01-27836. Proposed Revision to That Portion of the Approved Texas Underground Injection Control (UIC) Program Administered by the Railroad Commission of Texas (RRC)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed rulemaking.

SUMMARY:

EPA received an application to revise portions of Texas' approved Underground Injection Control (UIC) program for Class III brine mining injection wells. After careful review of the application, EPA determined the revision to the RRC UIC program warrants approval. Further, the relevant UIC regulation at 40 CFR 145.32(b)(2) requires that whenever EPA determines the proposed program revision is substantial, EPA shall publish its decision in the Federal Register and in enough large newspapers to achieve statewide coverage to allow the opportunity for the public to comment for at least 30 days. By this notification, EPA advises the public of the nature of the proposed action, time-frame during which public comment will be taken, and the address where comments should be forwarded. The regulation provides an opportunity for the public to request a hearing. Such a hearing shall be held if there is significant public interest based on requests received. As such, this action advises the public of the hearing request process and opportunity to request a hearing.

The application to revise portions of the State's UIC program, and public comments received in response to this document will provide EPA with the essential information necessary to approve, disapprove, or approve in part, the proposed revision submitted under Section 1422 of the Safe Drinking Water Act (SDWA). This action is being taken to ensure that the proposed revisions of the Texas UIC program which describe the statutes and regulations governing underground injection are incorporated by reference into the Code of Federal Regulations.

DATES:

EPA will accept public comments and requests for hearing on the proposed revision to the approved RRC UIC program from November 8, 2001 until the close of the business day of December 10, 2001.

ADDRESSES:

Written public comments should be sent to the Environmental Protection Agency, Ground Water/UIC Section (6WQ-SG), 1445 Ross Avenue, Dallas, Texas, 75202, or electronically to [e-mail]. Please include your name, address, and optionally, your affiliation with any public or private organization. Paper copies of the revision application, related correspondence, and documents are available for examination and duplication (for a nominal fee) between the hours of 8:00 a.m. and 4:30 p.m. Monday through Friday at the EPA offices in Dallas.

FOR FURTHER INFORMATION CONTACT:

Technical Information: Ray Leissner, Ground Water/UIC Section (6WQ-SG), Environmental Protection Agency, Region 6, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Section 1421 of the SDWA requires the Administrator to promulgate minimum requirements for effective State programs to prevent underground injection activities which endanger underground sources of drinking water (USDWs). Section 1422 of the SDWA allows states to apply to the EPA Administrator for authorization of primary enforcement and permitting authority (primacy) over injection wells within the State. Section 1422(b)(1)(A) provides that States shall submit to the Administrator an application which contains a showing satisfactory to the Administrator that the State has adopted and will implement an underground injection control program which meets the requirements of regulations in effect under Section 300h of the SDWA, and will keep such records and make such reports with respect to its activities under its underground injection control program as the Administrator may require by regulation. Section 1422(b)(1)(B)(2) requires, after reasonable opportunity for public comment, the Administrator to, by rule, approve, disapprove, or approve in part, the State UIC program.

EPA's approval for primacy for the State of Texas for underground injection into Class I, III, IV, and V wells was published on January 6, 1982 (47 FR 618), and became effective February 7, 1982. Elements of the State's primacy application, submitted through the Texas Department of Water Resources (TDWR), a predecessor to the Texas Natural Resource Conservation Commission (TNRCC), were approved and published in Title 40 of the Code of Federal Regulations, 40 CFR 147.2200. Since that time, authority has been passed through to succeeding agencies. The TDWR became the Texas Water Commission (TWC) which was reorganized in 1993 into the TNRCC, the agency currently charged with administering the UIC program for Class I, III, IV, and V wells.

In addition to the TDWR receiving approval to administer the UIC program for Class I, III, IV and V injection wells, the RRC received approval to administer the UIC program for energy related injection activities in the State, effective May 23, 1982. These wells include Class II injection wells related to oil and gas exploration and production, and Class V geothermal wells. In 1985 the 69th Texas Legislature enacted legislation that transferred jurisdiction over Class III brine mining wells from the TNRCC's immediate predecessor, the TWC, to the RRC.

Section 1422 of the SDWA and regulations at 40 CFR 145.32 allow for revision of approved State UIC programs when State statutory or regulatory authority is modified or supplemented. In accordance with those requirements, the RRC submitted an application to EPA for approval of that portion of the RRC's UIC program governing Class III brine mining wells. Other Class III injection wells remain regulated by the TNRCC.

II. Actions Related to This Rulemaking

The RRC revision application for Class III brine mining injection wells was submitted for approval in its final form in May 1999. Prior to that submission, the RRC submitted key elements of a draft revision application to Region 6 for evaluation. EPA utilized the same review team used to evaluate the TNRCC's UIC program revision application also proposed for approval elsewhere in this volume. The team, consisting of EPA staff from the Region and EPA Headquarters, reviewed the draft application and found nine issues of concern. In April of 1997 EPA and RRC representatives met to seek resolution of these issues. The issues that were raised during the evaluation period and their resolutions are discussed below.

(A) Protection Standard

To be approved under Section 1422 a State must, among other things, show that it will implement an underground injection control program which meets the requirements of the federal regulations in effect under SDWA Section 1421. Specifically, all State programs approved under Section 1422 must meet the requirements of 40 CFR Part 145 and must have legal authority to implement each of the provisions identified in Section 145.11. States need not implement provisions identical to the provisions listed in Section 145.11, but they must implement provisions that are at least as stringent.

Underground sources of drinking water (USDW) are protected under the UIC program and are defined in 40 CFR 144.3. That definition includes a clearly defined threshold of 10,000 milligrams per litre (mg/l) total dissolved solids (TDS). Aquifers containing water which supplies a public water supply (PWS) or contains a sufficient quantity to supply a PWS with a TDS content less than 10,000 mg/l are USDWs and are protected from endangerment by the SDWA and EPA regulations.

The RRC uses the term “fresh water” as an equivalent regulatory protection standard in their UIC program. The RRC's definition of the term “fresh water” does not include a specific water quality threshold standard expressed in terms of TDS. Concern was raised by EPA over the potential to interpret the definition of “fresh water” to exclude USDWs. This primary issue formed the basis for other concerns, raised by EPA including fluid migration and plugging and abandonment standards.

The RRC asserts that its definition of fresh water is broader in scope than EPA's definition of USDW and includes USDWs. Accordingly, the RRC provided a supplement to the Attorney General's Statement, signed June 2, 1998, stating the term “fresh water” as defined by the TNRCC subsumes the SDWA term “underground sources of drinking water” as defined by EPA. EPA requested additional written assurance on the matter and received a letter from Steven J. Seni, Ph.D., Deputy Director for Underground Hydrocarbon Storage and Brine Mining, dated October 28, 1998, sufficient to conclude the RRC's definition of fresh water includes USDWs as defined by the TNRCC at Title 30 of the Texas Administrative Code Section 331.2. TNRCC's definition includes a clearly defined threshold of 10,000 TDS, as found in the federal definition for USDWs at 40 CFR 144.3.

(B) Fluid Migration

Section 144.12 (a) states no owner or operator shall construct, operate, maintain, convert, plug, abandon, or conduct any other injection activity that allows the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of any primary drinking water regulation under 40 CFR Part 142 or may otherwise adversely affect the health of persons. The RRC's equivalent rule, Rule 81, prohibits injected fluid from migrating out of the injection zone. Both the State and Federal UIC programs have well construction standards that require casing and cement placement related to the presence of water-bearing aquifers that are protected under the regulations. Uncertainty was expressed by EPA that the RRC regulations on well casing construction were designed on the basis of preventing fluid migration into fresh water. At that time, given the existing disjunct in associating the terms “fresh water” and USDW, it was unclear to EPA that there existed a regulatory prohibition against fluid migration along the outside of the casing into a USDW. In response, the RRC provided further explanation of Commission rules regarding construction and mechanical testing requirements. This, coupled with the actions taken to relate the term “fresh water” to USDWs, were deemed by EPA to be sufficient to address this issue.

(C) Plugging and Abandonment

Federal plugging requirements for Class III wells are addressed at 40 CFR 146.10. Section 146.10 requires the placement of plugs within a well in such a manner as to allow no movement of fluid into or between USDWs. The RRC has similar regulatory standards designed to protect fresh water. EPA's concerns over proper plugging and abandonment were addressed with the resolution to the fresh water/USDW issue described earlier, and additional language within the June 2, 1998 Supplement to the Attorney General's Statement, verifying the RRC's authority to require a cement plug across the base of the deepest USDW.

(D) Permit Application Requirements

The EPA review revealed that the RRC forms used to collect data from applicants for consideration by the program Director for purposes of evaluating an application for a Class III brine mining well permit were inadequate. To resolve this issue, the RRC amended its current permit application form (H-2) to include all appropriate data elements.

(E) Monitoring, Compliance Tracking and Enforcement Activities

EPA's review concluded that the program description provided in the draft application was insufficient to conclude the RRC maintained an appropriate system for monitoring injected fluid characteristics, tracking compliance and initiating enforcement. To address all three concerns, the RRC submitted supplements to the original program description sufficient for EPA to conclude compliance and enforcement activities were appropriate. The RRC also agreed to place a condition within each Class III brine well permit to meet the federal requirements for injected fluid analysis.

(F) Public Participation

EPA's review raised concerns on RRC's opportunity for public hearings and eligibility for participation in these hearings. The RRC clarified these issues in the final program description. The RRC also added a provision to the Attorney General's Statement clarifying that the Commission cannot take a position on standing that is inconsistent with State law. EPA finds these clarifications sufficient to meet federal standards.

(G) References to State Law

The EPA review team found references to State law within the draft application that appeared to be out of date due to reorganization of the State's statutes. The RRC submitted the formal application containing current references.

III. Revision Package Program Elements

All elements of the RRC's Class III brine mining injection well program revision application are contained within a three-ring binder that combines elements of the original submission in April 1992 updated to the final submission May 25, 1999. Major elements include: The Program Description, the original February 19, 1992 Attorney General's Statement and Supplement dated June 2, 1998, the Memorandum of Agreement between EPA Region 6 and appendices which include copies of organizational charts, State Forms, and applicable rules and regulations.

IV. 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 E.O. 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 proposed rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866, and because UIC programs afford protection by isolating wastes underground, reducing the risk of exposure equally to all age groups. Therefore, this action does not present a disproportionate risk to children.

The public is invited to submit or identify peer-reviewed studies and data, of which the agency may not be aware, that assessed results of early life exposure to injected wastes.

C. Paperwork Reduction Act

This action does not impose any new information collection burden. EPA has determined that the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply to this proposed rule since limited information collection or record-keeping would be involved. The proposed rule would merely update the incorporation by reference material for which any information collection or record-keeping requirements have already been approved by OMB.

D. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA applies to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. 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. This rule merely proposes Federal approval of regulations already adopted and implemented by the State of Texas ensuring the protection of underground sources of drinking water. This proposed approval only seeks to revise the existing federally approved Texas UIC program, described at 40 CFR 147.2201, to reflect current statutory, regulatory, and other key programmatic elements of the program. Therefore Federal approval of these revisions, would not result in additional regulatory burden to or directly impact small businesses in Texas. Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Administrator, through her duly delegated representative, the Regional Administrator, certifies that this rule, if approved, will not have a significant economic impact on small entities in Texas.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”

This proposed rule does not have federalism implications. This rule, if finalized, will not have substantial direct effects on the State, on the relationship between the national government and the State, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule merely proposes Federal approval of regulations already adopted and implemented by the State of Texas ensuring the protection of underground sources of drinking water. This proposed approval only seeks to revise the existing federally approved Texas UIC program, described at 40 CFR 147.2200, to reflect current statutory, regulatory, and other key programmatic elements of the program. Therefore this action will not effect the existing relationship between the national government and the State, or the distribution of power and responsibilities among the various levels of government. Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

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 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 proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector because the rule imposes no enforceable duty on any State, local or tribal governments or the private sector.

G. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Pubic Law No. 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory 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, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

H. Executive Order 12898: Environmental Justice

Pursuant to Executive Order 12898 (59 FR 7629, February 16, 1994), EPA has considered environmental justice related issues with regard to the potential impacts of this action on the environmental and health conditions in low-income and minority communities. Today's proposal provides equal public health protection to communities irrespective of their socioeconomic condition and demographic make-up.

I. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. The UIC program for Indian Lands is separate from the State of Texas UIC program proposed for revision here. The UIC program for Indian lands in Texas is administered by EPA and can be found at Section 147.2205 under the Code of Federal Regulations. Thus, Executive Order 13175 does not apply to this proposed rule.

J. Executive Order 13211 (Energy Effects)

This proposed rule is not subject to Executive Order 13211, “Action Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 147

• Environmental protection
• Indian lands
• Reporting and recordkeeping requirements
• Water supply

Dated: October 23, 2001.

Gregg Cooke,

Regional Administrator, Region 6.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

PART 147—STATE UNDERGROUND INJECTION CONTROL PROGRAMS

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 SS—Texas

2. Section 147.2200 is amended by adding a new paragraph (g) to read as follows:

§ 147.2200

State-administered program—Class I, III, IV, and V wells.

* * * * *

(g) Requirements for Class III brine mining wells. The UIC program for Class III brine mining wells in the State of Texas, except for those wells on Indian lands, is the State program administered by the Railroad Commission of Texas (RRC) approved by EPA pursuant to Section 1422 of the SDWA. Notice of this approval was published on [date of publication of final rule] and effective [effective date of final rule]. A revision, by application of the RRC, to the program was approved pursuant to the requirements at § 145.32 on [signature date of final rule]. That portion of the State of Texas underground injection control program, approved under Section 1422 of the SDWA, and administered by the RRC, consists of the following elements:

(1) Incorporation by reference. The requirements set forth in the State statutes and regulations cited in this paragraph (g) are hereby incorporated by reference and made part of the applicable UIC program under the SDWA for the State of Texas. This incorporation by reference was approved by the Director of the Federal Register on [date of FR Director's approval].

(i) Vernon's Texas Codes Annotated, Water Code, Chapter 27 (The Injection Well Act), and Chapter 26 Section 26.131.

(ii) Vernon's Texas Codes Annotated, Natural Resources Code, Chapter 91 Sections 002, 101, 103, 104, 142, 143, and 1012.

(iii) Title 16 of the Texas Administrative Code Part 1 Chapter 3 Sections 3.77. Rule 81. Brine Mining Injection Wells, 3.1. Rule 1. Organization Report; Retention of Records; Notice requirement, 3.5. Rule 5. Application to Drill, Deepen, Reenter, or Plug Back, 3.13 Rule 13. Casing, Cementing, Drilling, and Completion Requirements, and 3.14 Rule 14. Plugging (Amended effective September 14, 1998).

(2) Other laws. The following statutes and regulations, although not incorporated by reference except for select sections identified in paragraph (g) (1) of this section, are also part of the approved State-administered UIC program.

(i) Vernon's Texas Codes Annotated, Natural Resources Code, Chapters 91, 2001, and 331. (ii) Vernon's Texas Codes Annotated, Government Code Title 10 Chapters 2001, 552, and 311.

(iii) General Rules of Practice and Procedure before the Railroad Commission of Texas.

(3) Memorandum of Agreement. The Memorandum of Agreement for Class III brine mining wells between EPA Region VI and the Railroad Commission of Texas signed by the EPA Regional Administrator on October 23, 2001.

(4) Statement of legal authority. State of Texas Office of Attorney General's Statement for Class III brine mining injection wells signed by the Attorney General of Texas, February 2, 1992 and the “Supplement to Attorney Generals's Statement of February 19, 1992” signed June 2, 1998.

(5) Program Description. The Program Description and all final elements of the revised application as approved [date of publication of final rule].