42234 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 146

[FRL–6729–2]

RIN 2040–AD40

Revision to the Federal Underground

Injection Control (UIC) Requirements

for Class I—Municipal Wells in Florida

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing changes to

the Underground Injection Control (UIC)

regulations that would affect specific

Class I municipal wells in Florida.

Groundwater monitoring has revealed

that injected or native formation fluids

have migrated into underground sources

of drinking water (USDW) as a result of

Class I municipal well injection activity

in areas of Florida with unique

geological conditions. Such fluid

migration is not allowed under current

Federal UIC regulations. The proposed

changes would allow for continued

injection by existing Class I municipal

wells that have caused or may cause

such fluid movement into USDWs in

specific areas of Florida if certain

requirements are met which provide

adequate protection for underground

sources of drinking water. This

proposed rule would only affect wells in

certain parts of Florida that dispose of

treated domestic wastewater through

Class I injection wells.

DATES: Comments must be submitted on

or before September 5, 2000.

Public hearings will be held:

August 22, 2000, 1:00 p.m. to 4:00 p.m.,

Tampa, Florida

August 22, 2000, 6:00 p.m. to 9:00 p.m.,

Tampa, Florida

August 24, 2000, 1:00 p.m. to 4:00 p.m.,

West Palm Beach, Florida

August 24, 2000, 6:00 p.m. to 9:00 p.m.,

West Palm Beach, Florida

ADDRESSES: Send written comments to

Nancy H. Marsh: U.S. Environmental

Protection Agency, Region 4; 61 Forsyth

St., SW, Atlanta, GA, 30303. Comments

may be submitted electronically to

marsh.nancy@epa.gov. For additional

information see Additional Docket

information in the SUPPLEMENTARY

INFORMATION section of this Federal

Register.

Public hearing locations are:

Travelodge, 820 East Busch Boulevard,

Tampa, Florida 33612

The Sheraton West Palm Beach Hotel,

630 Clearwater Park Road, West Palm

Beach, Florida 33401

FOR FURTHER INFORMATION CONTACT: For

technical inquiries, contact Nancy H.

Marsh, Ground Water & UIC Section,

EPA Region 4, 61 Forsyth Street, SW,

Atlanta, GA 30303 (phone: 404–562–

9450; E-mail: marsh.nancy@epa.gov) or

Howard Beard, Office of Ground Water

and Drinking Water, U.S. Environmental

Protection Agency, Ariel Rios Building,

1200 Pennsylvania Avenue,

N.W.,Washington, DC 20460 (phone:

202–260–8796; E-mail:

beard.howard@epa.gov). For general

information, contact the Safe Drinking

Water Hotline, phone 800–426–4791.

The Safe Drinking Water Hotline is open

Monday through Friday, excluding

Federal holidays, from 9:00 a.m. to 5:30

p.m. Eastern daylight-saving time.

SUPPLEMENTARY INFORMATION:

Additional Docket Information

When submitting written comments

(see ADDRESSES section above) please

submit an original and three copies of

your comments and enclosures

(including any references). For an

acknowledgment that we have received

your information, please include a selfaddressed, stamped envelope. EPA will

not accept facsimiles (faxes).

The record is available for inspection

from 8 a.m. to 3:30 p.m. Eastern

daylight-saving time, Monday through

Friday, excluding legal holidays at the

Environmental Protection Agency,

Region 4 Library (9th Floor), Sam Nunn

Atlanta Federal Center, 61 Forsyth St.,

S.W., Atlanta, GA 30303–8960. For

information on how to access Docket

materials, please call (404) 562–8190

and refer to the Florida UIC docket.

Regulated entities. This proposed

regulation is limited in application to

the owners and/or operators of existing

Class I underground injection wells that

inject domestic wastewater effluent in

certain parts of Florida. Regulated

categories and entities include:

Category Examples of regulated

entities

Municipalities

and Local

Government.

Class l municipal injection

wells disposing of domestic wastewater effluent in

certain parts of Florida.

Private ........... Class l municipal injection

wells disposing of domestic wastewater effluent in

certain parts of Florida.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

facility is regulated by this action, you

should carefully examine the

applicability criteria in § 146.15 of the

proposed rule. If you have questions

regarding the applicability of this action

to a particular entity, consult one of the

persons listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

Preamble Outline

I. Background

A. Statutory and Regulatory Framework

B. Domestic Wastewater Disposal in

Florida Through Class I Wells

1. Fluid migration requirements

2. Florida geology

C. 1999 Stakeholder Meeting

D. Proposed Regulations

1. Flexibility provided in SDWA Section

1421

2. What the proposal will allow

3. Rule applicability

4. Monitoring

5. Operating conditions

6. Demonstration review

E. The Cost of Compliance

II. Regulatory Impact/Administrative

Requirements

A. Executive Order 12866: Regulatory

Planning and Review

B. Executive Order 13045: Children’s

Health Protection

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Executive Order 13132: Federalism

F. Unfunded Mandates Reform Act

G. National Technology Transfer and

Advancement Act

H. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments

I. Plain Language

I. Background

A. Statutory and Regulatory Framework

Class I underground injection 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 is designed to

protect the quality of drinking water

sources in the United States and

prescribes that:

Underground injection endangers drinking

water sources if such injection may result in

the presence in underground water which

supplies or can reasonably be expected to

supply any public water system of any

contaminant, and if the presence of such

contaminant may result in such system’s not

complying with any national primary

drinking water regulation or may otherwise

adversely affect the health of persons.

(Section 1421(d)(2) of the SDWA, 42 U.S.C.

300h(d)(2).)

Part C of the Act specifically

mandates the regulation of underground

injection. The Agency has promulgated

a series of UIC regulations under this

authority at 40 CFR Parts 144–147. The

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 42235

chief goal of any Federally-approved

UIC Program (whether administered by

the State or EPA) is the protection of

underground sources of drinking water

(USDWs). This includes not only those

aquifers which are presently being used

for drinking water, but also those which

may potentially be used in the future.

EPA has established through its UIC

regulations that underground aquifers

with less than 10,000 mg/l total

dissolved solids (TDS) which contain a

sufficient quantity of ground water to

supply a public water system are

USDWs. (40 CFR 144.3)

Section 1421 of the Act requires EPA

to propose and promulgate regulations

specifying minimum requirements for

effective State programs to prevent

underground injection that endangers

drinking water sources. EPA

promulgated administrative and

permitting regulations, now codified in

40 CFR Parts 144 and 146, on May 19,

1980 (45 FR 33290), and technical

requirements, in 40 CFR Part 146, on

June 24, 1980 (45 FR 42472). The

regulations were subsequently amended

on August 27, 1981 (46 FR 43156),

February 3, 1982 (47 FR 4992), January

21, 1983 (48 FR 2938), April 1, 1983 (48

FR 14146), July 26, 1988 (53 FR 28118),

December 3, 1993 (58 FR 63890), June

10, 1994 (59 FR 29958), December 14,

1994 (59 FR 64339), June 29, 1995 (60

FR 33926) and December 7, 1999 (64 FR

68546). Section 1421(b)(3)(A) of the Act

also provides that EPA’s UIC regulations

shall ‘‘permit or provide for

consideration of varying geologic,

hydrological, or historical conditions in

different States and in different areas

within a State.’’

When EPA promulgated its UIC

regulations, it defined five classes of

injection wells in § 144.6. Class I wells

are defined as wells which inject fluids

beneath the lowermost formation

containing, within one quarter mile of

the well bore, a USDW. Class I wells can

be hazardous, industrial or municipal

waste disposal wells. EPA is only

discussing existing Class I municipal

wells in this proposed rule. Class I

municipal wells can be owned by public

and private entities.

Section 1422 of the Act provides that

States may apply to EPA for national

primary enforcement responsibility to

administer the UIC program. Those

States receiving such authority are

referred to as ‘‘Primacy States.’’ Florida

received national primary enforcement

responsibility for the UIC program for

Class I, III, IV and V wells on March 9,

1983. UIC regulations specific to

Florida’s primacy program are

established in Part 147, Subpart K. For

the remainder of this preamble,

references to the UIC Program

‘‘Director’’ means the Secretary of the

Florida Department of Environmental

Protection (FDEP). Currently, all UIC

Programs in Indian Country for Florida

are directly implemented by EPA. There

are no known Class I municipal wells in

Florida in Indian Country.

B. Domestic Wastewater Disposal in

Florida Through Class I Wells

Beginning more than 20 years ago,

municipalities in Florida began to

pursue the use of underground injection

as an alternative to surface disposal of

treated wastewater from domestic

wastewater treatment facilities.

Underground injection technology was

employed to relieve stress to surface

water environments because it was

technologically feasible to inject large

volumes of wastewater into deep

cavernous formations. Through

technical and monetary assistance, EPA

supported construction of many of these

facilities in an effort to safeguard surface

waters. Through injection technology,

domestic wastewater facilities have

been able to dispose of large quantities

of domestic effluent, with the resulting

benefit of reducing impacts to surface

ecosystems. Facilities that inject

domestic wastewater into wells below

the lowermost USDW, are considered to

have a Class I municipal injection well

and in Florida inject into zones ranging

from 650 to 3,500 feet below land

surface.

The volumes of domestic wastewater

permitted for injection at Class I

municipal well facilities presently range

from less than one million gallons per

day (MGD) at the Gasparilla Island

Water Utilities to about 110 MGD at

Miami-Dade Water & Sewer Department,

South District Wastewater Treatment

Plant. Florida requires that domestic

wastewater must be treated to secondary

wastewater treatment (See 40 CFR Part

133) standards at a minimum prior to

injection.

At the time Florida permitted the

currently operating Class I municipal

wells, characterization of the geology

indicated that there was adequate

confinement to separate the injection

fluids from the USDW. Because it was

thought there was adequate

confinement, it was believed that

injection fluids would never migrate

upwards into the shallower geologic

formations containing USDWs.

However, monitoring of injection

operations over the past several years

has indicated some deep geologic zones

provide less confinement between

formations than originally thought. In a

few cases, fluid movement has occurred

into the base of the lowermost USDW.

1. Fluid Migration Requirements

In addition to municipal wells, Class

I wells also include hazardous or

nonhazardous industrial wells which

inject into geologic formations below

the lowermost USDW. (Hazardous waste

injection must meet additional Resource

Conservation and Recovery Act (RCRA)

requirements. See 40 CFR Part 148.)

When EPA promulgated its

regulations for the UIC program, it

established different requirements for

each class of wells, based upon the uses

and risks of various types of wells. All

classes of wells are required to comply

with § 144.12(a) which states:

No owner and/or operator shall construct,

operate, maintain, convert, plug, abandon, or

conduct any other injection activity 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 142 or may

otherwise adversely affect the health of

persons.

Then, for Class I, II and III wells,

§ 144.12(b) more specifically provides

that:

if any water quality monitoring of an

underground source of drinking water

indicates the movement of any contaminant

into the underground source of drinking

water, except as authorized under Part 146,

the Director shall prescribe such additional

requirements for construction, corrective

action, operation, monitoring, or reporting

(including closure of the injection well) as

are necessary to prevent such movement.

In contrast to subsection (a), which,

for all classes of wells, prohibits fluid

movement that endangers USDWs,

Section 144.12(b) requires for Class I, II

and III wells, that a State or Federal UIC

program director, upon detection of

contaminant movement into a USDW,

prescribe requirements to prevent any

such movement, regardless of whether

the movement may endanger the USDW.

In addition to § 144.12(b), EPA

established technical and other

requirements for specific classes of

wells in Parts 144 and 146 regulations.

The Parts 144 and 146 regulations

address siting, construction, operation,

and closure of wells. Section 144.12(b)

and the specific technical requirements

of Parts 144 and 146 regulate the

activities through which fluid

movement may result and impose

requirements designed to ensure that

Class I, II and III wells will not endanger

USDWs by prohibiting movement of any

fluid into the USDW.

Today’s proposed change to the

technical requirements in Part 146 for

Class I municipal wells in certain parts

of Florida will be implemented through

42236 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

the addition of § 146.15 pursuant to the

authority of Section 1421(b)(3)(A) of the

SDWA. Section 1421(b) of the SDWA

requires that EPA promulgate

regulations which provide the minimum

requirements for an effective UIC

program: such regulations ‘‘shall

contain minimum requirements for

effective programs to prevent

underground injection which endangers

drinking water sources.’’ (Section

1421(b)(1), 42 U.S.C. § 300h(b)(1).)

Section 1421(b)(3)(A) also provides that

EPA regulations ‘‘shall permit or

provide for consideration of varying

geologic, hydrological, or historical

conditions in different States and in

different areas within a State.’’ (Section

1421(b)(3)(A), 42 U.S.C.

§ 300h(b)(3)(A).) The proposed change

in the technical requirements for Class

I municipal wells in certain parts of

Florida is being undertaken pursuant to

Section 1421(b)(3)(A) in recognition of

the appropriateness of a different

standard of USDW protection in light of

Florida’s unique geology, hydrogeology

and historical (as well as present and

future) wastewater disposal needs.

2. Florida Geology

In Florida, as in most areas of the

country, sedimentary rocks are the

predominant rock type, although the

specific types of sedimentary rocks are

different. In other areas, the underlying

rock consists of clastic rock (sandstone,

siltstone, and shale) and carbonate rock

(limestone and dolomite). Limestone

and dolomite are often classified as

carbonate rock because of their mineral

composition. Limestone is often formed

by accumulation of organic remains

such as corals or shells, and consists

mainly of calcium carbonate. Dolomite

is composed of the mineral calcium

magnesium carbonate and is generally

formed by alteration of limestone.

Clastic rocks are formed from

weathering and erosion and are made

up of fragments of sand, silt, and clay.

This eroded clastic material is

transported and deposited at locations

where it becomes the subsurface rock

after burial and compression.

Where sedimentary rocks exist, clastic

rocks (sandstones, siltstones, shales)

and carbonate rocks (limestones and

dolomites) comprise the geologic

formations that serve as the injection

zones and confining zones for

underground injection activity. Whether

a rock layer can serve as an injection

zone or a confining zone depends on its

porosity (the amount of pore space

between grains of sand) and its

permeability (the interconnectivity of

this pore space). In general, rocks with

higher porosity and permeability

usually serve as injection zones because

these characteristics readily allow for

the fluids that naturally exist in the pore

spaces (known as native, formation, or

connate fluids) to be displaced by

injection fluids. Rock layers with lower

permeability or porosity do not allow

such movement, and typically serve as

confining zones. Sandstones usually

serve as injection zones because their

porosity and permeability allows for

native formation fluids to move freely

and be displaced by injection fluids.

Siltstones generally are not good

injection zones because they have less

permeability than needed for injection

operations. However, they also generally

have too much permeability to serve as

a confining unit. Shales often serve as

confining zones for underground

injection purposes because they have

high porosity but low permeability

(fluids do not move freely through the

zone).

Limestone and dolomite sequences

can be lithologically complex because,

within a carbonate rock layer, the

porosity and permeability may be

greatly affected by geologic processes

that occur after the rocks are formed.

These include tectonic fracturing and

chemical interactions between

carbonate rock and fluids traveling

through these fractures. The porosity

and permeability of carbonate rock has

been enhanced, reduced, and, in places,

eliminated. The porosity and

permeability variations of the carbonate

rocks of peninsular Florida, which

define their confining ability, may be

quite local in nature.

That is, even within the same

geological horizon or geological deposit

of a particular time, there may be areas

of high porosity and permeability close

to low-porosity areas of porosity and

permeability. This can complicate or

compromise the use of carbonate rocks

as injection or confining zones.

Sedimentary rock types in a given

location vary based on changes in the

environment at the time they were

deposited. Carbonate sediments may

develop in many environmental

settings, but the most prolific

accumulations occur in warmer climates

which are conducive to the

development of corals and other skeletal

marine organisms with shells composed

of calcium carbonate minerals. A lack of

clastic deposition also favors carbonate

deposition. If clastic sediments start to

be deposited on a coral formation, the

sediments would bury and kill the

organisms, thereby preventing further

growth of the coral formation.

In many areas of the country,

sequences of sediment deposition

alternate between clastic and carbonate

rocks, reflecting changes in the

depositional environment. Clastic

sediments usually accumulate near the

medium that transported the sediments,

such as the mouth of a river. Carbonate

sediments, on the other hand, generally

accumulate near where they are formed,

such as a coral formation. The thickest

deposits of carbonate rocks occur where

there are warm climates and limited

media (rivers for example) to transport

clastic sediment.

The current injection and confining

zones in peninsular Florida exist in

what is known as the Floridan Aquifer

System. The Floridan Aquifer System is

made up of carbonate rocks. Parts of the

Floridan Aquifer System also are

USDWs. The rocks were formed on a

broad, marine shelf with a warm

climate, which was distant from sources

of clastic sediment such as rivers. This

setting allowed for the development of

thick deposits of limestone and

dolomite (carbonate rock) without

significant amounts of sandstones,

siltstones, and shales (clastic rock)

found in other areas of the country.

Because of the absence of shales in

peninsular Florida, which are frequently

the confining zones in other areas of the

country, the carbonate rocks themselves

must serve as both the confining and

injection zone. This is unusual and

unique, but possible because of the

variability in the porosity and

permeability of carbonate rocks as

discussed previously as well as the

existence of numerous vertical and

horizontal faults within the formations.

The porosity and permeability

variations of the carbonate rocks of

peninsular Florida and the existence of

fractures within the formation

determine their confining ability. The

porosity varies greatly, even within the

same horizon or geological deposit of a

particular time. While the confining

ability within the rock sequences that

comprise the Floridan Aquifer appears

adequate for most injection facilities,

there are some injection well locations

where the carbonate formation does not

appear to provide adequate

confinement. This is substantiated by

water quality analysis of monitoring

wells at selected injection facilities.

While most of the country can depend

on clastic shales for confinement,

Florida’s geology has very different

characteristics which were not

considered during original

promulgation of the Class I regulations.

It now appears, from recent well

monitoring data, that upward fluid

movement from some Class I municipal

operations occurs in Florida because the

injection fluid from Class I municipal

wells has a lower density (lower total

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 42237

dissolved solids) than the native

formation fluids. This tends to cause the

less dense injection fluids to rise to the

top of the injection zone preferentially

through fractures that may exist within

the formations. Because of its buoyancy,

the injectate may also rise above the

injection zone if these migration

pathways exist. This monitoring data

also indicates that injection fluid has

migrated vertically into USDWs.

The application of the proposed rule

is limited to both certain geologic

conditions and certain geographic areas

in Florida. It is limited geographically to

the following counties: Brevard,

Broward, Charlotte, Collier, Dade,

Flagler, Glades, Hendry, Highlands,

Hillsborough, Indian River, Lee,

Manatee, Martin, Monroe, Okeechobee,

Orange, Osceola, Palm Beach, Pinellas,

St. Johns, St. Lucie, Sarasota, and

Volusia. These counties are included in

this proposed rule because they have

the unique geologic conditions that are

predominated by carbonate rocks

discussed previously. The counties were

selected using a map adapted from

Florida Geological Survey map series 94

‘‘Potential Subsurface Zones for LiquidWaste Storage in Florida,’’ created by

James A. Miller of the United States

Geological Survey in 1979. The

geological conditions considered are

those where the injection and confining

zones are both in the Floridan Aquifer,

and no clastic confining unit separates

the injection zone from the lowermost

USDW. EPA requests comment on

whether these are the appropriate

counties to target in this proposal or

whether additional (or fewer) counties

in Florida should be included. See

United States Geological Survey’s

website for specific information on

Florida’s geology at http://

www.usgs.gov.

C. 1999 Stakeholder Meeting

To assist in developing an approach

to deal with the Class I municipal wells

in Florida, EPA held a stakeholder

meeting on July 7, 1999, in West Palm

Beach, Florida to solicit stakeholder

input. Over 100 people attended the

meeting in person or via conference call

with 30 people giving oral comments.

Additional written statements have been

received since the meeting.

Municipalities, industry, environmental

groups and private citizens participated.

At that meeting, EPA presented four

general options then being considered:

(1) Make no regulatory change, (2)

reclassify the wells from Class I

municipal to Class V municipal, (3)

convert the wells directly to Class V by

allowing injection directly into the

USDW, and (4) make some regulatory

change. The following is a discussion of

each of these options.

Option 1: Make no regulatory change.

This option would require those

facilities where it has been shown that

fluids are migrating into a USDW to

either cease Class I injection and find

another disposal alternative or obtain an

aquifer exemption to allow continued

injection. Some facilities indicated that,

because of other state laws and rules,

there is no surface water disposal option

available to them. Other facilities said

they would have to treat the effluent to

a much higher standard than is

currently required in order to use

surface waters as a disposal option. If a

facility would choose to obtain an

aquifer exemption, they would need to

show that the aquifer is not reasonably

expected to supply a public water

system, which would be very difficult to

show.

Option 2: Reclassify the wells from

Class I municipal wells to Class V wells.

This option would have involved the

determination that the facility no longer

meets the regulatory definition of a

Class I well, i.e., a well injecting below

the lowermost formation containing a

USDW (40 CFR 144.6). Under this

option, EPA and stakeholders discussed

whether facilities with fluid movement

could seek reclassification in a permit

action from Class I to Class V on the

basis that injection is taking place into

(rather than below) the formation that

contains the USDW. Under current

Florida requirements, if a Class V well

is discharging into a USDW, the facility

must meet the national primary

drinking water standards at the point of

discharge. Compliance at the point of

discharge could make this option more

costly to the discharger than Option 1.

The Agency is not planning to allow

reclassification unless the well was

misclassified in the first instance.

Misclassification might have occurred if

the well did not originally meet the

definition of a Class I well. The facility

could demonstrate this if new

information has become available that

proves that the well originally was

injecting into a USDW and therefore

would meet the definition of a Class V

well.

Option 3: Convert the wells to Class V

by allowing injection directly into the

USDW. Under this option, wells would

inject municipal wastewater directly

into or above the formation containing

the lowermost USDW. This option is

different from the reclassification option

(Option 2) because the well would have

to be physically altered to inject into the

USDW. Similar to the previous option,

under current Florida rules, a facility

would have to meet national primary

drinking water standards at the point of

discharge under this option. Several

stakeholders commented that the

formations within the USDW do not

have sufficient capacity to accept the

quantities of fluid currently injected

into the deeper formations which,

because of their unique hydrogeologic

characteristics, can accept large

quantities of fluid. This option has

always been available to the facilities

but has not been used because of these

limitations and the extensive treatment

that would be required for the discharge

to meet the State’s standards.

Option 4: Make some regulatory

change. This is the option that is being

proposed today and will be discussed in

Section D.

Participants in the stakeholder

meeting suggested that protecting

ground water was a high priority. Some

municipalities advocated

reclassification to Class V wells while

others said a regulatory change would

be more beneficial. Municipalities

advocated the reclassification of the

wells to Class V. Environmental groups

generally wanted to require the facilities

to apply higher levels of treatment prior

to injection. Many felt that injection was

still a viable option but attention should

be paid to protect the future use of the

ground water resource.

D. Proposed Regulations

1. Flexibility Provided in SDWA Section

1421

The SDWA requires EPA to

promulgate regulations that contain

minimum requirements for effective

programs to prevent underground

injection which endangers drinking

water sources. The Act further states

that:

Underground injection endangers drinking

water sources if such injection may result in

the presence in underground water which

supplies or can reasonably be expected to

supply any public water system of any

contaminant, and if the presence of such

contaminant may result in such system’s not

complying with any national primary

drinking water regulation or may otherwise

adversely affect the health of persons. (42

U.S.C. 300h (d)(2))

EPA responded to the SDWA mandate

(1421(b)(5)) that underground injection

not endanger USDWs by requiring that

Class I wells prevent the movement of

any fluids into a USDW. However, EPA

prescribed no limits on the quality or

quantity of the fluids being injected.

EPA established a ‘‘no fluid movement’’

requirement for all Class I wells even

though such wells are different with

respect to their design, construction,

and operation. EPA believed a uniform

standard would be easier to interpret,

42238 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

comply with, and enforce, and such a

standard was generally accepted among

the regulated community. This

acceptance was based upon the

assumption that specific strata existed

around the country that could generally

serve as a barrier to fluid movement and

that, therefore, there was no need for

additional limits on effluent quantity or

quality. This was also thought to be true

in Florida, even though Florida’s

geology does not fit the ‘‘classic’’ model.

Since the original UIC regulations

were passed, information from several

deep monitoring wells placed at the

base of the lowermost USDW near

certain municipal injection wells in

Florida have shown evidence that there

has been fluid migration out of the

designated injection zone. Through

evaluation of this information, it is

suspected that sufficient geologic strata

separating the injection zones and the

USDW do not exist in certain parts of

Florida. Therefore, considering the

State’s unique geology, the assumption

underlying the development of the fluid

movement prohibition for Class I

municipal wells needs (i.e., availability

of adequate confinement) to be reviewed

for Florida. Since current Federal UIC

regulations do not provide Class I

municipal wells with the flexibility to

demonstrate that injection and any

subsequent fluid movement would not

endanger underground drinking water

sources, EPA has decided that such

flexibility should now be built into the

Florida-specific UIC regulations for

existing municipal Class I wells.

The Act permits EPA, under Section

1421(b)(3)(A), to consider specific State

geologic, hydrological and historical

conditions when passing regulations to

prevent endangerment. Section

1421(b)(3)(A) states, ‘‘The regulations of

the Administrator under this section

shall permit or provide for

consideration of varying geologic,

hydrological, or historical conditions in

different States and in different areas

within a State.’’ The proposed rule is

being developed based on South

Florida’s unique carbonate—rock

geology, discussed previously, the vast

hydrological capacity that characterize

the formations where wastewater is

injected and the extent to which

municipalities in South Florida have

turned to Class I wells as a very

important method for wastewater

disposal. Florida is currently also the

only State in the country that disposes

of treated domestic waste through Class

I municipal injection wells. EPA

believes that all these conditions

support the regulatory approach being

proposed here for existing Class I

municipal wells in certain parts of

Florida.

2. What the Proposal Will Allow

EPA is now considering a regulatory

approach for existing Class I municipal

wells in certain counties in Florida that

addresses the lack of sufficient

confinement of Class I municipal

injection while continuing to meet the

requirement of the Act to prevent

underground injection that endangers

underground drinking water sources.

These counties are: Brevard, Broward,

Charlotte, Collier, Dade, Flagler, Glades,

Hendry, Highlands, Hillsborough,

Indian River, Lee, Manatee, Martin,

Monroe, Okeechobee, Orange, Osceola,

Palm Beach, Pinellas, St. Johns, St.

Lucie, Sarasota, and Volusia. The

proposed rule provides an option for

qualified operators of domestic

wastewater facilities in these counties to

continue disposal underground rather

than relying on surface and/or ocean

disposal of effluent. Further, the

proposed rule would compel facilities to

provide more advanced wastewater

treatment that will raise the economic

value of the treated effluent and in turn

promote greater wastewater reuse.

The proposed rule creates, for certain

Florida Class I wells that inject domestic

wastewater, an authorization to inject,

regardless of fluid movement into the

USDW, so long as the facility can

demonstrate that it will meet certain

protective criteria relating to the quality

of the injected fluid, and that the

injected fluids will not cause any

USDWs to exceed primary drinking

water regulations in Part 141 of this

chapter and other health based

standards. The proposed rule is

consistent with the mandate of the

SDWA, as it establishes requirements

which prevent endangerment of

USDWs. The conditions placed upon

wells receiving this authorization to

inject are designed to prevent

endangerment of USDWs, while

providing for the possibility of

continued injection operations. In order

to further ensure that the authorization

to inject is consistent with the goals of

the SDWA, the proposal specifies that

EPA participate in the review and

approval of the facility’s application for

this authorization, even though the State

of Florida has primacy for the Class I

UIC program. EPA will have 90 days to

disapprove the State’s approval of any

authorization under this proposed rule.

If EPA does not respond within 90 days,

the demonstration is approved.

EPA is co-proposing for public

comment two approaches for regulating

Class I municipal wells in specific areas

of Florida where injection has caused or

may cause fluid movement into a

USDW. The two options are: Option 1—

Facilities must provide advanced

wastewater treatment with a

demonstration that the injectate will not

cause a USDW to exceed any primary

drinking water regulations in Part 141 of

this chapter and other health based

standards (e.g., Federal or State health

advisories); and Option 2—Facilities

must conduct an in-depth hydrogeologic

demonstration and must provide

advanced treatment, as necessary, to

ensure that injectate will not cause a

USDW to exceed any primary drinking

water regulations in Part 141 of this

chapter and other health based

standards. The requirements of these

options are in paragraph (d).

The difference between these two

options is that Option 2 would require

a much more extensive demonstration

than in Option 1 because a high level of

treatment before injection provides a

safety net of contaminant removal. Both

of these proposals apply to existing

municipal wells which inject domestic

wastewater effluent.. An existing well is

defined as a well for which a complete

UIC construction permit application has

been received by the Director on or

before the date of publication of this

proposed rule in the Federal Register.

This rule is proposed for existing wells

only because, given current knowledge

of the existing fluid migration problems,

future well applications will be

reviewed with more scrutiny than wells

that have already been permitted and

such review will ensure that adequate

confinement exists so that fluid

movement should not occur. The

Agency is requesting comments on

whether this proposed rule should

apply to existing wells only, or if this

proposed rule should also apply to new

wells.

Although the municipal wells that are

covered by this proposed rule receive

primarily domestic wastewater, they

also receive some wastewater from

industrial sources. This rulemaking

does not specifically require that these

industrial facilities have a pretreatment

program in place that would require

them to pretreat the wastewater that

enters the facility’s treatment system.

Such a program may be necessary to

address contaminants that enter a

facility’s wastewater treatment system

and are not sufficiently removed by the

treatment system to prevent

concentrations of the contaminant from

entering a USDW and causing the

USDW to exceed drinking water

regulations or other health based

standards. Although Florida requires

that publicly owned treatment works

(POTWs) greater than 5 million gallons

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 42239

per day (MGD) meet certain

pretreatment requirements, this may not

sufficiently address contaminants in

fluids that move into a USDW as a result

of underground injection from smaller

POTWs or others that could be exempt

from existing pretreatment

requirements. EPA therefore solicits

public comment on the need by the

Agency to require pretreatment as an

additional condition of authorization

under today’s proposal and, whether to

extend the pretreatment standards

presently required by the State to

injection facilities with less than 5

MGD.

3. Rule Applicability

This proposed rule applies only to

existing Class I municipal wells which

inject treated domestic wastewater

effluent that have caused or may cause

fluid movement into USDWs in specific

counties in Florida. These counties are:

Brevard, Broward, Charlotte, Collier,

Dade, Flagler, Glades, Hendry,

Highlands, Hillsborough, Indian River,

Lee, Manatee, Martin, Monroe,

Okeechobee, Orange, Osceola, Palm

Beach, Pinellas, St. Johns, St. Lucie,

Sarasota, and Volusia. This rule applies

to both publically and privately owned

facilities. The definition of domestic

wastewater can be found in paragraph

(c) of this proposed rule.

4. Monitoring

EPA is considering adding more

specific monitoring requirements for the

effluent and the ground water than

specified in § 146.13. The effluent will

be characterized initially to determine

the level of contaminants in the

wastewater and then at least annually to

ensure that the treatment process is

meeting its objectives. This monitoring,

at a minimum, would be for all

contaminants regulated under the

national primary drinking water

regulations and other health based

standards. The Director shall also

require that the owner and/or operator

develop and implement an ambient/

ground water monitoring program. The

ground water monitoring program will,

at a minimum, analyze the ground water

to determine if any primary drinking

water regulations in Part 141 of the

chapter or other health based standards

have been violated. The monitoring is to

verify that the injection operation shall

not endanger the USDW through

movement of the injectate or formation

fluids. These requirements would be

incorporated as permit conditions of an

operation permit under the Florida UIC

program. Additional requirements, such

as the construction of additional

monitoring wells may be needed on a

case-by-case basis. EPA is requesting

comments on any additional monitoring

requirements for the final rule.

5. Operating Conditions

Operating conditions determined

necessary to prevent endangerment of

the USDW by the demonstration will be

incorporated by the Director as permit

conditions to either a permit

modification or permit issuance.

Conditions may include, but are not

limited to, treatment requirements

including pretreatment (if any),

monitoring criteria and frequency, and

reporting frequency.

The options which are being coproposed for paragraph (d) are as

follows:

Option 1—Advanced wastewater

treatment with a non-endangerment

demonstration. The authorization to

inject under Option 1 requires that the

owner and/or operator of a Class I

municipal well injecting domestic

wastewater effluent treat their

wastewater by advanced treatment

methods and high-level disinfection and

demonstrate that the injection of the

wastewater effluent would not cause

fluids that exceed the national primary

drinking water regulations or other

health based standards to enter the

USDW. The non-endangerment

demonstration would focus on any

contaminants that still exceed national

drinking water regulations or other

health based standards after advanced

wastewater treatment. The

demonstration would identify any such

contaminants and demonstrate that they

would not cause similar exceedances in

the USDW.

EPA solicits public comment on four

alternatives for the appropriate level of

advanced wastewater treatment,

nutrient removal, and high-level

disinfection that should be required of

these facilities. The final rule will

specify only one alternative.

Advanced treatment options reflect a

wide range of biochemical oxygen

demand (BOD) removal and nutrient

removal capabilities. In designing the

Clean Water Needs Survey, States and

EPA identified four advanced treatment

options that represent a range of

treatment scenarios commonly used by

municipalities for advanced wastewater

treatment. These include plants

designed to meet BOD levels of 10–24

mg/l with and without nutrient removal

capability, and plants designed to meet

more stringent BOD levels of less than

10 mg/l with and without nutrient

removal capability. EPA is considering

a range of advanced treatment

alternatives, and is seeking comment on

which alternative to specify in the final

rule if Option 1 is selected. The

alternatives evaluated and proposed are:

Treatment to 10–24 mg/l BOD with

disinfection;

Treatment to 10–24 mg/l BOD with

disinfection and nutrient removal;

Treatment to <10 mg/l BOD with

disinfection;

Treatment to <10mg/l BOD with

disinfection and nutrient removal.

Advanced treatment is any level of

treatment in excess of secondary

treatment and may include processes to

remove nutrients such as nitrogen and

phosphorus and other pollutants found

in the wastewater stream entering the

municipal treatment plant. To achieve

high level disinfection, a process

designed to kill most microorganisms in

water including pathogenic (disease

causing) bacteria, owners and/or

operators must allow the wastewater to

remain in contact with at least 1.0 mg/

l of free chlorine for at least 15 minutes

of contact with no fecal coliform.

Facilities will also be required to

provide dechlorination, if necessary, as

part of the advanced wastewater

treatment to ensure that USDWs are not

endangered from disinfection byproducts.

Option 2—In-depth hydrogeologic

demonstration and advanced treatment,

as necessary. The authorization to inject

under Option 2 requires that the owner

and/or operator of a Class I municipal

well injecting domestic wastewater

effluent provide a hydrogeologic

demonstration that the injection

operation would not cause fluids that

will migrate into the USDW to exceed

the national primary drinking water

regulations or other health based

standards. EPA anticipates that this

hydrogeologic demonstration would be

similar in detail to that required for a

RCRA land ban no-migration petition

and consist of an evaluation of the

results of sampling and analysis for

contaminants in wastewater prior to

injection and in water samples from

deep monitoring wells at the base of the

USDW and would also include detailed

hydrogeologic modeling of fluid

transport from the injection zone to

those areas of the subsurface including

USDWs to which the fluid and

contaminants in the fluid have migrated

and may migrate. This demonstration

would include at a minimum: groundwater modeling, geochemical analysis

and effluent and ground-water

monitoring and analysis. The items

included in the demonstration are

intended to characterize how the

effluent is expected to move vertically

and horizontally after it is injected into

the subsurface and to determine if the

42240 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

effluent or the formation fluids will

enter the USDW. If it is anticipated that

the fluids may enter the USDW, the

demonstration must show that the fluids

will not endanger the USDW and exceed

primary drinking water regulations in

Part 141 or other health based

standards.

If the owner and/or operator cannot

successfully demonstrate that the

injection operation meets these criteria,

the owner and/or operator must treat the

injectate to address the contaminants of

concern and satisfy the criteria of

paragraph (d) that the injectate would

not cause a USDW to exceed the

national primary drinking water

regulations or other health based

standards prior to receiving an

authorization for permit authorizing

continued injection pursuant to this

rule. The Agency also solicits comments

as to whether this hydrogeologic

demonstration, and the determination of

what level of advanced wastewater

treatment may be necessary, should

include a requirement for pretreatment

as may be necessary to address

contaminants that may move through a

treatment system and enter into a

USDW at concentrations of concern.

The differences between the two

options proposed under paragraph (d)

are that the first option gives a higher

level of confidence that any fluids that

migrate into the USDW will meet the

applicable standards. This is because

the facilities must design, construct and

operate a specific level of advanced

wastewater treatment and also

demonstrate that, after the effluent is

treated, any constituent which exceeds

any primary drinking water regulations

in Part 141 or other health based

standards at the point of injection will

not exceed the standards when the fluid

enters the base of the USDW.

For Option 1, this demonstration

could be as simple as referencing

technical literature describing die-off

rates for viruses and other pathogens, or

how metals bind in soils compared to

the results of ground water sampling

and analysis pursuant to § 146.13. EPA

expects that there would be fewer

parameters (contaminants in

concentrations of concern) requiring a

demonstration in Option 1 since the

effluent would be subject to advanced

treatment and disinfection and less

ground water modeling.

For Option 2 under paragraph (d), the

facility is afforded the opportunity to

demonstrate the necessity for additional

treatment and tailor the level of

treatment to the quality of fluid that has

migrated or may migrate into the base of

the USDW. The level of treatment

needed to make a successful

demonstration under Option 2 could

vary from facility to facility.

Constituents in the effluent that exceed

primary drinking water regulations in

Part 141 or other health based standards

would need to be sampled at the base

of the USDW, analyzed and evaluated to

ensure that the requirements of this

proposed rule are met. EPA solicits

comments on each of these options for

ensuring that any fluid that does migrate

into the base of a USDW will meet

applicable standards. In particular, EPA

solicits comments on the ability of

owners and operators to provide the

kind of hydrogeologic and other

information necessary for a successful

hydrogeologic demonstration.

If it adopts Option 2, EPA also

proposes to require that all facilities

qualifying for authorization to inject

under this section must have advanced

wastewater treatment and high level

disinfection in place by the year 2015.

This requirement is to address water

shortages in Florida and encourage

water reuse. The year 2015 is being

proposed in order to provide the

wastewater treatment facilities with

adequate time to evaluate all of their

municipal wastewater reuse and

disposal options and to plan for any

construction of treatment facilities

needed. Prior to the year 2015, under

Option 2, the owner/operator of the

wastewater treatment facility would still

have to demonstrate that they will not

endanger USDWs. EPA is soliciting

comment on the appropriate level of

advanced wastewater treatment and

nutrient removal to be required by the

facilities by 2015. The levels of

treatment being considered are the same

as those listed in Option 1 above.

6. Demonstration Review

The demonstration under paragraph

(d) must be submitted to both the State

and EPA for review. The authorization

to continue to inject under a permit

shall become final 90 days after the

State Director approves the

demonstration and submits the approval

in writing to the Regional Administrator

if he or she does not disapprove the

authorization within the 90 days. Any

disapproval by the Regional

Administrator shall state the reasons

and shall constitute final Agency action.

The owner and/or operator must update

the required demonstration with each

subsequent Class I operation permit

application, every five (5) years, as

required in paragraph (f). The update

shall include an analysis of all

monitoring results since the original

demonstration and verification that the

original demonstration is still valid for

the disposal operation.

EPA is soliciting comments on all

aspects of this proposal, and in

particular on whether to select either

Option 1 or 2 or, if it would be more

appropriate, to select a combination of

both options. In addition the Agency

requests comments on EPA’s regulatory

approach to continue to allow facilities

with fluid movement to inject by

improving the quality of the injected

fluid. In particular, the Agency invites

comment and data on any commenters’

preference among the various means of

domestic wastewater disposal in

Florida, the effects that those methods

have on Florida’s fragile environment,

and the extent to which this proposal

may result in the increased or decreased

use of reuse or other disposal practices

such as ocean or other surface water

disposal.

E. The Cost of Compliance

The proposed rule does not impose

any new requirements on Class I

municipal wells in Florida, but merely

provides an alternative authorization to

inject for which a well owner and/or

operator may apply if the well falls

within the narrow criteria of the

proposed rule. Because continued

operation of Class I municipal injection

wells which result in movement of

fluids into or between USDWs is

contrary to existing Federal UIC

regulations, the proposed rule offers

such facilities an ability to continue to

operate legally provided they meet the

new requirements.

The proposed rule presents owners

and/or operators of such Class I wells

with options for continued

authorization to inject should fluid

movement occur. In the absence of the

proposed regulatory changes, facilities

that exhibit fluid movement would need

to close their wells and adopt

alternative disposal practices. The

economic analysis for this proposed rule

compares the costs of compliance under

this proposed rule with the costs of

compliance under the current

regulations. Small private and

governmental entities are the likely

owners and/or operators of Class I wells

in Florida disposing of domestic

wastewater effluent.

The factors taken into account in

estimating these costs include the

number of existing facilities that are

potentially affected by the proposed

rule, the current regulatory

requirements for Florida Class I

municipal facilities, and the current

extent of treatment at each facility.

Many of the cost estimates are presented

as a range, with the lower figures

representing an assumption that 25% of

the existing facilities will experience

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 42241

fluid movement and the upper figures

representing an assumption that 100%

of the facilities will experience fluid

movement. Specific to Option 2, of the

facilities that do not currently provide

advanced wastewater treatment and

high level disinfection, 25% are

assumed to be able to make the

hydrogeologic demonstration with the

addition of high-level disinfection only

and 75% will have to provide both highlevel disinfection and advanced

wastewater treatment. The baseline

assumes the costs associated with

complying with the current UIC

regulations. These costs include closing

the wells and adopting alternative

disposal practices, which could consist

of surface water disposal, ocean outfall,

and/or reuse.

Four different treatment scenarios

have been evaluated with each of the

proposed options. The target

contaminant removal levels are based

on the pollutant parameter biochemical

oxygen demand (BOD) removal:

Treatment to 10–24 mg/l BOD with

disinfection

Treatment to 10–24 mg/l BOD with

disinfection and nutrient removal

Treatment to <10 mg/l BOD with

disinfection

Treatment to <10mg/l BOD with

disinfection and nutrient removal

Given these assumptions, the costs to

Class I municipal facilities , including

monitoring costs, in Florida are

estimated to be as follows (in millions

of dollars):

Baseline Scenario: Total Capital Costs

$721–2,882

Total Annualized Costs (Capital &

Operating) $203–811

Regulatory Option 1: Total Capital Costs

$254–1,678

Total Annualized Costs (Capital &

Operating) $131–587

Total Annualized Savings from

Baseline $72–224

Regulatory Option 2: Total Capital Costs

$201–1,329

Total Annualized Costs (Capital &

Operating) $101–453

Total Annualized Savings from

Baseline $102–358

EPA is soliciting comments on the

assumptions used in the economic

analysis that was developed for this

proposed rule. The economic analysis is

part of the record for this proposed rule

(see Additional Docket Information in

the SUPPLEMENTARY INFORMATION section

above).

EPA notes that a facility may choose

to cease underground injection and, as

permitted under State or Federal law,

opt to discharge to surface waters, either

to fresh waters, estuaries or through an

outfall to ocean waters. EPA solicits

comments regarding whether these are

preferred disposal methods. In

particular, EPA solicits comments about

what disposal actions municipalities

may take if there is no regulatory change

or in the event either one of the two

proposed options is promulgated. EPA

also solicits comments on the potential

economic or environmental impact of

either making no change or choosing

either of the proposed options.

II. Regulatory Impact/Administrative

Requirements

A. Executive Order 12866: Regulatory

Planning and Review

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

It has been determined that this

proposed rule is not a ‘‘significant

regulatory action’’ under the terms of

Executive Order 12866 and is, therefore,

not subject to OMB review.

B. Executive Order 13045: Children’s

Health Protection

Executive Order 13045, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997), applies to any rule that:

(1) Is determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This proposed rule is not subject to

Executive Order 13045 because it is not

economically significant as defined in

Executive Order 12866, and because the

Agency does not have reason to believe

the environmental health or safety risks

addressed by this action present a

disproportionate risk to children. The

proposed rule provides an optional

authorization for certain Class I wells in

Florida to inject domestic wastewater

effluent only if the practice is

demonstrated not to endanger

underground sources of drinking water.

The criteria established in the rule

safeguards these resources for all

potential users, including but not

limited to children.

The public is invited to submit or

identify peer-reviewed studies and data,

of which the Agency may not be aware,

that assessed results of early life

exposure to secondarily treated

wastewater injected into the subsurface

through Class I municipal wells in

Florida.

C. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been submitted for approval to the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR)

document has been prepared by EPA

(ICR No. 317.17) and a copy may be

obtained from Sandy Farmer by mail at

Collection Strategies Division; U.S.

Environmental Protection Agency

(2822); 1200 Pennsylvania Avenue,

N.W., Washington, DC 20460; by email

at farmer.sandy@epamail.epa.gov, or by

calling (202) 260–2740. A copy may also

be downloaded off the internet at http:/

/www.epa.gov/icr.

The proposed ICR estimates

monitoring, demonstration, reporting

and recordkeeping burdens and costs for

Class I underground injection well

operators in Florida under the proposed

rule. Information regarding wastewater

quality, treatment and migration will be

collected as outlined in the rule for

review by the State of Florida as

primacy agent. Under the proposed rule,

the primacy State would be required to

revise and resubmit a UIC program

application for Class I wells. EPA is also

requesting that facility owners and/or

operators demonstrate, using a modeling

study, that by the time effluent reaches

the USDW, it is in compliance with the

SDWA national primary drinking water

standards. Wells for which it cannot be

demonstrated that sufficient water

42242 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

quality exists at the bottom of the

USDW would have to upgrade their

wastewater treatment to qualify for the

proposed authorization to inject.

Information collected under SDWA

and, by extension, this ICR is expected

to be used by EPA and the State of

Florida to help insure the maintenance

of clean, safe public drinking water

supplies.

Operators of injection wells may

claim confidentiality, as provided in

§ 144.5, Confidentiality of Information.

If confidentiality is requested, the

information is treated in accordance

with the provisions of 40 CFR Part 2,

Public Information.

Information collected under this ICR

is intended for the Agency’s and/or

State’s internal use and there are no

plans to routinely release or publish any

of the data. However, if no claim of

confidentiality is made at the time of

submission, the information can be

made available to the public without

further notice.

EPA estimates that the average annual

burden on Class I municipal well

operators (which includes public and

private entities) and the State of Florida

will be 1,556 hours for Option 1 of the

proposed rule and 2,265 hours for

Option 2. This is based on an estimate

that 1 State, Florida, will need to

provide 44 responses each year at 10

hours per response for Option 1 and 44

responses at 10.6 hours per response for

Option 2. It is also estimated that 9

Class I municipal well operators will

need to provide an average of 15.7

responses each year at an average of 7.9

hours per response for Option 1 and an

average of 15.7 responses each year at

an average of 12.8 hours per response

for Option 2. The labor burden is

estimated for activities associated with

reading and understanding the rule,

performing and reviewing monitoring,

performing and reviewing engineering

demonstrations, and meeting primacy

requirements. In addition to the

recordkeeping and reporting burden, it

is estimated that an average annual cost

of $688,678 will be incurred for capital

and operations and maintenance (O&M)

costs for Option 1, and $884,943

annually for Option 2. Capital costs are

for installation of monitoring wells and

associated equipment needed to collect

data under the rule requirements. O&M

costs are for acquisition of contracting

services to perform analysis and

demonstrations required by the

proposed rule.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR Part 9 and 48 CFR Chapter

15.

Comments are requested on the

Agency’s need for this information, the

accuracy of the provided burden

estimates, and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques. Send comments

on the ICR to the Director, Collection

Strategies Division; U.S. Environmental

Protection Agency (2822); 1200

Pennsylvania Avenue, N.W.,

Washington, DC 20460; and to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, 725 17th St., N.W., Washington,

DC 20503, marked ‘‘Attention: Desk

Officer for EPA.’’ Include the ICR

number in any correspondence. Since

OMB is required to make a decision

concerning the ICR between 30 and 60

days after July 7, 2000, a comment to

OMB is best assured of having its full

effect if OMB receives it by August 7,

2000. The final rule will respond to any

OMB or public comments on the

information collection requirements

contained in this proposal.

D. Regulatory Flexibility Act (RFA), as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute, unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions.

For purposes of assessing the impacts

of today’s rule on small entities, small

entity is defined as: (1) A small business

whose annual revenue is less than $5

million according to SBA size

standards; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today’s proposed rule on

small entities, I certify that this action

will not have a significant economic

impact on a substantial number of small

entities. In determining whether a rule

has significant economic impact on a

substantial number of small entities, the

impact of concern is any significant

adverse economic impact on small

entities, since the primary purpose of

the regulatory flexibility analyses is to

identify and address regulatory

alternatives ‘‘which minimize any

significant economic impact of the

proposed rule on small entities.’’ 5

U.S.C. Sections 603 and 604. Thus, an

agency may certify that a rule will not

have a significant economic impact on

a substantial number of small entities if

the rule relieves regulatory burden, or

otherwise has a positive economic effect

on all of the small entities subject to the

rule. EPA estimates there are

approximately 42 existing Class I

municipal wells that at some point

during their operating life could cause

fluid movement into a USDW and fall

within the scope of this proposed rule.

Of these 42 facilities, 13 are small

governmental entities and one is a small

business.

As discussed in section I.E., the

economic impact of this proposed rule

actually results in a cost savings to the

Class I municipal facilities compared to

the baseline, i.e., complying with

current regulations. Because Class I

wells which may seek the authorization

to inject provided by the proposed rule

are only affected if they cause fluid

movement prohibited by present law,

EPA has determined that the effect on

small entities will be positive to the

extent they are impacted. If the entity

chooses not to seek the authorization to

inject, the legal status of its continued

operations is not impacted by the

proposed rule. We have therefore

concluded that today’s proposed rule

either will have no effect on or, in the

alternative, will provide regulatory

relief for small entities.

We continue to be interested in the

potential impacts of the proposed rule

on small entities and welcome

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 42243

comments on issues related to such

impacts.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under Section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This proposed rule does not have

federalism implications. It 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. The proposed

rule allows for an optional alternate

method for the State of Florida to use to

ensure that no owner and/or operator

would endanger a USDW by injection of

domestic wastewater effluent into a

Class I municipal well. EPA is not

proposing that an owner and/or operator

must use this proposed authorization,

but rather is proposing options that

owners and/or operators of existing

Class I municipal wells may wish to

explore in order to maintain the use of

their injection operations. Thus, the

requirements of section 6 of the

Executive Order do not apply to this

rule. Although Section 6 of Executive

Order 13132 does not apply to this rule,

EPA did consult with the Florida

Department of Environmental Protection

in developing this rule and they agree

with EPA’s strategy.

F. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under Section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, Section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of Section 205 do not

apply when they are inconsistent with

applicable law. Moreover, Section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under Section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this

proposed rule does not contain a

Federal mandate that may result in

expenditures of $100 million or more

for State, local, and tribal governments,

in the aggregate, or the private sector in

any one year. Because the authorization

to inject provided for by the proposed

rule is optional on applicants, the costs

incurred by an entity in conjunction

with such authorization to inject under

the proposed rule are discretionary, not

mandated. The total cost impact, in

comparison to other alternatives to

provide effective wastewater disposal, is

anticipated to be positive for those

entities that choose to avail themselves

of the option provided by this proposed

rule. This rule will reduce the burden

imposed by the current regulations.

Thus, today’s rule is not subject to the

requirements of Section 202 and 205 of

the UMRA.

EPA has determined that this rule

contains no regulatory requirements that

might significantly or uniquely affect

small governments. This proposed rule

is not targeted at small governments. It

offers owners and operators of Class I

wells in certain parts of Florida which

inject domestic wastewater effluent an

alternative method of compliance with

the existing UIC rule, which prohibits

injection that endangers USDWs,

without requiring the facilities to cease

injection and abandon their existing

Class I municipal injection wells. This

rule will provide them with a less

burdensome alternative for compliance.

Thus, today’s rule is not subject to the

requirements of Section 203 of UMRA.

G. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Pub L. No.

104–113, § 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards. This

proposed rulemaking does not involve

technical standards. Therefore, EPA is

not considering the use of any voluntary

consensus standards.

EPA welcomes comments on this

aspect of the proposed rulemaking and,

specifically, invites the public to

identify potentially-applicable

voluntary consensus standards and to

explain why such standards should be

used in this regulation.

H. Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

42244 Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments nor does it

impose substantial direct compliance

costs on them. At present, there are no

Class I UIC wells used for domestic

wastewater effluent disposal in Florida

that are owned or operated by an Indian

tribal community. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

I. Plain Language

Executive Order 12866 and the

President’s memorandum of June 1,

1998, require each agency to write all

rules in plain language. We invite your

comments on how to make this

proposed rule easier to understand. For

example:

—Have we organized the material to suit

your needs?

—Are the requirements in the rule

clearly stated?

—Does the rule contain technical

language or jargon that is not clear?

—Would a different format (grouping

and order of sections, use of headings,

paragraphing) make the rule easier to

understand?

—Would more (but shorter) sections be

better?

—Could we improve clarity by adding

tables, lists, or diagrams?

—What else could we do to make the

rule easier to understand?

List of Subjects in 40 CFR Part 146

Environmental protection, Indianslands, Intergovernmental relations,

Reporting and Recordkeeping

requirements, Water Supply.

Dated: June 27, 2000.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Regulations is proposed to be

amended as follows:

PART 146—UNDERGROUND

INJECTION CONTROL PROGRAM

1. The authority citation for Part 146

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 146.15 is added to read as

follows:

§ 146.15 Class I municipal well alternate

authorization in Florida.

(a) Authorization to inject pursuant to

this section is limited to existing Class

I municipal wells in specific geographic

regions as defined in paragraph (h) of

this section that inject domestic

wastewater effluent as defined in

paragraph (c) of this section and that

have caused or may cause fluid

movement into USDWs. Pursuant to this

section, an existing Class I well does not

violate the regulatory prohibitions in

Parts 144 and 146 of this chapter against

the movement of injection or formation

fluids into a USDW, provided that such

well operates consistently with the

requirements of this section.

(b) For purposes of this section, an

existing Class I well is defined as a well

for which a complete UIC construction

permit application has been received by

the Director on or before the date of

publication of this proposed rule in the

Federal Register.

(c) For purposes of this section,

injected fluids shall be considered

domestic wastewater effluent if they are

injected by a facility that:

(1) Is a publicly or privately owned

and operated domestic wastewater

treatment facility;

(2) Receives wastewater derived

principally from dwellings, business

buildings, institutions, and the like,

commonly referred to as sanitary

wastewater or sewage, and

(3) Provides at least secondary

treatment, as described in § 133.102 of

this chapter, of the waste prior to

injection.

Option 1 for Paragraph (d)

(d) In order for a Class I municipal

well to qualify for authorization

pursuant to paragraph (a) of this section,

the owner and/or operator shall treat the

well’s injectate prior to injection using

advanced wastewater treatment and

high-level disinfection and shall also

provide a non-endangerment

demonstration that the injected fluids

will not cause any USDWs to exceed

primary drinking water regulations in

Part 141 of this chapter and other health

based standards (e.g., Federal and State

health advisories). This demonstration

would focus on any contaminants that

are expected to exceed primary drinking

water regulations in Part 141 of this

chapter and other health based

standards (e.g., Federal and State health

advisories) after treatment and would

include, at a minimum, effluent

monitoring and an analysis of any such

contaminants following injection. To

achieve high level disinfection, a

process designed to kill most

microorganisms in water including

pathogenic (disease causing) bacteria,

owners and/or operators must allow the

wastewater to remain in contact with at

least 1.0 mg/l of free chlorine for at least

15 minutes of contact with no fecal

coliform. The minimum level of

advanced wastewater treatment that

must be provided is:

Option a: 10–24 mg/l BOD with

disinfection.

Option b: 10–24 mg/l BOD with

disinfection and nutrient removal.

Option c: <10 mg/l BOD with

disinfection.

Option d: <10 mg/l BOD with

disinfection and nutrient removal.

Option 2 for Paragraph (d)

(d) In order for a Class I municipal

well to qualify for authorization

pursuant to paragraph (a) of this section,

the owner and/or operator must provide

a hydrogeologic demonstration to the

satisfaction of the Director and EPA that

the injected fluids will not cause any

USDWs to exceed primary drinking

water regulations in Part 141 of this

chapter and other health based

standards (e.g., Federal and State health

advisories). This demonstration would

include at a minimum: ground-water

modeling, geochemical analysis and

effluent and ground-water monitoring

and analysis. If they cannot make this

demonstration, the owner and/or

operator must provide sufficient

advanced wastewater treatment,

nutrient removal and high-level

disinfection to enable them to

demonstrate that the injected fluids will

not cause any USDWs to exceed primary

drinking water regulations in Part 141 of

this chapter and other health based

standards (e.g., Federal and State health

advisories).

(e) The demonstration pursuant to

paragraph (d) of this section must be

submitted to both the State and EPA for

review. The demonstration shall be

reviewed and either approved or

disapproved in writing by the Director.

If the Director disapproves the

demonstration, the applicant shall not

have met the requirements of paragraph

(d) of this section. If the Director

Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed Rules 42245

approves the demonstration, he or she

shall promptly mail a copy of the

approval to the Regional Administrator.

The authorization shall become final if

the State Director submits the approval

in writing to the Regional Administrator

and the Regional Administrator has not

disapproved the authorization within 90

days. Any disapproval by the Regional

Administrator shall state the reasons for

disapproval and shall constitute final

Agency action. In the event the Regional

Administrator exercises this authority to

disapprove the demonstration, the

applicant shall not have met the

requirements of paragraph (d) of this

section. The Director’s approval and any

conditions of the authorization shall be

included as part of the permit decision.

(f) Monitoring and reporting. In

addition to meeting the requirements of

§ 146.13, the owner/operator must

perform such monitoring, analysis, and

reporting as specified by the Director in

the permit authorization. The

monitoring required under this section

will include, at a minimum, initial

characterization and annual analysis of

the injectate for contaminants covered

by the primary drinking water

regulations in Part 141 of this chapter or

other health based standards. The

Director shall also require that the

owner/operator develop and implement

an ambient/ground water monitoring

program.

The ground water monitoring program

will, at a minimum, analyze the ground

water to determine if any primary

drinking water regulations in Part 141 of

the chapter or other health based

standards have been violated. The

monitoring is to verify that the injection

operation shall not endanger the USDW

through movement of the injectate or

formation fluids. These requirements

would be incorporated as permit

conditions of an operation permit under

the Florida UIC program. Additional

requirements, such as the construction

of additional monitoring wells may be

needed on a case-by-case basis.

(g) Owners and/or operators of Class

I injection wells which are operating

under the authority of paragraph (d) of

this section shall update and resubmit

their demonstration under paragraph (d)

of this section with each subsequent

Class I operation permit application,

every five (5) years. The owner and/or

operator shall submit, as part of such

subsequent demonstrations, all

monitoring results not available at the

time of the prior permit review and

verification that the original

demonstration is still valid for the

disposal operation.

(h) Authorization to inject domestic

wastewater through existing Class I

wells pursuant to this section is limited

to municipal wells in Florida in the

following counties: Brevard, Broward,

Charlotte, Collier, Dade, Flagler, Glades,

Hendry, Highlands, Hillsborough,

Indian River, Lee, Manatee, Martin,

Monroe, Okeechobee, Orange, Osceola,

Palm Beach, Pinellas, St. Johns, St.

Lucie, Sarasota, and Volusia.

Proposed only if Option 2 for

paragraph (d) of this section is selected:

(i) Beginning on January 1, 2015,

owners and/or operators of Class I

injection wells operating under the

authority of this section may not qualify

for authorization pursuant to this

section unless the injectate has been

subject to advanced wastewater

treatment and high-level disinfection.

The minimum level of advanced

wastewater treatment that must be

provided is:

Option a: 10–24 mg/l BOD with

disinfection, or

Option b: 10–24 mg/l BOD with

disinfection and nutrient removal, or

Option c: <10 mg/l BOD with

disinfection, or

Option d: <10 mg/l BOD with

disinfection and nutrient removal.

(2) The owners and/or operators

would still have to demonstrate that the

injected fluids will not cause any

USDWs to exceed primary drinking

water regulations in Part 141 of this

chapter and other health based

standards (e.g., Federal and State health

advisories).

[FR Doc. 00–16753 Filed 7–6–00; 8:45 am]

BILLING CODE 6560–50–P