[Federal Register Volume 65, Number 131 (Friday, July 7, 2000)]
[Proposed Rules]
[Pages 42234-42245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16753]
[[Page 42233]]
-----------------------------------------------------------------------
Part IV
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 146
Revision to the Federal Underground Injection Control (UIC)
Requirements for Class I--Municipal Wells in Florida; Proposed Rule
Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed
Rules
[[Page 42234]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 146
[FRL-6729-2]
RIN 2040-AD40
Revision to the Federal Underground Injection Control (UIC)
Requirements for Class I--Municipal Wells in Florida
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing changes to the Underground Injection Control
(UIC) regulations that would affect specific Class I municipal wells in
Florida. Groundwater monitoring has revealed that injected or native
formation fluids have migrated into underground sources of drinking
water (USDW) as a result of Class I municipal well injection activity
in areas of Florida with unique geological conditions. Such fluid
migration is not allowed under current Federal UIC regulations. The
proposed changes would allow for continued injection by existing Class
I municipal wells that have caused or may cause such fluid movement
into USDWs in specific areas of Florida if certain requirements are met
which provide adequate protection for underground sources of drinking
water. This proposed rule would only affect wells in certain parts of
Florida that dispose of treated domestic wastewater through Class I
injection wells.
DATES: Comments must be submitted on or before September 5, 2000.
Public hearings will be held:
August 22, 2000, 1:00 p.m. to 4:00 p.m., Tampa, Florida
August 22, 2000, 6:00 p.m. to 9:00 p.m., Tampa, Florida
August 24, 2000, 1:00 p.m. to 4:00 p.m., West Palm Beach, Florida
August 24, 2000, 6:00 p.m. to 9:00 p.m., West Palm Beach, Florida
ADDRESSES: Send written comments to Nancy H. Marsh: U.S. Environmental
Protection Agency, Region 4; 61 Forsyth St., SW, Atlanta, GA, 30303.
Comments may be submitted electronically to [email protected]. For
additional information see Additional Docket information in the
SUPPLEMENTARY INFORMATION section of this Federal Register.
Public hearing locations are:
Travelodge, 820 East Busch Boulevard, Tampa, Florida 33612
The Sheraton West Palm Beach Hotel, 630 Clearwater Park Road, West Palm
Beach, Florida 33401
FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact Nancy
H. Marsh, Ground Water & UIC Section, EPA Region 4, 61 Forsyth Street,
SW, Atlanta, GA 30303 (phone: 404-562-9450; E-mail:
[email protected]) or Howard Beard, Office of Ground Water and
Drinking Water, U.S. Environmental Protection Agency, Ariel Rios
Building, 1200 Pennsylvania Avenue, N.W.,Washington, DC 20460 (phone:
202-260-8796; E-mail: [email protected]). For general information,
contact the Safe Drinking Water Hotline, phone 800-426-4791. The Safe
Drinking Water Hotline is open Monday through Friday, excluding Federal
holidays, from 9:00 a.m. to 5:30 p.m. Eastern daylight-saving time.
SUPPLEMENTARY INFORMATION:
Additional Docket Information
When submitting written comments (see ADDRESSES section above)
please submit an original and three copies of your comments and
enclosures (including any references). For an acknowledgment that we
have received your information, please include a self-addressed,
stamped envelope. EPA will not accept facsimiles (faxes).
The record is available for inspection from 8 a.m. to 3:30 p.m.
Eastern daylight-saving time, Monday through Friday, excluding legal
holidays at the Environmental Protection Agency, Region 4 Library (9th
Floor), Sam Nunn Atlanta Federal Center, 61 Forsyth St., S.W., Atlanta,
GA 30303-8960. For information on how to access Docket materials,
please call (404) 562-8190 and refer to the Florida UIC docket.
Regulated entities. This proposed regulation is limited in
application to the owners and/or operators of existing Class I
underground injection wells that inject domestic wastewater effluent in
certain parts of Florida. Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
------------------------------------------------------------------------
Municipalities and Local Government....... Class l municipal injection
wells disposing of domestic
wastewater effluent in
certain parts of Florida.
Private................................... Class l municipal injection
wells disposing of domestic
wastewater effluent in
certain parts of Florida.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated by this action, you should carefully examine
the applicability criteria in Sec. 146.15 of the proposed rule. If you
have questions regarding the applicability of this action to a
particular entity, consult one of the persons listed in the preceding
FOR FURTHER INFORMATION CONTACT section.
Preamble Outline
I. Background
A. Statutory and Regulatory Framework
B. Domestic Wastewater Disposal in Florida Through Class I Wells
1. Fluid migration requirements
2. Florida geology
C. 1999 Stakeholder Meeting
D. Proposed Regulations
1. Flexibility provided in SDWA Section 1421
2. What the proposal will allow
3. Rule applicability
4. Monitoring
5. Operating conditions
6. Demonstration review
E. The Cost of Compliance
II. Regulatory Impact/Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. Executive Order 13045: Children's Health Protection
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Executive Order 13132: Federalism
F. Unfunded Mandates Reform Act
G. National Technology Transfer and Advancement Act
H. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
I. Plain Language
I. Background
A. Statutory and Regulatory Framework
Class I underground injection wells are regulated under the
authority of Part C of the Safe Drinking Water Act (``SDWA'' or ``the
Act'') (42 U.S.C. 300h et seq.). The SDWA is designed to protect the
quality of drinking water sources in the United States and prescribes
that:
Underground injection endangers drinking water sources if such
injection may result in the presence in underground water which
supplies or can reasonably be expected to supply any public water
system of any contaminant, and if the presence of such contaminant
may result in such system's not complying with any national primary
drinking water regulation or may otherwise adversely affect the
health of persons. (Section 1421(d)(2) of the SDWA, 42 U.S.C.
300h(d)(2).)
Part C of the Act specifically mandates the regulation of
underground injection. The Agency has promulgated a series of UIC
regulations under this authority at 40 CFR Parts 144-147. The
[[Page 42235]]
chief goal of any Federally-approved UIC Program (whether administered
by the State or EPA) is the protection of underground sources of
drinking water (USDWs). This includes not only those aquifers which are
presently being used for drinking water, but also those which may
potentially be used in the future. EPA has established through its UIC
regulations that underground aquifers with less than 10,000 mg/l total
dissolved solids (TDS) which contain a sufficient quantity of ground
water to supply a public water system are USDWs. (40 CFR 144.3)
Section 1421 of the Act requires EPA to propose and promulgate
regulations specifying minimum requirements for effective State
programs to prevent underground injection that endangers drinking water
sources. EPA promulgated administrative and permitting regulations, now
codified in 40 CFR Parts 144 and 146, on May 19, 1980 (45 FR 33290),
and technical requirements, in 40 CFR Part 146, on June 24, 1980 (45 FR
42472). The regulations were subsequently amended on August 27, 1981
(46 FR 43156), February 3, 1982 (47 FR 4992), January 21, 1983 (48 FR
2938), April 1, 1983 (48 FR 14146), July 26, 1988 (53 FR 28118),
December 3, 1993 (58 FR 63890), June 10, 1994 (59 FR 29958), December
14, 1994 (59 FR 64339), June 29, 1995 (60 FR 33926) and December 7,
1999 (64 FR 68546). Section 1421(b)(3)(A) of the Act also provides that
EPA's UIC regulations shall ``permit or provide for consideration of
varying geologic, hydrological, or historical conditions in different
States and in different areas within a State.''
When EPA promulgated its UIC regulations, it defined five classes
of injection wells in Sec. 144.6. Class I wells are defined as wells
which inject fluids beneath the lowermost formation containing, within
one quarter mile of the well bore, a USDW. Class I wells can be
hazardous, industrial or municipal waste disposal wells. EPA is only
discussing existing Class I municipal wells in this proposed rule.
Class I municipal wells can be owned by public and private entities.
Section 1422 of the Act provides that States may apply to EPA for
national primary enforcement responsibility to administer the UIC
program. Those States receiving such authority are referred to as
``Primacy States.'' Florida received national primary enforcement
responsibility for the UIC program for Class I, III, IV and V wells on
March 9, 1983. UIC regulations specific to Florida's primacy program
are established in Part 147, Subpart K. For the remainder of this
preamble, references to the UIC Program ``Director'' means the
Secretary of the Florida Department of Environmental Protection (FDEP).
Currently, all UIC Programs in Indian Country for Florida are directly
implemented by EPA. There are no known Class I municipal wells in
Florida in Indian Country.
B. Domestic Wastewater Disposal in Florida Through Class I Wells
Beginning more than 20 years ago, municipalities in Florida began
to pursue the use of underground injection as an alternative to surface
disposal of treated wastewater from domestic wastewater treatment
facilities. Underground injection technology was employed to relieve
stress to surface water environments because it was technologically
feasible to inject large volumes of wastewater into deep cavernous
formations. Through technical and monetary assistance, EPA supported
construction of many of these facilities in an effort to safeguard
surface waters. Through injection technology, domestic wastewater
facilities have been able to dispose of large quantities of domestic
effluent, with the resulting benefit of reducing impacts to surface
ecosystems. Facilities that inject domestic wastewater into wells below
the lowermost USDW, are considered to have a Class I municipal
injection well and in Florida inject into zones ranging from 650 to
3,500 feet below land surface.
The volumes of domestic wastewater permitted for injection at Class
I municipal well facilities presently range from less than one million
gallons per day (MGD) at the Gasparilla Island Water Utilities to about
110 MGD at Miami-Dade Water & Sewer Department, South District
Wastewater Treatment Plant. Florida requires that domestic wastewater
must be treated to secondary wastewater treatment (See 40 CFR Part 133)
standards at a minimum prior to injection.
At the time Florida permitted the currently operating Class I
municipal wells, characterization of the geology indicated that there
was adequate confinement to separate the injection fluids from the
USDW. Because it was thought there was adequate confinement, it was
believed that injection fluids would never migrate upwards into the
shallower geologic formations containing USDWs. However, monitoring of
injection operations over the past several years has indicated some
deep geologic zones provide less confinement between formations than
originally thought. In a few cases, fluid movement has occurred into
the base of the lowermost USDW.
1. Fluid Migration Requirements
In addition to municipal wells, Class I wells also include
hazardous or nonhazardous industrial wells which inject into geologic
formations below the lowermost USDW. (Hazardous waste injection must
meet additional Resource Conservation and Recovery Act (RCRA)
requirements. See 40 CFR Part 148.)
When EPA promulgated its regulations for the UIC program, it
established different requirements for each class of wells, based upon
the uses and risks of various types of wells. All classes of wells are
required to comply with Sec. 144.12(a) which states:
No owner and/or operator shall construct, operate, maintain,
convert, plug, abandon, or conduct any other injection activity in a
manner that allows the movement of fluid containing any contaminant
into underground sources of drinking water, 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.
Then, for Class I, II and III wells, Sec. 144.12(b) more
specifically provides that:
if any water quality monitoring of an underground source of drinking
water indicates the movement of any contaminant into the underground
source of drinking water, except as authorized under Part 146, the
Director shall prescribe such additional requirements for
construction, corrective action, operation, monitoring, or reporting
(including closure of the injection well) as are necessary to
prevent such movement.
In contrast to subsection (a), which, for all classes of wells,
prohibits fluid movement that endangers USDWs, Section 144.12(b)
requires for Class I, II and III wells, that a State or Federal UIC
program director, upon detection of contaminant movement into a USDW,
prescribe requirements to prevent any such movement, regardless of
whether the movement may endanger the USDW.
In addition to Sec. 144.12(b), EPA established technical and other
requirements for specific classes of wells in Parts 144 and 146
regulations. The Parts 144 and 146 regulations address siting,
construction, operation, and closure of wells. Section 144.12(b) and
the specific technical requirements of Parts 144 and 146 regulate the
activities through which fluid movement may result and impose
requirements designed to ensure that Class I, II and III wells will not
endanger USDWs by prohibiting movement of any fluid into the USDW.
Today's proposed change to the technical requirements in Part 146
for Class I municipal wells in certain parts of Florida will be
implemented through
[[Page 42236]]
the addition of Sec. 146.15 pursuant to the authority of Section
1421(b)(3)(A) of the SDWA. Section 1421(b) of the SDWA requires that
EPA promulgate regulations which provide the minimum requirements for
an effective UIC program: such regulations ``shall contain minimum
requirements for effective programs to prevent underground injection
which endangers drinking water sources.'' (Section 1421(b)(1), 42
U.S.C. Sec. 300h(b)(1).) Section 1421(b)(3)(A) also provides that EPA
regulations ``shall permit or provide for consideration of varying
geologic, hydrological, or historical conditions in different States
and in different areas within a State.'' (Section 1421(b)(3)(A), 42
U.S.C. Sec. 300h(b)(3)(A).) The proposed change in the technical
requirements for Class I municipal wells in certain parts of Florida is
being undertaken pursuant to Section 1421(b)(3)(A) in recognition of
the appropriateness of a different standard of USDW protection in light
of Florida's unique geology, hydrogeology and historical (as well as
present and future) wastewater disposal needs.
2. Florida Geology
In Florida, as in most areas of the country, sedimentary rocks are
the predominant rock type, although the specific types of sedimentary
rocks are different. In other areas, the underlying rock consists of
clastic rock (sandstone, siltstone, and shale) and carbonate rock
(limestone and dolomite). Limestone and dolomite are often classified
as carbonate rock because of their mineral composition. Limestone is
often formed by accumulation of organic remains such as corals or
shells, and consists mainly of calcium carbonate. Dolomite is composed
of the mineral calcium magnesium carbonate and is generally formed by
alteration of limestone. Clastic rocks are formed from weathering and
erosion and are made up of fragments of sand, silt, and clay. This
eroded clastic material is transported and deposited at locations where
it becomes the subsurface rock after burial and compression.
Where sedimentary rocks exist, clastic rocks (sandstones,
siltstones, shales) and carbonate rocks (limestones and dolomites)
comprise the geologic formations that serve as the injection zones and
confining zones for underground injection activity. Whether a rock
layer can serve as an injection zone or a confining zone depends on its
porosity (the amount of pore space between grains of sand) and its
permeability (the interconnectivity of this pore space). In general,
rocks with higher porosity and permeability usually serve as injection
zones because these characteristics readily allow for the fluids that
naturally exist in the pore spaces (known as native, formation, or
connate fluids) to be displaced by injection fluids. Rock layers with
lower permeability or porosity do not allow such movement, and
typically serve as confining zones. Sandstones usually serve as
injection zones because their porosity and permeability allows for
native formation fluids to move freely and be displaced by injection
fluids. Siltstones generally are not good injection zones because they
have less permeability than needed for injection operations. However,
they also generally have too much permeability to serve as a confining
unit. Shales often serve as confining zones for underground injection
purposes because they have high porosity but low permeability (fluids
do not move freely through the zone).
Limestone and dolomite sequences can be lithologically complex
because, within a carbonate rock layer, the porosity and permeability
may be greatly affected by geologic processes that occur after the
rocks are formed. These include tectonic fracturing and chemical
interactions between carbonate rock and fluids traveling through these
fractures. The porosity and permeability of carbonate rock has been
enhanced, reduced, and, in places, eliminated. The porosity and
permeability variations of the carbonate rocks of peninsular Florida,
which define their confining ability, may be quite local in nature.
That is, even within the same geological horizon or geological
deposit of a particular time, there may be areas of high porosity and
permeability close to low-porosity areas of porosity and permeability.
This can complicate or compromise the use of carbonate rocks as
injection or confining zones.
Sedimentary rock types in a given location vary based on changes in
the environment at the time they were deposited. Carbonate sediments
may develop in many environmental settings, but the most prolific
accumulations occur in warmer climates which are conducive to the
development of corals and other skeletal marine organisms with shells
composed of calcium carbonate minerals. A lack of clastic deposition
also favors carbonate deposition. If clastic sediments start to be
deposited on a coral formation, the sediments would bury and kill the
organisms, thereby preventing further growth of the coral formation.
In many areas of the country, sequences of sediment deposition
alternate between clastic and carbonate rocks, reflecting changes in
the depositional environment. Clastic sediments usually accumulate near
the medium that transported the sediments, such as the mouth of a
river. Carbonate sediments, on the other hand, generally accumulate
near where they are formed, such as a coral formation. The thickest
deposits of carbonate rocks occur where there are warm climates and
limited media (rivers for example) to transport clastic sediment.
The current injection and confining zones in peninsular Florida
exist in what is known as the Floridan Aquifer System. The Floridan
Aquifer System is made up of carbonate rocks. Parts of the Floridan
Aquifer System also are USDWs. The rocks were formed on a broad, marine
shelf with a warm climate, which was distant from sources of clastic
sediment such as rivers. This setting allowed for the development of
thick deposits of limestone and dolomite (carbonate rock) without
significant amounts of sandstones, siltstones, and shales (clastic
rock) found in other areas of the country. Because of the absence of
shales in peninsular Florida, which are frequently the confining zones
in other areas of the country, the carbonate rocks themselves must
serve as both the confining and injection zone. This is unusual and
unique, but possible because of the variability in the porosity and
permeability of carbonate rocks as discussed previously as well as the
existence of numerous vertical and horizontal faults within the
formations.
The porosity and permeability variations of the carbonate rocks of
peninsular Florida and the existence of fractures within the formation
determine their confining ability. The porosity varies greatly, even
within the same horizon or geological deposit of a particular time.
While the confining ability within the rock sequences that comprise the
Floridan Aquifer appears adequate for most injection facilities, there
are some injection well locations where the carbonate formation does
not appear to provide adequate confinement. This is substantiated by
water quality analysis of monitoring wells at selected injection
facilities. While most of the country can depend on clastic shales for
confinement, Florida's geology has very different characteristics which
were not considered during original promulgation of the Class I
regulations.
It now appears, from recent well monitoring data, that upward fluid
movement from some Class I municipal operations occurs in Florida
because the injection fluid from Class I municipal wells has a lower
density (lower total
[[Page 42237]]
dissolved solids) than the native formation fluids. This tends to cause
the less dense injection fluids to rise to the top of the injection
zone preferentially through fractures that may exist within the
formations. Because of its buoyancy, the injectate may also rise above
the injection zone if these migration pathways exist. This monitoring
data also indicates that injection fluid has migrated vertically into
USDWs.
The application of the proposed rule is limited to both certain
geologic conditions and certain geographic areas in Florida. It is
limited geographically to the following counties: Brevard, Broward,
Charlotte, Collier, Dade, Flagler, Glades, Hendry, Highlands,
Hillsborough, Indian River, Lee, Manatee, Martin, Monroe, Okeechobee,
Orange, Osceola, Palm Beach, Pinellas, St. Johns, St. Lucie, Sarasota,
and Volusia. These counties are included in this proposed rule because
they have the unique geologic conditions that are predominated by
carbonate rocks discussed previously. The counties were selected using
a map adapted from Florida Geological Survey map series 94 ``Potential
Subsurface Zones for Liquid-Waste Storage in Florida,'' created by
James A. Miller of the United States Geological Survey in 1979. The
geological conditions considered are those where the injection and
confining zones are both in the Floridan Aquifer, and no clastic
confining unit separates the injection zone from the lowermost USDW.
EPA requests comment on whether these are the appropriate counties to
target in this proposal or whether additional (or fewer) counties in
Florida should be included. See United States Geological Survey's
website for specific information on Florida's geology at http://www.usgs.gov.
C. 1999 Stakeholder Meeting
To assist in developing an approach to deal with the Class I
municipal wells in Florida, EPA held a stakeholder meeting on July 7,
1999, in West Palm Beach, Florida to solicit stakeholder input. Over
100 people attended the meeting in person or via conference call with
30 people giving oral comments. Additional written statements have been
received since the meeting. Municipalities, industry, environmental
groups and private citizens participated. At that meeting, EPA
presented four general options then being considered: (1) Make no
regulatory change, (2) reclassify the wells from Class I municipal to
Class V municipal, (3) convert the wells directly to Class V by
allowing injection directly into the USDW, and (4) make some regulatory
change. The following is a discussion of each of these options.
Option 1: Make no regulatory change. This option would require
those facilities where it has been shown that fluids are migrating into
a USDW to either cease Class I injection and find another disposal
alternative or obtain an aquifer exemption to allow continued
injection. Some facilities indicated that, because of other state laws
and rules, there is no surface water disposal option available to them.
Other facilities said they would have to treat the effluent to a much
higher standard than is currently required in order to use surface
waters as a disposal option. If a facility would choose to obtain an
aquifer exemption, they would need to show that the aquifer is not
reasonably expected to supply a public water system, which would be
very difficult to show.
Option 2: Reclassify the wells from Class I municipal wells to
Class V wells. This option would have involved the determination that
the facility no longer meets the regulatory definition of a Class I
well, i.e., a well injecting below the lowermost formation containing a
USDW (40 CFR 144.6). Under this option, EPA and stakeholders discussed
whether facilities with fluid movement could seek reclassification in a
permit action from Class I to Class V on the basis that injection is
taking place into (rather than below) the formation that contains the
USDW. Under current Florida requirements, if a Class V well is
discharging into a USDW, the facility must meet the national primary
drinking water standards at the point of discharge. Compliance at the
point of discharge could make this option more costly to the discharger
than Option 1. The Agency is not planning to allow reclassification
unless the well was misclassified in the first instance.
Misclassification might have occurred if the well did not originally
meet the definition of a Class I well. The facility could demonstrate
this if new information has become available that proves that the well
originally was injecting into a USDW and therefore would meet the
definition of a Class V well.
Option 3: Convert the wells to Class V by allowing injection
directly into the USDW. Under this option, wells would inject municipal
wastewater directly into or above the formation containing the
lowermost USDW. This option is different from the reclassification
option (Option 2) because the well would have to be physically altered
to inject into the USDW. Similar to the previous option, under current
Florida rules, a facility would have to meet national primary drinking
water standards at the point of discharge under this option. Several
stakeholders commented that the formations within the USDW do not have
sufficient capacity to accept the quantities of fluid currently
injected into the deeper formations which, because of their unique
hydrogeologic characteristics, can accept large quantities of fluid.
This option has always been available to the facilities but has not
been used because of these limitations and the extensive treatment that
would be required for the discharge to meet the State's standards.
Option 4: Make some regulatory change. This is the option that is
being proposed today and will be discussed in Section D.
Participants in the stakeholder meeting suggested that protecting
ground water was a high priority. Some municipalities advocated
reclassification to Class V wells while others said a regulatory change
would be more beneficial. Municipalities advocated the reclassification
of the wells to Class V. Environmental groups generally wanted to
require the facilities to apply higher levels of treatment prior to
injection. Many felt that injection was still a viable option but
attention should be paid to protect the future use of the ground water
resource.
D. Proposed Regulations
1. Flexibility Provided in SDWA Section 1421
The SDWA requires EPA to promulgate regulations that contain
minimum requirements for effective programs to prevent underground
injection which endangers drinking water sources. The Act further
states that:
Underground injection endangers drinking water sources if such
injection may result in the presence in underground water which
supplies or can reasonably be expected to supply any public water
system of any contaminant, and if the presence of such contaminant
may result in such system's not complying with any national primary
drinking water regulation or may otherwise adversely affect the
health of persons. (42 U.S.C. 300h (d)(2))
EPA responded to the SDWA mandate (1421(b)(5)) that underground
injection not endanger USDWs by requiring that Class I wells prevent
the movement of any fluids into a USDW. However, EPA prescribed no
limits on the quality or quantity of the fluids being injected. EPA
established a ``no fluid movement'' requirement for all Class I wells
even though such wells are different with respect to their design,
construction, and operation. EPA believed a uniform standard would be
easier to interpret,
[[Page 42238]]
comply with, and enforce, and such a standard was generally accepted
among the regulated community. This acceptance was based upon the
assumption that specific strata existed around the country that could
generally serve as a barrier to fluid movement and that, therefore,
there was no need for additional limits on effluent quantity or
quality. This was also thought to be true in Florida, even though
Florida's geology does not fit the ``classic'' model.
Since the original UIC regulations were passed, information from
several deep monitoring wells placed at the base of the lowermost USDW
near certain municipal injection wells in Florida have shown evidence
that there has been fluid migration out of the designated injection
zone. Through evaluation of this information, it is suspected that
sufficient geologic strata separating the injection zones and the USDW
do not exist in certain parts of Florida. Therefore, considering the
State's unique geology, the assumption underlying the development of
the fluid movement prohibition for Class I municipal wells needs (i.e.,
availability of adequate confinement) to be reviewed for Florida. Since
current Federal UIC regulations do not provide Class I municipal wells
with the flexibility to demonstrate that injection and any subsequent
fluid movement would not endanger underground drinking water sources,
EPA has decided that such flexibility should now be built into the
Florida-specific UIC regulations for existing municipal Class I wells.
The Act permits EPA, under Section 1421(b)(3)(A), to consider
specific State geologic, hydrological and historical conditions when
passing regulations to prevent endangerment. Section 1421(b)(3)(A)
states, ``The regulations of the Administrator under this section shall
permit or provide for consideration of varying geologic, hydrological,
or historical conditions in different States and in different areas
within a State.'' The proposed rule is being developed based on South
Florida's unique carbonate--rock geology, discussed previously, the
vast hydrological capacity that characterize the formations where
wastewater is injected and the extent to which municipalities in South
Florida have turned to Class I wells as a very important method for
wastewater disposal. Florida is currently also the only State in the
country that disposes of treated domestic waste through Class I
municipal injection wells. EPA believes that all these conditions
support the regulatory approach being proposed here for existing Class
I municipal wells in certain parts of Florida.
2. What the Proposal Will Allow
EPA is now considering a regulatory approach for existing Class I
municipal wells in certain counties in Florida that addresses the lack
of sufficient confinement of Class I municipal injection while
continuing to meet the requirement of the Act to prevent underground
injection that endangers underground drinking water sources. These
counties are: Brevard, Broward, Charlotte, Collier, Dade, Flagler,
Glades, Hendry, Highlands, Hillsborough, Indian River, Lee, Manatee,
Martin, Monroe, Okeechobee, Orange, Osceola, Palm Beach, Pinellas, St.
Johns, St. Lucie, Sarasota, and Volusia. The proposed rule provides an
option for qualified operators of domestic wastewater facilities in
these counties to continue disposal underground rather than relying on
surface and/or ocean disposal of effluent. Further, the proposed rule
would compel facilities to provide more advanced wastewater treatment
that will raise the economic value of the treated effluent and in turn
promote greater wastewater reuse.
The proposed rule creates, for certain Florida Class I wells that
inject domestic wastewater, an authorization to inject, regardless of
fluid movement into the USDW, so long as the facility can demonstrate
that it will meet certain protective criteria relating to the quality
of the injected fluid, and that the injected fluids will not cause any
USDWs to exceed primary drinking water regulations in Part 141 of this
chapter and other health based standards. The proposed rule is
consistent with the mandate of the SDWA, as it establishes requirements
which prevent endangerment of USDWs. The conditions placed upon wells
receiving this authorization to inject are designed to prevent
endangerment of USDWs, while providing for the possibility of continued
injection operations. In order to further ensure that the authorization
to inject is consistent with the goals of the SDWA, the proposal
specifies that EPA participate in the review and approval of the
facility's application for this authorization, even though the State of
Florida has primacy for the Class I UIC program. EPA will have 90 days
to disapprove the State's approval of any authorization under this
proposed rule. If EPA does not respond within 90 days, the
demonstration is approved.
EPA is co-proposing for public comment two approaches for
regulating Class I municipal wells in specific areas of Florida where
injection has caused or may cause fluid movement into a USDW. The two
options are: Option 1--Facilities must provide advanced wastewater
treatment with a demonstration that the injectate will not cause a USDW
to exceed any primary drinking water regulations in Part 141 of this
chapter and other health based standards (e.g., Federal or State health
advisories); and Option 2--Facilities must conduct an in-depth
hydrogeologic demonstration and must provide advanced treatment, as
necessary, to ensure that injectate will not cause a USDW to exceed any
primary drinking water regulations in Part 141 of this chapter and
other health based standards. The requirements of these options are in
paragraph (d).
The difference between these two options is that Option 2 would
require a much more extensive demonstration than in Option 1 because a
high level of treatment before injection provides a safety net of
contaminant removal. Both of these proposals apply to existing
municipal wells which inject domestic wastewater effluent.. An existing
well is defined as a well for which a complete UIC construction permit
application has been received by the Director on or before the date of
publication of this proposed rule in the Federal Register. This rule is
proposed for existing wells only because, given current knowledge of
the existing fluid migration problems, future well applications will be
reviewed with more scrutiny than wells that have already been permitted
and such review will ensure that adequate confinement exists so that
fluid movement should not occur. The Agency is requesting comments on
whether this proposed rule should apply to existing wells only, or if
this proposed rule should also apply to new wells.
Although the municipal wells that are covered by this proposed rule
receive primarily domestic wastewater, they also receive some
wastewater from industrial sources. This rulemaking does not
specifically require that these industrial facilities have a
pretreatment program in place that would require them to pretreat the
wastewater that enters the facility's treatment system. Such a program
may be necessary to address contaminants that enter a facility's
wastewater treatment system and are not sufficiently removed by the
treatment system to prevent concentrations of the contaminant from
entering a USDW and causing the USDW to exceed drinking water
regulations or other health based standards. Although Florida requires
that publicly owned treatment works (POTWs) greater than 5 million
gallons
[[Page 42239]]
per day (MGD) meet certain pretreatment requirements, this may not
sufficiently address contaminants in fluids that move into a USDW as a
result of underground injection from smaller POTWs or others that could
be exempt from existing pretreatment requirements. EPA therefore
solicits public comment on the need by the Agency to require
pretreatment as an additional condition of authorization under today's
proposal and, whether to extend the pretreatment standards presently
required by the State to injection facilities with less than 5 MGD.
3. Rule Applicability
This proposed rule applies only to existing Class I municipal wells
which inject treated domestic wastewater effluent that have caused or
may cause fluid movement into USDWs in specific counties in Florida.
These counties are: Brevard, Broward, Charlotte, Collier, Dade,
Flagler, Glades, Hendry, Highlands, Hillsborough, Indian River, Lee,
Manatee, Martin, Monroe, Okeechobee, Orange, Osceola, Palm Beach,
Pinellas, St. Johns, St. Lucie, Sarasota, and Volusia. This rule
applies to both publically and privately owned facilities. The
definition of domestic wastewater can be found in paragraph (c) of this
proposed rule.
4. Monitoring
EPA is considering adding more specific monitoring requirements for
the effluent and the ground water than specified in Sec. 146.13. The
effluent will be characterized initially to determine the level of
contaminants in the wastewater and then at least annually to ensure
that the treatment process is meeting its objectives. This monitoring,
at a minimum, would be for all contaminants regulated under the
national primary drinking water regulations and other health based
standards. The Director shall also require that the owner and/or
operator develop and implement an ambient/ground water monitoring
program. The ground water monitoring program will, at a minimum,
analyze the ground water to determine if any primary drinking water
regulations in Part 141 of the chapter or other health based standards
have been violated. The monitoring is to verify that the injection
operation shall not endanger the USDW through movement of the injectate
or formation fluids. These requirements would be incorporated as permit
conditions of an operation permit under the Florida UIC program.
Additional requirements, such as the construction of additional
monitoring wells may be needed on a case-by-case basis. EPA is
requesting comments on any additional monitoring requirements for the
final rule.
5. Operating Conditions
Operating conditions determined necessary to prevent endangerment
of the USDW by the demonstration will be incorporated by the Director
as permit conditions to either a permit modification or permit
issuance. Conditions may include, but are not limited to, treatment
requirements including pretreatment (if any), monitoring criteria and
frequency, and reporting frequency.
The options which are being co-proposed for paragraph (d) are as
follows:
Option 1--Advanced wastewater treatment with a non-endangerment
demonstration. The authorization to inject under Option 1 requires that
the owner and/or operator of a Class I municipal well injecting
domestic wastewater effluent treat their wastewater by advanced
treatment methods and high-level disinfection and demonstrate that the
injection of the wastewater effluent would not cause fluids that exceed
the national primary drinking water regulations or other health based
standards to enter the USDW. The non-endangerment demonstration would
focus on any contaminants that still exceed national drinking water
regulations or other health based standards after advanced wastewater
treatment. The demonstration would identify any such contaminants and
demonstrate that they would not cause similar exceedances in the USDW.
EPA solicits public comment on four alternatives for the
appropriate level of advanced wastewater treatment, nutrient removal,
and high-level disinfection that should be required of these
facilities. The final rule will specify only one alternative.
Advanced treatment options reflect a wide range of biochemical
oxygen demand (BOD) removal and nutrient removal capabilities. In
designing the Clean Water Needs Survey, States and EPA identified four
advanced treatment options that represent a range of treatment
scenarios commonly used by municipalities for advanced wastewater
treatment. These include plants designed to meet BOD levels of 10-24
mg/l with and without nutrient removal capability, and plants designed
to meet more stringent BOD levels of less than 10 mg/l with and without
nutrient removal capability. EPA is considering a range of advanced
treatment alternatives, and is seeking comment on which alternative to
specify in the final rule if Option 1 is selected. The alternatives
evaluated and proposed are:
Treatment to 10-24 mg/l BOD with disinfection;
Treatment to 10-24 mg/l BOD with disinfection and nutrient removal;
Treatment to 10 mg/l BOD with disinfection;
Treatment to 10mg/l BOD with disinfection and nutrient removal.
Advanced treatment is any level of treatment in excess of secondary
treatment and may include processes to remove nutrients such as
nitrogen and phosphorus and other pollutants found in the wastewater
stream entering the municipal treatment plant. To achieve high level
disinfection, a process designed to kill most microorganisms in water
including pathogenic (disease causing) bacteria, owners and/or
operators must allow the wastewater to remain in contact with at least
1.0 mg/l of free chlorine for at least 15 minutes of contact with no
fecal coliform. Facilities will also be required to provide
dechlorination, if necessary, as part of the advanced wastewater
treatment to ensure that USDWs are not endangered from disinfection by-
products.
Option 2--In-depth hydrogeologic demonstration and advanced
treatment, as necessary. The authorization to inject under Option 2
requires that the owner and/or operator of a Class I municipal well
injecting domestic wastewater effluent provide a hydrogeologic
demonstration that the injection operation would not cause fluids that
will migrate into the USDW to exceed the national primary drinking
water regulations or other health based standards. EPA anticipates that
this hydrogeologic demonstration would be similar in detail to that
required for a RCRA land ban no-migration petition and consist of an
evaluation of the results of sampling and analysis for contaminants in
wastewater prior to injection and in water samples from deep monitoring
wells at the base of the USDW and would also include detailed
hydrogeologic modeling of fluid transport from the injection zone to
those areas of the subsurface including USDWs to which the fluid and
contaminants in the fluid have migrated and may migrate. This
demonstration would include at a minimum: ground-water modeling,
geochemical analysis and effluent and ground-water monitoring and
analysis. The items included in the demonstration are intended to
characterize how the effluent is expected to move vertically and
horizontally after it is injected into the subsurface and to determine
if the
[[Page 42240]]
effluent or the formation fluids will enter the USDW. If it is
anticipated that the fluids may enter the USDW, the demonstration must
show that the fluids will not endanger the USDW and exceed primary
drinking water regulations in Part 141 or other health based standards.
If the owner and/or operator cannot successfully demonstrate that
the injection operation meets these criteria, the owner and/or operator
must treat the injectate to address the contaminants of concern and
satisfy the criteria of paragraph (d) that the injectate would not
cause a USDW to exceed the national primary drinking water regulations
or other health based standards prior to receiving an authorization for
permit authorizing continued injection pursuant to this rule. The
Agency also solicits comments as to whether this hydrogeologic
demonstration, and the determination of what level of advanced
wastewater treatment may be necessary, should include a requirement for
pretreatment as may be necessary to address contaminants that may move
through a treatment system and enter into a USDW at concentrations of
concern.
The differences between the two options proposed under paragraph
(d) are that the first option gives a higher level of confidence that
any fluids that migrate into the USDW will meet the applicable
standards. This is because the facilities must design, construct and
operate a specific level of advanced wastewater treatment and also
demonstrate that, after the effluent is treated, any constituent which
exceeds any primary drinking water regulations in Part 141 or other
health based standards at the point of injection will not exceed the
standards when the fluid enters the base of the USDW.
For Option 1, this demonstration could be as simple as referencing
technical literature describing die-off rates for viruses and other
pathogens, or how metals bind in soils compared to the results of
ground water sampling and analysis pursuant to Sec. 146.13. EPA expects
that there would be fewer parameters (contaminants in concentrations of
concern) requiring a demonstration in Option 1 since the effluent would
be subject to advanced treatment and disinfection and less ground water
modeling.
For Option 2 under paragraph (d), the facility is afforded the
opportunity to demonstrate the necessity for additional treatment and
tailor the level of treatment to the quality of fluid that has migrated
or may migrate into the base of the USDW. The level of treatment needed
to make a successful demonstration under Option 2 could vary from
facility to facility. Constituents in the effluent that exceed primary
drinking water regulations in Part 141 or other health based standards
would need to be sampled at the base of the USDW, analyzed and
evaluated to ensure that the requirements of this proposed rule are
met. EPA solicits comments on each of these options for ensuring that
any fluid that does migrate into the base of a USDW will meet
applicable standards. In particular, EPA solicits comments on the
ability of owners and operators to provide the kind of hydrogeologic
and other information necessary for a successful hydrogeologic
demonstration.
If it adopts Option 2, EPA also proposes to require that all
facilities qualifying for authorization to inject under this section
must have advanced wastewater treatment and high level disinfection in
place by the year 2015. This requirement is to address water shortages
in Florida and encourage water reuse. The year 2015 is being proposed
in order to provide the wastewater treatment facilities with adequate
time to evaluate all of their municipal wastewater reuse and disposal
options and to plan for any construction of treatment facilities
needed. Prior to the year 2015, under Option 2, the owner/operator of
the wastewater treatment facility would still have to demonstrate that
they will not endanger USDWs. EPA is soliciting comment on the
appropriate level of advanced wastewater treatment and nutrient removal
to be required by the facilities by 2015. The levels of treatment being
considered are the same as those listed in Option 1 above.
6. Demonstration Review
The demonstration under paragraph (d) must be submitted to both the
State and EPA for review. The authorization to continue to inject under
a permit shall become final 90 days after the State Director approves
the demonstration and submits the approval in writing to the Regional
Administrator if he or she does not disapprove the authorization within
the 90 days. Any disapproval by the Regional Administrator shall state
the reasons and shall constitute final Agency action. The owner and/or
operator must update the required demonstration with each subsequent
Class I operation permit application, every five (5) years, as required
in paragraph (f). The update shall include an analysis of all
monitoring results since the original demonstration and verification
that the original demonstration is still valid for the disposal
operation.
EPA is soliciting comments on all aspects of this proposal, and in
particular on whether to select either Option 1 or 2 or, if it would be
more appropriate, to select a combination of both options. In addition
the Agency requests comments on EPA's regulatory approach to continue
to allow facilities with fluid movement to inject by improving the
quality of the injected fluid. In particular, the Agency invites
comment and data on any commenters' preference among the various means
of domestic wastewater disposal in Florida, the effects that those
methods have on Florida's fragile environment, and the extent to which
this proposal may result in the increased or decreased use of reuse or
other disposal practices such as ocean or other surface water disposal.
E. The Cost of Compliance
The proposed rule does not impose any new requirements on Class I
municipal wells in Florida, but merely provides an alternative
authorization to inject for which a well owner and/or operator may
apply if the well falls within the narrow criteria of the proposed
rule. Because continued operation of Class I municipal injection wells
which result in movement of fluids into or between USDWs is contrary to
existing Federal UIC regulations, the proposed rule offers such
facilities an ability to continue to operate legally provided they meet
the new requirements.
The proposed rule presents owners and/or operators of such Class I
wells with options for continued authorization to inject should fluid
movement occur. In the absence of the proposed regulatory changes,
facilities that exhibit fluid movement would need to close their wells
and adopt alternative disposal practices. The economic analysis for
this proposed rule compares the costs of compliance under this proposed
rule with the costs of compliance under the current regulations. Small
private and governmental entities are the likely owners and/or
operators of Class I wells in Florida disposing of domestic wastewater
effluent.
The factors taken into account in estimating these costs include
the number of existing facilities that are potentially affected by the
proposed rule, the current regulatory requirements for Florida Class I
municipal facilities, and the current extent of treatment at each
facility. Many of the cost estimates are presented as a range, with the
lower figures representing an assumption that 25% of the existing
facilities will experience
[[Page 42241]]
fluid movement and the upper figures representing an assumption that
100% of the facilities will experience fluid movement. Specific to
Option 2, of the facilities that do not currently provide advanced
wastewater treatment and high level disinfection, 25% are assumed to be
able to make the hydrogeologic demonstration with the addition of high-
level disinfection only and 75% will have to provide both high-level
disinfection and advanced wastewater treatment. The baseline assumes
the costs associated with complying with the current UIC regulations.
These costs include closing the wells and adopting alternative disposal
practices, which could consist of surface water disposal, ocean
outfall, and/or reuse.
Four different treatment scenarios have been evaluated with each of
the proposed options. The target contaminant removal levels are based
on the pollutant parameter biochemical oxygen demand (BOD) removal:
Treatment to 10-24 mg/l BOD with disinfection
Treatment to 10-24 mg/l BOD with disinfection and nutrient removal
Treatment to 10 mg/l BOD with disinfection
Treatment to 10mg/l BOD with disinfection and nutrient removal
Given these assumptions, the costs to Class I municipal facilities
, including monitoring costs, in Florida are estimated to be as follows
(in millions of dollars):
Baseline Scenario: Total Capital Costs $721-2,882
Total Annualized Costs (Capital & Operating) $203-811
Regulatory Option 1: Total Capital Costs $254-1,678
Total Annualized Costs (Capital & Operating) $131-587
Total Annualized Savings from Baseline $72-224
Regulatory Option 2: Total Capital Costs $201-1,329
Total Annualized Costs (Capital & Operating) $101-453
Total Annualized Savings from Baseline $102-358
EPA is soliciting comments on the assumptions used in the economic
analysis that was developed for this proposed rule. The economic
analysis is part of the record for this proposed rule (see Additional
Docket Information in the SUPPLEMENTARY INFORMATION section above).
EPA notes that a facility may choose to cease underground injection
and, as permitted under State or Federal law, opt to discharge to
surface waters, either to fresh waters, estuaries or through an outfall
to ocean waters. EPA solicits comments regarding whether these are
preferred disposal methods. In particular, EPA solicits comments about
what disposal actions municipalities may take if there is no regulatory
change or in the event either one of the two proposed options is
promulgated. EPA also solicits comments on the potential economic or
environmental impact of either making no change or choosing either of
the proposed options.
II. Regulatory Impact/Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is, therefore, not subject to OMB review.
B. Executive Order 13045: Children's Health Protection
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not economically significant as defined in Executive Order 12866,
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. The proposed rule provides an
optional authorization for certain Class I wells in Florida to inject
domestic wastewater effluent only if the practice is demonstrated not
to endanger underground sources of drinking water. The criteria
established in the rule safeguards these resources for all potential
users, including but not limited 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 secondarily treated wastewater injected into
the subsurface through Class I municipal wells in Florida.
C. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 317.17) and a copy may be obtained from Sandy Farmer by mail
at Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Avenue, N.W., Washington, DC 20460; by email
at [email protected], or by calling (202) 260-2740. A copy
may also be downloaded off the internet at http://www.epa.gov/icr.
The proposed ICR estimates monitoring, demonstration, reporting and
recordkeeping burdens and costs for Class I underground injection well
operators in Florida under the proposed rule. Information regarding
wastewater quality, treatment and migration will be collected as
outlined in the rule for review by the State of Florida as primacy
agent. Under the proposed rule, the primacy State would be required to
revise and resubmit a UIC program application for Class I wells. EPA is
also requesting that facility owners and/or operators demonstrate,
using a modeling study, that by the time effluent reaches the USDW, it
is in compliance with the SDWA national primary drinking water
standards. Wells for which it cannot be demonstrated that sufficient
water
[[Page 42242]]
quality exists at the bottom of the USDW would have to upgrade their
wastewater treatment to qualify for the proposed authorization to
inject.
Information collected under SDWA and, by extension, this ICR is
expected to be used by EPA and the State of Florida to help insure the
maintenance of clean, safe public drinking water supplies.
Operators of injection wells may claim confidentiality, as provided
in Sec. 144.5, Confidentiality of Information. If confidentiality is
requested, the information is treated in accordance with the provisions
of 40 CFR Part 2, Public Information.
Information collected under this ICR is intended for the Agency's
and/or State's internal use and there are no plans to routinely release
or publish any of the data. However, if no claim of confidentiality is
made at the time of submission, the information can be made available
to the public without further notice.
EPA estimates that the average annual burden on Class I municipal
well operators (which includes public and private entities) and the
State of Florida will be 1,556 hours for Option 1 of the proposed rule
and 2,265 hours for Option 2. This is based on an estimate that 1
State, Florida, will need to provide 44 responses each year at 10 hours
per response for Option 1 and 44 responses at 10.6 hours per response
for Option 2. It is also estimated that 9 Class I municipal well
operators will need to provide an average of 15.7 responses each year
at an average of 7.9 hours per response for Option 1 and an average of
15.7 responses each year at an average of 12.8 hours per response for
Option 2. The labor burden is estimated for activities associated with
reading and understanding the rule, performing and reviewing
monitoring, performing and reviewing engineering demonstrations, and
meeting primacy requirements. In addition to the recordkeeping and
reporting burden, it is estimated that an average annual cost of
$688,678 will be incurred for capital and operations and maintenance
(O&M) costs for Option 1, and $884,943 annually for Option 2. Capital
costs are for installation of monitoring wells and associated equipment
needed to collect data under the rule requirements. O&M costs are for
acquisition of contracting services to perform analysis and
demonstrations required by the proposed rule.
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.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, Collection Strategies Division; U.S. Environmental Protection
Agency (2822); 1200 Pennsylvania Avenue, N.W., Washington, DC 20460;
and to the Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th St., N.W., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after July 7, 2000, a comment to OMB is best
assured of having its full effect if OMB receives it by August 7, 2000.
The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
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 generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure 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, small entity is defined as: (1) A small business whose annual
revenue is less than $5 million according to 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 of 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 proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C.
Sections 603 and 604. Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all of the small entities subject to the
rule. EPA estimates there are approximately 42 existing Class I
municipal wells that at some point during their operating life could
cause fluid movement into a USDW and fall within the scope of this
proposed rule. Of these 42 facilities, 13 are small governmental
entities and one is a small business.
As discussed in section I.E., the economic impact of this proposed
rule actually results in a cost savings to the Class I municipal
facilities compared to the baseline, i.e., complying with current
regulations. Because Class I wells which may seek the authorization to
inject provided by the proposed rule are only affected if they cause
fluid movement prohibited by present law, EPA has determined that the
effect on small entities will be positive to the extent they are
impacted. If the entity chooses not to seek the authorization to
inject, the legal status of its continued operations is not impacted by
the proposed rule. We have therefore concluded that today's proposed
rule either will have no effect on or, in the alternative, will provide
regulatory relief for small entities.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome
[[Page 42243]]
comments on issues related to such impacts.
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.''
Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This proposed rule does not have federalism implications. It will
not 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,
as specified in Executive Order 13132. The proposed rule allows for an
optional alternate method for the State of Florida to use to ensure
that no owner and/or operator would endanger a USDW by injection of
domestic wastewater effluent into a Class I municipal well. EPA is not
proposing that an owner and/or operator must use this proposed
authorization, but rather is proposing options that owners and/or
operators of existing Class I municipal wells may wish to explore in
order to maintain the use of their injection operations. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule. Although Section 6 of Executive Order 13132 does not apply to
this rule, EPA did consult with the Florida Department of Environmental
Protection in developing this rule and they agree with EPA's strategy.
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.
EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. Because the authorization to inject
provided for by the proposed rule is optional on applicants, the costs
incurred by an entity in conjunction with such authorization to inject
under the proposed rule are discretionary, not mandated. The total cost
impact, in comparison to other alternatives to provide effective
wastewater disposal, is anticipated to be positive for those entities
that choose to avail themselves of the option provided by this proposed
rule. This rule will reduce the burden imposed by the current
regulations. Thus, today's rule is not subject to the requirements of
Section 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. This proposed rule is not targeted at small governments.
It offers owners and operators of Class I wells in certain parts of
Florida which inject domestic wastewater effluent an alternative method
of compliance with the existing UIC rule, which prohibits injection
that endangers USDWs, without requiring the facilities to cease
injection and abandon their existing Class I municipal injection wells.
This rule will provide them with a less burdensome alternative for
compliance. Thus, today's rule is not subject to the requirements of
Section 203 of UMRA.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub L. No. 104-113, Sec. 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 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
[[Page 42244]]
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments nor does it impose substantial
direct compliance costs on them. At present, there are no Class I UIC
wells used for domestic wastewater effluent disposal in Florida that
are owned or operated by an Indian tribal community. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
I. Plain Language
Executive Order 12866 and the President's memorandum of June 1,
1998, require each agency to write all rules in plain language. We
invite your comments on how to make this proposed rule easier to
understand. For example:
--Have we organized the material to suit your needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that is not clear?
--Would a different format (grouping and order of sections, use of
headings, paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make the rule easier to understand?
List of Subjects in 40 CFR Part 146
Environmental protection, Indians-lands, Intergovernmental
relations, Reporting and Recordkeeping requirements, Water Supply.
Dated: June 27, 2000.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Regulations is proposed to be amended as follows:
PART 146--UNDERGROUND INJECTION CONTROL PROGRAM
1. The authority citation for Part 146 continues to read as
follows:
Authority: Safe Drinking Water Act, 42 U.S.C. 300f et seq.;
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.
2. Section 146.15 is added to read as follows:
Sec. 146.15 Class I municipal well alternate authorization in Florida.
(a) Authorization to inject pursuant to this section is limited to
existing Class I municipal wells in specific geographic regions as
defined in paragraph (h) of this section that inject domestic
wastewater effluent as defined in paragraph (c) of this section and
that have caused or may cause fluid movement into USDWs. Pursuant to
this section, an existing Class I well does not violate the regulatory
prohibitions in Parts 144 and 146 of this chapter against the movement
of injection or formation fluids into a USDW, provided that such well
operates consistently with the requirements of this section.
(b) For purposes of this section, an existing Class I well is
defined as a well for which a complete UIC construction permit
application has been received by the Director on or before the date of
publication of this proposed rule in the Federal Register.
(c) For purposes of this section, injected fluids shall be
considered domestic wastewater effluent if they are injected by a
facility that:
(1) Is a publicly or privately owned and operated domestic
wastewater treatment facility;
(2) Receives wastewater derived principally from dwellings,
business buildings, institutions, and the like, commonly referred to as
sanitary wastewater or sewage, and
(3) Provides at least secondary treatment, as described in
Sec. 133.102 of this chapter, of the waste prior to injection.
Option 1 for Paragraph (d)
(d) In order for a Class I municipal well to qualify for
authorization pursuant to paragraph (a) of this section, the owner and/
or operator shall treat the well's injectate prior to injection using
advanced wastewater treatment and high-level disinfection and shall
also provide a non-endangerment demonstration that the injected fluids
will not cause any USDWs to exceed primary drinking water regulations
in Part 141 of this chapter and other health based standards (e.g.,
Federal and State health advisories). This demonstration would focus on
any contaminants that are expected to exceed primary drinking water
regulations in Part 141 of this chapter and other health based
standards (e.g., Federal and State health advisories) after treatment
and would include, at a minimum, effluent monitoring and an analysis of
any such contaminants following injection. To achieve high level
disinfection, a process designed to kill most microorganisms in water
including pathogenic (disease causing) bacteria, owners and/or
operators must allow the wastewater to remain in contact with at least
1.0 mg/l of free chlorine for at least 15 minutes of contact with no
fecal coliform. The minimum level of advanced wastewater treatment that
must be provided is:
Option a: 10-24 mg/l BOD with disinfection.
Option b: 10-24 mg/l BOD with disinfection and nutrient removal.
Option c: 10 mg/l BOD with disinfection.
Option d: 10 mg/l BOD with disinfection and nutrient removal.
Option 2 for Paragraph (d)
(d) In order for a Class I municipal well to qualify for
authorization pursuant to paragraph (a) of this section, the owner and/
or operator must provide a hydrogeologic demonstration to the
satisfaction of the Director and EPA that the injected fluids will not
cause any USDWs to exceed primary drinking water regulations in Part
141 of this chapter and other health based standards (e.g., Federal and
State health advisories). This demonstration would include at a
minimum: ground-water modeling, geochemical analysis and effluent and
ground-water monitoring and analysis. If they cannot make this
demonstration, the owner and/or operator must provide sufficient
advanced wastewater treatment, nutrient removal and high-level
disinfection to enable them to demonstrate that the injected fluids
will not cause any USDWs to exceed primary drinking water regulations
in Part 141 of this chapter and other health based standards (e.g.,
Federal and State health advisories).
(e) The demonstration pursuant to paragraph (d) of this section
must be submitted to both the State and EPA for review. The
demonstration shall be reviewed and either approved or disapproved in
writing by the Director. If the Director disapproves the demonstration,
the applicant shall not have met the requirements of paragraph (d) of
this section. If the Director
[[Page 42245]]
approves the demonstration, he or she shall promptly mail a copy of the
approval to the Regional Administrator. The authorization shall become
final if the State Director submits the approval in writing to the
Regional Administrator and the Regional Administrator has not
disapproved the authorization within 90 days. Any disapproval by the
Regional Administrator shall state the reasons for disapproval and
shall constitute final Agency action. In the event the Regional
Administrator exercises this authority to disapprove the demonstration,
the applicant shall not have met the requirements of paragraph (d) of
this section. The Director's approval and any conditions of the
authorization shall be included as part of the permit decision.
(f) Monitoring and reporting. In addition to meeting the
requirements of Sec. 146.13, the owner/operator must perform such
monitoring, analysis, and reporting as specified by the Director in the
permit authorization. The monitoring required under this section will
include, at a minimum, initial characterization and annual analysis of
the injectate for contaminants covered by the primary drinking water
regulations in Part 141 of this chapter or other health based
standards. The Director shall also require that the owner/operator
develop and implement an ambient/ground water monitoring program.
The ground water monitoring program will, at a minimum, analyze the
ground water to determine if any primary drinking water regulations in
Part 141 of the chapter or other health based standards have been
violated. The monitoring is to verify that the injection operation
shall not endanger the USDW through movement of the injectate or
formation fluids. These requirements would be incorporated as permit
conditions of an operation permit under the Florida UIC program.
Additional requirements, such as the construction of additional
monitoring wells may be needed on a case-by-case basis.
(g) Owners and/or operators of Class I injection wells which are
operating under the authority of paragraph (d) of this section shall
update and resubmit their demonstration under paragraph (d) of this
section with each subsequent Class I operation permit application,
every five (5) years. The owner and/or operator shall submit, as part
of such subsequent demonstrations, all monitoring results not available
at the time of the prior permit review and verification that the
original demonstration is still valid for the disposal operation.
(h) Authorization to inject domestic wastewater through existing
Class I wells pursuant to this section is limited to municipal wells in
Florida in the following counties: Brevard, Broward, Charlotte,
Collier, Dade, Flagler, Glades, Hendry, Highlands, Hillsborough, Indian
River, Lee, Manatee, Martin, Monroe, Okeechobee, Orange, Osceola, Palm
Beach, Pinellas, St. Johns, St. Lucie, Sarasota, and Volusia.
Proposed only if Option 2 for paragraph (d) of this section is
selected:
(i) Beginning on January 1, 2015, owners and/or operators of Class
I injection wells operating under the authority of this section may not
qualify for authorization pursuant to this section unless the injectate
has been subject to advanced wastewater treatment and high-level
disinfection.
The minimum level of advanced wastewater treatment that must be
provided is:
Option a: 10-24 mg/l BOD with disinfection, or
Option b: 10-24 mg/l BOD with disinfection and nutrient removal, or
Option c: 10 mg/l BOD with disinfection, or
Option d: 10 mg/l BOD with disinfection and nutrient removal.
(2) The owners and/or operators would still have to demonstrate
that the injected fluids will not cause any USDWs to exceed primary
drinking water regulations in Part 141 of this chapter and other health
based standards (e.g., Federal and State health advisories).
[FR Doc. 00-16753 Filed 7-6-00; 8:45 am]
BILLING CODE 6560-50-P