[Federal Register Volume 66, Number 88 (Monday, May 7, 2001)]
[Proposed Rules]
[Pages 22971-22983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11413]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 144 and 146
[FRL-6975-3]
Underground Injection Control Program--Notice of Proposed
Determination for Class V Wells
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Proposed Determination.
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SUMMARY: Today, the Environmental Protection Agency (EPA) is proposing
a determination for all categories of Class V injection wells not
included in the final rulemaking on Class V motor vehicle waste
disposal wells and large-capacity cesspools (64 FR 68546, December 7,
1999). These include shallow non-hazardous industrial waste injection
wells, large-capacity septic systems, agricultural and storm water
drainage wells, and other wells. The Agency proposes that additional
Federal underground injection control (UIC) regulations are not needed
at this time to prevent Class V wells from endangering underground
sources of drinking water (USDWs). The Agency will, instead, implement
its continuing statutory obligations and use existing authorities under
the Safe Drinking Water Act to protect USDWs from any threatening
underground injection activities. This proposed determination is based
on The Class V Underground Injection Control Study (EPA Document Number
EPA/816-R-99-014, dated September 1999) and other information that has
been placed in the public docket for comment.
DATES: EPA will accept public comment, in writing, on the proposed
determination and the 1999 Class V Study until July 6, 2001. The Class
V Study can also be found on EPA's Web site at www.epa.gov/safewater/uic/cl5study.html.
ADDRESSES: Send written comments to the UIC Class V, W-98-05 Comment
Clerk, Water Docket (MC-4101); U.S. Environmental Protection Agency,
1200 Pennsylvania Ave., NW, Washington, DC 20460. Comments may be hand-
delivered to the Water Docket, U.S. Environmental Protection Agency,
401 M Street, SW, East Tower Basement, Room 57, Washington, DC 20460.
Comments: Send one original and three copies of your comments and
enclosures (including any references). Please submit all references
cited in your comments. Facsimiles (faxes) can not be accepted.
Commenters who would like EPA to acknowledge receipt of their comments
should include a self-addressed, stamped envelope. To ensure that EPA
can read, understand and therefore properly respond to comments, the
Agency would prefer that commenters cite, where possible, the
paragraph(s) or sections in the notice or supporting documents to which
each comment refers. Commenters should use a separate paragraph for
each issue discussed.
Comments may also be submitted electronically to [email protected].
Electronic comments must be submitted as an ASCII, WP5.1, WP6.1 or WP8
file avoiding the use of special characters and form of encryption.
Electronic comments must be identified by the docket number W-98-05.
Comments and data will also be accepted on disks in WP 5.1, 6.1, 8 or
ASCII file format.
The record for this rulemaking has been established under docket
number W-98-05 and includes supporting documentation as well as
printed, paper versions of electronic comments. The record is available
for inspection from 9 to 4 p.m., Monday through Friday, excluding legal
holidays at the Water Docket, EB 57, USEPA Headquarters, 401 M.,
Washington, DC. For access to docket materials, please call 202/260-
3027 to schedule an appointment.
FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact Joan
Harrigan-Farrelly, Office of Ground Water and Drinking Water (mailcode
4606), EPA, 1200 Pennsylvania Ave, NW, Washington, DC 20460. Phone:
202-260-7077. 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 Standard Time.
SUPPLEMENTARY INFORMATION: Affected Entities: Although no new
regulations are being proposed, this notice applies to owners or
operators of any type of Class V well that is not a large-capacity
cesspool or motor vehicle waste disposal well, as described in 40 CFR
144.81(2) and (16), respectively. The following table lists categories
and examples of entities that may have such wells. This table is not
intended to be exhaustive, but rather provides a guide for readers
regarding entities likely to be affected by or interested in this
action. Other types of entities not listed in the table could also be
interested in it. To determine whether your injection well is affected
by this action, you should carefully examine the applicability criteria
in 40 CFR 144.1(g). If you have questions regarding the applicability
of this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
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Examples of entities
Category potentially affected by this
action
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Industry and Commerce..................... Farms, animal feeding
operations, and other
agricultural sites that
drain excess surface or
subsurface water into
wells; sites that have
storm water drainage wells,
facilities operating large-
capacity septic systems, or
nonhazardous waste disposal
wells; facilities that
extract minerals from brine
and then inject the spent
brine underground; mines
that backfill materials
into mine shafts,
pipelines, or other holes
that are deeper than they
are wide; aquaculture
facilities that dispose of
wastewater in underground
wells; solution mines that
use injection wells in the
recovery of minerals from
ore bodies that have
already been conventionally
mined; sites that use
injection wells as part of
aquifer remediation
activities; geothermal
power plants that reinject
fluids into the ground;
facilities that extract
direct heat from geothermal
fluids and then return
those fluids underground;
and sites that use ``open-
loop'' heat pump/air
conditioning systems.
State and Local Government................ Municipalities that use
storm water drainage wells;
publicly owned treatment
works that inject sewage
treatment effluent
underground; State and
local government entities
that inject water
underground for the purpose
of aquifer recharge or
aquifer storage and
recovery.
Federal Government........................ Any Federal Agency that owns
or operates one of the
above entities.
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[[Page 22972]]
Table of Contents
I. Background
A. Statutory and Regulatory Framework
B. Requirements Applicable to Class V Wells
C. History of this Rulemaking
1. 1987 Report to Congress
2. 1994 Consent Decree With the Sierra Club
3. 1995 Proposed Determination
4. 1997 Modified Consent Decree
5. 1998 Proposal and 1999 Final Rule
6. 1999 Class V Study
D. Scope of Today's Proposed Determination
II. Factors Considered in Making the Proposed Determination
A. Criteria Proposed in 1995
B. Public Comments on the 1995 Proposed Approach
C. Proposed Criteria for Today's Notice
III. Class V Wells Found to Have a Low Potential to Endanger in the
1995 Proposal
A. 1995 Proposed Finding
B. Public Comments on Well Types
C. 1999 Class V Study
IV. Other Class V Wells
A. Sewage Treatment Effluent Wells
1. 1995 Proposed Finding
2. Public Comments
3. 1999 Class V Study
4. Proposed Determination
B. Mine Backfill Wells
1. 1995 Proposed Finding
2. Public Comments
3. 1999 Class V Study
4. Fossil Fuel Combustion Waste Report to Congress
5. Proposed Determination
C. Storm Water Drainage Wells
1. 1995 Proposed Finding and 1998 Proposal
2. Public Comments
3. 1999 Class V Study
4. Proposed Determination
D. Large-Capacity Septic Systems
1. 1995 Proposed Finding
2. Public Comments
3. 1999 Class V Study
4. Guidelines for Management of Onsite Wastewater Systems
5. Proposed Determination
E. Agricultural Drainage Wells
1. 1995 Proposed Finding
2. Public Comments
3. 1999 Class V Study
4. Concentrated Animal Feeding Operations Proposal
5. Proposed Determination
F. Industrial Wells
1. 1995 Proposed Finding
2. Public Comments
3. Subsequent Actions
4. Proposed Determination
V. Comment Solicitation
I. Background
A. Statutory and Regulatory Framework
Class V 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 authorizes EPA to protect the quality of drinking water in the
United States, and Part C specifically mandates the regulation of
underground injection of fluids through wells. The Agency has
promulgated a series of underground injection control (UIC) regulations
under this authority.
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 1422 of the Act provides that States may apply to EPA for
primary enforcement responsibility to administer the UIC program; those
States receiving such authority are referred to as ``primacy States.''
Where States do not seek this responsibility or fail to demonstrate
that they meet EPA's minimum requirements, EPA is required to prescribe
a UIC program for such States by regulation. These direct
implementation (DI) program regulations were issued in two phases, on
May 11, 1984 (49 FR 20138) and November 15, 1984 (49 FR 45308). For the
remainder of this preamble, references to the UIC Program ``Director''
mean either the Director of the EPA program (where the program is
implemented directly by EPA) or the Director of the primacy State
program (where the State is responsible for implementing the program).
Also, currently all UIC Programs in Indian Country are directly
implemented by EPA. Therefore, for the remainder of this preamble,
references to DI programs include UIC programs in Indian Country.
B. Requirements Applicable To Class V Wells
The UIC regulations establish five classes of injection wells.
Class I wells are used to inject hazardous and non-hazardous waste
beneath the lowermost formation containing an underground source of
drinking water (USDW) within one-quarter mile of the well bore. Class
II wells are used to inject fluids associated with oil and natural gas
recovery and storage of liquid hydrocarbons. Class III wells are used
in connection with the solution mining of minerals from ore bodies that
have not been conventionally mined. Class IV wells are used to inject
hazardous or radioactive wastes into or above a formation that is
within one-quarter mile of a USDW. (Class IV wells are generally
prohibited by 40 CFR 144.13.) Class V wells are defined in the
regulations as any well not included in Classes I through IV.
Class V wells, other than motor vehicle waste disposal wells and
large-capacity cesspools, are currently authorized by rule
(Secs. 144.24(a) and 144.84(a)). Rule authorization expires upon the
effective date of a permit issued pursuant to Secs. 144.25, 144.31,
144.33, or 144.34; upon meeting one of the conditions specified in
Sec. 144.84(b); or upon proper closure of the well as described in
Sec. 144.82(b). Existing Class V motor vehicle waste disposal wells in
``ground water protection areas'' and ``other sensitive ground water
areas'' \1\ are banned with a provision that allows owners and
operators of such wells to seek a waiver from the ban and obtain a
permit (Sec. 144.88(b)). New Class V motor vehicle waste disposal wells
and new and existing large-capacity cesspools were banned nationwide
(Secs. 144.88(a) and (b)). These new requirements affecting motor
vehicle waste disposal wells and large-capacity cesspools are minimum
Federal standards--primacy States may impose more stringent
requirements.
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\1\ A ground water protection area is defined in Sec. 144.86(c)
as a geographic area near and/or surrounding community and non-
transient non-community water systems that use ground water as a
source of drinking water These areas receive priority for the
protection of drinking water supplies and States are required to
delineate and assess these areas under section 1453 of the SDWA.
Other sensitive ground water areas are defined in Sec. 144.85(g) as
additional State-defined areas that are critical to protecting USDWs
from contamination. The other sensitive ground water areas may
include areas overlying sole-source aquifers; highly productive
aquifers supplying private wells; continuous and highly productive
aquifers at points distant from public water supply wells; areas
where water supply aquifers are recharged; karst aquifers that
discharge to surface reservoirs serving as public water supplies;
vulnerable or sensitive hydrogeologic settings, such as glacial
outwash deposits, eolian sands, and fractured volcanic rock; and
areas of special concern selected based on a combination of factors,
such as hydrogeologic sensitivity, depth to ground water,
significance as a drinking water source, and prevailing land use
practices.
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In addition to these provisions, Class V UIC Program Directors have
many obligations and authorities under the SDWA to ensure the
protection of USDWs. Specifically, the current regulations subject
Class V wells to the general statutory and regulatory
[[Page 22973]]
prohibitions against endangerment of USDWs, as well as some specific
requirements. Under Sec. 144.12(a) and Sec. 144.82(a), owners or
operators of all injection wells, including Class V injection wells,
are prohibited from engaging in any injection activity that allows the
movement of fluid containing any contaminant into USDWs, if the
presence of that contaminant may cause a violation of any primary
drinking water regulation under 40 CFR part 141 or may otherwise
adversely affect human health. Sections 144.12(c), (d), and (e)
prescribe mandatory and discretionary actions to be taken by the
Director if a well is not in compliance with Sec. 144.12(a). These
actions may include requiring the well operator to apply for an
individual permit, ordering such action as closure of the well to
prevent endangerment, taking an enforcement action, and/or taking an
emergency action.
Owners or operators of Class V injection wells must also submit
basic inventory and assessment information under Sec. 144.26 and
Sec. 144.83. In addition, Class V wells are subject to the general
program requirements of Sec. 144.25 and Sec. 144.84 under which the
Director may require a permit, if necessary, to protect USDWs.
Moreover, under Sec. 144.27 and Sec. 144.83, EPA may require owners or
operators of any Class V well, in EPA-administered programs, to submit
additional information deemed necessary to protect USDWs. Owners or
operators who fail to submit the information required under
Secs. 144.26, 144.27, or 144.83 are prohibited from using their
injection wells.
C. History of This Rulemaking
1. 1987 Report to Congress
In accordance with the 1986 Amendments to the SDWA, EPA summarized
information on 32 categories of Class V wells in a Report to Congress
entitled Class V Injection Wells--Current Inventory; Effects on Ground
Water; and Technical Recommendations, September 1987 (EPA Document
Number 570/9-87-006). This report presents a national overview of Class
V injection practices and State recommendations for Class V design,
construction, installation, and siting requirements. These State
recommendations, however, did not give EPA a clear mandate on what, if
any, additional measures were needed to control Class V wells on the
national level. For any given type of well, the recommendations varied
broadly and were rarely made by more than two or three States. For
example, the recommendations for septic systems range from further
studies (3 States) to statewide ground water monitoring (1 State). For
industrial waste water wells, some States recommended immediate action
and closure while others recommended monitoring and ground water
evaluation studies.
2. 1994 Consent Decree With the Sierra Club
On December 30, 1993, the Sierra Club filed a complaint in the
United States District Court for the District of Columbia alleging that
EPA failed to comply with section 1421 of the SDWA regarding
publication of proposed and final regulations for Class V injection
wells. The complaint alleged that EPA's then current regulations
regarding Class V wells did not meet the SDWA's statutory requirements
to ``prevent underground injection which endangers drinking water
sources.'' (Complaint, Paragraph 15)
To resolve the issue, EPA entered into a consent decree with the
Sierra Club on August 31, 1994. This consent decree required that, no
later than August 15, 1995, the Administrator sign a notice to be
published in the Federal Register proposing regulatory action that
fully discharges the Administrator's rulemaking obligation under
section 1421 of the SDWA, 42 U.S.C. 300h, with respect to Class V
injection wells. A final rulemaking on the matter was required to be
signed by no later than November 15, 1996.
3. 1995 Proposed Determination
On August 15, 1995, the Administrator signed a notice of proposed
rulemaking that proposed a regulatory determination on Class V
injection wells intended to fulfill EPA's obligation under the 1994
consent decree with the Sierra Club (60 FR 44652, August 28, 1995). In
this notice, EPA proposed not to adopt additional Federal regulations
for any types of Class V wells. Instead, the Agency proposed to address
the risks posed by certain wells using existing authorities and a Class
V management strategy designed to: (1) Speed up the closure of
potentially endangering wells, and (2) promote the use of best
management practices to ensure that other Class V wells of concern do
not endanger USDWs. Several factors led EPA to propose this approach,
including: (1) The wide diversity in the types of fluids being
injected, ranging from high risk to not likely to endanger; (2) the
large number of facilities to be regulated; and (3) the nature of the
regulated community, which consists of a large proportion of small
businesses.
4. 1997 Modified Consent Decree
Based on public comments received on the 1995 proposal, EPA decided
to reconsider its proposed approach. Because this reconsideration would
extend the time necessary to complete the rulemaking for Class V wells,
EPA and the Sierra Club entered into a modified consent decree on
January 28, 1997 (D.D.C. No. 93-2644) that extended the dates for
rulemaking that had been in the 1994 decree. The modified decree
requires three actions.
First, by no later than June 18, 1998, the EPA Administrator was
required to sign a notice to be published in the Federal Register
proposing regulatory action that fully discharged the Administrator's
rulemaking obligation under section 1421 of the SDWA with respect to
those types of Class V injection wells determined to be high risk for
which EPA did not need additional information. The Administrator was
required to sign a final determination for these endangering Class V
wells by no later than October 29, 1999. Thirty-day extensions were
subsequently granted for both of these deadlines.
Second, by no later than September 30, 1999, EPA was required to
complete a study of all Class V wells not included in the first
rulemaking on endangering Class V injection wells. Based on this study,
EPA may find that some of these other types of Class V wells also
endanger USDWs.
Third, by no later than April 30, 2001, the EPA Administrator was
required to sign a notice to be published in the Federal Register
proposing to discharge the Administrator's rulemaking obligations under
section 1421 of the Safe Drinking Water Act (SDWA) with respect to all
Class V injection wells not included in the first rulemaking for Class
V injection wells. The Consent Decree requires that the Administrator
either (1) propose regulations fully implementing section 1421 with
respect to all such Class V injection wells, (2) propose a decision
that no further rulemaking is necessary in order to fully discharge the
Administrator's rulemaking obligations under section 1421 with respect
to all such Class V injection wells, or (3) propose regulations fully
implementing section 1421 with respect to some of these remaining Class
V injection wells and propose a decision that no further rulemaking is
necessary in order to fully discharge the Administrator's rulemaking
obligations under section 1421 with respect to all other Class V
injection wells not already covered. The Administrator must sign a
final
[[Page 22974]]
determination for these remaining Class V wells by no later than May
31, 2002.
5. 1998 Proposal and 1999 Final Rule
On July 29, 1998 (63 FR 40586), in response to the first action
required under the modified consent decree with the Sierra Club, EPA
proposed revisions to the Class V UIC regulations that would add new
requirements for three categories of Class V wells that were believed
to endanger underground sources of drinking water. According to this
proposal, Class V motor vehicle waste disposal wells in ground water
protection areas (as defined in footnote 1 above) would either be
banned, or would have to get a permit that requires fluids released in
those wells to meet the drinking water maximum contaminant levels
(MCLs) and other health-based standards at the point of injection.
Class V industrial waste disposal wells in ground water protection
areas also would be required to meet the MCLs and other health-based
standards at the point of injection, and large-capacity cesspools in
such areas would be banned.
EPA received substantial public input on the 1998 proposal. The
input included 97 letters from public commenters as well as
recommendations from the National Drinking Water Advisory Council
(NDWAC), which formed a Federal Advisory Committee Act (FACA) working
group to address Class V UIC and Source Water Protection Program
integration issues. This FACA workgroup met twice in 1999 to discuss
the proposed Class V regulation. In addition, on May 21, 1999 (64 FR
27741), the Agency published a notice of data availability (NODA) and
further request for comment related to the 1998 proposal. A total of 14
public comment letters were received in response to this request.
Taking all the public input into account, EPA issued final
revisions to the Class V UIC regulations on December 7, 1999 (64 FR
68546). The final rule added new requirements for (1) existing motor
vehicle waste disposal wells located in ground water protection areas
delineated for community water systems and non-transient non-community
water systems that use ground water as a source and in other sensitive
ground water areas delineated by the States; and (2) new and existing
large-capacity cesspools and new motor vehicle waste disposal wells
nationwide. The final rule, however, did not adopt the proposed
additional requirements for industrial waste disposal wells to meet the
MCLs and other health based standards at the point of injection. Many
commenters questioned why the Agency chose to regulate a wide range of
industries with different disposal practices with one approach. Some
commenters thought the industrial category was too diverse and types of
industrial waste streams should be regulated based on their specific
characteristics and risks. After considering these comments, EPA agreed
that the industrial category is diverse and represents a variety of
waste streams that required additional review before deciding on the
need for additional Federal regulations.
6. 1999 Class V Study
On September 30, 1999, in response to the second action required
under the modified consent decree with the Sierra Club, EPA published a
study of all Class V wells not included in the 1998 proposal (EPA
Document Number EPA/816-R-99-014). The study consisted of two major
components: (1) An information collection effort for the remaining
universe of Class V wells, which was divided into 23 different
categories for the purpose of analysis; and (2) an ``inventory
modeling'' exercise to estimate the number of storm water drainage
wells and large-capacity septic systems, two types of wells that were
believed to be quite prevalent, but for which adequate inventory
information was particularly lacking.
As described in detail in Volume 1 of the final Study report, the
information collection effort consisted of a comprehensive literature
search, State and EPA Regional data collection, requests to the public
for data, and peer review. As part of the State and EPA Regional data
collection, the Agency distributed nearly 700 questionnaires to EPA
Regional, State, and local program staff in all 50 States and U.S.
territories, including staff responsible for Class V well control on
Indian Lands in EPA Regions 5, 8, 9, and 10. The Agency supplemented
the information from the questionnaires with follow-up telephone
interviews and on-site file searches in 11 primacy States, 3 DI States,
and 2 Regional Offices with DI States. The Agency also supplemented the
survey results with visits to a number of injection well sites,
including geothermal electric power well sites in California and food
processing waste disposal well sites in Tennessee and Maine.
For the inventory modeling, EPA selected and visited a sample of 99
census tracts across the nation to collect data on the numbers of storm
water drainage wells and large-capacity septic systems that exist and
factors that influence their prevalence. Storm water drainage wells
were found in 22 of the 99 census tracts visited and large-capacity
septic systems were found in 88 of the 99 census tracts visited. EPA
used the data collected from the visits to develop mathematical models
for predicting the numbers of these wells nationwide.
D. Scope of Today's Proposed Determination
Today's proposed regulatory determination addresses all of the
Class V well types not covered by the 1999 final rule, in response to
the third action required under the modified consent decree with the
Sierra Club. For the purpose of this notice, these other well types are
discussed in the following categories that track with the earlier
proposals described above as well as the categories addressed in the
Class V Study: Agricultural drainage wells, storm water drainage wells,
large-capacity septic systems, sewage treatment effluent wells, spent
brine return flow wells, mine backfill wells, aquaculture waste
disposal wells, solution mining wells, in-situ fossil fuel recovery
wells, special drainage wells, experimental wells, aquifer remediation
wells, geothermal electric power wells, geothermal direct heat wells,
heat pump/air conditioning return flow wells, saltwater intrusion
barrier wells, aquifer recharge and aquifer storage and recovery wells,
subsidence control wells, and industrial wells (including, but not
limited to, carwash wells, food processing waste disposal wells,
laundromat wells, and non-contact cooling water wells). These
categories are the same as the ones defined in the existing regulations
in 40 CFR Sec. 144.81. However, in some cases the categories have been
combined or separated to facilitate the discussion of the data and
rationale used to support this determination. This determination,
however, does not propose to change the Class V well categories
currently defined in the UIC regulations to the ones discussed here.
It is also important to clarify that this notice satisfies the
Agency's obligations under the modified consent decree with the Sierra
Club, but it does not end EPA's obligations, requirements, and actions
to prevent Class V wells from endangering USDWs. As described in
Section I.B above, UIC Program Directors have many obligations and
authorities under the SDWA to ensure the protection of USDWs from the
risks posed by Class V wells. The Agency will continue to fulfill these
obligations and using existing authorities for all Class V wells
(Section IV.F.3 below summarizes some of the actions UIC Program
[[Page 22975]]
Directors take for Class V industrial wells using these existing
authorities). In addition, nothing in this notice precludes a State or
local government from promulgating requirements more stringent than the
minimum Federal requirements. Also, today's proposed determination does
not affect EPA's authority to impose any necessary regulations in the
future on any of the well types addressed in today's notice.
II. Factors Considered in Making the Proposed Determination
A. Criteria Proposed in 1995
The Agency proposed two criteria in 1995 for evaluating the
different categories of Class V wells to determine whether any category
warranted additional regulation: the potential to endanger USDWs and
the anticipated effectiveness of additional Federal regulation under
the UIC program in preventing endangerment to USDWs.
For wells with a low or no potential to contaminate USDWs, the
Agency proposed that the then existing regulations provided sufficient
authorities to handle the few cases where mismanagement of one of these
wells could create an endangering situation. To assess the need for
additional UIC regulation for the other wells, the 1995 proposal was
guided by the following principles:
(1) Additional Federal UIC regulations are not necessary where
adequate State or local regulations are already in place,
(2) Additional Federal UIC regulations are not necessary where the
Class V wells are not the principal source of endangerment from a
widespread environmental problem,
(3) Additional Federal UIC regulations are not necessary where
endangerments are localized problems, e.g., wells that are found only
in one or two counties or in one or two States. For these wells, EPA
will work with the States, if necessary, to bring about better
controls,
(4) Additional Federal UIC regulations are not necessary where
other Federal programs address the endangerment caused by certain Class
V wells.
B. Public Comments on the 1995 Proposed Approach
EPA received 57 public comment letters on the 1995 proposal,
several of which addressed the proposed decision-making criteria
summarized above. Many comments supported the Agency's proposal to not
impose more regulations for Class V wells based on these criteria.
However, EPA also received a number of comments that raised concerns
about the overall approach, including the above criteria and the
related rationale proposed for some well types. The opposing comments
are best represented by nine main points made by the Sierra Club, which
are addressed in turn below.
First, the Sierra Club asserted that blanket authorization of Class
V wells by rule, based on any criteria, violates the SDWA. The basis
for this comment was the Sierra Club's interpretation that SDWA
requires EPA to prescribe regulatory standards for State programs. EPA
disagrees that the Class V regulations violate the SDWA. SDWA section
1421(b) requires EPA to issue regulations for effective State programs
to prevent endangerment of drinking water sources by underground
injection. The statute specifically States that the regulations ``may
permit a State to authorize underground injection by rule.'' Section
1421(b)(1)(A). EPA has provided such authority to States for Class V
regulations; the authorization by rule requirements for such wells
include requirements for reporting and avoiding endangerment of
drinking water sources. As discussed in more detail below, EPA has
found that these requirements are generally effective in preventing
endangerment from the Class V wells discussed in today's proposed
determination. Thus, EPA has met the statutory mandate of prescribing
regulations for ``effective'' State programs ``to prevent * * *
endangerment'' from Class V UIC wells.
Second, the Sierra Club stated that continued reliance on the non-
endangerment provision in 40 CFR 144.12 and the authority in 40 CFR
144.25 to require a permit does not fulfill EPA's statutory duty to
specify minimum requirements for State UIC programs. EPA disagrees with
this analysis. The minimum requirements for State UIC Class V programs
are specified in EPA's regulations; these include reporting and non-
endangerment requirements. While these may not be as specific and
detailed as the requirements for the other UIC well classes, they are
nonetheless ``minimum requirements for * * * (State) programs'' as
required by SDWA section 1421(b). Because these requirements, general
as they are, have been effective in preventing endangerment from these
wells, no more is required under the statute.
Third, the Sierra Club argued that the existence of State or local
regulations does not justify a decision not to impose more Federal
regulations. While EPA agrees that the mere presence of State or local
regulations governing UIC wells does not justify a decision not to
impose Federal requirements under section 1421(b), such State or local
regulations may be an important factor in determining the extent of
``endangerment'' from Class V wells and the ``effectiveness'' of
additional Federal requirements. For example, as discussed below, in
determining the extent of ``endangerment'' posed by various Class V
well types, EPA relied heavily upon actual contamination incidents;
however, the adequacy of State and local requirements was also a factor
that helped EPA determine the likelihood of future contamination from
such wells. Similarly, EPA believes that comprehensive State and local
regulation of a Class V well type, such as septic systems discussed
below, may make additional Federal regulation entirely duplicative, if
not disruptive. Where such regulation exists, further Federal
regulation may be futile in terms of ensuring ``effective'' State
programs; rather, Federal efforts may be better focused on
implementation of and education regarding existing regulations and
programs than merely adding yet another layer of redundant or
duplicative requirements. Thus, EPA continues to believe that the
extent of State and local regulation remains a highly relevant
consideration in meeting the section 1421(b) mandate. At its core, the
statute clearly envisions that the UIC program be a State-run program
and the Federal role is to ensure that existing State UIC programs
become or remain effective in addressing any endangerments from
underground injection wells.
Fourth, the Sierra Club claimed that a decision not to impose
additional regulations cannot be justified on the grounds that Class V
wells are not the principal source of endangerment from a widespread
environmental problem, because partial or incremental solutions are
better than none at all. In order for this criterion to be valid, the
Sierra Club asserted that EPA would have to show that additional
Federal regulations yield a gain of trivial or no value. As noted
below, EPA has dropped this criterion as a basis for deciding not to
establish further regulations for Class V wells. However, EPA continues
to believe that the extent of contamination from Class V wells, based
on actual incidents of contamination, remains a critical factor in
determining whether sufficient ``endangerment'' is posed by Class V
wells to warrant additional Federal requirements.
Fifth, the Sierra Club argued that EPA cannot decide against
additional Class V regulations based on a finding that endangerments
are localized problems. According to the comment, nothing in SDWA
exempts from regulation endangerments that occur in one or a
[[Page 22976]]
few places, and nothing prevents these localized problems from emerging
in other areas in the future. While EPA agrees that ``endangerments''
that are ``localized'' may still warrant Federal regulation since, as a
factual matter, most well contamination will endanger only a localized
area, EPA strongly believes that additional Federal regulation is not
necessary where the endangerment posed by a particular well type
appears to be isolated and rare. No amount of Federal regulation (or
any other regulation) can prevent all contamination; the fact that an
isolated incident of contamination from a UIC well occurs does not mean
that the State program for that well is ineffective in preventing
endangerment. Rather, EPA believes that under Section 1421(b) Federal
regulations for UIC wells are reserved for situations, such as with
motor vehicle waste disposal wells (addressed in the December 7, 1999,
final revised Class V UIC regulations (64 FR 68546)), where existing
State programs are not generally ``effective'' in preventing
endangerment from certain well types. With respect to assurance that
wells may not contaminate in the future, EPA believes that it has a
continuing obligation under 1421(b) to determine whether additional
Federal regulation is necessary for any UIC well types. Today's
proposed determination does not affect EPA's authority to impose any
necessary regulation in the future on any of the well types addressed
in today's notice.
Sixth, the Sierra Club asserted that EPA's duty to regulate under
SDWA is not removed by other Federal programs that also address Class V
wells. Moreover, the fact that Federal programs overlap in subject
matter is no obstacle to regulation, and in many cases, other Federal
programs do not address the endangerment fully. As discussed below, EPA
has not used other Federal programs as a criterion for determining
whether to impose additional UIC requirements in today's notice.
However, EPA does believe that the existence of other Federal programs
that address Class V wells may be highly relevant in determining
whether an ``endangerment'' exists and whether additional SDWA
regulation would be ``effective'' in addressing that endangerment.
Seventh, the Sierra Club objected to the proposal that additional
regulations could not be developed for some Class V well types because
of diversity in local hydrogeologic conditions or in types of fluids
injected. According to the Sierra Club, such variability is not grounds
for a regulatory exemption under SDWA and could be addressed by
establishing targeted regulations for more narrowly defined
subcategories of wells. While EPA agrees that such diversity in
conditions is not in itself a reason for EPA to determine that Federal
regulations are unnecessary, EPA believes that such diversity may be a
factor in determining whether additional Federal regulation would
promote more ``effective'' State programs to address the well type in
question.
Eighth, the Sierra Club commented that the existence of large
numbers of regulated entities and an alleged lack of facility-specific
data do not justify a decision not to regulate further. In support of
this comment, the Sierra Club said that the size of a regulated
community is always workable, and that EPA has an obligation to collect
the data necessary to perform its rulemaking duties. EPA has not used
either of the factors Sierra Club mentions as a basis for today's
proposed determination.
Ninth, the Sierra Club argued that EPA cannot decide against
additional regulations for some well types based on the criterion that
a large proportion of the regulated community is comprised of small
businesses. Among other points made in support of this argument, the
Sierra Club stated that SDWA creates no exemption for small businesses
and that EPA did not show that the burden on small businesses would be
severe. EPA has not used the type of regulated community as a basis for
today's proposed determination.
C. Proposed Criteria for Today's Notice
EPA is proposing today to use the two main criteria proposed in
1995--potential to endanger USDWs and the anticipated effectiveness of
additional Federal UIC regulation--to determine whether other
categories of Class V wells warrant additional regulation. The Agency
is now better able to apply these criteria using additional information
gathered from the 1999 Class V Study. Based on the above comments and
responses, however, the Agency is dropping from consideration some of
the principles used in 1995.
The potential to endanger USDWs is by far the more important of the
two criteria, given the SDWA mandate to ensure non-endangerment. EPA
evaluated this potential based in large part on the record of
documented incidents of ground water and other environmental
contamination caused by the operation of the different well types.
While the Agency also evaluated the potential for such contamination
based on such factors as the quality of fluids injected, the
characteristics of the injection zone, well design and operating
features, the vulnerability of the wells to spills or illicit
discharges, and the adequacy of existing State and Federal UIC programs
for addressing any potentially endangering situations, EPA believes
that the absence of frequent, widespread, or significant cases of
actual contamination is compelling evidence of a low potential to
endanger that does not warrant additional Federal regulation at this
time.
EPA considered the anticipated effectiveness of additional Federal
UIC regulation for only a few well categories for which a sound
determination could not be based on the potential to endanger alone. In
evaluating the anticipated effectiveness of additional regulation, EPA
considered such factors as the degree to which additional Federal UIC
regulations would simply duplicate existing State programs without
increasing the ``effectiveness'' of these programs. While the Agency
also considered the possibility of the UIC program joining forces with
other existing or emerging programs to achieve greater results in an
integrated fashion, it did not use the existence of other Federal
programs that also address Class V wells as a basis for deciding
against additional UIC regulation. In addition, EPA did not use the
diversity in conditions, the existence of large numbers of regulated
entities, the lack of facility-specific data, or the existence of a
large proportion of small businesses as decision making criteria.
III. Class V Wells Found To Have a Low Potential To Endanger in the
1995 Proposal
A. 1995 Proposed Finding
Based on the data available at the time, the Agency proposed in
1995 (see 60 FR 44652, August 28, 1995) that several types of Class V
injection wells generally had a low potential to endanger USDWs,
including: (1) Salt water intrusion barrier wells, (2) subsidence
control wells, (3) heat pump/air conditioning return flow wells, (4)
spent brine wells, (5) swimming pool and landslide control wells (i.e.,
``special drainage'' wells), and (6) solution mining wells. This
finding was based on such factors as good injection quality (e.g.,
comparable to or better than the fluids in the injection zone),
appropriate well construction and maintenance, injection zone
characteristics, and existing regulatory oversight. In addition, EPA
found that the following well types generally had a low-to-moderate or
moderate potential to endanger: (1)
[[Page 22977]]
Aquifer recharge \2\ and aquifer storage and recovery wells, (2)
aquifer remediation, (3) geothermal direct heat wells, (4) geothermal
electric power wells, (5) aquaculture wells, (6) experimental
technology wells, and (7) in-situ fossil fuel recovery wells. In
general, EPA found that the fluids injected into these wells were of
lower quality than those injected into the six types of wells first
discussed above, but well construction, operation, and maintenance in
combination with locational factors and existing Federal and State
programs safeguard against endangerment. In the case of in-situ fossil
fuel recovery wells, the Agency also noted that no wells of this type
were known to be operating.
---------------------------------------------------------------------------
\2\ EPA found that some aquifer recharge wells pose a moderate
to high threat of USDW contamination when they are operated as dual
purpose wells that alternately withdraw water for irrigation and
inject irrigation drainage water. These wells are more similar to
other agricultural drainage wells and are included below in the
discussion of agricultural drainage wells.
---------------------------------------------------------------------------
B. Public Comments on Well Types
In response to the 1995 proposal, EPA received no comments on five
of these 13 well types: (1) Salt water intrusion barrier wells, (2)
subsidence control wells, (3) special drainage wells, (4) geothermal
direct heat wells, and (5) aquaculture wells. EPA received limited
comments that did not disagree with the Agency's characterization of
the potential of the wells to endanger USDWs for another five of these
13 well types: (1) Spent brine return flow wells, (2) solution mining
wells, (3) aquifer recharge and aquifer storage and recovery wells, (4)
aquifer remediation wells, and (5) experimental technology wells. Of
the remaining wells, one commenter disagreed with the Agency's
characterization of heat pump/air conditioning return flow wells and
geothermal electric power wells as having a low potential to endanger
USDWs. The commenter indicated that heat pump/air conditioning return
flow wells could allow the introduction of contaminants (e.g.,
refrigerants, lead, copper) into ground water and possible cross-
contamination between aquifers. In addition, the commenter indicated
that electric power geothermal injection wells are ``not innocuous''
because high temperatures and contaminants picked up in the power plant
may degrade ground water. Another commenter indicated that ground water
in the vicinity of five in-situ fossil fuel recover projects has been
contaminated.
C. 1999 Class V Study
The Class V Underground Injection Control Study (EPA/816-R-99-014,
September 1999) presents additional information about each of these 13
well types that was collected following the 1995 proposal. The Agency
believes that this information confirms the findings proposed in 1995,
although some of the supporting details are new or different. For
example, in 1995, EPA found that there is little chance that fluids
injected into spent brine return flow wells (in seven States) would
reach USDWs because the wells were adequately constructed with multiple
layers of protection and inject into deep confined formations. The
Class V Study found that spent brine return flow wells regulated under
Class V now only occur in two States and that in all cases the wells
have individual permits and inject below the lowermost USDW. Similarly,
in 1995 EPA found that salt water intrusion barrier wells have a low
potential to contaminate USDWs because they generally inject fluids of
equivalent or better quality than the injection zone fluids. The Class
V Study found that waters of varying quality are injected into these
wells, but typically the injected water meets primary and secondary
drinking water standards. In addition, ground water monitoring and
associated studies have shown no measurable adverse effects on either
ground water quality or the health of the population ingesting the
water when the injectate was treated wastewater effluent.
Of the 13 well types in this group, the Class V Study identified
reported contamination incidents associated with the operation of only
three types. For in-situ fossil fuel recovery wells, the Class V Study
confirmed the information submitted by a commenter that ground water
contamination had occurred in the vicinity of in-situ fossil fuel
recovery operations. The Class V Study also confirmed, however, that no
wells of this type are known to be in operation. For heat pump/air
conditioning return flow wells, the Class V Study identified a few
sites where ground water contamination has been reported. Thus, EPA
agrees with the commenter who indicated that operation of these wells
could result in ground water contamination. The available information
indicates, however, that such occurrences are very rare in light of the
estimated 35,000 wells of this type in over 40 States. For aquifer
remediation wells, the Class V Study identified a single reported
contamination incident that resulted from an equipment failure, but
confirmed that these wells are controlled as part of Resource
Conservation and Recovery Act (RCRA), Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), and State
remediation programs in addition to the UIC program.
For electric power geothermal injection wells, the Class V Study
did not identify any reported incidents of USDW contamination, but the
Class V Study did find that injected fluids at some plants may include
a mixture of surface water, treated wastewater effluent, and/or storm
water in addition to geothermal fluids. Thus, there is the potential
for the injected fluids to contain contaminants not present in the
geothermal fluids, as indicated by one commenter. The Class V Study
confirmed, however, that geothermal fluids used for power production
are not typically of potable quality, and that typical well
construction, operation, and maintenance are not expected to allow
fluid injection into unintended ground water zones.
Based on the information available at this time, including the
Class V Study, EPA concludes that the 13 wells types discussed in this
section have a low potential to endanger USDWs. As a result, EPA
concludes that no additional Federal regulations applicable to these
wells are needed at this time. Where isolated incidences of
endangerment occur or are threatened, EPA will use its existing
authorities to require permitting, closure or corrective action to
address the endangerment.
IV. Other Class V Wells
A. Sewage Treatment Effluent Wells
1. 1995 Proposed Finding
EPA found that the overall potential for sewage treatment effluent
wells to contaminate USDWs was moderate. The Agency also found that the
potential to endanger USDWs ranged from low to high, in large part due
to the range in the type of treatment provided prior to injection.
Specifically, the Agency found that some wells inject clarified
effluent that has undergone secondary or tertiary treatment and have a
low potential to endanger USDWs, but effluent that has undergone only
primary treatment creates a higher potential to contaminate USDWs.
Further, EPA found that the majority of the wells of concern were
located in Florida and Hawaii and were being addressed at the State
level. Based on this information, the Agency proposed that no
additional Federal regulations were needed at the time for sewage
treatment effluent wells.
[[Page 22978]]
2. Public Comments
EPA received only one comment on its 1995 proposal for these wells.
This commenter asserted that additional Federal regulations were needed
because only a ``majority'' (and not all) of the wells with a high
potential to contaminate USDWs were being addressed at the State level.
3. 1999 Class V Study
The Class V Study shows that more than 95 percent of documented
sewage treatment effluent wells are located in five States: Arizona,
California, Florida, Hawaii, and Massachusetts. Individual permits are
required for the wells in all five of these States and the wells are
prohibited in some situations (e.g., in ground water protection zones
in Hawaii). Requirements in other States with sewage treatment effluent
wells include minimum treatment requirements prior to injection (e.g.,
secondary treatment, compliance with MCLs), compliance with MCLs
outside the ground water discharge zone (at a designated compliance
point), individual permits, and/or compliance with specified well
construction and operating requirements.
The Study identified approximately 1,700 wells, but only two
incidents in which ground water contamination was attributed to the
injection of treated sewage effluent through a Class V well. One of
these incidents occurred more than 25 years ago. Nutrient enrichment of
surface waters, with resulting algal blooms, has also been reported in
off-shore waters near some sites where effluent injection occurs in
some coastal areas in Florida and Hawaii. This issue is receiving
considerable research and regulatory attention. For example, EPA, the
U.S. Geological Survey, the National Oceanic and Atmospheric
Administration, the Florida Department of Environmental Protection, the
University of South Florida, the University of Miami, the Florida Keys
National Marine Sanctuary, and several other organizations have
conducted studies to evaluate the impacts of sewage disposal, including
the injection of sewage treatment effluent in Class V wells, on
offshore water quality. These studies suggest that the operation of
sewage treatment effluent wells and other disposal practices in the
Florida Keys can lead to rapid nutrient enrichment and fecal
contamination of marine waters in the Keys, although the concentrations
eventually reaching surface waters are greatly diluted. To combat this
problem, Florida currently requires sewage treatment effluent wells to
be individually permitted and to meet primary drinking water standards
at the point of injection. In addition, owners or operators of sewage
treatment effluent wells in Monroe County, which encompasses the Keys,
are required as part of the Class V operating permit application to
provide reasonable assurance that operation of their wells will not
cause or contribute to a violation of surface water quality standards.
4. Proposed Determination
Based on the information available at this time, including the
Class V Study, EPA concludes that sewage treatment effluent wells have
a low potential to endanger USDWs due to a combination of factors.
These factors, which may vary from well to well, include good injection
quality, well construction and maintenance, and existing regulatory
oversight. The most pressing documented problem--injectate migration
and contamination of offshore water and coral reefs in the Florida
Keys--is already being studied by many researchers and addressed at
both the Federal and State levels. The incidence of contamination from
these wells has also been rare. Thus, EPA proposes that no additional
Federal regulations applicable to these wells are needed at this time.
The Agency will use its existing permitting and enforcement authorities
as necessary to prevent any sewage treatment effluent wells from
endangering USDWs.
B. Mine Backfill Wells
1. 1995 Proposed Finding
In 1995, EPA found that mine backfill wells, in general, had a
moderate potential to contaminate USDWs. This finding was in part based
on the fact that injected slurries had the potential to react with acid
mine water to mobilize potential ground water contaminants. However,
USDWs interconnected with, and therefore potentially affected by the
mine backfill activities, were generally of moderate to poor quality.
In addition, mine backfill injection had been shown to improve overall
ground water quality in some situations, even when contaminants were
released from the injected slurry. The 1995 proposed finding also
recognized that most backfill wells were regulated under State water
quality or mining programs in addition to the UIC program. Based on
these considerations, EPA proposed that additional Federal regulations
for these wells were not needed at the time to ensure the protection of
USDWs.
2. Public Comments
Several comments on the 1995 proposal were supportive of EPA's
determination that no additional UIC regulations were needed and
specifically discussed the adequacy of current requirements for
backfilling of hard rock mines. No commenters directly opposed the
proposed determination, although one commenter indicated that they
favored the addition of a general permit authority.
3. 1999 Class V Study
The Study documented that mine backfill wells are used in many
mining regions of the country to inject a mixture of water, sand, mill
tailings, or other materials such as coal combustion ash and flue gas
desulfurization sludge into underground mines. Information collected
and compiled in the Study is consistent with the information available
in 1995 that showed that ground water quality within a mine is often
poor (e.g., due to acid mine drainage) and that backfill wells are just
one of many possible sources (including natural sources) of ground
water contamination. No incidents of contamination directly
attributable to these wells were reported, and in some cases
information shows that backfill wells have negligible or positive
effects on ground water quality. In other cases, however, backfill
material has been shown to leach contaminants more readily than
predicted by standard tests and increase contaminant concentrations in
ground water. The chance that backfill injection will contribute to
ground water contamination is highly dependent on site conditions, such
as site hydrogeology, mine mineralogy, backfill characteristics and
injection practices.
More than 90 percent of the documented mine backfill wells reported
in the Study are located in four States that have primacy for the Class
V portion of the UIC wells. Two of these States require individual
permits for the wells while the other two States issue permits by rule
as long as USDW endangerment does not result. Other States regulate
mine backfill wells by rule authorizing them and implementing existing
UIC authorities, or by issuing general (or area) permits or individual
permits.
4. Fossil Fuel Combustion Waste Report to Congress
Also in 1999, EPA issued a Report to Congress on Wastes from the
Combustion of Fossil Fuels (EPA 530-S-99-010). Based on the findings of
this report, comments and additional data
[[Page 22979]]
received, and additional analysis of the available information, the
Agency made a regulatory determination in May 2000 (65 FR 32214) that
additional regulations under Subtitle D of RCRA and/or possibly
modifications to existing regulations established under Surface Mining
Control and Reclamation Act (SMCRA) authority are warranted when coal
combustion wastes are used to fill surface or underground mines (i.e.,
minefilled). In making this determination, the Agency explained that
although placement of coal combustion waste in a mine has not been
documented to cause increased damage to ground water, minefilling is an
increasingly common practice that could present a danger to human
health and the environment under certain circumstances (e.g., placement
directly into the ground water). EPA found that available information
indicates that if the chemistry of the mine relative to the chemistry
of the coal combustion wastes is not properly taken into account, the
addition of coal combustion wastes to certain environmental settings
can lead to an increase in hazardous metals (e.g., arsenic) released
into the environment. The Agency also noted that management of coal
combustion wastes in the presence of acid-generating pyritic wastes has
caused metals to leach from the combustion wastes at much higher levels
than are predicted by leach test data for coal combustion wastes when
strongly acidic conditions are not present. Further, the Agency noted
that a recent study of cement kiln dust showed that placement directly
in contact with ground water led to substantially greater release of
hazardous metal constituents than EPA predicted would occur when not
placed in ground water.
In addition, EPA explained that there are few States that operate
comprehensive programs that specifically address the unique
circumstances of minefilling, making it more likely that damage to
human health or the environment could go unnoticed. In particular, the
Agency found that government oversight has not ``caught up'' with
recent and rapidly expanding minefilling of coal combustion wastes and
that serious gaps exist in State programs, such as a lack of adequate
controls and restrictions on unsound practices, e.g., no requirement
for ground water monitoring and no control or prohibitions on waste
placement in the aquifer.
5. Proposed Determination
Based on the information available at this time, EPA concludes that
mine backfill wells generally have a low potential to endanger USDWs
because no incidents of contamination directly attributable to these
wells were reported, and in some cases information shows that backfill
wells have negligible or positive effects on ground water quality. As
discussed above, however, injection of coal combustion wastes may
threaten ground water under some circumstances. The Agency has recently
initiated efforts to improve its understanding of this potential threat
to ground water and address it for both surface and underground
minefilling (including underground injection) using the regulatory
authorities of RCRA and/or SMCRA. As a result, EPA proposes not to
develop any additional Federal UIC regulations applicable to mine
backfill wells at this time. Rather, the Agency will continue to assess
any potential endangerment of USDWs by individual mine backfill wells
and address any such potential endangerment with existing permitting
and enforcement authorities and any new requirements to be developed
under RCRA and/or SMCRA.
C. Storm Water Drainage Wells
1. 1995 Proposed Finding and 1998 Proposal
EPA found that storm water drainage wells had a moderate potential
to endanger USDWs. This proposed finding considered the fact that storm
water can acquire contaminant loads from streets, roofs, landscaped
areas, industrial areas, and constructions sites. The most significant
concern identified was wells located in industrial settings (e.g., near
loading docks, process areas) where chemical spills may occur and enter
the well unless a physical barrier (e.g., berm) is present to contain a
spill. In other settings, EPA found that storm water would normally not
contain contaminants in concentrations that exceed drinking water
standards. Moreover, available contamination studies did not show that
area-wide degradation of ground water quality had resulted from storm
water drainage wells.
Based on this information, EPA proposed not to develop any
additional Federal UIC regulations applicable to storm water drainage
wells at that time. However, recognizing the potential concern
associated with such wells at industrial sites, EPA proposed to
categorize storm water drainage wells located in industrial settings as
industrial wells unless an adequate barrier is in place to prevent
spilled materials from entering the well. According to the 1995
proposal, these so-called ``industrial drainage'' wells were to be
addressed with additional guidance as well as outreach and education to
make sure they did not endanger USDWs.
The Agency extended this proposal for storm water drainage wells at
industrial sites as part of the 1998 proposal. Specifically, the Agency
proposed that industrial drainage wells would be subject to the
proposed new requirement to meet MCLs at the point of injection, just
like other kinds of Class V industrial wells. This new proposal,
however, was predicated on EPA's ability to establish a clear and
enforceable definition of an industrial drainage well that would be
subject to the new requirement, versus a storm water drainage well at
an industrial site that would not be subject to the new requirement
because it had a low potential to receive chemical spills or highly
contaminated drainage. The 1998 proposal specifically requested public
comment on the practicality of making this distinction (see 63 FR
40598, July 29, 1998 for more detail).
2. Public Comments
No comments were received that opposed EPA's 1995 proposed
determination that additional Federal UIC regulations were not needed
for storm water drainage wells. However, some commenters opposed EPA's
approach to considering wells located in industrial settings to be
industrial wells. In particular, some commenters asserted that
industrial settings and acceptable barriers were not sufficiently well
defined. Other commenters indicated that the barrier requirement was
impractical, that sound management practices are at least as effective
as physical barriers in preventing contaminants from reaching a well,
and that storm water wells at service stations should not be regulated
as industrial wells.
In response to the 1998 proposal, some commenters supported EPA's
revised proposal that wells receiving storm water in industrial
settings be considered storm water wells (rather than industrial wells)
even if they had the potential to receive waste due to leaks, drips,
and spills as long as the amounts of waste would be insignificant.
Other commenters maintained that wells with the potential to receive
any leaks, drips, or spills should be considered industrial wells. Many
commenters expressed concern about EPA's proposed distinction between
storm water drainage wells and industrial drainage wells at industrial
facilities and requested that EPA make the distinction between the two
types of wells more clear and definitive. Still
[[Page 22980]]
other commenters requested that all storm water wells be subject to
stringent requirements, with some commenters specifically suggesting a
ban of storm water drainage wells in source water protection areas, in
part due to their vulnerability to spills and misuse.
3. 1999 Class V Study
The Study identified approximately 71,000 documented storm water
drainage wells and estimated that approximately 248,000 may actually
exist in the United States. Despite this large number of wells
operating throughout the country, the Study reports only 12 documented
incidents of contamination of ground water by storm water drainage
wells; eight of these incidents were associated with storm water
drainage from industrial/commercial activities. In addition, the Study
identified storm water drainage wells as potentially vulnerable to
spills or illicit discharges if they are located near roadways, parking
lots, and areas of commercial/industrial activities. However, these
problems are more hypothetical than actual. About half of the States
with storm water drainage wells permit these wells by rule while the
other half have individual permit/registration systems. Four States ban
the wells entirely or under certain circumstances. In addition, when
industrial stormwater drainage wells are found, EPA Regions or States
require them to either close or get a permit.
4. Proposed Determination
Based on the information available at this time, including the
Class V Study, EPA concludes that additional Federal regulations under
the UIC program are not required at this time. The available
information indicates that endangerment of USDWs by storm water
drainage wells occurs only rarely, considering the relatively small
number of contamination incidents relative to the number of wells known
or estimated to exist. Although there is a concern that storm water
drainage wells may be vulnerable to spills and illicit discharges,
there is little evidence that this is a problem other than at
industrial facilities. Even at industrial facilities, endangerment of
USDWs by storm water drainage wells does not appear to be a widespread
problem but instead is limited to isolated, relatively infrequent
incidents. To a much lesser extent, this proposal is also based on the
impracticality (as supported by public comments on the 1998 proposal)
of distinguishing between industrial drainage wells that might be
subject to additional regulations and other storm water drainage wells
that would not. Therefore, any attempt to target a new regulation to
the few isolated cases that might pose an endangerment would also
capture and impose needless burdens on many wells that are not a
concern. EPA believes the situation would be better addressed by
continuing to use existing authorities to close or otherwise address
problem wells on an individual basis to prevent these wells from
endangering USDWs. In doing so, the Agency will coordinate the efforts
of the UIC program with those of the National Pollutant Discharge
Elimination System (NPDES) storm water program.
D. Large-Capacity Septic Systems
1. 1995 Proposed Finding
EPA found that large-capacity septic systems (LCSSs) do not pose a
significant national problem. This assessment is different from that
contained in the 1987 Report to Congress on Class V Injection Wells
(EPA 570/9-87-006) because that report considered systems that receive
industrial and commercial wastes whereas LCSSs as now defined receive
only sanitary waste.\3\ In addition, the Report to Congress considered
single-family systems, which are not within the scope of the UIC
program. EPA also found in 1995 that insufficient spacing between
systems was the major cause of ground water contamination from LCSSs.
The Agency concluded that land use planning and siting requirements
tailored to local conditions by State and local authorities, coupled
with additional UIC program implementation and technical guidance, was
the most effective approach to protecting USDWs.
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\3\ The Agency considers systems that do not receive solely
sanitary waste to be industrial wells rather than LCSSs.
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2. Public Comments
Some commenters supported EPA's proposed finding that no additional
UIC regulations were required as well as the Agency's plan to issue
guidance, while some other commenters argued that LCSSs should be
excluded from UIC regulation altogether. Other commenters supported
additional Federal regulations, including suggestions that EPA require
ground water elevation monitoring, establish monitoring provisions and
management strategies to address loss of system integrity, require
individual permits, or ban septic systems in sensitive ground water
areas. One commenter argued that State and local programs with tailored
standards to prevent ground water endangerment by LCSSs were not in
place.
3. 1999 Class V Study
The Study identified three documented cases of ground water
contamination incidents attributable to LCSSs and 24 documented cases
of system failures where the extent of resulting ground water
contamination, if any, is not known. Thus, the prevalence of
contamination cases appears to be low relative to the number of systems
in use (approximately 350,000), even if there are additional LCSS
failures (which seems likely) that were not identified during the
Study. The Study also found that LCSSs are used nationwide and that
although all States have applicable regulations, the regulations vary
from stringent siting, construction, and operating requirements to
general construction permitting. State regulations also vary with
respect to the size standard definitions that determine which systems
are considered ``large'' (and thus subject to UIC regulation) rather
than small.
4. Guidelines for Management of Onsite Wastewater Systems
On October 6, 2000, EPA published for review and comment a draft of
its Guidelines for Management of Onsite/Decentralized Wastewater
Systems and an outline for a guidance manual that will supplement the
guidelines addressing all sizes of septic systems. EPA's development of
these guidelines was described in the Clean Water Action Plan released
by the Agency in 1998 and is in response to State agency reports that
septic systems, which are predominantly single family septic systems,
constitute the third most common source of ground water contamination
because systems have failed due to inappropriate siting or design or
inadequate long-term maintenance. Thus, the purpose of the guidelines
is to raise the quality of management programs, establish minimum
levels of activity, and institutionalize the concept of management for
all sizes of septic systems. The guidelines apply to both existing and
new septic systems and to systems of any size for residential and
commercial wastewater treatment and disposal. The guidelines contain a
set of model programs that rely on coordinating responsibilities and
actions among the State, tribal or local regulatory agency, the
management entity or service provider, and the system owner.
5. Proposed Determination
Based on the information available at this time and the actions the
Agency is
[[Page 22981]]
currently undertaking to improve the performance of septic systems
through the development of management guidance, EPA concludes that
additional Federal regulations under the UIC program are not required
at this time. This conclusion is reached because (1) based on the
results of the Class V Study, actual contamination from these wells is
relatively isolated and (2) an additional layer of Federal UIC
requirements, placed on top of existing State and local LCSS
regulations, would not be effective in further preventing endangerments
from these wells. EPA believes that the development and implementation
of management guidance is a preferable approach to development of
additional UIC requirements for preventing endangerment of ground water
by LCSSs for several reasons. First, the approach is comprehensive--it
address all types and sizes of septic systems, of which LCSSs regulated
under the UIC program are just one small part. Second, use of an
integrated and comprehensive approach for all septic systems will
expedite implementation and avoid potential confusion or disruption of
current programs that have varying approaches to distinguishing
``large'' from ``small'' systems. Third, the management guidance
approach is designed to accommodate regional differences in
environmental sensitivity and the level of management activities needed
to achieve water quality and public health protection. Finally, this
approach avoids the additional administrative burden on States and the
regulated community that would come from additional Federal UIC
regulations that the Agency believes are not likely to be effective in
preventing endangerments from these wells. This is chiefly due to the
fact that existing State and local requirements are already more
specifically tailored to local hydrologic conditions than new Federal
UIC regulations could be. Adding another layer of generalized Federal
requirements will not add any real safe guards in protecting
underground sources of drinking water. EPA believes that any gap in
environmental protection associated with these wells is caused by a
lack of effective and proper implementation, not a lack of standards;
thus additional standards would not address this problem. Rather, EPA's
approach is to spur better implementation of existing standards.
E. Agricultural Drainage Wells
1. 1995 Proposed Finding
Based on the 1987 Report to Congress, EPA found that agricultural
drainage wells have a high potential to contaminate USDWs because they
may inject sediment, nutrients, pesticides, metals, and pathogens. The
Agency also found that additional Federal UIC regulations for
agricultural drainage wells were not likely to be effective in
protecting USDWs in agricultural areas due to the wide range of
contamination sources such as fertilizer and pesticide application and
land use practices. In addition, EPA found that agricultural drainage
wells were concentrated primarily in three States. As a result, EPA
concluded that it could best achieve the goal of protecting USDWs from
contamination by agricultural drainage wells by assisting States in
promoting the use of best management practices (BMPs) that are best
suited to local conditions and to addressing potential ground water
contamination sources in a holistic fashion. EPA proposed not to
develop any additional Federal UIC regulations applicable to
agricultural drainage wells and instead to rely on technical guidance,
existing authorities (such as requiring a permit under 40 CFR 144.12),
and other Agency programs targeted at improving the quality of
agricultural runoff.
2. Public Comments
One commenter opposed EPA's finding that no new UIC regulations
were necessary or appropriate given other EPA reports that indicated
agricultural runoff was a widespread threat to drinking water quality
in the midwest. Another commenter indicated that EPA's finding failed
to meet the requirements of the SDWA because the Agency may choose not
to regulate only if it demonstrates that injection will not endanger
USDWs. Two commenters indicated that the guidance document that EPA
proposed to develop to facilitate implementation of BMPs should be
developed with State input and public review and comment.
3. 1999 Class V Study
The Class V Study identified four documented cases of ground water
contamination clearly attributable to agricultural drainage wells. Two
of these cases occurred in the 1970's. In addition, six other studies
point to agricultural drainage wells as contributing to the more
general problem of nitrate contamination in ground water in
agricultural areas. The Study also found that the potential for
agricultural drainage wells to endanger USDWs is highest when the wells
are located near animal waste management areas such as manure lagoons
and/or in settings where manure is land applied; however, no actual
cases of contamination involving spills or leaks from manure lagoons
migrating through agricultural drainage wells are known to have
occurred. In addition, the Study found that more than 95 percent of the
approximately 1,100 documented wells in the country are concentrated in
just five States (Idaho, Iowa, Ohio, Texas, and Minnesota). Four of
these five States require individual permits/authorizations or ban the
wells under certain circumstances. For example, Iowa bans agricultural
drainage wells in areas that have anaerobic lagoons or earthen manure
storage structures, and Minnesota bans wells that inject into an
aquifer (i.e., saturated zone).
4. Concentrated Animal Feeding Operations Proposal
On December 15, 2000, the EPA Administrator signed proposed
revisions to the NPDES permit regulations and effluent guidelines that
would address the water quality impacts of manure, wastewater, and
other process waters generated by concentrated animal feeding
operations (CAFOs) (66 FR 2960, January 12, 2001). The proposal, which
is a step in implementing the EPA and U.S. Department of Agriculture's
Unified Strategy for Animal Feeding Operations developed in March 1999,
would apply to as many as 39,000 CAFOs across the country. According to
alternate definitions that were proposed, CAFOs would be defined as
facilities that maintain anywhere from 300 to more than 1,000 ``animal
units'' in confinement, including cattle, swine, turkeys, chickens,
horses, sheep or lambs, and ducks. The rule would apply to production
areas at CAFOs (animal confinement areas, manure storage areas, raw
material storage areas, and waste containment areas) and areas under
the control of CAFO owners or operators where manure is land applied.
The proposal explicitly recognizes and addresses the risk of animal
wastes from CAFOs migrating through agricultural drainage wells into
ground water that has a direct hydrologic connection to surface waters.
Specifically, the proposal would prohibit the application of animal
wastes within 100 feet of sinkholes and intake structures or
agricultural well heads. EPA requested comment on the presence of such
features in crop land and the extent to which the 100-foot setback
around such features would interfere with the land application of
manure.
The proposal includes several other features that would have the
effect of protecting ground water quality and reducing the endangerment
associated
[[Page 22982]]
with agricultural drainage wells at or near CAFOs. For example, for
animal confinement and manure storage areas, the proposal would adopt a
zero discharge requirement with no overflow allowance for swine, veal,
and poultry CAFOs, would require routine inspections of the production
area to ensure that wastewater and manure handling and storage are
functioning properly, and would require proper closure of manure
storage units. The proposal also would require CAFO operators to land
apply manure at proper agronomic rates, which would reduce the
potential for excess manure and associated contaminants to migrate
overland or underground into agricultural drainage wells.
5. Proposed Determination
Although there are potential concerns associated with agricultural
drainage wells, EPA does not believe the available information on
contamination incidents and the potential for these wells to endanger
USDWs suggests the need to develop additional Federal UIC requirements
at this time. The incidence of contamination from these wells is very
low. States where the vast majority of agricultural drainage wells are
known to exist are already implementing effective programs. The CAFO
proposal, if promulgated, would take a significant step to address the
greatest remaining threat identified for these wells: the potential for
contamination from large manure lagoons and from the land application
of manure. EPA will continue to look for situations where these and
other threats might exist and, if found, take action on a case-by-case
basis to prevent endangerment using existing authorities.
F. Industrial Wells
1. 1995 Proposed Finding
In the 1995 proposal, industrial wells were defined to include
Class V motor vehicle waste disposal wells and other kinds of wells
used to inject industrial and commercial waste that did not fall into
one of the other proposed categories of Class V wells. Using this broad
definition, the 1995 proposal found that some types of industrial wells
may have a high potential to endanger USDWs. The Agency, however,
proposed that these wells are best addressed using existing authorities
and that additional Federal UIC regulations to protect USDWs would be
inappropriate. One of the main reasons for this position was the
diversity in the types of fluids being injected into industrial wells,
which would make it difficult to establish one set of national minimum
requirements. Another important reason was a lack of facility-specific
data that EPA would need to develop a tailored regulatory approach
appropriate to the different kinds of industrial wells and their
respective degrees of endangerment.
2. Public Comments
While EPA received some comments supporting the 1995 proposal for
industrial wells, such as from State agencies that believed they
already had sufficient authority and knowledge to address these wells,
a number of commenters opposed the 1995 approach. Much of the
opposition came from the Sierra Club. As discussed in Section II.B
above, the Sierra Club stated that the diversity of fluids injected
into industrial wells is not grounds for a decision against additional
Federal regulations and could be addressed by establishing targeted
regulations for more narrowly defined subcategories of wells. The
Sierra Club further commented that EPA has an obligation to collect any
additional facility-specific data deemed necessary to perform its
rulemaking duties.
3. Subsequent Actions
Based on public comments on the 1995 proposal, and in accordance
with the 1997 modified consent decree with the Sierra Club, EPA issued
a revised proposal in 1998. This revision proposed to separate motor
vehicle waste disposal wells from the other kinds of industrial wells
considered in the 1995 notice, and to either ban motor vehicle waste
disposal wells in ground water protection areas or to require such
wells to be permitted. Other wells left in the industrial well
category, when located in ground water protection areas, would be
required to meet MCLs and other health-based standards at the point of
injection, according to the 1998 proposal. The 1999 final rule expanded
this approach for motor vehicle waste disposal wells to include Other
Sensitive Ground Water Areas as defined by the States. A final decision
on how to address the remaining industrial wells was delayed, mainly
because of continuing public concern that the industrial well category
was still too diverse and included many kinds of wells that do not
endanger USDWs. Some State and EPA Regional UIC programs also
maintained that additional Federal regulations for industrial wells
were unwarranted because the programs already had ample authority and
were already adequately addressing these wells.
Therefore, instead of finalizing the 1998 proposal for other kinds
of industrial wells not addressed by the 1999 rule on motor vehicle
waste disposal wells, EPA decided to conduct further review to decide
whether additional Federal regulations are needed. This additional
review consisted of the following three components, which are
summarized in turn below: (1) public notice and review of additional
information on contamination incidents potentially attributable to
Class V industrial wells; (2) more detailed study of four specific
types of Class V industrial wells; and (3) evaluation of Class V UIC
program activities to address industrial wells using existing
authorities.
The NODA EPA published on May 21, 1999 (64 FR 27741) presented
additional information on, among other topics, contamination incidents
potentially attributable to Class V industrial wells. That information
was collected as part of the Class V UIC Study, which was still ongoing
at the time, as well as from separate file searches conducted at the
EPA Region II and Region VIII offices. All of the information was
placed in EPA's Water Docket for public review when the NODA was
published. As noted by several commenters on the NODA, and as
determined upon review by EPA, these reported incidents do not provide
compelling evidence of significant problems caused by Class V
industrial wells. The primary limitation is that most of the incidents
are associated with illegally operating Class IV (i.e., shallow
hazardous waste) injection wells, which are generally prohibited under
the current UIC regulations, rather than Class V wells. EPA recognizes
that this problem can be addressed by greater enforcement of the
existing ban of Class IV wells and does not necessarily require
additional Federal regulations on Class V industrial wells. Moreover,
many of the potential contamination incidents included in the NODA are
more than 10 years old and not relevant to today's practices, are based
on anecdotal information or secondary references of questionable
credibility, involve contamination that remained below levels of
concern, are not clearly linked to Class V wells as opposed to other
pollutant sources, and involve only possible contamination rather than
actual documented contamination. Altogether, information from the Class
V Study placed in the NODA revealed only three documented cases of
contamination that site-specific reports clearly attribute to the
operation of Class V industrial wells, and two of these
[[Page 22983]]
cases were discovered in the 1970's and one was discovered in 1987.
This is a very low contamination frequency considering the thousands of
wells estimated to be operating, and it does not suggest a widespread
current problem that warrants new Federal regulations.
The Class V Study also included a more detailed examination of four
specific types of Class V industrial wells: (1) Wells used to dispose
of washwater at carwashes that do not clean undercarriages or engines;
(2) wells used to dispose of food preparation-related wastewater and
food processing equipment or facility wash down water; (3) wells used
to inject fluids from laundromats where no onsite dry cleaning is
performed or where no organic solvents are used for laundering; and (4)
wells used to inject noncontact cooling water that contains no
additives and has not been chemically altered. EPA does not believe the
information compiled for these well types, presented in Volumes 4, 6,
8, and 22, respectively, of the Class V Study report, demonstrates a
potential to endanger that warrants additional regulation. For example,
across all four well types, the Study found only one documented
contamination incident (involving a lobster processing/holding facility
in Maine) and two possible contamination incidents (involving carwashes
in Hawaii). There remains concern about some wells at carwashes being
vulnerable to spills or illicit discharges when an attendant is not
onsite, but the Study did not find evidence showing that such problems
associated with carwash wells are actually occurring and warrant the
development of new UIC regulations.
EPA also reevaluated how Class V UIC primacy States in their
regions address industrial wells using existing authorities. Class V
primacy States have demonstrated the ability to use existing
authorities to take some form of action to ensure that Class V
industrial wells do not endanger USDWs. Some States have an outright
ban of industrial wells while other States require permits for
industrial wells. Some States ban the wells under some situations but
permit them under others. When a previously unidentified industrial
well is discovered, the existing UIC programs investigate the situation
and decide on the best way to address it, which may include requiring
the well to close or get a permit, depending on site-specific
conditions and threats. Such follow up investigation and action is
usually taken immediately after a Class V industrial well is
discovered, or as soon thereafter as possible given a State's workload
relative to available resources to implement the Class V portion of
their UIC program. Limited resources, not regulatory authorities,
appears to be the primary factor that would constrain a primacy State
from taking immediate action to address the risks posed by Class V
industrial waste disposal wells. Therefore, an additional layer of
Federal regulation would providing no real safe guards for protecting
underground sources of drinking water.
In States where EPA directly implements the Class V portion of the
UIC program, the EPA Regional Offices always address endangering Class
V wells as soon as they are identified, as a matter of routine policy
under the existing UIC regulations and authorities. Although the exact
nature and timing of actions required vary from one Regional Office to
the next, the DI programs typically require endangering industrial
wells to close or get a permit, and require site investigation and
remediation in response to any contamination that may have occurred.
Such actions have been found to send a strong message to owners or
operators of uninventoried industrial wells that they too should close
their wells. EPA also communicates this message officially in outreach
materials distributed to well owners and operators in DI programs and
to staff in primacy States for them to use as part of their programs.
4. Proposed Determination
The 1999 final rule included new stringent regulations targeting
the subcategory of Class V industrial wells believed to have the
highest potential to endanger USDWs at the time of the 1995 proposal:
Motor vehicle waste disposal wells. Further review of the remaining
types of Class V industrial wells (1) indicates that they have not been
the source of frequent contamination incidents and (2) confirms that
existing UIC programs in States where most industrial wells are known
to exist are already using existing authorities to adequately address
these wells and protect USDWs. As a result, EPA does not believe there
is a need to develop additional Federal UIC regulations applicable to
Class V industrial wells at this time. Instead, the Agency will
continue to prevent endangerment from individual wells using existing
authorities. This effort will include enforcing the existing
prohibition of Class IV wells to prevent accidental or illicit abuses
of Class V industrial wells and continuing to provide technical
assistance and support to State UIC programs, where needed, to make
sure these wells are being adequately controlled. EPA also will explore
additional opportunities to communicate UIC requirements and
obligations to certain industry sectors in association with the
effluent guideline program implemented under the Clean Water Act.
V. Comment Solicitation
EPA is soliciting public comment on the underlying data and
rationale supporting this proposed determination that additional
Federal UIC regulations are not needed at this time to prevent Class V
wells from endangering underground sources of drinking water. This
proposed determination is based on The Class V Underground Injection
Control Study (EPA Document Number EPA/816-R-99-014, dated September
1999) and other information that has been placed in the public docket
for comment. Also, EPA is soliciting any new data or information
relevant to the findings in this proposed determination and the Class V
injection well types it addresses.
Dated: April 30, 2001.
Diane C. Regas,
Acting Assistant Administrator for Water.
[FR Doc. 01-11413 Filed 5-4-01; 8:45 am]
BILLING CODE 6560-50-U