[Federal Register Volume 64, Number 58 (Friday, March 26, 1999)]
[Rules and Regulations]
[Pages 14800-14804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7432]
[[Page 14799]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 147
Underground Injection Control Program Revision; Aquifer Exemption
Determination for Portions of the Lance Formation Aquifer in Wyoming;
Final Rule
Federal Register / Vol. 64, No. 58 / Friday, March 26, 1999 / Rules
and Regulations
[[Page 14800]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[FRL-6316-4]
Underground Injection Control Program Revision; Aquifer Exemption
Determination for Portions of the Lance Formation Aquifer in Wyoming
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule--State program revision: aquifer exemption approval.
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SUMMARY: The State of Wyoming has submitted a revision to its
Underground Injection Control (UIC) Program, requesting that EPA
approve an exemption from classification as an underground source of
drinking water (USDW) portions of the Lance Formation in the Powder
River Basin in Johnson County, Wyoming. The exemption area surrounds
two Class I Non-Hazardous deep injection wells that will be used to
dispose of operational bleed streams (excess fluids derived from the
uranium mining) from commercial in-situ leaching uranium mining
operations and fluids resulting from the ground water sweep (pumping
out of contaminated fluids from the aquifer) operations for restoration
of the Wasatch Formation aquifer being mined for uranium under a UIC
Class III permit. After careful review of the exemption request and
accompanying documents, EPA has determined that they contain sufficient
information to meet the criteria for exempting portions of the Lance
formation aquifer from the definition of a USDW. Based on the Wyoming
Department of Environmental Quality (WDEQ) concurrence with the
exemption, the request of the WDEQ director, the supporting technical
documentation, and the lack of any public comment on the public notice
to exempt the stated portions of the Lance Formation, EPA has decided
to approve Wyoming's revision of its UIC program which exempts the
designated portions of the Lance Formation from classification as an
Underground Source of Drinking Water (USDW).
DATES: This rule shall become effective on April 26, 1999. In
accordance with 40 CFR 23.7, this rule shall be considered promulgated
for the purposes of judicial review at 1:00 p.m. Eastern Time on April
9, 1999.
FOR FURTHER INFORMATION CONTACT: Valois Shea-Albin, US EPA Region VIII,
8P-W-GW, 999 18th Street, Suite 500, Denver, CO 80202; (303) 312-6276.
SUPPLEMENTARY INFORMATION:
Regulated--Entities--Entities potentially affected by this action
include the Wyoming Department of Environmental Quality (WDEQ) and the
COGEMA Mining Company. The latter requested the exemption and the
former recommended the approval of the exemption in October 1997. Any
effect on these two entities would be positive, as they will be able to
operate the disposal wells that are used for disposal of excess fluid
in the uranium mining process and the restoration of the aquifer being
mined.
I. Introduction
The Underground Injection Control (UIC) Program, established by the
Safe Drinking Water Act (SDWA), provides for the protection of
underground sources of drinking water (USDWs) from potential
contamination from injection well practices. The UIC program
regulations also provide for exempting aquifers from the definition of
USDW, in 40 CFR 144.3, so that injection can occur. The UIC
regulations, specifically 40 CFR 144.7 and 146.4, define and provide
criteria for exempting aquifers.
In October, 1997, COGEMA Mining, Inc., (COGEMA) and the Wyoming
Department of Environmental Quality (WDEQ) requested that EPA approve
an aquifer exemption for the Lance Formation in the areas encompassed
by a radius of 1,320 feet surrounding two Class I non-hazardous
injection wells, the COGEMA DW No. 1 and the Christensen 18-3, in
Johnson County, WY. The proposed injection intervals are 3,818 to 6,320
feet and 4,009 to 6,496 feet in depth below ground surface,
respectively. The total area of the Lance Formation included in the
exemption is approximately 0.4 square miles (0.2 square miles for each
well).
The Lance Formation fluids contain less than 3,000 mg/l Total
Dissolved Solids (TDS) and the exemption is associated with a Class I
1 injection well permit. These two criteria dictate that
this aquifer exemption be a substantial revision of the Wyoming
Underground Injection Control (UIC) program approved under section 1422
of the Safe Drinking Water Act. Criteria for classification of a
program revision as substantial or not are in UIC Guidance #34,
Guidance for Review and Approval of State UIC Programs and Revisions to
Approved State Programs. The procedures to follow to approve or
disapprove substantial program revisions in the UIC program are in 40
CFR 145.32 and in UIC Guidance #34. The aquifer proposed for exemption
has been determined by WDEQ to be too deep to be considered as an
economically feasible source of drinking water. On August 27, 1998, EPA
published in the Federal Register a notice (63 FR 45810) requesting
public comment on a substantial revision to Wyoming's UIC program to
exempt a portion of the Lance Formation from designation as an
underground source of drinking water. There were no comments or
requests for public hearing submitted as a result of this notice. EPA
has examined the aquifer exemption request, the accompanying
information, and responses from WDEQ and COGEMA to EPA requests for
additional supporting information, and, for reasons described herein,
approves this request to exempt the designated portions of the Lance
Formation from classification as a USDW.
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\1\ Injection wells are divided into 5 classes. Class I wells
are associated with the disposal of industrial, municipal or
radioactive waste into formations below the lowermost USDW. These
wells have very strict standards for siting, construction and
operation.
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II. Background
COGEMA operates the Christensen Ranch in-situ leaching uranium mine
within the Wasatch Sandstone Formation in Johnson and Campbell
Counties, WY. The Wasatch Formation overlies the Lance Formation by
about 2,600 feet at the mine site. The mining operation has comprised
five well fields to date, two of which are currently producing, and
three that have been mined out. The operation has reached the phase
where large scale restoration of the ground water within the mined out
well fields is being conducted simultaneously with mineral extraction
in the two producing well fields.
Ground water restoration is conducted to return the ground water
affected by mining to its baseline condition or to a condition
consistent with its pre-mining or potential use upon completion of
mining activities. After the restoration process is completed, the
concentrations of contaminants are reduced to levels below drinking
water standards. For the successful restoration of the ground water
quality within the mined-out areas of the Wasatch Formation, a
wastewater disposal capacity of 300 to 500 gallons per minute (gpm)
will be required over the next 18 years. Additionally, this type of
operation requires the bleed-off 2 of part of the
[[Page 14801]]
fluid extracted in order to keep underground water flow into the mining
area and prevent the contamination of adjacent aquifers in the Wasatch
Formation. To date, COGEMA has managed disposal of the fluid wastes
under an NPDES permit to discharge to the surface, and through using
evaporation ponds and limited non-hazardous Class I injection well
disposal. The recent regulatory requirement that reduces the
concentration of selenium that can be discharged to surface waters
permitted under NPDES has force COGEMA to discontinue this type of
discharge. After evaluating treatment methods to remove selenium from
the wastewater in order to continue surface discharge, COGEMA found
that reverse osmosis was the only method that consistently met the new
selenium standard. The reverse osmosis process would treat 75% of the
waste stream resulting in water of high enough quality for surface
discharge. However, the high volume of remaining concentrated brine
produced by the reverse osmosis process would still require the use of
the two Class I injection wells and the aquifer exemption.
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\2\ In order to prevent fluids in the underground formation from
polluting adjacent aquifer portions, more fluid is extracted than is
injected. In the process of leaching out the Uranium salts, the
leaching agent is also replenished. The combination of excess fluid
extracted and the equivalent of the fluid that is replenished is
called the ``bleed'' stream. This volume of fluid has to be treated
and/or disposed in an environmentally safe process.
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COGEMA was previously granted an aquifer exemption for the COGEMA
DW No. 1 and the Christensen 18-3 wells to inject into the Teckla,
Parkman, and Teapot Formations (between 3,000 and 10,000 TDS,
containing traces of oil and gas, and too deep to be an economically
feasible source of drinking water). The original exempted interval for
the COGEMA DW No. 1 was 7,500 to 8,470 feet in depth and 7,631 to 8,604
feet in depth for the Christensen 18-3. Trial injection into these
formations revealed they were only capable of receiving less than 10
gpm instead of the 75 to 150 gpm anticipated from the evaluation of
porosity logs. As a result, the company has now requested a permit
modification to inject into the Lance Formation, instead of the Teckla,
Parkman and Teapot formations, an overlying geologic unit to the ones
originally exempted.
III. Injectate
The fluid that will be injected (injectate) will consist of
operational bleed streams from commercial in-situ leaching uranium
mining operations as well as fluids from the restoration of the Wasatch
formation. The constituents in the injectate include the following
process and restoration bleed streams: normal overproduction (well
field bleed) streams, laboratory wastewater, reverse osmosis brine, and
ground water sweep 3 solutions. The bleed streams are
defined as non-hazardous, and as beneficiation 4 wastes
exempt from regulation as hazardous waste under the Resource
Conservation and Recovery Act as stipulated by the Bevill Amendment (40
CFR 261.4(b)(7)).
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\3\ The operator is required to restore the aquifer being mined
for Uranium. To restore this aquifer, ground water is pumped out of
the formation and treated and/or disposed. Eventually the water in
the formation will be restored to a pre-agreed baseline.
\4\ For a list of the processes included under beneficiation,
please see Title 40 CFR 261.4(b)(7).
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IV. Basis for Approval of the Aquifer Exemption
The information provided by COGEMA in the reports included in the
docket adequately addresses the requirements of 40 CFR 146.4 supporting
approval of the aquifer exemption request for the Lance Formation.
Section 146.4 (a) The Formation Does Not Currently Serve as a Source
for Drinking Water in the Vicinity of the Well Sites
There are no drinking water wells extracting water from the Lance
formation in the intervals and areas that are recommended for
exemption. Current information indicates that there are no wells that
could be affected by the injection of the waste in the two injection
wells in question. The general ground water flow in the area is from
the West-North West, putting the proposed injection wells and the
exemption formation ``down-flow'' (down gradient) and at a considerable
distance from any water well developed in the Lance formation. The
nearest documented water well completed in the Lance formation is over
24 miles to the west of the site. The exact use of this well is
unknown, but appears to be associated with oil or gas development.
Approximately 30 miles to the west, the Lance outcrops to the surface
and wells developed there are for livestock use. Where the Lance
Formation occurs near the surface at the western edge of the Powder
River Basin 30 miles southwest of the exemption area, five wells
extracted water from the Lance and Fox Hills formations to supply the
municipalities of Midwest and Edgerton, WY, until 1997. At that time,
the wells were abandoned because of low water productivity (40 gpm
sustainable flow) and the expense of treatment that would be required
to continue using these wells as a public water supply. The towns of
Midwest and Edgerton have determined that piping in pre-treated water
50 miles from Casper, WY is more economically feasible than continuing
operation of the wells completed in the Lance/Fox Hills formations,
even at the relatively shallow depth of 1,500 to 2,000 feet. The
capital costs associated with the development and operation of a new
well field for the municipalities prevented them from taking this
option. Therefore, the Lance is no longer supplying water to a public
drinking water system within 30 miles of the aquifer exemption area.
Section 146.4(b)(2) The Formation Cannot and Will Not Serve as a
Source of Drinking Water Because It Is Situated at a Depth or Location
Which Makes Recovery of Water for Drinking Water Purposes Economically
or Technologically Impractical
The depth of the Lance Formation within the aquifer exemption area
ranges from 4,009 to 6,496 feet at the location of Christensen 18-3,
and from 3,818 to 6,320 feet at the location of the COGEMA DW No. 1
well.
The Wasatch Formation overlies the Lance Formation in the aquifer
exemption area and provides a shallower, potential water supply source
available for use in the area. According to the USGS publications
referenced by COGEMA, any water supply wells (aside from water flood
wells related to oil production) in the aquifer exemption area are
completed in the Wasatch Formation. The Wasatch Formation is a high
quality, prolific aquifer, located at approximately 1,200 feet in depth
or shallower throughout the Powder River Basin, which includes the
aquifer exemption area. The Wasatch Formation, alone, contains a volume
of water that would supply a population of approximately 1.3 million
people for 100 years. Given this abundant, shallow supply of high
quality ground water, it is reasonable to conclude that the deeper
Lance Formation will never be required to provide drinking water in the
area of the aquifer exemption.
COGEMA provided a cost evaluation for the capital costs and
estimated operating costs for developing a private (50 gpm) and a
public (750 gpm) drinking water well, including treatment costs based
on the water quality analysis of samples collected from the Lance
Formation as a water supply source within the aquifer exemption area.
The costs to develop the Lance Formation within the exemption area were
compared with estimated costs to develop the Wasatch Formation as an
alternative public water supply (at the 750 gpm rate). The incremental
cost increase to develop the
[[Page 14802]]
Lance Formation versus Wasatch Formation as a drinking water source for
a public water supply is approximately $3,691,250. The incremental
increase in operations and maintenance cost of using the Lance water
over the Wasatch water as a drinking water source would be $2.40/1,000
gallons.
The Midwest-Edgerton public water supply scenario should be noted
as the most compelling support for the approval of this aquifer
exemption request and the infeasibility of using the Lance Formation as
a public water supply. The five wells were abandoned in favor of piping
drinking water in from Casper, WY. The decision to abandon these wells
was based on the economic burden of treating the water and the low
production rates of the wells, even though the costs of development had
already been expended. Furthermore, the wells that used to serve the
two municipalities tapped shallower portions of the Lance Formation as
compared to any potential well tapping the Lance Formation within the
aquifer exemption area. This added depth translates into significantly
more expensive costs for the drilling and the operation of the wells.
In summary, the Lance Formation will never be considered to be an
economically feasible source of drinking water in the area of the
aquifer exemption due to the great depth, low water production
capacity, and treatment costs that will be incurred as shown by the
Midwest-Edgerton wells experience. The cost of developing the Lance
Formation as a drinking water supply within the aquifer exemption area
is high compared to that of developing shallow, more prolific, and
higher quality sources of drinking water, such as the Wasatch
Formation. The Wasatch is better suited for development in this area as
a source of drinking water due to higher producing capability,
significantly better water quality, and lower or no water treatment
costs.
V. Regulatory Impact/Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Executive Order 13045: Children's Health Protection
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to E.O. 13054 because it is not
economically significant as defined in E.O. 12866, and because the
Agency does not have reason to believe the environmental health or
safety risks authorized by this action impact children. The rule
authorizes injection in a formation that is deep underground and
separated from any aquifer that can provide drinking water. Therefore,
it does not present any foreseeable effect on children's health and
well being.
C. Paperwork Reduction Act
There are no information collection requirements established by
this rule. Therefore, the Paperwork Reduction Act does not apply.
D. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA), EPA generally is required to conduct a regulatory flexibility
analysis describing the impact of the regulatory action on small
entities as part of rulemaking. However, under section 605(b) of the
RFA, if EPA certifies that the rule will not have a significant
economic impact on a substantial number of small entities, EPA is not
required to prepare a regulatory flexibility analysis. Pursuant to
section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the
Administrator certifies that this rule will not have a significant
economic impact on a substantial number of small entities. First, EPA
is unaware of any small entities currently injecting into this aquifer,
or using this aquifer as a source of drinking water. Furthermore, since
this rule relieves existing regulatory requirements for entities
injecting into the aquifer, this rule would have no regulatory impact
on small entities, were there any.
E. Executive Order 12875: Enhancing Intergovernmental Partnerships
Under Executive Order 12875 (48 FR 58093, October 28, 1993), EPA
may not issue a regulation that is not required by statute and that
creates a mandate upon a State, local or tribal government, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by those governments or EPA consults with
those governments. If EPA complies by consulting, Executive Order 12875
requires EPA to provide to the Office of Management and Budget a
description of the extent of the EPA's prior consultation with
representatives of affected State, local and tribal governments, the
nature of their concerns, any written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on a State, local or tribal
government. The rule does not impose any enforceable duties on these
entities. The rule merely approves a request, from the State of
Wyoming, to exempt the designated portions of the Lance Formation from
classification as an underground source of drinking water.
F. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for
[[Page 14803]]
Federal agencies to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. Under
section 202 of the UMRA, EPA generally must prepare a written
statement, including a cost-benefit analysis, for and final rules with
``Federal mandates'' that may result in expenditures to State, local,
and tribal governments, in the aggregate, or to the private sector, of
$100 million or more in any one year. Before promulgating an EPA rule
for which a written statement is needed, section 205 of the UMRA
generally requires EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows EPA to
adopt an alternative other than the least costly, most cost-effective
or least burdensome alternative if the Administrator publishes with the
final rule an explanation why that alternative was not adopted. Before
EPA establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provision of Title II of the UMRA), for State, local or tribal
governments, or the private sector. The rule imposes no enforceable
duty on any State, local or tribal governments or the private sector.
Thus, today's rule is not subject to the requirements of sections 202
and 205 of the UMRA. EPA has also determined that this rule contains no
regulatory requirements that might significantly or uniquely affects
small governments. Thus, today's rule is not subject to the
requirements of section 203 of UMRA.
G. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), the Agency is required to use voluntary
consensus standards in its regulatory and procurement activities unless
to do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures,
business practices, etc.) that are developed or adopted by voluntary
consensus standard bodies. Where available and potentially applicable
voluntary consensus standards are not used by EPA, the Act requires the
Agency to provide Congress, through the Office of Management and
Budget, an explanation of the reasons for not using such standards.
EPA does not believe that this rule addresses any technical
standards subject to the NTTAA.
H. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. There are no tribal
jurisdictions on or near the area of the exemption. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
I. Congressional Review Act
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. 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. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on April 26, 1999.
List of Subjects in 40 CFR Part 147
Environmental protection, Intergovernmental relations, Water
supply.
Dated: March 22, 1999.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 147 is amended
as follows:
PART 147--[AMENDED]
1. The authority citation for part 147 continues to read as
follows:
Authority: 42 U.S.C. 300h; and 42 U.S.C. 6901 et seq.
Subpart ZZ--Wyoming
2. A new Sec. 147.2555 is added to subpart ZZ to read as follows:
Sec. 147.2555 Aquifer exemptions since January 1, 1999.
In accordance with Sec. 144.7(b) and Sec. 146.4 of this chapter,
the aquifers described in the following table are hereby exempted from
the definition of an underground source of drinking water, as defined
in 40 CFR 144.3:
[[Page 14804]]
Aquifer Exemptions Since January 1, 1999
------------------------------------------------------------------------
Formation Approx. depth Location
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Powder River Basin, only 3,800 to 6,800 Two cylindrical
approximately 0.4 square feet from volumes with centers
miles of the Lance Formation surface. in the wells COGEMA
which is less than 0.005% of DW No. 1 and 18-3
the Basin at indicated depths Christensen
and location.. respectively, and
radius of 1,320
feet. Both wells are
located in the
Christensen Ranch,
in Johnson County,
WY. The COGEMA DW
No. 1 well is
located at
approximately 450
feet West of N/S
line and 100 feet
North of E/W line of
SE/4, NW/4, Section
7, T44N, R76W. The
18-3 Christensen
well is located
approximately 600
feet West of N/S
line and 550 South
of E/W line of NE/4,
NW/4, Section 18,
T44N, R76W.
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[FR Doc. 99-7432 Filed 3-25-99; 8:45 am]
BILLING CODE 6560-50-P
