[Federal Register: June 7, 2002 (Volume 67, Number 110)]
[Rules and Regulations]               
[Page 39583-39593]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn02-22]                         


[[Page 39583]]

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Part V





Environmental Protection Agency





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40 CFR Part 144



Underground Injection Control Program--Notice of Final Determination 
for Class V Wells; Final Rule


[[Page 39584]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 144

[FRL -7225-8]
RIN 2040-AD63

 
Underground Injection Control Program--Notice of Final 
Determination for Class V Wells

AGENCY: Environmental Protection Agency.

ACTION: Notice of final determination; and final rule.

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SUMMARY: Today, the Environmental Protection Agency (EPA) is announcing 
a final determination for all sub-classes of Class V injection wells 
not included in the final rulemaking on Class V motor vehicle waste 
disposal wells and large-capacity cesspools (December 7, 1999). These 
include shallow non-hazardous industrial waste disposal wells, large-
capacity septic systems, agricultural and storm water drainage wells, 
and other wells. The Agency has determined that the existing Federal 
underground injection control (UIC) regulations are adequate to prevent 
these Class V wells from endangering underground sources of drinking 
water (USDWs) and no new rulemaking is necessary at this time.
    Because today's action fulfills the Agency's obligation with regard 
to Class V wells as stated in section 1421 of the Safe Drinking Water 
Act, EPA is also amending its UIC rules by removing outdated references 
regarding future Class V regulations. In addition, some minor changes 
were made to correct mistakes and omissions within the CFR.

DATES: The final determination and rule revisions will be effective on 
June 7, 2002. Pursuant to 40 CFR 23.7, for the purposes of judicial 
review, this final determination and rule revisions are issued/
promulgated as of 1:00 p.m. Eastern Time on June 7, 2002.

ADDRESSES: The determination and supporting documents, including public 
comments and EPA responses, are available for review in the UIC Class 
V, W-98-05V Water Docket, U.S. Environmental Protection Agency, 401 M 
Street, SW., East Tower Basement, Room 57, Washington, DC, 20460. For 
information on how to access Docket materials, please call (202) 260-
3027 between 9 a.m. and 3:30 p.m. Eastern Time, Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact Robyn 
Delehanty, Office of Ground Water and Drinking Water (mailcode 4606M), 
Environmental Protection Agency, 1200 Pennsylvania Ave, NW., 
Washington, DC, 20460. Phone: 202-564-3880. For general information, 
contact the Safe Drinking Water Hotline at 800-426-4791. The Safe 
Drinking Water Hotline is open Monday through Friday, excluding Federal 
holidays, from 9 a.m. to 5:30 p.m. Eastern Time.

SUPPLEMENTARY INFORMATION: Affected Entities: Today's determination and 
rule applies to owners or operators of any type of Class V well that is 
not a large-capacity cesspool or a motor vehicle waste disposal well, 
as described in the December 7, 1999 Class V Rule (64 FR 68546) at 40 
CFR 144.81(2) and 144.81(16), respectively. The following table lists 
sub-classes and examples of entities that may have wells covered by 
this action. 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. To determine whether your 
injection well is affected by this action, 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 potentially affected
           Category                          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
                                including disposal of byproducts from
                                industrial operations; 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; and 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 types of wells.
------------------------------------------------------------------------

Table of Contents

I. Background
    A. Statutory and Regulatory Framework
    B 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
    7. 2001 Proposal and Final Determination
    C. Requirements Applicable to Class V Wells
II. Description of Today's Action
    A. Final Determination
    B. Public Comment
    1. Potential to Endanger
    2. Adequacy of Existing Regulation
    3. Effectiveness of Additional Federal UIC Regulations
    4. Data Used to Make the Determination
    5. Class V Sub-Class Specific Comments
    C. Amended Regulatory Language
III. Class V Program Management Plan
    A. Implementing Existing Regulations
    1. Long Standing UIC Regulations
    2. 1999 Class V Rule
    B. Educate Well Operators
    C. Explore Other Regulatory and Non-regulatory Approaches
    D. Coordinate Efforts with Other EPA Programs
    E. Prepare for Future Actions
IV. Administrative Requirements
    A. Administrative Procedures Act
    B. Other Administrative Requirements
V. References

[[Page 39585]]

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 may endanger 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; 
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. History of This Rulemaking

1. 1987 Report to Congress
    In accordance with the 1986 Amendments to the SDWA, EPA summarized 
information on 32 sub-classes 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 1987). This 
report presented a national overview of Class V injection practices and 
State recommendations for Class V well design, construction, 
installation, and siting requirements at that time. 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 a 
national level. For any given type of well, the recommendations varied 
broadly and were rarely made by more than two or three States.
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.'' (EPA 1994c).
    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 discharged the Administrator's rulemaking obligation under 
section 1421 of 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 speed up the closure of potentially 
endangering wells, and promote the use of best management practices to 
ensure that other Class V wells of concern did not endanger USDWs. 
Several factors led EPA to propose this approach: (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 is 
comprised largely 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 (EPA 1997) that extended the dates for rulemaking in 
the 1994 decree. The modified decree required 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 July 31, 1999. Short 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. The information 
collected for the study was to be used as the basis for EPA's 
determination on Class V wells not included in the Class V rule.
    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 SDWA with respect to all Class V injection wells 
not included in the first rulemaking for Class V injection wells. The 
Consent Decree required that the Administrator either: (1) Propose 
regulations fully implementing section 1421 with respect to all such 
Class V injection wells; (2) propose a decision

[[Page 39586]]

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. Finally, the Administrator must 
sign a final 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 UIC regulations that would add new 
requirements for three sub-classes of Class V wells that were believed 
to endanger USDWs. According to this proposal, Class V motor vehicle 
waste disposal wells in ground water protection areas (as defined in 
the rule) would either be banned, or would have to get a permit that 
required fluids released in those wells to not exceed 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 not 
exceed the MCLs and other health-based standards at the point of 
injection, and large-capacity cesspools in such areas would be banned.
    EPA received 97 letters from public commentors as well as 
recommendations from the National Drinking Water Advisory Council, 
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 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 UIC regulations for Class V wells on December 7, 1999 
(64 FR 68546). The final rule added new requirements for Class V motor 
vehicle waste disposal wells and large-capacity cesspools. Existing 
motor vehicle waste disposal wells in ``ground water protection areas'' 
and ``other sensitive ground water areas'' were 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)). If a State fails to 
complete their assessments of ground water protection areas or 
delineate other sensitive ground water areas by January 1, 2004, then 
all existing motor vehicle waste disposal wells in that State become 
subject to the new requirements. These new requirements are minimum 
Federal standards--primacy States may impose more stringent 
requirements. The final rule, however, did not adopt the proposed 
additional requirements for industrial waste disposal wells.
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 issued a 
study (EPA 1999a) of all Class V wells not included in the 1998 
proposal (EPA 1998a). The Class V 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 sub-
classes 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 Class V Study, 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 managing Class V wells in 
Indian Country 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 99 census 
tracts across the nation to collect data on the number of storm water 
drainage wells and large-capacity septic systems 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 number of these wells nationwide.
    The Class V Study is available from the public docket, or at the 
EPA Web site http://www.epa.gov/safewater/uic/cl5study.html#volumes.
7. 2001 Proposal and Final Determination
    As required by the Decree, EPA issued a proposed determination 
concerning the Class V wells not already addressed by the 1999 rule (66 
FR 22971, May 7, 2001). In this determination, EPA proposed that 
further regulatory action for these wells was not necessary under 
section 1421. Today's final determination, that no further rulemaking 
is necessary at this time, fulfills the last of the Agency's 
obligations under the Class V Consent Decree.

C. 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 a 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.
    The 1999 Class V Rule added new requirements for existing motor 
vehicle waste disposal wells located in ground water protection areas 
and in other sensitive ground water areas delineated by the States; and 
new and existing large-capacity cesspools and new motor vehicle waste 
disposal wells nationwide.

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    All remaining Class V wells that are in compliance with the 
inventory and non-endangerment requirements are currently authorized by 
rule or by permit (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).
    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 prohibition 
against endangerment of USDWs, as well as some specific requirements. 
The prohibition against endangerment of USDWs, found in Secs. 144.12 
and 144.82, applies to all Class V wells and provides that no 
injection-related activity may be conducted ``in a manner that allows 
the movement of fluid containing any contaminant into underground 
sources of drinking water, if the presence of that contaminant may 
cause a violation of any primary drinking water regulation under 40 CFR 
Part 141 or may otherwise adversely affect the health of persons.'' 
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 a permit, ordering such action as closure of the well to 
prevent endangerment, taking an enforcement action, and/or taking an 
emergency action.
    Also, owners or operators of Class V injection wells must 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 an area, general or individual 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. Lastly, Secs. 144.12 and 
144.82 give the UIC Program Director authority to close any Class V 
well that may endanger a USDW.
    The above referenced sections represent the minimum Federal 
requirements for all Class V wells except motor vehicle waste disposal 
wells and large-capacity cesspools. The Federal requirements do not 
preclude a State or local government from promulgating more stringent 
requirements above and beyond the existing UIC authorities, and many 
States have additional requirements for sub-classes of Class V wells to 
prevent endangerment.

II. Description of Today's Action

A. Final Determination

    Today, EPA is issuing its final determination that additional 
Federal underground injection control regulations for all sub-classes 
of Class V injection wells not included in the final rulemaking on 
motor vehicle waste disposal wells and large-capacity cesspools are not 
needed at this time to prevent Class V wells from endangering USDWs. 
The Agency based the determination on the potential for Class V wells 
to endanger USDWs and the anticipated effectiveness of additional 
Federal UIC regulation. The Agency will address its continuing 
statutory obligations by implementing existing authorities under the 
SDWA to protect USDWs from any threatening underground injection 
activities.
    The 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. It is 
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.C. 
above, UIC Program Directors have many obligations and authorities 
under the SDWA to ensure the protection of USDWs from potential risks 
posed by Class V wells. The Agency will continue to fulfill these 
obligations using 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 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. Today's determination is limited to the 
requirements of section 1421 of SDWA as applied to Class V injection 
activities and does not limit in any way the Agency's authorities or 
obligations under other statutes, such as the Clean Water Act.

B. Public Comment

    The 2001 Proposed Determination (EPA 2001a) was open for public 
comment for 60 days. The Agency made the proposed determination widely 
available through direct mailing to stakeholders and posting the 
document on EPA's Web site. Twenty-eight commentors addressed the 
proposal. EPA has developed a response to comment document (EPA 2002b) 
addressing all public comments received on the well types addressed by 
the proposed determination.
1. Potential To Endanger
    The potential to endanger USDWs was the main criterion used for 
making the determination. 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 
Class V well types covered by the determination. Particularly given the 
length of time this program has been in existence, EPA believes that 
the absence of frequent, widespread, or significant cases of actual 
contamination is good evidence of a low potential for these wells to 
endanger. Therefore, additional Federal UIC regulation is not warranted 
at this time.
    The majority of the commentors agreed with the Agency's proposed 
determination that, based on the review of the Class V Study and 
additional information on industrial wells, Class V wells, as a class 
or sub-class, do not pose an endangerment to USDWs since documented 
cases of contamination attributable to these Class V wells are rare.
    Some commentors disagreed with the Agency's determination and 
raised both the potential for Class V wells to endanger and some 
limited cases in which sub-classes of Class V wells may have caused 
contamination.
    The Agency agrees with the commentors that there is the potential 
for any Class V well to cause contamination. However, the Class V 
Study, the most rigorous and comprehensive data collection of Class V 
wells ever undertaken, did not show any evidence that Class V wells, as 
a well class, or any Class V sub-class, are contaminating USDWs. On the 
contrary, the lack of recent contamination data that links these Class 
V wells to ground water contamination supports EPA's view that existing 
authorities are being used effectively to address any potential risk of 
these Class V wells endangering USDWs. While the data from the Class V 
Study did not support the need for

[[Page 39588]]

well-specific regulations, there were limited cases where Class V wells 
were found to be endangering. The Agency recognizes that some fluids 
may cause endangerment if injected directly into USDWs or into vadose 
zone materials which cannot adequately attenuate the injected fluids. 
The existing UIC regulations governing Class V injection wells provide 
UIC programs with sufficient authority to, on a case-by-case basis, 
prevent endangering injection practices and, where found to occur, stop 
them and compel the injection well owner/operator to take any 
restorative steps needed to prevent endangerment.
2. Adequacy of Existing Regulation
    One commentor disagreed with the Agency's determination that no 
additional regulations are needed at this time and contends that the 
SDWA requires EPA to develop additional minimum Federal requirements. 
That commentor believes the precautionary endangerment provision of the 
Act requires EPA to promulgate regulations unless it can show that no 
underground source of drinking water will be endangered.
    EPA agrees with the commentor that the statutory definition of 
``endangerment'' does not require contamination prior to taking action 
of either a regulatory or enforcement nature. That Congress intended 
for EPA to act in a preventive fashion--to establish regulatory 
requirements to prevent contamination of USDWs from injection wells, 
rather than just addressing such contamination after it occurs--is 
clear from the statutory definition of endangerment, its legislative 
history, and the language of section 1421.
    However, EPA does not agree that the statute requires EPA to 
promulgate Class V regulations ``unless EPA can show no endangerment 
will occur.'' The requirement for establishing UIC regulations under 
SDWA section 1421 is that EPA must establish regulations to ensure that 
State programs ``contain minimum requirements for effective programs to 
prevent underground injection which endangers drinking water sources * 
* *'' Because no amount of regulatory control will prevent all cases of 
contamination, EPA believes that a State may have an effective, 
preventative Class V program even though there may be isolated cases of 
endangerment. As a result, EPA does not agree that the statute requires 
EPA to prove the complete absence of contamination in order to 
determine that additional Federal regulations for Class V wells are 
unnecessary. Rather, EPA must determine whether, based on the existing 
information available to EPA, State programs are effective in 
regulating (i.e., preventing endangerment from) Class V wells, and if 
not, what Federal regulations, if any, could make such programs more 
effective. If the State programs are already effective, then additional 
Federal regulations are unnecessary.
    If there is information showing that such wells, either a specific 
sub-class of Class V wells or Class V wells as a whole, are causing 
contamination or that there is some other specific, factual basis to 
determine that certain Class V well injection activities are likely to 
cause endangerments, then EPA may, in the future, determine that 
additional regulatory safeguards are necessary to prevent endangerment. 
EPA did establish additional requirements for Class V motor vehicle 
waste disposal wells and large-capacity cesspools in 1999 for this 
reason. EPA clearly does not need to wait for contamination to occur 
before determining that additional regulation of a sub-class or class 
of UIC wells is necessary.
3. Effectiveness of Additional Federal UIC Regulation
    The second criterion EPA used to make this determination was the 
anticipated effectiveness of additional Federal UIC regulation. EPA 
used this criterion for only a few well sub-classes for which a sound 
determination could not be based on the potential to endanger alone, 
and includes agricultural drainage wells, industrial waste disposal 
wells, and sewage treatment effluent wells. 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.
    The majority of the commentors agreed that there was adequate 
authority to manage Class V wells and additional Federal regulation is 
unnecessary. A few commentors believed the SDWA would not allow for the 
use of anticipated effectiveness of additional Federal regulation. They 
contend that the SDWA provides neither an intent nor the authority to 
limit the protection afforded to all USDWs by restricting its scope to 
regulations which are proven a priori to be effective. Rather, 
Congress' concern is with any activity which may endanger USDWs, and is 
not limited to those activities for which a regulatory program has been 
proven effective.
    EPA agrees that Congress intended for all injection to be 
regulated, and notes that the UIC Program does regulate all injection 
wells. However, EPA disagrees with the commentor that the effectiveness 
of additional Federal regulations cannot be a criterion for determining 
whether to establish more prescriptive regulations for Class V wells. 
The statutory obligation is for EPA to determine whether State UIC 
programs are effective in addressing endangerments to USDWs, and to 
establish minimum requirements for such programs if they are not 
effective. As a result, the effectiveness of State programs, and 
additional Federal regulations, is very much a relevant criterion under 
section 1421. The statutory obligation to establish additional UIC 
requirements is not triggered solely by finding that some wells may be 
or have been an ``endangerment'' as defined by the statute. EPA agrees 
that the term ``endangerment'' is broadly defined and preventive. 
Section 1421 is also preventative. However, the issue is not whether 
there are, or might be, some instances of endangerment, but rather 
whether additional Federal requirements are necessary to ensure 
effective State programs to prevent these endangerments. If Federal 
regulations would not improve the effectiveness of State programs, then 
such regulations are not required under section 1421. The statutory 
obligation is to determine whether State programs are ineffective in 
addressing endangerment; EPA does not have information at this time 
that indicates that State programs are ineffective in addressing 
endangerments from Class V wells.
4. Data Used To Make the Determination
a. Completeness of the Information
    The determination was based on information collected by the Class V 
Study and industrial waste disposal well information collected to 
support the Class V Proposed Rule. The Class V Study was designed and 
implemented to obtain all information that was currently available on 
Class V wells. The Class V Study represents the most comprehensive 
collection of information on Class V wells. The majority of the 
commentors referred to the Class V Study data to support their argument 
either for or against the determination. However, a few

[[Page 39589]]

commentors indicated that there was information that was not included 
in the Class V Study, but it was not submitted as part of the comments. 
As part of EPA's obligation to prevent Class V wells from endangerment, 
we will continue to evaluate whether additional Federal regulations or 
other actions are warranted as more information becomes available. We 
encourage anyone with information to submit it for consideration.
b. Areas Not Covered by the Class V Study
    Some commentors encouraged the Agency to expand the scope of the 
Class V Study to include data collection on: ground water monitoring; 
the fate of viruses, chemicals and their metabolites in the subsurface; 
and, additional sub-classes of Class V wells such as horizontal drain 
fields and abandoned drinking water wells that were not addressed in 
the Study. While the Agency has no plan to expand upon the existing 
Class V Study, we will continue to collect information and evaluate the 
potential for Class V wells to endanger USDWs. The Class V Study is a 
firm starting point to assist the Agency, and our stakeholders, in 
prioritizing future efforts such as public outreach, guidance 
development, data collection, and, if needed, rule development.
    A few commentors raised concerns about ``emerging'' issues such as 
pharmaceutical and personal care products (PPCPs). PPCPs were not 
considered as part of the Class V Study. EPA has no knowledge of any 
contamination linked to PPCP, nor did anyone comment on the need to 
address PPCPs when the Class V Study design was public noticed. This 
may be because, until recently, little information was available on 
PPCPs and analytical techniques lacked the sensitivity to identify 
PPCPs in water. The United States Geological Survey (USGS) recently 
released data on PPCPs in streams downstream from areas of intense 
urbanization and animal production. Additional data on ground water 
sampling will be released later this year followed by data on drinking 
water source water. EPA has been, and will continue to, work with the 
USGS as more information becomes available and will assess the 
relevance of the information to Class V activities.
5. Class V Sub-Class Specific Comments
    As stated above, today's Notice of Final Determination for Class V 
Wells continues to use the two main criteria proposed in 2001--the 
potential to endanger USDWs and the anticipated effectiveness of 
additional Federal regulation--to determine whether Class V wells 
warrant additional regulations at this time.
    EPA continues to believe that the potential to endanger USDWs is 
the more important of the two criteria, given the SDWA mandate to 
prevent endangerment. EPA also believes that the scarcity of documented 
cases of soil or ground water contamination due to Class V wells 
demonstrates a low potential for these wells to endanger. EPA 
recognizes that there may be isolated instances of endangerment to 
USDWs which have not been documented. However, the Class V Study, which 
was a thorough and comprehensive review of all available data on these 
wells, did not document significant or widespread cases of 
contamination. EPA believes that most, if not all, cases of significant 
or widespread contamination due to Class V wells would have been 
reported in some manner and, as a result, would have been identified 
and documented as part of the Class V Study. As a result, the relative 
paucity of such documentation is viewed by EPA as a good indication 
that the existing regulations are adequate.
    The degree to which additional Federal UIC regulations would simply 
duplicate existing State program efforts without increasing their 
``effectiveness'' is a key factor in evaluating the usefulness of 
additional regulations. The scarcity of documented cases of 
contamination and the existence of effective State UIC programs 
signifies that additional Federal UIC regulations are not necessary, at 
this time, under the statute.
    The Agency received specific comments on agricultural drainage 
wells, aquifer remediation wells, aquifer storage and recovery wells, 
geothermal wells, industrial wells, salt water intrusion wells, spent 
brine return flow wells, storm water drainage wells, and sewage 
treatment effluent wells. Many of the commentors agreed with the 
Agency's determination that additional regulations were not needed for 
any of the sub-classes covered by the determination. The remaining 
commentors disagreed with the Agency. However, these commentors did not 
submit evidence of any contamination cases that had not been 
effectively addressed by UIC Programs using existing authorities. EPA 
believes that additional Federal regulation is not necessary where the 
endangerment posed by particular well types appears to be rare. The 
fact that few documented cases of contamination were found, and that 
the endangerment was addressed using current authorities, supports 
EPA's determination that existing Federal regulations and State 
programs are effective to prevent endangerment.
    EPA does not believe that additional regulations for these wells 
should be promulgated based upon conjecture about endangerments that 
could occur or some kind of ``presumption'' that they do occur absent a 
showing otherwise. EPA does recognize that fluids injected into shallow 
injection wells can exceed human health-based thresholds. However, the 
information available to the Agency shows that existing Federal 
regulations provide EPA and primacy States with the authority needed to 
ensure that shallow injection wells are properly situated, constructed, 
operated, maintained and (if necessary) closed in a manner that 
protects underlying USDWs.
    There is no information necessitating additional Federal UIC 
regulations for these wells, at this time. The current record 
demonstrates that existing regulations already effectively prevent most 
cases of endangerment and provide sufficient authority to address rare 
cases of endangerment that might occur.
    Detailed responses to comments submitted on specific sub-classes of 
Class V wells are found in the response to comment document (EPA 
2002b).

C. Amended Regulatory Language

    Today's action fulfills the Agency's obligation in regard to Class 
V wells as stated in section 1421 of the Safe Drinking Water Act. 
Therefore, EPA is amending its UIC regulations at 40 CFR part 144.1, 
purpose and scope, to remove the sentence ``Class V wells will be 
inventoried and assessed and regulatory action will be established at a 
later date.'' In addition, some minor changes were made to correct 
mistakes and omissions within the CFR. In two places within part 144 
references to the location of primary drinking water standards within 
the CFR has been corrected to read 40 CFR part 141, instead of part 
142. Section 144.1 also references Sec. 146.04 as containing criteria 
for ``aquifer exemptions.'' This reference has been corrected to read 
Sec. 146.4. In correcting Sec. 144.1, we've also removed an incorrect 
reference to ``individual'' permits. Also, as part of the 1999 Class V 
rule (EPA 1999c) States were allowed to authorize Class IV injection 
under certain conditions. Section 144.23 Prohibition of Class IV wells 
was amended at that time, but parallel language in Sec. 144.13 was not. 
This rulemaking corrects the regulatory language at Sec. 144.13 to be 
consistent with the language at Sec. 144.23. The regulatory language at 
Sec. 144.26 is

[[Page 39590]]

amended to remove introductory text that references paragraph (e) of 
the regulation that was removed as part of the 1999 Class V rule (EPA 
1999c). Lastly, paragraph (g) at Sec. 144.87 has been inserted and 
reserved. The original regulatory language that was added to the CFR as 
part of the 1999 Class V rule (EPA 1999c) omitted paragraph (g), so it 
is being added and reserved to avoid confusion and for consistency.

III. Class V Program Management Plan

    As part of an ongoing obligation to prevent Class V wells from 
endangering USDWs, the Agency has developed a management plan for Class 
V wells. The purpose of the management plan is to prioritize resources 
and activities, as well as identify, for our stakeholders, how best to 
achieve our common goal of preventing Class V wells from endangering 
USDWs. The following areas have been prioritized for future activities.

A. Implementing Existing Regulations

1. Long Standing UIC Regulations
    An important first step in the prevention of ground water 
contamination from injection wells is to ensure that Class V well 
owners and operators know they have a Class V well and what their 
obligations are under the UIC regulations. The UIC Program will 
continue to collect inventory information, conduct inspections, educate 
facility owners and operators on their obligations under the UIC 
regulations and assess the facilities injection practices. The outcome 
of any given assessment may be authorization by rule, a request for 
additional information, requiring the facility to apply for a general, 
area, or site specific permit, or requiring closure of the well. To 
enhance inventory and inspection information, the UIC program has begun 
a pilot project in some direct implementation States. The inventory/
inspection initiative will initially focus on source water protection 
areas and then expand to other priority areas.
    EPA, State and local inspectors will also be looking for facilities 
that may be operating Class IV wells which are banned under UIC 
regulations. These hazardous waste disposal wells would be subject to 
immediate closure that may include site characterization, cleanup and 
enforcement penalties.
    The Agency also plans to develop technical assistance documents. In 
particular, guidance is being developed to help assist UIC Programs 
determine if, on a case-by-case basis, an industrial well should be 
rule authorized, permitted or closed. A Class V industrial waste 
disposal well closure guidance will also be developed to give general, 
performance based guidance.
    In addition to the technical guidance, EPA is considering the 
development of compliance guides to assist owners and operators in 
complying with existing regulations.
2. 1999 Class V Rule
    Motor vehicle waste disposal wells and large-capacity cesspools 
were identified as having a high potential to endanger USDWs and 
required additional regulations to insure they do not endanger USDWs. 
As such, the Agency sees the implementation of the Class V Rule as a 
high priority. The Class V Rule requires owners and operators of 
existing motor vehicle waste disposal wells in regulated areas to close 
their well, or if applicable, obtain a permit. These requirements are 
being phased in through 2008. Owners and operators of large-capacity 
cesspools must close their cesspools by April 5, 2005. EPA will 
coordinate its efforts with primacy States and State and local health 
departments to implement the ban.

B. Educate Well Operators

    Full compliance with Class V regulations requires that well 
operators understand their obligations. Owners and operators of Class V 
wells must meet certain regulatory requirements: large-capacity 
cesspools must close; motor vehicle waste disposal wells in regulated 
areas must close or obtain a permit; and, all other well owners must 
submit inventory information about their well to the UIC Program. Well 
owners and operators can not inject until they have submitted 
inventory. For the wells covered by this determination, the minimum 
Federal requirement is the well cannot endanger USDWs. As discussed in 
section I.C., UIC Program Directors have the authority to impose 
additional requirements as needed. In addition, States can, and in many 
cases do, choose to be more stringent.
    The UIC Program has developed some outreach materials outlining 
what the various requirements are, and how owners and operators must 
comply. These include:

--Small Entity Compliance Guide for Owners of Motor Vehicle Waste 
Disposal Wells (EPA 2000).
--Class V Well Initiative Web site at: http://www.epa.gov/safewater/
uic/classv.html.
--UIC Program poster--``Protecting Public Health and Drinking Water'' 
(EPA 2001b).
--UIC Booklet--``Protecting Public Health through Underground Injection 
Control'' (EPA 2002a)
--Videos--``The Problem with Shallow Disposal Systems'' and ``Shallow 
Disposal Systems Are Everyone's Business''

    Anyone interested in obtaining any of these materials should 
contact the Safe Drinking Water Hotline at (800) 426-4791. 
Additionally, most Regional and State UIC programs have the type of 
specific compliance information needed by injection well owners/
operators, or the phone numbers of who to contact for such information, 
available on their Web sites. Hot-links to each of these Web sites can 
be accessed through the general EPA UIC program Web site listed above.

C. Explore Other Regulatory and Non-regulatory Approaches

    The UIC Program will explore both new regulatory and innovative 
non-regulatory approaches to manage Class V wells. One new regulatory 
approach that EPA will consider is the use of general permits. General 
permitting is an existing authority that has not been widely utilized 
by the UIC Program, where like facilities within a defined area can be 
covered by one permit. A growing concern expressed by commentors, 
States, and EPA Regions, is that there will be a dramatic increase in 
the use of Class V wells to dispose of storm water rather than obtain 
NPDES permits for surface discharge. This is an example where general 
permits may be utilized. Additionally, in sensitive geologic areas, a 
general permit could be used to require specific best management 
practices as well as injectate monitoring.
    The Agency is also exploring non-regulatory approaches to prevent 
contamination of USDWs, such as, the use of voluntary compliance 
standards. The Agency will work with well owners and operators, on a 
case-by-case basis to identify opportunities to implement voluntary 
waste minimization practices. These voluntary practices may ensure that 
facility injection practices do not contaminate USDWs. This would be an 
alternative to imposing permit conditions.

D. Coordinate Efforts With Other EPA Programs

    The UIC Program is currently working with the Office of Wastewater 
Management (OWM) to coordinate efforts on large-capacity septic systems 
and storm water drainage. The Onsite Decentralized Wastewater 
Management voluntary guidelines (to be finalized in the summer of 2002) 
include

[[Page 39591]]

information about the UIC Program, as well as the standards Class V 
large-capacity septic systems must meet under the UIC program. The OWM 
Speakers Bureau includes UIC Personnel to assist in giving 
presentations and providing outreach documents to State and local 
health department personnel, communities, utilities and other 
stakeholders.
    The UIC Program will continue to coordinate efforts with the 
National Pollutant Discharge Elimination System (NPDES) program to 
ensure that the regulated community understands their obligations under 
the UIC Program and that any storm water discharges to injection wells 
do not have the potential to endanger USDWs.
    In addition, the UIC program is working closely with other programs 
such as the EPA's Engineering and Analysis Division in the Office of 
Water to collect additional information on industrial operations. The 
Metals Products and Machinery effluent limitations guideline, which was 
proposed last Fall, includes information on the UIC program. Lastly, 
the UIC Program will be working with other offices to develop industry 
specific voluntary consensus standards where appropriate.

E. Prepare for Future Actions

    In the course of our ongoing activities, EPA will continue to work 
with States, regulated entities, environmental organizations, and other 
sources, to collect and evaluate data on Class V wells and their 
potential risks. We will use that information to reevaluate on a 
regular basis the need for additional regulation. If at any point new 
data indicates that a sub-class of Class V wells may pose an 
endangerment, the Agency will develop a plan to collect and analyze 
well sub-class specific information to determine what additional 
regulation may be required. Data collection and further analysis could 
take the form of ground water monitoring, injectate sampling or risk 
assessment modeling.
    In addition, there are some ``emerging'' issues, such as 
pharmaceutical and personal care products (PPCPs), that were not 
identified for inclusion in the Class V Study, but warrant ongoing 
involvement by the UIC Program. The Agency will continue to coordinate 
efforts with the USGS and other researchers doing work related to 
ground water protection. The UIC Program will continue to assess any 
new information that relates to endangerments from Class V injection 
wells.
    Today's determination does not preclude future action under EPA's 
UIC authority if the agency determines that additional regulatory 
action is needed.

IV. Administrative Requirements

A. Administrative Procedure Act

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest, the agency may issue a rule without providing 
prior notice and an opportunity for public comment. EPA is publishing 
several rule changes related to today's final determination. First, EPA 
is removing regulatory text that states that EPA will establish 
regulatory requirements for Class V wells at a later date because EPA 
has now completed its determination of whether such regulatory 
requirements are necessary. As a result, such language is now outdated. 
Second, EPA is correcting minor errors in the existing Class V 
regulations. EPA has determined that there is ``good cause'' for making 
today's rule changes final without prior proposal and opportunity for 
comment because these rule changes have no substantive impact and 
merely correct or replace outdated CFR text. Thus, notice and public 
procedure are unnecessary. EPA finds that this constitutes ``good 
cause'' under 5 U.S.C. 553(b)(B). For the same reasons, EPA is making 
these rule changes effective upon publication. 5 U.S.C. 553(d)(3).

B. Other Administrative Requirements

    Today's rule merely removes outdated CFR text and corrects minor 
errors. Under Executive Order (EO) 12866 (58 FR 51735, October 4, 
1993), this action is not a ``significant regulatory action'' and is 
therefore not subject to review by the Office of Management and Budget. 
Because the Agency has made a ``good cause'' finding that this action 
is not subject to notice-and-comment requirements under the 
Administrative Procedures Act or any other statute in section IV.A., it 
is not subject to the regulatory flexibility provisions of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or to sections 202 or 
205 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). In 
addition, this action does not significantly or uniquely affect small 
governments or impose a significant intergovernmental mandate, as 
described in sections 203 and 204 of UMRA. This rule also does not 
significantly or uniquely affect the communities of tribal governments, 
as specified by Executive Order 13175 (65 FR 67249, November 6, 2000). 
This rule will not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999). This rule also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997) because it is not economically 
significant. Neither is it subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866. This technical correction does not include 
technical standards; thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This action does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq).
    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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that the notice and public procedure 
is impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefor, and established an effective date of June 7, 
2002. EPA will submit a report containing this rule and other 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. This action is not a ``major rule'' 
as defined by 5 U.S.C. section 804(2).

V. References

EPA. 1980a. Consolidated Permit Regulations: RCRA Hazardous Waste; 
SDWA Underground Injection Control; CWA National Pollutant Discharge 
Elimination System; CWA Section 404 Dredge or Fill Programs; and CAA 
Prevention of Significant Deterioration; Final Rule. 45 FR 33290, 
May 19, 1980.
EPA. 1980b. Water Programs; Consolidated Permit Regulations and 
Technical

[[Page 39592]]

Criteria and Standards; State Underground Injection Control 
Programs; Final Rule for Part 146 and Amendments to Part 122. 45 FR 
42472, June 24, 1980.
EPA. 1981. Underground Injection Control Program Criteria and 
Standards; Technical Amendments to Final Regulations. 46 FR 43156, 
Aug. 27, 1981.
EPA. 1982. Underground Injection Control Program Criteria and 
Standards; Final Rule. 47 FR 4992, Feb. 3, 1982.
EPA. 1983a. Underground Injection Control Program; Final Rule. 48 FR 
2938, January 21, 1983.
EPA. 1983b. Environmental Permit Regulations: RCRA Hazardous Waste; 
SDWA Underground Injection Control; CWA National Pollutant Discharge 
Elimination System; CWA Section 404 Dredge or Fill Programs; and CAA 
Prevention of Significant Deterioration; Final Rule. 48 FR 14146, 
Apr. 1, 1983.
EPA. 1984a. Underground Injection Control Program; Federally 
Administered Programs; Final Rule. 49 FR 20138, May 11, 1984.
EPA. 1984b. Underground Injection Control Program: Federally-
Administered Programs; Final Rule. 49 FR 45292, Nov. 15, 1984.
EPA. 1987. Report to Congress: Class V Injection Wells. Office of 
Water. Washington DC. (EPA 570/9-87-006: September 1987).
EPA. 1988. Final Rule; Underground Injection Control Program: 
Hazardous Waste Disposal Injection Restrictions; Amendments to 
Technical Requirements for Class I Hazardous Waste Injection Wells; 
and Additional Monitoring Requirements Applicable to all Class I 
Wells, 53 FR 28118, July 26, 1988.
EPA. 1993. Revisions to the Safe Drinking Water Act. Underground 
Injection Control Regulations; Final and Interim Final Rule and 
Request for Comments. Vol. 58 FR 63890, December 3, 1993
EPA. 1994a. Standards Applicable to Owners and Operators of 
Hazardous Waste Treatment, Storage, and Disposal Facilities, 
Underground Storage Tanks, and Underground Injection Control 
Systems; Financial Assurance; Letter of Credit. 59 FR 29958, June 
10, 1994.
EPA. 1994b. Federal Register: U.S. Environmental Protection Agency 
Indian Tribes; Eligibility for Program Authorization. 59 FR 64339, 
December 14, 1994.
EPA. 1994c. Consent Decree with the Sierra Club. Civil Action No 93-
2644 (D.C. District) August 31, 1994.
EPA. 1995a. National Pollutant Discharge Elimination System and 
Pretreatment Programs; State and Local Assistance Programs; Effluent 
Limitations Guidelines and Standards; Public Water Supply and 
Underground Injection Control Programs: Removal of Legally Obsolete 
or Redundant Rules; Final Rule. 60 FR 33926, June 29, 1995.
EPA. 1995b. Class V Wells--Regulatory Determination and Minor 
Revisions to the Underground Injection Control Regulations; 
Technical Correction to the Regulations for Class I Wells; Proposed 
Rule. 60 FR 44652, August 28, 1995.
EPA. 1997. Modified Consent Decree with the Sierra Club. Civil 
Action No 93-2644 (D.C. District) January 28, 1997.
EPA. 1998a. Class V Injection Wells Underground Injection Control 
Regulations, Revisions; Proposed Rule. 63 FR 40586, July 29, 1998.
EPA. 1998b. Shallow Disposal Systems are Everyone's Business. Video. 
USEPA Publication (EPA 908-V-98-001).
EPA. 1999a. The Class V Underground Injection Control Study. (EPA/
816-R-99-014: September 1999). http://www.epa.gov/safewater/uic/
cl5study.html#volumes.
EPA. 1999b. Revisions to the Underground Injection Control 
Regulations for Class V Injection Wells--Notice; Proposed Rule. 64 
FR 27741, May 21, 1999.
EPA. 1999c. Underground Injection Control Regulations for Class V 
Injection Wells, Revision; Final Rule. 64 FR 68546, December 7, 
1999.
EPA. 2000. Small Entity Compliance Guide: How the New Motor Vehicle 
Waste Disposal Well Rule Affects Your Business. Office of Water. 33 
pp. (EPA 816-R-00-018: November 2000). http://www.epa.gov/sbrefa/
documents/2778secg.pdf.
EPA. 2001a. Underground Injection Control Program--Notice of 
Proposed Determination for Class V Wells. 66 FR 22971, May 7, 2001.
EPA. 2001b. Safe Drinking Water Act: Underground Injection Control 
(UIC) Program: Protecting Public Health and Drinking Water 
Resources. Office of Water. Poster. (EPA 816-H-01-003 [EPA 816-H-02-
005 in Spanish]: August 2001).
EPA. 2002a. Protecting Public Health Through Underground Injection 
Control. EPA 816-K-02-001.
EPA. 2002b. Background Document--Comment and Response for Notice of 
Proposed Determinaton on Class V Wells. Water Docket
EPA. (No Date) The Problem with Shallow Disposal Systems. Video. EPA 
UIC Program.
EPA. (No Date) Class V Well Initiative. http://www.epa.gov/
safewater/uic/classv.html

List of Subjects 40 CFR Part 144

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Indians-lands, 
Reporting and recordkeeping requirements, Surety bonds, Water supply.

    Dated: May 31, 2002.
G. Tracy Mehan III,
Assistant Administrator of Water.

    For the reasons set out in the preamble, title 40 chapter I of the 
Code of Federal Regulations is amended to read as follows:

PART 144--UNDERGROUND INJECTION CONTROL PROGRAM

    1. The authority citation for part 144 continues to read as 
follows:

    Authority: Safe Drinking Water Act, 42 U.S.C. 300f et seq.; 
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.


    2. Section 144.1 is amended by revising paragraph (g) introductory 
text to read as follows:


Sec. 144.1  Purpose and scope of part 144.

* * * * *
    (g) Scope of the permit or rule requirement. The UIC Permit Program 
regulates underground injections by five classes of wells (see 
definition of ``well injection,'' Sec. 144.3). The five classes of 
wells are set forth in Sec. 144.6. All owners or operators of these 
injection wells must be authorized either by permit or rule by the 
Director. In carrying out the mandate of the SDWA, this subpart 
provides that no injection shall be authorized by permit or rule if it 
results in the movement of fluid containing any contaminant into 
Underground Sources of Drinking Water (USDWs-see Sec. 144.3 for 
definition), if the presence of that contaminant may cause a violation 
of any primary drinking water regulation under 40 CFR part 141 or may 
adversely affect the health of persons (Sec. 144.12). Existing Class IV 
wells which inject hazardous waste directly into an underground source 
of drinking water are to be eliminated over a period of six months and 
new such Class IV wells are to be prohibited (Sec. 144.13). For Class V 
wells, if remedial action appears necessary, a permit may be required 
(Sec. 144.25) or the Director must require remedial action or closure 
by order (Sec. 144.12(c)). During UIC Program development, the Director 
may identify aquifers and portions of aquifers which are actual or 
potential sources of drinking water. This will provide an aid to the 
Director in carrying out his or her duty to protect all USDWs. An 
aquifer is a USDW if it fits the definition, even if it has not been 
``identified.'' The Director may also designate ``exempted aquifers'' 
using the criteria in 40 CFR 146.4. Such aquifers are those which would 
otherwise qualify as ``underground sources of drinking water'' to be 
protected, but which have no real potential to be used as drinking 
water sources. Therefore, they are not USDWs. No aquifer is an 
``exempted aquifer'' until it has been affirmatively designated under 
the procedures in Sec. 144.7. Aquifers which do not fit the definition 
of ``underground source of drinking water'' are not ``exempted

[[Page 39593]]

aquifers.'' They are simply not subject to the special protection 
afforded USDWs.
* * * * *

    3. Section 144.13 is amended by revising paragraph (c) to read as 
follows:


Sec. 144.13  Prohibition of Class IV wells.

* * * * *
    (c) Wells used to inject contaminated ground water that has been 
treated and is being reinjected into the same formation from which it 
was drawn are not prohibited by this section if such injection is 
approved by EPA, or a State, pursuant to provisions for cleanup of 
releases under the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601-9657, or pursuant to 
requirements and provisions under the Resource Conservation and 
Recovery Act (RCRA), 42 U.S.C. 6901 through 6987.
* * * * *

    4. Section 144.26 is amended by revising the introductory text and 
removing the text after the heading in paragraph (d) introductory text 
to read as follows:


Sec. 144.26  Inventory requirements.

    The owner or operator of an injection well which is authorized by 
rule under this subpart shall submit inventory information to the 
Director. Such an owner or operator is prohibited from injecting into 
the well upon failure to submit inventory information for the well 
within the time frame specified in paragraph (d) of this section.
* * * * *
    (d) Deadlines. (1) * * *
* * * * *

    5. Section 144.81 is amended by revising paragraph (16) to read as 
follows:


Sec. 144.81  Does this subpart apply to me?

* * * * *
    (16) Motor vehicle waste disposal wells that receive or have 
received fluids from vehicular repair or maintenance activities, such 
as an auto body repair shop, automotive repair shop, new and used car 
dealership, specialty repair shop (e.g., transmission and muffler 
repair shop), or any facility that does any vehicular repair work. 
Fluids disposed in these wells may contain organic and inorganic 
chemicals in concentrations that exceed the maximum contaminant levels 
(MCLs) established by the primary drinking water regulations (see 40 
CFR part 141). These fluids also may include waste petroleum products 
and may contain contaminants, such as heavy metals and volatile organic 
compounds, which pose risks to human health.


Sec. 144.87  [Amended]

    6. Section 144.87 is amended by adding and reserving paragraph (g).

[FR Doc. 02-14368 Filed 6-6-02; 8:45 am]
BILLING CODE 6560-50-P