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[Federal Register Volume 89, Number 229 (Wednesday, November 27, 2024)]
[Proposed Rules]
[Pages 93538-93545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27638]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-HQ-OW-2024-0357; FRL 12000-01-OW]

West Virginia Underground Injection Control (UIC) Program; Class 
VI Primacy

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency) 
has received a complete Underground Injection Control (UIC) program 
revision package from the State of West Virginia (State), requesting 
approval of a revision to the State's Safe Drinking Water Act (SDWA) 
section 1422 UIC program to include Class VI injection well primary 
enforcement responsibility (primacy). The proposed revision would allow 
the West Virginia Department of Environmental Protection (WVDEP) to 
issue UIC permits for geologic carbon sequestration facilities as Class 
VI wells and ensure compliance of Class VI wells under the UIC program. 
The EPA proposes to issue a final rule approving West Virginia's 
application to implement the UIC program for Class VI injection wells 
located within the State, except those on Indian lands. The EPA 
proposes amendments to reflect this proposed approval of West 
Virginia's Class VI primacy application.

DATES: Comments must be received on or before December 30, 2024. Public 
hearing: The EPA will hold a public hearing on December 30, 2024. 
Please refer to the SUPPLEMENTARY INFORMATION section for additional 
information on the public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2024-0357 by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Colin Dyroff, Drinking Water 
Infrastructure Development Division, Office of Ground Water and 
Drinking Water (4606M), Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 
564-3149; or Himanshu Vyas, Water Division, Source Water & UIC Section 
(3WD22), Environmental Protection Agency, Region 3, Four Penn Center, 
1600 JFK Boulevard, Philadelphia, PA 19103; telephone number: (215) 
814-2112. Both can be reached by emailing [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
    A. Written Comments
    B. Participation in Public Hearing
    C. Public Participation Activities Conducted by West Virginia
II. Introduction
    A. UIC Program and Primary Enforcement Authority (Primacy)
    B. Class VI Wells Under the UIC Program
    C. West Virginia UIC Program
III. Legal Authorities
IV. The EPA's Evaluation of West Virginia's Program Revision 
Application
    A. Background
    B. Environmental Justice in Class VI Permitting
    C. Summary of the EPA's Comprehensive Evaluation
V. The EPA's Proposed Action
    A. Incorporation by Reference
    B. Class I-V Codification--No Action
VI. Statutory and Executive Orders Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 14094: Modernizing Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations and Executive Order 14096: Revitalizing Our Nation's 
Commitment to Environmental Justice for All
VII. References

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2024-
0357, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit to the 
EPA's docket at https://www.regulations.gov any information you 
consider to be Confidential Business Information (CBI), Proprietary 
Business Information (PBI), or other information whose disclosure is 
restricted by statute. If you need to submit CBI, contact Himanshu Vyas 
with the contact information available in the FOR FURTHER INFORMATION 
CONTACT section. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA will generally not consider comments or comment 
contents located outside of the primary

[[Page 93539]]

submission (i.e., on the web, cloud, or other file sharing system). 
Please visit https://www.epa.gov/dockets/commenting-epa-dockets for 
additional submission methods; the full EPA public comment policy; 
information about CBI, PBI, or multimedia submissions; and general 
guidance on making effective comments.

B. Participation in Public Hearing

    A public hearing is anticipated to be held on December 30, 2024. 
The EPA expects to announce the location, time of the hearing, as well 
as any updates made to any aspect of the hearing online at https://www.epa.gov/aboutepa/epa-region-3-mid-atlantic#pn. The hearing can also 
be attended virtually at https://www.zoomgov.com/j/1600637199. While 
the EPA expects the hearing to go forward as set forth above, please 
monitor our website or contact Himanshu Vyas at (215) 814-2112 or 
[email protected] to determine if there are any updates or for 
additional information regarding the public hearing. The EPA does not 
intend to publish a document in the Federal Register announcing 
updates.
    The EPA will begin pre-registering speakers for the hearing upon 
publication of this document in the Federal Register. To register to 
speak at the hearing, please contact Himanshu Vyas at (215) 814-2112 or 
[email protected] and indicate whether you will be attending in-person 
or virtually. The last day to pre-register to speak at the hearing will 
be December 23, 2024. Prior to the hearing, the EPA will post a general 
agenda for the hearing that will list pre-registered speakers in 
approximate order at: https://www.epa.gov/aboutepa/epa-region-3-mid-atlantic#pn.
    The EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearings to run either ahead of schedule or behind schedule. 
Additionally, requests to speak will be taken the day of the hearing at 
the hearing registration desk. The EPA will make every effort to 
accommodate all speakers who arrive and register, although preferences 
on speaking times may not be able to be fulfilled.
    The EPA encourages commenters to provide the EPA with a copy of 
their oral testimony electronically by emailing it to 
[email protected]. The EPA also recommends submitting the text of your 
oral comments as written comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations 
but will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral comments and 
supporting information presented at the public hearing.
    The EPA will not provide audiovisual equipment for presentations 
unless we receive special requests in advance. Commenters should notify 
Himanshu Vyas when they pre-register to speak that they will need 
specific equipment. If you require the services of an interpreter or 
special accommodations such as audio description, please pre-register 
for the hearing with Himanshu Vyas and describe your needs by December 
23, 2024. The EPA may not be able to arrange accommodations without 
advance notice.

C. Public Participation Activities Conducted by West Virginia

    On June 23, 2021, the WVDEP posted a notice of public comment 
period on their website for an action to revise West Virginia Code of 
State Rules 47CSR13 to add new regulations for Class VI wells and to 
update the State's existing Class I-V regulations. The WVDEP held a 
public comment period from June 23, 2021 to July 23, 2021 and held a 
virtual public hearing on July 23, 2021. The WVDEP received 55 
comments, 19 of which commented on Class VI wells. These comments did 
not result in changes to the proposed regulatory revisions. The 
effective date for this rule revision was March 9, 2022.
    Then, on June 12, 2023, the WVDEP posted a notice of public comment 
period on their website for another action to make additional updates 
to the State's Class I-VI regulations in 47CSR13 of the West Virginia 
Code of State Rules. The WVDEP held a public comment period from June 
12, 2023 to July 18, 2023 and held a public hearing on July 18, 2023 in 
Charleston, WV. The WVDEP received five comments, all of which related 
to Class VI wells. These comments did not result in changes to the 
proposed updates to the regulations. The effective date for this rule 
revision was April 5, 2024.
    Commenters on the WVDEP's proposed rulemakings shared concerns on 
various topics including applicant financial burden, fees, the area of 
review radius, post-injection site care, and seismic activity reviews. 
Commenters also expressed concern about whether the WVDEP has adequate 
staffing and technical expertise to properly manage a UIC Class VI 
program. Environmental justice (EJ) also appeared to be a major 
concern, with commenters asking about how EJ protections will be 
integrated into the program. The WVDEP responded to all public 
comments, provided various clarifications, and confirmed to commenters 
that EJ will be an important part of the agency's Class VI program. The 
WVDEP also added that the agency's Class VI team would be composed of 
technical specialists with expertise in geology, well construction, and 
UIC inspections. Additionally, the WVDEP stated that the rule revisions 
were adopted to be consistent with Federal requirements and that the 
agency's primary objective is to protect underground sources of 
drinking water, groundwater, and surface water. Documentation of West 
Virginia's public participation activities, including comments received 
and responses by the WVDEP, can be found in the EPA's Docket ID No. 
EPA-HQ-OW-2024-0357.

II. Introduction

A. UIC Program and Primary Enforcement Authority (Primacy)

    The SDWA protects public health by regulating the nation's public 
drinking water supply, including both surface and groundwater sources. 
The SDWA requires the EPA to develop minimum requirements for effective 
State and Tribal UIC programs to prevent underground injection of 
fluids (such as water, wastewater, brines from oil and gas production, 
and carbon dioxide) from endangering underground sources of drinking 
water (USDWs). In general, USDWs are aquifers or parts of aquifers that 
supply a public water system or contain enough groundwater to supply a 
public water system. See 40 CFR 144.3.
    The UIC program regulates various aspects of an injection well 
project. These include technical aspects throughout the lifetime of the 
project from site characterization, construction, operation, and 
testing and monitoring through site closure, as well as permitting, 
site inspections, and reporting to ensure well owners and operators 
comply with UIC regulations.
    SDWA section 1421 directs the EPA to establish requirements that 
States, territories, and federally recognized Tribes (hereafter 
referred to as applicants) must meet to be granted primary enforcement 
responsibility or ``primacy'' for implementing a UIC program, including 
a Class VI program. An applicant seeking primacy under SDWA section 
1422 for a Class VI program must demonstrate to the EPA that the 
applicant's Class VI program meets the Federal requirements and is 
protective of USDWs. An applicant agency must also demonstrate 
jurisdiction over underground injection

[[Page 93540]]

and the administrative, civil, and criminal enforcement authorities 
required by EPA regulation. After the EPA approves a State for UIC 
primacy, the State's UIC program may be revised with EPA approval. See 
40 CFR 145.32. When a State that already has primacy under SDWA section 
1422 seeks to add Class VI primacy to its existing program, a 
subsequent primacy application and review process takes the form of a 
program revision.
    The EPA conducts a comprehensive technical and legal evaluation of 
each primacy application to assess and confirm that the proposed 
program meets Federal regulations and to evaluate the effectiveness of 
the State's proposed program. The EPA likewise conducts a comprehensive 
evaluation of a proposed revision to an existing UIC program, 
particularly a revision as substantial as adding Class VI primacy.

B. Class VI Wells Under the UIC Program

    Class VI wells are used to inject carbon dioxide into deep rock 
formations for the purpose of long-term underground storage, also known 
as geologic sequestration. The geologic sequestration of carbon dioxide 
in UIC Class VI wells is used in carbon capture and storage to prevent 
carbon dioxide emissions from industrial sources from reaching the 
atmosphere. Class VI injection wells are regulated under an existing, 
rigorous SDWA permitting framework that protects USDWs.
    The UIC Class VI program provides multiple safeguards that work 
together to protect USDWs and human health. Owners or operators that 
wish to inject carbon dioxide underground for the purpose of geologic 
sequestration must demonstrate that their injection well and injection 
activities will meet all regulatory requirements and receive a Class VI 
permit for each well. The UIC Class VI program requires applicants to 
meet strict technical, financial, and managerial requirements to obtain 
a Class VI permit, including:
     Site characterization to ensure the geology in the project 
area will contain the carbon dioxide within the zone where it will be 
injected.
     Modeling to delineate the predicted area influenced by 
injection activities through the lifetime of operation.
     Evaluation of the delineated area to ensure all potential 
pathways for fluid movement have been identified and addressed through 
corrective action.
     Well construction requirements that ensure the Class VI 
injection well will not leak carbon dioxide.
     Testing and monitoring throughout the life of the project, 
including after carbon dioxide injection has ended. Requirements 
include, for example, testing to ensure physical integrity of the well, 
monitoring for seismic activity near the injection site, monitoring of 
injection pressure and flow, chemical analysis of the carbon dioxide 
stream that is being injected, and monitoring the extent of the 
injected carbon dioxide plume and the surrounding area (e.g., ground 
water) to ensure the carbon dioxide is contained as predicted.
     Operating requirements (for example, injection pressure 
limitations) to ensure the injection activity will not endanger USDWs 
or human health.
     Financial assurance mechanisms sufficient to cover the 
costs for all phases of the geologic sequestration project including 
the post-injection site care period and until site closure has been 
approved by the permitting authority.
     Emergency and remedial response plans.
     Reporting of all testing and monitoring results to the 
permitting authority to ensure the well is operating in compliance with 
all permit and regulatory requirements.
    The permitting authority ensures that these protective requirements 
are included in each Class VI permit. A draft of each Class VI permit 
is made available to the public for comment before the decision is made 
whether to issue a final permit.

C. West Virginia UIC Program

    The State of West Virginia received primacy for Class I, III, IV, 
and V injection wells under SDWA section 1422 and Class II injection 
wells under SDWA section 1425 on December 9, 1983 (48 FR 55127). On May 
1, 2024, West Virginia applied to the EPA under section 1422 of SDWA, 
42 U.S.C. 300h-1, for primacy for Class VI injection wells located 
within the State, except those located on Indian lands.

III. Legal Authorities

    This regulation is proposed under authority of SDWA sections 1422 
and 1450, 42 U.S.C. 300h-1 and 300j-9.
    Section 1421 of SDWA requires the Administrator of the EPA to 
promulgate Federal requirements for effective State UIC programs to 
prevent underground injection activities that endanger USDWs. Section 
1422 of SDWA establishes requirements for States and Tribes seeking EPA 
approval of their UIC programs. It also requires that States and Tribes 
seeking approval demonstrate how the applicant (after public notice) 
will implement a UIC program which meets the requirements that the EPA 
promulgated under section 1421.
    For States and Tribes that seek approval for UIC programs under 
section 1422 of SDWA and those seeking EPA approval of revisions to 
existing State and Tribal UIC programs, the EPA has promulgated 
regulations setting forth the applicable procedures and substantive 
requirements codified in 40 CFR parts 144, 145 and 146. 40 CFR part 144 
outlines general program requirements that each State must meet to 
obtain primary enforcement authority. 40 CFR part 145 specifies the 
procedures the EPA will follow in approving, revising, and withdrawing 
State programs and outlines the elements and provisions that a State 
must include in its application for primacy. 40 CFR part 145 also 
includes requirements for State permitting programs (by reference to 
certain provisions of 40 CFR parts 124 and 144), compliance evaluation 
programs, enforcement authority, and sharing of information between the 
EPA and the State. 40 CFR part 146 contains the technical criteria and 
standards applicable to each well class, including Class VI wells.

IV. The EPA's Evaluation of West Virginia's Program Revision 
Application

A. Background

    On May 1, 2024, West Virginia submitted to the EPA a program 
revision application to add Class VI wells to the State's SDWA section 
1422 UIC program. The UIC program revision package from West Virginia 
includes a description of the State's UIC Class VI program, copies of 
all applicable rules and forms, a statement of legal authority, a 
summary and results of West Virginia's public participation activities, 
an amended addendum to the existing Memorandum of Agreement (MOA) 
between West Virginia and the EPA's Region 3 office, an interagency MOA 
between the WVDEP and the West Virginia Geologic and Economic Survey 
(WVGES), and an interagency MOA between the WVDEP and the West Virginia 
Department of Health. The EPA reviewed the application for completeness 
and performed a technical evaluation of the application materials.

B. Environmental Justice in Class VI Permitting

    People across the country have shared with the EPA concerns that 
already environmentally overburdened communities may bear a 
disproportionate environmental burden associated with geologic 
sequestration.

[[Page 93541]]

Executive Order 12898 (59 FR 7629, February 16, 1994) and Executive 
Order 14096 (88 FR 25251, April 21, 2023) direct Federal agencies, to 
the greatest extent practicable and permitted by law, to identify and 
address, as appropriate, disproportionate and adverse human health or 
environmental impacts on communities with EJ concerns. On August 17, 
2023, the EPA released a guidance document titled Environmental Justice 
Guidance for UIC Class VI Permitting and Primacy. This guidance 
outlines expectations for the EPA to incorporate EJ considerations into 
Class VI activities. It is organized into five themes that address 
various aspects of EJ in UIC Class VI permitting, and strongly 
encourages States, Tribes, and Territories to implement their Class VI 
programs in a similar fashion.
    As part of developing this proposal, the EPA worked with the State 
of West Virginia to adopt the EJ approaches encouraged in the August 
17, 2023 guidance document, which West Virginia has incorporated in its 
primacy application. The EPA reviewed West Virginia's EJ approach as 
described in the State's Class VI program description and amended MOA 
addendum and compared it to the EJ themes and actions in the guidance 
document. The EJ approach in the amended MOA addendum corresponds to 
the five themes in the EPA's August 17, 2023 guidance document, which 
include identifying communities with potential EJ concerns, 
implementing an augmented public participation process, conducting 
additional assessments for projects identified as having EJ concerns, 
ensuring the permitting process is transparent, and minimizing adverse 
effects to underground sources of drinking water and the communities 
they may serve. Furthermore, West Virginia's Class VI program 
description specifies that the WVDEP will require well owners or 
operators to conduct an EJ review as part of the Class VI permit 
application process. The EPA supports the WVDEP's agreement in its 
Class VI program description to evaluate project sites using the EPA's 
EJ Screen and to take additional steps if this initial screening 
identifies the presence of an EJ community or other risk factors in the 
area of review (AOR). West Virginia's Class VI program, as described in 
the WVDEP's primacy application, includes approaches to ensure equity 
and EJ will be appropriately considered in permit reviews, and in the 
WVDEP's UIC Class VI program as a whole.

C. Summary of the EPA's Comprehensive Evaluation

    The EPA conducted a comprehensive technical and legal evaluation of 
West Virginia's Class VI primacy application to assess and confirm that 
the State's UIC Class VI program is as stringent as the Federal 
regulations and evaluated the effectiveness of the State's Class VI 
program. To be approved for Class VI primacy under SDWA section 1422, a 
State or Tribe must have a UIC program that meets Federal requirements 
(40 CFR parts 124, 144, 145, and 146). The EPA evaluated West 
Virginia's Class VI UIC statutes and regulations against these Federal 
requirements. The EPA worked with West Virginia to address any 
stringency issues with their Class VI statutes and regulations prior to 
submittal of the Class VI primacy application. The Agency also 
evaluated for stringency and effectiveness West Virginia's Class VI 
program description, the Class VI Attorney General's statement, the 
amended Class VI addendum to the MOA between the EPA and West Virginia, 
the interagency MOA between the WVDEP and the West Virginia Geologic 
and Economic Survey, and the interagency MOA between the WVDEP and the 
West Virginia Department of Health.
    The EPA evaluated West Virginia's Class VI program description 
against 40 CFR 145.23, which lists all the information to be submitted 
as part of the program description. The EPA's evaluation of the Class 
VI program description included reviewing the scope, structure, 
coverage, processes, and organizational structure of the permitting 
authority. The EPA evaluated the WVDEP's permitting, administrative, 
and judicial review procedures, as well as the State's permit 
application, reporting, and manifest forms. The EPA also reviewed the 
State's compliance evaluation and enforcement mechanisms. The EPA 
evaluated the WVDEP's proposed schedule for issuing Class VI permits 
within the first two years after program approval. The EPA required 
West Virginia to demonstrate that the State's Class VI program will 
have adequate in-house staff or access to contractor support for 
technical areas including site characterization, modeling, well 
construction and testing, financial responsibility, and regulatory and 
risk analysis.
    The EPA evaluated West Virginia's Class VI Attorney General's 
statement against 40 CFR 145.24 to ensure it met Federal requirements. 
The Attorney General's statement is required to ensure that a State's 
top legal officer affirms that State statutes, regulations, and 
judicial decisions demonstrate adequate authority to administer the UIC 
program as described in the Class VI program description and consistent 
with the EPA's regulatory requirements for UIC programs. The EPA 
independently evaluates and confirms that the Attorney General's 
statement certifies that the State either does not have environmental 
audit privilege and/or immunity laws, or, if there are environmental 
audit privilege and/or immunity laws, that they will not affect the 
ability of the State to meet the enforcement and information gathering 
requirements under the SDWA.
    The EPA evaluated West Virginia's amended Class VI MOA addendum 
against 40 CFR 145.25 to ensure it met Federal requirements. The MOA is 
the central agreement setting the provisions and arrangements between 
the State and the EPA concerning the administration, implementation, 
and enforcement of the State UIC program. The EPA's evaluation includes 
ensuring that the MOA contains the necessary provisions pertaining to 
agreements on coordination, permitting, compliance monitoring, 
enforcement, and EPA oversight. For example, the amended MOA addendum 
specifies that the WVDEP and the EPA agree to maintain a high level of 
cooperation and coordination to assure successful and efficient 
administration of the UIC Class VI program.
    The EPA reviewed the WVDEP's interagency MOA with the West Virginia 
Geological and Economic Survey. The WVGES is a West Virginia agency 
with expertise to provide information to the WVDEP on local geologic 
characteristics in relation to proposed underground injection 
operations. The interagency MOA between the WVDEP and the WVGES 
establishes a coordinated relationship between the two state agencies 
to properly assess geological characteristics in a proposed work area 
to support permit determinations. The EPA also reviewed the WVDEP's 
interagency MOA with the West Virginia Department of Health (WVDOH). 
Under this interagency MOA, the WVDOH will conduct a review of the 
proposed area of work and permit application details and provide input 
to assist in permit determinations, among other provisions.
    The EPA is aware that stakeholders have raised concern about 
geologic sequestration long term liability transfer provisions enacted 
in West Virginia and other States. The EPA reviewed the West Virginia 
statutory provision relating to long-term liability transfer

[[Page 93542]]

(W. Va. Code Sec.  22-11B-12) and determined that it does not undermine 
any protections under the Safe Drinking Water Act. Under the West 
Virginia long-term liability transfer provision, all Class VI 
regulatory and permit requirements must be met before liability 
transfer may occur.\1\ Consistent with EPA regulations, West Virginia 
imposes extensive post-injection monitoring--a default of 50 years--and 
site closure requirements at the end of a Class VI well's life cycle to 
ensure that there will be no danger to USDWs. Only after all those 
requirements are met does West Virginia's long-term liability transfer 
provision allow a limited transfer of any future liability to a state-
administered and industry-funded trust fund. Among other additional 
limitations, the provision is explicit that it does not: relieve any 
owner or operator from any liability that arises from noncompliance 
with UIC laws, regulations or permits; apply if the WVDEP determines 
that there is fluid migration for which the operator is responsible 
that threatens imminent and substantial endangerment to a USDW; or 
interfere with the EPA's emergency authority under SDWA section 1431.
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    \1\ Such requirements include the post closure deed notation and 
record retention requirements at 40 CFR 146.93 and 47CSR13.13.9, as 
specifically mentioned in the Class VI MOA amended addendum.
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    West Virginia has demonstrated that it has the legal authority to 
implement all permit requirements found in 40 CFR 145.11 for Class VI 
permits. West Virginia's UIC Class VI permitting provisions are as 
stringent as the EPA's regulations in 40 CFR parts 124 and 144. The 
State has incorporated necessary procedures, pursuant to 40 CFR 145.12 
to support a robust Class VI compliance evaluation program. 
Additionally, West Virginia has the necessary administrative, civil, 
and criminal enforcement authorities pursuant to 40 CFR 145.13. West 
Virginia's Class VI regulations regarding permitting, inspection, 
operation, and monitoring meet Federal requirements found in 40 CFR 
parts 145 and 146. West Virginia's reporting and recordkeeping 
requirements meet Federal requirements found in 40 CFR 144.54 and 
146.91 for Class VI wells.
    As a result of this comprehensive review, the EPA is proposing to 
approve West Virginia's application because the EPA has determined that 
the application meets all applicable requirements for approval under 
SDWA section 1422 and the State is capable of administering a UIC Class 
VI program in a manner consistent with the terms and purposes of SDWA 
and all applicable UIC regulations.

V. The EPA's Proposed Action

A. Incorporation by Reference

    The EPA is proposing to approve a revision to the State of West 
Virginia's UIC program for primacy for regulating Class VI injection 
wells in the State, except for those located on Indian lands. West 
Virginia's statutes and regulations that are proposed to be 
incorporated by reference are publicly available in the EPA's Docket 
No. EPA-HQ-OW-2024-0357. If finalized, this action would amend 40 CFR 
147.2450 and incorporate by reference EPA-approved State statutes and 
regulations that contain standards, requirements, and procedures 
applicable to Class VI owners or operators. Any provisions incorporated 
by reference, as well as all permit conditions or permit denials issued 
pursuant to such provisions, are enforceable by the EPA pursuant to 
section 1423 of SDWA and 40 CFR 147.1(e). The EPA will continue to 
administer the UIC program for Class I, II, III, IV, V, and VI 
injection wells on Indian lands.
    The EPA proposes to incorporate by reference the West Virginia 
statutes and regulations applicable to owners or operators of Class VI 
wells as a compilation titled ``EPA-approved West Virginia SDWA section 
1422 Underground Injection Control Program Statutes and Regulations for 
Well Class VI,'' dated [date when the EPA compiles the notebook]. This 
compilation would be incorporated by reference into 40 CFR 147.2450 and 
is available at www.regulations.gov in the docket for this proposed 
rulemaking. The EPA also proposes to codify a table in 40 CFR 147.2450 
listing the EPA-approved West Virginia Statutes and Regulations for 
Well Class VI included in the compilation that EPA would incorporate by 
reference. While the regulations in 47CSR13 contain requirements for 
all UIC well classes (i.e., Class I-VI), only the requirements 
applicable to owners or operators of Class VI wells would be 
incorporated by reference as part of this action.
    Upon approval, the EPA would oversee West Virginia's administration 
of its Class VI program and will continue to oversee West Virginia's 
administration of its programs for Class I, II, III, IV, and V wells. 
The EPA will require quarterly reports on non-compliance and annual UIC 
performance reports pursuant to 40 CFR 144.8. The amended MOA addendum 
between the EPA and West Virginia, signed by the Regional Administrator 
on October 9, 2024, articulates that the EPA will oversee the State's 
administration of the UIC Class VI program on a continuing basis to 
assure that such administration is consistent with the program MOAs, 
UIC grant agreements, and all applicable requirements embodied in 
current regulations and Federal law. In addition, the amended MOA 
addendum provides that the EPA may request specific information 
including permits and the accompanying EJ reviews.

B. Class I-V Codification--No Action

    As referenced in section II.C of this preamble, the EPA approved 
West Virginia for Class I-V primacy in 1983. After notice and public 
comment, the EPA determined that West Virginia's UIC program met 
Federal requirements and published its decision to approve West 
Virginia's UIC program in the Federal Register (48 FR 55127, December 
9, 1983). The Code of Federal Regulations (CFR) sets forth the 
applicable UIC program for each State (40 CFR 147.1) and, upon 
approving a State for UIC primacy, the EPA typically updates the CFR to 
reflect its approval. However, for reasons that current EPA staff were 
unable to ascertain, when the EPA approved West Virginia's UIC program 
in 1983, the CFR was not revised to reflect the EPA's approval, and the 
CFR currently does not reflect West Virginia's Class I-V primacy. While 
the EPA is not addressing this CFR discrepancy as part of this proposed 
action, the EPA expects to address it later as part of a separate 
action. The current proposal is confined to approving a revision to 
West Virginia's existing UIC primacy program to grant the State primacy 
over Class VI wells; it is not addressing other well classes.\2\ 
Separately, the EPA is working with West Virginia to assess the State's 
current Class I-V program elements and expects to codify in the CFR the 
State's Class I-V program in 2025 as part of a separate action. An 
email from the WVDEP affirming the State's intention to submit a Class 
I-V program revision package in 2025 following the Class VI process can 
be found in the docket for this proposed rulemaking.
---------------------------------------------------------------------------

    \2\ Even if this proposed action were not a revision to an 
existing UIC program, the UIC regulations at 40 CFR 145.1(i) allow 
States to apply for primary enforcement responsibility for Class VI 
wells independently of other injection well classes.
---------------------------------------------------------------------------

VI. Statutory and Executive Orders Reviews

    Additional information about these statutes and Executive orders 
can be found at: https://www.epa.gov/laws-regulations/laws-and-executive-orders.

[[Page 93543]]

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This proposed action is exempt from review under Executive Order 
12866, as amended by Executive Order 14094, because the Office of 
Management and Budget (OMB) has exempted, as a category, the approval 
of State UIC programs.

B. Paperwork Reduction Act (PRA)

    This proposed action will not impose any new information collection 
burden under the PRA. OMB has previously approved the information 
collection activities contained in the existing regulations and has 
assigned OMB control number 2040-0042. Reporting or recordkeeping 
requirements will be based on West Virginia's Class VI UIC Regulations, 
and the State of West Virginia is not subject to the PRA.

C. Regulatory Flexibility Act (RFA)

    I certify that this proposed action will not have a significant 
economic impact on a substantial number of small entities under the 
RFA. This proposed action would not impose any new requirements on 
small entities. It simply approves and codifies West Virginia's UIC 
Class VI program, which meets the same standard under SDWA section 1422 
as is required for the EPA's regulations governing its direct 
implementation of a UIC Class VI program.

D. Unfunded Mandates Reform Act (UMRA)

    This proposed action does not contain an unfunded mandate as 
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or 
uniquely affect small governments. The proposed action imposes no 
enforceable duty on any state, local, or Tribal governments or the 
private sector. The EPA's proposed approval of West Virginia's Class VI 
program will not constitute a Federal mandate because there is no 
requirement that a state establish UIC regulatory programs and because 
the program is a state, rather than a Federal program.

E. Executive Order 13132: Federalism

    This proposed action 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have Tribal implications as specified 
in Executive Order 13175. This proposed action contains no Federal 
mandates for Tribal governments and does not impose any enforceable 
duties on Tribal governments. Thus, Executive Order 13175 does not 
apply to this proposed action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This proposed action is not 
subject to Executive Order 13045 because it approves a state program.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed action is not subject to Executive Order 13211, 
because it is not a significant regulatory action under Executive Order 
12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This proposed rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    The EPA believes that it is not practicable to assess whether the 
human health or environmental conditions that exist prior to this 
proposed action result in disproportionate and adverse effects on 
communities with environmental justice concerns. There currently are no 
Class VI wells permitted in West Virginia and this proposed action 
would be a procedural action. The EPA has reviewed West Virginia's 
proposed approach to environmental justice, as outlined in the Class VI 
Program Description and Class VI MOA amended addendum, and described in 
section IV.B of this preamble. The EPA considers West Virginia's Class 
VI primacy application to integrate environmental justice and equity 
considerations into the State's UIC Class VI program, while ensuring 
protection of USDWs. This proposed action would provide West Virginia 
with primacy under SDWA section 1422 for a UIC Class VI program, 
pursuant to which West Virginia would implement a program that meets 
the EPA's requirements for UIC Class VI programs.

VII. References

Attorney General's Statement ``Attorney General's Statement to 
Accompany West Virginia's Underground Injection Program Class VI 
Primacy Application,'' signed by the General Counsel of the West 
Virginia Department of Environmental Protection, April 29, 2024.
Class VI Underground Injection Control Program Description ``WV 
Class 6 Program Description'', June 2024.
Email from West Virginia to EPA related to Class I-V program 
revision, April 22, 2024.
Letter from Governor of West Virginia to Regional Administrator, EPA 
Region III, April 25, 2024.
Memorandum of Agreement Amended Addendum 1 between the State of West 
Virginia and the EPA, Region III for the UIC Class VI Program, 
signed by the EPA Regional Administrator on October 9, 2024.
Federal Register notice ``West Virginia Department of Natural 
Resources; Underground Injection Control Program Approval'', EPA, 48 
FR 55127-55128 (December 9, 1983).
Memorandum of Agreement between the State of West Virginia and the 
EPA, Region III, signed by the EPA Regional Administrator on August 
31, 1983.
Memorandum of Agreement Between The West Virginia Department of 
Environmental Protection and The West Virginia Department of Health, 
signed April 26, 2024.
Memorandum of Agreement Between The West Virginia Department of 
Environmental Protection and The West Virginia Geological and 
Economic Survey, signed April 29, 2024.
Program Description ``Program Description for the West Virginia 
Underground Injection Control Program'', December 1983.
State of West Virginia. Notice of Action Taken by Legislative Rule-
Making Review Committee, December 9, 2021.
State of West Virginia. Notice of Action Taken by Legislative Rule-
Making Review Committee, September 13, 2023.
State of West Virginia. Notice of Public Comment Period and Hearing, 
June 12, 2023.
State of West Virginia. Notice of Public Comment Period and Hearing, 
June 23, 2021.
State of West Virginia. Public Comments and Responses, July 24, 
2023.
State of West Virginia. Public Comments and Responses, July 30, 
2021.
State of West Virginia. Public Hearing Transcript (Public Hearing 
Date: July 23, 2021), July 31, 2021.

[[Page 93544]]

State of West Virginia. Public Hearing Transcript (Public Hearing 
Date: July 18, 2023), August 12, 2023.
USEPA. 2023b. U.S. Environmental Protection Agency. Memorandum to 
Water Division Directors, Regions I-X, from Radhika Fox, Office of 
Water. Environmental Justice Guidance for UIC Class VI Permitting 
and Primacy (August 17, 2023).
West Virginia Code Sec.  22-11. Water Pollution Control Act. May 13, 
2024.
West Virginia Code Sec.  22-11A. Carbon Dioxide Sequestration Pilot 
Program. May 20, 2022.
West Virginia Code Sec.  22-11B. Underground Carbon Dioxide 
Sequestration and Storage. May 13, 2024.
West Virginia Code of State Rules Sec.  47-13. Underground Injection 
Control. April 5, 2024.

List of Subjects in 40 CFR Part 147

    Environmental protection, Incorporation by reference, Indian lands, 
Intergovernmental relations, Reporting and recordkeeping requirements, 
Water supply.

Michael S. Regan,
Administrator.

    For the reasons set forth in the preamble, the EPA proposes to 
amend 40 CFR part 147 as follows:

PART 147--STATE, TRIBAL, AND EPA-ADMINISTERED UNDERGROUND INJECTION 
CONTROL PROGRAMS

0
1. The authority citation for part 147 continues to read as follows:

    Authority: 42 U.S.C. 300f et seq.; and 42 U.S.C. 6901 et seq.

0
2. Add Sec.  147.2450 to read as follows:

Sec.  147.2450  State-administered program--Class VI Wells

    The UIC program for Class VI wells in the State of West Virginia, 
except those on Indian lands, is the program administered by the West 
Virginia Department of Environmental Protection, approved by the EPA 
pursuant to SDWA section 1422. The effective date of this program is 
[DATE 30 DAYS AFTER FINAL RULE PUBLICATION IN THE FEDERAL REGISTER]. 
The UIC program for Class VI wells in the State of West Virginia, 
except those located on Indian lands, consists of the following 
elements, as submitted to the EPA in the State's program revision 
application.
    (a) Incorporation by reference. The requirements applicable to 
owners or operators of Class VI wells set forth in the State statutes 
and regulations approved by the EPA for including in ``EPA-approved 
West Virginia SDWA Sec.  1422 Underground Injection Control Program 
Statutes and Regulations for Well Class VI,'' dated [date when the EPA 
compiles the notebook], and listed in table 1 to this paragraph (a), 
are hereby incorporated by reference and made a part of the applicable 
UIC program under the SDWA for the State of West Virginia. The Director 
of the Federal Register approves this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the State 
of West Virginia's statutes and regulations that are incorporated by 
reference may be inspected at the U.S. Environmental Protection Agency, 
Region 3, Four Penn Center, 1600 JFK Blvd., Philadelphia, PA 19103 and 
the U.S. Environmental Protection Agency, Water Docket, EPA Docket 
Center (EPA/DC), EPA WJC West, Room 3334, 1301 Constitution Ave. NW, 
Washington, DC 20004. If you wish to obtain materials from the EPA 
Regional Office, please call (215) 814-2816, or from the EPA 
Headquarters Library, please call the Water Docket at (202) 566-2426. 
You may also view this material at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. You may also obtain 
the State of West Virginia's statutes and regulations that are 
incorporated by reference from: Room MB-27, Building 1, State Capitol 
Complex, Charleston, West Virginia 25305; phone: (304) 347-4836; 
website: www.wvlegislature.gov.

    Table 1 to Paragraph (a)--EPA-Approved West Virginia SDWA Sec. 1422 Underground Injection Control Program
                                   Statutes and Regulations for Well Class VI
----------------------------------------------------------------------------------------------------------------
            State citation                  Title/subject         State effective date      EPA approval date
----------------------------------------------------------------------------------------------------------------
West Virginia Code Sec.   22-11......  Water Pollution Control  May 13, 2024...........  [DATE OF FINAL RULE
                                        Act.                                              PUBLICATION IN THE
                                                                                          FEDERAL REGISTER.]
West Virginia Code Sec.   22-11A.....  Carbon Dioxide           May 30, 2022...........  [DATE OF FINAL RULE
                                        Sequestration Pilot                               PUBLICATION IN THE
                                        Program.                                          FEDERAL REGISTER.]
West Virginia Code Sec.   22-11B.....  Underground Carbon       May 13, 2024...........  [DATE OF FINAL RULE
                                        Dioxide Sequestration                             PUBLICATION IN THE
                                        and Storage.                                      FEDERAL REGISTER.]
West Virginia Code of State Rules      Underground Injection    April 5, 2024..........  [DATE OF FINAL RULE
 Sec.   47-13.                          Control.                                          PUBLICATION IN THE
                                                                                          FEDERAL REGISTER.]
----------------------------------------------------------------------------------------------------------------

    (b) Memorandum of Agreement (MOA). (1) The Memorandum of Agreement 
between the State of West Virginia and the EPA, Region III, signed by 
the EPA Regional Administrator on August 31, 1983.
    (2) Memorandum of Agreement Amended Addendum 1 between the State of 
West Virginia and the EPA, Region III for the UIC Class VI Program, 
signed by the EPA Regional Administrator on October 9, 2024.
    (c) Letter from Governor. Letter from Governor of West Virginia to 
Regional Administrator, EPA Region III, April 25, 2024.
    (d) West Virginia Memorandums of Agreement. (1) Memorandum of 
Agreement Between The West Virginia Department of Environmental 
Protection and The West Virginia Geological and Economic Survey, 
effective April 1, 2024.
    (2) Memorandum of Agreement Between The West Virginia Department of 
Environmental Protection and The West Virginia Department of Health, 
signed April 26, 2024.
    (e) Statement of legal authority. Attorney General's Statement, 
``Attorney General's Statement to Accompany West Virginia's Underground 
Injection Program Class VI Primacy Application'', signed by the 
Attorney General of West Virginia on April 29, 2024.
    (f) Program Description. The Program Description, ``Program 
Description for the West Virginia Underground Injection Control 
Program'', and any other materials submitted as part of the application 
or amendment thereto, and the Class VI Underground Injection Control 
Program Description, ``WV Class

[[Page 93545]]

6 Program Description'', and any other materials submitted as part of 
the program revision application or as amendment thereto.

[FR Doc. 2024-27638 Filed 11-25-24; 8:45 am]
BILLING CODE 6560-50-P
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