04-3222. Revision to the Texas Underground Injection Control Program Approved Under Section 1422 of the Safe Drinking Water Act and Administered by the Texas Commission on Environmental Quality

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

Today, EPA is amending the Code of Federal Regulations (CFR), and incorporating by reference (IBR), the revised Underground Injection Control (UIC) Program for the Texas Commission on Environmental Quality (TCEQ, formerly the Texas Natural Resources Conservation Commission). EPA initially approved the Texas UIC program, which is the subject of this rule, on January 6, 1982. Since approval, the State has had primary authority to implement the UIC program. The State has made changes to its EPA approved program and submitted them to EPA for review. Those changes are the subject of this rule. EPA, after conducting a thorough review, is hereby approving and codifying the State program revisions. As required in the Federal UIC regulations, substantial State UIC program revisions must be approved and codified in the CFR by a rule signed by the EPA Administrator. The intended effect of this action is to approve, update and codify the revisions to the authorized Texas UIC Program and to incorporate by reference the relevant portions of the revisions in the Code of Federal Regulations.

DATES:

This rule is effective on March 26, 2004. The Director of the Federal Register approves the incorporation by reference contained in this rule as of March 26, 2004.

FOR FURTHER INFORMATION CONTACT:

Mario Salazar, ([e-mail]), Mail Code 4606M, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC, 20460, voice [phone], fax [phone]. For technical information, contact Ray Leissner, ([e-mail]) Ground Water/UIC Section (6WQ-SG), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, TX, 75202-2733, voice [phone], fax [phone].

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

This action does not impose any regulation on the public, and in fact there are no entities affected. This action merely approves, codifies, and incorporates by reference into the Code of Federal Regulations the revisions to the Texas UIC program previously adopted by the TCEQ. The rules that are the subject of this codification are already in effect in Texas under Texas law. The IBR allows EPA to enforce the State authorized UIC program, if necessary, and to intervene effectively in case of an imminent and substantial endangerment to public health and/or USDWs in the State.

II. Background

Section 1421 of the Safe Drinking Water Act (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 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 that: (1) contains a showing satisfactory to the Administrator that the State has adopted and will implement an underground injection control program that meets the requirements of regulations in effect under Section 1421 of SDWA, and (2) 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 by rule to approve, disapprove, or approve in part, the State UIC program.

EPA's approval of primacy for the State of Texas for underground injection into Class I, III, IV, and V wells, to be implemented by the Texas Water Commission, was published on January 6, 1982 (47 FR 618), and became effective on February 7, 1982.

On January 26, 1982, the Governor of the State of Texas requested approval of a complimentary program for Class II (oil and gas related) wells, under Section 1425 of SDWA, to be implemented by the Texas Railroad Commission (RRC). In addition to wells commonly classified as Class II in the UIC program, the request included two well types considered Class V wells: geothermal return and in situ combustion of coal wells. The UIC program implemented by the RRC, including Class V geothermal return and in situ combustion of coal wells, was approved by EPA on April 23, 1982 (47 FR 17488) and became effective 30 days later.

In 1985, the 69th Texas Legislature enacted legislation that transferred jurisdiction over Class III brine mining wells from the Texas Water Commission, now the Texas Commission on Environmental Quality (TCEQ), to the RRC. Therefore, two types of Class V wells, geothermal return and in situ combustion of coal, as well as Class III brine mining wells, are not included in the UIC program implemented by the TCEQ. The elements of the State's primacy application, originally approved by EPA and published in the Federal Register on January 6, 1982, submitted through the Texas Department of Water Resources, a predecessor to the TCEQ, ^[1] were codified in Title 40 of the Code of Federal Regulations, at 40 CFR 147.2200. These regulations were last updated on March 6, 1991 (56 FR 9408).

After EPA's initial approval of the UIC program in 1982, TCEQ predecessors revised the program several times. The revisions included regulation changes, for which Texas was required by § 145.32 to obtain approval from EPA, and three name changes.

On June 17, 1996, Mr. Richard Lowerre of the law firm of Henry, Lowerre, Johnson, Hess and Fredrick, acting on behalf of his clients (“Petitioners”), filed a petition for partial withdrawal of program approval for the Texas UIC program. Mr. Lowerre represented the Environmental Defense Fund (EDF, now Environmental Defense, ED) and later the Oil and Chemical Association of Workers (OCAW, now Paper, Allied Industrial, Chemical and Energy Workers Union, PACE). The petition informed EPA of the Petitioners' intent to sue under sections 1422 and 1449 of SDWA and EPA rules at 40 CFR Part 135, Subpart B. The petition alleged that, due to changes made by the Texas Legislature to environmental statutes and the implementation of those changes, TCEQ's UIC program no longer met the Federal requirements for primacy for the UIC program. The petition identified specific elements of TCEQ's UIC program that formed the basis for EDF's request to EPA to withdraw approval of TCEQ's UIC program. These included: inadequate enforcement authority due to recently passed audit privilege ^[2] and takings ^[3] laws, inadequate public participation in enforcement activities, inadequate public participation in permitting decisions and inadequate opportunities for judicial review of permit decisions made by TCEQ. Over the course of the resolution of the petition, additional issues were raised by the Petitioners that were not included in the original petition. All these issues were satisfactorily resolved through negotiations with Petitioners.

On August 14, 1998, TCEQ submitted a complete UIC program revision application package. Over the course of the review of this package, EPA received comments on the submission from the Petitioners, including numerous additional issues relating to past and present UIC program and legislative activities. EPA comments given to the TCEQ included issues raised by Petitioners, as well as issues identified by EPA. TCEQ submitted two application revision supplements in response to EPA comments.

Issues raised by the Petitioners related to aspects of Texas' UIC program implementation. For those issues, a negotiated agreement was reached between EPA, Texas, and Petitioners. In exchange for additional reporting by TCEQ and oversight by EPA, the Petitioners withdrew their petition for withdrawal of program authorization in August 2000 and agreed not to contest this program revision. With resolution of the petition issues and EPA's comments, there were no unresolved issues that warranted EPA disapproval of this program revision application. Specific details on the Petitioners' issues and their resolution can be found in the Federal Register proposal dated November 8, 2001 (66 FR 56496—56503), and are also available from Ray Leissner of EPA Region 6 Offices at [phone] or [e-mail].

The proposed revisions to implement the regulatory changes called for in the agreement with Petitioners were published in the August 8, 1997,^[4] edition of the Texas Register. The regulatory actions included adoption of rule changes in 30 TAC, Chapter 55, Subchapter B, section 52.25, repeal of 30 TAC, section 305.106 to avoid duplication of the new rules, and adoption of new rules at 30 TAC, Chapter 80, Subchapters C and F, sections 80.105-80.257. These final changes were published in the Texas Register on November 21, 1997, effective December 1, 1997.

EPA published its proposed decision to approve and codify these revisions in the Federal Register on November 8, 2001 (66 FR 56496-56503), and in five major newspapers within the State. The proposal provided the public the opportunity to comment and request a hearing. No comments or requests for hearing were received.

The changes to 40 CFR 147.2200, promulgated in today's rule differ from the proposal only in formatting. There was also a name change for the Texas UIC Agency for Class I, III, IV and V, from Texas Natural Resources Conservation Commission (TNRCC) to the Texas Commission on Environmental Quality (TCEQ). The Agency duties did not change, only the name.

Today's action approves, codifies, and incorporates by reference those revisions submitted by the TCEQ to the Class I, III, IV and V portions of the State's UIC program originally approved under section 1422 of SDWA in 1982.

III. Statutory and Executive Order Reviews

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. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et. seq. It does not impose any information collection, reporting, or record-keeping requirements. It merely approves, codifies, and incorporates by reference State revisions to its EPA approved UIC program.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9, and 48 CFR Chapter 15.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, we defined small entities as (1) a small business based on Small Business Administration (SBA) size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This rule merely approves, codifies, and incorporates by reference into 40 CFR Part 147 the revisions to the Texas program regulations already adopted and implemented by the State of Texas ensuring the protection of underground sources of drinking water. Codification of these revisions does not result in additional regulatory burden to or directly impact small businesses in Texas.

D. 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 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. This final rule only approves the State's UIC regulations as revised and in effect in the State of Texas. Thus today's rule is not subject to the requirements of sections 202 and 205 of UMRA. For the same reason, EPA has 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.

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 final rule does not have federalism implications. It 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 approves and codifies regulations already adopted and implemented by the State of Texas ensuring the protection of underground sources of drinking water. This codification revises 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. Thus, Executive Order 13132 does not apply to this rule. Although Executive Order 13132 does not apply to this rule, extensive consultation between EPA and the State of Texas went into revising the UIC regulations. The proposal published in the Federal Register on November 8, 2001 (66 FR 56496-56503) provides a detailed description of the consultations that took place in preparation of the Texas UIC regulations which are the subject of this codification. In addition, in the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the proposed rule from State and local officials.

F. 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 final 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. The UIC program for Indian lands in Texas is administered by EPA and can be found at 40 CFR 147.2205 of the Code of Federal Regulations. Thus, Executive Order 13175 does not apply to this rule. Nevertheless, in the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and Tribal governments, EPA specifically solicited comment on the proposed rule from Tribal officials in its notice published in the Federal Register on November 8, 2001 (66 FR 56496-56503) and in five major newspapers within the State.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks

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 final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866. Further, it does not concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate risk to children.

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, “Actions 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.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public 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, business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide to Congress, through the Office of Management and Budget (OMB), explanations when EPA decides not to use available and applicable voluntary consensus standards.

This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations or Low-Income Populations

Executive Order 12898 establishes a Federal policy for incorporating environmental justice into Federal agency missions by directing agencies to identify and address disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations. This rule does not affect minority or low income populations.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. section 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 March 26, 2004.

List of Subjects in 40 CFR Part 147

• Environmental protection
• Incorporation by reference
• Indians-lands
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Water supply

Dated: February 9, 2004.

Michael O. Leavitt,

Administrator.

For the reasons set out in the preamble, Title 40, Chapter I of the Code of Federal Regulations is 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 revised to read as follows:

§ 147.2200

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

The UIC program for Class I, III, IV, and V wells in the State of Texas, except for those wells on Indian lands, Class III brine mining wells, and certain Class V wells, is the program administered by the Texas Commission on Environmental Quality approved by EPA pursuant to section 1422 of the Safe Drinking Water Act (SDWA). Notice of the original approval for Class I, III, IV, and V wells was published in the Federal Register on January 6, 1982 and became effective February 7, 1982. Class V geothermal wells and wells for the in situ combustion of coal are regulated by the Rail Road Commission of Texas under a separate UIC program approved by EPA and published in the Federal Register on April 23, 1982. A subsequent program revision application for Class I, III, IV, and V wells, not including Class III brine mining wells, was approved by the EPA pursuant to section 1422 of SDWA. Notice of this approval was published in the Federal Register on February 25, 2004; the effective date of these programs is March 26, 2004. The program for Class I, III, IV, and V wells, not including Class III brine mining wells, consists of the following elements as submitted to the EPA in the State's revised program applications.

(a) Incorporation by reference. The requirements set forth in the State statutes and regulations cited in this paragraph are hereby incorporated by reference and made part of the applicable UIC program under SDWA for the State of Texas. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the materials that are incorporated by reference in this paragraph are available from the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington DC or at EPA Region VI, 1445 Ross Avenue, Dallas, TX 75202.

(1) Texas Statutory and Regulatory Requirements Applicable to the Underground Injection Control Program for Class I, III, IV, and V Wells, except for Class III Brine Mining Wells, March 2002.

(2) [Reserved]

(b) Other laws. The following statutes and regulations, as effective on March 31, 2002, although not incorporated by reference except for any provisions identified in paragraph (a) of this section, are also part of the approved State-administered UIC program.

(1) Class I, III, IV, and V wells. (i) Title 30 of the Texas Administrative Code Chapters 39, 50, 55, 80, and 281.

(ii) Vernon's Texas Codes Annotated, Water Code, Chapters 5, 7, 26, and 32, Health and Safety Code Section 361, Government Code (ORA) Chapter 552 and Government Code (APA) Chapter 2001.

(2) [Reserved]

(c) Memorandum of Agreement—(1) Class I, III, IV, and V wells. The Memorandum of Agreement between EPA Region VI and the Texas Natural Resource Conservation Commission a predecessor to the Texas Commission on Environmental Quality (TCEQ), revised March 23, 1999, and signed by the EPA Regional Administrator on October 23, 2001.

(2) [Reserved]

(d) Statement of legal authority—(1) Class I, III, IV, and V wells. “State of Texas Office of Attorney General Statement for Class I, III, IV, and V Underground Injections Wells,” signed by the Attorney General of Texas, June 30, 1998.

(2) [Reserved]

(e) Program Description—(1) Class I, III, IV, and V wells. The Program Description and any other materials submitted as part of the revision application or as supplements thereto.

(2) [Reserved]

Footnotes

1.  On September 1, 2002, the Texas Natural Resources Conservation Commission (TNRCC) changed its name to the Texas Commission on Environmental Quality (TCEQ). None of the duties of the Agency were changed or transferred. The proposal to approve the revisions to the UIC program in Texas mentioned in this document and published in the Federal Register on November 8, 2001 (66 FR 56496—56503) had the former name of the Agency (TNRCC). References to the TCEQ include actions that could have been done by one of its predecessors.

2.  Audit privilege laws were conceived originally as a way for operators to perform self audits and correct problems. In some cases, these laws can have the effect of keeping all records of a violation sealed if the offender voluntarily corrects the violation. This might be inconsistent with public participation requirements under the minimum standards for States' UIC programs.

3.  These laws generally require the State to compensate private companies or individuals for any significant damage caused by regulatory actions. Such laws may limit the State's ability to regulate and take enforcement action.

4.  Note that the regulatory changes published in 1997 were not contested by Petitioners. The issues still remaining in 1997 were not regulation related. Those issues were finally resolved in 2000.