[Federal Register Volume 64, Number 204 (Friday, October 22, 1999)]
[Proposed Rules]
[Pages 56986-56991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27516]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[FRL-6461-5]
State of Alabama; Underground Injection Control (UIC) Program
Revision; Approval of Alabama's Class II UIC Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: EPA announces a proposed rulemaking, public hearing and public
comment period regarding approval of Alabama's Class II Underground
Injection Control (UIC) Program Revision to regulate as ``underground
injection'' hydraulic fracturing associated with coal bed methane gas
production. Section 1422(b)(4) of the Safe Drinking Water Act (SDWA)
requires that prior to approving, disapproving, or approving in part a
State's UIC program, the Administrator provide opportunity for a public
hearing. This notification advises the public of the date, time and
location of the public hearing. The public comment period and public
hearing will provide EPA with information and public opinion necessary
to approve, disapprove, or approve in part under provisions of section
1425 of the SDWA, the revision application from the Alabama Oil and Gas
Board to regulate hydraulic fracturing of coal beds. The proposed
rulemaking is the Agency's preliminary determination to approve
revision to Alabama's Class II UIC program administered by the State
Oil and Gas Board.
DATES: Written comments on EPA's proposed rule approving the Alabama
Class II UIC Program Revision must be received by the close of business
Monday, November 29, 1999. A public hearing will be held Monday,
November 22, 1999, at 5:00 p.m. Central Standard Time (CST) to discuss
approval of the Alabama Class II UIC Program revision to regulate
hydraulic fracturing of coal beds. Registration for the hearing will
begin at 4:00 pm; however, speakers may also register prior to the
meeting.
ADDRESSES: Persons wishing to comment upon or object to any aspects of
this proposed approval action of Alabama's revision to its Class II
Program are invited to submit oral or written comments at the public
hearing or submit written comments to the Ground Water/Drinking Water
Branch, Ground Water & UIC Section, United States Environmental
Protection Agency, Region 4, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, S.W., Atlanta, GA 30303-8960, Attention: Mr. Larry
Cole. Copies of documents regarding this action are available for
inspection and copying between 8:30 a.m. and 4:00 p.m. Monday through
Friday at the following locations: Environmental Protection Agency,
Region 4, 9th Floor Library, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, S.W., Atlanta, GA 30303-8960, PH: (404) 562-8190; and
the State Oil & Gas Board of Alabama, 420 Hackberry Lane, Tuscaloosa,
AL 35489-9780, PH: (205) 349-2852.
The public hearing will be held at the University of Alabama in the
Sellers Auditorium of the Bryant Conference Center, 240 Bryant Drive,
Tuscaloosa, Alabama 35401. Those interested should contact the Bryant
Conference Center at (205) 348-8751 for directions.
FOR FURTHER INFORMATION CONTACT: Mr. Larry Cole, at (404) 562-9474 or
at the following address: Environmental Protection Agency, Water
Management Division, Ground Water/Drinking Water Branch, Ground Water &
UIC Section, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, S.W.,
Atlanta, GA 30303-8960.
SUPPLEMENTARY INFORMATION:
I. Background Information
On August 2, 1982, EPA granted primary enforcement responsibility
(primacy) for the Class II Underground Injection Control (UIC) Program
under section 1425 of the Safe Drinking Water Act (SDWA) to the State
of Alabama. The SDWA requires EPA to approve an effective in-place
state UIC Program to protect Underground Sources of Drinking Water
(USDW) from endangerment that could result from the improper injection
of fluids associated with, among other things, oil and gas production.
On May 3, 1994, the Legal Environmental Assistance Foundation, Inc.
(LEAF) submitted a petition to EPA to withdraw Alabama's UIC Program
asserting that the State was not regulating activities associated with
coal bed methane gas production wells. Following EPA's May 5, 1995
denial of the petition, LEAF sought review of this decision by the
United States Court of Appeals for the Eleventh Circuit. On August 7,
1997, in LEAF v. EPA, 118 F. 3d 1467 (11th Cir. 1997), the Court held
as follows: hydraulic fracturing activities constitute ``underground
injection'' under Part C of the Safe Drinking Water Act, id. at 1478;
all underground injection is required to be regulated (by permit or
rule), id. at 1474; and hydraulic fracturing associated with coal bed
methane gas production is not currently regulated under Alabama's UIC
Program, id. at 1471. On February 18, 1999, the Eleventh Circuit issued
a Writ of Mandamus directed at EPA to enforce its August 1997 decision.
The Writ established a schedule for EPA to follow to determine whether,
in light of the Court's ruling regarding hydraulic fracturing, EPA
should withdraw approval of Alabama's UIC Program. The Writ also stated
that once hydraulic fracturing associated with methane gas production
is regulated as underground injection by the State of Alabama and the
program revision is approved by EPA, the withdrawal proceedings may
cease. To date, EPA has been following the Writ of Mandamus withdrawal
schedule pending approval of Alabama's program revision.
Withdrawal Activities to Date
Section 1425 of the SDWA and subsequent published EPA guidance
documents do not contain express procedures for the withdrawal of a
section 1425 program. EPA has promulgated procedures for withdrawing a
section 1422 program at 40 CFR 145.34(b). In light of the Court's Writ
of Mandamus, which essentially tracks the withdrawal procedures in
section 145.34(b), EPA followed these procedures in proposing to
withdraw Alabama's section 1425 program.
On March 19, 1999, the Regional Administrator of EPA Region 4
notified the Supervisor of the State Oil and Gas Board of Alabama of
EPA's decision to initiate the process to withdraw approval of the
Alabama UIC Program. The Regional Administrator's notice to the
Supervisor of the State Oil and Gas Board of Alabama constituted the
first step in the withdrawal process. According to the procedures
established in 40 CFR 145.34(b) and the Writ of Mandamus, the State was
given 30 days after the notice to demonstrate that its UIC Program is
in compliance with the SDWA and 40 CFR part 145 (i.e., that hydraulic
fracturing associated with methane gas production is regulated as
[[Page 56987]]
``underground injection,'' by permit or rule, pursuant to the EPA
approved Underground Injection Control Program). The Supervisor of the
State Oil and Gas Board responded to the Regional Administrator's
letter by a letter dated April 15, 1999. The response indicated that on
March 5, 1999, the State Oil & Gas Board of Alabama promulgated rules
which regulate hydraulic fracturing of coal bed methane gas wells by
rule authorization. These new regulations were added as an Emergency
Order and sent to the Alabama Legislative Reference Service under
section 41-22-5 of the Code of Alabama (1975). They became effective on
March 11, 1999, for a period of no longer than 120 days, and indicated
that the State Oil & Gas Board rule would be made permanent prior to
the expiration of the Emergency Order.
By letter dated May 18, 1999, the Regional Administrator notified
the Supervisor of the State Oil and Gas Board that, in order for the
regulation of hydraulic fracturing for coal bed methane to become part
of an EPA approved UIC program, Alabama should submit a revised UIC
program package containing new regulations to EPA for review and
approval. That action constituted the second step in the withdrawal
process set out in 40 CFR 145.34(b) and the Writ of Mandamus.
On May 21, 1999, Region 4 announced in the Federal Register a
public hearing in the Tuscaloosa Public Library on July 28, 1999 giving
the public the opportunity to comment on withdrawal of Alabama's Class
II Underground Injection Control Program. Region 4 received written and
oral comments at the hearing, but the hearing was canceled prior to
conclusion by the Tuscaloosa Fire Marshall due to overcrowding. In the
August 10, 1999, Federal Register, Region 4 rescheduled the July 28,
1999 public hearing for September 9, 1999, and extended the public
comment period until September 16, 1999, allowing the public the
opportunity to make comments concerning withdrawal of Alabama's Class
II UIC program. At the September 9, 1999, public hearing, Region 4
received comments from concerned citizens, the Legal Environmental
Assistance Foundation, industry representatives, and the Alabama
Chapter of the Sierra Club. Comments obtained from both of those public
hearings and written comments received until the close of business on
September 16, 1999, are part of Region 4's administrative record on the
proposed withdrawal of Alabama's UIC program.
EPA received a wide range of comments. Some considered Alabama's
hydraulic fracturing rule, originally adopted by the Oil and Gas Board
in March 1999, and revised by the Board in August 1999, adequate to
protect underground sources of drinking water; others did not. Some
comments at the public hearing reflected environmental concerns from
hydraulic fracturing activities beginning in September of 1989. Other
comments recommended adding a tracer to the hydraulic fracturing fluid
in order to verify if the fracturing fluids are endangering USDWs. Some
commented that potential over-regulation of the coal bed industry could
place an undue economic burden on industry. Written and oral comments
received at both public hearings, plus written comments received during
the public notice comment period were reviewed by EPA Region 4 after
the public notice comment period ended on Thursday, September 16, 1999.
On September 23, 1999, the Regional Administrator of Region 4
notified the Supervisor of the State Oil and Gas Board of Alabama's
Class II UIC program's continuing specific deficiencies and necessary
remedial actions. That action constituted the third step in the
withdrawal process set out in 40 CFR 145.34(b). If the State of
Alabama's program revision correcting the deficiencies is not approved
by EPA through rulemaking by December 22, 1999, the Writ of Mandamus
directs EPA to withdraw approval of Alabama's UIC Program.
Alabama Class II UIC Program Revision
The Safe Drinking Water Act required EPA to implement a regulatory
program to prevent underground injection activities from endangering
Underground Sources of Drinking Water (USDWs) which are aquifers
capable of yielding a significant amount of drinking water containing
less than 10,000 milligram per liter (mg/liter) of total dissolved
solids. The State of Alabama currently has primary responsibility for
implementing a UIC program preventing endangerment of USDWs. The
Alabama Oil and Gas Board has held primary enforcement authority for
the Class II UIC program since the program was originally approved by
EPA pursuant to section 1425 of the SDWA on August 2, 1982. The
application for program revision submitted by the Alabama Oil and Gas
Board on October 6, 1999, requests that EPA approve the program
revision for primary administrative and enforcement authority for the
regulation of hydraulic fracturing of coal beds on all lands subject to
the State's police power and taxing authority and all lands owned or
under the jurisdiction of the United States, except those wells located
on Indian lands as defined in 40 CFR 144.3. The application includes a
program description, copies of all applicable rules and forms, a
statement of legal authority and appropriate memoranda of agreement.
EPA is proposing to approve Alabama's UIC program revision
addressing hydraulic fracturing pursuant to section 1425 of the SDWA.
Section 1425 provides that EPA may approve that portion of a State's
UIC program which relates to ``any underground injection for the
secondary or tertiary recovery of oil or natural gas'' if the program
meets certain requirements of section 1421 and ``represents an
effective program (including adequate recordkeeping and reporting) to
prevent underground injection which endangers drinking water sources.''
EPA interprets section 1425 broadly as establishing an alternative
method (in lieu of the showing required by section 1422(b)(1)(A)) for a
State to obtain primary enforcement responsibility for those portions
of its UIC program related generally to the recovery and production of
oil and natural gas (46 FR 27333 (May 19, 1981)). Accordingly, EPA is
proposing to approve the hydraulic fracturing component of Alabama's
UIC program under section 1425.
Although section 1425 of the SDWA does not specifically refer to
hydraulic fracturing for methane production, it is reasonable to assume
that Congress would have intended that approval of State underground
injection programs relating to this type of gas production activity
would fall within the more flexible approval standards Congress
established for oil- and gas-related injection programs in section
1425. The legislative history of section 1425 indicates that Congress
intended it to cover the same set of underground injection practices
related to oil and gas production as had been covered by section 1422,
i.e., all of them. Nothing suggests that Congress, in creating an
alternative demonstration for ``secondary or tertiary recovery''-
related injection under section 1425, was leaving behind another
undefined category of oil- and gas-related injection activities for
approval exclusively pursuant to section 1422. Congress' use of the
terms ``secondary or tertiary recovery'' in section 1425 in all
likelihood reflects nothing more than Congress' belief that those terms
covered all relevant oil- and gas-related
[[Page 56988]]
injection activities. To conclude otherwise would require States to
seek approval for their oil- and gas-related UIC program under both
section 1425 and 1422. This would be both inefficient and inconsistent
with Congress' expressed admonition that EPA not prescribe unnecessary
requirements related to oil- and gas-related injection (42 U.S.C.
300h(b)(2)).
Pursuant to the State of Alabama's authority under section 9-17-
6(c)(3) and (13) of the Code of Alabama and in accordance with the
Eleventh Circuit's LEAF decision, the State Oil and Gas Board of
Alabama adopted on August 20, 1999, a rule to regulate hydraulic
fracturing of coal beds. This rule, submitted to EPA along with
Alabama's program revision package, embodies the State's requirements
for such fracturing activities. In summary, the new rule (Rule 400-4-
5-.04) establishes standards and procedures which the State Oil and Gas
Board of Alabama will apply when evaluating proposals to hydraulically
fracture coal beds. Among other things, Rule 400-4-5-.04 of the State
Oil and Gas of Alabama Administrative Code specifically provides that
each coal bed shall be hydraulically fractured so as not to endanger
any underground source of drinking water (USDW), and coal beds shall
not be hydraulically fractured in a manner that allows the movement of
fluid containing any contaminant into a USDW, if the presence of that
contaminant may cause a violation of any applicable primary drinking
water regulation under 40 CFR part 141 or otherwise adversely affect
the health of persons. It is EPA's interpretation that this is
consistent with part C of the Safe Drinking Water Act.
The rule establishes requirements that, should hydraulic fracturing
of coal bed operations occur in a USDW, the operator must certify that
the injectate meets drinking water standards before approval for
injection can be obtained. Additional requirements pertaining to the
depth of the hydraulic fracturing operation and geologic confining
strata were established to prevent impacts on private and public
drinking water supplies. For example, hydraulic fracturing of coal beds
is prohibited at depths of less than 300 feet from the surface.
Fracturing at lower depths also requires additional demonstrations
including delineation of drinking water use around the fracturing
operation and assurances for the prevention of upward movement of
fluids. For every proposal to hydraulically fracture a coal bed,
written approval from the Oil and Gas Supervisor must be obtained
before the operation can commence.
EPA Region 4 believes that Rule 400-4-5-.04's requirements,
together with the additional elements of Alabama's revision package,
represent an effective program to prevent underground injection which
endangers drinking water sources. Section 1425 requires a State to
demonstrate that its Underground Injection Control (UIC) Program meets
the requirements of section 1421(b)(1)(A) through (D) and represents an
effective program (including adequate record keeping and reporting) to
prevent underground injection which endangers drinking water sources.
Accordingly, section 1425 requires that a State, in order to receive
approval under the optional demonstration, makes a successful showing
that its program meets the following five conditions:
(1) Section 1421(b)(1)(A) requires that an approvable State
program prohibit any underground injection in such State which is
not authorized by permit or rule.
(2) Section 1421(b)(1)(B) requires that an approvable State
program shall require that: (i) the applicant for a permit must
satisfy the State that the underground injection will not endanger
drinking water sources; and (ii), no rule may be promulgated which
authorizes any underground injection which endangers drinking water
sources.
(3) Section 1421(b)(1)(C) requires that an approvable State
program include inspection, monitoring, record keeping, and
reporting requirements.
(4) Section 1421(b)(1)(D) requires that an approvable State
program apply to: (i) underground injection by Federal agencies; and
(ii), underground injection by any other person, whether or not
occurring on property owned or leased by the United States.
(5) Section 1425(a) requires that an approvable State program
represent an effective program to prevent underground injection
which endangers drinking water sources.
EPA Region 4 has concluded that the current Rule 400-4-5-.04,
(Protection of Underground Sources of Drinking Water during the
Hydraulic Fracturing of Coal Beds), along with the rest of Alabama's
revision package, satisfies the above five conditions of section 1425
for approving a State's program. The basis for our conclusion for each
condition is as follows:
(1) Rule 400-4-5.-04 (4) states, ``Coal beds shall not be
hydraulically fractured until the written approval of the Supervisor is
obtained.'' This satisfies the requirement of section 1421(b)(1)(A).
(2) Section 1421(b)(1)(B)(i) is satisfied because, while the
Alabama regulation does not establish a permit requirement, Rule 400-4-
5-.04(4) states, ``Coal beds shall not be hydraulically fractured until
the written approval of the Supervisor is obtained.'' Section
1421(b)(1)(B)(ii) is also satisfied because Rule 400-4-5-.04(2) states,
``Coal beds shall not by hydraulically fractured in a manner that
allows the movement of fluid containing any contaminant into a USDW, if
the presence of that contaminant may: (a) cause a violation of any
applicable primary drinking water regulation under 40 CFR part 141; or
(b) otherwise adversely affect the health of persons.''
(3) Section 1421(b)(1)(C) is satisfied since Rule 400-4-5-.04
includes inspection, monitoring, recordkeeping and reporting
requirements. The State rule provides adequate inspection of a
hydraulic fracturing operation in accordance with section
1421(b)(1)(C). The last sentence of Rule 400-4-5-.04(4) states that
``In accordance with Rule 400-4-3-.01(2), the Supervisor may send a
duly authorized representative to witness the fracturing operation.''
Additionally, Rule 400-4-5-.04(5)(c)(3), which covers coal beds in the
depth interval 300 to 749 feet states that, ``A representative of the
Board shall conduct a field reconnaissance within a \1/4\-mile radius
of the coalbed methane gas well to determine the location of any
additional fresh-water supply wells that may not be identified in the
previous described documents.''
The rule also provides for adequate monitoring of fracturing
operations. Rule 400-4-5-.04(3) states that, ``the operator shall
certify in writing to the Supervisor that the proposed fracturing
operation will not occur in a USDW,'' and provide evidence supporting
how the determination was made. Otherwise, if the proposed fracturing
occurs in a USDW, the operator shall certify in writing to the
Supervisor that the mixture of fluids to be used to hydraulically
fracture the coal beds does not exceed the maximum contaminant levels
contained in 40 CFR part 141, subpart B and G. EPA believes these
requirements of the Alabama State Rule adequately fulfill the
monitoring requirements of an effective State program.
The rule provides for adequate reporting requirements. In addition
to Rule 400-4-5-.04(3) mentioned above, Rule 400-4-5-.04(5)(a)(3)
requires the submittal of Form OGB-7, Well Record and Completion
Report, for casing and cementing specifications. If the coal bed
methane gas well is in a state of completion or recompletion, and Form
OGB-7 is not required to be filed with the Board prior to the
fracturing operation, then the Supervisor shall require the operator to
submit a wellbore schematic showing the specifications of the casing
and cementing program.
[[Page 56989]]
The rule also provides for adequate recordkeeping. Rule 400-4-
5-.04(7) requires that operators maintain records until such time that
the coalbed methane gas well has been plugged for permanent
abandonment, but not less than three (3) years following completion of
the fracturing operation.
(4) Section 1421(b)(1)(D) is satisfied since the State's Rule and
Alabama's existing UIC Program applies to all relevant entities. The
Alabama Oil and Gas Board has the authority to regulate operators who
hydraulically fracture coal beds. Rule 400-1-1.03(32) defines operator
as ``any person who, duly authorized, is in charge of the development
of a lease or the operation of a producing well, and, in addition, for
the purpose of assigning responsibility, may also be the person
indicated as operator by the most current records of the Board.'' Rule
400-1-1-.03(34) defines person as ``any natural person, firm,
corporation, association, partnership, joint venture, receiver,
trustee, guardian, executor, administrator, fiduciary, representative
of any kind, or any other group acting as a unit, and the plural as
well as the singular number.'' Therefore, this program revision applies
to underground injection by Federal agencies and underground injection
by any other person, whether or not occurring on property owned or
leased by the United States.
(5) Finally, the requirement of section 1425 is met because the
current revision application package and Rule 400-4-5-.04, represents
an effective program under section 1425(a) to prevent underground
injection which endangers drinking water sources. State Rule 400-4-
5-.04 (2) states, ``Coal beds shall not be hydraulically fractured in a
manner that allows the movement of fluid containing any contaminant
into a USDW, if the presence of that contaminant may: (a) cause a
violation of any applicable primary drinking water regulation under 40
CFR part 141; or (b) otherwise adversely affect the health of
persons.'' This statement embodies and is consistent with the
``endangerment'' standard in section 1421(d)(2) of the SDWA. This
statement provides the basic prohibition against hydraulic fracturing
which endangers drinking water sources.
The State has also adopted a number of regulatory provisions
preventing underground injection which endangers drinking water
sources. State Rule 400-4-5-.04(3) states, ``The operator shall certify
in writing to the Supervisor that the proposed fracturing operation
will not occur in a USDW. Evidence that supports how the determination
was made shall accompany such certification and be acceptable to the
Supervisor. Otherwise, the operator shall certify in writing to the
Supervisor that the mixture of fluids to be used to hydraulically
fracture the coal beds does not exceed the maximum contaminant levels
contained in 40 CFR part 141, subpart B and G.'' This provision
requires a certification that fracturing fluids will not be injected
into a USDW or establishes specifications for the specifications for
the quality of the injectate should the injection occur into the USDW.
Specifically, it states that the injectate must meet drinking water
standards. Therefore, EPA concludes that adequate provisions have been
established to prevent endangerment from hydraulic fracturing
operations.
State Rule 400-4-5-.04(5)(a)5 states, ``A geophysical log, or gamma
ray log, shall be evaluated to determine the type and thickness of
strata overlying the uppermost coal bed to be fractured. Impervious
strata, such as shale, must overlie the uppermost coal bed and be of
sufficient thickness and consistency to serve as a barrier to the
upward movement of fluids. Otherwise, a fracturing proposal will be
denied.'' This provision will ensure that underground injection will
not cause movement of fluids from the fracturing zone, which may be of
lesser quality, into upper underground sources of drinking water.
Should injection occur below the USDW, where injectate quality will not
be addressed by 400-4-5-.04(3), this provision prohibits the upward
movement of injectate and other formation fluids into the USDW. The
quality (measured as total dissolved solids) of aquifers in the
formations where hydraulic fracturing of coal beds occurs generally
decreases as depth of the aquifer increases (Passion et al, 1991;
Passion and Hinkle, 1997). In other words, if injection does not occur
in a USDW, it is probably below the lowermost USDW. Therefore,
injection occurring below the USDW is prevented from moving upwards
into the USDW and downward movement would not be towards a USDW. EPA
concludes that adequate provisions have been established to prevent
endangerment from movement of injection fluids and formation fluids
into a USDW.
Additional protection is afforded because operators will be
required to follow the requirements of Rule 400-4-3-.02, Casing
Requirements, which will be evaluated by the Supervisor to ensure
compliance. Hydraulic fracturing will not be allowed unless the coalbed
methane well is constructed in accordance with Rule 400-4-3.02. Rule
400-4-3.02 provides requirements to ensure the integrity of the surface
casing and provides minimum criteria for cased hole and open-hole
completion of coalbed methane wells. In accordance with Rule 400-4-
5.04(2), ``any coalbed methane gas well that is not constructed in
accordance with Rule 400-4-3-.02 shall not be allowed to produce and
may be required to be immediately plugged and abandoned.'' Therefore,
EPA concludes that adequate provisions have been established to prevent
endangerment during hydraulic fracturing caused by well integrity
failure.
Additionally, a Cement Bond Log shall be evaluated for coal bed
proposals in the 750-1000 feet depth range and is required for Coal Bed
proposals in the 300-749 feet depth range to ascertain the top of
cement and degree of bonding above the upper most coal bed to be
fractured. Rule 4004-5-.04(5)(c) also requires that records of fresh-
water supply wells within a \1/4\-mile radius of the coal bed gas well
shall be used in delineating the construction and completion depth of
such supply wells. A field reconnaissance within a \1/4\-mile radius to
determine the location of any additional fresh-water supply wells shall
be conducted by the Board. Fracturing operations shall not be allowed
if the Supervisor determines that any fresh-water supply well located
within \1/4\-mile radius of the coal bed methane gas well could be
adversely impacted in a manner described in part 400-4-5.04(2) of the
rule as a result of the fracturing operation. All of these provisions
provide additional assurances that underground injection does not
endanger drinking water sources.
Rule 400-1-1.06, referenced in Alabama's revision package, requires
operators to allow and assist State agents in making any and all
inspections that may be required by the Board. The agents are to have
access to all records and shall be permitted to come upon any property
at all times to make such inspections. This ensures an adequate
surveillance program is in place to determine compliance with its
requirements of Rule 400-4-5.04 and State regulations and provides an
effective means to enforce against violators.
EPA concludes that Alabama's UIC revision application satisfies
section 1425(a) which requires that an approvable State program
represents an effective program to prevent underground injection which
endangers drinking water sources.
At the public hearing EPA will accept comments on its proposal to
approve Alabama's review to its Class II UIC
[[Page 56990]]
Program covering hydraulic fracturing. Copies of Federal Register
outlining this rule will be available at the public hearing and can be
also be obtained by contacting Larry Cole at EPA.
II. Regulatory Impact
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:
a. 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;
b. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
c. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
d. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This rule does not meet any of the conditions described above and
therefore, is not a ``significant regulatory action'' and is not
subject to OMB review. The rule would only approve regulations adopted
by the State of Alabama and effective as a matter of State law and,
therefore, would not itself adversely affect in a material way any of
the activities or entities referred to in the Executive Order.
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. 13045 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 would
merely approve regulations adopted by the State of Alabama and
effective as a matter of State law and would not itself bring about any
changes in environmental protection in the State of Alabama. Therefore
it would not present any foreseeable effect on children's health and
well being.
C. Paperwork Reduction Act
EPA has determined that the Paperwork Reduction Act, 44 U.S.C. 3501
et seq., does not apply to this proposed rule since no information
collection requirements would be established by this rule.
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 prepare an initial regulatory
flexibility analysis describing the impact of the regulatory action on
small entities as part of any proposed rulemaking. However, under
section 605(b) of the RFA, if EPA certifies that the proposed rule will
not have a significant economic impact on a substantial number of small
entities, EPA is not required to prepare an initial regulatory
flexibility analysis. Pursuant to section 605(b) of the Regulatory
Flexibility Act, 5 U.S.C. 605(b), the Administrator certifies that this
proposed rule would not have a significant economic impact on small
entities.
This rule would not have a significant economic impact on a
substantial number of small entities because the rule would not create
any new requirements but merely approve regulations adopted by the
State of Alabama and effective as a matter of State law. Accordingly,
the rule would impose no additional requirements on small entities
beyond those already imposed under Alabama law and, therefore, would
have no economic impact on such entities.
E. Executive Orders on Federalism
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. If the mandate is
unfunded, EPA must 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, copies of 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 would not create a mandate on state, local or tribal
governments. The rule would not impose any enforceable duties on these
entities. The rule would merely approve regulations adopted by the
State of Alabama to ensure that hydraulic fracturing of coal bed seams
in connection with methane gas production will not endanger underground
sources of drinking water.
On August 4, 1999, President Clinton issued a new Executive Order
on Federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)),
which will take effect on November 2, 1999. In the interim, the current
Executive Order 12612, (52 FR 41685 (October 30, 1987)), on federalism
still applies. This rule would not have a substantial direct effect on
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 12612,
because this rule would affect only one State. This rule would simply
approve regulations adopted by the State of Alabama to ensure that
hydraulic fracturing of coal bed seams in connection with methane
production will not endanger underground sources of drinking water and
make such regulations part of the federally-approved UIC program that
the State has voluntarily chosen to operate.
F. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for 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 proposed and final rules with ``Federal mandates'' that
may
[[Page 56991]]
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.
EPA has determined that this proposed rule does not contain a
federal mandate (under the regulatory provisions of Title II of UMRA)
for state, local, and tribal governments, or the private sector.
Today's rule would merely approve requirements already in place in the
State of Alabama. The rule would impose no additional 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 affect
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 proposed 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. If the mandate is unfunded,
EPA must 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 proposed rule would not significantly or uniquely affect
the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
List of Subjects in 40 CFR Part 147
Environmental protection, Intergovernmental relations, Water
supply.
Dated: October 14, 1999.
John H. Hankinson, Jr.,
Regional Administrator, Region 4.
For the reasons set out in the preamble, 40 CFR part 147 is
proposed to be 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 B--Alabama
2. Section 147.52 is added to Subpart B to read as follows:
Sec. 147.52 State-administered program--Hydraulic Fracturing of Coal
Beds.
The UIC program for hydraulic fracturing of coal beds in the State
of Alabama, except those on Indian lands, is the program administered
by the State Oil and Gas Board of Alabama, approved by EPA pursuant to
section 1425 of the SDWA. Notice of this approval was published in the
Federal Register on [date of final rule]; the effective date of this
program is 30 days after the date of publication of the Notice of
Approval. This program consists of the following elements, as submitted
to EPA in the State's program application:
(a) Incorporation by reference. The requirements set forth in the
State regulations, 400-4-5-.04. Protection of Underground Sources of
Drinking Water during the Hydraulic Fracturing of Coal Beds, are hereby
incorporated by reference and made a part of the applicable UIC program
under the SDWA for the State of Alabama. This incorporation by
reference was approved by the Director of the Federal Register on
______ in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
(b) The Memorandum of Agreement between EPA Region 4 and the
Alabama Oil and Gas Board and addendums signed by the EPA Regional
Administrator.
(c) Statement of Legal Authority. ``Pursuant to my authority as
Attorney General for the State of Alabama and for reasons set forth in
this statement, I hereby certify that in my opinion, the laws of the
State of Alabama provide the State Oil and Gas Board (hereinafter
referred to as ``the Board'') adequate authority to carry out an
Underground Injection Program for the control of underground injection
activity related to the hydraulic fracturing of coal beds.'' Opinion by
Attorney General dated October 8, 1999.
(d) The Program Description and any other materials submitted as
part of the application or as supplements thereto.
[FR Doc. 99-27516 Filed 10-18-99; 2:49 pm]
BILLING CODE 6560-50-P
