Water programs: Underground injection control program— Texas; Class III brine mining injection wells,

[Federal Register: February 26, 2004 (Volume 69, Number 38)]

[Rules and Regulations]

[Page 8824-8828]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr26fe04-15]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[FRL-7622-9]

Revision to the Texas Underground Injection Control Program Approved Under Section 1422 of the Safe Drinking Water Act and Administered by the Railroad Commission of Texas

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 Brine Mining Wells implemented by the Railroad Commission (RRC) of Texas. EPA

[[Page 8825]]

initially approved that portion of the Texas UIC program which is the subject of this rule on April 23, 1982. Since then, the State has had primary authority to implement the UIC program for brine mining wells. Subsequently, the State has made changes to the EPA-approved brine mining wells 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 these 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 for brine mining wells and to incorporate by reference the relevant portions of the revisions in the Code of Federal Regulations.

DATES: This rule is effective on March 29, 2004. The Director of the Federal Register approves the incorporation by reference contained in this rule as of March 29, 2004.

FOR FURTHER INFORMATION CONTACT: Mario Salazar, salazar.mario@epa.gov), Mail code 4606M, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, voice (202) 564-3894, fax 202 564-3756. For technical and background information contact Ray Leissner, (leissner.ray@epa.gov) Ground Water/ UIC Section (6WQ-SG), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, TX, 75202-2733, voice (214) 665-7183, fax (214) 665-2191.

SUPPLEMENTARY INFORMATION:

1. 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 State. 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 underground sources of drinking water (USDWs) in the State.

2. Background

   Section 1421 of 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 which 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.

   To be approved under section 1422, a State must, among other things, show that it will implement an underground injection control program that meets the requirements of the Federal regulations in effect under SDWA, section 1421. Specifically, all State programs approved under section 1422 must meet the minimum requirements in title 40 parts 144 to 146 and 148. States need not implement provisions identical to the provisions listed in these parts, but they must implement provisions that are at least as stringent. 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 of 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 6, 1982. Elements of the State's primacy application, submitted through the Texas Department of Water Resources (TDWR), a predecessor to the Texas Commission on Environmental Quality \1\ (TCEQ), were approved and published in title 40 of the Code of Federal Regulations, at 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 Texas Natural Resource Conservation Commission (TNRCC) and recently renamed the Texas Commission on Environmental Quality (TCEQ). TCEQ is the agency currently charged with administering the UIC program for Class I, III, IV, and most Class V wells in Texas.

   \1\ On September 1, 2002, the Texas Natural Resources Conservation Commission changed its name to the Texas Commission on Environmental Quality. The proposal published by EPA on November 8, 2001 (66 FR 56503-56507) referenced the prior name, the Texas Natural Resources Conservation Commission (TNRCC).

   In addition to TDWR receiving approval to administer the UIC program for Class I, III, IV and V injection wells, 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 return and in situ coal combustion wells. 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, to the RRC.

   Section 1422 of 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, and in conjunction with a substantial revision submitted by the TNRCC (now TCEQ) and approved earlier, RRC submitted revisions to EPA for approval and codification of that portion of RRC's UIC program governing Class III brine mining wells. The RRC program related to Class V geothermal return and in situ combustion of coal has not been revised and remains in effect. Other Class III injection wells remain regulated by the TCEQ.

   EPA proposed the program revisions to RRC's Class III brine mining program in the Federal Register on November 8, 2001 (66 FR 56503-56507) and in five major newspapers within the State. That proposal indicated EPA's intention to approve the revisions to the RRC program for Class III brine mining wells, asked for comments, and offered the opportunity to request a public meeting. That notice included a description of key issues raised and actions taken to achieve issue resolution. The key issues identified and discussed in the proposal related to the following components in the RRC UIC program:

   Protection Standard;

   Fluid Migration;

   Plugging and Abandonment;

   Permit Application Requirements;

   Monitoring, Compliance Tracking and Enforcement Activities;

   Public Participation;

   References to State Law.

   As indicated above, the proposal gives specific steps that were taken to achieve issue resolution. No comments or requests for hearing were received in response to the proposal of November 8, 2001.

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   The proposal published in the Federal Register on November 8, 2001 (66 FR 56503-56507) included changes to 40 CFR 147.2200 to implement RRC programmatic changes. The changes to Part 147 promulgated in today's rule differ from the proposed changes only in formatting and in the addition of a specific list of the types of wells, other than Class II, that are included in the RRC program.

   Today's action approves, codifies, and incorporates by reference those revisions submitted by the RRC to the Class III portion of the State's UIC program for brine mining wells originally approved under section 1422 of SDWA in 1982.

3. Statutory and Executive Order Reviews

   1. 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.

   2. 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 revisons to the 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.

   3. 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.

   4. Unfunded Mandates Reform Act

      Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 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

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      requirements that might significantly or uniquely affect small governments. Thus, today's rule is not subject to the requirements of section 203 of UMRA.

   5. 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 56503-56507) 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.

   6. 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.

   7. 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.

   8. 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.

1. National Technology Transfer and Advancement Act

   Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. 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.

   10. 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.

   11. Congressional Review Act

       The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other

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       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 29, 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.

       0 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

       0 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

       0 2. Section 147.2200 is amended by adding three sentences to the end of the introductory text and by adding paragraphs (a)(2), (b)(2), (c)(2), (d)(2), and (e)(2) to read as follows:

       Sec. 147.2200 State-administered program--Class I, III, IV, and V wells.

       * * * The UIC program for Class III brine mining wells in the State of Texas, except for those wells on Indian lands, is the program administered by the Railroad Commission of Texas. A program revision application for Class III brine mining wells was submitted by Texas and approved by EPA. Notice of that approval was published in the Federal Register on February 26, 2004; the effective date of this program is March 29, 2004.

       (a) * * *

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

       (b) * * *

       (2) Class III brine mining wells. (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.

       (c) * * *

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

       (d) * * *

       (2) Class III brine mining wells. State of Texas ``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 General's Statement of February 19, 1992,'' signed by the Attorney General of Texas, June 2, 1998.

       (e) * * *

       (2) Class III brine mining wells. The Program Description and any other materials submitted as part of the revision application or as supplements thereto.

       [FR Doc. 04-3223 Filed 2-25-04; 8:45 am]

       BILLING CODE 6560-50-P