[Federal Register Volume 69, Number 38 (Thursday, February 26, 2004)]
[Rules and Regulations]
[Pages 8824-8828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3223]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[FRL-7622-9]
Revision to the Texas Underground Injection Control Program
Approved Under Section 1422 of the Safe Drinking Water Act and
Administered by the Railroad Commission of Texas
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Today, EPA is amending the Code of Federal Regulations (CFR)
and incorporating by reference (IBR), the revised Underground Injection
Control (UIC) Program for Brine Mining Wells implemented by the
Railroad Commission (RRC) of Texas. EPA
[[Page 8825]]
initially approved that portion of the Texas UIC program which is the
subject of this rule on April 23, 1982. Since then, the State has had
primary authority to implement the UIC program for brine mining wells.
Subsequently, the State has made changes to the EPA-approved brine
mining wells program and submitted them to EPA for review. Those
changes are the subject of this rule. EPA, after conducting a thorough
review, is hereby approving and codifying these program revisions. As
required in the Federal UIC regulations, substantial State UIC program
revisions must be approved and codified in the CFR by a rule signed by
the EPA Administrator. The intended effect of this action is to
approve, update and codify the revisions to the authorized Texas UIC
program for brine mining wells and to incorporate by reference the
relevant portions of the revisions in the Code of Federal Regulations.
DATES: This rule is effective on March 29, 2004. The Director of the
Federal Register approves the incorporation by reference contained in
this rule as of March 29, 2004.
FOR FURTHER INFORMATION CONTACT: Mario Salazar,
([email protected]), Mail code 4606M, Environmental Protection
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, voice
(202) 564-3894, fax 202 564-3756. For technical and background
information contact Ray Leissner, ([email protected]) Ground Water/
UIC Section (6WQ-SG), Environmental Protection Agency, Region 6, 1445
Ross Avenue, Dallas, TX, 75202-2733, voice (214) 665-7183, fax (214)
665-2191.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities
This action does not impose any regulation on the public, and in
fact there are no entities affected. This action merely approves,
codifies, and incorporates by reference into the Code of Federal
Regulations the revisions to the Texas UIC program previously adopted
by the State. The rules that are the subject of this codification are
already in effect in Texas under Texas law. The IBR allows EPA to
enforce the State authorized UIC program, if necessary, and to
intervene effectively in case of an imminent and substantial
endangerment to public health and/or underground sources of drinking
water (USDWs) in the State.
II. Background
Section 1421 of Safe Drinking Water Act (SDWA) requires the
Administrator to promulgate minimum requirements for effective State
programs to prevent underground injection activities which endanger
underground sources of drinking water (USDWs). Section 1422 of SDWA
allows States to apply to the EPA Administrator for authorization of
primary enforcement and permitting authority (primacy) over injection
wells within the State. Section 1422(b)(1)(A) provides that States
shall submit to the Administrator an application that: (1) Contains a
showing satisfactory to the Administrator that the State has adopted
and will implement an underground injection control program which meets
the requirements of regulations in effect under section 1421 of SDWA,
and (2) will keep such records and make such reports with respect to
its activities under its underground injection control program as the
Administrator may require by regulation.
To be approved under section 1422, a State must, among other
things, show that it will implement an underground injection control
program that meets the requirements of the Federal regulations in
effect under SDWA, section 1421. Specifically, all State programs
approved under section 1422 must meet the minimum requirements in title
40 parts 144 to 146 and 148. States need not implement provisions
identical to the provisions listed in these parts, but they must
implement provisions that are at least as stringent. Section
1422(b)(1)(B)(2) requires, after reasonable opportunity for public
comment, the Administrator to, by rule, approve, disapprove, or approve
in part, the State UIC program.
EPA's approval of primacy for the State of Texas for underground
injection into Class I, III, IV, and V wells was published on January
6, 1982 (47 FR 618), and became effective February 6, 1982. Elements of
the State's primacy application, submitted through the Texas Department
of Water Resources (TDWR), a predecessor to the Texas Commission on
Environmental Quality \1\ (TCEQ), were approved and published in title
40 of the Code of Federal Regulations, at 40 CFR 147.2200. Since that
time, authority has been passed through to succeeding agencies. The
TDWR became the Texas Water Commission (TWC), which was reorganized in
1993 into the Texas Natural Resource Conservation Commission (TNRCC)
and recently renamed the Texas Commission on Environmental Quality
(TCEQ). TCEQ is the agency currently charged with administering the UIC
program for Class I, III, IV, and most Class V wells in Texas.
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\1\ On September 1, 2002, the Texas Natural Resources
Conservation Commission changed its name to the Texas Commission on
Environmental Quality. The proposal published by EPA on November 8,
2001 (66 FR 56503-56507) referenced the prior name, the Texas
Natural Resources Conservation Commission (TNRCC).
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In addition to TDWR receiving approval to administer the UIC
program for Class I, III, IV and V injection wells, RRC received
approval to administer the UIC program for energy related injection
activities in the State, effective May 23, 1982. These wells include
Class II injection wells related to oil and gas exploration and
production, and Class V geothermal return and in situ coal combustion
wells. In 1985, the 69th Texas Legislature enacted legislation that
transferred jurisdiction over Class III brine mining wells from the
Texas Water Commission, now the Texas Commission on Environmental
Quality, to the RRC.
Section 1422 of SDWA and regulations at 40 CFR 145.32 allow for
revision of approved State UIC programs when State statutory or
regulatory authority is modified or supplemented. In accordance with
those requirements, and in conjunction with a substantial revision
submitted by the TNRCC (now TCEQ) and approved earlier, RRC submitted
revisions to EPA for approval and codification of that portion of RRC's
UIC program governing Class III brine mining wells. The RRC program
related to Class V geothermal return and in situ combustion of coal has
not been revised and remains in effect. Other Class III injection wells
remain regulated by the TCEQ.
EPA proposed the program revisions to RRC's Class III brine mining
program in the Federal Register on November 8, 2001 (66 FR 56503-56507)
and in five major newspapers within the State. That proposal indicated
EPA's intention to approve the revisions to the RRC program for Class
III brine mining wells, asked for comments, and offered the opportunity
to request a public meeting. That notice included a description of key
issues raised and actions taken to achieve issue resolution. The key
issues identified and discussed in the proposal related to the
following components in the RRC UIC program:
Protection Standard;
Fluid Migration;
Plugging and Abandonment;
Permit Application Requirements;
Monitoring, Compliance Tracking and Enforcement
Activities;
Public Participation;
References to State Law.
As indicated above, the proposal gives specific steps that were taken
to achieve issue resolution. No comments or requests for hearing were
received in response to the proposal of November 8, 2001.
[[Page 8826]]
The proposal published in the Federal Register on November 8, 2001
(66 FR 56503-56507) included changes to 40 CFR 147.2200 to implement
RRC programmatic changes. The changes to Part 147 promulgated in
today's rule differ from the proposed changes only in formatting and in
the addition of a specific list of the types of wells, other than Class
II, that are included in the RRC program.
Today's action approves, codifies, and incorporates by reference
those revisions submitted by the RRC to the Class III portion of the
State's UIC program for brine mining wells originally approved under
section 1422 of SDWA in 1982.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
It does not impose any information collection, reporting, or record-
keeping requirements. It merely approves, codifies, and incorporates by
reference State revisons to the EPA approved UIC program.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9, and 48 CFR chapter 15.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the Agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, we defined small entities as (1) a small business based on
Small Business Administration (SBA) size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population less than 50,000;
and (3) a small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This rule
merely approves, codifies, and incorporates by reference into 40 CFR
part 147 the revisions to the Texas program regulations already adopted
and implemented by the State of Texas ensuring the protection of
underground sources of drinking water. Codification of these revisions
does not result in additional regulatory burden to or directly impact
small businesses in Texas.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written Statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including Tribal
governments, it must have developed under section 203 of the UMRA a
small government Agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or Tribal
governments or the private sector because the rule imposes no
enforceable duty on any State, local or Tribal governments or the
private sector. This final rule only approves the State's UIC
regulations as revised and in effect in the State of Texas. Thus
today's rule is not subject to the requirements of sections 202 and 205
of UMRA. For the same reason, EPA has determined that this rule
contains no regulatory
[[Page 8827]]
requirements that might significantly or uniquely affect small
governments. Thus, today's rule is not subject to the requirements of
section 203 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the State, on the relationship
between the national government and the State, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This rule merely approves and
codifies regulations already adopted and implemented by the State of
Texas ensuring the protection of underground sources of drinking water.
This codification revises the existing federally approved Texas UIC
program, described at 40 CFR 147.2200, to reflect current statutory,
regulatory, and other key programmatic elements of the program. Thus,
Executive Order 13132 does not apply to this rule. Although Executive
Order 13132 does not apply to this rule, extensive consultation between
EPA and the State of Texas went into revising the UIC regulations. The
proposal published in the Federal Register on November 8, 2001 (66 FR
56503-56507) provides a detailed description of the consultations that
took place in preparation of the Texas UIC regulations which are the
subject of this codification. In addition, in the spirit of Executive
Order 13132, and consistent with EPA policy to promote communications
between EPA and State and local governments, EPA specifically solicited
comment on the proposed rule from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop ``an accountable process to ensure meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have Tribal implications. It will not have
substantial direct effects on Tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
The UIC program for Indian lands is separate from the State of Texas
UIC program. The UIC program for Indian lands in Texas is administered
by EPA and can be found at 40 CFR 147.2205 of the Code of Federal
Regulations. Thus, Executive Order 13175 does not apply to this rule.
Nevertheless, in the spirit of Executive Order 13175, and consistent
with EPA policy to promote communications between EPA and Tribal
governments, EPA specifically solicited comment on the proposed rule
from Tribal officials in its notice published in the Federal Register
on November 8, 2001 (66 FR 56496-56503), and in five major newspapers
within the State.
G. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866.
Further, it does not concern an environmental health or safety risk
that EPA has reason to believe may have a disproportionate risk to
children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub. L. 104-113, section 12(d), (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, business practices) that are developed or adopted
by voluntary consensus standards bodies. The NTTAA directs EPA to
provide to Congress, through the Office of Management and Budget (OMB),
explanations when EPA decides not to use available and applicable
voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations or Low-Income Populations
Executive Order 12898 establishes a Federal policy for
incorporating environmental justice into Federal agency missions by
directing agencies to identify and address disproportionately high and
adverse human health or environmental effects of its programs,
policies, and activities on minority and low-income populations. This
rule does not affect minority or low income populations.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
[[Page 8828]]
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on March 29, 2004.
List of Subjects in 40 CFR Part 147
Environmental protection, Incorporation by reference, Indians-
lands, Intergovernmental relations, Reporting and recordkeeping
requirements, Water supply.
Dated: February 9, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 147--STATE UNDERGROUND INJECTION CONTROL PROGRAMS
0
1. The authority citation for part 147 continues to read as follows:
Authority: 42 U.S.C. 300h; and 42 U.S.C. 6901 et seq.
Subpart SS--Texas
0
2. Section 147.2200 is amended by adding three sentences to the end of
the introductory text and by adding paragraphs (a)(2), (b)(2), (c)(2),
(d)(2), and (e)(2) to read as follows:
Sec. 147.2200 State-administered program--Class I, III, IV, and V
wells.
* * * The UIC program for Class III brine mining wells in the State
of Texas, except for those wells on Indian lands, is the program
administered by the Railroad Commission of Texas. A program revision
application for Class III brine mining wells was submitted by Texas and
approved by EPA. Notice of that approval was published in the Federal
Register on February 26, 2004; the effective date of this program is
March 29, 2004.
(a) * * *
(2) Texas Statutory and Regulatory Requirements Applicable to the
Underground Injection Control Program for Class III Brine Mining Wells,
March 2002.
(b) * * *
(2) Class III brine mining wells. (i) Vernon's Texas Codes
Annotated, Natural Resources Code, Chapters 91, 2001, and 331;
(ii) Vernon's Texas Codes Annotated, Government Code Title 10,
Chapters 2001, 552, and 311.
(iii) General Rules of Practice and Procedure before the Railroad
Commission of Texas.
(c) * * *
(2) Class III brine mining wells. The Memorandum of Agreement
between EPA Region VI and the Railroad Commission of Texas signed by
the EPA Regional Administrator on October 23, 2001.
(d) * * *
(2) Class III brine mining wells. State of Texas ``Attorney
General's Statement'' for Class III Brine Mining Injection Wells,
signed by the Attorney General of Texas, February 2, 1992 and the
``Supplement to Attorney General's Statement of February 19, 1992,''
signed by the Attorney General of Texas, June 2, 1998.
(e) * * *
(2) Class III brine mining wells. The Program Description and any
other materials submitted as part of the revision application or as
supplements thereto.
[FR Doc. 04-3223 Filed 2-25-04; 8:45 am]
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