[Federal Register Volume 66, Number 217 (Thursday, November 8, 2001)]
[Proposed Rules]
[Pages 56496-56503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27835]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[FRL-7098-2]
Proposed Revision to That Portion of the Approved Texas
Underground Injection Control (UIC) Program Administered by the Texas
Natural Resource Conservation Commission (TNRCC)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: EPA received an application to revise portions of Texas'
approved UIC program for Class I, III, IV, and V injection wells. After
careful review of the application, EPA determined the revisions to
TNRCC's UIC program warrant approval. Further, the relevant UIC
regulation at 40 CFR 145.32(b)(2) requires that whenever EPA determines
the proposed program revision is substantial, EPA shall publish its
decision in the Federal Register and in enough large newspapers to
achieve statewide coverage to allow the opportunity for the public to
comment for at least 30 days. By this notification, EPA advises the
public of the nature of the proposed action, time-frame during which
public comment will be taken, and the address where comments should be
sent. The regulation provides an opportunity for the public to request
a hearing. Such a hearing shall be held if there is significant public
interest based on requests received. As such, this action advises the
public of the hearing request process and opportunity to request a
hearing.
The application to revise portions of the State's approved UIC
program, and public comments received in response to this document,
will provide EPA with the essential information necessary to approve,
disapprove, or approve in part, the proposed revisions submitted under
Section 1422 of the Safe Drinking Water Act (SDWA). This action is
being taken to ensure that the proposed revisions of the Texas UIC
program which are the Texas statutes and regulations governing
underground injection are accurately incorporated by reference into the
Code of Federal Regulations.
DATES: EPA will accept public comments and requests for hearing on the
proposed revisions to the approved TNRCC UIC program from November 8,
2001 until the close of the business day of December 10, 2001.
ADDRESSES: Written public comments should be sent to the Environmental
Protection Agency, Ground Water/UIC Section (6WQ-SG), 1445 Ross Avenue,
Dallas, Texas, 75202, or electronically to [email protected]. Please
include your name, address, and optionally, your affiliation with any
public or private organization. Paper copies of the revision
application, related correspondence, and documents are available for
examination and duplication (for a nominal fee) between the hours of 8
a.m. and 4:30 p.m. Monday through Friday at the EPA offices in Dallas.
FOR FURTHER INFORMATION CONTACT: Technical Information: Ray Leissner,
Ground Water/UIC Section (6WQ-SG), Environmental Protection Agency,
Region 6, (214) 665-7183.
SUPPLEMENTARY INFORMATION:
I. Background
Section 1421 of the SDWA requires the Administrator to promulgate
minimum requirements for effective State programs to prevent
underground injection activities which endanger underground sources of
drinking water (USDWs). Section 1422 of the SDWA allows states to apply
to the EPA Administrator for authorization of primary enforcement and
permitting authority (primacy) over injection wells within the State.
Section 1422(b)(1)(A) provides that States shall submit to the
Administrator an application which contains a showing satisfactory to
the Administrator that the State has adopted and will implement an
underground injection control program which meets
[[Page 56497]]
the requirements of regulations in effect under Section 1421 of the
SDWA, and will keep such records and make such reports with respect to
its activities under its underground injection control program as the
Administrator may require by regulation. Section 1422(b)(1)(B)(2)
requires, after reasonable opportunity for public comment, the
Administrator by rule to approve, disapprove, or approve in part, the
State UIC program.
EPA's approval of primacy for to the State of Texas for underground
injection into Class I, III, IV, and V wells was published on January
6, 1982 (47 FR 618), and became effective February 7, 1982. Elements of
the State's approved primacy application, submitted through the Texas
Department of Water Resources, a predecessor to the Texas Natural
Resource Conservation Commission (TNRCC), were published in Title 40 of
the Code of Federal Regulations, at 40 CFR 147.2200.
Section 1422 of the SDWA and regulations at 40 CFR 145.32 allow for
revision of approved State UIC programs when State statutory or
regulatory authority is modified or supplemented. In accordance with
those requirements, TNRCC submitted an application to EPA for revision
of the UIC program governing Class I, III, IV, and V injection wells.
II. Actions Related to This Rulemaking
A. Petition
On June 17, 1996, Mr. Richard Lowerre of the law firm of Henry,
Lowerre, Johnson, Hess and Fredrick, acting on behalf of his clients,
the Environmental Defense Fund (EDF) and later the Oil and Chemical
Association of Workers (OCAW), filed a petition for partial withdrawal
of program approval for the Texas UIC program. The petition informed
EPA of EDF's intent to sue under Sections 1422 and 1449 of the SDWA and
EPA rules at 40 CFR Part 135, subpart B. The petition alleged that, due
to changes made by the Texas Legislature to environmental statutes and
TNRCC's interpretation of those changes, TNRCC's UIC program no longer
met the conditions for primacy for the UIC program. The petition
identified specific elements of TNRCC's UIC program that formed the
basis for EDF's request to EPA to withdraw approval of TNRCC's UIC
program. These included: Inadequate enforcement authority due to
recently passed audit privilege and takings laws, inadequate public
participation in enforcement activities, inadequate public
participation in permitting decisions, and inadequate opportunities for
judicial review of permit decisions made by TNRCC. Over the course of
the resolution of the petition, additional issues were raised by the
Petitioners but not included within the petition. These issues, as well
as issues raised by EPA, were satisfactorily addressed through
subsequent negotiations.
Many issues raised over the course of the negotiations were
applicable to other federal programs authorized to Texas for
implementation, such as the National Pollutant Discharge Elimination
System (NPDES) and the Resource Conservation and Recovery Act (RCRA).
The effort to resolve issues spanning several programs resulted in the
exchange of several letters, memos, and other documentation addressing
other programs in addition to UIC. Note however, this notice only
addresses the resolutions reached to satisfy the EDF/OCAW petition and
federal UIC program requirements under the SDWA.
B. EDF/OCAW Petition Issues
Enforcement Authority and Audit Privilege Law
The petition alleged that TNRCC did not possess adequate
enforcement authority due to recently passed laws regarding audit
privilege and takings and the interpretations of those laws by TNRCC.
In 1995 the Texas legislature passed House Bill 2473, the Texas Audit
Privilege Law. The petition claimed this law established broad immunity
from prosecution from environmental laws and restricted the public's
right to know and right to bring enforcement actions.
On February 11, 1997, EPA representatives met with the Governor of
Texas to discuss the impact of recent legislation on the UIC program.
Discussions led to an agreement that TNRCC would seek amendments to the
audit law needed to meet specific requirements for enforcement
authority and public availability of information associated with
authorized federal programs administered by the State. This agreement
was briefly discussed in an April 23, 1997, letter from the EPA Office
of Enforcement and Compliance Assurance (OECA) to Mr. Lowerre. This
letter also outlined four general points providing the context of EPA's
approach to State audit immunity and privilege laws and explained how
the proposed amendments, if implemented properly, met federal
requirements to retain enforcement authority on all delegated and
authorized federal programs. Further, the letter concluded that the
proposed amendments restored information gathering authority, provided
public availability equal to that afforded under the federal program,
and addressed additional concerns of the petitioner including:
Protection of whistle blowers, immunity from repeat violations, and
reduction of the scope of immunity from penalties based upon economic
benefit. On September 1, 1997, Texas House Bill (HB) 3459 took effect
and amended, as agreed to by EPA and TNRCC, the Texas Environmental,
Health, and Safety Audit Privilege Act. A copy of HB 3459 was submitted
as part of the UIC revision supplement submitted by Texas in March
1999.
Enforcement Authority and the Takings Law
The Texas legislature passed Senate Bill 14, the Takings Law in
1995. A ``taking'' is defined under the Private Real Property Rights
Preservation Act as a governmental action that affects an owner's
private real property that is the subject of the government's action,
in whole or in part, temporarily or permanently, in a manner that
restricts or limits the owner's right to the property. The Takings Law
established a new right for compensation where certain government
authorized action reduced the value of real property by 25%. The
petition alleged that the legislature did not appropriate funds for
compensation requests and this lack of funding had a chilling effect on
the State's ability to act responsibly on permit and enforcement
actions. The petition alleged the Takings Law increased the State's
burden of proof in enforcement actions beyond that required in the
federal UIC program. 40 CFR 145.13(b)(2) requires an authorized State
program's burden of proof under State law be no greater than that
established for the federal program under the SDWA.
40 CFR Part 145, subpart B, lists the provisions and requirements
State programs authorized under section 1422 of the SDWA must
administer within their UIC program. These rules, promulgated in 1983,
do not address or consider the effect of takings laws as they would
apply to UIC program activities. The takings issue was resolved in the
manner described below.
The Petitioners proposed that TNRCC include in the UIC program
revision Memorandum of Agreement (MOA) with EPA, additional annual
reporting on any effect the Takings Law may have imposed on the State's
UIC program. TNRCC found the additional reporting suggested by
Petitioners was not required under the federal regulations for UIC
authorization. EPA agreed. However, under the March 23, 1999 MOA, TNRCC
agreed to keep EPA informed of any proposed changes to laws,
regulations, guidelines, judicial
[[Page 56498]]
decisions, or administrative actions that might affect the State UIC
program. As such, TNRCC agreed to document and compile any action
demonstrating impacts to the UIC program from implementation of the
Takings Law. This documentation will be made available to the general
public and EPA in Central Records in TNRCC's main offices in Austin,
Texas on April 1 of each year for the next four years.
Public Participation in Enforcement and Permitting Activities
Enforcement Activities
The petition contended that public participation in enforcement
activities was inadequate based on a 1995 letter from the EPA Regional
Counsel to the Texas Attorney General's (AG) office responding to an
application for primacy for the Texas NPDES program that had similar
participation requirements. The EPA letter identified as inadequate the
State's agreement not to oppose the permissive intervention by a
citizen in an enforcement action. EPA opined that, under Texas rules,
the scope of interests necessary for a citizen to intervene in a
contested case in Texas appeared narrower than those allowed for under
federal law.
In addition, the petition contended that TNRCC lacked the necessary
statutory or regulatory requirements to establish appropriate
procedures or practice to notify affected citizens of enforcement
proceedings. The petition claimed that publishing notice within the
Texas Register was insufficient.
Permitting Activities
The petition raised several issues with public participation in UIC
permitting activities. Primarily, the petition argued TNRCC's public
participation process for permitted activities was more restrictive
than federal requirements, affording only ``affected persons'' with
standing to participate through an adjudicatory hearing process. The
federal public participation requirements for UIC permits, found at 40
CFR Part 124, allow for a more informal open meeting and comment
process. The petition asserted the State adjudicatory hearing process
was too restrictive. The passage of Senate Bill 1546 narrowed the
conditions for standing, thus limiting participation to ``affected
persons''. Other issues included problems with the content of the
public notices, publication of the notice before a draft permit was
complete, a lack of response to public comments, and a slow review
process on claims of confidentiality precluding timely citizen inquiry.
Resolution
In June 1997, EPA Region 6, EPA Headquarters (HQ), and TNRCC
reached tentative agreements to resolve these public participation
issues. These agreements are discussed in letters from TNRCC to Region
6 dated June 6, 1997, and in response by EPA to TNRCC on June 19, 1997.
TNRCC proposed: (1) To draft rules that would amend Title 30 of the
Texas Administrative Code (TAC), Chapter 55, subchapter B, to implement
changes wherein written responses to public comment on permitting
decisions would be considered and responded to by the person or body
making the permitting decision; (2) to provide for notice and comment
on administrative enforcement cases for the UIC program; (3) to provide
that the rules at 30 TAC Chapter 39 concerning comments, public
meetings and notices of public meetings were sufficient to meet EPA's
concerns; (4) to draft rules that expanded citizens' opportunity for
permissive intervention in UIC penalty actions; and (5) to draft rules
with less restrictive conditions for determining a person's status as
an affected person (standing), and to eliminate the need to seek a
contested case hearing to obtain a judicial review of the permitting
decision.
EPA accepted the above proposal subject to the following: (1) That
the State Supreme Court never articulate a more restrictive test for
standing than that allowed under federal statutes; (2) that TNRCC had
the statutory authority to implement these agreements and fully
institute the notice and comment process proposed; and (3) that there
be timely adoption of regulations necessary to implement the
agreements. These agreements resolved concerns regarding the need for:
(1) Written responses to comments on permitting actions; (2) public
notice and opportunity to comment on proposed settlements of
administrative enforcement actions; (3) notice of right to request a
public hearing (meeting) on UIC permit applications; (4) permissive
intervention in administrative enforcement actions; and (5) standing to
participate as a commenter in permitting actions and in subsequent
judicial proceedings.
The proposed revisions to implement the regulatory changes called
for in the agreement were published in the August 8, 1997, edition of
the Texas Register. The regulatory actions included adoption of rule
changes in 30 TAC, Chapter 55, subchapter B, section 52.25, repeal of
30 TAC, section 305.106 to avoid duplication of the new rules, and
adoption of new rules at 30 TAC, Chapter 80, subchapters C and F,
sections 80.105-80.257. These changes were published in the Texas
Register on November 21, 1997, effective December 1, 1997.
Response to Comments and More Open Public Meetings
The new rules in 30 TAC, Chapter 55, subchapter B, section 55.25(b)
provided the specific provisions agreed to in EPA's letter of June 19,
1997. The amendment to 30 TAC, section 55.25(b), provides procedures
for content and timing of Commission responses, and authorizes the
Executive Director to call and conduct public meetings and provides
requirements governing those meetings. These public meetings, open to
all, provide an opportunity for public input into proposed UIC permits
equivalent to the public meetings requested and held under 40 CFR Part
124.
Expanded Consideration of Comments
Under federal regulations found at 40 CFR 124.12(c), any person may
submit oral or written statements or data concerning a draft permit and
40 CFR 124.17 requires a response to all significant public comments at
the time of final permit action. This level of participation is much
less formal or restrictive than that reserved for a formal hearing
process. The amendment at 30 TAC, Chapters 55 and 80, addressed
concerns in the petition that public comments could not be considered
within the context of contested case hearings. To ensure comments
received during the public comment period are duly considered when a
contested case hearing is held, all comments recieved and any
subsequent response by TNRCC are entered into the evidentiary hearing
record, and may be considered by the Commission in its decision. In
addition, parties to the hearing are allowed to enter any comments or
responses received in the public meeting into the evidentiary hearing
record (30 TAC, section 80.127).
Intervention in Enforcement Actions
TNRCC finalized amendments to 30 TAC Chapter 80, as proposed in the
Texas Register August 8, 1997. These amendments provided a process to
ensure that all federally delegated and approved programs, including
the UIC program, meet federal requirements preserving the rights of
citizens to intervene in enforcement actions. 40 CFR 145.13(d) outlines
the requirements for an approved State UIC program to involve the
public in its enforcement proceedings. In part, under 40 CFR 145.13(d),
a State may either provide
[[Page 56499]]
authority to allow any citizen having an interest in the action (i.e.,
standing) to intervene, or provide assurance that the agency will
investigate and provide written responses to all citizen complaints
provided to the agency through procedures set by the agency for
collecting such information. The Petitioners alleged the State's
narrower view on standing prohibited more citizens from achieving
intervener status in comparison to the federal UIC program. An
amendment to 30 TAC, section 80.105, provides that a preliminary
hearing is required for an enforcement action under any federally
authorized program. A citizen's right to intervene in a proposed
enforcement action was broadened under 30 TAC, section 80.109, which
expanded the scope of potential parties to contested cases. The term
``party'' to enforcement actions was expanded to include any party
granted permissive intervention by the administrative law judge (ALJ).
Further, the ALJ will not oppose intervention by parties having a
justiciable interest where intervention would not present a risk of
delay or prejudice to the original parties. These amendments to 30 TAC,
section 80 implemented the regulatory changes required by EPA's
agreement dated June 19, 1997.
Opportunities for Judicial Review of Permit Decisions
The petition asserted that the State UIC program must allow for
judicial review of permit decisions. Further, the petition alleged that
the State UIC program must allow for a measure of judicial review of
permit decisions equivalent to that afforded persons appealing a permit
decision by a federal UIC program. 40 CFR 124.19 allows any person who
filed comments on the draft permit or participated in a public hearing
on the matter, to seek review of the permit decision by the
Environmental Appeals Board. Thereafter, parties can seek judicial
review under section 1448 of the SDWA. The petition contends, because
of the narrower interpretation of standing by the State, fewer citizens
could seek judicial review of a TNRCC UIC permit decision than could
under a federal UIC program.
The Petition alleged that the opportunity for a citizen to appeal
for judicial review of a TNRCC UIC permit decision was inadequate.
Section 1448(a)(2) of the SDWA provides that a petition for judicial
review of any action taken by the Administrator under the Act (other
than actions pertaining to establishment of MCLs or MCLGs) may be filed
within the circuit in which the petitioner resides or transacts
business. The relevant federal UIC regulation referencing judicial
review is at 40 CFR 124.19(e). Overall, 40 CFR Part 124 identifies
conditions for judicial review and various scenarios wherein final
agency action occurs on a permit decision.
TNRCC affords the right to seek judicial review of any permit
decision at section 5.351 of the Texas Water Code. In addition, the
general public's ability to seek judicial review of a permit decision
was enhanced and broadened through the rule amendments at 30 TAC,
section 55. These amendments expand the TNRCC's response to public
comments and provide a greater opportunity for public comments through
public meetings and/or preliminary hearings and comments considered at
a contested case hearing. Further, 30 TAC, section 55.25(b)(3) provides
the procedural prerequisites enabling a commenter to preserve and
exercise the right to seek judicial review.
Changes to the Texas UIC Program
The petition alleged that numerous statutory and regulatory changes
to the UIC program occurred since the program was approved in 1982, and
TNRCC did not provide appropriate notice to EPA of these changes, or
afford EPA the opportunity to comment on the changes. Under 40 CFR
145.32(a), an approved State UIC program is required to ``keep EPA
fully informed of any proposed modifications to its basic statutory or
regulatory authority, its forms, procedures, or priorities''.
On August 14, 1998, TNRCC submitted one original and two certified
copies of its UIC revision package. To review the revision package, EPA
set up a review team comprised of personnel specialized in UIC program
activites, enforcement activities, and legal requirements. Additional
copies were created and distributed to the review team to determine
completeness. The initial package contained a summary, a program
description, Attorney General's (AG) Statement, Memorandum of Agreement
(MOA), a listing of all applicable regulations and State Statutes, and
numerous other appendices, including forms, shell permits, shell
notices, and guidance documents utilized to implement the program.
Over the course of review, EPA received comments on the submission
from the Petitioners, including numerous additional issues consisting
of past and present program and legislative activities. These issues
were also included in EPA's review. In a February 14, 1999 letter, EPA
provided TNRCC with its first formal response to the submission. It
contained the EPA review team's findings resulting from a comparison of
the submission to required elements for approvable UIC programs found
at 40 CFR Part 145. The letter summarized the review team's findings
and included requests for revisions and/or clarifications to several
elements, including the MOA, AG Statement, and Program Description, as
well as a clarification to the TNRCC/Railroad Commission of Texas
Memorandum of Understanding (MOU).
On March 23, 1999, TNRCC submitted its initial revision supplement
in response to EPA's comments. Ongoing negotiations with the
Petitioners and additional review by EPA resulted in a second set of
comments sent to TNRCC on July 22, 1999. On November 30, 1999, TNRCC
provided a second supplement to the revision submission as a combined
response to the ongoing negotiations and EPA's findings. The second
supplement included updates and/or corrections to TNRCC's
organizational charts and program staffing, a revised Program
Description, a Quality Management Plan, an aquifer exemption listing,
new public notification requirements under HB801, and clarifications to
TNRCC's penalty assessment policy.
Settlement Agreement
In some cases, issues raised by the Petitioners extended into
details of UIC program implementation. For those issues, a negotiated
agreement was reached. This settlement agreement, signed between the
Petitioners and EPA in August and September 2000 respectively, is part
of the administrative docket available for review at EPA Region 6. In
exchange for additional reporting by TNRCC and oversight by EPA, the
Petitioners withdrew their petition for withdrawal of program
authorization and agreed not to contest this program revision. EPA
believes that there are no unresolved issues raised during the
submission and review process that warrant disapproval of this program
revision application.
III. Related Action With the Railroad Commission of Texas
In 1982, under the authority of section 1422 of the SDWA, the U.S.
EPA Administrator approved Texas' UIC program governing Class I, III,
IV and V injection wells except those wells located on Indian lands.
This approval conveyed primary enforcement responsibility, ``primacy,''
to the State. That portion of the program administered by the Texas
Department
[[Page 56500]]
of Water Resources (TDWR), predecessor to the TNRCC, included Class III
brine mining wells.
However, in 1985, the Texas legislature transferred the regulation
of Class III brine mining wells from the TDWR to the Railroad
Commission of Texas (RRC). The transfer of authority over Class III
brine mining wells is not reflected in the existing description of the
Texas UIC program within 40 CFR part 147, subpart SS. The TNRCC UIC
program revision submitted for final approval, along with a RRC UIC
program revision submitted in May 1999 (which is also proposed for
approval elsewhere in today's Federal Register), accurately reflects
that transfer of authority within the State's UIC program approved
under section 1422.
IV. Revision Package Program Elements
All elements of the TNRCC's comprehensive program revision
application are contained within a set of three-ring binders that
include the initial submission in August 1998 (3 volume set), a
supplement submitted in March of 1999 (1 volume set), and by a second
supplement (1 volume set) submitted in November of 1999. Below is a
table of contents developed to assist the reader in identifying each
element within the application and all relevant amendments that
together, comprise the final version of the application EPA proposes to
approve.
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March 23, 1999 November 30, 1999
August 14, 1998 revision revision revision
application supplement supplement
------------------------------------------------------------------------
Volume I of III Volume I of I Volume I of I
Cover Letter/Table of Contents.. Cover Letter/Table Cover Letter/Table
of Contents/EPA of Contents/EPA
Review Summary. Review Summary/
October 1, 1999
letter from Jim
Phillips, TNRCC
to Larry
Starfield, EPA
Region 6 on
proposed
understanding
between EPA, EDF,
and TNRCC.
Summary
Program Description............. Revised Program Revised Program
Description. Description.
Memorandum of (MOA)............. Revised MOA.......
Attorney General's Statement
Appendix 1 Chronology
Appendix 2 Organization......... Revised Appendix 2 Revised Appendix
2.
Appendix 3 Staffing............. Revised Appendix 3 Revised Appendix
3.
Appendix 4 Checklist
Appendix 5 Aquifers
Appendix 6 Inventory............ Revised Appendix 6
Appendix 7 Rules
Volume II of III
Appendix 8 Legislative Updates/
State Statues
Volume III of III
Appendix 9 Forms................ Revised Appendix 9
Appendix 10 Permits............. Revised Appendix
10.
Appendix 11 Notices............. Revised Appendix
11.
Appendix 12 Guidance............ Revised Appendix
12.
Appendix 13
Memorandum of
Understanding
between TNRCC and
RRC.
Appendix 14 TNRCC
Quality Assurance
Program Plan.
Appendix 15 TNRCC
Penalty Policy.
Appendix 16
Aquifer
Exemptions for
Projects prior to
1982.
Appendix 17 Revised Appendix
Aquifer 17.
Exemptions
approved since
1982.
Appendix 18
Supporting
Documents for AG
Statement.
Appendix 19
Response to TNRCC/
MOU Concerns.
Appendix 20
Administrative
Records
Management.
Appendix 21 Public
Participation--Pr
oduction Area
Authorizations
(PAAs).
Appendix 22 TNRCC
Quality
Management Plan.
Appendix 23
Additional
Information on
Public
Participation.
Appendix 24 TNRCC
Confidentiality
Policy.
Appendix 25 UIC
Permits/PAAs.
------------------------------------------------------------------------
The original revision and supplements, consisting of five (3 ring)
binders, have been kept in original condition as submitted by the TNRCC
for those who may wish to view all documentation as submitted.
V. Administrative Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant
[[Page 56501]]
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Executive Order 13045: Children's Health Protection.
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in E.O. 12866, and because
UIC programs afford protection by isolating wastes underground,
reducing the risk of exposure to all age groups equally. Therefore, EPA
does not believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children.
The public is invited to submit or identify peer-reviewed studies
and data, of which the agency may not be aware, that assessed results
of early life exposure to injected wastes.
C. Paperwork Reduction Act
This action does not impose any new information collection burden.
EPA has determined that the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq., does not apply to this proposed rule since limited information
collection or record-keeping would be involved. The proposed rule would
merely update the incorporation by reference material for which any
information collection or record-keeping requirements have already been
approved by OMB.
D. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA applies to rules subject to notice-and-comment rulemaking
requirements under the Administrative Procedure Act (APA) or any other
statute. However, under section 605(b) of the RFA, if EPA certifies
that the rule will not have a significant economic impact on a
substantial number of small entities, EPA is not required to prepare a
regulatory flexibility analysis. This rule merely proposes Federal
approval of regulations already adopted and implemented by the State of
Texas ensuring the protection of underground sources of drinking water.
This proposed approval only seeks to revise the existing federally
approved Texas UIC program, described at 40 CFR 147.2200, to reflect
current statutory, regulatory, and other key programmatic elements of
the program. Therefore Federal approval of these revisions, would not
result in additional regulatory burden to or directly impact small
businesses in Texas. Pursuant to section 605(b) of the Regulatory
Flexibility Act, 5 U.S.C. 605(b), the Administrator, through her duly
delegated representative, the Regional Administrator, certifies that
this rule, if approved, will not have a significant economic impact on
small entities in Texas.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. This
rule, if finalized, will not have substantial direct effects on the
State, on the relationship between the national government and the
State, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
This rule merely proposes Federal approval of regulations already
adopted and implemented by the State of Texas ensuring the protection
of underground sources of drinking water. This proposed approval only
seeks to revise the existing federally approved Texas UIC program,
described at 40 CFR 147.2200, to reflect current statutory, regulatory,
and other key programmatic elements of the program. Therefore this
action will not effect the existing relationship between the national
government and the State, or the distribution of power and
responsibilities among the various levels of government. Thus,
Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small
[[Page 56502]]
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector because the rule imposes no
enforceable duty on any State, local or tribal governments or the
private sector.
G. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. No. 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
H. Executive Order 12898: Environmental Justice
Pursuant to Executive Order 12898 (59 FR 7629, February 16, 1994),
EPA has considered environmental justice related issues with regard to
the potential impacts of this action on the environmental and health
conditions in low-income and minority communities. Today's proposal
provides equal public health protection to communities irrespective of
their socioeconomic condition and demographic make-up.
I. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
The UIC program for Indian Lands is separate from the State of Texas
UIC program proposed for revision here. The UIC program for Indian
lands in Texas is administered by EPA and can be found at 40 CFR
147.2205 under the Code of Federal Regulations. Thus, Executive Order
13175 does not apply to this proposed rule.
J. Executive Order 13211 (Energy Effects)
This proposed rule is not subject to Executive Order 13211,
``Action Concerning Regulations that Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it
is not a significant regulatory action under Executive Order 12866.
List of Subjects in 40 CFR Part 147
Environmental protection, Indian lands, Reporting and recordkeeping
requirements, Water supply.
Dated: October 23, 2001.
Gregg Cooke,
Regional Administrator, Region 6.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 147--STATE UNDERGROUND INJECTION CONTROL PROGRAMS
1. The authority citation for part 147 continues to read as
follows:
Authority: 42 U.S.C. 300h; and 42 U.S.C. 6901 et seq.
Subpart SS--Texas
2. Section 147.2200 is revised to read as follows:
Sec. 147.2200 State-administered program--Class I, III, IV, and V
wells.
The UIC program for Class I, III, IV, and V wells in the State of
Texas, except for those wells on Indian lands, is the State-
administered program approved by EPA pursuant to section 1422 of the
SDWA. Notice of this approval was published on January 6, 1982 and
effective February 7, 1982. A revision, by application of the Texas
Natural Resource Conservation Commission (TNRCC), to the program was
approved pursuant to the requirements at Sec. 145.32 on [signature date
of final rule]. That portion of the State of Texas underground
injection control program, approved under section 1422 of the SDWA, and
administered by the TNRCC, consists of the following elements:
(a) Incorporation by reference. The requirements set forth in the
State statutes and regulations cited in this paragraph (a) are hereby
incorporated by reference and made part of the applicable UIC program
under the SDWA for the State of Texas. This incorporation by reference
was approved by the Director of the Federal Register on [date of FR
Director's approval].
(1) Title 30 of the Texas Administrative Code sections 281.5,
281.11, 281.21, Chapter(s) 305, 331, and 335 subchapters A and C.
(2) Vernon's Texas Codes Annotated, Water Code, Chapter 27 (The
Injection Well Act).
(b) Other laws. The following statutes and regulations, although
not incorporated by reference except for select sections identified in
paragraph (a) of this section, are also part of the approved State-
administered UIC program.
(1) Title 30 of the Texas Administrative Code Chapters 39, 50, 55,
80, and 281.
(2) Vernon's Texas Codes Annotated, Water Code, Chapters 5, 7, 26,
and 32, Health and Safety Code section 361, Government Code (ORA)
Chapter 552 and Government Code (APA) Chapter 2001.
(c) Memorandum of Agreement. The Memorandum of Agreement between
EPA Region VI and the Texas Natural Resource Conservation Commission,
revised March 23, 1999, and signed by the EPA Regional Administrator on
October 23, 2001.
[[Page 56503]]
(d) Statement of legal authority. ``State of Texas Office of
Attorney General Statement for Class I, III, IV, and V Underground
Injections Wells' signed by the Attorney General of Texas, June 30,
1998.
(e) Program Description. The Program Description and all final
elements of the revised application.
(f) Other Wells. Certain Class V and Class III wells are regulated
under the UIC program of the Railroad Commission of Texas approved on
April 23, 1982 and revised [date of Administrator's approval of the
RRC's Class III Brine mining program]. This authority is cited in
147.2201.
[FR Doc. 01-27835 Filed 11-7-01; 8:45 am]
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