EPA 816-Z-02-003
Friday,
June 7, 2002
Part V
Environmental
Protection Agency
40 CFR Part 144
Underground Injection Control Program—
Notice of Final Determination for Class V
Wells; Final Rule
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39584
Federal Register/Vol. 67, No. 110/Friday, June 7, 2002/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 144
[FRL-7225-8]
RIN 2040-AD63
Underground Injection Control
Program—Notice of Final
Determination for Class V Wells
AGENCY: Environmental Protection
Agency.
ACTION: Notice of final determination;
and final rule.
SUMMARY: Today, the Environmental
Protection Agency (EPA) is announcing
a final determination for all sub-classes
of Class V injection wells not included
in the final rulemaking on Class V motor
vehicle waste disposal wells and large-
capacity cesspools (December 7,1999).
Those include shallow non-hazardous
industrial waste disposal wells, large-
capacity septic systems, agricultural and
storm water drainage wells, and other
wells. The Agency has determined that
the existing Federal underground
injection control (UIC) regulations are
adequate to prevent these Class V wells
from endangering underground sources
of drinking water (USDWs) and no new
rulemaking is necessary at this time.
Because today's action fulfills the
Agency's obligation with regard to Class
V wells as stated in section 1421 of the
Safe Drinking Water Act, EPA is also
amending its UIC rules by removing
outdated references regarding future
Class V regulations. In addition, some
minor changes were made to correct
mistakes and omissions within the CFR.
DATES: The final determination and rule
revisions will be effective on June 7,
2002. Pursuant to 40 CFR 23.7, for the •
purposes of judicial review, this final
determination and rule revisions are
issued/promulgated as of 1:00 p.m.
Eastern Time on June 7, 2002.
ADDRESSES: The determination and
supporting documents, including public
comments and EPA responses, are
available for review in the UIC Class V,
W-98-05V Water Docket, U.S.
Environmental Protection Agency, 401
M Street, SW., East Tower Basement,
Room 57, Washington, DC, 20460. For
information on how to access Docket
materials, please call (202) 260-3027
between 9 a.m. and 3:30 p.m. Eastern
Time, Monday through Friday.
FOR FURTHER INFORMATION CONTACT: For
technical inquiries, contact Robyn
Delehanty, Office of Ground Water and
Drinking Water (mailcode 4606M),
Environmental Protection Agency, 1200
Pennsylvania Ave, NW., Washington,
DC, 20460. Phone: 202-564-3880. For
general information, contact the Safe
Drinking Water Hotline at 800-426-
4791. The Safe Drinking Water Hotline
is open Monday through Friday,
excluding Federal holidays, from 9 a.m.
to 5:30 p.m. Eastern Time.
SUPPLEMENTARY INFORMATION: Affected
Entities: Today's determination and rule
applies to owners or operators of any
type of Class V well that is not a large-
capacity cesspool or a motor vehicle
waste disposal well, as described in the
December 7,1999 Class V Rule (64 FR
68546) at 40 CFR 144.81(2) and
144.81(16), respectively. The following
table lists sub-classes and examples of
entities that may have wells covered by
this action. 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. To determine whether your
injection well is affected by this action,
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
Slate and Local Government,
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 nonhazardous waste disposal wells including disposal of
byproducts from industrial operations; facilities that extract minerals from brine and then in-
ject the spent brine underground; mines that backfill materials into mine shafts, pipelines, or
other holes that are deeper than they are wide; aquaculture facilities that dispose of waste-
water in underground wells; solution mines that use injection wells in the recovery of min-
erals from ore bodies that have already been conventionally mined; sites that use injection
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 sys-
Municipalities that use storm water drainage wells; publicly owned treatment works that inject
sewage treatment effluent underground; and 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 types of wells. ^^
Tablo of Contents
I. Background
A. Statutory and Regulatory Framework
B History of this Rulemaking
1,1987 Report to Congress
2.1994 Consent Decree with the Sierra
Club
3.1995 Proposed Determination
4.1997 Modified Consent Decree
5.1998 Proposal and 1999 Final Rule
6.1999 Class V Study
7. 2001 Proposal and Final Determination
C. Requirements Applicable to Class V
Wells
II. Description of Today's Action
A. Final Determination
B. Public Comment
1. Potential to Endanger
2. Adequacy of Existing Regulation
3. Effectiveness of Additional Federal UIC
Regulations
4. Data Used to Make the Determination
5. Class V Sub-Class Specific Comments
C. Amended Regulatory Language
III. Class V Program Management Plan
A. Implementing Existing Regulations
1. Long Standing UIC Regulations
2.1999 Class V Rule
B. Educate Well Operators
C. Explore Other Regulatory and Non-
regulatory Approaches
D. Coordinate Efforts with Other EPA
Programs
E. Prepare for Future Actions
IV. Administrative Requirements
A. Administrative Procedures Act
B. Other Administrative Requirements
V. References
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39585
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 may
endanger 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; 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. History of This Rulemaking
1.1987 Report to Congress
In accordance with the 1986
Amendments to the SDWA, EPA
summarized information on 32 sub-
classes 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 1987). This report presented a
national overview of Class V injection
practices and State recommendations
for Class V well design, construction,
installation, and siting requirements at
that time. 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 a national
level. For any given type of well, the
recommendations varied broadly and
were rarely made by more than two or
three States.
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." (EPA 1994c).
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
discharged the Administrator's
rulemaking obligation under section
1421 of SDWA, 42 U.S.C. 300h, 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 speed up the closure of
potentially endangering wells, and
promote the use of best management
practices to ensure that other Class V
wells of concern did not endanger
USDWs. Several factors led EPA to
propose this approach: (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 is comprised largely 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 (EPA 1997) that extended the dates
for rulemaking in the 1994 decree. The
modified decree required 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 July 31,1999. Short 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. The information
collected for the study was to be used
as the basis for EPA's determination on
Class V wells not included in the Class
Vrule.
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
SDWA with respect to all Class V
injection wells not included in the first
rulemaking for Class V injection wells.
The Consent Decree required that the
Administrator either: (1) Propose
regulations fully implementing section
1421 with respect to all such Class V
injection •wells; (2) propose a decision
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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.
Finally, the Administrator must sign a
final 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 UIC regulations that would add
new requirements for three sub-classes
of Class V wells that were believed to
endanger USDWs. According to this
proposal, Class V motor vehicle waste
disposal wells in ground water
protection areas (as defined in the rule)
would either be banned, or would have
to get a permit that required fluids
released in those wells to not exceed 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 not exceed the
MCLs and other health-based standards
at the point of injection, and large-
capacity cesspools in such areas would
be banned.
EPA received 97 letters from public
commentors as well as
recommendations from the National
Drinking Water Advisory Council,
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 and further
request for comment related to the 1998
Eroposal. A total of 14 public comment
stters were received in response to this
request.
Taking all the public input into
account, EPA issued final revisions to
the UIC regulations for Class V wells on
December 7,1999 (64 FR 68546). The
final rule added new requirements for
Class V motor vehicle waste disposal
wells and large-capacity cesspools.
Existing motor vehicle waste disposal
wells in "ground water protection
areas" and "other sensitive ground
water areas" •were 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)). If a State fails to complete their
assessments of ground water protection
areas or delineate other sensitive ground
water areas by January 1, 2004, then all
existing motor vehicle waste disposal
wells in that State become subject to the
new requirements. These new
requirements are minimum Federal
standards—primacy States may impose
more stringent requirements. The final
rule, however, did not adopt the
proposed additional requirements for
industrial waste disposal wells.
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 issued a study (EPA 1999a)
of all Class V wells not included in the
1998 proposal (EPA 1998a). The Class V
study consisted of two major
components: (l) An information
collection effort for the remaining
universe of Class V wells, which was
divided into 23 different sub-classes 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 Class V Study, 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 managing
Class V wells in Indian Country 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 99 census tracts
across the nation to collect data on the
number of storm water drainage wells
and large-capacity septic systems 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 number of
these wells nationwide.
The Class V Study is available from
the public docket, or at the EPA Web
site http://www.epa.gov/safewater/uic/
cl5study.html#volumes.
7. 2001 Proposal and Final
Determination
As required by the Decree, EPA issued
a proposed determination concerning
the Class V wells not already addressed
by the 1999 rule (66 FR 22971, May 7,
2001). In this determination, EPA
proposed that further regulatory action
for these wells was not necessary under
section 1421. Today's final
determination, that no further
rulemaking is necessary at this time,
fulfills the last of the Agency's
obligations under the Class V Consent
Decree.
C. 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 a 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 III 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.
The 1999 Class V Rule added new
requirements for existing motor vehicle
waste disposal wells located in ground
.water protection areas and in other
sensitive ground water areas delineated
by the States; and new and existing
large-capacity cesspools and new motor
vehicle, waste disposal wells
nationwide.
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All remaining Class V wells that are
in compliance with the inventory and
non-endangerment requirements are
currently authorized by rule or by
permit (§§ 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).
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
prohibition against endangerment of
USDWs, as well as some specific
requirements. The prohibition against
endangerment of USDWs, found in
§§ 144.12 and 144.82, applies to all
Class V wells and provides that no
injection-related activity may be
conducted "in a manner that allows the
movement of fluid containing any
contaminant into underground sources
of drinking water, if the presence of that
contaminant may cause a violation of
any primary drinking water regulation
under 40 CFR Part 141 or may otherwise
adversely affect the health of persons."
• 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 a permit, ordering
such action as closure of the well to
prevent endangerment, taking an
enforcement action, and/or taking an
emergency action.
Also, owners or operators of Class V
injection wells must 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 an area, general or
individual 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 §§ 144.26,
144.27, or 144.83 are prohibited from
using their injection wells. Lastly,
§§ 144.12 and 144.82 give the UIC
Program Director authority to close any
Class V well that may endanger a
USDW.
The above referenced sections '
represent the minimum Federal
requirements for all Class V wells
except motor vehicle •waste disposal
wells and large-capacity cesspools. The
Federal requirements do not preclude a
State or local government from
promulgating more stringent
requirements above and beyond the
existing UIC authorities, and many
States have additional requirements for
sub-classes of Class V wells to prevent
endangerment.
II. Description of Today's Action
A. Final Determination
Today, EPA is issuing its final
determination that additional Federal
underground injection control
regulations for all sub-classes of Class V
injection wells not included in the final
rulemaking on motor vehicle waste
disposal wells and large-capacity
cesspools are not needed at this time to
prevent Class V wells from endangering
USDWs. The Agency based the
determination on the potential for Class
V wells to endanger USDWs and the
anticipated effectiveness of additional
Federal UIC regulation. The Agency will
address its continuing statutory
. obligations by implementing existing
authorities under the SDWA to protect
USDWs from any threatening
underground injection activities.
The 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. It
is 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 I.C.
above, UIC Program Directors have
many obligations and authorities under
the SDWA to ensure the protection of
USDWs from potential risks posed by
Class V wells. The Agency will continue
to fulfill these obligations using 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 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.
Today's determination is limited to the
requirements of section 1421 of SDWA
as applied to Class V injection activities
and does not limit in any way the
Agency's authorities or obligations
under other statutes, such as the Clean
Water Act.
B. Public Comment
The 2001 Proposed Determination
(EPA 2001a) Was open for public
comment for 60 days. The Agency made
the proposed determination widely
available through direct mailing to
stakeholders and posting the document
on EPA's Web site. Twenty-eight
commentors addressed the proposal.
EPA has developed a response to
comment document (EPA 2002b)
addressing all public comments
received on the well types addressed by
the proposed determination.
1. Potential To Endanger
The potential to endanger USDWs
was the main criterion used for making
the determination. 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 Class V well types
covered by the determination.
Particularly given the length of time this
program has been in existence, EPA
believes that the absence of frequent,
widespread, or significant cases of
actual contamination is good evidence
of a low potential for these wells to
endanger. Therefore, additional Federal
UIC regulation is not warranted at this
time.
The majority of the commentors
agreed with the Agency's proposed
determination that, based on the review
of the Class V Study and additional
information on industrial wells, Class V
wells, as a class or sub-class, do not
pose an endangerment to USDWs since
documented cases of contamination
attributable to these Class V wells are
rare.
Some commentors disagreed with the
Agency's determination and raised both
the potential for Class V wells to
endanger and some limited cases in
which sub-classes of Class V wells may
have caused contamination.
The Agency agrees with the
commentors that there is the potential
for any Class V well to cause
contamination. However,, the Class V
Study, the most rigorous and
comprehensive data collection of Class
V wells ever undertaken, did not show
any evidence that Class V wells, as a
well class, or any Class V sub-class, are
contaminating USDWs. On the contrary,
the lack of recent contamination data
that links these Class V wells to ground
water contamination supports EPA's
view that existing authorities are being
used effectively to address any potential
risk of these Class V wells endangering
USDWs. While the data from the Class
V Study did not support the need for
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well-specific regulations, there were
limited cases where Class V wells were
found to be endangering. The Agency
recognizes that some fluids may cause
endangerment if injected directly into
USDWs or into vadose zone materials
which cannot adequately attenuate the
injected fluids. The existing UIC
regulations governing Class V injection
wells provide UIC programs with
sufficient authority to, on a case-by-case
basis, prevent endangering injection
practices and, where found to occur,
stop them and compel the injection well
owner/operator to take any restorative
steps needed to prevent endangerment.
2. Adequacy of Existing Regulation
One commentor disagreed with the .
Agency's determination that no
additional regulations are needed at this
time and contends that the SDWA
requires EPA to develop additional
minimum Federal requirements. That
commentor believes the precautionary
endangerment provision of the Act
requires EPA to promulgate regulations
unless it can show that no underground
source of drinking water will be
endangered.
EPA agrees with the commentor that
the statutory definition of
"endangerment" does not require
contamination prior to taking action of
either a regulatory or enforcement
nature. That Congress intended for EPA
to act in a preventive fashion—to
establish regulatory requirements to
prevent contamination of USDWs from
injection wells, rather than just
addressing such contamination after it
occurs—is clear from the statutory
definition of endangerment, its
legislative history, and the language of
section 1421.
However, EPA does not agree that the
statute requires EPA to promulgate Class
V regulations "unless EPA can show no
endangerment will occur." The
requirement for establishing UIC
regulations under SDWA section 1421 is
that EPA must establish regulations to
ensure that State programs "contain
minimum requirements for effective
programs to prevent underground
injection which endangers drinking
water sources * * *" Because no
amount of regulatory control will
Erevent all cases of contamination, EPA
elieves that a State may have an
effective, preventative Class V program
even though there may be isolated cases
of endangerment. As a result, EPA does
not agree that the statute requires EPA
to prove the complete absence of
contamination in order to determine
that additional Federal regulations for
Class V wells are unnecessary. Rather,
EPA must determine whether, based on
the existing information available to
EPA, State programs are effective in
regulating (i.e., preventing
endangerment from) Class V wells, and
if not, what Federal regulations, if any,
could make such programs more
effective. If the State programs are
already effective, then additional
Federal regulations are unnecessary.
If there is information showing that
such wells, either a specific sub-class of
Class V wells or Class V wells as a
whole, are causing contamination or
that there is some other specific, factual
basis to determine that certain Class V
well injection activities are likely to
cause endangerments, then EPA may, in
the future, determine that additional
regulatory safeguards are necessary to
prevent endangerment. EPA did
establish additional requirements for
Class V motor vehicle waste disposal
wells and large-capacity cesspools in
1999 for this reason. EPA clearly does
not need to wait for contamination to
occur before determining that additional
regulation of a sub-class or class of UIC
wells is necessary.
3. Effectiveness of Additional Federal
UIC Regulation
The second criterion EPA used to
make this determination was the
anticipated effectiveness of additional
Federal UIC regulation. EPA used this
criterion for only a few well sub-classes
for which a sound determination could
not be based on the potential to
endanger alone, and includes
agricultural drainage wells, industrial
waste disposal wells, and sewage
treatment effluent wells. 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.
The majority of the commentors
agreed that there was adequate authority
to manage Class V wells and additional
Federal regulation is unnecessary. A few
commentors believed the SDWA would
not allow for the use of anticipated
effectiveness of additional Federal
regulation. They contend that the
SDWA provides neither an intent nor
the authority to limit the protection
afforded to all USDWs by restricting its
scope to regulations which are proven a
priori to be effective. Rather, Congress'
concern is with any activity which may
endanger USDWs, and is not limited to
those activities for which a regulatory
program has been proven effective.
EPA agrees that Congress intended for
all injection to be regulated, and notes
that the UIC Program does regulate all
injection wells. However, EPA disagrees
with the commentor that the
effectiveness of additional Federal
regulations cannot be a criterion for
determining whether to establish more
prescriptive regulations for Class V
wells. The statutory obligation is for
EPA to determine whether State UIC
programs are effective in addressing
endangerments to USDWs, and to
establish minimum requirements for
such programs if they are not effective.
As a result, the effectiveness of State
programs, and additional Federal
regulations, is very much a relevant
criterion under section 1421. The
statutory obligation to establish
additional UIC requirements is not
triggered solely by finding that some
wells may be or have been an
"endangerment" as defined by the
statute. EPA agrees that the term
"endangerment" is broadly defined and
preventive. Section 1421 is also
preventative. However, the issue is not
whether there are, or might be, some
instances of endangerment, but rather
whether additional Federal
requirements are necessary to ensure
effective State programs to prevent these
endangerments. If Federal regulations
would not improve the effectiveness of
State programs, then such regulations
are not required under section 1421.
The statutory obligation is to determine
whether State programs are ineffective
in addressing endangerment; EPA does
not have information at this time that
indicates that State programs are
ineffective in addressing endangerments
from Class V wells.
4. Data Used To Make the Determination
a. Completeness of the Information
The determination was based on
information collected by the Class V
Study and industrial waste disposal
well information collected to support
the Class V Proposed Rule. The Class V
Study was designed and implemented
to obtain all information that was
currently available on Class V wells.
The Class V Study represents the most
comprehensive collection of
information on Class V wells. The
majority of the commentors referred to
the Class V Study data to support their
argument either for or against the
determination. However, a few
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39589
commentors indicated that there was
information that was not included in the
Class V Study, but it was not submitted
as part of the comments. As part of
EPA's obligation to prevent Class V
wells from endangerment, we will
continue to evaluate whether additional
Federal regulations or other actions are
warranted as more information becomes
available. We encourage anyone with
information to submit it for
consideration.
b. Areas Not Covered by the Class V
Study
Some commentors encouraged the
Agency to expand the scope of the Class
V Study to include data collection on:
ground water monitoring; the fate of
viruses, chemicals and tiaeir metabolites
in the subsurface; and, additional sub-
classes of Class V wells such as
horizontal drain fields and abandoned
drinking water wells that were not
addressed in the Study. While the
Agency has no plan to expand upon the
existing Class V Study, we will continue
to collect information and evaluate the
potential for Class V wells to endanger
USDWs. The Class V Study is a firm
starting point to assist the Agency, and
our stakeholders, in prioritizing future
efforts such as public outreach,
guidance development, data collection,
and, if needed, rule development.
A few commentors raised concerns
about "emerging" issues such as
pharmaceutical and personal care
products (PPCPs). PPCPs were not
considered as part of the Class V Study.
EPA has no knowledge of any
contamination linked to PPCP, nor did
anyone comment on the need to address
PPCPs when the Class V Study design
was public noticed. This may be
because, until recently, little
information was available on PPCPs and
analytical techniques lacked the
sensitivity to identify PPCPs in water.
The United States Geological Survey
(USGS) recently released data on PPCPs
in streams downstream from areas of
intense urbanization and animal
production. Additional data on ground
water sampling will be released later
this year followed by data on drinking
water source water. EPA has been, and
will continue to, work with the USGS as
more information becomes available and
will assess the relevance of the
information to Class V activities.
5. Class V Sub-Class Specific Comments
As stated above, today's Notice of
Final Determination for Class V Wells
continues to use the.two main criteria
proposed in 2001—the potential to
endanger USDWs and the anticipated
effectiveness of additional Federal
regulation—to determine whether Class
V wells warrant additional regulations
at this time.
EPA continues to believe that the
potential to endanger USDWs is the
more important of the two criteria, given
the SDWA mandate to prevent
endangerment. EPA also believes that
the scarcity of documented cases of soil
or ground water contamination due to
Class V wells demonstrates a low
potential for these wells to endanger.
EPA recognizes that there may be
isolated instances of endangerment to
USDWs which have not been
documented. However, the Class V
Study, which was a thorough and
comprehensive review of all available
data on these wells, did not document
significant or widespread cases of
contamination. EPA believes that most,
if not all, cases of significant or
widespread contamination due to Class
V wells would have been reported in
some manner and, as a result, would
have been identified and documented as
part of the Class V Study. As a result,
the relative paucity of such
documentation is viewed by EPA as a
good indication that the existing
regulations are adequate.
The degree to which additional
Federal UIC regulations would simply
duplicate existing State program efforts
without increasing their "effectiveness"
is a key factor in evaluating the
usefulness of additional regulations.
The scarcity of documented cases of
contamination and the existence of
effective State UIC programs signifies
that additional Federal UIC regulations -
are not necessary, at this time, under the
statute.
The Agency received specific
comments on agricultural drainage
wells, aquifer remediation wells, aquifer
storage and recovery wells, geothermal
wells, industrial wells, salt water
intrusion wells, spent brine return flow
wells, storm water drainage wells, and
sewage treatment effluent wells. Many
of the commentors agreed with the
Agency's determination that additional
regulations were not needed for any of
the sub-classes covered by the
determination. The remaining
commentors disagreed with the Agency.
However, these commentors did not
submit evidence of any contamination
cases that had not been effectively
addressed by UIC Programs using
existing authorities. EPA believes that
additional Federal regulation is not
necessary where the endangerment
posed by particular well types appears
to be rare. The fact that few documented
cases of contamination were found, and
that the endangerment was addressed
using current authorities, supports
EPA's determination that existing
Federal regulations and State programs
are effective to prevent endangerment.
EPA does not believe that additional
regulations for these wells should be
promulgated based upon conjecture
about endangerments that could occur
or some kind of "presumption", that
they do occur absent a showing
otherwise. EPA does recognize that
fluids injected into shallow injection
wells can exceed human health-based
thresholds. However, the information
available to the Agency shows that
existing Federal regulations provide
EPA and primacy States with the
authority needed to ensure that shallow
injection wells are properly situated,
constructed, operated, maintained and
•(if necessary) closed in a manner that
protects underlying USDWs.
There is no information necessitating
additional Federal UIC regulations for
these wells, at this time. The current
record demonstrates that existing
regulations already effectively prevent
most cases of endangerment and
provide sufficient authority to address
rare cases of endangerment that might
occur.
Detailed responses to comments
submitted on specific sub-classes of
Class V wells are found in the response
to comment document (EPA 2002b).
C. Amended Regulatory Language
Today's action fulfills the Agency's
obligation in regard to Class -V wells as
stated in section 1421 of the Safe
Drinking Water Act. Therefore, EPA is
amending its UIC regulations at 40 CFR
part 144.1, purpose and scope, to
remove the sentence "Class V wells will
be inventoried and assessed and
regulatory action will be established at
a later date." In addition, some minor
changes were made to correct mistakes
and omissions within the CFRi In two
places within part 144 references to the
location of primary drinking water
standards within the CFR has been
corrected to read 40 CFR part 141,
instead of part 142. Section 144,1 also
references § 146.04 as containing criteria
for "aquifer exemptions." This reference
has been corrected to read § 14614. In
correcting § 144.1, we've also removed
an incorrect reference to "individual"
permits. Also, as part of the 1999 Class
V rule (EPA 1999c) States were allowed
to authorize Class IV injection under
certain conditions. Section 144.23
Prohibition of Class IV wells was
amended at that time, but parallel
language in § 144.13 was not. This
rulemaking corrects the regulatory
language at § 144.13 to be consistent
with the language at § 144.23. The
regulatory language at § 144.26 is
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amended to remove introductory text
that references paragraph (e) of the
regulation that was removed as part of
the 1999 Class V rule (EPA 1999c).
Lastly, paragraph (g) at § 144.87 has
been inserted and reserved. The original
regulatory language that was added to
the CFR as part of the 1999 Class V rule
(EPA 1999c] omitted paragraph (g), so it
is heing added and reserved to avoid
confusion and for consistency.
in. Class V Program Management Plan
As part of an ongoing obligation to
prevent Class V wells from endangering
USDWs, the Agency has developed a
management plan for Class V wells. The
purpose of the management plan is to
prioritize resources and activities, as
well as identify, for our stakeholders,
how best to achieve our common goal of
preventing Class V wells from
endangering USDWs. The following
areas have been prioritized for future
activities.
A. Implementing Existing Regulations
1. Long Standing UIC Regulations
An important first step in the
prevention of ground water
contamination from injection wells is to
ensure that Class V well owners and
operators know they have a Class V well
and what their obligations are under the
UIC regulations. The UIC Program will
continue to collect inventory
information, conduct inspections,
educate facility owners and operators on
their obligations under the UIC
regulations and assess the facilities
injection practices. The outcome of any
given assessment may be authorization
by rule, a request for additional
information, requiring the facility to
apply for a general, area, or site specific
permit, or requiring closure of the well.
To enhance inventory and inspection
information, the UIC program has begun
a pilot project in some direct
implementation States. The inventory/
inspection initiative will initially focus
on source water protection areas and
then expand to other priority areas.
EPA, State and local inspectors will
also be looking for facilities that may be
operating Class IV wells which are
banned under UIC regulations. These
hazardous waste disposal wells would
be subject to immediate closure that
may include site characterization,
cleanup and enforcement penalties.
The Agency also plans to develop
technical assistance documents. In
particular, guidance is being developed
to help assist UIC Programs determine
if, on a case-by-case basis, an industrial
well should be rule authorized,
permitted or closed. A Class V
industrial waste disposal well closure
guidance will also be developed to give
general, performance based guidance.
In addition to the technical guidance,
EPA is considering the development of
compliance guides to assist owners and
operators in complying with existing
regulations.
2. 1999 Class V Rule
Motor vehicle waste disposal wells
and large-capacity cesspools were
identified as having a high potential to
endanger USDWs and required
additional regulations to insure they do
not endanger USDWs. As such, the
Agency sees the implementation of the
Class V Rule as a high priority. The
Class V Rule requires owners and
operators of existing motor vehicle
•waste disposal wells in regulated areas
to close their well, or if applicable,
obtain a permit. These requirements are
being phased in through 2008. Owners
and operators of large-capacity
cesspools must close their cesspools by
April 5, 2005. EPA will coordinate its
efforts with primacy States and State
and local health departments to
implement the ban.
B. Educate Well Operators
Full compliance with Class V
regulations requires that well operators
understand their obligations. Owners
and operators of Class V wells must
meet certain regulatory requirements:
large-capacity cesspools must close;
motor vehicle waste disposal wells in
regulated areas must close or obtain a
permit; and, all other well owners must
submit inventory information about
their well to the UIC Program. Well
owners and operators can not inject
until they have submitted inventory. For
the wells covered by this determination,
the minimum Federal requirement is the
well cannot endanger USDWs. As
discussed in section I.C., UIC Program
Directors have the authority to impose
additional requirements as needed. In
addition, States can, and in many cases
do, choose to be more stringent.
The UIC Program has developed some
outreach materials outlining what the
various requirements are, and how
owners and operators must comply.
These include:
—Small Entity Compliance Guide for
Owners of Motor Vehicle Waste
Disposal Wells (EPA 2000).
—Class V Well Initiative Web site at:
http://www.epa.gov/safewater/uic/
classv.html.
—UIC Program poster—"Protecting
Public Health and Drinking Water"
(EPA 2001b).
—UIC Booklet—"Protecting Public
Health through Underground
Injection Control" (EPA 2002a)
—Videos—"The Problem with Shallow
Disposal Systems" and "Shallow
Disposal Systems Are Everyone's
Business"
Anyone interested in obtaining any of
these materials should contact the Safe
Drinking Water Hotline at (800) 426-
4791. Additionally, most Regional and
State UIC programs have the type of
specific compliance information needed
by injection well owners/operators, or
the phone numbers of who to contact for
such information, available on their
Web sites. Hot-links to each of these
Web sites can be accessed through the
general EPA UIC program Web site
listed above.
C. Explore Other Regulatory and Non-
regulatory Approaches
The UIC Program will explore both
new regulatory and innovative non-
regulatory approaches to manage Class
V wells. One new regulatory approach
that EPA will consider is the use of
general permits. General permitting is
an existing authority that has not been
widely utilized by the UIC Program,
where like facilities within a defined
area can be covered by one permit. A
growing concern expressed by
commentors, States, and EPA Regions,
is that there will be a dramatic increase
in the use of Class V wells to dispose
of storm water rather than obtain
NPDES permits for surface discharge.
This is an example where general
permits may be utilized. Additionally,
in sensitive geologic areas, a general
permit could be used to require specific
best management practices as well as
injectate monitoring.
The Agency is also exploring non-
regulatory approaches to prevent'
contamination of USDWs, such as, the
use of voluntary compliance standards.
The Agency will work with well owners
and operators, on a case-by-case basis to
identify opportunities to implement
voluntary waste minimization practices.
These voluntary practices may ensure
that facility injection practices do not
contaminate USDWs. This would be an
alternative to imposing permit
conditions.
D. Coordinate Efforts With Other EPA
Programs
The UIC Program is currently working
with the Office of Wastewater
Management (OWM) to coordinate
efforts on large-capacity septic systems
and storm water drainage. The Onsite
Decentralized Wastewater Management
voluntary guidelines (to be finalized in
the summer of 2002) include
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39591
information about the UIG Program, as :
well as the standards Class V large-
capacity septic systems must meet
under the UIC program. The OWM
Speakers Bureau includes UIC
Personnel to assist in giving
presentations and providing outreach
documents to State and local health
department personnel, communities,
utilities and other stakeholders.
The UIC Program will continue to
coordinate efforts with the National
Pollutant Discharge Elimination System
(NPDES) program to ensure that the
regulated community understands their
obligations under the UIC Program and
that any storm water discharges to
injection wells do not have the potential
to endanger USDWs.
In addition, the UIC program is
working closely with other programs
such as the EPA's Engineering and
Analysis Division in the Office of Water
to collect additional information on
industrial operations. The Metals
Products and Machinery effluent
limitations guideline, which was
proposed last Fall, includes information
on the UIC program. Lastly, the UIC
Program will be working with other
offices to develop industry specific
voluntary consensus standards where
appropriate.
E. Prepare for Future Actions
In the course of our ongoing activities,
EPA will continue to work with States,
regulated entities, environmental
organizations, and other sources, to
collect and evaluate data on Class V
wells and their potential risks. We will
use that information to reevaluate on a
regular basis the need for additional
regulation. If at any point new data
indicates that a sub-class of Class V
wells may pose an endangerment, the
Agency will develop a plan to collect
and analyze well sub-class specific
information to determine what
additional regulation may be required.
Data collection and further analysis
could take the form of ground water
monitoring, injectate sampling or risk
assessment modeling.
In addition, there are some
"emerging" issues, such as
pharmaceutical and personal care
products (PPCPs), that were not
identified for inclusion in the Class V
Study, but warrant ongoing involvement
by the UIC Program. The Agency will
continue to coordinate efforts with the
USGS and other researchers doing work
related to ground water protection. The
UIC Program will continue to assess any
new information that relates to
endangerments from Class V injection
wells.
Today's determination does not
preclude future action under EPA's UIC
authority if the agency determines that
additional regulatory action is needed.
IV. Administrative Requirements
A. Administrative Procedure Act
Section 553 of the Administrative
Procedure Act, 5 U.S.C. 553(b)(B),
provides that, when an agency for good
cause finds that notice and public
procedure are impracticable,
unnecessary, or contrary to the public
interest, the agency may issue a rule
without providing prior notice and an
opportunity for public comment. EPA is
publishing several rule changes related
to today's final determination. First,
EPA is removing regulatory text that
states that EPA will establish regulatory
requirements for Class V wells at a later
date because EPA has now completed
its determination of whether such
regulatory requirements are necessary.
As a result, such language is now
outdated. Second, EPA is correcting
minor errors in the existing Class V
regulations. EPA has determined that
there is "good cause" for making today's
rule changes final without prior
proposal and opportunity for comment
because these rule changes have no
substantive impact and merely correct
or replace outdated CFR text. Thus,
notice and public procedure are
unnecessary. EPA finds that this
constitutes "good cause" under 5 U.S.C.
553(b)(B). For the same reasons, EPA is
making these rule changes effective
upon publication. 5 U.S.C. 553(d)(3).
B. Other Administrative Requirements
Today's rule merely removes outdated
CFR text and corrects minor errors.
Under Executive Order (EO) 12866 (58
FR 51735, October 4, 1993), this action
is not a "significant regulatory action"
and is therefore not subject to review by
the Office of Management and Budget.
Because the Agency has made a "good
cause" finding that this action is not
subject to notice-and-comment
requirements under the Administrative
Procedures Act or any other statute in
section IV.A., it is not subject to the
regulatory flexibility provisions of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.] or to sections 202 or 205 of the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4). In addition, this action
does not significantly or uniquely affect
small governments or impose a
significant intergovernmental mandate,
as described in sections 203 and 204 of
UMRA. This rule also does not
significantly or uniquely affect the
communities of tribal governments, as
specified by Executive Order 13175. (65
FR 67249, November 6, 2000). This rule
will not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132 (64
FR 43255, August 10", 1999). This rule
also is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it is not economically
significant. Neither is it subject to
Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a
significant regulatory action under
Executive Order 12866. This technical
correction does not include technical
standards; thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
. Act of 1995 (15 U.S.C. 272 note) do not
apply. This action does not impose an
• information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq).
The Congressional Review Act (5
U.S.C. 801 et seq.}, as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. Section 808 allows
the issuing agency to make a rule
effective sooner than otherwise
provided by the CRA if the agency
makes a good cause finding that the
notice and public procedure is
impracticable, unnecessary or contrary
to the public interest. This
determination must be supported by a
brief statement. 5 U.S.C. 808(2). As
stated previously, EPA has made such a
good cause finding, including the
reasons therefor, and established an
effective date of June 7, 2002. EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This action is not a "major
rule" as defined by 5 U.S.C..section
804(2).
V. References
EPA. 1980a. Consolidated Permit
Regulations: RCRA Hazardous Waste;
SDWA Underground Injection Control;
CWA National Pollutant Discharge
Elimination System; CWA Section 404
Dredge or Fill Programs; and CAA
Prevention of Significant Deterioration;
Final Rule. 45 FR 33290, May 19,1980.
EPA. 1980b. Water Programs; Consolidated
Permit Regulations and Technical
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Federal Register/Vol. 67, No. 110/Friday, June 7, 2002/Rules and Regulations
Criteria and Standards; State
Underground Injection Control
Programs; Final Rule for Part 146 and
Amendments to Part 122. 45 FR 42472,
June 24,1980.
EPA. 1981. Underground Injection Control
Program Criteria and Standards;
Technical Amendments to Final
Regulations. 46 FR 43156, Aug. 27,1981.
EPA. 1382. Underground Injection Control
Program Criteria and Standards; Final
Rule. 47 FR 4992. Feb. 3.1982.
EPA. 1983a. Underground Injection Control
Program; Final Rule. 48 FR 2938, January
21,1983.
EPA. 1983b. Environmental Permit
Regulations: RCRA Hazardous Waste;
SDWA Underground Injection Control;
CWA National Pollutant Discharge
Elimination System; CWA Section 404
Dredge or Fill Programs; and CAA
Prevention of Significant Deterioration;
Final Rule. 48 FR 14146, Apr. 1,1983.
EPA. 1984a. Underground Injection Control
Program; Federally Administered
Programs; Final Rule. 49 FR 20138, May
11,1984.
EPA. 1984b. Underground Injection Control
Program: Federally-Administered
Programs; Final Rule. 49 FR 45292, Nov.
15,1984.
EPA. 1987. Report to Congress: Class V
Injection Wells. Office of Water.
Washington DC. (EPA 570/9-87-006:
September 1987).
EPA. 1988. Final Rule; Underground
Injection Control Program: Hazardous
Waste Disposal Injection Restrictions;
Amendments to Technical Requirements
for Class I Hazardous Waste Injection
Wells; and Additional Monitoring
Requirements Applicable to all Class I
Wells, 53 FR 28118, July 26,1988.
EPA. 1993. Revisions to the Safe Drinking
Water Act. Underground Injection
Control Regulations; Final and Interim
Final Rule and Request for Comments.
Vol. 58 FR 63890, December 3,1993
EPA. 1994a. Standards Applicable to Owners
and Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities, Underground Storage Tanks,
and Underground Injection Control
Systems; Financial Assurance; Letter of
Credit. 59 FR 29958, June 10,1994.
EPA. 1994b. Federal Register: U.S.
Environmental Protection Agency Indian
Tribes; Eligibility for Program
Authorization. 59 FR 64339, December
14,1994.
EPA. 1994c. Consent Decree with the Sierra
Club. Civil Action No 93-2644 (D.C.
District) August 31,1994.
EPA. 1995a. National Pollutant Discharge
Elimination System and Pretreatment
Programs; State and Local Assistance
Programs; Effluent Limitations
Guidelines and Standards; Public Water
Supply and Underground Injection
Control Programs: Removal of Legally
Obsolete or Redundant Rules; Final Rule.
60 FR 33926, June 29.1995.
EPA. 1995b. Class V Wells—Regulatory
Determination and Minor Revisions to
the Underground Injection Control
Regulations; Technical Correction to the
Regulations for Class I Wells; Proposed
Rule. 60 FR 44652, August 28,1995.
EPA. 1997. Modified Consent Decree with
the Sierra Club. Civil Action No 93-2644
(D.C. District) January 28; 1997.
EPA. 1998a. Class V Injection Wells
Underground Injection Control
Regulations, Revisions; Proposed Rule.
63 FR 40586, July 29, 1998.
EPA. 1998b. Shallow Disposal Systems are
Everyone's Business. Video. USEPA
Publication (EPA 908-V-98-001).
EPA. 1999a. The Class V Underground
Injection Control Study. (EPA/816-R-
99-014: September 1999). http://
www.epa.gov/safewater/uic/
cl5study.html#volumes.
EPA. 1999b. Revisions to the Underground
Injection Control Regulations for Class V
Injection Wells—Notice; Proposed Rule.
64 FR 27741, May 21,1999.
EPA. 1999c. Underground Injection Control
Regulations for Class V Injection Wells,
Revision; Final Rule. 64 FR 68546,
December 7,1999.
EPA. 2000. Small Entity Compliance Guide:
How the New Motor Vehicle Waste
Disposal Well Rule Affects Your
Business. Office of Water. 33 pp. (EPA
816-R-00-018: November 2000).
http://www.epa.gov/sbrefa/documents/
2778secg.pdf,
EPA. 2001a. Underground Injection Control
Program—Notice of Proposed
Determination for Class V Wells. 66 FR
22971, May 7, 2001.
EPA. 2001b. Safe Drinking Water Act:
Underground Injection Control (UIC)
Program: Protecting Public Health and
Drinking Water Resources. Office of
Water. Poster. (EPA 816-H-01-003 [EPA
816-H-02-005 in Spanish]: August
2001).
EPA. 2002a. Protecting Public Health
Through Underground Injection Control.
EPA 816-K-02-001.
EPA. 2002b. Background Document—
Comment and Response for Notice of
Proposed Determinaton on Class V
Wells. Water Docket
EPA. (No Date) The Problem with Shallow
Disposal Systems. Video. EPA UIC
Program.
EPA. (No Date) Class V Well Initiative.
http://www.epa.gov/safewater/uic/
classv.html
List of Subjects 40 CFRPart 144
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous waste, Indians-lands,
Reporting and recordkeeping
requirements, Surety bonds, Water
supply.
Dated: May 31, 2002.
G. Tracy Mehan in,
Assistant Administrator of Water.
For the reasons set out in the
preamble, title 40 chapter I of the Code
of Federal Regulations is amended to
read as follows:
PART 144—UNDERGROUND
INJECTION CONTROL PROGRAM
1. The authority citation for part 144
continues to read as follows:
Authority: Safe Drinking Water Act, 42
U.S.C. 300f et seq.; Resource Conservation
and Recovery Act, 42 U.S.C. 6901 et seq.
2. Section 144.1 is amended by
revising paragraph (g) introductory text
to read as follows:
§144.1 Purpose and scope of part 144.
(g) Scope of the permit or rule
requirement. The UIC Permit Program
regulates underground injections by five
classes of wells (see definition of "well
injection," § 144.3). The five classes of
wells are set forth in § 144.6. All owners
or operators of these injection wells
must be authorized either by permit or
rule by the Director. In carrying out the
mandate of the SDWA, this subpart
provides that no injection shall be
authorized by permit or rule if it results
in the movement of fluid containing any
contaminant into Underground Sources
of Drinking Water (USDWs-see § 144.3
for definition), if the presence of that
contaminant may cause a violation of
any primary drinking water regulation
under 40 CFR part 141 or may adversely
affect the health of persons (§ 144.12).
Existing Class IV wells which inject
hazardous waste directly into an
underground source of drinking water
are to be eliminated over a period of six
months and new such Class IV wells are
to be prohibited (§ 144.13). For Class V
wells, if remedial action appears
necessary, a permit may be required
(§ 144.25) or the Director must require
remedial action or closure by order
(§ 144.12(c)). During UIC Program
development, the Director may identify
aquifers and portions of aquifers which
are actual or potential sources of
drinking water. This will provide an aid
to the Director in carrying out his or her
duty to protect all USDWs. An aquifer
is a USDW if it fits the definition, even
if it has not been "identified." The
Director may also designate "exempted
aquifers" using the criteria in 40 CFR
146.4. Such aquifers are those which
would otherwise qualify as
"underground sources of drinking
water" to be protected, but which have
ho real potential to be used as drinking
water sources. Therefore, they are not
USDWs. No aquifer is an "exempted
aquifer" until it has been affirmatively
designated under the procedures in
§ 144.7. Aquifers which do not fit the
definition of "underground source of
drinking water" are not "exempted
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Federal Register/Vol. 67, No. ,110/Friday, June 7, 2002/Rules and Regulations
39593
aquifers." They are simply not subject to
the special protection afforded. USDWs.
*****
3. Section 144.13 is amended by
revising paragraph (c) to read as follows:
§ 144.13 Prohibition of Class IV wells.
*****
(c) Wells used to inject contaminated
ground water that has been treated and
is being reinjected into the same
formation from which it was drawn are
not prohibited by this section if such
injection is approved by EPA, or a State,
pursuant to provisions for cleanup of
releases under the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA), 42 U.S.C. 9601-9657, or
pursuant to requirements and
provisions under the Resource
Conservation and Recovery Act (RCRA),
42 U.S.C. 6901 through 6987.
*****
4. Section 144.26 is amended by
revising the introductory text and
removing the text after the heading in
paragraph (d) introductory text to read
as follows:
§ 144.26 Inventory requirements.
The owner or operator of an injection
well which is authorized by rule under
this subpart shall submit inventory
information to the Director. Such an
owner or operator is prohibited from
injecting into the well upon failure to
submit inventory information for the
well within the time frame specified in
paragraph (d) of this section.
*****
(d) Deadlines. (1) * * *
* * • * * *
5. Section 144.81 is amended by
revising paragraph (16) to read as
follows:
§ 144.81 Does this subpart apply to me?
* * * * *
(16) Motor vehicle waste disposal
wells that receive or have received
fluids from vehicular repair or
maintenance activities, such as an auto
body repair shop, automotive repair
shop, new and used car dealership,
specialty repair shop (e.g., transmission
and muffler repair shop); or any facility
that does any vehicular repair work.
Fluids disposed in these wells may
contain organic and inorganic chemicals
in concentrations that exceed the
maximum contaminant levels (MCLs)
established by the primary drinking
water regulations (see 40 CFR part 141).
These fluids also may include waste
petroleum products and may contain
contaminants, such as heavy metals and
volatile organic compounds, which pose
risks to human health.
§ 144.87 [Amended]
6. Section 144.87 is amended by
adding and reserving paragraph (g).
[FR Doc. 02-14368 Filed 6-6-02; 8:45 am]
BILLING CODE 6560-50-P
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