UNDERGROUND INJECTION CONTROL PROGRAM

ATTORNEY GENERAL'S STATEMENT

I hereby certify, pursuant to my authority as Attorney General and Reporter for the State of

Tennessee (T.C.A. § 8-6-109) and in accordance with the provisions of Part C of the Safe Drinking

Water Act (SDW A), 42 U. S. C. § 300f, et seq., as amended, and 40 CFR 145.23(a), that in my

opinion the laws of the State of Tennessee provide adequate authority to apply for, assume and carry

out the program set forth in the Program Description submitted by the Division of Water Supply,

Tennessee Department of Environment and Conservation. The specific authorities provided are

contained in the statutes or regulations that are lawfully adopted at the time this Statement is

approved and signed, and which are in effect now, as specified below.

Furthermore, I certify that the State of Tennessee has not enacted any environmental audit

privilege and/or immunity laws.

1. PROHffilTION OF UNAUTHORIZED INJECTION

State statutes and regulations prohibit. any underground injection unless authorized by permit

or rule. All classes of injection wells (Classes I-V) recognized by statute and regulation by the

Environmental Protection Agency are covered under Tennessee's Underground Injection (~ontrol

Regulations.

Federal Authority: SDW A Section 1421(b)(1)(A), 42 U.S.C. § 300h (b)l(A) and 40 C;FR §§

144.6 and 144.11.

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101, et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rules 1200-4-6-.03, 1200-4-6-.06 and 1200-4-6-.07 adopted by the Tennessee Water

Quality Control Board on October 24,2000, became effective on June 25,2001. Tenn. Code Ann.

§ 69-3-105 gives authority to the Board to adopt these regulations.

Rules 1200-4-6-.03 and 1200-4-6-.07 specifically prohibit construction, use or operation of

injection wells, or conversion into an injection well, unless authorized by permit or rule. Rule 1200-

4-6-.03(3) expressly exempts the following activities:

(a) Operation of domestic subsurface fluid distribution systems

disposing exclusively of sanitary waste serving less than 20

persons;
(b) Operation of facilities injecting natural gas for the purpose of

storage; and

(c) Operation of wastewater treatment ponds or lagoons permitted

to discharge to surface waters under the National Pollutant

Discharge Elimination System (NPDES) permitting program.

Rule 1200-4-6-.06 contains the classification ofirijection wells (Classes I-V) and tracks the

federal classification scheme in 40 C.F .R. § 144.6.

Remarks of the Attome~ GeneIJ!l

None.

2. PROHmITION OF ENDANGERING DRINKING WATER SOURCES

a. State statutes and regulations, which provide authorization of underground injection by

permit, require that the applicant for a permit to inject must satisfy the State that the underground

injection will not endanger drinking water sources.

Federal Authority: SDW A Section 1421(b)(1)(B)(i), 42 U.S.C. § 300h (b) 1 (B)(i).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rule 1200-4-6-.04 adopted by the Tennessee Water Quality Control Board on October 24,

2000, became effective on June 25,2001. Tenn. Code Ann. § 69-3-105 gives authority to the Board

to adopt these regulations.

Rule 1200-4-6-.04 ensures that the State shall "protect from pollution" any underground

source of drinking water (USDW) by requiring that permits or authorizations by rule contain terms

and conditions reasonably necessary to protect underground sources of drinking water. All classes

of injection wells recognized by statute and regulation by EP A are covered under Tennessee's

Underground Injection Control Regulations at Rule 1220-4-6-.06, which was adopted by the

Tennessee Water Quality Control Board on October 24,2000, and became effective on June 25,

2001.

2
Remarks of the Attomex General

The definition of a USDW in Tennessee's Underground Injection Control Regulations tracks

the EP A definition in 40 C.F .R. § 144.3 and specifically includes an aquifer containing less than

,:, 10,000 mg/l total dissolved solids. While there is no federal law that comprehensively ad'dresses

. ground water, Tennessee has actually promulgated separate rules concerning ground water

( , classification and criteria under Tennessee's Water Quality Control Act. These ground water rules

classify as "unusable" ground water that has TDS in excess of 3,000 ppm. We understand that the

USDWdefinition is applicable to UIC activities only, as made clear in Rule 1200-4-6-.02.

b. State statutes and regulations, which provide authorization of underground injection by rule,

require that the applicant for such authorization to inject must satisfy the State that the underground

injection will not endanger drinking water sources, within the meaning of SDW A Section

1421(d)(2).

Federal Authority: SDW A Section 1.421 (b)(l)(B)(ii), 42 U.S.C. § 300h (b) 1 (B)(ii).

Citation of State Laws and Regulations

~ofEnactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rule 1200-4-6-.04 adopted by the Tennessee Water Quality Control Board on October 24,

2000, became effective on June 25,2001. Tenn. Code Ann. § 69-3-105 gives authority to the Board

to adopt these regulations.

Rule 1200-4-6-.04 ensures that the State shall "protect from pollution" any underground

source of drinking water (USDW) by requiring that permits or authorizations by rule contain terms

and conditions reasonably necessary to protect underground sources of drinking water. All classes

of injection wells recognized by statute and regulation by EPA are covered under Tennessee's

Underground Injection Control Regulations at Rule 1200-4-6-.06, which was adopted by the

Tennessee Water Quality Control Board on October 24,2000, and became effective on June 25,

2001.

Remarks of the Attornex General

The definition of a USDW in Tennessee's Underground Injection Control Regulations tracks

the EPA definition in 40 C.F.R. §144.3 and specifically includes an aquifer containing less than

10,000 mg/l total dissolved solids. While there is no federal law that comprehensively addresses

3
ground water, Tennessee has actually promulgated separate rules concerning ground water

classification and criteria under Tennessee's Water Quality Control Act. These ground water rules

classify as "unusable" ground water that has TDS in excess of3,000 ppm. We understand that the

USDW definition is applicable to UIC activities only, as made clear in Rule 1200-4-6-.02.

3. PROHillITION OF MOVEMENT OF FLUID INTO AN USDW

a. State law prohibits any authorization of an underground injection by pelmit or rule that.

causes or allows movement of fluid into an USDW for Class I, II or III wells.

Federal Authority: 40 C.F.R. § 144.12(a).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rule 1200-4-6-.08 (13) adopted by the Tennessee Water Quality Control Board on October

24,2000, became effective on June 25,2001. Tenn. Code Ann. § 69-3-105 gives authority to the

Board to adopt these regulations.

Rule 1200-4-6-.08 (13) requires that all UIC permits contain conditions necessary to fulfill

the purposes of Tennessee's Water Quality Control Act and that such conditions be set at levels to

prevent adverse effects to person using the ground water resource. Rule 1220-4-6-.08 (13)(q)

specifically addresses permits for Class I, II and III wells and requires that they include conditions

concerning plugging and abandonm~nt to prevent the movement of fluids into or between USDW.

Remarks of the Attorney General

None.

b. State law prohibits any authorization of an underground injection by permit or rule that

causes or allows movement of fluid containing any contaminant into a USDW for Class N or V

wells, if the presence of the contaminant may cause a violation of any primary drinking water

regulation or otherwise adversely affect the health of persons.

Federal Authority: 40 C.F.R. § 144. 12(a).

4
Citation of State Laws and Regulations

Date of Enactment and AdoQtion

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may af(ect the waters of the state. Tennessee Underground Injection Control Regulations, as

amende~Rule 1200-4-6-.08 (13) adopted by the Tennessee Water Quality Control Board on October

~:~~~~~became effective on June 25, 2001. Tenn. Code Ann. § 69-3-105 gives authority to the

,__JadOPlthese regulations.

, Rule 1200-4-6-.08 (13) requires that all UIC permits contain conditions necessary to fulfill

the purposes of Tennessee's Water Quality Control Act and that such conditions be set at levels to

prevent adverse effects to persons using the ground water resource. Rule 1220-4-6-.08 (13)(q)

specifically addresses permits for Class V wells, along with Classes I, II and III, and requires that

they include conditions concerning plugging and abandonment to prevent the movement of fluids

into or between formations containing a USDW.

Remarks of the Attorne): G~neral

Class N wells are no longer authorized in Tennessee. Existing Class N wells are to begin

a closure process within six months after the effective date of the amendments to Tennessee

Underground Injection Control Regulations (June 25,2001). Rule 1200-4-6-.13.

c. State law requires corrective action if any movement of contaminants into a USDW is

occurring from any Class I, II or III well.

Federal Authority: 40 C.F.R. §§ 144. 12(b) and 144.55.

Citation of State Laws and Regylations

Date of Enactment and AdoQtion

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rules 1200-4-6-.09(5), 1200-4-6-.10(3)(d).2, 1200-4-6-.11(1)(b).13 and (2)(a) and (b), and

1200-4-6-.12(2)(a) adopted by the Tennessee Water Quality Control Board on October 24,2000,

became effective on June 25, 2001. Tenn. Code Ann. § 69-3-105 gives authority to the Board to

adopt these regulations.

5
Rule 1200-4-6-.09(5) contains corrective action standards for all classes of wells. The

following rules contain design criteria to prevent movement of fluids into or between formation( s)

containing a USDW for Class I, II and ill wells respectively: 1200-4-6-.10(3)(d).2;1200-4-6-.11

(2)(a) and (b); and 1200-4-6-. 12(2)(a). And Rule 1200-4-6-.11(1)(b).13 sets out permit requirements

for Class II wells specifically requesting any contingency plans to prevent migration of

cont~inating fluids into a USDW.

Remarks of the Attorne~ General

ne.

d. Under state law, if it is determined that a Class V well may cause a violation of drinking

water regulations or adversely affect the health of persons, the State shall take such actions as

necessary to prevent the adverse effect, including those set out in 40 C.F.R. 144.12(c).

Federal Authority: 40 C.F.R. §§ 144.12(c) and (d).

Citation of State Laws and Re~ulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rules 1200-4-6-. 09(5) and 1200-4-6-.14 adopted by the Tennessee Water Quality Control

Board on October 24, 2000, became effective on June 25,2001. Tenn. Code Ann. § 69-3-105 gives

authority to the Board to adopt these regulations.

Rule 1200-4-6-.09(5) contains corrective action standards for all classes of wells. Rule 1200-

4-6-.14(5), which specifically addresses Class V wells, essentially adopts verbatim 40 C.F.R. §

144. 12(c).

Remarks of the Attorne~ General

None.

4. AUTHORITY TO ISSUE PERMITS OR RULE

State statutes and regulations that authorize the issuance of permits and promulgation of

rules for underground injection are not less stringent than the regulations of the Environmental

Protection Agency.

6
Federal Authority: SDW A Section 1422(b)(1)(A)(i), 42 U.S.C. § 300h (b) 1 (A) and 40 CFR

Parts 144, 145, 124, and 146.

Citation of State Laws and Regulations

Date of Enactment and Adoption

\:rennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contain~ provisions governing the permitting of underground placement of fluids or substances that

may af ect the waters of the state. Tennessee Underground Injection Control Regulations, as

amend d, Rules 1200-4-6-.07, 1200-4-6-.08 and 1200-4-6-.11 adopted by the Tennessee Water

Qua. Control Board on October 24,2000, became effective on June 25,2001. Tenn. Code Ann.

69-3-105 gives authority to the Board to adopt these regulations.

Rule 1200-4-6-.07 mandates that all injection wells or activities must be authorized by permit

or rule. Rule 1200-4-6-.08 contains the requirements for the contents of permit applications and

it tracks the requirements in 40 C.F.R. § 144.31. Rule 1200-4-6-.11(1)(f)-(h) provides for the

issuance of area permits for Class n wells and adopts verbatim the requirements in 40 C.F .R.

§144.33.

Remarks of the Attomex General

None.

5. AUTHORITY TO CONDITION AUTHORIZED INJECTION ACTIVITIES

State statutes and regulations condition permits in accordance with conditions applicable to

all permits, including conditions for transfer, modification and termination.

Federal Authority: 40CFR§§ 145.11(a)(1)-(a)(17), 144.51 and 144.52.

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rule 1200-4-6-.08 adopted by the Tennessee Water Quality Control Board on October

24,2000, became effective on June 25,2001. Tenn. Code Ann. § 69-3-105 gives authority to the

Board to adopt these regulations.

Rule 1200-4-6-.08 sets out the permit conditions for all classes ofUIC wells. Subsection

7
.08(13) specifically contains the requirements for all permits and this subsection generally tracks

the requirements in 40 C.F.R. § 144.51. Provisions governing conditions for permit transfer,

modification and revocation are found in Rules 1200-4-6-.08(6), (8), (9) and (10) respectively.

Tenn. Code Ann. § 69-3-108 of the Water Quality Control Act provides authority for the

Department to issue UIC permits and sets out additional permit requirements.

Remarks of the Attornex General

None.

6. AUTHORITY TO IMPOSE COMPLIANCE EVALUATION REQUIREMENTS

a. State statutes and regulations provide authority for entry in and onto a site or facility for the

purpose of inspections.

Federal Authority: SDWA Section 1422(b)(I)(C), 42 U.S.C. § 300h (b)I(C) and 40 CFR §

145.12.

Citation of State Laws and Regulations

Date of Enactment and AdoQtion

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances that

may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rule 1200-4-6-.08(13)(i) adopted by the Tennessee Water Quality Control Board on

October 24,2000, became effective on June 25,2001. Tenn. Code Ann. § 69-3-105 gives authority

to the Board to adopt these regulations.

Rule 1200-4-6-.08(13)(i) specifically provides authority for Department personnel to enter

upon and inspect any regulated facility or equipment, as well as to copy records required under the

conditions of the permit for all classes of wells. The same authority is found in Tenn. Code Ann.

§ 69-3-107(6).

Remarks of the Attornex General

None.

b. State statutes and regulations mandate inspections of facilities and activities under the UIC

program and require persons subject to authorization by permit or rule to conduct facility

monitoring and reporting in the manner prescribed by the Commissioner.

8
Federal Authority: SDWA Section 1422(b)(l)(C), 42 U.S.C. § 300h (b)l(C) and 40 CFR §§

146.13, 146.23, and 146.33.

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rules 1 200-4-6-.08(1 3)(i) - (1) adopted by the Tennessee Water Quality Control Board

on October 24,2000, became effective on June 25, 2001. Tenn. Code Ann. § 69-3-105 gives

authority to the Board to adopt these regulations.

Rule 1200-4-6-.08(13)(i) specifically provides authority for Department personnel to enter

upon and inspect any regulated facility or equipment, as well as to copy records required under the

conditions of the permit for all classes of wells. The same authority is found in Tenn. Code Ann.

§ 69-3-107(6).

Rule 1200-4-6-.08(13)(j) requires the permitee to monitor injection fluids, injection

operations and ground water supplies in accordance with the requirements for each class of well

set out in the regulations. Subsection .08(13)(k) requires all reports and information submitted to

the Department to be signed and certified. Subsection .08(13)(1) sets out specific monitoring

requirements for permitees, including notice of planned changes, anticipated noncompliance and

compliance schedules.

Remarks of the Attorne): General

, None.

c. State statutes and regulations require permittees and persons subject to the UIC regulations

to keep all records and make all reports required by the Department.

Federal Authority: SDW A Section 1422(b)(l)(C), 42 U.S.C. § 300h (b)l(C) and 40 CFR §§

144.51(j)(2), 144.51 and 145.12.

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tennessee Underground Injection Control Regulations, as

amended, Rules 1200-4-6-.08(13)(j) - (1) adopted by the Tennessee Water Quality Control Board

9
on October 24,2000, became effective on June 25,2001. Tenn. Code Ann. § 69-3-105 gives

authority to the Board to adopt these regulations.

Rule 1200-4-6-.08(13)(j) requires the permittee to monitor injection fluids, injection

operations and ground water supplies in accordance with the requirements for each class of well

set out in the regulations. This subsection also requires the permittee to retain records of all

monitoring information, including calibration and maintenance records and the nature and

composition of all injected fluids until three years after the completion of any plugging and

abandonment procedures. Subsection .08(13)(1) sets out specific monitoring requirements for

permitees, including notice of planned changes, anticipated noncompliance and compliance

schedules.

Remarks of the Attorne): General

None.

7. AUTHORITY FOR ENFORCEMENT REQUIREMENTS

a. State law authorizes the Department to initiate proceedings for injunctive relief against any

person who engages in any unlawful injection that endangers or causes damage to the public health

or the environment.

Federal Authority: 40 C.F.R. § 145.13(a)(I).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-117 gives authority to the

Department to initiate proceedings in state court for injunctive relief against any person who has

violated or is about to violate the Act, conditions of a permit, the Board's regulations governing

underground injection control, or orders of the Board or the Department. Tenn. Code Ann. § 69-3-

112 also authorizes district attorneys general throughout the state to assist the Department in

criminally prosecuting persons who violate the Act.

Remarks of the Attorne): General

None.

10
b. State law authorizes the Department to initiate proceedings in court for injunctive relief

against any person who engages in any unlawful injection in order to abate any threatened or

continuing violation of any program requirement or permit condition, without the necessity of

prior revocation of a permit.

Federal Authority: 40 C.F.R. § 145.13(a)(2).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-117 gives authority to the

Department to initiate proceedings in state court for injunctive relief against any person who has

violated or is about. to violate the Act, conditions of a permit, the Board's regulations governing

underground injection control, or orders of the Board or the Department. Tenn. Code Ann. § 69-3-

112 also authorizes district attorneys general throughout the state to assist the Department in

criminally prosecuting persons who violate the Act.

Remarks of the Attornex General

None.

c. State law authorizes the Department to initiate proceedings for civil penalties and/or

criminal remedies against any person who engages in any unlawful injection.

Federal Authority: 40 C.F.R. § 145.13(a)(3).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-115 gives authority to the

Department to initiate either administrative proceedings or proceedings in state court for the

assessment of civil penalties of up to $10,000.00 per day against any person who has violated or

is about to violate the Act, conditions of a permit, the Board's regulations governing underground

injection control, or orders of the Board or the Department. Tenn. Code Ann. § 69-3-112 also

authorizes district attorneys general throughout the state to assist the Department in criminally

prosecuting persons who violate the Act. Tenn. Code Ann. § 69-3-115( c) authorizes criminal

11
fines of up to $25,000.00 for willful violations.

Remarks of the Attornex General

None.

d. State law authorizes the Department to initiate proceedings for civil penalties that are

appropriate to the violation against any person who engages in any unlawful injection.

Federal Authority: 40 C.F.R. § 145.13(c).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-115 gives authority to the

Department to initiate either administrative proceedings or proceedings in state court for the

assessment of civil penalties of up to $10,000.00 per day against any person who has violated or

is about to violate the Act, conditions of a permit, the Board's regulations governing underground

injection control, or orders of the Board or the Department. The same statute sets out the following

factors that may be considered in the assessment of a civil penalty:

(A) Economic deterrence to the illegal activity;

(B) Damages to the state (e.g., compensation for loss of wildlife,

aquatic life, plus expenses and costs);

(C) Cause of the discharge or violation;

(D) Severity and effect of discharge on receiving waters;

(E) Effectiveness of action taken to cease violation;

(F) Technical and economic reasonableness of reducing discharge;

(G) Social and economic value of discharge source; and

(H) Economic benefit gained by violator.

Remarks of the Attornex General

None.

e. State law authorizes the Department to provide for public participation in the enforcement

process by allowing interested parties to intervene in civil or administrative actions against any

person who engages in any unlawful injection that causes or may cause a condition of pollution

12
to the waters of the state.

Federal Authority: 40 C.F.R. § 145.13(d)(2).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-115(e)(2) authorizes private

citizens to intervene in civil enforcement proceedings in state court on the grounds that the

remedy(ies) provided is inadequate or based on erroneously stated facts. Intervention in a state

court proceeding may also be permitted under Rule 24 of the Tennessee Rules of Civil Procedure.

And Tennessee's Uniform Administrative Procedures Act contains provisions at Tenn. Code Ann.

§ 4-5-310 for intervention in administrative enforcement proceedings.

Remarks of the Attorney General

Public participation in administrative enforcement proceedings may be authorized under

Tenn. Code Ann. § 4-5-310 only when a Departmental Order is appealed for a contested case

proceeding in the presence of an administrative judge or hearing officer. However, in order to

meet the requirements of40 C.F.R. § 145.13(d)(2), the department has committed through the

memorandum executed by the General Counsel included in the Primacy Application that in the

UIC program it will (1) not oppose intervention by any citizen when permissive intervention may

be authorized by statute, rule or regulation; and (2) publish notice of and provide at least 30 days

public comment on any proposed settlement of a state enforcement action. The department does

have the legal authority to enter into this commitment under Tenn. Code Ann. §§ 69-3-107(7) and

(8).

8. AUTHORITY FOR PUBLIC PARTICIPATION IN PERMIT PROCESSING

State statutes and regulations provide for public participation in permit processing, including

public notice and opportunity for public hearing on permit applications and permit conditions.

Federal Authority: 40 C.F.R. § 145.11(a)(18) - (21).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

13
that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.08(7), adopted by the Board on October 24,

2000, became effective on June 25, 2001.

Rule 1200-4-6-.08(7) provides for public notice of draft permits, public comment, requests

for public hearings, consideration of comments and responses thereto, and notice of final permit

decision to applicants and persons submitting written comments.

Remarks of the Attornex General

None.

9. AUTHORITY TO APPLY TECHNICAL CRITERIA AND STANDARDS

FOR CONTROL OF UNDERGROUND INJECTION NOT LESS STRINGENT

THAN FEDERAL REQUIREMENTS

State law sets out criteria and standards for underground placement of fluids or substances

that may affect the waters of the state and these standards are no less stringent than federal

requirements.

Federal Authority: SDW A Section 1421(a)(1) and (b)(l), 42 U.S.C. § 300h (a)(l) and (b)(l)

and 40 C.F.R. Part 146.

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.01 through 1200-4-6-.19, adopted by the Board

on October 24,2000, became effective on June 25, 2001. These regulations correspond with the

following topics:

1200-4-6-.01 Authority and Purpose 1200-4-6-.11 Class II Wells

1200-4-6-.02 Definitions 1200-4-6-.12 Class III Wells

1200-4-6-.03 Injection Prohibited 1200-4-6-.13 Class IV Wells

1200-4-6-.04 Prevention of Pollution 1200-4-6-.14 Class V Wells

14
1200-4-6-.05 Injected Fluid Standards 1200-4-6-.15 Fees for Class I Wells

1200-4-6-.06 Classification of Wells 1200-4-6-.16 Fees for Class II Wells

1200-4-6-.07 Pennit Required 1200-4-6-.17 Fees for Class III Wells

1200-4-6-.08 Authorization by Pennit 1200-4-6-.18 Fees for Class V Wells

for Wells Not Authorized

by Rule

1200-4-6-.09 General Standards and 1200-4-6-.19 Bonds Required for

Methods Pennitted Wells

1200-4-6-.10 Class I Wells

Remarks of the Attornex General

None.

10. CLASSIFICATION OF INJECTION WELLS

a. State law regulates all classes of injection wells (Classes I-V) recognized by statute and

regulation by the Environmental Protection Agency.

Federal Authority: SDWA Section 1421(a)(I) and (b)(I), 42 U.S.C. § 300h (a)(I) and (b)(I)

and 40 C.F.R. § 144.6.

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the pennitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.06, 1200-4-6-.10 through 1200-4-6-.14

adopted by the Board on October 24,2000, became effective on June 25, 2001.

Rule 1200-4-6-.06 sets out the five classifications of injection wells. Rule 1200-4-6-10

governs provisions for Class I wells. Rule 1200-4-6-11 governs provisions for Class II wells.

Rule 1200-4-6-12 governs provisions for Class III wells. Rule 1200-4-6-13 governs provisions

for Class IV wells. Rule 1200-4-6-14 governs provisions for Class V wells.

15
Remarks of the Attorne~ General

Class N wells are no longer authorized in Tennessee. Existing Class N wells are to begin

a closure process within six months after the effective date of the amendments to Tennessee

Underground Injection Control Regulations (June 25, 2001). Rule 1200-4-6-.13.

b. If the State program is not applicable to one or more classes of inj ection wells because there

are no such wells within the State, the State: (1) must have authority explicitly banning new

injections for that class not covered by the state program, or certify that such new injections cannot

occur legally until the State has developed an approved program for that class; and (2) demonstrate

that there are no underground injections for those one or more classes of wells within the State.

Federal Authority: SDWA Section 1421(a)(I) and (b)(I), 42 U.S.C. § 300h (a)(I) and (b)(I)

and 40 C.F.R. § 145.21(d).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.06, 1200-4-6-.10 through 1200-4-6-.14

adopted by the Board on October 24, 2000, became effective on June 25, 2001.

Rule 1200-4-6-.06 sets out the five classifications of injection wells. Rule 1200-4-6-10

governs provisions for Class I wells. Rule 1200-4-6-11 governs provisions for Class II wells.

Rule 1200-4-6-12 governs provisions for Class III wells. Rule 1200-4-6-13 governs provisions

for Class N wells. Rule 1200-4-6-14 governs provisions for Class V wells.

Remarks of the Attorne~ General

None.

11. ELIMINATION OF CERTAIN CLASS N WELLS

a. State law prohibits the construction of any new Class N well for the injection of hazardous

16
waste directly into an underground source of drinking water (USDW).

Federal Authority: 40 C.F.R. § 144.13(a)(I).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.06 and 1200-4-6-.13 adopted by the Board on

October 24,2000, became effective on June 25,2001.

Rule 1200-4-6-.06 sets out the five classifications of injection wells. Rule 1200-4-6-13

governs provisions for Class IV wells and subsection (1) expressly prohibits construction or

operation of any well used for disposal of hazardous or radioactive waste into a USDW.

Remarks of the Attorne~ General

Class IV wells are no longer authorized in Tennessee. Existing Class IV wells are to begin

a closure process within six months after the effective date of the amendments to Tennessee

Underground Injection Control Regulations (June 25,2001). Rule 1200-4-6-.13.

b. State law prohibits the injection of hazardous waste directly into a USDW through a Class

; IV well that was not in operation before July 24, 1980 (effective date of 40 C.F .R. Part 146).

Federal Authority: 40 C.F.R. § 144.13(a)(2).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.06 and 1200-4-6-.13 adopted by the Board on

October 24,2000, became effective on June 25,2001.

Rule 1200-4-6-.06 sets out the five classifications of injection wells. Rule 1200-4-6-.13

17
governs provisions for Class N wells and subsection (1) expressly prohibits construction or

operation of any well used for disposal of hazardous or radioactive waste into a USDW.

Remarks of the Attorne): General

Class N wells are no longer authorized in Tennessee. Existing Class N wells are to begin

a closure process within six months after the effective date of the amendments to Tennessee

Underground Injection Control Regulations (June 25, 2001). Rule 1200-4-6-.13.

c. State law prohibits any increase in the amount of hazardous waste or change in type of

hazardous waste injected into a well injecting hazardous waste directly into a USDW.

Federal Authority: 40 C.F.R. § 144.13(a)(4).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.06 and 1200-4-6-.13 adopted by the Board on

October 24,2000, became effective on June 25,2001.

Rule 1200-4-6-.06 sets out the five classifications of injection wells. Rule 1200-4-6-.13

governs provisions for Class N wells and subsection (1) expressly prohibits construction or

operation of any well used for disposal of hazardous or radioactive waste into a USDW.

Remarks of the Attorne): General

Class N wells are no longer authorized in Tennessee. Existing Class N wells are to begin

a closure process within six months after the effective date of the amendments to Tennessee

Underground Injection Control Regulations (June 25,2001). Rule 1200-4-6-.13.

d. State law prohibits the operation of any Class N well injecting hazardous waste directly

into a USDW after six (6) months following approval of any UlC program for the State.

18
Federal Authority: 40 C.F.R. §§ 144.13(a)(3), 144.14, and 145.11(a)(26).

Citation of State Laws and Regulations

Date of Enactment and Ado~tion

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.06 and 1200-4-6-.13 adopted by the Board on

October 24, 2000, became effective on June 25, 2001.

Rule 1200-4-6-.06 sets out the five classifications of injection wells. Rule 1200-4-6-.13

governs provisions for Class IV wells and subsection (1) expressly prohibits construction or

operation of any well used for disposal of hazardous or radioactive waste into a USDW.

Subsection (2) of the same rule requires closure of any existing Class IV wells within six months

after the effective date of the amendments to Tennessee Underground Injection Control

Regulations (June 25, 2001). Rule 1200-4-6-.13.

Remarks of the Attorne~ General

None.

e. State law requires owners or operators of hazardous waste management facilities and all

generators of hazardous waste to comply with the requirements of 40 C.F.R. § 144.14 governing

wells injecting hazardous waste.

Federal Authority: 40 C.F.R. § 144.14.

Citation of State Laws and Regulations

Date of Enactment and Ado~tion

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of :underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

offluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.06 and 1200-4-6-.13 adopted by the Board on

October 24,2000, became effective on June 25,2001.

19
Rule 1200-4-6-.06 sets out the five classifications of injection wells. Rule 1200-4-6-.13

governs provisions for Class IV wells and subsection (1) expressly prohibits construction or

operation of any well used for disposal of hazardous or radioactive waste into a USDW.

Subsection (2) of the same rule requires closure of any existing Class IV wells within six months

after the effective date of the amendments to Tennessee Underground Injection Control

Regulations (June 25,2001). Rule 1200-4-6-.13.

Remarks of the Attorne~ General

None.

12. AUTHORITY TO illENTIFY AQUIFERS THAT

ARE USDWs AND TO EXEMPT CERTAIN AQUIFERS

State law identifies the types of aquifers that are underground sources of drinking water

(USDW) and exempts certain aquifers.

Federal Authority: 40 C.F.R. §§ 144.3, 144.7, and 145.11(a)(25).

Citation of State Laws and Regylations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tennessee Underground Injection

Control Regulations, as amended, Rules 1200-4-6-.02 adopted by the Board on October 24, 2000,

became effective on June 25, 2001.

Rule 1200-4-6-.02(50) contains a definition of underground source of drinking water that

directly parallels the definition of a USDW in 40 C.F.R. § 144.3. This definition contains an

exemption for any aquifer that has been designated by the Department as a Class II injection zone

in connection with oil or natural gas production.

Remarks of the Attorne~ General

The definition ofa USDW in Tennessee's Underground Injection Control Regulations tracks

the EP A definition in 40 C.F .R. 144.3 and specifically includes an aquifer containing less than

10,000 mg/l total dissolved solids. While there is no federal law that comprehensively addresses

ground water, Tennessee has actually promulgated separate rules concerning ground water

20

.
classification and criteria under Tennessee's Water Quality Control Act. These ground water rules

classify as "unusable" ground water that has TDS in excess of 3,000 ppm. We understand that the

USDW definition is applicable to UIC activities only, as made clear in Rule 1200-4-6-.02.

13. AUTHORITY OVER FEDERAL AGENCIES AND

PERSONS OPERATING ON FEDERALLY OWNED OR LEASED PROPERTY

State law applies to underground injection by federal agencies and to any underground

injection by any other person whether or not occurring on property owned or leased by the United

States.

Federal Authority: SDW A Section 1421(b)(l)(D), 42 U.S.C. § 300h (b)(I)(D) and Section

1447(b), 42U.S.C. § 300j-6(b).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn.. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Neither the Water Quality Control

Act nor Tennessee's Underground Injection Control Regulations, as amended and adopted by the

Board on October 24,2000 (effective on June 25, 2001), exempt federal facilities. The definition

of "person" in the Water Quality Control Act at Tenn. Code Ann. § 69-3-103(20) includes federal

agencies and officers thereof.

Remarks of the Attornex General

None.

14. STATE AUTHORITY OVER INDIAN LANDS

Whenever a State asserts authority over activities on Indian lands, the State authority must

demonstrate it is able to regulate those activities within the State and give an appropriate analysis

21
of State authority.

Federal Authority: 40 C.F.R. § 145.23(b).

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

l of fluids or substances that may affect the waters of the state. Neither the Water Quality Control

~f Act nor Tennessee's Underground Injection Control Regulations, as amended and adopted by the

r Board on October 24,2000 (effective on June 25,2001), exempt Indian lands. There are currently

t no Indian lands in Tennessee.

~i

::c

i::

)

Remarks of the Attorne~ General

None.

15. AUTHORITY TO REVISE STATE UNDERGROUND

INJECTION CONTROL PROGRAMS

State law provides authority to revise the State's underground injection control program.

Federal Authority: SDWA Section 1422(b)(I)(B), 42 U.S.C. § 300h-l (b)(I)(B) and 40 C.F.R.

§ 145.32.

Citation of State Laws and Regulations

Date of Enactment and Adoption

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Revisions to Tennessee's

Underground Injection Control Regulations, as amended and adopted by the Board on October 24,

2000 (effective on June 25, 2001), are made under the Uniform Administrative Procedures Act,

Tenn. Code Ann. §§ 4-5-101 et seq.

22
Remarks of the Attornex General

None.

16. AUTHORITY TO MAKE AND KEEP RECORDS AND

MAKE REPORTS ON PROGRAM ACTIVITIES ALL AS

PRESCRIBED BY THE ENVIRONMENTAL PROTECTION AGENCY

~' State law provides authority for the State to make and keep records and make reports on

~ underground injection control program activities, as prescribed under federalaw.

[

f

1 Federal Authority: SDW A Section 1422(b)(1)(A)(ii), 42 U.S.C. § 300h-1 (b)(1)(A)(ii) and

! 40 C.F.R. §§ 145.14, 145.24. r '

t

:

Citation of State Laws and Regulations

Date of Enactment and Adol2tion

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement of fluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tenn. Code Ann. § 69-3-113

provides authority to the Department and the Water Quality Control Board to procure information

from persons who are causing or may be about to cause pollution, and further authorizes these

agencies to require persons to maintain such records as may be necessary to the Board or

Department to facilitate the discharge of their duties.

Remarks of the Attornex General

None.

17. AUTHORITY TO MAKE AVAILABLE TO EP A,

WITHOUT RESTRICTION, ANY INFORMATION OBTAINED OR

USED IN ADMINISTRATION OF THE STATE PROGRAM, INCLUDING

INFORMATION CLAIMED BY PERMIT APPLICANT AS CONFillENTIAL

23
State law provides authority for the State to make and keep records and make reports on

underground injection control program activities to EP A, including information considered by a

permit applicant to be proprietary and confidential.

Federal Authority: SDWA Section 1422(b)(I)(A)(ii), 42 U.S.C. § 300h-1 (b)(l)(A)(ii) and

40 C.F.R. §§ 145.14.

Citation of State Laws and Regulations

! Date of Enactment and AdoQtion

l

Tennessee's Water Quality Control Act of 1977, Tenn. Code Ann. § 69-3-101 et seq.,

contains provisions governing the permitting of underground placement offluids or substances

that may affect the waters of the state. Tenn. Code Ann. § 69-3-105(j) authorizes the Tennessee

Water Quality Control Board to promulgate all necessary rules related to underground placement

of fluids or substances that may affect the waters of the state. Tenn. Code Ann. § 69-3-113

provides authority to the Department and the Water Quality Control Board to procure information

from persons who are causing or may be about to cause pollution, and further authorizes these

agencies to require persons to maintain such records as may be necessary to the Board or

Department to facilitate the discharge of their duties. Tenn. Code Ann. § 69-3-113(a)(2) makes

it clear that such information includes data containing secret formulae and proprietary

manufacturing processes.

Remarks of the Attorne~ General

None.

PAULG. SUM RS

Attorney General and Reporter

D A TElf;7'-~~~ £

24