concern selected based on a
combination of factors, such as hydrogeologic
sensitivity, depth to ground water, significance as
a drinking water  source, and prevailing land use
practices.

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                    Federal Register/Vol.  66, No. 88/Monday,-May .7, 2001/Proposed Rules
                                                                     22973
 prohibitions against endangerment of
 USDWs, as well as some specific
 requirements. Under § 144.12(a) and
 § 144.82(a), owners or operators of all
 injection wells, including Class V
 injection wells, are prohibited from
 engaging in any injection activity that
 allows the movement of fluid containing
 any contaminant into USDWs, if the
 presence of that contaminant may cause
 a violation of any primary drinking
 water regulation under 40 CFR part 141
 or may otherwise adversely affect
 human health. Sections 144.12(c), (d),
 and (e) prescribe mandatory and
 discretionary actions to be taken by the
 Director if a well is not in compliance
 with § 144.12(a). These actions may
 include requiring the well operator to
 apply for an individual permit, ordering
 such action as closure of the well to
 prevent endangerment, taking an
 enforcement action, and/or taking an
 emergency action.
  Owners or operators of Class V
 injection wells must also submit basic
 inventory and assessment information
 under § 144.26 and § 144.83. In
 addition, Class V wells are subject to the
 general program requirements of
 § 144.25  and § 144.84 under which the
 Director may require a permit, if
 necessary, to protect USDWs. Moreover,
 under § 144.27 and § 144.83, EPA may
 require owners or operators of any Class
 V well, in EPA-administered programs,
 to submit additional information
 deemed necessary to protect USDWs.
 Owners or operators who fail to submit
 the information required under
 §g 144.26, 144.27, or 144.83 are
 prohibited from using their injection
 wells.

 C. History of This Rulemaking
 1. 1987 Report to Congress
  In accordance  with the 1986
 Amendments to the SDWA, EPA
 summarized information on 32
 categories of Class V wells in a Report
 to Congress entitled Class V Injection
 Wells—Current Inventory; Effects on
 Ground Water; and Technical
 Recommendations, September 1987
 (EPA Document Number 570/9-87-
 006). This report presents a national
 overview of Class V injection practices
 and State recommendations for Class V
 design, construction, installation, and
 siting requirements. These State
recommendations, however, did not
give EPA a clear  mandate  on what, if
 any, additional measures were needed
to control Class V wells on the national
 level. For any given type of well, the
recommendations varied broadly and
were rarely made by more than two or
three States. For  example, the
 recommendations for septic systems
 range from further studies (3 States) to
 statewide ground water monitoring (1
 State). For industrial waste water wells,
 some States recommended immediate
 action and closure while others
 recommended monitoring and ground
 water evaluation studies.

 2.1994 Consent Decree With the Sierra
 Club
   On December 30,1993, the Sierra
 Club filed a complaint in the United
 States District Court for the District of
 Columbia alleging that EPA failed to
 comply with section  1421 of the SDWA
 regarding publication of proposed and
 final regulations for Class V injection
 wells. The complaint alleged that EPA's
 then current regulations regarding Class
 V wells did not meet the SDWA's
 statutory requirements to "prevent
 underground injection which endangers
 drinking water sources." (Complaint,
 Paragraph 15)
   To resolve the issue, EPA entered into
 a consent decree with the Sierra Club on
 August 31,1994. This consent decree
 required that, no later than August 15,
 1995, the Administrator sign a notice to
 be published in the Federal Register
 proposing regulatory action that fully
 discharges the Administrator's
 rulemaking obligation under section
 1421 of the SDWA, 42 U.S.C. 30 Oh, with
 respect to Class V injection wells. A
 final rulemaking on the matter was
 required to be signed by no later than
 November 15,1996.

 3.1995 Proposed Determination
   On August 15,1995, the
 Administrator signed a notice of
 proposed rulemaking that proposed a
 regulatory determination on Class V
 injection wells intended to fulfill EPA's
 obligation under the 1994 consent
 decree with the Sierra Club (60 FR
 44652, August 28,1995). In this notice,
 EPA proposed not to adopt additional
 Federal regulations for any types of
 Class V wells. Instead, the Agency
 proposed to address the risks posed by
 certain wells using existing authorities
 and a Class V management strategy
 designed to:  (1) Speed up the closure of
 potentially endangering wells, and (2)
 promote the use of best management
 practices to ensure that other Class V
 wells of concern do not endanger
 USDWs. Several factors led EPA to
propose this approach, including: (1)
 The wide diversity in the types of fluids
being injected, ranging from high risk to
not likely to endanger; (2) the large
number of facilities to be regulated; and
 (3) the nature of the regulated
 community, which consists of a large
proportion of small businesses.
 4. 1997 Modified Consent Decree
   Based on public comments received
 on the 1995 proposal, EPA decided to
 reconsider its proposed approach.
 Because this reconsideration would
 extend the time necessary to complete
 the rulemaking for Class V wells, EPA
 and the Sierra Club entered into  a
 modified consent decree on January 28,
 1997 (D.D.C. No. 93-2644) that
 extended the dates for rulemaking that
 had been in the 1994 decree. The
 modified decree requires three actions.
   First, by no later than June 18,1998,
 the EPA Administrator was required to
 sign a notice to be published in the
 Federal Register proposing regulatory
 action that fully discharged the
 Administrator's rulemaking obligation
 under section 1421 of the SDWA with
 respect to those types of Class V
 injection wells determined to be  high
 risk for which EPA did not need
 additional information. The
 Administrator was required to sign a
 final determination for these
 endangering Class V wells by no  later
 than October 29,1999. Thirty-day
 extensions were subsequently granted
 for both of these deadlines.
   Second, by no later than September
 30,1999, EPA was required to complete
 a study of all Class V wells not included
 in the first rulemaking on endangering
 Class V injection wells. Based on this
 study, EPA may find that some of these
 other types of Class V wells also
 endanger USDWs.
  Third, by no later than April 30, 2001,
 the EPA Administrator was required to
 sign a notice to be published in the
 Federal Register proposing to discharge
 the Administrator's rulemaking
 obligations under section 1421 of the
 Safe Drinking Water Act (SDWA) with
 respect to all Class V injection wells not
 included in the first rulemaking for
 Class V injection wells. The Consent
 Decree requires that the Administrator
 either (1) propose regulations fully
 implementing section 1421 with respect
 to all  such Class V injection wells, (2)
 propose a decision that no further
 rulemaking is necessary in order to  fully
 discharge the Administrator's
rulemaking obligations under section
 1421 with respect to all such Class V
 injection wells, or (3) propose
regulations fully implementing section
 1421 with respect to some of these
remaining Class V injection wells and
propose a decision that no further
rulemaking is necessary in order to  fully
discharge the Administrator's
rulemaking obligations under section
 1421 with respect to all other Class  V
 injection wells not already covered. The
Administrator must sign a final

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Federal  Register/Vol. 66, No. 88/Monday,  May 7, 2001/Proposed Rules
 determination for these remaining Class
 V wells by no later than May 31, 2002.
 5.1998 Proposal and 1999 Final Rule
  On July 29,1998 (63 FR 40586), in
 response to the first action required
 under the modified consent decree with
 the Sierra Club, EPA proposed revisions
 to the Class V UIC regulations that
 would add new requirements for three
 categories of Class V wells that were
 believed to endanger underground
 sources of drinking water. According to
 this proposal, Class V motor vehicle
 waste disposal wells in ground water
 protection areas (as defined in footnote
 1 above) would either be banned, or
 would have to get a permit that requires
 fluids released in those wells to  meet
 the drinking water maximum
 contaminant levels (MCLs) and other
 health-based standards at the point of
 injection. Class V industrial waste
 disposal wells in ground water
 protection areas also would be required
 to meet the MCLs and other health-
 based standards at the point of injection,
 and large-capacity cesspools in such
 areas would oe banned.
  EPA received substantial public input
 on the 1998 proposal. The input
 included 97 letters from public
 commenters as well as
 recommendations from the National
 Drinking Water Advisory Council
 (NDWAC). which formed a Federal
 Advisory Committee Act (FACA)
 working group to address Class V UIC
 and Source Water Protection Program
 integration issues. This FACA
 workgroup met twice in 1999 to  discuss
 the proposed Class V regulation. In
 addition, on May 21,1999 (64 FR
 27741), the Agency published a notice
 of data availability (NODA) and  further
 request for comment related to the 1998
 proposal. A total of 14 public comment
 letters were received in response to this
 request.
  Taking all the public input into
 account, EPA issued final revisions to
 the Class V UIC regulations on
 December 7,1999 (64 FR 68546). The
 final rule added new requirements for
 (l) existing motor vehicle waste
 disposal wells located in ground water
 protection areas delineated for
 community water systems and non-
transient non-community water systems
that use ground water as a source and
 in other sensitive ground water areas
 delineated by the States; and (2)  new
 and existing large-capacity cesspools
and new motor vehicle waste disposal
wells nationwide. The final rule,
however, did not adopt the proposed
 additional requirements for industrial
waste disposal wells to meet the MCLs
and other health based  standards at the
                    point of injection. Many commenters
                    questioned why the Agency chose to
                    regulate a wide range of industries with
                    different disposal practices with one
                    approach. Some commenters thought
                    the industrial category was too diverse
                    and types of industrial waste streams
                    should be regulated based on their
                    specific characteristics and risks. After
                    considering these comments, EPA
                    agreed that the industrial category is
                    diverse and represents a variety of waste
                    streams that required additional review
                    before deciding on the need for
                    additional Federal regulations.

                    6. 1999 Class V Study
                      On September 30,1999, in response
                    to the second action required under the
                    modified consent decree with, the Sierra
                    Club, EPA published a study of all Class
                    V wells not included in the 1998
                    proposal (EPA Document Number EPA/
                    816-R-99-014). The study consisted of
                    two major components: (1) An
                    information collection effort for the
                    remaining universe of Class V wells,
                    which was divided into 23 different
                    categories for the purpose of analysis;
                    and (2) an "inventory modeling"
                    exercise to estimate the number of storm
                    water drainage wells and large-capacity
                    septic systems, two types of wells that
                    were believed to be quite prevalent, but
                    for which adequate inventory
                    information was particularly lacking.
                      As described in detail in Volume 1 of
                    the final Study report, the information
                    collection effort consisted of a
                    comprehensive literature search, State
                    and EPA Regional data collection,
                   requests to the public for data, and peer
                   review. As part of the State and EPA
                   Regional data collection, the Agency
                    distributed nearly 700 questionnaires to
                   EPA Regional, State, and local program
                    staff in all 50 States and U.S. territories,
                   including staff responsible for Class V
                   well control on Indian Lands in EPA
                   Regions 5, 8, 9, and 10. The Agency
                   supplemented the information from the
                   questionnaires with follow-up
                   telephone interviews and on-site file
                   searches in 11 primacy States, 3 DI
                   States, and 2 Regional Offices with DI
                   States. The Agency also supplemented
                   the survey results with visits to a
                   number of injection well sites, including
                   geothermal electric power well sites in
                   California and food processing waste
                   disposal well sites in Tennessee and
                   Maine.
                     For the inventory modeling, EPA
                   selected and visited a sample of 99
                   census tracts across the nation to collect
                   data on the numbers of storm water
                   drainage wells and large-capacity septic
                   systems that exist and factors that
                   influence their prevalence. Storm water
 drainage wells were found in 22 of the
 99 census tracts visited and large-
 capacity septic systems were found in
 88 of the 99 census tracts visited. EPA
 used the data collected from the visits
 to develop mathematical models for
 predicting the numbers of these wells
 nationwide.

 D. Scope of Today's Proposed
 Determination
  Today's proposed regulatory
 determination addresses all of the Class
 V well types not covered by the 1999
 final rule, in response to the third action
 required under the modified consent
 decree with the Sierra Club. For the
 purpose of this  notice, these other well
 types are discussed in the following
 categories that track with the earlier
 proposals described above as well as the
 categories addressed in the Class V
 Study: Agricultural drainage wells,
 storm water drainage wells, large-
 capacity septic  systems, sewage
 treatment effluent wells, spent brine
 return flow wells, mine backfill wells,
 aquaculture waste disposal wells,
 solution mining wells, in-situ fossil fuel
 recovery wells, special drainage wells,
 experimental wells,  aquifer remediation
 wells, geothermal electric power wells,
 geothermal direct heat wells, heat
 pump/air conditioning return flow
 wells, saltwater intrusion barrier wells,
 aquifer recharge and aquifer storage and
 recovery wells,  subsidence control
 wells, and industrial wells (including,
 but not limited to, carwash wells, food
 processing waste disposal wells,
 laundromat wells, and non-contact
 cooling water wells). These categories
 are the same as  the ones defined in the
 existing regulations in 40 CFR § 144.81.
 However, in some cases the categories
 have been combined or separated to
 facilitate the discussion of the data and
 rationale used to support this
 determination. This  determination,
 however, does not propose to change
 the Class V well categories  currently
 defined in the UIC regulations to the
 ones discussed here.
  It is also important to clarify that this
 notice satisfies the Agency's obligations
 under the modified consent decree with
the Sierra Club, but it does not end
EPA's obligations, requirements, and
 actions to prevent Class V wells from
 endangering USDWs. As described in
 Section IB above, UIC Program
Directors have many obligations and
 authorities under the SDWA to ensure
the protection of USDWs from the risks
posed by Class V wells. The Agency will
 continue to fulfill these obligations and
using existing authorities for all Class V
wells (Section IV.F.3 below summarizes
some of the actions UIC Program

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                    Federal  Register/Vol. 66, No.  88/Monday, May 7, 2001/Proposed  Rules
                                                                     22975
 Directors take for Class V industrial
 wells using these existing authorities).
 In addition, nothing in this notice
 precludes a State or local government
 from promulgating requirements more
 stringent than the minimum Federal
 requirements. Also, today's proposed
 determination does not affect EPA's
 authority to impose any necessary
 regulations in the future on any of the
 well types addressed in today's notice.

 II. Factors Considered in Making the
 Proposed Determination

 A. Criteria Proposed in 1995
   The Agency proposed two criteria in
 1995 for evaluating the different
 categories of Class V wells to determine
 whether any category warranted
 additional regulation: the potential to
 endanger USDWs and the anticipated
 effectiveness of additional Federal
 regulation under the UIC program in
 preventing endangerment to USDWs.
   For wells with a low or no potential
 to contaminate USDWs, the Agency
 proposed that the then existing
 regulations provided sufficient
 authorities to handle the few cases
 where mismanagement of one of these
 wells could create an endangering
 situation. To assess the need for
 additional UIC regulation for the other
 wells, the 1995 proposal was guided by
 the following principles:
   (1) Additional Federal UIC regulations
 are not necessary where adequate State
 or local regulations are already in place,
   [2) Additional Federal UIC regulations
 are not necessary where the Class V
 wells are not the principal source of
 endangerment from a widespread
 environmental problem,
  (3) Additional Federal UIC regulations
 are not necessary where endangerments
 are localized problems, e.g., wells that
 are found only in one or two counties
 or in one or two States. For these wells,
 EPA will work with the States, if
 necessary, to bring about better controls,
  (4) Additional Federal UIC regulations
 are not necessary where other Federal
 programs address the endangerment
 caused by certain Class V wells.

 B. Public Comments on the 1995
 Proposed Approach
  EPA received 57 public comment
 letters on the 1995 proposal, several of
which addressed the proposed decision-
 making  criteria summarized above.
 Many comments supported the
Agency's proposal to not impose more
regulations for Class V wells based on
these criteria. However, EPA also
received a number of comments that
raised concerns about the overall
approach, including the above criteria
 and the related rationale proposed for
 some well types. The opposing
 comments are best represented by nine
 main points made by the Sierra Club,
 which are addressed in turn below.
   First, the Sierra Club asserted that
 blanket authorization of Class V wells
 by rule, based on any criteria, violates
 the SDWA. The basis for this comment
 was the Sierra Club's interpretation that
 SDWA requires EPA to prescribe
 regulatory standards for State programs.
 EPA disagrees that the Class V
 regulations violate the SDWA. SDWA
 section 142 l(b) requires EPA to issue
 regulations for effective State programs
 to prevent endangerment of drinking
 water sources by underground injection.
 The statute specifically States that the
 regulations "may permit a State to
 authorize underground injection by
 rule." Section 1421(b)(l)(A). EPA has
 provided such authority to States for
 Class V regulations; the authorization by
 rule requirements for such wells include
 requirements for reporting and avoiding
 endangerment of drinking water
 sources. As discussed in more detail
 below, EPA has found that these
 requirements are generally effective in
 preventing endangerment from the Class
 V wells discussed in today's proposed
 determination. Thus, EPA has met the
 statutory mandate of prescribing
 regulations for "effective" State
 programs "to prevent *  * *
 endangerment" from Class V UIC wells..
  Second, the Sierra Club stated that
 continued reliance on the non-
 endangerment provision in 40 CFR
 144.12 and the authority in 40 CFR
 144.25 to require a permit does not
 fulfill EPA's statutory duty to specify
 minimum requirements for State UIC
 programs. EPA disagrees with this
 analysis. The minimum requirements
 for State UIC Class V programs are
 specified in EPA's regulations; these
 include reporting and non-
 endangerment requirements. While
these may not be as specific and
 detailed as the requirements for the
 other UIC well classes, they are
nonetheless "minimum requirements
for * *  * (State) programs" as required
by SDWA section 1421(b). Because
these requirements, general as they are,
have been effective in preventing
endangerment from these wells, no
more is required under the statute.
  Third, the Sierra Club argued that the
existence of State or local regulations
does not justify a decision not to impose
more Federal regulations. While EPA
agrees that the mere presence of State or
local regulations governing UIC wells
does not justify a decision not to impose
Federal requirements under section
1421(b), such State or local regulations
 may be an important factor in
 determining the extent of
 "endangerment" from Class V wells and
 the "effectiveness" of additional Federal
 requirements. For example, as discussed
 below, in determining the extent of
 "endangerment" posed by various Class
 V well types, EPA relied heavily upon
 actual contamination incidents;
 however, the adequacy of State and
 local requirements was also a factor that
 helped EPA determine the likelihood of
 future contamination from such wells.
 Similarly, EPA believes that
 comprehensive State and local
 regulation of a Class V well type, such
 as septic systems discussed below, may
 make additional Federal regulation
 entirely duplicative, if not disruptive.
 Where such regulation exists, further
 Federal regulation may be futile in
 terms of ensuring "effective" State
 programs; rather, Federal efforts may be
 better focused on implementation of and
 education regarding existing regulations
 and programs than merely adding yet
 another layer of redundant or
 duplicative requirements. Thus, EPA
 continues to believe that the extent of
 State and local regulation remains a
 highly relevant consideration in meeting
 the section 1421(b) mandate. At its core,
 the statute clearly envisions that the UIC
 program be a State-run program and the
 Federal role is to ensure that existing
 State UIC programs become or remain
 effective in addressing any
 endangerments from underground
 injection wells.
  Fourth, the Sierra Club claimed that a
 decision not to impose additional
 regulations cannot be justified on the
 grounds that Class V wells are not the
 principal source of endangerment from
 a widespread environmental problem,
 because partial or incremental solutions
 are better than none at all. In order for
 this criterion to be valid, the Sierra Club
 asserted that EPA would have to show
 that additional Federal regulations yield
 a gain of trivial or no value. As noted
 below, EPA has dropped this criterion
 as a basis for deciding not to establish
 further regulations for Class V wells.
 However, EPA continues to believe that
 the extent of contamination from Class
 V wells, based on actual incidents of
 contamination, remains a critical factor
 in determining whether sufficient
 "endangerment" is posed by Class V
wells to warrant additional Federal
requirements.
  Fifth, the Sierra Club argued that EPA
 cannot decide against additional Class V
regulations based on a finding that
endangerments are localized problems.
According to the comment, nothing in
 SDWA exempts from regulation
endangerments that occur in one or a

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few places, and nothing prevents these
localized problems from emerging in
other areas in the future. While EPA
agrees that "endangerments" that are
"localized" may still warrant Federal
regulation since, as a factual matter,
most well contamination will endanger
only a localized area, EPA strongly
believes that additional Federal
regulation is not necessary where the
endangerment posed by a particular
well type appears to be isolated and
rare. No amount of Federal regulation
(or any other regulation) can prevent all
contamination; the fact that an isolated
incident of contamination from a UIC
well occurs does not mean that the State
program for that well is ineffective in
preventing endangerment. Rather, EPA
believes that under Section 1421(b)
Federal regulations for UIC wells are
reserved for situations, such as with
motor vehicle waste disposal wells
(addressed in the December 7,1999,
final revised Class V UIC regulations (64
FR 68546)), where existing State
programs are not generally "effective"
in preventing endangerment from
certain well types. With respect to
assurance that wells may not
contaminate in the future,  EPA believes
that it has a continuing obligation under
1421(b) to determine whether additional
Federal regulation is necessary for any
UIC well types. Today's proposed
determination does not affect EPA's
authority to impose any necessary
regulation in the future on any of the
well types addressed in today's notice.
  Sixth, the Sierra Club asserted that
EPA's duty to regulate under SDWA is
not removed by other Federal programs
that also address Class V wells.
Moreover, the fact that Federal programs
overlap  in subject matter is no obstacle
to regulation, and in many cases, other
Federal  programs do not address the
endangerment fully. As discussed
below, EPA has not used other Federal
programs as a criterion for determining
whether to impose additional UIC
requirements in today's notice.
However, EPA does believe that the
existence of other Federal programs that
address Class V wells may be highly
relevant in determining whether an
"endangerment" exists and whether
additional SDWA regulation would be
"effective" in addressing that
endangerment.
  Seventh, the Sierra Club objected to
the proposal that additional regulations
could not be developed for some Class
V well types because of diversity in
local hydrogeologic conditions or in
types of fluids injected. According to
the Sierra Club, such variability is not
grounds for a regulatory exemption
under SDWA and could be addressed by
                    establishing targeted regulations for
                    more narrowly defined subcategories of
                    wells. While EPA agrees that such
                    diversity in conditions is not in itself a
                    reason for EPA to determine that
                    Federal regulations are unnecessary,
                    EPA believes that such diversity may be
                    a factor in determining whether  -
                    additional Federal regulation would
                    promote more "effective" State
                    programs to address the well type in
                    question.
                     Eighth, the Sierra Club commented
                    that the existence of large numbers of
                    regulated entities and an alleged lack of
                    facility-specific data do not justify a
                    decision not to regulate further. In
                    support of this comment, the Sierra
                    Club said that the size of a regulated
                    community is always workable, and that
                    EPA has an obligation to collect the data
                    necessary to perform its rulemaking
                    duties. EPA has not used either of the
                    factors Sierra Club mentions as a basis
                    for today's proposed determination.
                     Ninth, the Sierra Club argued that
                    EPA cannot decide against additional
                    regulations for some well types based on
                    the criterion that a large proportion of
                    the regulated community is comprised
                    of small businesses. Among other points
                    made in support of this argument, the
                    Sierra Club stated that SDWA creates no
                    exemption for small businesses and that
                    EPA did not show that the burden on
                    small businesses would be severe. EPA
                    has not used the type of regulated
                    community as a basis for today's
                    proposed determination.
                    C. Proposed Criteria for Today's Notice
                     EPA is proposing today to use the two
                    main criteria proposed in 1995—
                    potential to endanger USDWs and the
                    anticipated effectiveness of additional
                    Federal UIC regulation—to determine
                    whether other categories of Class V
                    wells warrant additional regulation. The
                    Agency is now better able to apply these
                    criteria using additional information
                    gathered from the 1999 Class V Study.
                    Based on the above comments and
                    responses, however, the Agency is
                    dropping from consideration some of
                    the principles used in 1995.
                     The potential to endanger USDWs is
                    by far the more important of the two
                    criteria, given the SDWA mandate to
                    ensure non-endangerment. EPA
                    evaluated this potential based in large
                    part on the record of documented
                    incidents of ground water and other
                    environmental contamination caused by
                    the operation of the different well types.
                    While the Agency also evaluated the
                    potential for such contamination based
                    on such factors as the quality of fluids
                    injected, the characteristics of the
                    injection zone, well design and
operating features, the vulnerability of
the wells to spills or illicit discharges,
and the adequacy of existing State and
Federal UIC programs for addressing
any potentially endangering situations,
EPA believes that the absence of
frequent, widespread, or significant
cases of actual contamination is
compelling evidence of a low potential
to endanger that does not warrant
additional Federal regulation at this
time.
  EPA considered the anticipated
effectiveness  of additional Federal UIC
regulation for only a few well  categories
for which a sound determination could
not be based on the potential to
endanger alone. In evaluating the
anticipated effectiveness of additional
regulation, EPA considered such factors
as the degree  to which additional
Federal UIC regulations would simply
duplicate existing State programs
without increasing the "effectiveness"
of these programs. While the Agency
also considered the possibility of the
UIC program  joining forces with other
existing or  emerging programs to
achieve greater results in an integrated
fashion, it did not use the existence of
other Federal programs that also address
Class V wells as a basis for deciding
against additional UIC regulation. In
addition, EPA did not use the diversity
in conditions, the existence of large
numbers of regulated entities, the lack
of facility-specific data, or the existence
of a large proportion of small businesses
as decision making criteria.

HI. Class V Wells Found To Have a Low
Potential To Endanger in the 1995
Proposal

A. 1995 Proposed Finding

  Based on the data available at the
time, the Agency proposed in 1995 (see
60 FR 44652,  August 28,1995) that
several types  of Class V injection wells
generally had a low potential to
endanger USDWs, including: (1) Salt
water intrusion barrier wells, (2)
subsidence control wells, (3) heat
pump/air conditioning return flow
wells, (4) spent brine wells, (5)
swimming pool and landslide control
wells (i.e., "special drainage" wells),
and (6) solution mining wells. This
finding was based on such factors as
good injection quality (e.g., comparable
to or better than the fluids in the
injection zone), appropriate well
construction and maintenance, injection
zone characteristics, and existing
regulatory oversight. In addition, EPA
found that the following well types
generally had a low-to-moderate or
moderate potential to endanger: (1)

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                                                                      22977
Aquifer recharge 2 and aquifer storage
and recovery wells, (2) aquifer
remediation, (3) geothermal direct heat
wells, (4) geothermal electric power
wells, (5) aquaculture wells, (6)
experimental technology wells, and (7)
in-situ fossil fuel recovery wells. In
general, EPA found that the fluids
injected into these wells were of lower
quality than those injected into the  six
types of wells first discussed above, but
well construction, operation, and
maintenance in combination with
locational factors and existing Federal
and State programs safeguard against
endangerment. In the case of in-situ
fossil fuel recovery wells, the Agency
also noted that no wells of this type
were known to be operating.

B. Public Comments on Well Types

  In response to the 1995 proposal, EPA
received no  comments on five of these
13 well types: (1) Salt water intrusion
barrier wells, (2)  subsidence control
wells, (3) special drainage wells, (4)
geothermal direct heat wells, and (5)
aquaculture  wells. EPA received limited
comments that did not disagree with the
Agency's characterization of the '
potential of the wells to endanger
USDWs for another five of these 13  well
types: (1) Spent brine return flow wells,
(2) solution mining wells, (3) aquifer
recharge and aquifer storage and
recovery wells, (4] aquifer remediation
wells, and (5) experimental technology
wells. Of the remaining wells, one
commenter disagreed with the Agency's
characterization of heat pump/air
conditioning return flow wells and
geothermal electric power wells as
having a low potential to endanger
USDWs. The commenter indicated that
heat pump/air conditioning return flow
wells could  allow the introduction of
contaminants (e.g., refrigerants, lead,
copper)  into ground water and possible
cross-contamination between aquifers.
In addition,  the commenter indicated
that electric  power geothermal injection
wells are "not innocuous" because high
temperatures and contaminants picked
up in the power plant may degrade
ground water. Another commenter
indicated that ground water in the
vicinity of five in-situ fossil fuel recover
projects has  been contaminated.
  2 EPA found that some aquifer recharge wells
pose a moderate to high threat of USDW
contamination when they are operated as dual
purpose wells that alternately withdraw water for
irrigation and inject irrigation drainage 'water. These
wells are more similar to other agricultural drainage
wells and are included below in the discussion of
agricultural .drainage wells.
 C. 1999 Class V Study
  The Class V Underground Injection
.Control Study (EPA/816-R-99-014,
 September 1999) presents additional
 information about each of these 13 well
 types that was collected following the
 1995 proposal. The Agency believes that
 this information confirms the findings
 proposed in 1995, although some of the
 supporting details are new or different.
 For example, in 1995, EPA found that
 there is little chance that fluids injected
 into spent brine return flow wells (in
 seven States) would reach USDWs
 because the wells were adequately
 constructed with multiple layers of
 protection and inject into deep confined
 formations. The Class V Study found
 that spent brine return flow wells
 regulated under Class V now only occur
 in two States and that in all cases the
 wells have individual permits and inject
 below the lowermost USDW. Similarly,
 in 1995 EPA found that salt water
 intrusion barrier wells have a low
 potential to contaminate USDWs
 because they generally inject fluids of
 equivalent or better quality than the
 injection zone fluids. The Class V Study
 found that waters of varying quality are
 injected into these wells, but typically
 the injected water meets primary and
 secondary drinking water standards. In
 addition, ground water monitoring and
 associated studies have shown no
 measurable adverse effects on either
 ground water quality or the health of the
 population ingesting the water when the
 injectate was treated wastewater
 effluent.
  Of the 13 well types in this group, the
 Class V Study identified reported
 contamination incidents associated with
 the operation of only three types. For in-
 situ fossil fuel recovery wells, the Class
 V Study confirmed the information
 submitted by a commenter that ground
 water contamination had occurred in
 the vicinity of in-situ fossil fuel
 recovery operations. The Class V Study
 also confirmed, however, that no wells'
 of this type are known to be in
 operation. For heat pump/air
 conditioning return flow wells, the
 Class V Study identified a few sites
 where ground water contamination has
 been reported. Thus, EPA agrees with
 the commenter who indicated that
 operation of these wells could result in
 ground water contamination. The
 available information indicates,
 however, that such occurrences are very
 rare in light of the estimated 35,000
 wells of this type in over 40 States. For
 aquifer remediation wells, the Class V
 Study identified a single reported
 contamination incident that resulted
 from an equipment failure, but
confirmed that these wells are
controlled as part of Resource
Conservation and Recovery Act (RCRA),
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA), and State remediation
programs in addition to the UIC
program.
  For electric power geothermal
injection wells, the Class V Study did
not identify any reported incidents of
USDW contamination, but the Class V
Study did find that injected fluids at
some plants may include a mixture of
surface water,  treated wastewater
effluent, and/or storm water in addition
to geothermal fluids. Thus, there  is the
potential for the injected fluids to
contain contaminants not present in the
geothermal fluids, as indicated by one
commenter. The Class V Study
confirmed, however, that geothermal
fluids used for power production are not
typically of potable quality, and that
typical well construction, operation,
and maintenance are not expected to
allow fluid injection into unintended
ground water zones.
  Based on the information available at
this time, including the Class V Study,
EPA concludes that the 13 wells types
discussed in this section have a low
potential to endanger USDWs. As a
result, EPA concludes that no additional
Federal regulations applicable to  these
wells are needed at this time. Where
isolated incidences of endangerment
occur or are threatened, EPA will use its
existing authorities to require
permitting, closure or corrective action
to address the  endangerment.

IV. Other Class V Wells

A. Sewage Treatment Effluent Wells
1. 1995 Proposed Finding
  EPA found that the overall potential
for sewage treatment effluent wells to
contaminate USDWs was moderate. The
Agency also found that the potential to
endanger USDWs ranged from low to
high, in large part due to the range in
the type of treatment provided prior to
injection. Specifically, the Agency
found that some wells inject clarified
effluent that has undergone secondary
or tertiary treatment and have a low
potential to endanger USDWs, but
effluent that has undergone only
primary treatment creates a higher
potential to contaminate USDWs.
Further, EPA found that the majority of
the wells of concern were located in
Florida and Hawaii and were being
addressed at the State level. Based on
this information, the Agency proposed
that no additional Federal regulations
•were needed at the time  for sewage
treatment effluent wells.

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Federal  Register/Vol. 66, No.  88/Monday, May 7, 2001/Proposed Rules
 2. Public Comments
   EPA received only one comment on
 its 1995 proposal for these wells. This
 commenter asserted that additional
 Federal regulations were needed
 because only a "majority" (and not all)
 of the wells with a high'potential to
 contaminate USDWs were being
 addressed at the State level.
 3.1999 Class V Study
   The Class V Study shows that more
 than 95 percent of documented sewage
 treatment effluent wells are located in
 five States: Arizona, California, Florida,
 Hawaii, and Massachusetts. Individual
 permits are required for the wells in all
 five of these States and the wells are
 prohibited in some situations (e.g., in
 ground water protection zones in
 Hawaii). Requirements in other States
 with sewage treatment effluent wells
 include minimum treatment
 requirements prior to injection (e.g.,
 secondary treatment, compliance with
 MCLs), compliance with MCLs outside
 the ground water discharge zone (at a
 designated compliance point),
 individual permits, and/or compliance
 with specified well construction and
 operating requirements.
   The Study identified approximately
 1,700 wells, but only two incidents in
 which ground water contamination was
 attributed to the injection of treated
 sewage effluent through a Class V well.
 One of these incidents occurred more
 than 25 years ago. Nutrient enrichment
 of surface waters, with resulting algal
 blooms, has also been reported in off-
 shore waters near some sites where
 effluent injection occurs in some coastal
 areas in Florida and Hawaii. This issue
 is receiving considerable research and
 regulatory attention. For example, EPA,
 the U.S. Geological Survey, the National
 Oceanic and Atmospheric
 Administration, the Florida Department
 of Environmental Protection, the
 University of South Florida, the
 University of Miami, the Florida Keys
 National Marine Sanctuary, and several
 other organizations have conducted
 studies to evaluate the impacts of
 sewage disposal, including the injection
 of sewage treatment effluent in Class V
 wells, on offshore water quality. These
 studies suggest that the operation of
 sewage treatment effluent wells and
 other disposal practices in the Florida
Keys can lead to rapid nutrient
 enrichment and fecal contamination of
marine waters in the Keys, although the
concentrations eventually reaching
surface waters are greatly diluted. To
combat this problem, Florida currently
requires sewage treatment effluent wells
to be individually permitted and to meet
                   primary drinking water standards at the
                   point of injection. In addition, owners
                   or operators of sewage treatment      t
                   effluent wells in Monroe County, which
                   encompasses the Keys, are required as
                   part of the Class V operating permit
                   application to provide reasonable
                   assurance that operation of their wells
                   will not cause or contribute to a
                   violation of surface water quality
                   standards.

                   4. Proposed Determination

                     Based on the information available at
                   this time, including the Class V Study,
                   EPA concludes that sewage treatment
                   effluent wells have a low potential to
                   endanger USDWs due to a combination
                   of factors. These factors, which may
                   vary from well to well, include good
                   injection quality, well construction and
                   maintenance, and existing regulatory
                   oversight. The most pressing
                   documented problem—injectate
                   migration and contamination of offshore
                   water and coral reefs in the Florida
                   Keys—is already being studied by many
                   researchers and addressed at both the
                   Federal and State levels. The incidence
                   of contamination from these wells has
                   also been rare. Thus, EPA proposes that
                   no additional Federal regulations
                   applicable to these wells are needed at
                   this time. The Agency will use its
                   existing permitting and enforcement
                   authorities as necessary to prevent any
                   sewage treatment effluent wells from
                   endangering USDWs.

                   B. Mine Backfill Wells

                   1.1995 Proposed Finding

                     In 1995, EPA found that mine backfill
                   wells,  in general, had a moderate
                   potential to contaminate USDWs. This
                   finding was in part based on the fact
                   that injected slurries had the potential
                   to react with acid mine water to
                   mobilize potential ground water
                   contaminants. However, USDWs
                   interconnected with, and therefore
                   potentially affected by the mine backfill
                   activities, were generally of moderate to
                   poor quality. In addition, mine backfill
                   injection had been shown to improve
                   overall ground water quality in some
                   situations, even when contaminants
                   were released from the injected slurry.
                   The 1995 proposed finding also
                   recognized that most backfill wells were
                   regulated under State water quality or
                   mining programs in addition to the UIC
                   program. Based on these considerations,
                   EPA proposed that additional Federal
                   regulations for these wells were not
                   needed at the time to ensure the
                   protection of USDWs.
 2. Public Comments
   Several comments on the 1995
 proposal were supportive of EPA"s
 determination that no additional UIC
 regulations were needed and
 specifically discussed the adequacy of
 current requirements for backfilling of
 hard rock mines. No commenters
 directly opposed the proposed
 determination, although one commenter
 indicated that they favored the addition
 of a general permit authority.

 3. 1999 Class V Study.
   The Study documented that mine
 backfill wells are used in many mining
 regions of the country to inject a
 mixture of water, sand, mill tailings, or
 other materials such as coal combustion
 ash and flue gas  desulfurization sludge
 into underground mines. Information
 collected and compiled in the Study is
 consistent with the information
 available in 1995 that showed that
 ground water quality within a mine is
 often poor (e.g., due to acid mine
 drainage) and that backfill wells are just
 one of many possible sources (including
 natural sources)  of ground water
 contamination. No incidents of
 contamination directly attributable to
 these wells were reported, and in some
 cases information shows that backfill
 wells have negligible or positive effects
 on ground water quality. In other cases,
 however, backfill material has been
 shown to leach contaminants more
 readily than predicted by standard tests
 and increase contaminant
 concentrations in ground water. The
 chance that backfill injection will
 contribute to ground water
 contamination is highly dependent on
 site conditions, such as site
 hydrogeology, mine mineralogy, backfill
 characteristics and injection practices.
  More than 90 percent of the
 documented mine backfill wells
 reported in the Study are located in four
 States that have primacy for the Class V
 portion of the UIC wells. Two of these
 States require individual permits for the
 wells while the other two States issue
 permits by rule as long as USDW
 endangerment does not result. Other
 States regulate mine backfill wells by
 rule authorizing them and
 implementing existing UIC authorities,
 or by issuing general (or area) permits or
 individual permits.

 4. Fossil Fuel Combustion Waste Report
to  Congress
  Also in 1999, EPA issued a Report to
 Congress on Wastes from the
 Combustion of Fossil Fuels (EPA 530-S-
 99-010). Based on the findings of this
report, comments and additional data

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                                                                    22979
received, and additional analysis of the
available information, the Agency made
a regulatory determination in May 2000
(65 FR 32214) that additional
regulations under Subtitle D of RCRA
and/or possibly modifications to
existing regulations established under
Surface Mining Control and
Reclamation Act (SMCRA) authority are
warranted when coal combustion wastes
are used to fill surface or underground
mines (i.e., minefilled). In making this
determination, the Agency explained
that although placement of coal
combustion waste in a mine has not
been documented to cause increased
damage to ground water, minefilling is
an increasingly common practice that
could present a danger to human health
and the environment under certain
circumstances (e.g., placement directly
into the  ground water). EPA found that
available information indicates that if
the chemistry of the mine relative to the
chemistry of the coal combustion wastes
is not properly taken into account, the
addition of coal combustion wastes to
certain environmental settings can lead
to an increase in hazardous metals (e.g.,
arsenic) released into the environment.
The Agency also noted that management
of coal combustion wastes in the
presence of acid-generating pyritic
wastes has caused metals to leach from
the combustion wastes at much higher
levels than are predicted by leach test
data for  coal combustion wastes •when
strongly acidic conditions are not
present. Further, the Agency noted that
a recent study of cement kiln dust
showed  that placement directly in
contact with ground water led to
substantially greater release of
hazardous metal constituents than EPA
predicted would occur when not placed
in ground water.
  In addition, EPA explained that there
are few States that operate
comprehensive programs that
specifically address the unique
circumstances of minefilling, making it
more likely that damage to human
health or the environment could go
unnoticed. In particular, the Agency
found that government oversight has not
"caught up" with recent and rapidly
expanding minefilling of coal
combustion wastes and that serious gaps
exist in State programs, such as a lack
of adequate controls and restrictions on
unsound practices, e.g., no requirement
for ground water monitoring and no
control or prohibitions on waste
placement in the aquifer.
5. Proposed Determination
  Based on the information available at
this time, EPA concludes that mine
backfill wells generally have a low
potential to endanger USDWs because
no incidents of contamination directly
attributable to these wells were
reported, and in some cases information
shows that backfill wells have negligible
or positive effects on ground water
quality. As discussed above, however,
injection of coal combustion wastes may
threaten ground water under some
circumstances. The Agency has recently
initiated efforts to improve its
understanding of this potential threat to
ground water and address it for both
surface and underground minefilling
(including underground injection) using
the regulatory authorities of RCRA and/
or SMCRA. As a result, EPA proposes
not to develop  any additional Federal
UIC regulations applicable to mine
backfill wells at this time. Rather, the
Agency will continue to assess any
potential endangerment of USDWs by
individual mine backfill wells and
address any such potential
endangerment with existing permitting
and enforcement authorities and any
new requirements to be developed
under RCRA and/or SMCRA.

C. Storm  Water Drainage Wells

1.1995 Proposed Finding and 1998
Proposal
  EPA found that storm water drainage
wells had a moderate potential to
endanger USDWs. This proposed
finding considered the fact that storm
water can acquire contaminant loads
from streets, roofs, landscaped areas,
industrial areas, and constructions sites.
The most significant concern identified
was wells located in industrial settings
(e.g., near loading docks, process areas)
where chemical spills may occur and
enter the well unless a physical barrier
(e.g., berm) is present to contain a spill.
In other settings, EPA found that storm
water would normally not contain
contaminants in concentrations that
exceed drinking water standards.
Moreover, available contamination
studies did not show that area-wide
degradation of ground water quality had
resulted from storm water drainage
wells.
  Based on this information, EPA
proposed not to develop any additional
Federal UIC regulations applicable to
storm water drainage wells at that time.
However, recognizing the potential
concern associated with such wells at
industrial sites, EPA proposed to
categorize storm water drainage wells
located in industrial settings as
industrial wells unless an adequate
barrier is in place to prevent spilled
materials from entering the well.
According to the 1995 proposal, these
so-called "industrial drainage" wells
were to be addressed with additional
guidance as well as outreach and
education to make sure they did not
endanger USDWs.
  The Agency extended this proposal
for storm water drainage wells at
industrial sites as part of the 1998
proposal. Specifically, the Agency
proposed that industrial drainage wells
would be subject to the proposed new
requirement to meet MCLs at the point
of injection, just like  other kinds of
Class V industrial wells. This new
proposal, however, was predicated on
EPA's ability to establish a clear and
enforceable definition of an industrial
drainage well that would be subject to
the new requirement, versus a storm
water drainage well at an industrial site
that would not be subject to the new
requirement because  it had a low
potential to receive chemical spills or
highly contaminated  drainage. The 1998
proposal specifically requested public
comment on the practicality of making
this distinction (see 63 FR40598, July
29,1998 for more detail).

2. Public Comments
  No comments were received that
opposed EPA's 1995 proposed
determination that additional Federal
UIC regulations were not needed for
storm water drainage wells. However,
some comrnenters opposed EPA's
approach to considering wells located in
industrial settings to be industrial wells.
In particular, some comrnenters asserted
that industrial settings and acceptable
barriers •were not sufficiently well
defined. Other comrnenters indicated
that the barrier requirement was
impractical, that sound management
practices are at least as effective as
physical barriers in preventing
contaminants from reaching a well, and
that storm water wells at service stations
should not  be regulated as industrial
•wells.
  In response to the 1998 proposal,
some commenters supported EPA's
revised proposal that wells receiving
storm •water in industrial settings be
considered storm water wells (rather
than industrial wells) even if they had
the potential to receive •waste due to
leaks, drips, and spills as long as the
amounts of waste wpuld be
insignificant. Other commenters
maintained that wells with the potential
to receive any leaks, drips, or spills
should be considered industrial •wells.
Many commenters expressed concern
about EPA's proposed distinction
between storm water drainage wells and
industrial drainage wells at industrial
facilities and requested that EPA make
the distinction between the two types of
wells more clear and definitive. Still

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Federal  Register/Vol. 66, No.  88/Monday, May  7, 2001/Proposed  Rules
 other commenters requested that all
 storm water wells be subject to stringent
 requirements, with some commenters
 specifically suggesting a ban of storm
 water drainage wells in source water
 protection areas, in part due to their
 vulnerability to spills and misuse.
 3.1999 Class V Study
   The Study identified approximately
 71,000 documented storm water
 drainage wells and estimated that
 approximately 248,000 may actually
 exist in the United States. Despite this
 large number of wells operating
 throughout the country, the Study
 reports only 12 documented incidents of
 contamination of ground water by storm
 water drainage wells; eight of these
 incidents were associated with storm
 water drainage from industrial/
 commercial activities. In addition, the
 Study identified storm water drainage
 wells as potentially vulnerable to spills
 or illicit discharges if they are located
 near roadways, parking lots, and areas
 of commercial/industrial activities.
 However, these problems are more
 hypothetical than actual. About half of
 the States with storm water drainage
 wells permit these wells by rule while
 the other half have individual permit/
 registration systems. Four States ban the
 wells entirely or under certain
 circumstances. In addition, when
 industrial stormwater drainage wells are
 found, EPA Regions or States require
 them to either close or get a permit.
 4. Proposed Determination
   Based on the information available at
 this time, including the Class V Study,
 EPA concludes that additional Federal
 regulations under the UIC program are
 not required at this time. The available
 information indicates that
 endangerment of USDWs by storm water
 drainage wells occurs only rarely,
 considering the relatively small number
 of contamination incidents relative to
 the number of wells known or estimated
 to exist. Although there is a concern that
 storm water drainage wells may be
 vulnerable to spills and illicit
 discharges, there is little evidence that
 this is a problem other than at industrial
 facilities. Even at industrial facilities,
 endangerment of USDWs by storm water
 drainage wells does not appear to be a
 widespread problem but instead is
 limited to isolated, relatively infrequent
 incidents. To a much lesser extent, this
proposal is also based on the
 impracticality (as supported by public
 comments on the 1998 proposal) of
 distinguishing between industrial
 drainage wells that might be subject to
additional regulations and other storm
water drainage wells that would not.
                   Therefore, any attempt to target a new
                   regulation to the few isolated cases that
                   might pose an endangerment would also
                   capture and impose needless burdens
                   on many wells that are not a concern.
                   EPA believes the situation would be
                   better addressed by continuing to use
                   existing authorities to close or otherwise
                   address problem wells on an individual
                   basis to prevent these wells from
                   endangering USDWs. In doing so, the
                   Agency will coordinate the efforts of the
                   UIC program with those of the National
                   Pollutant Discharge Elimination System
                   (NPDES) storm water program.

                   D. Large-Capacity Septic Systems

                   1.1995 Proposed Finding

                     EPA found that large-capacity septic
                   systems (LCSSs) do not pose a
                   significant national problem. This
                   assessment is different from that
                   contained in the 1987 Report to
                   Congress on Class V Injection Wells
                   (EPA 570/9-87-006) because that report
                   considered systems that receive
                   industrial and commercial wastes
                   whereas LCSSs as now defined receive
                   only sanitary waste.3 In addition, the
                   Report to Congress considered single-
                   family systems, which are not within
                   the scope of the UIC program. EPA also
                   found in 1995 that insufficient spacing
                   between systems was the major cause of
                   ground water contamination from
                   LCSSs. The Agency concluded that land
                   use planning and siting requirements
                   tailored to local conditions by State and
                   local authorities, coupled with
                   additional UIC program implementation
                   and technical guidance, was the most
                   effective approach to protecting USDWs.

                   2. Public Comments

                     Some commenters supported EPA's
                   proposed finding that no additional UIC
                   regulations  were required as well as the
                   Agency's plan to issue  guidance, while
                   some other  commenters argued that
                   LCSSs should be excluded from UIC
                   regulation altogether. Other commenters
                   supported additional Federal
                   regulations, including suggestions that
                   EPA require ground water elevation
                   monitoring, establish monitoring
                   provisions and management strategies to
                   address loss of system integrity, require
                   individual permits, or ban septic
                   systems in sensitive ground water areas.
                   One commenter argued that State and
                   local programs with tailored standards
                   to prevent ground water endangerment
                   by LCSSs were not in place.
                    3 The Agency considers systems that do not
                   receive solely sanitary waste to be industrial wells
                   rather than LCSSs.
 3.1999 Class V Study
   The Study identified three
 documented cases of ground water
 contamination incidents attributable to
 LCSSs and 24 documented cases of
 system failures where the extent of
 resulting ground water contamination, if
 any, is not known. Thus, the prevalence
 of contamination cases appears to be
 low relative to the number of systems in
 use (approximately 350,000), even if
 there are additional LCSS failures
 (which seems likely) that were not
 identified during the Study. The Study
 also found that LCSSs are used
 nationwide and that although all States
 have applicable regulations, the
 regulations vary from stringent siting,
 construction, and operating
 requirements to general construction
 permitting. State regulations also vary
 with respect to the size standard
 definitions that determine which
 systems are considered "large" (and
 thus subject to UIC regulation) rather
 than small.

 4. Guidelines for Management of Onsite
 Wastewater Systems
   On October 6, 2000, EPA published
 for review and comment a draft of its
 Guidelines for Management of Onsite/
 Decentralized Wastewater Systems and
 an outline for a guidance manual that
 will supplement the guidelines
 addressing all sizes of septic systems.
 EPA's development of these guidelines
 was described in the Clean Water
 Action Plan released by the Agency in
 1998 and is in response to State agency
 reports that septic systems, which are
 predominantly single family septic
 systems, constitute the third most
 common source of ground water
 contamination because systems have
 failed due to inappropriate siting or
 design or inadequate long-term
 maintenance. Thus, the purpose of the
 guidelines is to raise the quality of
 management programs, establish
 minimum levels of activity, and
 institutionalize the concept of
 management for all sizes of septic
 systems. The guidelines apply to both
 existing and new septic systems and to
 systems of any size for residential and
 commercial wastewater treatment and
 disposal. The guidelines contain a set of
 model programs that rely on
 coordinating responsibilities and
 actions among the State, tribal or local
regulatory agency, the management
 entity or service provider, and the
 system owner.

 5. Proposed Determination
  Based on the information available at
this time and the actions the Agency is

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                   Federal Register/Vol. 66, No.  88/Monday, May 7, 2001/Proposed  Rules
                                                                    22981
currently undertaking to improve the
performance of septic systems through
the development of management
guidance, EPA concludes that
additional Federal regulations under the
UIC program are not required at this
time. This conclusion is reached
because (1) based on the results of the
Class V Study, actual contamination
from these wells is relatively isolated
and (2) an additional layer of Federal
UIC requirements, placed on top of
existing State and local LCSS
regulations, would not be effective in
further preventing endangerments from
these wells. EPA believes that the
development and implementation of
management guidance is a preferable
approach to development of additional
UIC requirements for preventing
endangerment of ground water by
LCSSs for several reasons. First, the
approach is comprehensive—it address
all types and sizes of septic systems, of
which LCSSs regulated under the UIC
program are just one small part. Second,
use of an integrated and comprehensive
approach for all septic systems will
expedite implementation and avoid
potential confusion or disruption of
current programs that have varying
approaches to distinguishing "large"
from "small" systems. Third, the
management guidance approach is
designed to accommodate regional
differences in environmental sensitivity
and the level of management activities
needed to achieve water quality and
public health protection. Finally, this
approach avoids the additional
administrative burden on States and the
regulated community that would come
from additional Federal UIC regulations
that the Agency believes are not likely
to be effective in preventing
endangerments from these wells. This is
chiefly due to the fact that existing State
and local requirements are already more
specifically tailored to local hydrologic
conditions than new Federal UIC
regulations could be. Adding another
layer of generalized Federal
requirements will not add any real safe
guards in protecting underground
sources of drinking water. EPA believes
that any gap in environmental
protection associated with these wells is
caused by a lack of effective and proper
implementation, not a lack of standards;
thus additional standards would not
address this problem. Rather, EPA's
approach is to spur better
implementation of existing standards.

E. Agricultural Drainage Wells
1.1995 Proposed Finding
  Based on the 1987 Report to Congress,
EPA found that agricultural drainage
wells have a high potential to
contaminate USDWs because they may
inject sediment, nutrients, pesticides,
metals, and pathogens. The Agency also
found that additional Federal UIC
regulations for agricultural drainage
wells were not likely to be effective in
protecting USDWs in agricultural areas
due to the wide range of contamination
sources such as fertilizer and pesticide
application and land use practices. In
addition, EPA found that agricultural
drainage wells were concentrated
primarily in three States. As a result,
EPA concluded that it could best
achieve the goal of protecting USDWs
from contamination by agricultural
drainage wells by assisting States in
promoting the use of best management
practices (BMPs) that are best suited to
local conditions and to addressing
potential ground water contamination
sources in a holistic fashion. EPA
proposed not to develop any additional
Federal UIC  regulations applicable to
agricultural drainage wells and instead
to rely on technical guidance, existing
authorities (such as requiring a permit
under 40 CFR 144.12), and other Agency
programs targeted at improving the
quality of agricultural runoff.

2. Public Comments
  One commenter opposed EPA's
finding that no new UIC regulations
were necessary or appropriate given
other EPA reports that indicated
agricultural runoff was a widespread
threat to drinking water quality in the
midwest. Another commenter indicated
that EPA's finding failed to meet the
requirements of the SDWA because the
Agency may choose not to regulate only
if it demonstrates that injection will not
endanger USDWs. Two commenters
indicated that the guidance document
that EPA proposed to develop to
facilitate implementation of BMPs
should be developed with State input
and public review and comment.

3.1999 Class V Study
  The Class V Study identified four
documented cases of ground water
contamination clearly attributable to
agricultural drainage wells. Two of
these cases occurred in the 1970's. In
addition, six other studies point to
agricultural drainage wells as
contributing to the more general
problem of nitrate contamination in
ground water in agricultural areas. The
Study also found that the potential for
agricultural drainage wells to endanger
USDWs is highest when the wells are
located near animal waste management
areas such as manure lagoons and/or in
settings where manure is land applied;
however, no actual cases of
contamination involving spills or leaks
from manure lagoons migrating through
agricultural drainage wells are known to
have occurred. In addition, the Study
found that more than 95 percent of the
approximately 1,100 documented wells
in the country are concentrated in just
five States (Idaho, Iowa, Ohio, Texas,
and Minnesota). Four of these five
States require individual permits/
authorizations or ban the wells under
certain circumstances. For example,
Iowa bans agricultural drainage wells in
areas that have anaerobic lagoons or
earthen manure storage structures, and
Minnesota bans wells that inject into an
aquifer, (i.e., saturated zone).
4. Concentrated Animal Feeding
Operations Proposal
  On December 15, 2000, the EPA
Administrator signed proposed
revisions to the NPDES permit
regulations and effluent guidelines that
would address the water quality impacts
of manure, wastewater, and other
process waters generated by
concentrated animal feeding operations
(CAFOs)  (66 FR 2960, January 12, 2001).
The proposal, which is a step in
implementing the EPA and U.S.
Department of Agriculture's Unified
Strategy for Animal Feeding Operations
developed in March 1999, would apply
to as many as 39,000 CAFOs across the
country. According to alternate
definitions that were proposed, CAFOs
would be defined as facilities that
maintain anywhere from 300 to more
than 1,000 "animal units" in
confinement, including cattle, swine,
turkeys, chickens, horses, sheep or
lambs, and ducks. The rule would apply
to production areas at CAFOs  (animal
confinement areas, manure storage
areas, raw material storage areas, and
waste containment areas) and  areas
under the control of CAFO owners or
operators where manure is land applied.
  The proposal explicitly recognizes
and addresses the risk of animal wastes
from CAFOs migrating through
agricultural drainage wells into ground
water that has a direct hydrologic
connection to surface waters.
Specifically, the proposal would
prohibit the application of animal
wastes within 100 feet of sinkholes and
intake structures or agricultural well
heads. EPA requested comment on the
presence of such features in crop land
and the extent to which the 100-foot
setback around such features would
interfere with the land application of
manure.
  The proposal includes several other
features that would have the effect of
protecting ground water quality and
reducing the endangerment associated

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Federal Register/Vol.  66, No. 88/Monday, May  7,  2001/Proposed Rules
 with agricultural drainage wells at or
 near CAFOs. For example, for animal
 confinement and manure storage areas,
 the proposal would adopt a zero
 discharge requirement with no overflow
 allowance for swine, veal, and poultry
 CAFOs, would require routine
 inspections of the production area to
 ensure that wastewater and manure
 handling and storage are functioning
 properly, and would require proper
 closure of manure storage units. The
 proposal also would require CAFO
 operators to land apply manure at
 proper agronomic rates, which would
 reduce the potential for excess manure
 and associated contaminants to migrate
 overland or underground into
 agricultural drainage wells.
 5. Proposed Determination
   Although there are potential concerns
 associated with agricultural drainage
 wells,  EPA does not believe the
 available information on contamination
 incidents and the potential for these
 wells to endanger USDWs suggests the
 need to develop additional Federal UIC
 requirements at this time. The incidence
 of contamination from these wells is
 very low. States  where the vast majority
 of agricultural drainage wells are known
 to exist are already implementing
step to address the greatest remaining
threat identified for these wells: the
potential for contamination from large
manure lagoons and from the land
application of manure. EPA will
continue to look for situations where
these and other threats might exist and,
if found, take action on a case-by-case
basis to prevent endangerment using
existing authorities.
F. Industrial Wells
1.1995 Proposed Finding
  In the 1995 proposal, industrial wells
were defined to include Class V motor
vehicle waste disposal wells and other
kinds of wells used to inject industrial
and commercial waste that did not fall
into one of the other proposed
categories of Class V wells. Using this
broad definition, the 1995  proposal
found that some types of industrial
wells may have a high potential to
endanger USDWs. The Agency,
however, proposed that these wells are
best addressed using existing authorities
and that additional Federal UIC
regulations to protect USDWs would be
inappropriate. One of the main reasons
for this position was the diversity in the
types of fluids being injected into
industrial wells, which would make  it
difficult to establish one set of national
                    minimum requirements. Another
                    important reason was a lack of facility-
                    specific data that EPA would need to
                    develop a tailored regulatory approach
                    appropriate to the different kinds of
                    industrial wells and their respective
                    degrees of endangerment.
                    2. Public Comments

                      While EPA received some comments
                    supporting the 1995 proposal for
                    industrial wells, such as from State
                    agencies that believed they already had
                    sufficient authority and knowledge to
                    address these wells, a number of
                    commenters opposed the 1995
                    approach. Much of the opposition came
                    from the Sierra Club. As discussed in
                    Section II.B above, the Sierra Club
                    stated that the diversity of fluids
                    injected into industrial wells is not
                    grounds for a decision against
                    additional Federal  regulations and
                    could be addressed by establishing
                    targeted regulations for more narrowly
                    defined subcategories of wells. The
                    Sierra Club further commented that EPA
                    has an obligation to collect any
                    additional facility-specific data deemed
                    necessary to perform its rulemaking
                    duties.                           >

                    3. Subsequent Actions

                     Based on public comments on the
                    1995 proposal, and in accordance with
                   the 1997 modified consent decree with
                   the Sierra Club, EPA issued a revised
                   proposal in 1998. This revision
                   proposed to separate motor vehicle
                   waste disposal wells from the other
                   kinds of industrial wells considered in
                   the 1995 notice, and to either ban motor
                   vehicle waste disposal •wells in ground
                   water protection areas or to require such
                   wells to be permitted. Other wells left
                   in the industrial well category, when
                   located in ground water protection
                   areas, would be required to meet MCLs
                   and other health-based standards at the
                   point of injection, according to the 1998
                   proposal. The 1999 final rule expanded
                   this approach for motor vehicle waste
                   disposal wells to include Other
                   Sensitive Ground Water Areas as
                   defined by the States. A final decision
                   on how to address the remaining
                   industrial wells was delayed, mainly
                   because of continuing public concern
                   that the industrial well category was
                   still too diverse and included many
                   kinds of wells that do not endanger
                   USDWs. Some State and EPA Regional
                   UIC programs also maintained that
                   additional Federal regulations for
                   industrial wells were unwarranted
                   because the programs already had ample
                   authority and were  already adequately
                   addressing these wells.
   Therefore, instead of finalizing the
 1998 proposal for other kinds of
 industrial wells not addressed by the
 1999 rule on motor vehicle waste
 disposal wells, EPA decided to conduct
 further review to decide whether
 additional Federal regulations are
 needed. This additional review
 consisted of the following three
 components, which are summarized in
 turn below: (1) public notice and review
 of additional information on
 contamination incidents potentially
 attributable to Class V industrial wells;
 (2) more detailed study of four specific
 types of Class V industrial wells; and (3)
 evaluation of Class V UIC program
 activities to address industrial wells
 using existing authorities.
   The NOD A EPA published on May 21,'
 1999 (64 FR 27741) presented additional
 information on, among other topics,
 contamination incidents potentially
 attributable to Class V industrial wells.
 That information was collected as part
 of the Class V UIC Study, which was
 still ongoing at the time, as well as from
 separate file searches conducted at the
 EPA Region II and Region VIII offices.
 All of the information was placed in
 EPA's Water Docket for public review
 when the NODA was published. As
 noted by several commenters on the
 NODA, and as determined upon review
 by EPA, these reported incidents do not
 provide compelling evidence of
 significant problems caused by Class V
 industrial wells. The primary limitation
 is that most of the incidents  are
 associated with illegally operating Class
 IV (i.e., shallow hazardous waste)
 injection wells, which are generally
 prohibited under the current UIC
 regulations, rather than Class V wells.
 EPA recognizes that this problem can be
 addressed by greater enforcement of the
 existing ban of Class IV wells and does
1 not necessarily require additional
 Federal regulations on Class V
 industrial wells. Moreover, many of the
 potential contamination incidents
 included in the NODA are more than 10
 years old and not relevant to today's
 practices, are based on anecdotal
 information or secondary references of
 questionable credibility, involve
 contamination that remained below
 levels of concern, are not clearly linked
 to Class V wells as opposed to other
 pollutant sources, and involve only
 possible contamination rather than
 actual documented contamination.
 Altogether, information from the Class V
 Study placed in the NODA revealed
 only three documented cases of
 contamination that site-specific reports
 clearly attribute to the operation of Class
 V industrial wells, and two of these '

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                    Federal Register/Vol.  66, No. 88/Monday,  May 7, 2001/Proposed  Rules
                                                                      22983
 cases were discovered in the 1970's and
 one was discovered in 1987. This is a
 very low contamination frequency
 considering the thousands of wells
 estimated to be operating, and it does
 not suggest a widespread current
 problem that warrants new Federal
 regulations.
   The Class V Study also included a
 more detailed examination of four
 specific types of Class V industrial
 wells: (1) Wells used to dispose of
 washwater at carwashes that do not
' clean undercarriages or engines; (2)
 wells used to dispose of food
 preparation-related wastewater and food
 processing equipment or facility wash
 down water; (3) wells used to inject
 fluids from laundromats where no
 onsite dry cleaning is performed or
 where no organic solvents are used for
 laundering; and (4) wells used to inject
 noncontact cooling water that contains
 no additives and has not been
 chemically altered. EPA does not
 believe the information compiled for
 these well types, presented in Volumes
 4, 6, 8, and 22, respectively, of the Class
 V Study report, demonstrates a potential
 to endanger that warrants additional
 regulation. For example, across all four
 well types, the Study found only one
 documented contamination incident
 (involving a lobster processing/holding
 facility in Maine) and two possible
 contamination incidents (involving
 carwashes in Hawaii). There remains
 concern about some wells at carwashes
 being vulnerable to spills or illicit
 discharges when an attendant is not
 onsite, but the Study did not find
 evidence showing that such problems
 associated with carwash wells are
 actually occurring and warrant the
 development of new UIC regulations.
  EPA also reevaluated how Class V
 UIC primacy States in their regions
 address industrial wells using existing
 authorities. Class V primacy States have
 demonstrated the ability to use existing
 authorities to take some form of action
 to ensure that Class V industrial wells
 do not endanger USDWs. Some States
 have an outright ban of industrial wells
 •while other States require permits for
 industrial wells. Some States ban the
 wells under some situations but permit
 them under others. When a previously
 unidentified industrial well is
 discovered, the existing UIC programs
 investigate the situation and decide on
 the best way to address it, which may
 include requiring the well to close or get
 a permit, depending on site-specific
 conditions and threats. Such follow up
 investigation and action is usually taken
 immediately after a Class V industrial
 well is discovered, or as soon thereafter
 as possible given a State's workload
relative to available resources to
implement the Class V portion of their
UIC program. Limited resources, not
regulatory authorities, appears to be the
primary factor that would constrain a
primacy State from taking immediate
action to address the risks posed by
Class V industrial waste disposal wells.
Therefore, an additional layer of Federal
regulation would providing no real safe
guards for protecting underground
sources of drinking water.
  In States where EPA directly
implements the Class V portion of the
UIC program, the EPA Regional Offices
always address endangering Class V
wells as soon as they are identified, as
a matter of routine policy under the
existing UIC regulations and authorities.
Although the exact nature and timing of
actions  required vary from one Regional
Office to the next, the DI programs
typically require endangering industrial
wells to close or get a permit, and
require  site investigation and
remediation in response to any
contamination that may have occurred.
Such actions have been found to send
a strong message to owners or operators
of uninventoried industrial wells that
they too should close their wells. EPA
also communicates this message
officially in outreach materials
distributed to well owners and operators
in DI programs and to staff in primacy
States for them to use as part of their
programs.

4. Proposed Determination
  The 1999 final rule included new
stringent regulations targeting the
subcategory of Class V industrial wells
believed to have the highest potential to
endanger USDWs at the time of the  1995
proposal: Motor vehicle waste disposal
wells. Further review of the remaining
types of Class V industrial wells (1)
indicates that they have not been the
source of frequent contamination
incidents and (2) confirms that existing
UIC programs in States where most
industrial wells are known to exist are
already  using existing authorities to
adequately address these wells and
protect USDWs. As a result, EPA does
not believe there is a need to develop
additional Federal UIC regulations
applicable to Class V industrial wells at
this time. Instead, the Agency will
continue to prevent endangerment from
individual wells using existing
authorities. This effort will include
enforcing the existing prohibition of
Class IV wells to prevent accidental or
illicit abuses of Class V industrial wells
and continuing to provide technical
assistance and support to State UIC
programs, where needed, to make sure
these wells are being adequately
 controlled. EPA also will explore
 additional opportunities to
 communicate UIC requirements and
 obligations to certain industry sectors in
 association with the effluent guideline
 program implemented under the Clean
 Water Act.

 V. Comment Solicitation

  EPA is soliciting public comment oh
 the underlying data and rationale
 supporting this proposed determination
 that additional Federal UIC regulations
 are not needed at this time to prevent
 Class • V wells from endangering
 underground sources of drinking water.
 This proposed determination is based
 on The Class V Underground Injection
 Control Study (EPA Document Number
 EPA/816-R-99-014, dated September
 1999) and other information that has
 been placed in the public docket for
 comment. Also, EPA is soliciting any
 new data or information relevant to the
 findings  in this proposed determination
 and the Class V injection well types it
 addresses.
  Dated: April 30, 2001.
 Diane C. Regas,
 Acting Assistant Administrator for Water.
 [FRDoc. 01-11413 Filed 5-4-01; 8:45 am]
 BILLING CODE 6560-50-U
DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG13

Endangered and Threatened Wildlife
and Plants; Notice of New Schedule for
Final Determination of Critical Habitat
for Wintering Piping Plovers

AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; notice of 60-day
delay for final determination of critical
habitat.

SUMMARY: We, the U.S. Fish and
Wildlife Service, announce a 60-day
delay in making our final determination
of critical habitat for wintering piping
plovers, subject to further court
proceedings. This additional time •will
allow us to complete the analyses
required under section 4(b)(2) of the
Endangered Species Act of 1973, as
amended (Act), for designation of
critical habitat. We will publish our
final determination in the Federal
Register.
DATES: We will make our final
determination on the designation of

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