40586 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 144, 145 and 146

[FRL–6129–4]

RIN 2040–AB83

Revisions to the Underground

Injection Control Regulations for Class

V Injection Wells

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) today is proposing

changes to the Class V Underground

Injection Control (UIC) regulations that

would add new requirements for three

categories of Class V wells that pose a

high risk when located in ground waterbased source water protection areas

being delineated by states under the

1996 Amendments to the Safe Drinking

Water Act (SDWA). Class V motor

vehicle waste disposal wells in such

areas would either be banned or would

have to get a permit that requires fluids

released in those wells to meet the

drinking water maximum contaminant

levels (MCLs) at the point of injection.

Class V industrial waste disposal wells

in ground water-based source water

protection areas also would be required

to meet the MCLs at the point of

injection, and large-capacity cesspools

in such areas would be banned. EPA is

proposing these new requirements to

address three categories of wells that it

has identified as posing a high risk of

ground water contamination based on

available information. These are motor

vehicle waste disposal wells, industrial

waste disposal wells, and cesspools in

ground water-based source water

protection areas. Targeting the

requirements to those wells will achieve

substantial protection of underground

sources of drinking water.

EPA also is proposing to consolidate

the Class V UIC regulations in a ‘‘plainEnglish’’ format to make it easier for

Class V well owners and operators to

understand when and how the

regulations apply to them. To that end,

EPA recommends that you review the

proposed regulatory language first, and

then refer to the preamble for

background and additional rationale not

included in the rule.

DATES: EPA must receive public

comment, in writing, on the proposed

regulations by September 28, 1998.

Comments will only be accepted on

certain new sections of the proposed

rule (see Table 1 of the Preamble).

ADDRESSES: Send written comments to

the UIC Class V, W–98–05 Comment

Clerk, Water Docket (MC–4101); U.S.

Environmental Protection Agency; 401

M Street, SW, Washington, DC 20460.

Comments may be hand-delivered to the

Water Docket, U.S. Environmental

Protection Agency; 401 M Street, SW.,

East Tower Basement, Washington, DC

20460. Comments may be submitted

electronically to

owdocket@epamail.epa.gov.

Please submit all references cited in

your comments. Facsimiles (faxes)

cannot be accepted. EPA would

appreciate one original and three copies

of your comments and enclosures

(including any references). Commenters

who would like EPA to acknowledge

receipt of their comments should

include a self-addressed, stamped

envelope.

The proposed rule and supporting

documents, including public comments,

are available for review in the Water

Docket at the above address. For

information on how to access Docket

materials, please call (202) 260–3027

between 9 a.m. and 3:30 p.m. Eastern

Time, Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For

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 Time. For

technical inquiries, contact Robyn

Delehanty, Underground Injection

Control Program, Office of Ground

Water and Drinking Water (mailcode

4606), EPA, 401 M Street, SW,

Washington, DC 20460. Phone: 202–

260–1993. E-mail:

delehanty.robyn@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

Regulated Entities: Although certain

proposed clarifications to the UIC

regulations would apply to owners or

operators of any type of Class V well,

the only entities to be regulated by this

proposal when final are owners or

operators of Class V motor vehicle waste

disposal wells, industrial wells, and

large-capacity cesspools. Potentially

regulated categories and entities

include:

Category Examples of regulated entities (if they have a class V well)

Industry and Commerce .................. Gasoline service stations, new and used car dealers, any facility that does any vehicle repair work (e.g.,

body shops, transmission repair shops, and muffler repair shops), chemical manufacturers, dry cleaners,

electric component manufacturers, small machine manufacturers, die and tool manufacturers, commercial printers, asphalt manufacturers, and carwashes where engine or undercarriage washing is performed and any other commercial or industrial facility with a Class V disposal or drainage well (other

than stormwater drainage wells).

State and Local Government .......... Road facilities, fire stations, and solid waste management facilities.

Federal Government ....................... Any Federal agency that owns or operates one of the above entities.

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

injection well is regulated by this

action, you should carefully examine

the applicability criteria in §§ 144.81

and 144.85 of the proposed rule. If you

have questions regarding the

applicability of this action to a

particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

Preamble Outline

I. Format and Scope of Proposed Rule

II. Background

A. Statutory and Regulatory Framework

B. Requirements Applicable to Class V

Wells

C. History of this Rulemaking

1. 1987 Report to Congress on Class V

Wells

2. 1994 Consent Decree With the Sierra

Club

3. 1995 Proposed Rule

4. 1996 Amendments to the Safe Drinking

Water Act

5. 1997 Consent Decree With the Sierra

Club

6. 1998 Stakeholder Meetings and Small

Entity Outreach

III. EPA Strategy for Class V Well

Management

A. Initial Rule for High-Risk Well Types in

Source Water Protection Areas
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40587

B. Further Study of Additional Class V

Well Types

IV. Integration of the Class V Rule With the

Source Water Assessment Program

A. Overview of the Source Water

Assessment Program

B. Class V Rule Focus on Source Water

Protection Areas

1. Proposal

2. Alternatives

C. Other Connections Between the Class V

Rule and Source Water Assessment

Program

V. Proposed Class V Well Requirements

A. Categories of Class V Wells

B. Requirements for Motor Vehicle Waste

Disposal Wells

1. Proposal to Ban New and Existing Wells

2. Proposal to Ban New Wells and Require

Existing Wells to Either Close or Get a

Permit

3. Alternative

C. Requirements for Class V Industrial

Wells

1. Proposal

2. Alternatives

D. Ban of Large-Capacity Cesspools

E. Exclusion Criteria for Septic Systems

and Cesspools

F. Other Amendments

1. Sections 144.3 and 146.3—Definitions

2. Sections 144.6 and 146.5—Classification

of Wells

3. Existing Regulations Being Reiterated or

Replaced in 40 CFR Part 144, Subpart G

4. Part 145—State UIC Program

Requirements

VI. Regulatory Impact

A. Executive Order 12866

B. Children’s Health Protection and

Executive Order 13045

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Enhancing the Intergovernmental

Partnership

F. Unfunded Mandates

G. National Technology Transfer and

Advancement Act

H. Environmental Justice

I. Effect on States With Primacy

I. Format and Scope of Proposed Rule

Today’s notice proposes to

consolidate Class V UIC regulations in

a new Subpart G to 40 CFR Part 144.

This subpart is written in a simple-tounderstand, plain-English format.

Before reading the rest of this preamble,

Class V well owners and operators

should review the proposed new

regulation that presents the enforceable

legal requirements they need to know

about. This preamble does not repeat

any of the requirements contained in the

proposed rule, but rather provides

background and additional rationale not

included in the regulation and solicits

comments on alternative requirements.

Because the new Subpart G

consolidates the Class V UIC regulations

in one place, it includes portions of the

existing regulations together with

proposed new requirements. The

existing regulations that are being

reiterated in, or, in some cases, moved

to Subpart G for the sake of clarity are

not open for public comment. Instead,

EPA is accepting public comment only

on the proposed new requirements,

which include (1) some of the minor

revisions originally proposed in the

August 28, 1995 notice, which are

repeated today to provide a complete

and coherent picture of all Class V

changes being contemplated, and (2)

additional requirements being proposed

for the first time today. Table 1 below

identifies those sections of the proposed

regulation on which EPA is, and is not,

accepting comment.

Today’s proposal does not solicit

comments on other minor amendments

proposed on August 28, 1995 that have

nothing to do with Class V wells. These

are amendments to § 144.23 to clearly

rule authorize Class IV wells used to

inject treated water into the same

formation from which it came if such

injection is approved by EPA or a state

as part of a remediation program, and to

§ 146.10 to include plugging and

abandonment requirements for Class IV

wells. At the same time EPA takes final

action on today’s proposal, EPA will

issue a final ruling on these other

amendments based on public comments

received on the 1995 proposal.

TABLE 1.—SECTIONS OF PROPOSED REGULATION OPEN FOR PUBLIC COMMENT

Open for public comment Not open for public comment

Existing requirements included in plain English

New requirements in today’s proposal format Minor amendments proposed on August 28,

1995

§ 144.1(f) reference to Subpart G, Part 144 § 144.1(g) specific inclusions and exclusions § 144.80 description of the five classes of injection wells (reiterates existing § 144.6).

§§ 144.3 and 146.3 definition for sanitary

waste.

§§ 144.3 and 146.3 definitions for cesspool,

drywell, improved sinkhole, septic system,

subsurface fluid distribution system, well,

and well injection.

§ 144.82 (a) through (e) prohibition of fluid

movement (reiterates existing § 144.12).

§§ 144.6(e) and 146.5(e) description of Class

V injection wells.

§ 144.6(a)(3) and 146.5(a)(3) classification of

radioactive waste disposal wells.

§ 144.83 inventory requirements for Class V

wells (moved from § 144.26(b)(1)(iii) and

(e)), except the proposed new inventory requirement for well conversions in

§ 144.83(a)(2)(iii), which is open for public

comment.

§§ 144.81 definition of 12 types of Class V injection wells.

§§ 144.83(a)(2)(iii) requirement to submit new

inventory information if a well in a DI Program is converted to an industrial well.

§§ 144.84(b)(2) and (b)(3) description of circumstances in which permits or other action

is required.

§ 144.84 description of when Class V injection

is authorized by rule (moved from existing

§ 144.24), except the circumstances in

§ 144.84(b)(2) and (b)(3) in which permits or

other action is required for Class V cesspools, motor vehicle waste disposal wells,

and industrial wells, which is open for public

comment.

§ 144.85 description of when additional requirements apply to Class V cesspools,

motor vehicle waste disposal wells, and industrial waste disposal wells.
40588 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

TABLE 1.—SECTIONS OF PROPOSED REGULATION OPEN FOR PUBLIC COMMENT—Continued

Open for public comment Not open for public comment

Existing requirements included in plain English

New requirements in today’s proposal format Minor amendments proposed on August 28,

1995

§ 144.86 additional requirements for certain

Class V cesspools, motor vehicle waste disposal wells, and industrial waste disposal

wells.

§ 144.87(a)(2) discussion of available alternatives for disposing of waste fluids.§ 144.87(a)(1) closure requirements for Class

V cesspools, motor vehicle waste disposal

wells, and industrial waste disposal wells

subject to § 144.86.

II. Background

A. Statutory and Regulatory Framework

Class V wells are regulated under the

authority of Part C of the Safe Drinking

Water Act (SDWA or the Act) (42 U.S.C.

300h et seq.). The SDWA is designed to

protect the quality of drinking water in

the United States, and Part C

specifically mandates the regulation of

underground injection of fluids through

wells. The Agency has promulgated a

series of underground injection control

(UIC) regulations under this authority.

Section 1421 of the Act requires EPA

to propose and promulgate regulations

specifying minimum requirements for

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), and June 29, 1995 (60 FR

33926).

Section 1422 of the Act provides that

states may apply to EPA for primary

responsibility to administer the UIC

program (those states receiving such

authority are referred to as ‘‘Primacy

States’’). Where states do not seek this

responsibility or fail to demonstrate that

they meet EPA’s minimum

requirements, EPA is required to

prescribe, by regulation, a UIC program

for such states. These direct

implementation (DI) programs were

promulgated in two phases, on May 11,

1984 (49 FR 20138) and November 15,

1984 (49 FR 45308). For the remainder

of this preamble, references to the UIC

Program ‘‘Director’’ mean either the

Director of the EPA program (where the

program is implemented directly by

EPA) or the Director of the Primacy

State program (where the state is

responsible for implementing the

program). Also, currently all Class V

UIC Programs in Indian Country are

directly implemented by EPA.

Therefore, for the remainder of this

preamble, references to DI Programs

include Class V programs in Indian

Country.

B. Requirements Applicable to Class V

Wells

The UIC regulations establish five

classes of injection wells. Class I wells

are used to inject hazardous and nonhazardous waste beneath the lowermost

formation containing an underground

source of drinking water (USDW) within

one-quarter mile of the well bore. Class

II wells are used to inject fluids

associated with oil and natural gas

recovery and storage of liquid

hydrocarbons. Class III wells are used in

connection with the solution mining of

minerals. Class IV wells are used to

inject hazardous or radioactive wastes

into or above a formation that is within

one-quarter mile of a USDW. (Class IV

wells are generally prohibited by 40

CFR § 144.13.) Class V wells are defined

in the regulations as any well not

included in Classes I through IV.

Class V wells are currently authorized

by rule (§ 144.24(a)). Well authorization

expires upon the effective date of a

permit issued pursuant to §§ 144.25,

144.31, 144.33, or 144.34, or upon

proper closure of the well. The current

regulations subject Class V wells to the

general statutory and regulatory

prohibitions against endangerment of

USDWs, as well as some specific

requirements. Under § 144.12(a), owners

or operators of all injection wells,

including Class V injection wells, are

prohibited from engaging in any

injection activity that allows the

movement of fluid containing any

contaminant into USDWs, 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

human health. Section 144.12 (c) and

(d) prescribe mandatory and

discretionary actions to be taken by the

Director if a well is not in compliance

with § 144.12(a). Specifically, the

Director must choose between requiring

the injector to apply for an individual

permit, ordering such action as closure

of the well to prevent endangerment, or

taking an enforcement action.

Owners or operators of Class V

injection wells must also submit basic

inventory and assessment information

under § 144.26. In addition, Class V

wells are subject to the general program

requirements of § 144.25 under which

the Director may require a permit, if

necessary, to protect USDWs. Moreover,

under § 144.27, EPA may require

owners or operators of any Class V well,

in EPA-administered programs, to

submit additional information deemed

necessary to protect USDWs. Owners or

operators who fail to submit the

information required under §§ 144.26

and 144.27 are prohibited from using

their injection wells.

C. History of This Rulemaking

While implementing the above

requirements, EPA has inventoried and

assessed Class V wells and has pursued

new rulemaking activities and nonregulatory approaches to Class V well

management. Major milestones during

this process leading to today’s proposal

are summarized below.

1. 1987 Report to Congress on Class V

Wells

In accordance with the 1986

Amendments to the SDWA, EPA

summarized information on 32

categories of Class V wells in a Report

to Congress entitled Class V Injection

Wells—Current Inventory; Effects on

Ground Water; and Technical

Recommendations, September 1987

(EPA Document Number 570/9–87–

006). This report presents a national

overview of Class V injection practices
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40589

and state recommendations for Class V

design, construction, installation, and

siting requirements. These state

recommendations, however, did not

give EPA a clear mandate on what, if

any, additional measures were needed

to control Class V wells on the national

level. For any given type of well, the

recommendations can vary broadly and

are rarely made by more than two or

three states. For example, the

recommendations for septic systems

range from further studies (3 states) to

statewide ground water monitoring (1

state). For industrial waste water wells,

some states recommend immediate

action and closure while others

recommend monitoring and ground

water evaluation studies.

2. 1994 Consent Decree With the Sierra

Club

On December 30, 1993, the Sierra

Club filed a complaint against EPA in

the United States District Court for the

District of Columbia alleging that EPA

failed to comply with section 1421 of

the SDWA regarding publication of

proposed and final regulations for Class

V injection wells. In particular, the

complaint alleged that EPA’s current

regulations regarding Class V wells do

not meet the SDWA’s statutory

requirements to ‘‘prevent underground

injection which endangers drinking

water sources.’’ (Complaint, Paragraph

15)

On August 31, 1994, EPA entered into

a consent decree with the Sierra Club

which required that no later than

August 15, 1995, the Administrator sign

a notice to be published in the Federal

Register proposing regulatory action

that fully discharges the Administrator’s

rulemaking obligation under section

1421 of the SDWA, 42 U.S.C. 300h, with

respect to Class V injection wells. In this

notice, EPA had to (1) propose

additional regulations with respect to all

Class V injection wells, (2) propose a

decision that no further rulemaking for

these wells is necessary, or (3) propose

additional regulations for some Class V

injection wells and a decision that no

further rulemaking is necessary for the

remaining wells (Consent Decree,

Paragraph 2). The consent decree further

required that, no later than November

15, 1996, the Administrator sign a final

rulemaking notice to be published in the

Federal Register fully discharging the

Administrator’s rulemaking obligations

under section 1421 with respect to Class

V injection wells (Consent Decree,

Paragraph 3).

3. 1995 Proposed Rule

On August 15, 1995, the

Administrator signed a notice of

proposed rulemaking intended to fulfill

EPA’s obligation under the 1994 consent

decree with the Sierra Club (60 FR

44652, August 28, 1995). In this notice,

EPA proposed not to adopt additional

federal regulations for any types of Class

V injection wells. Instead, the Agency

proposed to address the risks posed by

certain wells using existing authorities

and a Class V management strategy

designed to (1) speed up the closure of

potentially endangering wells; and (2)

promote the use of best management

practices to ensure that other Class V

wells of concern do not endanger

USDWs. Several factors led EPA to

propose this approach, including: (1)

the wide diversity in the types of fluids

being injected, ranging from high risk to

not likely to endanger; (2) the large

number of facilities to be regulated; and

(3) the nature of the regulated

community, which consists of a large

proportion of small businesses.

EPA received many comments that

supported the Agency’s proposal to not

impose more regulations for Class V

wells. Commenters who supported the

rule included some states and industries

that use Class V injection wells. In

general, these commenters supported

the rule because it provided maximum

flexibility to states to use existing

authorities to address high-risk site

specific factors. However, EPA also

received a number of comments that

raised concerns about the proposal,

primarily from states and an

environmental group. In particular,

several commenters questioned whether

a UIC program without additional

requirements for what they believed to

be relatively high-risk well types,

including Class V industrial waste

disposal wells and cesspools, could

prevent endangerment to drinking water

sources as required by the SDWA. These

commenters claimed that at least some

types of wells pose a known threat to

USDWs and that lack of data or ability

to address the entire threat posed by

Class V wells does not justify failing to

act to address at least part of the threat.

EPA now believes that the 1995

proposal was inadequate to protect

USDWs for two main reasons. First, the

1995 approach proposed to address all

Class V wells regardless of the level of

risks they pose to USDWs, with one

regulatory approach. Specifically the

proposed approach did not provide a

clear set of regulatory requirements for

different categories of wells based on

their level of risk. As a result, the

proposed rule did not adequately

address high-risk wells that threaten

public drinking water supplies. EPA

now believes that specific regulatory

requirements are necessary to control

the risks posed by industrial waste

disposal wells, motor vehicle waste

disposal wells, and large-capacity

cesspools in delineated source water

protection areas, as described below.

This belief was echoed in some of the

public comments received on the

proposed rule and in recent stakeholder

meetings. Second, EPA believes that the

1995 proposed rule did not provide for

adequate public health protection

nationwide. Specifically, it did not

establish a clear baseline program for

states to follow and, therefore, even

though the authority exists, states could

allow inadequate controls in those

situations where there is inadequate

information and/or inadequate

resources to address Class V wells. On

the other hand, it has been suggested

that the additional information expected

to be generated through the source water

assessment program, including an

inventory of sources of contamination

and an assessment of the vulnerability

of public water systems to such

contamination could strengthen the

1995 approach. If commenters wish to

submit comments on this issue they are

welcome to do so.

4. 1996 Amendments to the Safe

Drinking Water Act

The 1996 Amendments to the SDWA

establish a new and flexible approach to

drinking water protection. In particular

the Amendments make source water

protection a national priority. They

create requirements and incentives for

Primacy states to assess their own

source waters, including the

susceptibility of public water systems to

contamination, and to encourage states

to establish source water protection

programs that fit their particular needs

and conditions.

As discussed in more detail in section

IV of today’s preamble, EPA believes it

is necessary to re-propose Class V UIC

regulations that are integrated with

these new programs for source water

protection. For example, today’s

proposal focuses on source water

protection areas, consistent with the

national priority established by the 1996

SDWA Amendments. Today’s proposal

also would provide incentives for states

to complete source water assessments in

a timely manner, reinforcing other

actions the Agency is taking to achieve

the goal of enhanced protection of

source waters.

5. 1997 Consent Decree With the Sierra

Club

The Sierra Club Legal Defense Fund

submitted comments on the 1995

proposed Class V rule alleging that the

proposal failed to carry out statutory
40590 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

requirements. As noted above, based on

these and other comments, EPA decided

to reconsider its proposed approach.

Because this reconsideration would

extend the time necessary to complete

the rulemaking for Class V wells, EPA

and the Sierra Club entered into a

modified consent decree on January 28,

1997 that extends the dates for

rulemaking that had been in the 1994

decree. The modified decree requires

three actions. First, by no later than July

18, 1998 (EPA used one of its 30 day

extensions to the original June 18, 1998

deadline), the EPA Administrator must

sign a notice to be published in the

Federal Register proposing regulatory

action that fully discharges the

Administrator’s rulemaking obligation

under section 1421 of the SDWA with

respect to those types of Class V

injection wells presently determined to

be high risk by the Administrator (based

on the additional study described

below, other types of Class V wells may

be found to pose a high risk and warrant

additional regulation later). This notice

must either (1) propose regulations fully

implementing section 1421 of the

SDWA with respect to the types of Class

V wells currently known to pose a high

risk, (2) propose a decision that no

further rulemaking is necessary in order

to fully discharge the Administrator’s

rulemaking obligation with respect to

such high-risk wells, or (3) propose

regulations fully implementing section

1421 with respect to some of these highrisk Class V wells, and propose a

decision that no further rulemaking is

necessary in order to fully discharge the

Administrator’s rulemaking obligations

with respect to the remaining high-risk

Class V injection wells. According to the

consent decree, the Administrator must

sign a final rulemaking for high-risk

Class V wells by no later than August

31, 1999. (Consent Decree, Paragraphs

2a and 2b). Today’s proposal has been

developed in response to this first

required action and supersedes the 1995

proposal with respect to these high-risk

wells.

Second, by no later than September

30, 1999, EPA must complete a study of

all Class V wells not included in the

rulemaking on high-risk Class V

injection wells (Consent Decree,

Paragraph 2c). Based on this study, EPA

may find that some of these other types

of Class V wells also pose a high risk.

Third, by no later than April 30, 2001,

the EPA Administrator must sign a

notice to be published in the Federal

Register proposing to discharge the

Administrator’s rulemaking obligations

under section 1421 of the SDWA with

respect to all Class V injection wells not

included in the rulemaking for currently

identified high-risk Class V injection

wells. That proposal will supersede the

1995 proposal with respect to all

remaining Class V wells. The

Administrator must sign a final

rulemaking for these remaining Class V

wells by no later than May 31, 2002.

6. 1998 Stakeholder Meetings and Small

Entity Outreach

To help shape today’s proposal, EPA

convened three stakeholder meetings to

inform potentially affected entities of

the requirements under consideration

and to solicit feedback. One meeting

was in Washington, DC, on January 20,

1998, one was in Chicago, IL on January

27, 1998, and one was in San Francisco,

CA on February 19, 1998.

As required by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), EPA also has

conducted outreach directly to

representatives of small entities that

would be affected by the proposed rule.

In consultation with the Small Business

Administration (SBA), EPA identified

17 representatives of small entities that

were most likely to be affected by the

proposal. In December, 1997, EPA

prepared an outreach brochure titled

‘‘Possible Changes to Class V UIC

Requirements: Information for Owners

and Operators of Class V Injection

Wells’’ (available for review in the

public docket supporting today’s

notice). This brochure was distributed

to the small entity representatives and

EPA convened a two-hour conference

call with these representatives on

January 15, 1998. Also in January, 1998,

EPA presented the new Class V

requirements being considered to the

SBA Environmental Roundtable.

Efforts to identify and incorporate

small entity concerns into this

rulemaking culminated with the

convening of a Small Business

Advocacy Review Panel, as required by

SBREFA. This Panel was headed by

EPA’s Small Business Advocacy

Chairperson with the Office of Policy,

Planning and Evaluation, and consisted

of the Director of the Office of Ground

Water and Drinking Water within EPA’s

Office of Water, the Administrator of the

Office of Information and Regulatory

Affairs within the Office of Management

and Budget, and the Chief Counsel for

Advocacy of the SBA. For a 60-day

period starting in February 1998, the

Panel reviewed technical background

information related to this rulemaking,

reviewed comments provided by small

entity representatives, and met on

several occasions with EPA and the

small entity representatives to identify

issues and explore alternative

approaches for accomplishing

environmental protection goals while

minimizing impacts to small business.

This process, along with the Panel’s

findings and recommendations, are

presented in the April 1998 ‘‘Report of

the Small Business Advocacy Review

Panel on the Revisions to the

Underground Injection Control

Regulations for Class V Injection Wells,’’

available for review in the public docket

supporting today’s proposal.

Today’s notice incorporates all of the

recommendations on which the Panel

reached consensus. In particular, the

Panel recommended that the proposal

offer alternatives to the proposed ban of

Class V motor vehicle waste disposal

wells. Therefore, in addition to the

proposed ban, today’s notice presents a

co-proposal in both the preamble and

proposed regulatory language, as well as

another alternative that is discussed in

the preamble only (see section V.B of

the preamble and § 144.84(b) and

§ 144.86 of the proposed regulation).

The Panel also recommended that UIC

Program Directors be allowed to extend

the time to comply with the new

requirements from 90 days to up to a

year in certain situations. This

recommendation has been adopted in

today’s notice (see sections V.B and V.C

of the preamble and § 144.85(a) and (I)

and § 144.86 of the proposed

regulation). Other changes made in

response to Panel recommendations

include the following: the proposed

definitions of industrial wells and

drainage wells have been revised to

make sure wells intended for

stormwater management are (subject to

certain conditions) regulated as drainage

wells not industrial wells (see section

V.A of the preamble and § 144.81(b) and

(e) of the proposed regulation);

additional data and rationale have been

added to the preamble to support EPA’s

belief that motor vehicle waste disposal

wells in source water protection areas

pose a high risk (see section V.B.1); the

preamble discussion of regulatory

impacts has been expanded to describe

and solicit comments on the approach

used to estimate the type and number of

small entities potentially subject to the

rule (see section VI.D); the proposed

definitions of ‘‘industrial’’ and ‘‘other

industrial’’ wells have been revised to

clarify that wells injecting wastewater

from carwashes qualify as industrial

wells subject to the rule only if

specifically set up for engine or

undercarriage washing (see section V.A

of the preamble and § 144.81(b) and (l)

of the proposed regulation); the

preamble has been revised to introduce

a report submitted by the National

Funeral Directors Association on funeral
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home septic systems and to request

comments on the merits of moving such

systems into the other industrial well

category (see section V.A); the preamble

has been expanded to clarify that Class

V wells at motor vehicle service

facilities may not be subject to the rule

if motor vehicle waste fluids are

prevented from entering the well (see

section V.B.1); the preamble has been

expanded to elaborate on the rationale

for and ask for comment on the

proposed statewide coverage of the new

requirements in states that fail to

complete their source water assessments

by May 2003 (see section IV.B.1 and 2);

the preamble and the supporting

economic analysis have been revised to

acknowledge and account for the

cleanup requirements that may be

triggered by the proposal to close certain

Class V wells and to account for the

likely overlap between areas where

Class V wells are located and source

water protection areas (see section

V.B.1); the proposed regulatory language

has been expanded to identify ways

well owners or operators can learn if

they are in a source water protection

area (see § 144.85(g)); and the preamble

has been expanded to explain the

rationale for and ask for comment on

proposing monitoring requirements for

motor vehicle waste disposal wells but

not industrial wells (see section V.B.3).

The Panel did not reach consensus on

two issues. One issue concerned the

basis for regulation, with some Panel

members questioning whether EPA had

an adequate basis to conclude that the

non-regulatory approach proposed in

1995 was inadequate. In response to this

issue, today’s preamble includes

additional discussion explaining why

EPA now believes the 1995 proposal is

inadequate and why the proposed new

regulations are necessary (see section

II.C.3).

The other issue concerned the

proposed requirement for industrial

well injectate to meet MCLs at the point

of injection, with some Panel members

suggesting the EPA consider the

possibility of allowing the injectate to

meet some higher multiple of the MCL

(e.g., 10 or 100 times the MCL) for

certain contaminants under certain

conditions, in recognition of the fact

that some contaminants are significantly

attenuated by percolation through soil

prior to reaching the water table, and

most are diluted within the aquifer prior

to reaching a public water system. There

are several research reports in the

docket which discuss the question of

attenuation of volatile organic

compounds and metals in the soil,

under various conditions. In addition,

many existing wells are designed in

accordance with state and local

requirements to treat wastes before

releasing them into the soil. These Panel

members suggested that for such

contaminants (e.g., metals, which

generally do not travel far from the

point of injection unless injected

directly into the water table) EPA

should try to identify conditions (e.g.,

soil type, water table depth, distance to

nearest drinking water well) that would

allow injection of the contaminants

without endangering drinking water

sources. In making this suggestion they

noted that to be workable, such

conditions would have to be easily

verifiable. They also suggested that EPA

consider expanding the flexibility

available under the permitting option

for motor vehicle wells to allow UIC

Program Directors to permit discharges

that exceed an MCL at the point of

injection if this would not endanger

USDWs, based on site specific

circumstances.

EPA believes that its proposed

approach to regulate cesspools,

automotive service station wells and

industrial wells is consistent with its

long-standing interpretation of the

statutory requirements to assure the

protection of underground sources of

drinking water. EPA also believes that

developing a set of conditions within

which a Class V well owner or operator

could inject waste that exceeds drinking

water standards without endangering

drinking water sources would not be a

viable option for most small entities

because of the difficulty and expense

involved in collecting the site-specific

hydrologic, geologic, and soil

information necessary to determine if

waste, above the MCL, could be injected

without endangering the underlying

USDW. Additionally, EPA questions

whether it would be possible to develop

such conditions because of the difficulty

of anticipating certain events (such as

high volume spills, illicit discharges,

the siting of new drinking water

supplies wells, and improper system

maintenance) that could endanger

underlying USDWs.

However, EPA is requesting comment

on its position. Some commenters have

suggested that there are situations where

a facility could inject waste that exceeds

some MCLs in source water protection

areas without endangering drinking

water supplies. EPA believes these

situations are extremely rare and that, if

allowed to inject above the MCL, the

vast majority of facilities would pose an

endangerment to current and future

water supplies. EPA’s proposed

regulatory approach to require facilities

to meet MCLs is designed to be

protective of public health. Commenters

are welcome to submit their views on

whether or not they agree with EPA’s

position. If commenters disagree with

EPA’s position they should discuss

specific contaminants and conditions

for which an alternative regulatory

approach would be appropriate and

provide data supporting their position.

III. EPA Strategy for Class V Well

Management

Today EPA is proposing an expanded

Class V well management strategy to

resolve major issues raised in public

comments on the 1995 proposal, to

embrace priorities and help achieve

goals defined under the 1996

Amendments to the SDWA, and to

fulfill the first phase of the Agency’s

requirements under the 1997 consent

decree with the Sierra Club.

As discussed in section II.B above,

Class V wells are currently authorized

by rule as long as (1) they do not

endanger USDWs, and (2) the well

owners or operators submit basic

inventory and assessment information.

If a Class V well may endanger USDWs,

UIC Program Directors can require the

injector to apply for a permit, order

preventive actions (including closure of

the well) to prevent the violation,

require remediation to assure USDWs

are protected, or take enforcement

action. These, and other existing, federal

requirements and authorities will

continue as basic elements of EPA’s

Class V strategy, applicable to all Class

V wells in all areas.

Consistent with the 1997 decree, EPA

is taking a step-wise approach to

supplement the existing program and

ensure Class V injection wells do not

endanger USDWs. This approach

consists of (1) an initial rule creating

additional requirements for high-risk

Class V well types in ground waterbased source water protection areas; and

(2) further study of other types of Class

V wells not covered in the initial rule

to provide the factual basis for further

regulatory action, as necessary.

A. Initial Rule for High-Risk Well Types

in Source Water Protection Areas

As the first step of its Class V strategy,

EPA is today proposing to add

requirements for three categories of

Class V injection wells determined to be

the highest risk by the Administrator.

The three categories are: (1) motor

vehicle waste disposal wells, (2)

industrial wells, and (3) large-capacity

cesspools, when any of these wells are

located in source water protection areas

delineated for community water systems

and non-transient non-community water

systems that use ground water as a
40592 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

1As defined in the drinking water regulations at

40 CFR 141.2, a ‘‘community water system’’ is a

public water system that serves at least 15 service

connections used by year-round residents or

regularly serves at least 25 year-round residents. A

‘‘non-transient non-community water system’’ is a

public water system that is not a community water

system and that regularly serves at least 25 of the

same people over six months a year. Non-transient

non-community water systems may include systems

that provide water to day care centers, government/

military installations, manufacturers, hospitals or

nursing homes, office buildings, schools, and other

facilities. A ‘‘transient non-community water

system’’ provides a less regular source of water,

such as to people visiting rest areas and

campgrounds.

source.1 Source water protection areas,

to be defined by states in accordance

with the 1996 Amendments to the

SDWA, will identify places critical for

the protection of most public drinking

water supplies.

In such delineated areas, today’s

proposal would ban new Class V motor

vehicle waste disposal wells, as well as

new cesspools having the capacity to

serve 20 persons or more per day.

Existing Class V motor vehicle waste

disposal wells in delineated areas

would either be banned or required to

get a permit specifying that released

fluids must meet primary drinking

water maximum contaminant levels

(MCLs) at the point of injection. Existing

large-capacity cesspools in delineated

areas would have to be phased out

within five years. Owners or operators

of Class V industrial wells in delineated

areas would either have to close their

wells or make sure the fluids they inject

meet the MCLs at the point of injection.

As discussed later in this preamble,

the conclusion that these Class V wells

pose a high risk when located in ground

water-based source water protection

areas is based on substantial

information and the combined

professional judgment of EPA and state

geologists and engineers that are

responsible for implementing the Class

V UIC program. EPA requests comment

on this position. Specifically, do

commenters believe that it is

appropriate to designate motor vehicle

and industrial wells in delineated areas

as high risk and regulate them under

this proposal or, alternatively, do

commenters believe that there is a better

(i.e., more or less inclusive)

categorization that EPA could use to

identify high risk wells? Commenters

are encouraged to provide data

supporting their position.

Available information presented in

the Report to Congress and summarized

in the 1995 proposal also suggests that

there may be other categories of Class V

wells that pose a high risk. Individual

wells in any of the Class V categories

also may endanger USDWs, depending

on fluids released into the wells and

site-specific conditions. However,

available data regarding the risks posed

by other Class V wells are insufficient

for EPA to conclude that additional

federal regulation is necessary at this

time. Therefore, as the second step of

the Class V strategy, EPA will continue

to study all of the categories of Class V

wells not addressed in today’s proposal

to determine the need for additional

regulations. In the meantime, EPA will

continue to rule authorize the other

categories of Class V wells and actively

control them by implementing and

enforcing the existing regulations. This

will include enforcing the § 144.12

prohibition against the endangerment of

USDWs, calling individual problem

wells in for a permit under § 144.25

authority, and requiring the submittal of

additional information deemed

necessary to protect USDWs in

accordance with § 144.27.

At the same time, EPA expects and

strongly encourages states to use

existing UIC authorities to ensure all

Class V wells are not endangering

USDWs. These efforts should not be

limited to wells in source water

protection areas, which have received

national priority under this regulation.

There may be other sensitive areas,

outside of delineated source water

protection areas, that warrant more

stringent control on a state or local

level. Nothing in this rule precludes a

state or local government from

promulgating more stringent

requirements above and beyond existing

UIC authorities.

B. Further Study of Additional Class V

Well Types

The second step in the strategy will

involve continuing study to assess the

size and impact of the Class V well

universe not addressed by today’s

proposal. Other types of Class V wells

are not covered by today’s proposal

because more information is needed to

determine whether additional federal

regulation for these other well types is

necessary, and if so, what that

additional regulation should entail.

Therefore, EPA will undertake further

study to assess risks, fill existing

information gaps, and provide a factual

basis for any further regulatory action.

IV. Integration of the Class V Rule With

the Source Water Assessment Program

Today’s proposal has been developed

to productively use and promote

linkages between the Class V UIC

program and EPA’s developing source

water assessment program. Both

programs are authorized by the SDWA.

The UIC Program is designed to protect

all current and potential USDWs from

pollution by injection wells. The source

water assessment program is structured

to identify all potential sources of

contamination within areas that now

provide short-term recharge to public

water supply wells and surface water

intakes.

A. Overview of the Source Water

Assessment Program

Section 1453 of the SDWA

Amendments of 1996 (Pub. L. 104–182)

establishes a new requirement for

source water assessments. EPA

published guidance describing how the

states should carry out a source water

assessment program within the state’s

boundaries. The final guidance, entitled

State Source Water Assessment and

Protection Programs Guidance (EPA

816–R–97–009), was released in August

1997 and is available in the docket for

today’s proposal.

Source water assessment programs

comprise essentially the first three steps

of a full prevention program. First, a

program must delineate the boundaries

of the assessment areas in the state from

which one or more public drinking

water systems receive supplies of

drinking water. In delineating these

areas, states must use ‘‘all reasonably

available hydrogeologic information on

the sources of the supply of drinking

water in the state and the water flow,

recharge, and discharge and any other

reliable information as the state deems

necessary to adequately determine such

areas.’’ Second, the state must identify

contaminants of concern, and for those

contaminants, the state must inventory

significant potential sources of

contamination in delineated source

water protection areas. Third, the state

must ‘‘determine the susceptibility of

the public water systems in the

delineated area to such contaminants.’’

States must submit their proposed

source water assessment programs to

EPA no later than 18 months after

publication of the Source Water

Assessment and Protection Programs

Guidance, which would be February

1999. EPA then has nine months, until

November 1999, to approve or

disapprove the submitted state program.

Once approved, a state should complete

its source water assessments by no later

than November 2001, or if EPA grants

an extension, by May 2003. For

purposes of this proposed rule, a state

program is considered complete when

the state program has been approved by

EPA and all its local assessments for

community and non-transient noncommunity water systems have been

completed. This means that all local

assessments within a state have
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40593

performed the three required steps of

delineation, source identification, and

susceptibility analysis. This proposed

rule does not regulate wells within the

source water protection areas for

transient non-community water

systems. Therefore, for purposes of this

proposed rule, assessments for these

systems do not have to be performed for

the state program to be considered

complete.

Other features of the program include

the new section 1452 grant program,

which established the Drinking Water

State Revolving Fund. Grants under

section 1452 may be used to assist the

states in financing the source water

assessment program and most states

have elected to use the grants for this

purpose. In addition, connections

between the source water assessment

program and relief from the

contaminant monitoring requirements of

the SDWA provide an incentive for

states to complete implementation of

the source water assessment program

within a relatively short (two-year)

timetable. For a state to tailor alternative

monitoring requirements for public

water systems under a new permanent

monitoring relief provision contained in

the 1996 Amendments, a state must

have an EPA-approved source water

assessment program. Moreover, any

public water system seeking alternative

monitoring requirements under a state’s

permanent monitoring relief authority

must have a complete source water

assessment.

Section 1453 expresses Congress’

intent that states use data generated

under other programs. To avoid

duplication and encourage efficiency,

the source water protection area

delineation and source identifications

are specifically encouraged to make use

of any of the following: vulnerability

assessments, sanitary surveys, and

monitoring programs; delineations or

assessments of ground water sources

under a state wellhead protection

program; delineations or assessments of

surface or ground water sources under

a state pesticide management plan;

delineations or assessments of surface

water sources under a state watershed

initiative or to satisfy the watershed

criterion for determining if filtering is

required under the Surface Water

Treatment Rule; and delineations or

assessments of surface or ground water

sources under programs or plans

pursuant to the Federal Water Pollution

Control Act.

B. Class V Rule Focus on Source Water

Protection Areas

1. Proposal

Today’s proposal focuses on source

water protection areas as a key element

for the protection of USDWs. Areas

delineated under a state source water

assessment program represent, at a

minimum, areas designated to receive

top priority for the protection of public

drinking water supplies. Consistent

with this prioritization, this rule would

target the high-risk Class V wells in

delineated source water protection areas

for public water systems that use ground

water as a source.

Figure 1 shows how the proposed

Class V rule would be linked with the

source water assessment program in

terms of major milestones and areas

covered. According to the 1997 consent

decree with the Sierra Club (as

modified), the new Class V

requirements would be finalized by

August 1999. The requirements would

then become effective in DI Programs

within 60 days, or by October 1999.

Primacy States would have 270 days, or

until May 2000, to submit for EPA’s

approval any program revisions needed

to implement the new requirements.

Assuming it takes three months for EPA

to approve these revisions, the new

requirements would become effective in

Primacy States by August 2000. If the

source water assessment program in a

state is complete by the effective date of

the rule (either October 1999 for DI

Programs or around August 2000 for

Primacy States), the new requirements

would apply only to delineated source

water protection areas. If some but not

all local assessments in a state have

been completed by that time, meaning

that the state program is not complete,

then the new requirements would apply

to delineated areas where local

assessments are complete. If all local

assessments are not done by May 2003,

which is the time by which state

programs should be complete according

to the State Source Water Assessment

and Protection Programs Guidance, the

new Class V requirements would apply

statewide because there would be no

way of knowing which wells in the state

pose the highest risk. A possible

exception would be if a state completed

local source water assessments in one

geographic area, the state would know

which wells within that specific

geographic area pose the highest risk.

The requirements would apply

statewide permanently, even if a state

completed its source water assessment

program at some later time after May

2003. EPA realizes that some

commenters may think that it is

unreasonable, unfair, or unnecessary to

permanently apply the new

requirements statewide if a state’s

source water assessment program is not

complete by May 2003, but is completed

some time later. However, EPA believes

this is the best approach for two

reasons. First, this approach would

provide a strong incentive for states to

establish and complete a source water

assessment program in a timely manner,

consistent with the goal under the 1996

SDWA Amendments. Second, applying

the requirements statewide starting in

May 2003 and then changing to apply

the requirements only to delineated

areas when programs are completed

some time afterward would be very

confusing and difficult to implement,

both for well owners or operators and

for UIC regulatory agencies. EPA

believes this confusion and difficulty

would ultimately result in the new

requirements not being implemented

effectively to ensure the protection of

USDWs. The next section of this

preamble on alternatives provides

further discussion of a permanent

statewide ban and possible alternative

approaches. It should be noted,

however, that with the exception of

Wyoming and Indian Country as

discussed below, EPA fully expects

states to meet the deadline because the

ground water component of source

water assessment programs is likely to

be based on the Wellhead Protection

Programs already established in most

states. Therefore, the point is expected

to be moot in most places.

BILLING CODE 6560–50–P
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BILLING CODE 6560–59–C
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40595

The situation is more complicated in

Wyoming and Indian Country because

the State of Wyoming and Tribes do not

have primacy for the public water

system program and, as such, are not

required to conduct source water

assessments. Therefore, the proposed

Class V UIC requirements would apply

throughout Wyoming and Indian

Country unless the EPA Regional

Offices worked with the State and

Tribes to delineate source water

protection areas and implement other

source water assessment activities.

Alternatively, EPA’s Source Water

Guidance recommends that each Tribe

implement a source water assessment

program ‘‘to the extent appropriate

resources are available to do so.’’ Tribes

may either establish and implement

their own program and submit it to EPA

for approval, or they may participate in

a state program as an alternative to, or

in conjunction with, their own program.

It is uncertain, however, which Tribes

are likely to participate in source water

assessment activities and to what extent.

States must delineate source water

protection areas for: (1) Public water

systems based solely on ground water;

(2) public water systems based solely on

surface water; and (3) public water

systems using both ground and surface

water, or systems using ground water

that is influenced by surface water. In

addition, states must delineate source

water protection areas for: (1)

Community water systems; (2) nontransient non-community water

systems; and (3) transient noncommunity water systems. The

requirements in today’s proposal would

apply to Class V cesspools, motor

vehicle waste disposal wells, and

industrial wells in source water

protection areas delineated for

community water systems and nontransient non-community water systems

that use ground water as a source. For

the purpose of today’s proposal, this

would include such systems that have at

least one ground-water source that

contributes to their annual water

supply.

This focus on ground water, rather

than surface water, is consistent with

the scope of the UIC program to protect

underground sources of drinking water.

Moreover, based on EPA’s most recent

Community Water System Survey (EPA

815–R–97–001a, January 1997, page 6),

almost 80 percent of community water

systems use primarily ground water.

Less than 10 percent of systems

surveyed primarily use surface water

sources.

EPA believes the focus on community

water systems and non-transient noncommunity systems is justified based on

the risks involved and the purpose of

this rule. According to the most recent

survey, community systems and nontransient non-community systems

supply drinking water to 93 percent and

2 percent of the U.S. population,

respectively (Community Water System

Survey, EPA 815–R–97–001a, January

1997, page 5). In addition, the people

relying on transient non-community

water systems, such as at rest areas or

campgrounds, do not drink water from

the same system on a regular basis. Any

exposure to contamination in a given

system, therefore, tends to be one time

or infrequent, as opposed to the chronic

exposure and potentially significant risk

associated with the consumption of

contaminated water from community

systems and non-transient noncommunity systems. Since most of the

contaminants found in wells covered by

today’s proposal pose chronic, not acute

risks, it would take repeated exposure to

these contaminants for adverse health

effects to be realized. Repeat exposure

does not occur in transient systems. The

purpose of today’s rule is to address

designated high-risk wells for which

additional information is unnecessary.

Given the limited exposure at transient

systems, EPA does not believe that wells

within delineated areas for such systems

are categorically ‘‘high risk’’ and thus

they are not part of today’s rule.

The Agency recognizes, however, that

there may be instances in which

pathogens in untreated sanitary waste

released into Class V cesspools could

contaminate the water supply source for

a transient system and pose an ‘‘acute’’

risk if consumed (meaning there could

be a serious health risk given the nature

and high level of contamination, despite

the fact that the water is not regularly

consumed). This would be a concern

only if a Class V cesspool were in a

location and hydrogeologic setting that

would permit pathogens to migrate to a

ground water supply well that serves a

transient system, and then, only if there

were no (or inadequate) disinfection of

the water prior to it being consumed.

EPA believes these circumstances are in

fact limited because of the small number

of large capacity cesspools that still

exist. Nevertheless, to further limit the

acute risk associated with large-capacity

cesspools, EPA could expand today’s

proposed cesspool requirements to

source water protection areas delineated

for transient non-community systems

that use ground water as a source, in

addition to such areas for community

water systems and non-transient noncommunity water systems. EPA requests

comment on the merits and potential

impacts of including transient systems

within the scope of the proposed

requirements for cesspools. Based on

such comment, EPA may adopt that

approach in the final rule.

EPA underscores that this initial rule

targets certain source water protection

areas for the purpose of prioritizing

national policy. The rule does not

establish differential levels of protection

for different areas, but rather proposes

specific measures EPA believes are

necessary to ensure that high risk Class

V wells do not endanger USDWs in the

highest priority areas. The prohibition

against endangerment of USDWs, found

in § 144.12 of the existing UIC

regulations, would continue to apply to

all Class V wells and all areas, whether

or not a state has a completed source

water assessment program. Section

144.12(a) in particular provides that no

injection-related activity may be

conducted ‘‘in a manner that allows the

movement of fluid containing any

contaminant into underground sources

of drinking water, if the presence of that

contaminant may cause a violation of

any primary drinking water regulation

under 40 CFR Part 142 or may otherwise

adversely affect the health of persons.’’

Similarly, § 144.12(c) and (d) authorize

a variety of actions if a Class V well may

cause a violation of primary drinking

water regulations or otherwise adversely

affect the health of persons.

In addition to § 144.12, other existing

UIC authorities would continue to be

available to control Class V wells on a

case-by-case basis, as needed to protect

USDWs in any area. These can include

requiring a permit under §§ 144.25 and/

or requiring submission of additional

inventory information under § 144.26.

In states with EPA-administered

programs, the inventory requirements

under § 144.26 can be supplemented by

additional information requirements,

including ground water monitoring,

analysis of injected fluids, or

submission of geologic information

under § 144.27.

EPA expects and strongly encourages

states to use these existing authorities to

take whatever measures are needed to

ensure Class V wells are not

endangering USDWs in any other

sensitive areas beyond delineated

source water protection areas. Examples

of other sensitive areas include areas

overlying sole-source aquifers, highly

productive aquifers supplying private

wells, continuous and highly productive

aquifers at points distant from public

water supply wells, areas where water

supply aquifers are recharged, karst

aquifers that discharge to surface

reservoirs serving as public water

supplies, susceptible or sensitive

hydrogeologic settings (e.g., glacial
40596 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

outwash deposits, eolian sands, and

fractured volcanic rock), and areas of

special concern selected based on a

combination of factors, such as

hydrogeologic sensitivity, prevailing

land-use practices, and documented

ground water contamination. If believed

to be necessary, states should apply the

same requirements proposed in this rule

to these and other areas and/or to other

Class V wells. Nothing in this rule

precludes a state or local government

from promulgating more stringent

requirements above and beyond the

existing UIC authorities.

2. Alternatives

The Agency requests public

comments on whether the new Class V

regulations should apply to areas

beyond delineated source water

protection areas, or even apply

statewide, in order to ensure protection

of USDWs in other locations. Although

the Agency recognizes the merits of this

approach, it is not preferred because it

would uniformly impose stringent new

requirements for motor vehicle waste

disposal wells, large-capacity cesspools,

and industrial wells in all areas even

though such requirements may not be

needed to protect USDWs in all cases.

EPA notes that states are already

required to take appropriate actions to

prevent endangerment of USDWs from

Class V UIC wells in any part of the state

where such endangerment may occur. In

fact, the Agency strongly encourages

states to take appropriate action using

existing authorities to control Class V

wells in other areas. Finally, the

proposed requirements would apply

statewide if a state does not have a

complete source water assessment

program by May 2003. This would

ensure adequate protection in all areas

when a state has not studied and

defined areas that warrant the greatest

protection.

EPA also requests comments on the

merits of broadening the scope of the

additional requirements to other kinds

of delineated source water protection

areas. This could include areas

delineated around public water systems

using surface water recharged by ground

water, or transient non-community

water systems that depend on at least

one ground-water source. As discussed

above, EPA does not believe these

options are needed in this first phase of

the Class V UIC rulemaking.

EPA also requests that commenters

provide suggestions and ideas for

alternatives to permanently applying the

new requirements statewide if a state’s

source water assessment program is not

complete by May 2003. Several

commenters during the SBREFA process

believed this proposed approach would

unfairly impose a burden on some

injection well owners or operators, who

are not endangering drinking water

supplies, because of a state’s failure to

comply with applicable deadlines. In

order for any alternative to be viable, it

would have to be effective in

accomplishing the overall objective of

protecting USDWs. Certain advantages

of the proposed approach include: the

fact that it ensures protection in the

event new public water supply systems

are created outside areas currently

delineated, and it provides a strong

incentive for timely completion of

source water assessment programs.

Nevertheless, EPA recognizes there may

be other approaches. One alternative

could be to give UIC Program Directors

the flexibility to extend the statewide

ban date beyond May 2003 if states

submit, before that time, a plan

demonstrating that their source water

assessment program is ‘‘substantially’’

(e.g., 80 to 90 percent) complete and

showing how they are making steady

progress toward completion. This

approach, however, would not

necessarily buy time for Wyoming or

Tribes, which do not have primacy

responsibility for conducting source

water assessment programs and may not

delineate their source water protection

areas. EPA requests comments on the

merits of this alternative and any other

equally protective alternatives.

C. Other Connections Between the Class

V Rule and Source Water Assessment

Program

The proposed Class V rule and state

source water assessment programs will

have at least two other potentially

beneficial mutual connections. First, as

states carry out the source identification

and susceptibility analysis required as

the second and third steps of the source

water assessment program, Class V well

inventories and hydrogeological

information developed under

authorities such as § 144.27 will provide

substantial inputs into the source water

assessment programs of some states. The

Class V program will provide an

important means of both identifying and

controlling risks in the delineated

source water protection areas.

Second, grants under section 1452,

which established the Drinking Water

State Revolving Fund mentioned above,

may also be used to finance a range of

state activities related to public supplies

of drinking water. A state may use up

to 10 percent of its allotment for grants

under § 1452 (with a 1:1 dollar state

match) to support its state drinking

water program, and to develop and

implement a source water protection

program, a capacity development

program, and an operator certification

program. These funds can be used for

state activities under the UIC program to

manage Class V wells, which may be in

wellhead protection areas of public

water supplies. In addition, up to 15

percent of the capitalization grant is

available for local assistance and certain

other eligible activities described in the

SDWA, including delineation and

assessment of source water protection

areas (provided that each activity

separately receives no more than 10

percent of the grant amount). The total

amount appropriated for the Drinking

Water State Revolving Fund Program for

fiscal years 1997 and 1998 is $2.0

billion.

V. Proposed Class V Well Requirements

A. Categories of Class V Wells

Class V injection wells are generally

shallow waste disposal wells,

stormwater and agricultural drainage

systems, or other devices used to release

fluids either directly into USDWs or

into the shallow subsurface that overlies

USDWs. In some instances, the fluids

released by these wells contain elevated

concentrations of contaminants that

may endanger drinking water supplies.

EPA estimates that more than one

million Class V wells currently exist in

the United States. These wells are

located in virtually every state,

especially in unsewered areas where the

population is likely to depend on

ground water. Frequently, Class V wells

are designed as no more than shallow

holes or septic tank and leachfield

combinations intended for sanitary

waste disposal. While such designs may

be adequate for the treatment of sanitary

waste, they may not be appropriate for

the disposal of industrial waste or other

fluids, although they are sometimes

used for this purpose. Some types of

Class V wells may include other types

of treatment systems, such as oil water

separation tanks, which are designed to

treat certain types of industrial waste.

Today, EPA is proposing to retain the

current definition of Class V wells.

However, the current regulations also

contain a non-inclusive list of 16 types

of Class V wells (§ 146.5). This list was

further divided into 32 categories in the

1987 Report to Congress on Class V

wells. The Report to Congress drew

distinctions between well types based

on the design of the well, in some

instances, and on the types of fluids

injected, in others. In reviewing the

Report to Congress, the Agency has

determined that some of these

distinctions are of little consequence as

far as the risk posed by the wells and
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40597

the appropriate management scheme.

Therefore, for today’s proposal, the

Agency has grouped Class V wells in 12

more appropriate categories that

combine together wells that are mostly

similar both in terms of the nature of

fluids they inject and their potential to

endanger USDWs.

The 12 general categories of Class V

wells are defined in § 144.81 of today’s

proposed regulation. Table 2 shows how

these categories relate to the listing of

wells in § 146.5(e) of the current

regulations and the Class V well types

addressed in EPA’s 1987 Report to

Congress.

There are two major differences

between the categories proposed today

and the ones proposed in 1995: motor

vehicle waste disposal wells and ‘‘other

industrial’’ wells have been removed

from the industrial well category

proposed before and separated into their

own categories. This makes it easier to

tailor Class V regulations to the different

types of wells based on their relative

risk potential. In particular, motor

vehicle waste disposal wells would be

defined more precisely for the purpose

of targeting additional requirements for

this category of wells. In addition,

carving out the other industrial wells

creates a smaller and less diverse

category of Class V industrial wells than

defined in the August 28, 1995

proposal. The wells remaining in the

industrial category in today’s proposal—

including wells at carwashes where

engine or undercarriage washing is

performed, industrial process water and

waste disposal wells, and industrial

drainage wells—are more likely to pose

a high risk and are more amenable to

control through one national minimum

requirement than the broader category

proposed before. Insufficient

information is presently available to

conclude that the other industrial wells

should be banned, as EPA is proposing

for motor vehicle waste disposal wells,

or should be required to meet a standard

on injectate quality, as EPA is proposing

for Class V industrial wells. Instead,

EPA proposes to enforce the general

non-endangerment provisions in

§ 144.12 for other industrial wells and,

if necessary to protect USDWs, require

owners or operators to submit specific

information under § 144.27 or obtain a

permit under § 144.25. Under the

second step of EPA’s Class V strategy

discussed above, EPA also will study

the other industrial wells further and

address them in another regulatory

action, if necessary based on the

findings of that study.

TABLE 2.—CATEGORIES OF CLASS V INJECTION WELLS

Category in today’s proposal Injection wells in category Current § 146.5 Corresponding injection wells in 1987 report to

Congress

Beneficial Use

(§ 144.81(f)).

Aquifer recharge .................................................. (e)(6) ................. 5R21 (Aquifer Recharge).

Salt water intrusion barrier .................................. (e)(7) ................. 5B22 (Saline Water Intrusion Barrier).

Subsidence control .............................................. (e)(10) ............... 5S23 (Subsidence Control).

Aquifer storage and recovery .............................. Not listed .......... Not addressed as separate category.

Subsurface environmental remediation ............... (e)(6) ................. 5X26 (Aquifer Remediation Related).

Fluid Return

(§ 144.81(g)).

Wells used to inject spent brines after the extraction of minerals from produced fluids.(e)(14) ............... 5X16 (Spent-brine Return Flow).

Wells used to inject heat pump return fluids ...... (e)(1) ................. 5A7 (Heat Pump/Air Conditioning Return Flow),

5A6 (Direct Heat Return).

Wells used to inject fluids that have undergone

chemical alteration during the production of

geothermal energy for heating, aquaculture,

or production of electric power.

(e)(12) ............... 5A5 (Electric Power Return), 5A8 (Ground

Water Aquaculture Return Flow).

Sewage Treatment Effluent (§ 144.81(h)).Wells used to inject treated effluent from

POTWs, or privately owned treatment works

receiving solely sanitary waste.

Not listed .......... 5W12 (Domestic Wastewater Treatment Plant

Effluent Disposal).

Cesspools (§ 144.81(c)) Cesspools having the capacity to serve 20 persons or more per day and used solely for the

subsurface emplacement of sanitary waste.

(e)(2) ................. 5W9 (Untreated Sewage Waste Disposal),

5W10 (Cesspools).

Septic Systems

(§ 144.81(d)).

Septic tank and fluid distribution system having

the capacity to serve 20 persons or more per

day and used solely for the subsurface emplacement of sanitary waste.

(e)(9) ................. 5W11 (Septic Systems—Undifferentiated Disposal), 5W32 (Septic Systems—Drainfield

Disposal), 5W31 (Septic Systems—Well Disposal).

Experimental Technology (§ 144.81(I)).Wells used as part of unproven subsurface injection technologies other than waste disposal.(e)(15) ............... 5X25 (Experimental Technology).

Drainage (§ 144.81(e)) .. Wells used to drain surface and subsurface

fluids, including agricultural drainage and

stormwater runoff that may have the potential

to receive insignificant amounts of waste due

to small volume leaks, drips, or spills.

(e)(4) ................. 5D2 (Stormwater Drainage), 5F1 (Agricultural

Drainage), 5D3 (Improved Sinkholes), 5G30

(Special Drainage), 5X29 (Abandoned Drinking Water Wells, if used for the subsurface

emplacement of stormwater).

Mine Backfill and Drainage (§ 144.81(j)).Wells used to inject materials into mined out

portions of subsurface mines, whether what is

injected is a radioactive waste or not, including (1) slurries of sand, gravel, cement, mill

tailings/refuse, fly ash, or other solids, and (2)

mine drainage.

(e)(8) ................. 5X13 (Mining, Sand, or Other Backfill).

In Situ and Solution

Mining (§ 144.81(k)).

Wells used to inject fluids for the purpose of

producing minerals or energy, which are not

Class II or III wells.

(e)(13), (e)(16) .. 5X14 (Solution Mining), 5X15 (In situ Fossil

Fuel Recovery).
40598 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

TABLE 2.—CATEGORIES OF CLASS V INJECTION WELLS—Continued

Category in today’s proposal Injection wells in category Current § 146.5 Corresponding injection wells in 1987 report to

Congress

Motor Vehicle Waste

Disposal (§ 144.81(a)).

Wells used to inject fluids from motor vehicle repair or maintenance activities, such as an

auto body repair shop, automotive repair

shop, car dealership, specialty repair shop

(e.g., transmission and muffler repair shop),

or any facility that does any vehicular repair

work.

(e)(5) ................. 5X28 (Automobile Service Station Disposal).

Other Industrial

(§ 144.81(l)).

Wells used to inject fluids from carwashes

where no engine or undercarriage washing is

performed.

(e)(5) ................. Not addressed as separate category.

Wells used to inject noncontact cooling water

that contains no additives and has not been

chemically altered.

(e)(3) ................. 5A19 (Cooling water return flow).

Wells used to inject fluids from laundromats

where no onsite dry cleaning is performed or

where no organic solvents are used for laundering.

(e)(5) ................. Not addressed as separate category.

Wells used to inject wastewater from food processing operations.(e)(5) ................. Not addressed as separate category.

Industrial (§ 144.81(b)) .. Wells used to inject non-hazardous wastewaters

generated by industrial, commercial, and

service establishments and that are not included in one of the above categories; these

include wells used to inject fluids from carwashes where engine or undercarriage washing is performed.

(e)(5) ................. 5W20 (Industrial Process Water and Waste Disposal), 5D4 (Industrial Drainage), 5X17 (Air

Scrubber Waste Disposal), 5X18 (Water Softener Regeneration Brine Disposal), 5X29

(Abandoned Drinking Water Wells, if used for

the subsurface emplacement of industrial or

commercial wastes not injected in one of the

above categories of wells), 5X27 (Other).

The fourth type of other industrial

well listed in Table 2—wells used to

inject wastewater from food processing

operations—will receive special

attention in the ongoing study of Class

V wells. As a group, EPA believes most

of these wells pose a lower risk than the

industrial wells that would be regulated

under today’s proposal, because the

injectate is primarily food rinsewater or

equipment washdown water containing

small quantities of food particles and

relatively low concentrations of

contaminants. The Agency recognizes,

however, that there may be other wells

in this group that pose a higher risk,

such as wells that inject brine from

pickling operations, nutrient-rich

wastewater from potato processing

plants, and so forth. EPA presently has

very little information on these wells.

Therefore, they will be examined more

closely in the study to determine

whether additional federal regulation is

needed, and if so, what that additional

regulation should entail. In the

meantime, if UIC Program Directors

have information that any individual

wells that fall in this category do pose

a threat, they can use the existing UIC

authorities discussed above to ensure

protection of USDWs.

During the development of this

proposal, the National Funeral Directors

Association (NFDA) recommended that

the other industrial well category be

broadened to include Class V septic

systems operated by funeral homes.

This would move these wells out of the

industrial well category, where they fit

in today’s proposal, and thus remove

them from the proposed requirement to

meet MCLs at the point of injection. In

support of this recommendation, NFDA

submitted to EPA a report titled Septic

System Treatment of Funeral Home

Wastewater, March 18, 1998 (copy

available for review in the docket).

According to NFDA, this report shows

that only three preservative compounds

with potential human health concerns—

formaldehyde, methanol, and phenol—

are likely to be found in funeral home

wastewater in concentrations that

exceed health-based levels (MCLs are

not available for these chemicals). The

report concludes that these compounds

are generally adequately treated in

septic systems such that concentrations

exceeding the health-based levels do not

exit the system. NFDA stated that it is

unaware of any incidence of

contamination of USDWs by funeral

home septic systems.

Today’s proposal does not include

septic systems operated by funeral

homes in the other industrial well

category, because EPA needs additional

time to evaluate the data submitted by

NFDA and determine whether such a

classification of funeral home wells is

warranted. EPA requests comment and

additional data on the proper

classification of funeral home septic

systems. Specifically, EPA requests

comment on the information contained

in the NFDA report as well as comment

and information on any important

topics that are not addressed in the

NFDA report but have a bearing on this

decision. Based on public comment and

data, EPA may classify these wells as

other industrial wells which are outside

the scope of this rulemaking.

Additional discussion is needed to

clarify how stormwater drainage wells

are categorized in today’s proposal. As

shown in Table 2, wells used to drain

stormwater runoff would be classified as

drainage wells (not subject to new

requirements under today’s proposal),

while industrial drainage wells would

be classified as industrial wells (subject

to the proposed new requirement to

meet MCLs at the point of injection).

The industrial drainage well category,

however, does not include Class V wells

intended for stormwater management

that may have the potential to receive

insignificant amounts of waste due to

unintentional small volume leaks, drips,

or spills and that cannot reasonably be

separated from potential sources of

contamination. Such wells, even if they

were located at a commercial or

industrial site, would be classified as

stormwater drainage wells and excluded

from the new regulation. In this context,

‘‘cannot reasonably be separated’’ means

a well that cannot be moved farther

away or uphill from a potential source
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40599

of contamination (e.g., due to property

boundaries, site layout, or other

physical constraints) and cannot be

separated from a source by berms, dikes,

or drainage ditches and still perform the

function of draining stormwater runoff

from a site. For example, a well at a gas

station would be considered a

stormwater drainage well, not an

industrial well, if it is located

reasonably far away from the gas pumps

in a downhill direction and only drains

stormwater runoff occasionally

contaminated with insignificant

amounts of gas due to unintentional

small volume leaks, drips, or spills at

the pumps. However, a well at a gas

station or other commercial or industrial

site that is in position to directly receive

bulk spills of materials or wastes, or to

receive highly contaminated runoff due

to large leaks or spills, would be

classified as an industrial drainage well,

even if the well is intended for

stormwater management.

EPA requests comment on this

proposed treatment of stormwater

drainage wells. The Agency is

attempting to reasonably distinguish

between a well at a commercial or

industrial site that routinely receives

highly contaminated drainage or is

susceptible to significant spills of

chemicals or wastes, and a well at a

commercial or industrial site that is

intended for stormwater management

but also may receive the unintentional

insignificant leaks, drips, or spills that

are commonly contained in street

runoff. If these two kinds of wells can

be distinguished, the wells that are more

like industrial wells could be regulated

like industrial wells and the wells that

are more like stormwater management

wells could be regulated like drainage

wells. EPA realizes, however, that it

may not be practical to make this

distinction, potentially allowing some

endangering drainage wells at

commercial or industrial sites to escape

the additional regulations proposed

today. EPA also realizes that the

proposed categorization may be at odds

with the programs currently being

implemented by existing UIC

authorities. Therefore, the Agency

requests that commenters specifically

address the merits and potential impact

of the proposed categorization. Based on

these comments, EPA may classify all

drainage wells at commercial or

industrial sites as industrial wells in the

final rule.

Finally, wells used to inject fluids

from carwashes are in one of two

categories depending on whether the

carwashes perform engine or

undercarriage washing. Only those

wells at car washes that are specifically

set up to perform engine or

undercarriage washing are considered to

be Class V industrial wells under the

proposed rule. Wells at coin-operated,

manual carwashes where people use

hand-held hoses to wash only the

exteriors of vehicles would be classified

as other industrial wells, as would those

at any other vehicle washing facility not

set up to perform engine or

undercarriage washing. The cleaning

solutions used at these carwashes

generally consist of soap solutions,

rinsewater, and wax, and do not contain

degreasing agents or solvents such as

methylene chloride or trichloroethylene.

As a result, the spent washwater

disposed in a carwash well that

qualifies as another industrial well

primarily contains detergents, road

salts, sediments, and incidental

contaminants that may be washed from

a vehicle’s exterior, comparable to

typical stormwater runoff.

B. Requirements for Motor Vehicle

Waste Disposal Wells

As discussed below, EPA is coproposing two approaches for regulating

Class V motor vehicle waste disposal

wells in ground water-based source

water protection areas: (1) A ban of new

and existing wells in such areas; and (2)

a ban of new wells and a provision

giving owners or operators of existing

wells an opportunity to apply for a

waiver from the ban by seeking a permit

that requires fluids to meet MCLs at the

point of injection. EPA also is soliciting

comment on a specific alternative to

these proposed approaches. As

recommended by some members of the

Small Business Advocacy Review

(SBAR) Panel, the preamble also seeks

comment on the issue of allowing waste

to be injected, in certain situations, that

exceeds some MCLs at the point of

injection. EPA does not support this

concept because it believes that

injecting waste above the MCLs within

source water protection areas would

pose a threat to the public that is

drinking this water.

1. Proposal to Ban New and Existing

Wells

As one option, EPA proposes to ban

motor vehicle waste disposal wells in

source water protection areas delineated

for ground water supplying community

water systems and non-transient noncommunity water systems. Starting on

the effective date of the rule, owners or

operators of such existing wells would

be required to cease injection operations

and close their well within 90 days of

the completion of the local source water

assessment program responsible for

their area. The UIC Program Director

would be allowed to extend this

deadline for up to one year in situations

where the most efficient compliance

option is connection to a sanitary sewer

or installation of new treatment

technology. UIC Program Directors also

would have additional flexibility to

extend the deadline for a reasonable

amount of time beyond a year through

compliance agreements with owners or

operators of existing wells.

Additionally, UIC Program Directors

could use compliance agreements to

extend the 90-day deadline in cases

where an owner/operator is waiting for

the permitting authority to act on an

application for a waste disposal permit.

New motor vehicle waste disposal

wells, and new conversions to such

wells, in those delineated areas would

be prohibited starting on the effective

date of the rule. For the purpose of the

Class V regulations, an ‘‘existing’’ well

would be one that is operational or

under construction when the rule

becomes effective. A new well or new

conversion would be anything starting

construction after the rule’s effective

date. If a state does not have a complete

source water assessment program by

May 2003, the ban would apply

throughout the state.

As discussed above, EPA proposes to

focus this initial rule on certain source

water protection areas for the purpose of

defining a category of high risk wells

and prioritizing national policy. The

rule would establish specific measures

to ensure that this category of Class V

wells do not endanger USDWs in the

highest-priority areas. All existing Class

V authorities, including the prohibition

against endangering USDWs in § 144.12

and the authority to call problem wells

in for a permit under § 144.25, would

continue to apply in all areas. EPA

expects and strongly encourages states

to use these existing authorities to take

whatever measures are needed to ensure

all Class V wells are not endangering

USDWs in any other sensitive areas

beyond delineated source water

protection areas. Examples of other

sensitive areas that may warrant priority

attention are provided in section IV.B.1

above. Nothing in this proposed rule

precludes a state or local government

from promulgating more stringent

requirements above and beyond those

contained in the rule.

The proposal to ban motor vehicle

waste disposal wells located in source

water protection areas is based on the

high potential for these wells to

endanger USDWs. Available

information and damage cases,

combined with years of experience

implementing the Class V UIC program,
40600 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

2Anderson, William, Innovative Site Technology,

Bioremediation, Chapter 3.4, page 1, 1995

3Background Paper prepared by Alan English,

Missoula City-County Health Department for U.S.

EPA Underground Injection Control Program,

February 1992.

4 ‘‘An Investigation of the Volatile Organic

Content of Sludges, Soils and Liquids Entering the

Missoula Aquifer from Selected Sources,’’ prepared

by the Missoula City-County Health Department,

Environmental Health Division, Contributors: Tom

Barger and Alan English, July 27, 1990.

5Background information titled ‘‘5X28 Service

Station, Gilford, NH’’ available in the docket. This

background information was obtained from U.S.

EPA Region 1 staff in May 1990.

6Superfund Site Fact Sheet, A.I.W. Frank/MidCounty Mustang Site, Pennsylvania, EPA ID#

PAD004351003, Last Update: March 1998. http://

www.epa.gov/reg3hwmd/super/aiwfrank/pad.htm.

7Site Description Printout for the Panhandle

Eastern Pipeline Site, from Teresa Hattan, Kansas

Department of Health and Environment, July 15,

1998.

8A waste can qualify as a RCRA hazardous waste

either by exhibiting one of the four characteristics

of hazardous waste (ignitability, corrosivity,

reactivity, or toxicity) or by being named on one of

four lists developed by EPA. The cited 13 percent

of facilities injecting waste that exhibits the toxicity

characteristic does not account for the additional

facilities that may be injecting a listed hazardous

waste.

show that these wells stand out as

particularly troublesome.

There are approximately 183,000

automotive-related disposal wells.

These wells are located in every state in

the country—mainly in populated

areas—at a variety of facilities, such as

automobile service stations, car

dealerships, automotive repair shops,

and specialty repair shops (e.g.,

transmission shops, muffler shops, body

shops). They tend to be shallow, with

injection occurring into or above

USDWs. They also tend to be uncased,

which could allow contaminated fluids

to move more easily into USDWs. Given

all of these factors, the quality of fluids

they inject becomes very important in

determining whether these wells are a

threat to USDWs.

Although the development and use of

best management practices (BMPs) by

the automotive industry have improved

recycling and waste disposal practices

over the past decade, EPA is concerned

that there are motor vehicle-related

facilities which inject fluids with little

or no treatment. These fluids, which

may be injected intentionally for waste

disposal or accidentally as a result of

spills or leaks, include spilled gasoline

and oil, waste oil, grease, engine

cleaning solvents, brake and

transmission fluids, and antifreeze.

Such fluids contain potentially harmful

contaminants, often in high

concentrations. For example, fluids

containing waste oils or gasoline

generally include benzene, toluene,

xylenes, and other volatile

contaminants. Waste oils and antifreeze

also contain some priority pollutant

heavy metals, such as barium, cadmium,

chromium, and lead. Other

contaminants that may be injected

include methylene chloride, a

compound found in many degreasers,

and ethylene glycol, a component of

antifreeze. All of these contaminants

can be toxic above certain levels. Some,

such as benzene and toluene, have the

potential to cause cancer.

Data collected for the 1987 Report to

Congress and from later EPA Regional

investigations indicate that fluids being

injected may exceed health-based limits

for contaminant levels in water by 10 to

100 times (see p. 5–19 of the August

1989 Class V Task Force Report

available in the docket). These data

were confirmed for a number of motor

vehicle service stations during the

implementation of a 1991 National

Administrative Order addressing

failures to submit inventory information

required under 40 CFR 144.26 and

146.52(a). Analyses of fluids disposed at

a group of facilities subject to this order

found a total of 13 contaminants present

in concentrations above the drinking

water MCL, although not all

contaminants exceeded the MCL in

every sample at every facility (see Data

from the National Administrative Order

on Motor Vehicle Waste Disposal Wells,

March 16, 1998, available in the docket).

For example, benzene concentrations

exceeded the drinking water MCL at 19

of the 20 facilities tested and in 32 of

35 samples analyzed. The highest

measured benzene concentration was 40

times the MCL. Similarly, arsenic

exceeded the MCL at 11 of 17 facilities

and in 18 of 30 samples, with the

highest arsenic concentration being 31

times the MCL.

The injection of used petroleum

products may leave behind an oily

residue within the wells. A 1995 report

on natural bioattenuation of hazardous

organic compounds in the subsurface

states: ‘‘Most organic contaminants,

however, enter the subsurface as an oily

liquid, such as a fuel spill or release of

chlorinated solvent. Groundwater

moving through the material dissolves a

small portion of the contaminant, which

becomes a plume of groundwater

contamination. Because the

contaminant mass in the oily material is

much greater than that dissolved in the

groundwater, the spill can continue to

maintain the plume more or less

indefinitely. As the plume moves away

from its source natural biological

processes may attenuate the

contamination in the groundwater.’’ 2

Examples of instances where motor

vehicle-related waste disposal wells

have endangered USDWs are numerous.

They include a case in Missoula,

Montana, a sole-source aquifer area,

where investigations starting in June of

1988 discovered that

tetrachloroethylene (PCE) from

operating drainage wells at auto service

stations had contaminated community

wells serving approximately 45,000

people.3, 4 Three community wells were

closed and another 15 have elevated

levels of PCE. In Gilford, New

Hampshire, a March 1988 assessment of

a site with a garage, a tire center, auto

body shop, and a U.S. Army Reserves

maintenance shop discovered that

operating floor drains had contaminated

the ground water, the soil, and an onsite water supply with PCE.5 In Exton,

Pennsylvania, trichloroethylene (TCE),

PCE, and 1,1,1-trichloroethane from a

stone bed drain field connected to floor

drains of an auto repair/body shop

operating until 1984, contaminated

ground water that supplies drinking

water to about 76,700 people.6 In

Liberal, Kansas, solvents disposed in a

septic system by an engine repair shop

resulted in volatile organic compound

(VOC) contamination of several water

supply wells in 1982; concentrations of

VOCs in the septic system were as high

as 32,000 ug/l.7 All of these incidents

occurred before 1989. Some small entity

commenters have suggested that motor

vehicle facilities routinely use

management practices, such as recycling

of used antifreeze and motor oil, that

would significantly reduce the risk of

such contamination. EPA, however,

conducts periodic inspections that

indicate that many facilities do not

routinely implement best management

practices. EPA requests information on

more recent instances of contamination

of USDWs by Class V motor vehicle

wells, as well as any data commenters

may have on the use of BMPs. EPA also

requests information on situations

where USDWs or drinking water wells

were discovered to contain constituents

found in motor vehicle waste.

Many of these documented problems

have been associated with the improper

disposal of fluids that qualify as a

hazardous waste under the Resource

Conservation and Recovery Act (RCRA).

In other words, some motor vehicle

waste disposal wells are in fact Class IV

wells, which are already generally

banned by 40 CFR 144.13. Data obtained

from the 1991 National Administrative

Order suggest that 13 percent of the

motor vehicle waste disposal wells

inject fluids that exhibit the toxicity

characteristic for RCRA hazardous

waste. Considering the potential for

these wells to also receive listed

hazardous wastes,8 such as certain spent
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40601

by the Missoula City-County Health Department,

Environmental Health Division, Contributors: Tom

Barger and Alan English, July 27, 1990.

solvents that may be spilled while

motor vehicle parts are being cleaned,

the fraction of wells inadvertently

injecting hazardous waste may actually

be greater. One study by the New Jersey

Department of Environmental

Protection, for example, determined that

six out of ten automotive waste disposal

wells examined (60 percent) were

actually Class IV injection wells (see p.

7 of Distribution of Organic

Contaminants in Automotive Waste

Disposal Drywell Systems available in

the public docket). Some small entity

representatives and advocates involved

in the development of this proposal

have commented that cases of

contamination caused by the shallow

injection of hazardous waste at motor

vehicle facilities simply underscore the

reason for banning Class IV wells and

point to the need for greater

enforcement of this existing ban, not the

need for greater regulation of properly

operating Class V motor vehicle waste

disposal wells. EPA, however, believes

such cases are a symptom of a Class V

regulatory problem that needs to be

fixed. In particular, the lack of specific

regulatory requirements that mandate

control measures to prevent

endangerment may provide an incentive

to some well owners or operators to

inject hazardous fluids in Class V wells,

either unknowingly or on purpose, to

avoid more stringent regulations

governing other waste disposal

practices. This is a real concern for

motor vehicle waste disposal wells,

such as floor drains in service bays,

which are susceptible to spills of fluids

that commonly qualify as hazardous

waste. In these situations, UIC

inspectors usually cannot tell if a motor

vehicle waste disposal well is a Class V

or a Class IV well.

Some states, localities, and industry

sources have already identified these

wells as potentially posing a threat to

USDWs and have taken steps to address

this threat. For example, Connecticut

published a guidebook for local officials

with regulatory responsibility for Class

V wells (Best Management Practices for

the Protection of Ground Water,

November 4, 1992) recommending that

all discharges from existing wells at

automotive repair and service facilities

to other than a sanitary sewer be

prohibited, and that discharges at new

or expanded facilities in wellhead

protection areas also be prohibited. The

state also recommends that any

authorized wells should be permitted

and their compliance with published

best management practices should be

certified. Massachusetts does not allow

anyone to put fluids in a service station

floor drain without a ground water

discharge permit. New Hampshire

disallows discharges into floor drains at

automotive facilities. The City of

Missoula, Montana requires a permit for

the use of drainage wells at motor

vehicle fueling facilities and requires a

separate stormwater collection system

with control devices to prevent

infiltration of fuel-contaminated water

into such wells. Other states also have

permitting requirements for motor

vehicle and industrial Class V wells in

various circumstances. Finally, the

American Petroleum Institute has

developed industry guidance

recommending that oil companies and

service stations eliminate the use of

Class V wells to dispose of motor

vehicle-related waste (Handling Water

Discharges from Automotive Service

Facilities Located at Petroleum

Marketing Operations, API

Recommended Practice 1633, January

1992). Because one of EPA’s proposed

options would allow continued

permitting of Class V motor vehicle

wells in SWPAs, EPA is very interested

in state experience with such permitting

programs. Do states issue general

permits, applying to classes of facilities,

and under what conditions? What are

the requirements for state issued

permits regarding BMPs, monitoring,

and allowable contaminant

concentration levels? How much

discretion do state permit writers have

in implementing these requirements?

Have there been specific problems with

state permitting programs? How

effective have they been at preventing

Class V wells from endangering

USDWs? Would there be special

difficulties for states with existing

permitting programs if EPA were to

require them to close previously

permitted wells in SWPAs?

Based on the above information and

experience, EPA believes that banning

motor vehicle waste disposal wells in

source water protection areas would

achieve substantial protection.

EPA has designed the ban on motor

vehicle waste disposal wells to be selfimplementing by owners or operators,

with minimal new reporting

requirements and no new inspection or

other administrative requirements.

Owners or operators would have

substantial flexibility to choose how

they want to close their wells. Some

may choose to connect their floor drains

to a municipal sewer system or holding

tank, whose contents can be

periodically cleaned out and disposed

of properly. Others may permanently

seal their floor drains or disconnect

them from existing wells. In these latter

situations, owners or operators would

have to use alternative methods for

managing motor vehicle-related fluids,

such as: (1) Recycling and reusing

wastewater as much as possible; (2)

collecting and recycling petroleumbased fluids and coolants drained from

vehicles; (3) washing parts in a selfcontained, recirculating solvent sink,

with spent solvent being recovered and

replaced by the supplier; (4) using

absorbents to clean up minor leaks and

spills, and placing the used materials in

approved waste containers and

disposing of them properly; and (5)

using a wet vacuum or mop to pick up

accumulated rain or snow melt, and

disposing of it through a publicly

owned treatment works. EPA recognizes

that facilities may need to comply with

other regulatory requirements (e.g.,

obtain permits) in order to make use of

one of these options. EPA believes,

based on firsthand experience with

owners and operators, that most

facilities can easily implement these

alternatives within a short period of

time.

If all motor vehicle waste fluids

generated at a service facility are

segregated so that none are injected, the

facility’s Class V well may not be

prohibited and could be used to dispose

of other waste streams, such as

stormwater, ice melt, and carwash waste

water. EPA advises that Directors use

careful judgment in making such an

allowance, however, limiting it to cases

in which unintentional or illicit

discharge of motor vehicle waste fluids

into the well is unlikely based on the

facilities compliance history and

availability of adequate records showing

proper waste management and disposal.

In these instances, the well is converted

from a motor vehicle waste disposal

well to another type of Class V well

defined by the nature of fluids it

receives. For example, a service station

could perform all vehicle maintenance

in areas that do not drain to the Class

V well. If the service bay connected to

the Class V well is then used only for

draining ice melt or stormwater from

tires or vehicle exteriors, the well would

qualify as a Class V stormwater drainage

well. If the service bay connected to the

Class V well is used for the exterior

washing of vehicles (and no engine or

undercarriage washing is performed),

the well would qualify as an other

industrial well. As another example,

owners or operators could install a

semi-permanent plug (also known as a

plumber’s plug) in the sump outlet

leading to the injection well.
40602 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

5Background information titled ‘‘5X28 Service

Station, Gilford, NH’’ available in the docket. This

background information was obtained from U.S.

EPA Region 1 staff in May 1990.

Automotive waste and spills could then

be collected in the sump and

periodically disposed offsite. When

necessary, the plug could be removed

and the well used for non-automotive

waste only. In order for this approach to

be acceptable, the plug would truly have

to be semi-permanent. It cannot be

something that is easily removed, which

would create the potential for the well

to remain open and subject to abuse.

Because EPA remains concerned about

potential abuses, EPA requests comment

on the use of semi-permanent plugs for

well closure, particularly on their

limitations and on circumstances where

their use is or is not inappropriate.

Regardless of the closure method

selected, owners or operators would be

required to close their well in a manner

that complies with the prohibition of

fluid movement standard in § 144.12 as

well as any additional or more specific

closure standards that may be

established by the UIC Program

Director. This closure requirement

would be like the one that exists in

§ 144.23(b)(1) for Class IV wells. The

proposed rule would not specify any

new soil or ground water sampling or

site remediation requirements.

However, EPA understands that closure

of the well may trigger site

characterization and remediation

requirements under EPA Regional and

Primacy State UIC Program

implementation of 40 CFR 144.12, other

state environmental programs,

insurance policies, business contracts,

local ordinances, and so forth. The

economic analysis supporting today’s

proposal, therefore, reflects the costs of

complying with these other existing

requirements, where they are likely to

apply (EA section 2.3.5). Any such

remediation should be, to the extent

possible, carried out consistently with

any ongoing remediation of

underground storage tank

contamination at affected facilities. In

addition, any wastes generated during

well closure or under alternative waste

management scenarios after the wells

are closed, such as spent cleaning

solutions and absorbents, will have to

be managed in accordance with

applicable solid and hazardous waste

regulations. EPA estimates capital costs

ranging from $2,500 to $10,000 and

annual O&M costs ranging from $700 to

$26,000 per facility, depending on the

particular waste stream and off-site

management option selected. EPA

estimates that these costs for most

facilities will be at the low end of the

ranges. Only a few of the affected well

types will experience costs at the high

end of the ranges. EPA requests

comment on its well closure and

alternate waste management cost

estimates.

For EPA-administered (DI) Programs

only, owners or operators of wells being

closed would be required to notify the

UIC Program Director of the intent to

close their well at least 30 days prior to

closure (owners or operators of wells in

Primacy States would have to meet any

state-established reporting

requirements). This is the same

requirement that currently exists in

§ 144.23(b)(3) for Class IV wells. Based

on the Agency’s experience and

knowledge of how the federal UIC

program runs, EPA believes such preclosure notification is needed as a

mechanism for DI Programs to track

high-priority closures. The Agency,

however, does not know if all state

programs need this same requirement.

States may already have, or could

develop, another or a better mechanism

that they prefer. Therefore, rather than

impose pre-closure notification as a

minimum federal requirement that all

Primacy States must adopt, EPA

proposes to keep this aspect of the new

requirements flexible. If some states

want it, they can choose to adopt the

same or a similar requirement under

their own authority when they amend

their program. Alternatively, EPA

requests comments on whether such

pre-closure notification should be

required in every state. If such an

approach is clearly necessary based on

these comments, EPA could broaden the

requirement to Primacy States in the

final rule.

2. Proposal to Ban New Wells and

Require Existing Wells to Either Close or

Get a Permit

As another option, EPA proposes the

same ban on new and existing motor

vehicle waste disposal wells as

discussed above, but would give states

the option of allowing owners or

operators of existing wells to seek a

permit to continue using their wells. In

states adopting this option, and in areas

where EPA is the primacy agent, owners

or operators of existing wells would

have to either close their wells or

submit a permit application within 90

days of the completion of the local

source water assessment program

responsible for their area. While the

permit application is under review,

existing wells could continue to operate

subject to the condition that fluids

released in the wells meet the primary

drinking water MCLs at the point of

injection, or, if an MCL is not available

for specific pollutants, other appropriate

health-based standards approved by the

UIC Program Director.9 As with the first

option, the UIC Program Director would

be allowed to extend the closure

deadline (but not the application

submittal deadline) for up to one year in

situations where the most efficient

compliance option is connection to a

sanitary sewer or installation of new

treatment technology. UIC Program

Directors also would have additional

flexibility to extend the closure deadline

for a reasonable amount of time beyond

a year through compliance agreements.

In primacy states that adopted this

option, it would require more state

effort than the first proposal. UIC

Program Directors would have to review

the permit application and site-specific

conditions for each facility wishing to

keep its motor vehicle waste disposal

well open. Based on this review,

Directors would have to either deny the

application or develop and enforce

permit requirements to make sure the

well does not endanger USDWs.

The specific permit requirements

could vary from one well to the next,

but would have to include the following

three conditions at a minimum. First,

owners or operators would have to make

sure fluids released in their wells meet

the primary drinking water MCLs at the

point of injection or other appropriate

health-based standards approved by the

UIC Program Director, if an MCL is not

available for specific pollutants

(comments are being solicited on

whether this requirement could be

relaxed and that EPA does not believe

that relaxing this requirement would

provide adequate public health

protection, see section II.C.6). Second,

owners or operators would have to

follow accepted BMPs for motor

vehicle-related facilities. The BMPs

recommended in the State of

Connecticut’s Best Management

Practices for the Protection of Ground

Water and API’s Handling Water

Discharges from Automotive Service

Facilities Located at Petroleum

Marketing Operations, both available in

the docket, serve as good models. Third,

owners or operators would have to

monitor the quality of their injectate and

sludge (if present in dry wells or tanks

holding injectate) both initially and on

a continuing basis in order to

demonstrate compliance with the MCLs.

The rule, however, would not specify

new injectate monitoring requirements

that must be followed, leaving those

instead to the discretion of the Director.
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40603

When all of these requirements are

put together, EPA believes the permit

would specify a monitoring and action

plan similar to the following, but

recognizes that states will design

monitoring requirements appropriate to

the situation. As a first step, owners or

operators might be required to

characterize the quality of their injectate

and any sludge. If liquid from the sludge

has chemical concentrations below the

MCLs, owners or operators might be

required to analyze the injectate

quarterly for the first three years and

then annually if it is consistently below

the MCLs. They also might be required

to analyze their sludge annually. If the

injectate is below the MCLs but liquid

from the sludge is above the MCLs, then

owners or operators might have to

follow the same monitoring

requirements as above plus pump and

properly dispose of their sludge.

Finally, if the injectate is above the MCL

and the liquid from the sludge is above

the MCL, then the permit might require:

(1) Implementation of specific BMPs or

treatment measures; (2) pumping and

proper disposal of their sludge; (3)

quarterly sampling of injectate for the

first three years and then annually if

consistently below the MCLs; (4) annual

sampling of the sludge; and (5) other

requirements established by the Director

to protect USDWs. EPA requests

comments on this possible set of permit

requirements, and any others that could

be used to protect USDWs from motor

vehicle waste disposal wells. EPA is

particularly interested in receiving

comment on the appropriate frequency

of the injectate monitoring outlined

above given the high variability and

unpredictable nature of the fluids that

may be spilled or released into motor

vehicle waste disposal wells.

This option recognizes that there may

be instances in which owners or

operators of existing motor vehicle

waste disposal wells in source water

protection areas want to keep using

their wells and can do so safely given

their site-specific circumstances. These

circumstances include the use of BMPs

and/or treatment technologies that

effectively keep potentially endangering

fluids from entering the well, combined

with regular injectate monitoring, to

make sure fluids meet MCLs at the point

of injection. Some small entity

representatives and advocates involved

with the development of this proposal

indicated that many service stations and

repair shops have already adopted

BMPs, such as the recycling of used

motor oil and antifreeze, spill

prevention and control, and the use of

environmentally friendly cleaning

products, which have significantly

reduced both the volume and toxicity of

their injectate. These stakeholders

asserted that the use of such practices is

now widespread in the automotive

service industry, making it unnecessary

to categorically ban every well. Under

this option, therefore, certain motor

vehicle waste disposal wells in

delineated source water protection areas

could remain open, if approved by the

UIC Program Director based on a review

of site-specific circumstances and if

controlled through a permit that

requires MCLs to be met at the point of

injection and any other conditions

believed necessary to protect USDWs.

3. Alternative

EPA is requesting comment on an

alternative to the two proposals outlined

above. Under this alternative, EPA

could require owners or operators who

want to continue using motor vehicle

waste disposal wells in delineated

source water protection areas to make

sure fluids meet MCLs at the point of

injection. This would differ from the

first proposal by not having an outright

ban and it would differ from the second

proposal discussed above by eliminating

the site-specific permit requirement for

owners or operators whose injectate and

sludge meet the MCLs. Instead, the

requirement to meet MCLs at the point

of injection would be specified in the

regulation as a condition for continued

rule authorization. The regulation also

would specify monitoring requirements

and actions to take based on the

monitoring results. Owners or operators

of existing wells who do not want to or

cannot meet these conditions would

have to close their wells according to

the same schedule discussed above.

New wells in source water protection

areas would be prohibited starting on

the effective date of the rule.

The specific monitoring requirements

that EPA proposes, and requests

comment on, are the same as the

potential permit requirements described

for the second proposal above. That is,

owners or operators would be required

to initially characterize their injectate

and sludge quality. If liquid from the

sludge has chemical concentrations

below the MCLs, owners or operators

would be required to (1) analyze the

injectate quarterly for the first three

years and then annually if it is

consistently below the MCLs, and (2)

analyze the sludge annually. If the

injectate is below the MCLs but liquid

from the sludge is above the MCLs, then

owners or operators would have to

follow the same monitoring

requirements and pump and properly

dispose of their sludge. If the injectate

is above the MCL and the liquid from

the sludge is above the MCL, owners or

operators would have to either close

their wells or make process or

operational changes to ensure

compliance with the MCLs.

This approach for regulating existing

motor vehicle waste disposal wells

would be almost identical to the

proposed approach for regulating Class

V industrial wells, discussed below. The

only difference would be more

extensive monitoring at motor vehicle

waste disposal wells. EPA believes this

difference is justified given the nature of

the fluids routinely handled at motor

vehicle-related facilities (e.g., waste oils

and solvents that have high

concentrations of toxic constituents)

and the relatively high potential for

spills of these fluids to occur and enter

floor drains. Under these conditions, the

quality of the injectate can be highly

variable and unpredictable, and regular

monitoring is needed to confirm that a

problem does not exist or to detect a

problem early so that it can be quickly

mitigated. EPA believes the situation is

different for most Class V industrial

wells, where the injectate is a process

wastestream that is more constant in

terms of quality and quantity than the

spills that are the primary concern at

motor vehicle-related facilities.

Therefore, although some industrial

wells are also susceptible to spills or

process upsets as discussed in the next

section below, frequent and regular

monitoring at industrial facilities is less

important in controlling injectate

quality and protecting USDWs. EPA

requests comment on this position as

well as suggestions for the specific

monitoring requirements that would be

appropriate for motor vehicle waste

disposal wells.

C. Requirements for Class V Industrial

Wells

1. Proposal

Owners or operators of existing Class

V industrial wells in source water

protection areas—delineated for

community water systems and nontransient non-community water systems

that use ground water as a source—

would as a condition of rule

authorization be required to either (1)

make sure fluids disposed in their wells

meet MCLs at the point of injection, or

(2) close their wells. New wells in such

areas, including new conversions to

Class V industrial wells, would be

prohibited unless they were able to meet

the same standard on injectate quality.

For the purpose of this regulation, an

‘‘existing’’ well would be one that is

operational or under construction when
40604 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

the rule becomes effective. A well or

well conversion would qualify as ‘‘new’’

if construction started after the rule’s

effective date. Because primary MCLs

may not exist for some pollutants

released in industrial wells, UIC

Program Directors would have

discretion to require the injectate to

meet other appropriate health-based

limits, as needed to protect USDWs for

these other contaminants. Industrial

well closures would be subject to the

same basic closure requirements as

proposed for motor vehicle waste

disposal wells, including the

requirement that owners or operators in

DI Programs submit pre-closure

notification at least 30 days prior to

abandonment.

The timing for these new

requirements would be the same as that

proposed for motor vehicle waste

disposal wells. Starting on the effective

date of the rule, existing wells would

have to meet the MCLs or close within

90 days of the completion of the source

water assessment program for their local

area. The UIC Program Director would

be allowed to extend this deadline for

up to one year in situations where the

most efficient compliance option is

connection to a sanitary sewer or

installation of new treatment

technology. UIC Program Directors also

would have additional flexibility to

extend the deadline for a reasonable

amount of time beyond a year through

compliance agreements with owners or

operators of existing wells. The

requirements for new and converted

industrial wells in delineated areas

would start applying immediately on

the effective date of the rule.

Available information suggests that

additional federal regulation is needed

to address the risk posed by Class V

industrial wells located in delineated

areas. Industrial process water and

waste disposal (5W20) wells, one major

well type that fits in the industrial well

category defined above, pose a

significant threat to USDWs especially if

they inject highly contaminated and/or

large volumes of waste. According to the

1987 Report to Congress, such wells

could potentially receive any fluid

disposed by the various industries that

use Class V wells (e.g., commercial

printing, die and tool manufacturing,

machinery and equipment

manufacturing, chemical production,

and drycleaning). For example, the

Report estimated that in Nassau and

Suffolk Counties in New York, an

average of 20 million gallons per day—

or, 36 thousand pounds per day of total

dissolved solids—was injected into the

subsurface by such facilities. This

occurred in the early 1980’s (Report to

Congress, p. 4–278).

Industrial drainage (5D4) wells, also

within the Class V industrial well

category, also pose a significant threat of

contamination to USDWs especially if

they inject poor quality fluids, are

susceptible to accidental industrial

spills, and are available for abuse

through illicit discharges. For example,

studies from Nationwide Urban Runoff

Program projects in Fresno, CA and

Spokane, WA in 1984 and 1986,

respectively, have shown that industrial

areas had the lowest quality stormwater

runoff of all land-use types evaluated

(Report to Congress, p. 4–37). A

particular example illustrating this high

hazard potential occurred in

Hutchinson, Kansas (in 1986) where a

diesel/tar mixture from a newly tarred

roof washed into what would now be

classified as an industrial drainage well

during a rainstorm, and a nearby city

water well was shut down as a result of

the injected hydrocarbon mixture

(Report to Congress, p. 4–38).

Requiring Class V industrial wells in

source water protection areas to meet

primary MCLs, or other appropriate

health-based limits selected by the UIC

Program Director, at the point of

injection will greatly reduce the threat

of these wells. EPA is proposing this

approach rather than an outright ban of

industrial wells because of a lack of

information indicating that a ban is

always warranted. Also, this approach is

consistent with the controls already

imposed in some locations. For

example, Class V industrial wells in

Florida are required to meet MCLs at the

point of injection, as are most kinds of

Class V industrial wells in

Massachusetts. Requiring MCLs to be

met at the point of injection would

establish a clear threshold to ensure the

wells are not endangering USDWs, but

would give owners or operators

flexibility in deciding how to meet that

threshold. In some cases, it will require

no action or simple containment and/or

treatment measures. Owners or

operators wishing to keep their wells

open may also have to monitor their

injectate quality to adequately assure

that it does not exceed MCLs though

EPA is not proposing any specific

monitoring requirements for owners and

operators of Class V industrial wells.

Owners or operators who are not able to

ensure that their discharge meets MCLs

at the point of injection (or who choose

not to because of the high cost of doing

so) would have to close their wells.

2. Alternatives

As an alternative to the proposed

approach, EPA could ban all or certain

Class V industrial wells in source water

protection areas as part of this

rulemaking. For example, the ban could

be extended to wells that dispose of

washwater from car washes where

motor or undercarriage washing is

performed. As mentioned previously,

EPA does not believe sufficient

information exists to support a broader

ban at this time. Additional bans,

however, could be justified and

imposed as part of subsequent

rulemakings, if additional information

supporting a broader ban becomes

available.

EPA also requests comment on

whether the pre-closure notification

requirement for industrial wells should

be added in Primacy State programs. As

discussed above for motor vehicle waste

disposal wells, EPA currently believes it

would be best to restrict that

requirement to DI Programs, as it has

restricted the pre-closure notification

requirement in § 144.23(b)(3) for Class

IV wells. Finally, elsewhere in this

preamble, comments are requested on

whether the requirement that injectate

from industrial wells in source water

protection areas always meet all MCLs

at the point of injection could be relaxed

under any circumstances without

endangering USDWs. EPA’s does not

support this position because it believes

that allowing injection of waste that

exceeds the MCL into source water

protection areas poses an endangerment

to the USDW and to people that drink

this water.

D. Ban of Large-Capacity Cesspools

Cesspools are Class V wells that

receive untreated sanitary waste and

allow the waste to percolate directly

into the subsurface. Only those

cesspools with the capacity to serve 20

or more persons per day are subject to

UIC regulation.

As discussed in the August 28, 1995

proposal, EPA believes such largecapacity cesspools have a high potential

to contaminate USDWs because: (1)

Sanitary wastes released in cesspools

frequently exceed drinking water MCLs

for nitrates, total suspended solids, and

coliform bacteria (Report to Congress, p.

4–151); (2) the wastes released in

cesspools also contain other

constituents of concern, including

phosphates, chlorides, grease, viruses,

and chemicals used to clean cesspools

such as trichloroethane and methylene

chloride; and (3) cesspools provide no

treatment except for some settling of the

solids. In addition, the 1987 Report to

Congress notes that some states have

reported degradation of USDWs from

such cesspools (Report to Congress, p.

4–151). Based on these concerns, new
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cesspools are already banned in most

states. Where such bans presently exist,

states are phasing out existing cesspools

over a time period negotiated by state

and local governments and acceptable to

EPA.

The August 28, 1995 notice proposed

not to impose a federal ban on largecapacity cesspools because of the

actions being taken to control cesspools

at the state level. The Agency proposed

instead to use its existing enforcement

authorities to supplement state bans

where necessary to ensure compliance

with the non-endangerment

requirements of § 144.12.

Some commenters on the August 28,

1995 proposal raised a number of issues

associated with this approach. For

example, the Sierra Club Legal Defense

Fund asserted that the proposal fails to

carry out SDWA requirements to

prevent endangerment of USDWs, that

reliance on existing enforcement

authorities is inadequate, and that the

existence of some state or local

regulations does not justify an EPA

decision not to regulate. In addition, one

state commented that it has not banned

new cesspools by existing regulations. A

ban in the federal UIC regulations

would ensure that these high-risk wells

are not constructed in this state or any

other state that does not have its own

regulations banning them.

Based on these comments, EPA is

today proposing to ban, starting on the

rule’s effective date, new large-capacity

cesspools in source water protection

areas delineated for community water

systems and non-transient noncommunity water systems that use

ground water as a source. Existing largecapacity cesspools in such areas would

be required to close within five years of

the effective date of the rule. Owners or

operators of such cesspools in DI

Programs would have to notify the UIC

Program Director of the intent to

abandon their cesspool at least 30 days

prior to abandonment (owners or

operators of large-capacity cesspools in

Primacy States would have to meet any

state-established reporting

requirements). For the purpose of this

regulation, a ‘‘new’’ cesspool would be

one starting construction after the rule’s

effective date. An ‘‘existing’’ cesspool

would be one that is operational or

under construction when the rule

becomes effective. These new federal

requirements would strengthen existing

programs to protect USDWs.

Existing large-capacity cesspools

would have five years to close instead

of 90 days with a possible one year

extension proposed for motor vehicle

waste disposal wells because cesspool

owners or operators may need this

amount of time to implement

appropriate alternatives for managing

their sanitary waste. In particular, they

cannot stop the generation of sanitary

waste, so the only options they would

have would be to connect to a sanitary

sewer system or install a septic system.

Both of these options may take more

than a year to implement and may not

even be feasible (e.g., the septic system

option would not be feasible if onsite

soils do not satisfactorily pass a

percolation test). In comparison, there

are generally accepted methods

available to owners or operators of

motor vehicle-related facilities to stop

the disposal of motor vehicle waste

fluids in Class V wells that can be

implemented within 90 days with a

possible one year extension. These

alternatives include recycling, sending

spent solvents back to suppliers,

installing a semi-permanent plug in the

well and a sump to capture any spills

of motor vehicle fluids, running a dry

shop, and the other BMPs discussed

above. Although EPA recognizes that

other types of permitting may be

required for these options, EPA believes

that 90 days is sufficient to complete

this process.

EPA proposes to focus the largecapacity cesspool ban on ground waterbased source water protection areas

around community water systems and

non-transient non-community water

systems for the purpose of prioritizing

national policy and because these are

the highest risk wells. EPA expects and

strongly encourages states to use

existing authorities to take whatever

measures are needed to ensure Class V

cesspools are not endangering USDWs

in any other sensitive areas outside

delineated source water protection areas

(see § IV.B.1 for examples of other such

areas). If a state does not have a

complete source water assessment

program by May 2003, the federal ban

on cesspools would apply throughout

the state. EPA also requests comment on

the merits and potential impacts of

broadening the proposed cesspool ban

to source water protection areas

delineated for transient non-community

water systems that use ground water as

a source. Transient systems are those

that serve at least 25 people but not on

a regular basis (e.g., campground or

highway rest stop). Including these

additional areas within the scope of the

proposed requirements for cesspools

could address the unique acute risk

associated with the shallow disposal of

untreated sanitary waste in areas where

ground water is used as a drinking water

source.

As discussed above for motor vehicle

waste disposal wells and industrial

wells, EPA is proposing the pre-closure

notification requirement for largecapacity cesspools in DI Programs

because of the Agency’s knowledge of

how these programs run and what they

need to track high-priority closures.

Because EPA does not know if this same

requirement is needed for all Primacy

States, and is unsure if such a

requirement may in fact create a burden

that outweighs its benefits in the context

of individual state programs, the Agency

is not proposing to impose the preclosure notification requirement on

Primacy States. Instead, the proposal

would give states flexibility to use their

own authority to adopt this or a similar

requirement tailored to their particular

needs. However, EPA requests comment

on this issue, including comments on

the merits and potential impacts of

extending the pre-closure notification

requirement to Primacy States.

E. Exclusion Criteria for Septic Systems

and Cesspools

As discussed in the August 28, 1995

notice, the current UIC regulations

distinguish between septic systems used

by single-family homes and nonresidential septic systems that receive

solely sanitary waste and have the

capacity to serve fewer than 20 people.

Section 144.1(g) excludes from UIC

regulation ‘‘individual or single family

residential waste disposal systems such

as domestic cesspools or septic

systems’’ and ‘‘non-residential

cesspools, septic systems or similar

waste disposal systems if such systems

(A) are used solely for the disposal of

sanitary waste, and (B) have the

capacity to serve fewer than 20 persons

a day.’’

EPA now believes there is no

difference between a single-family

residence septic system and a nonresidential system serving only a small

number of people, as long as the nonresidential system receives only sanitary

waste. Therefore, the August 28, 1995

notice proposed to revise § 144.1 to

exclude from UIC regulation all

cesspools and septic systems serving

fewer than 20 people, regardless of

where such systems are located. This

revision would eliminate the distinction

between septic systems used by singlefamily homes and small non-residential

septic systems that receive solely

sanitary waste. At the same time, EPA

proposed to define cesspools and septic

systems as wells receiving solely

sanitary waste to distinguish them from

similar devices receiving industrial

waste waters, which would be defined

as industrial waste disposal wells.

Finally, EPA proposed to define sanitary

waste as domestic sewage and
40606 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

household waste. EPA requested public

comment on this proposal and any

alternatives, such as exclusion criteria

based on septic tank size (e.g., tanks

under 2,000 gallons would not be

subject to UIC regulation), flow rate

(e.g., systems receiving less than 5,000

gallons per day would not be subject to

UIC regulation), or dwelling size.

Of the 57 comment letters submitted

on the proposal, 28 addressed this issue.

Only two commenters supported the

proposal to maintain the threshold of 20

persons per day for systems subject to

regulation. Eighteen commenters

preferred an alternative criterion, with

most preferring a threshold based on

flow rate. The suggested flow rates

ranged from 2,000 to 20,000 gallons per

day. A few of the commenters preferred

a criterion based on septic tank size

(ranging from 2,000 to 7,500 gallons),

and one commenter suggested that a soil

application rate be used (1.5 gallons per

day per square foot). Apart from these

18 commenters who preferred an

alternative criterion, four commenters

asserted that all septic systems receiving

solely sanitary waste—regardless of

capacity—should be excluded from UIC

regulation and addressed by states

through other, existing legal authorities.

Two other commenters stated that all

cesspools—regardless of capacity—

should be banned altogether.

In addition to comments on the

threshold for regulation, seven

commenters took issue with the

proposed definition of sanitary waste.

These commenters thought the

proposed definition would not clearly

establish that small septic systems and

other similar systems receiving only

domestic sewage and household-type

wastes at commercial and industrial

facilities are excluded from UIC

regulation. The commenters suggested

that the sanitary waste definition be

broadened to include examples of

commercial or industrial settings where

the exclusion would apply.

Alternatively, EPA could use a more

general definition of sanitary waste that

includes wastewater generated from

human wastes; personal or employee

food preparation; gray water (e.g., hand

washing waste from lavoratory and

kitchen sinks); and other domestic-type

wastes, regardless of where the waste

was generated.

Based on these comments, as well as

experience implementing the UIC

program, EPA recognizes that the

current 20 persons-a-day exclusion

criterion in the federal UIC regulations

has weaknesses. However, it is not now

clear to EPA that a change to this

criterion is necessary to protect USDWs

or could be made without causing

undue disruption to existing state and

local programs. State programs currently

interpret the criterion in different ways,

with most programs using a septic

system flow rate and other programs

using a septic tank size or other

measure. These various state

interpretations appear to work well and

achieve adequate protection of USDWs.

EPA’s adoption of an interpretation

currently used by one or more states

may not improve protection but might

invalidate other state interpretations.

Therefore, EPA is again requesting

comment on the § 144.1(g) criteria

proposed on August 28, 1995, which

would exclude all septic systems and

cesspools with a capacity to serve fewer

than 20 persons a day, without

distinguishing between residential and

non-residential systems. This time,

however, the Agency asks that

commenters specifically address the

question of whether the federal criteria

need to be changed to correct a

significant operational problem, such as

inadequate protection of USDWs or

extreme burden or confusion in

implementing the UIC program. If

alternative criteria are believed to be

needed, the Agency also requests that

commenters propose a specific

alternative and address how it would

work if adopted on the federal level.

The vast majority of commenters on the

prior proposal simply suggested that

EPA adopt one state’s interpretation,

without regard to how it might affect

other states.

In response to comments on the

proposed definition of sanitary waste,

EPA agrees that the definition should be

broadened to clarify that small-capacity

septic systems or cesspools at

commercial and industrial facilities are

excluded from UIC regulation if they

receive solely sanitary waste. Therefore,

the Agency is re-proposing today a new

sanitary waste definition in §§ 144.3 and

146.3 that references commercial and

industrial facilities. This proposal is

based in part on the household waste

exclusion established in the RCRA

regulations (40 CFR 261.4(b)(1)).

F. Other Amendments

As outlined in Table 1 at the

beginning of this preamble, EPA is

reproposing other minor revisions

originally proposed in the August 28,

1995 notice, in order to provide a

complete and coherent picture of all

Class V UIC changes being

contemplated. These revisions, on

which EPA will continue to accept

public comment, address (1) a few

definitions in §§ 144.3 and 146.3, and

(2) the classification of radioactive

waste disposal wells in §§ 144.6 and

146.5. In addition, certain existing Class

V requirements are being reiterated in or

moved to the plain-English version of

the consolidated Class V regulations in

40 CFR 144 Subpart G. EPA is not

accepting comment on these

requirements, identified with notes in

the proposed rule language, because

they already exist in the UIC regulations

and are only being reworded to improve

their clarity.

1. Sections 144.3 and 146.3—Definitions

In addition to the proposed new

definition of sanitary waste discussed

above, the proposed regulation would

add new definitions for the terms

‘‘cesspool,’’ ‘‘drywell,’’ ‘‘improved

sinkhole,’’ ‘‘septic system,’’ and

‘‘subsurface fluid distribution system.’’

The rule also would revise the existing

definitions for ‘‘well’’ and ‘‘well

injection.’’

The definition of ‘‘cesspool’’ and

‘‘septic system’’ would conform with

the new Class V categories explained in

section V.A of this preamble.

An ‘‘improved sinkhole’’ would be

defined as a type of injection well

regulated under the UIC program.

Today’s proposed definition would

codify EPA’s interpretation that the

intentional disposal of waste waters in

natural depressions, open fractures, and

crevices (such as those commonly

associated with the cooling of lava flows

or weathering of limestone) fits within

the statutory definition of underground

injection.

A ‘‘subsurface fluid distribution

system,’’ which is a term used in the

proposed new definition of ‘‘septic

system,’’ would be defined with a

standard engineering description.

The definition of ‘‘well’’ would be

revised to clarify that a ‘‘well’’ includes

improved sinkholes and subsurface

fluid distribution systems.

The definition of ‘‘well injection’’

would be revised to eliminate a

redundancy and simply state that well

injection means the subsurface

emplacement of fluids through a well.

2. Sections 144.6 and 146.5—

Classification of Wells

The proposed regulation would revise

§ 144.6(a) and § 146.5(a) by adding a

paragraph (3) to move Class V

radioactive waste disposal wells

injecting below all USDWs into the

Class I category. Such Class V wells, in

fact, are similar to Class I wells in terms

of their design, the nature of fluids that

they inject, and their potential to

endanger USDWs. In particular, like

Class I wells, such radioactive waste

injection wells inject below all USDWs

and warrant the same level of control.
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The Agency believes that all of these

wells are located in Texas, which

already regulates them as Class I wells.

Existing Class V radioactive waste

disposal wells, therefore, would not be

subject to any additional regulatory

requirements. However, the Agency

believes that Class I requirements

related to permitting, construction,

operating, monitoring, reporting,

mechanical integrity testing, area of

review, and plugging and abandonment

are needed to prevent any new

radioactive waste disposal wells from

endangering USDWs. The Agency, thus,

proposes to reclassify Class V wells that

inject radioactive waste below the

lowermost USDW as Class I wells and

subject them to the full set of existing

Class I requirements. This approach is

administratively simpler and more

straightforward than keeping the wells

in the Class V universe and developing

identical requirements under the Class

V program.

EPA wishes to clarify that this

reclassification of Class V radioactive

waste disposal wells does not affect the

disposal of naturally occurring

radioactive material (NORM) in Class II

wells as part of oil and gas field

operations. The injection of fluids

associated with oil and natural gas

production, including such fluids

containing NORM, would continue to be

regulated under existing Class II UIC

requirements or under applicable

regulations prescribed by the Primacy

State agency.

3. Existing Regulations Being Reiterated

or Replaced in 40 CFR Part 144, Subpart

G

The existing description of the five

classes of injection wells in § 144.6

would be reiterated, in a plain-English

format, in § 144.82 in the new Subpart

G. Similarly, the existing prohibition of

fluid movement in § 144.12 would be

reiterated in§ 144.80.

The existing inventory requirements

for Class V wells in § 144.26(b)(1)(iii)

and (e) and the description of when

Class V injection is authorized by rule

in § 144.24 would be deleted and moved

to §§ 144.83 and 144.84, respectively, in

the new Subpart G.

With only two exceptions, the

substance of these existing requirements

would not be changed. Only the

language and format of the requirements

would be revised to make them easier to

understand. One of the changes is a

proposed new requirement in

§ 144.83(a)(2)(iii) for owners or

operators of wells in delineated source

water protection areas, in DI Programs

only, to submit new inventory

information if they convert their well

into a Class V industrial well as defined

in today’s proposal. An analogous

inventory requirement for conversions

to Class V motor vehicle waste disposal

wells and cesspools is not needed

because the rule would prohibit such

well conversions, consistent with the

ban on new motor vehicle waste

disposal wells and cesspools. However,

wells in source water protection areas

could be converted to industrial wells

after the original submittal of inventory

information, and there would be no way

for the UIC Program Director to learn

about this potentially endangering

situation if there is not a requirement to

submit new inventory information. The

other change calls for the submittal of

inventory information for new wells

prior to construction rather than prior to

starting injection, as currently in

§ 144.26(e)(3). This change does not add

any new burden or cost for well owners

or operators. To the contrary, it is

intended to help owners or operators

avoid a situation in which they have

incurred all the cost of well

construction and then later, due to some

unforeseen problem, are prohibited from

using the well after they submit

inventory information. Submitting the

information prior to construction would

give UIC Programs the opportunity to

intervene or advise before any

construction costs are wasted.

Just like the pre-closure notification

requirement proposed for motor vehicle

waste disposal wells, industrial wells,

and large-capacity cesspools, EPA is

proposing the new inventory

requirement for well conversions in DI

Programs because the Agency knows

how these programs run and what the

EPA Regions want and need to track the

status of high-risk wells. Because EPA

does not know if this same requirement

is needed for all Primacy States

(comparable or better mechanisms may

already exist or could be developed),

and is unsure if such a requirement may

in fact create a burden that outweighs its

benefits given each state’s available

resources, the Agency is not proposing

to impose the new inventory

requirement on Primacy States.

However, as with the pre-closure

notification requirement, EPA requests

comment on this issue, including

comments on the merits and potential

impacts of extending the inventory

requirement to Primacy States. EPA also

requests comment on the merits of

broadening the inventory requirement to

well conversions outside of delineated

source water protection areas. Based on

public comment, EPA may broaden the

inventory requirement in the final rule.

4. Part 145—State UIC Program

Requirements

The Agency proposes to amend

§ 145.11 to be consistent with the

proposed changes in 40 CFR Part 144.

These proposed amendments would

insert a set of new requirements in

§ 144.86 that state programs must have

the legal authority to implement.

These proposed amendments to Part

145 are technical corrections to

incorporate the proposed changes to 40

CFR Part 144. The corrections include a

reference to the proposed new section

and a redesignation of paragraphs to

accommodate the new references.

VI. Regulatory Impact

A. Executive Order 12866

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 program or the right and

obligation 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.

Pursuant to the terms of Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action’’. As such, this action was

submitted to the Office of Management

and Budget (OMB) for review. Changes

made in response to OMB suggestions or

recommendations will be documented

in the public record.

Section 6(a)(3)(B) of EO 12866

requires that for all significant

regulatory actions, the Agency prepare,

and provide to OMB and the public, an

assessment of the potential costs and

benefits of the regulatory action,

including an explanation of the manner

in which the regulatory action is

consistent with a statutory mandate and,

to the extent permitted by law, promotes

the President’s priorities and avoids

undue interference with State, local,
40608 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

and tribal governments in the exercise

of their governmental functions. Section

6(a)(3)(E) requires that the Agency

identify for the public the substantive

changes made between the draft

submitted to OMB for review and the

published proposal, and those changes

made at the suggestion or

recommendation of OMB.

Accordingly, the Agency has prepared

an Economic Analysis (EA) of the

Proposed Rule that assesses its costs.

The Agency estimated the total costs of

the rule under two proposals. Under

Proposal 1, motor vehicle waste

disposal wells are banned. Under

Proposal 2 motor vehicle waste disposal

wells are allowed to continue operating

under permits. The Agency estimates

the cost for Proposal 1 at approximately

$54.5 million, with a possible range of

$27 million to $85 million. Under

Proposal 2, the total costs of the rule are

estimated at approximately $44.5

million, with a possible range of $21

million to $70 million. The cost

estimates under both proposals cover a

wide range because the location of most

affected Class V wells is unknown, and

the boundaries of SWPAs have not yet

been delineated. Using the multi-step

process described below, the Agency

estimated the number of wells that will

potentially be affected by the proposed

rule.

First, EPA compiled a list of SIC

categories that captures the universe of

facilities that could use motor vehicle

waste disposal wells. Injection well

inventory data from eight States were

reviewed to determine the SIC

categories associated with industrial

wells. An SIC category was included in

the list of affected industries if it

appeared once in at least three of the

eight State inventories. Starting with all

facilities listed under each of the

selected SIC categories, EPA eliminated

those facilities that would be outside the

scope of the proposed rule. These

included facilities connected to sewers

or discharging to surface water, facilities

with wells closed under a past

Administrative Consent Order and

facilities located outside source water

protection areas (SWPAs) delineated

around community water systems and

non-transient non-community water

systems that use ground water as a

source. EPA also eliminated 50 percent

of facilities within currently delineated

wellhead protection areas (WHPAs), and

50 to 75 percent of the remaining

facilities in 10 states that explicitly ban

or otherwise stringently control such

wells. This step was taken because these

wells are either already prohibited or

are otherwise stringently controlled.

In order to assess the number of wells

in SWPAs, EPA used the analytical

assumption that states will delineate

SWPAs by using areas of one-half mile

radius around water supply wells for

community water systems, and of onequarter mile radius around water supply

wells for non-transient non-community

water systems. EPA based this

assumption on the fact that many states

used this approach to delineate WHPAs.

It was also necessary to estimate the

likely overlap between SWPAs and

areas with Class V wells. Both Class V

waste disposal wells and drinking water

wells are likely to be located near

populated areas, suggesting that more

Class V wells will be located within

SWPAs than if they were randomly

distributed across a State. However,

because drinking water wells are often

located on the outskirts of a community

and the SWPA is relatively small (onequarter mile radius around nontransient systems and one-half mile

radius around community water

systems) SWPAs are likely to have fewer

Class V wells than areas near the center

of the community. EPA assumed that a

SWPA is twice as likely to contain a

Class V waste disposal well as an equal

area of land outside a SWPA (excluding

urban land). Because this assumption is

difficult to verify, EPA also developed a

range of cost estimates using the

assumptions that SWPAs were either

three times as likely or no more likely

to contain Class V waste disposal wells

as non-SWPAs (in the non-urban

portion of each state). The upper and

lower bounds of the estimated cost

range shown above reflect these

alternative assumptions.

To put this estimate into context, EPA

estimates that about 9,420 waste

disposal wells will be affected by the

rule. Since there are 63,524 community

and non-transient non-community

ground water systems in the country,

this means on average about one in

seven SWPAs will have an affected

Class V well. Using the upper bound

estimate of 14,130 affected wells implies

that about one in four SWPAs would

have an affected well, while using the

lower bound estimate of 4,710 affected

wells implies that one in thirteen

SWPAs would have an affected well.

The Agency estimated that nationwide,

about 2 percent of all motor vehicle

waste disposal wells are located in

SWPAs, with a range of 1 to 3 percent.

(Note: For the baseline case of 2 percent,

the percentage varies among states with

a range between 0.14 percent and 29.22

percent.) EPA requests comment on its

procedure for estimating the number of

affected wells in SWPAs.

The Agency assumed that all states

will complete their source water

assessment programs on time. This

assumption took into consideration that

44 states and 2 territories already have

existing wellhead protection programs

in place and that these states will be

able to build on these programs to meet

the source water protection

requirements. The Agency also assumed

the maximum possible time allowed for

completing these assessments, including

use of the full 180 day extension.

Further, this proposal affects SWPAs for

the 63,524 community and nontransient non-community ground water

systems which comprise only 45% of all

of the systems for which the state must

complete a source water assessment and

it is envisioned that states will complete

these assessments first. Finally, states

can use 10 percent of their FY 1997

allotment from Drinking Water State

Revolving Funds, which totaled $1.2

billion to help this endeavor. EPA is

proposing that the rule apply statewide

if SWAPs are not completed on time,

however, EPA realizes that the total cost

of the rule could increase several fold if

one or two highly populated states do

not meet the deadline. The Agency

requests comment on its assumption

that all states will meet the deadline.

The process described above relating

to compiling a list of SIC categories and

then eliminating facilities outside the

scope of the rule was also used to

estimate the number of industrial

facilities that might have an affected

Class V well. The estimate was provided

to EPA’s Regional program managers

who considered the results gross

overestimates of the actual number of

Class V industrial wells, based on their

extensive field experience. It is likely

that using SIC codes to estimate the

number of industrial facilities with

Class V wells is not reliable because it

is difficult to specifically identify which

industries within each classification are

likely to use Class V wells and which

wells are covered by this proposal,

rather than being included in the other

industrial well category that is still

being studied. Also, EPA believes that

industrial facilities generally are more

likely to be located in sewered areas and

to employ waste recycling measures

than motor vehicle facilities. EPA

Region 3 maintained extensive

inspection records in their Well

Activities Tracking, Evaluation and

Reporting System II, covering a period

from 1993 through 1996. An analysis of

this data, which contains over 11,000

inspection records, revealed that

approximately 75 percent of Class V

waste disposal wells inspected were
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40609

used by automotive service-related

businesses. To be conservative, the

Agency assumed that the remaining

wells would be industrial, resulting in

a ratio of 3 motor vehicle waste disposal

wells for every one industrial well.

Although this yields a much lower

estimate for the number of affected

industrial wells (2,355) than the

estimate of potentially affected facilities

derived from the SIC code list, EPA

believes that using this data provides a

more realistic picture of the number of

industrials wells affected by the rule.

EPA requests comment on this

procedure.

Protecting the quality of Underground

Sources of Drinking Water (USDWs) has

many benefits. Foremost are the benefits

to the health and welfare of consumers

of the water, including children and

other sensitive groups such as the

elderly and the health-impaired for the

present and for future generations.

Related to potential health concerns are

lost work and school time due to visits

to physicians and the associated costs of

providing medical monitoring and care.

A protected high-quality source of

drinking water also is important to a

community’s development and ability to

attract employers. Another major benefit

of protecting USDWs is avoiding the

cost of responding to contamination.

These avoided costs could include

purchasing replacement water,

installing point-of-use treatment,

switching to alternative water supply

systems, drilling replacement wells,

building water conveyance structures

from new sources, and/or installing

permanent treatment systems. Some of

these benefits are easier to quantify than

others, but all are significant.

B. Children’s Health Protection and

Executive Order 13045

Executive Order 13045, entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

Risks’’ (62 FR 19885, April 23, 1997),

applies to any rule that EPA determines

(1) is 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 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

E.O. 13054 because this is not an

economically significant regulatory

action as defined by E.O. 12866 and

because the proposed rule has included

community, non community and nontransient water systems (which include

schools and hospitals), EPA does not

have reason to believe the rule concerns

environmental health risks or safety

risks that may have a disproportionate

affect on children.

C. Paperwork Reduction Act

The information collection

requirements in this rule are currently

under development. The Information

Collection Request (ICR) will be

submitted for approval to the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq. upon completion. Two ICR

documents are being prepared by EPA—

one for each of the proposed alternative

regulatory approaches for the motor

vehicle waste disposal wells (ICR Nos.

1873.01 and 1874.01). Copies will be

available from Sandy Farmer by mail at

OP Regulatory Information Division;

U.S. Environmental Protection Agency

(2137); 401 M St., S.W.; Washington, DC

20460, by email at

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

calling (202) 260–2740. The information

requirements will be published

separately in the Federal Register when

EPA submits them to OMB for review

and approval. The ICRs are not effective

until OMB approves them and EPA

publishes an OMB control number. The

OMB control numbers for EPA’s

regulations are listed in 40 CFR Part 9

and 48 CFR Chapter 15.

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

as amended by the Small Business

Regulatory Enforcement Fairness Act

(SBREFA), requires EPA to explicitly

consider the effect of proposed

regulations on small entities. In

accordance with Section 603 of the

RFA, EPA has prepared an initial

regulatory flexibility analysis (IRFA)

that examines the impact of the

proposed rule on small entities along

with regulatory alternatives that could

reduce that impact. The IRFA is

available for review in the docket and is

summarized below.

The RFA’s definition of small entity

includes small businesses, small

governmental jurisdictions and small

not-for-profit organizations. This

proposed rule would primarily affect

small business entities. To define small

business entities, EPA used the Small

Business Administration’s (SBA)

industry-specific criteria published in

13 CFR 121. SBA size standards have

been established for each type of

economic activity under the Standard

Industrial Classification (SIC) system.

These criteria are usually expressed in

terms of number of employees or dollar

volume of sales.

The proposed rule would affect the

owners and operators of three categories

of Class V wells in source water

protection areas delineated for

community water systems and nontransient non-community water systems

that use ground water as a source: motor

vehicle waste disposal wells, industrial

waste disposal wells, and large-capacity

cesspools. Because it is infeasible to

assess the prevalence of Class V waste

disposal well use in every industry, EPA

developed a list of SIC categories which

it believes captures the universe of

facilities that possibly could use motor

vehicle and industrial waste disposal

wells. Injection well inventory data

from eight states (Illinois, Kansas,

Montana, Nebraska, New Hampshire,

Pennsylvania, Virginia and West

Virginia) were reviewed to determine

the SIC categories associated with

industrial and motor vehicle waste

disposal wells. An SIC category was

included in the list of affected

industries if it appeared once in at least

three of the eight state inventories.

EPA then pared this list down to

reflect the number of facilities that may

be actually affected by the proposed

rule. EPA eliminated from the list those

facilities that would be outside the

scope of the rule, including: facilities

connected to sewers (which presumably

would not dispose of wastewater in

injection wells); facilities located in

states that have already banned types of

Class V wells that would be targeted by

the proposal; facilities injecting

wastewater likely to qualify as

hazardous waste (in which case, the

well is a Class IV well and already

banned under the existing UIC

regulations); and facilities located

outside source water protection areas

delineated around community water

systems and non-transient noncommunity water systems that use

ground water (only wells inside such

areas would be subject to the rule, as

proposed).

Although states have the flexibility to

delineate their source water protection

areas in a variety of ways, EPA believes

that such areas delineated for ground

water supply sources will be similar to

wellhead protection areas already

delineated in most states. A total of 44

states and 2 Territories have EPAapproved Wellhead Protection

Programs. Most of these programs have

defined wellhead protection areas using

a fixed radius around water supply

wells.
40610 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

Given this situation, EPA estimated

the number of facilities likely to fall

within source water protection areas by

estimating the number of facilities likely

to fall within a fixed radius of existing

supply wells. Based on data from the

State Wellhead Protection Plans, it was

assumed that the typical protection area

will be a half-mile radius around

community ground water supply wells

and a quarter-mile radius around nontransient non-community ground water

supply wells. Using these areas and

current data on the number of supply

wells in each state, EPA estimated the

land area in each state likely to fall

within a source water protection area

targeted by the proposal. That area was

then divided by the total land area in

the state to estimate the fraction of land

in each state likely to be in a source

water protection area. As described

earlier in this section, the number of

potentially affected facilities was

estimated by multiplying that fraction

by the total number of facilities in each

state estimated to have a Class V motor

vehicle waste disposal well or industrial

well that would be subject to the

proposal. Then, this number was

doubled to account for the assumption

that SWPA are twice as likely to contain

a Class V well as an equal area outside

of a SWPA. EPA specifically requests

comments on this approach, which is

described in more detail in the

economic analysis available in the

docket, as well as suggestions and data

that could be used for other approaches.

Once a final list of affected facilities

was determined in this manner, EPA

estimated which of the affected

businesses are primarily small

businesses using SBA’s size thresholds.

Of the 57 SIC categories included in the

analysis, 50 of them are made up

primarily of small businesses (i.e., at

least 95 percent of the facilities fall

below the SBA size threshold) and 9,176

of the 9,422 affected entities are

considered small businesses.

The proposed rule would require

affected Class V motor vehicle waste

disposal wells to either close or get a

permit that requires waste fluids to meet

MCLs at the point of injection, would

require affected industrial waste

disposal wells to close or meet MCLs at

the point of injection, and would ban

affected large-capacity cesspools. EPA

has determined that these requirements

might have a significant economic

impact on a substantial number of small

entities that use either motor vehicle

waste disposal wells or industrial waste

disposal wells located in areas

delineated for community water systems

or non-transient non-community water

systems that use groundwater as a

source. The basis for this decision is as

follows.

First, if the proposed rule bans Class

V motor vehicle waste disposal wells

while allowing industrial waste disposal

wells to continue operating under

specific conditions, about 4,536 to 4,794

(49 to 52 percent) of the affected small

entities would incur annualized

compliance costs that represent more

than 1 percent of their sales (or income

for small governments). Furthermore,

about 2,036 to 2,160 (22 to 24 percent)

of the affected small entities would

incur costs that represent more than 3

percent of their sales (or income for

small governments).

Second, if the proposed rule allows

existing motor vehicle waste disposal

wells to continue to operate under

permits and industrial waste disposal

wells to continue operating under

specific conditions, about 4,118 to 4,448

(45 to 48 percent) of the affected small

entities would incur costs that represent

more than 1 percent of their sales (or

income for small governments);

whereas, about 1,644 to 1,836 (18 to 20

percent) of the affected small entities

would incur costs that represent more

than 3 percent of their sales (or income

for small governments).

To reduce the impact on small

businesses, EPA has attempted to keep

permitting, reporting, and other

administrative requirements to a

minimum to provide regulatory relief to

small entities while protecting drinking

water supplies.

As discussed above in section II.C.6 of

this preamble, EPA conducted outreach

and convened a Small Business

Advocacy Review Panel to obtain advice

and recommendations of representatives

of the affected small entities under

section 609(b) of the RFA as amended

by the SBREFA of 1996. Today’s notice

incorporates all of the recommendations

made by this Panel in an effort to

minimize impacts to small businesses.

For example, today’s notice offers a coproposal and an alternative to the

proposed ban of motor vehicle waste

disposal wells that would give owners

or operators of such wells greater

flexibility. It also gives UIC Program

Directors discretion to extend the

deadline for complying with the new

requirements when more time is needed

by owners or operators, and proposes

flexibility to regulate certain drainage

wells at commercial and industrial sites

like stormwater drainage wells rather

than industrial wells, which would be

subject to more stringent standards. In

addition, today’s proposal requests

comment on several issues raised by

small entity commenters on which the

Small Business Advocacy Review Panel

did not reach consensus, including the

adequacy of the non-regulatory

approach contained in the 1995

proposal, the possibility of allowing

injectate to exceed an MCL at the point

of injection provided it does not

endanger USDWs. See section II.C.6

above for a more complete list and

description of changes made to today’s

proposal in response to

recommendations from the Small

Business Advocacy Review Panel.

E. Enhancing the Intergovernmental

Partnership

To reduce the burden of Federal

regulations on state and small

governments, the President issued

Executive Order 12875, entitled

Enhancing the Intergovernmental

Partnership, on October 28, 1993 (48 FR

58093). Under Executive Order 12875,

EPA may not issue a regulation that is

not required by statute and that creates

a mandate upon a state, local or Tribal

government unless the Federal

government provides the necessary

funds to pay the direct costs incurred by

the state, local or Tribal government or

EPA provides to the Office of

Management and Budget a description

of the extent of the Agency’s prior

consultation and written

communications with elected officials

and other representatives of affected

state, local and Tribal governments, the

nature of their concerns, and an Agency

statement supporting the need to issue

the regulation. In addition, Executive

Order 12875 requires EPA to develop an

effective process permitting elected

officials and other representatives of

state, local and Tribal governments ‘‘to

provide meaningful and timely input in

the development of regulatory proposals

containing significant unfunded

mandates’’. Moreover, because there is

an insignificant number of Class V wells

owned by state, local and Tribal

governments in SWPAs, this proposed

rule does not have significant or unique

affects on state, local and Tribal

governments.

F. Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for federal

agencies to assess the effects of their

regulatory actions on state, local, and

tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘federal mandates’’ that may result

in expenditures to state, local, and tribal

governments, in the aggregate, or to the

private sector, of $100 million or more
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40611

in any one year. Before promulgating an

EPA rule for which a written statement

is needed, section 205 of the UMRA

generally requires EPA to identify and

consider a reasonable number of

regulatory alternatives and adopt the

least costly, most cost-effective or least

burdensome alternative that achieves

the objectives of the rule. The

provisions of section 205 do not apply

when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this 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.

Specifically, the costs to the regulated

community is estimated at

approximately $55 million for the

option in which motor vehicle wells are

required to close and $45 million for the

option in which motor vehicle well

owners can apply for a permit. The cost

estimates to state governments are still

being refined but are not expected to

exceed several million dollars. Thus,

today’s rule is not subject to the

requirements of section 202 of the

UMRA.

G. National Technology Transfer and

Advancement Act

Under section 12(d) of the National

Technology Transfer and Advancement

Act, the Agency is required to use

voluntary consensus standards in its

regulatory and procurement activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, business

practices, etc.) that are developed or

adopted by voluntary consensus

standard bodies. Where available and

potentially applicable voluntary

consensus standards are not used by

EPA, the Act requires the Agency to

provide Congress, through MOB, an

explanation of the reasons for not using

such standards.

The Agency does not believe that this

proposed rule addresses any technical

standards subject to the NTTAA. A

commenter who disagrees with this

conclusion should indicate how the

Notice is subject to the Act and identify

any potentially applicable voluntary

consensus standards.

H. Environmental Justice

Pursuant to Executive Order 12898

(59 FR 7629, February 16, 1994), the

Agency has considered environmental

justice related issues with regard to the

potential impacts of this action on the

environmental and health conditions in

low-income and minority communities.

The Agency believes that today’s

proposal provides equal public health

protection to communities irrespective

of their socio-economic condition and

demographic make-up.

I. Effect on States With Primacy

According to regulations at 10 CFR

145.32, Primacy States would have 270

days from the effective date of the final

rule to submit to EPA documents

demonstrating that proper legal

authority and regulations exist to

administer and enforce the new

requirements for Class V cesspools,

motor vehicle waste disposal wells, and

industrial wells. Depending on the

existing state program and authorities,

these documents could include a

modified program description that

outlines the structure, coverage, and

processes of the state’s Class V UIC

program. Revisions to State UIC

Programs needed to incorporate the new

requirements would be subject to public

notice and comment requirements.

Reasonable efforts by states to

implement and enforce the new

requirements as part of their ongoing

programs should not be burdensome,

because the new requirements are

primarily directed toward well owners

and operators, not UIC program

authorities. For example, if finalized,

the ban on motor vehicle waste disposal

wells should be self-implementing by

owners or operators, with no new

reporting, inspection, or other

administrative requirements for Primacy

States (the new requirements for owners

or operators to submit pre-closure

notification is reserved for wells in DI

Programs). However, if the proposal to

allow owners or operators of motor

vehicle waste disposal wells to apply for

a permit is finalized, there would be an

increased burden to states that choose to

adopt this option to review the permit

application and site-specific details for

each facility wishing to keep its motor

vehicle waste disposal well open. Based

on this review, states would have to

either deny the application or develop

and enforce permit requirements to

make sure the well does not endanger

USDWs.

List of Subjects

40 CFR Parts 144 and 146

Environmental protection, Ground

water pollution control, Hazardous

waste, Shallow disposal wells, Water

supply.

40 CFR Part 145

Environmental protection, Water

supply.

Dated: July 17, 1998.

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 144—UNDERGROUND

INJECTION CONTROL PROGRAM

1. The authority citation for part 144

continues to read as follows:

Authority: Safe Drinking Water Act, 42

U.S.C. 300f et seq.; Resource Conservation

and Recovery Act, 42 U.S.C. 6901 et seq.

2. Section 144.1 is amended by

adding a new paragraph (f)(1)(vii),

revising paragraphs (g)(1) introductory

text, (g)(1)(iii), (g)(1)(iv) and (g)(2)(ii),

removing paragraph (g)(2)(iii),

redesignating paragraphs (g)(2)(iv) and

(v) as (g)(2)(iii) and (iv), and revising

newly designated paragraph (g)(2)(iv) to

read as follows:

§ 144.1 Purpose and scope of part 144.

* * * * *

(f)(1) * * *

(vii) Subpart G sets forth requirements

for owners and operators of Class V

injection wells.

* * * * *

(g) * * *

(1) Specific inclusions. The following

wells are included among those types of

injection activities which are covered by

the UIC regulations. (This list is not

intended to be exclusive but is for

clarification only.)

* * * * *

(iii) Any well used by generators of

hazardous waste, or by owners or

operators of hazardous waste

management facilities, to dispose of
40612 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

fluids containing hazardous waste. This

includes the disposal of hazardous

waste into what would otherwise be

septic systems and cesspools, regardless

of their capacity.

(iv) Any septic system, cesspool, or

other well, used solely for the

subsurface emplacement of sanitary

waste, having the capacity to serve 20

persons or more per day.

(2) * * *

(ii) Any septic system, cesspool, or

other well used solely for the subsurface

emplacement of sanitary waste, having

the capacity to serve fewer than 20

persons a day.

* * * * *

(iv) Any dug hole, drilled hole, or

bored shaft which is not used for the

subsurface emplacement of fluids.

* * * * *

3. Section 144.3 is amended by

adding new definitions in alphabetical

order for ‘‘cesspool,’’ ‘‘drywell,’’

‘‘improved sinkhole,’’ ‘‘sanitary waste,’’

‘‘septic system,’’ and ‘‘subsurface fluid

distribution system,’’ and by revising

the definitions of ‘‘well’’ and ‘‘well

injection’’ to read as follows:

§ 144.3 Definitions.

* * * * *

Cesspool means a ‘‘drywell’’ that

receives solely untreated sanitary waste,

and which sometimes has an open

bottom and/or perforated sides.

* * * * *

Drywell means a well, other than an

improved sinkhole or subsurface fluid

distribution system, completed above

the water table so that its bottom and

sides are typically dry except when

receiving fluids.

* * * * *

Improved sinkhole means a naturally

occurring karst depression or other

natural crevice found in volcanic terrain

and other geologic settings which have

been modified by man for the purpose

of directing and emplacing fluids into

the subsurface.

* * * * *

Sanitary waste means liquid or solid

wastes originating solely from humans

and human activities, such as wastes

collected from toilets, showers, wash

basins, sinks used for cleaning domestic

areas, sinks used for food preparation,

clothes washing operations, and sinks or

washing machines where food and

beverage serving dishes, glasses, and

utensils are cleaned. Sources of these

wastes may include single or multiple

residences, hotels and motels,

restaurants, bunkhouses, schools, ranger

stations, crew quarters, guard stations,

campgrounds, picnic grounds, day-use

recreation areas, other commercial

facilities, and industrial facilities

provided the waste is not mixed with

industrial waste.

* * * * *

Septic system means a ‘‘well’’ that is

used solely to emplace sanitary waste

below the surface and is comprised of

a septic tank and subsurface fluid

distribution system.

* * * * *

Subsurface fluid distribution system

means an assemblage of perforated

pipes, drain tiles, or other mechanisms

intended to distribute fluids below the

surface of the ground.

* * * * *

Well means:

(1) A bored, drilled, or driven shaft;

(2) A dug hole whose depth is greater

than the largest surface dimension;

(3) An improved sinkhole; or

(4) A subsurface fluid distribution

system.

Well injection means the subsurface

emplacement of fluids through a well.

4. Section 144.6 is amended by

adding a new paragraph (a)(3) and

revising paragraph (e) to read as follows:

§ 144.6 Classification of wells.

(a) * * *

(3) Radioactive waste disposal wells

which inject fluids below the lowermost

formation containing an underground

source of drinking water within one

quarter mile of the well bore.

* * * * *

(e) Class V. Injection wells not

included in Class I, II, III, or IV. Specific

types of Class V injection wells are

described in § 144.81 in subpart G of

this part.

5. Section 144.24 is revised to read as

follows:

§ 144.24 Class V wells.

A Class V injection well is authorized

by rule, subject to the conditions in

§ 144.84 in subpart G of this part.

§ 144.26 Amended

6. Section 144.26 is amended by

removing paragraphs (b)(1)(iii) and (e).

7. Subpart G is added to read as

follows:

Subpart G—Requirements for Owners and

Operators of Class V Injection Wells

Sec.

144.79 General

Definition of Class V Injection Wells

144.80 What is a Class V injection well?

144.81 Does this subpart apply to me?

Requirements for All Class V Injection Wells

144.82 What must I do to protect

underground sources of drinking water?

144.83 Do I need to notify anyone about my

well?

144.84 Do I need to get a permit?

Additional Requirements for Class V

Cesspools, Motor Vehicle Waste Disposal

Wells, and Industrial Wells

144.85 Do these additional requirements

apply to me?

144.86 What are the additional

requirements?

144.87 How do I close my Class V injection

well?

Subpart G—Requirements for Owners

and Operators of Class V Injection

Wells

§ 144.79 General

This subpart tells you what

requirements apply to you if you own or

operate a Class V injection well. You

may also have to follow additional

requirements listed in the rest of part

144. Where they may apply, these other

requirements are referenced rather than

repeated below. The requirements

described in this subpart and elsewhere

in part 144 are to protect underground

sources of drinking water and are part

of the Underground Injection Control

(UIC) Program established under the

Safe Drinking Water Act. This subpart is

written in a special format to make it

easier to understand the regulatory

requirements. Like other EPA

regulations, it establishes enforceable

legal requirements.

Definition of Class V Injection Wells

§ 144.80 What is a Class V injection well?

As described in more detail in § 144.6

in subpart A, injection wells are defined

as follows:

(a) Class I wells inject hazardous,

industrial, or municipal wastes beneath

the lowermost formation containing an

underground source of drinking water

(USDW) within one-quarter mile of the

well;

(b) Class II wells inject fluids

connected with oil or natural gas

recovery or production or for the storage

of liquid hydrocarbons;

(c) Class III wells inject fluids for the

solution mining of minerals; and

(d) Class IV wells inject hazardous or

radioactive waste into or above

formations containing a USDW within

one-quarter mile of the well.

(e) Class V wells include all other

injection wells that do not fit one of the

classes listed above. Typically, Class V

wells are shallow wells used to place a

variety of fluids directly below the land

surface. However, if the fluids you place

in the ground qualify as a hazardous

waste under the Resource Conservation

and Recovery Act (RCRA), your well is

either a Class I or Class IV well, not a

Class V well. Specific types of Class V

wells are described in § 144.81.
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40613

§ 144.81 Does this subpart apply to me?

This subpart applies to you if you

own or operate one of the following well

types, all of which qualify as Class V

wells:

(a) Motor vehicle waste disposal wells

receive or have received fluids from

vehicular repair or maintenance

activities, such as an auto body repair

shop, automotive repair shop, new and

used car dealership, specialty repair

shop (e.g., transmission and muffler

repair shop), or any facility that does

any vehicular repair work. Fluids

disposed in these wells may contain

organic and inorganic chemicals in

concentrations that exceed the

maximum contaminant levels (MCLs)

established by the primary drinking

water regulations (see 40 CFR part 142).

These fluids also may include waste

petroleum products and may contain

contaminants, such as heavy metals and

volatile organic compounds, which pose

risks to human health.

(b) Industrial wells are used to inject

non-hazardous industrial or commercial

waste and fluids other than those

described for the other types of Class V

wells. These include but are not limited

to:

(1) Wastewater from petroleum

refineries, chemical manufacturers, dry

cleaners, electric component

manufacturers, small machine

manufacturers, die and tool

manufacturers, commercial printers,

asphalt manufacturers, and other

industrial operations; or

(2) Spills from industrial or

commercial process areas, storage areas,

or loading docks, or drainage highly

contaminated by large spills from such

areas. This is different than routine

stormwater runoff. A well intended for

stormwater management that may have

the potential to receive insignificant

amounts of waste due to unintentional

small volume leaks, drips, or spills, and

that cannot reasonably be separated

from potential sources of contamination

qualify as drainage wells, as described

below.

(3) Wastewater from carwashes

specifically set up to perform engine or

undercarriage washing. This does not

include wastewater from manual

carwashes where people use hand-held

hoses to wash the exterior of their cars,

trucks, or other vehicles. Wells at such

manual carwashes, as well as other car

washes not specifically set up to

perform engine or undercarriage

washing, qualify as other industrial

wells. This category includes all other

industrial or commercial wells that do

not meet the criteria for other classes of

wells or for other Class V industrial

wells.

(c) Cesspools are drywells, which

sometimes have an open bottom and/or

perforated sides, used to dispose of

untreated sanitary waste. They are

typically located in areas not served by

sanitary sewers. This subpart applies to

you only if your cesspool has the

capacity to dispose of sanitary waste

from 20 persons or more per day (you

are exempt from this subpart and from

the federal Underground Injection

Control program if it is smaller than

that). However, if you use your cesspool

to dispose of motor vehicle waste or

industrial waste, either by themselves or

together with sanitary waste, your well

qualifies as a motor vehicle waste

disposal well or an industrial well

rather than a cesspool.

(d) Septic systems are septic tanks and

fluid distribution systems, such as

leachfields or wells, used to dispose of

sanitary waste only. Like cesspools, this

subpart applies to you only if your

septic system has the capacity to

dispose of sanitary waste from 20

persons or more per day. However, if

you use your septic system to dispose of

motor vehicle waste or industrial waste,

either by themselves or together with

sanitary waste, your well qualifies as a

motor vehicle waste disposal well or an

industrial well rather than a septic

system.

(e) Drainage wells consist of a variety

of wells used to drain surface and

subsurface fluids. These wells include

agricultural drainage wells that receive

irrigation or stormwater runoff. Drainage

wells also include stormwater runoff

wells in municipalities. A well at a

commercial or industrial site also

qualifies as a drainage well, not an

industrial well, if it is intended for

stormwater management, even if it may

have the potential to receive

insignificant amounts of waste due to

unintentional small volume leaks, drips,

or spills, as long as it cannot reasonably

be separated from potential sources of

contamination. This category does not

include mine drainage wells. Mine

backfill and drainage wells are defined

in paragraph (j) of this section.

(f) Beneficial use wells are used to

improve either the quality or flow of

aquifers or to provide some other

ground water management benefit. They

include aquifer recharge wells used to

re-supply dwindling ground water

resources; aquifer storage and recovery

wells used to place excess water in the

subsurface during periods of high flow

and then withdraw the water later when

it is needed; subsidence control wells

used to inject fluids to prevent the land

surface from sinking or settling;

injection wells used to help clean up

contaminated ground water, either by

injecting solutions to neutralize

contamination or to return previously

contaminated ground water that has

been treated; and wells that inject water

to control the intrusion of salt water in

coastal areas into freshwater aquifers.

(g) Fluid return wells are used to

inject fluids associated with the

production of geothermal energy for

space heating or electric power, the

operation of a heat pump, aquaculture,

or the extraction of minerals from

produced fluids. For example, wells that

inject spent geothermal fluids, following

extraction of the heat energy, are used

to recharge geothermal reservoirs and

avoid surface discharges. Other

examples of fluid return wells include

electric power wells that inject fluids

from electric power generation facilities,

and wells used to inject spent brines

after the extraction of halogens (e.g.,

bromine) or their salts.

(h) Sewage treatment effluent wells

are used to inject treated effluent from

publicly owned treatment works or

treated effluent from privately owned

treatment facilities receiving solely

sanitary waste. If you inject effluent

from a privately owned treatment

facility that receives industrial waste,

your well qualifies as an industrial well

rather than a sewage treatment effluent

well. Also, if you own or operate a well

that injects sewage treatment effluent

beneath the lowermost formation

containing a USDW, it qualifies as a

Class I well rather than a Class V well.

(i) Experimental technology wells

include any well that is an integral part

of an unproven subsurface injection

technology other than waste disposal,

such as in situ coal liquification, in situ

oil shale retorting, tracer studies, and

secondary water recovery (e.g., using air

to force underground water bound in

the unsaturated zone into the saturated

zone where it can be recovered).

(j) Mine backfill and drainage wells

are used to place mine drainage or

slurries of sand, gravel, cement, mill

tailings/refuse, fly ash, or other solids

into underground mines, whether what

is injected is a radioactive waste or not.

Mine backfill and drainage wells may

serve a variety of purposes, including

subsidence prevention, filling

dangerous mine openings, disposing of

wastes from mine operations, and fire

control.

(k) In-situ recovery and solution

mining wells are used to inject fluids for

the purpose of producing energy or

minerals. Wells used for in-situ recovery

of lignite, coal, tar sands, oil shale, and

geothermal energy are designed to

deliver particular solutions (such as

water, air, oxygen, solvents,

combustibles, or explosives) into
40614 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

subsurface target formations to liberate

the desired products that can be brought

to the surface via recovery wells.

Solution mining wells use injection and

recovery techniques to bring minerals

from underground deposits to the

surface. Solution mining of

conventional mines such as stopes

leaching is included in Class V.

However, in-situ production of uranium

or other metals from ore bodies that

have not been conventionally mined is

included in Class III (see § 144.6(c)).

Similarly, mining of sulfur by the

Frasch process is included in Class III,

not Class V.

(l) Other industrial wells inject

industrial and commercial wastes,

which either contain lower

concentrations of contaminants or are

more like sanitary waste than wastes

injected into Class V industrial wells

described in paragraph (b) of this

section. The category of other industrial

wells was created to exclude these wells

from the additional requirements in

§ 144.85 that apply to industrial wells.

There are four types of other industrial

wells:

(1) Wells used to inject fluids from

carwashes that are not specifically set

up to perform engine or undercarriage

washing (including, manual carwashes

where people use hand-held hoses to

wash the exterior of their vehicles);

(2) Wells used to inject noncontact

cooling water that contains no additives

and has not been chemically altered,

meaning that it has not been mixed with

or come into contact with a

contaminated waste stream;

(3) Wells used to inject fluids from

laundromats where no onsite dry

cleaning is performed or where no

organic solvents are used for laundering;

and

(4) Wells used to inject wastewater

from food processing operations.

Requirements for all Class V Injection

Wells

§ 144.82 What must I do to protect

underground sources of drinking water?

If you own or operate any type of

Class V well listed above, the

regulations below require that you

cannot allow movement of injection

fluid into USDWs that might cause

endangerment, you must properly close

your well when you are through using

it, you must comply with other federal

UIC requirements in 40 CFR parts 144

through 147, and you must comply with

any other measures required by your

state or EPA Regional Office. You also

must submit basic information about

your well, as described in § 144.83.

(a) Prohibition of fluid movement. (1)

As described in § 144.12(a), your

injection activity cannot allow the

movement of fluid containing any

contaminant into USDWs, if the

presence of that contaminant may cause

a violation of the primary MCLs in 40

CFR part 142 or may otherwise

adversely affect the health of persons.

This prohibition applies to your well

construction, operation, maintenance,

conversion, plugging, abandonment, or

any other injection activity.

(2) If the Director of the UIC Program

in your state or EPA Region learns that

your injection activity may endanger

USDWs, he or she may require you to

close your well, require you to get a

permit, or require other actions listed in

§ 144.12(c), (d), or (e).

(b) Closure requirements. Prior to

abandoning your well, you must close

the well in a manner that complies with

the above prohibition of fluid

movement. Also, you must dispose or

otherwise manage any soil, gravel,

sludge, liquids, or other materials

removed from or adjacent to your well

in accordance with all applicable

Federal, state, and local regulations and

requirements.

(c) Other requirements in parts 144

through 147. Beyond this subpart, you

are subject to other UIC Program

requirements in 40 CFR parts 144

through 147. While most of the relevant

requirements are repeated or referenced

in this subpart for convenience, you

need to read these other parts to

understand the entire UIC Program.

(d) Other State or EPA requirements.

40 CFR parts 144 through 147 define

minimum federal UIC requirements.

EPA Regional Offices administering the

UIC Program have the flexibility to

establish additional or more stringent

requirements based on the authorities in

parts 144 through 147, if believed to be

necessary to protect USDWs at a local

level. States can have their own

authorities to establish additional or

more stringent requirements if needed

to protect USDWs. You must comply

with these additional requirements, if

any exist in your area. Contact the UIC

Program Director in your state or EPA

Region to learn more.

§ 144.83 Do I need to notify anyone about

my well?

Yes, you need to provide basic

‘‘inventory information’’ about your

well, if you haven’t already. You also

need to provide any other information

that your UIC Program Director requests

in accordance with the provisions of the

UIC regulations.

(a) Inventory requirements. Unless

you know you have already satisfied the

inventory requirements in § 144.26 that

were in effect prior to the issuance of

this subpart G, and you have not since

converted your well into an industrial

well, you must give your UIC Program

Director certain information about

yourself and your injection operation.

(1) The requirements differ depending

on your well status and location, as

described in the following table:

If your well is * * *

And you’re in one of these locations (‘‘Primacy’’ States,

which run the Class V UIC Program) * * * Alabama,

Arkansas, Commonwealth of Northern Mariana Islands,

Connecticut, Delaware, Florida, Georgia, Guam, Idaho,

Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North

Dakota, Ohio, Oklahoma, Oregon, Puerto Rico, Rhode

Island, South Carolina, Texas, Utah, Vermont, West

Virginia, Wisconsin, Washington, or Wyoming

Or you’re in one of these locations (‘‘Direct Implementation’’ or DI Programs, where EPA runs the Class V

UIC Program) * * * Alaska, American Samoa, Arizona,

California, Colorado, Hawaii, Indiana, Iowa, Kentucky,

Michigan, Minnesota, Montana, New York, Pennsylvania, South Dakota, Tennessee, Virginia, Virgin Islands, Washington, DC, or any Indian Country

New (construction not yet

started).

* * * then you must contact your State UIC Program to

determine what you must submit and by when.

* * * then you must submit the inventory information

described in (a)(2) of this section (below) prior to

constructing your well.

Existing (construction underway or completed).* * * then you must contact your State UIC Program to

determine what you must submit and by when.

* * * then you must cease injection and submit the inventory information. You may resume injection 90

days after you submit the information unless the UIC

Program notifies you that injection may not resume

or may resume sooner.
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40615

(2) If your well is in a DI Program

State, here is the information you must

submit to EPA:

(i) No matter what type of Class V

well you own or operate, you must

submit at least the following

information for each Class V well:

facility name and location; name and

address of legal contact; ownership of

facility; nature and type of injection

well(s); and operating status of injection

well(s).

(ii) You must submit the above

information plus the additional

information described here if you own

or operate an industrial well, a mine

backfill and drainage well, a fluid return

well, or an experimental technology

well. The UIC Program Director may

also require the owners and operators of

other types of Class V wells to submit

this additional information. In these

cases, you must provide a listing of all

Class V wells that you own or operate

along with the following information for

each well (a single description of wells

at a single facility with substantially the

same characteristics is acceptable as

long as the number of wells and their

location is described):

(A) Location of each well or project

given by Township, Range, Section, and

Quarter-Section, or by latitude and

longitude to the nearest second,

according to conventional practice in

your state;

(B) Date of completion of each well;

(C) Identification and depth of the

underground formation(s) into which

each well is injecting;

(D) Total depth of each well;

(E) Construction narrative and

schematic (both plan view and crosssectional drawings);

(F) Nature of the injected fluids;

(G) Average and maximum injection

pressure at the wellhead;

(H) Average and maximum injection

rate; and

(I) Date of the last inspection.

(iii) If you convert your well into an

industrial well any time after you

submit the inventory information listed

in paragraph (a)(2)(i) and (ii), you must

resubmit the information noting the

changes in your well type, status, and

operations.

(3) Regardless of whether your well is

in a Primacy State or DI Program, you

are responsible for knowing about,

understanding, and complying with

these inventory requirements.

(b) Information in response to

requests. If you are in one of the DI

Programs listed in the table above, the

UIC Program Director may require you

to submit other information believed

necessary to protect underground

sources of drinking water.

(1) The Director may require you to:

(i) Perform ground water monitoring

and periodically submit your

monitoring results;

(ii) Analyze the fluids you inject and

periodically submit the results of your

analyses;

(iii) Describe the geologic layers

through which and into which you are

injecting; and

(iv) Conduct other analyses and

submit other information, if needed to

protect underground sources of drinking

water.

(2) If the Director requires this other

information, he or she will request it

from you in writing, along with a brief

statement on why the information is

required. This written notification also

will tell you when to submit the

information.

(3) You are prohibited from using

your well if you fail to comply with the

written request within the time frame

specified. You can start injecting again

only if you get a permit.

§ 144.84 Do I need to get a permit?

No, as long as certain conditions do

not apply to you.

(a) General authorization by rule.

With certain exceptions listed in

paragraph (b) of this section, your Class

V injection activity is ‘‘authorized by

rule,’’ meaning you have to comply with

all the requirements of this subpart and

the rest of the UIC Program but you

don’t have to get an individual permit.

Well authorization expires once you

have properly closed your well, as

described in § 144.82(b).

(b) Circumstances in Which Permits

or other Action is Required. If you fit

into one of the categories listed below,

your Class V well is no longer

authorized by rule. This may mean that

you have to get a permit, if you want to

keep using your well. You can find out

by contacting the UIC Program Director

in your state or EPA Region if this is the

case. Subpart D of this part tells you

how to apply for a permit and describes

other aspects of the permitting process.

Subpart E of this part outlines some of

the requirements that might apply to

you if you get a permit.

(1) You fail to comply with the

prohibition of fluid movement standard

in § 144.12(a) and described in

§ 144.82(a) above (in which case, you

have to get a permit, close your well,

and/or comply with other conditions

determined by the UIC Program Director

in your state or EPA Region);

(2) Proposal 1: You own or operate a

Class V cesspool or motor vehicle waste

disposal well in a source water

protection area (in which case, you must

close your well as specified in the

additional requirements below);

(2) Proposal 2: You own or operate a

Class V cesspool in a source water

protection area (in which case, you must

close your well as specified in the

additional requirements below) or a

Class V motor vehicle waste disposal

well in a source water protection area

(in which case, you must either close

your well or get a permit as specified in

the additional requirements below);

(3) You own or operate a Class V

industrial well in a source water

protection area, and the fluid you put

down your well has chemical

concentrations above the drinking water

MCLs (in which case, you must either

close your well or make sure your waste

fluids meet the MCLs at the point of

injection as specified in the additional

requirements below);

(4) You are specifically required by

the UIC Program Director in your state

or EPA Region to get a permit. In which

case, rule authorization expires upon

the effective date of the permit issued,

or you are prohibited from injecting into

your well upon:

(i) Failure to submit a permit

application in a timely manner as

specified in a notice from the Director,

or

(ii) Upon the effective date of permit

denial;

(5) You have failed to submit

inventory information to your UIC

Program Director, as described in

§ 144.83(a) (in which case, you are

prohibited from injecting into your well

until you comply with the inventory

requirements); or

(6) You received a request from your

UIC Program Director for additional

information under § 144.83(b), and have

failed to comply with the request in a

timely manner (in which case, you are

prohibited from injecting into your well

until you get a permit).

Additional Requirements for Class V

Cesspools, Motor Vehicle Waste

Disposal Wells, and Industrial Wells

§ 144.85 Do these additional requirements

apply to me?

(a) Whether and when these

additional requirements apply to you

depends on the location of your Class V

cesspool, motor vehicle waste disposal

well, or industrial well relative to

delineated source water protection

areas, and on the status of your state’s

source water assessment program.

(1) If the source water assessment

program in your state is complete before

May 2003 (i.e., the state program has

been approved by EPA and all its local

assessments for community and
40616 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

nontransient noncommunity water

systems have been completed. This

means that all local assessments within

a state have performed the three

required steps of delineation, source

identification, and susceptibility

analysis), the additional requirements

apply to you only if your well is in a

source water protection area delineated

for community water systems and nontransient non-community water systems

that use ground water as a source. The

additional requirements start applying

to you 90 days after the local program

that covers you is completed. The UIC

Program Director may extend this

deadline for up to one year if you have

to hook up to a sanitary sewer or install

new treatment systems in order to

comply with the additional

requirements.

(2) If the source water assessment

program in your state is not complete,

and it is before May 2003, the additional

requirements apply to you only if your

well is in a source water protection area

delineated by a complete local program

for community water systems and nontransient non-community water systems

that use ground water as a source. The

additional requirements start applying

to you 90 days after your local program

is completed. Again, the UIC Program

Director may extend this deadline for up

to one year if you have to hook up to

a sanitary sewer or install new treatment

systems in order to comply with the

additional requirements.

(3) If the source water assessment

program in your state is not complete,

and it is after May 2003 (i.e., the state

program has not been approved by EPA

or the state has not completed its local

assessments for community and

nontransient noncommunity water

systems), the additional requirements

apply to you regardless of the location

of your well relative to delineated

source water protection areas and

regardless of the status of any local

program that covers your area. In other

words, the additional requirements

apply statewide.

(b) Source water assessment program.

This is a new approach to protecting

drinking water sources, specified in the

1996 Amendments to the Safe Drinking

Water Act. States must prepare and

submit for EPA approval a program to:

(1) Delineate the boundaries of areas

providing source waters for public water

systems (called ‘‘source water protection

areas’’);

(2) Inventory significant potential

sources of contaminants of concern in

such areas, to the extent practical; and

(3) Determine the susceptibility of

public water systems in the delineated

areas to contaminants of concern.

(c) Source water protection area. A

source water protection area is a

geographic area defined by a state as

supplying ground water and/or surface

water for a public drinking water

system. Such an area receives priority

for the protection of public drinking

water supplies. The additional

requirements in § 144.86 apply to you

only if your Class V well is in an area

delineated for ground water (rather than

surface water) and for either community

water systems or non-transient noncommunity water systems. In many

states, these areas will be the same as

Wellhead Protection Areas that have

been delineated previously.

(d) Community water system. A

community water system is a public

water system that serves at least 15

service connections used by year-round

residents or regularly serves at least 25

year-round residents.

(e) Non-transient non-community

water system. A public water system

that is not a community water system

and that regularly serves at least 25 of

the same people over six months a year.

These may include systems that provide

water to schools, day care centers,

government/military installations,

manufacturers, hospitals or nursing

homes, office buildings, and other

facilities.

(f) Delineation. States may define the

boundaries of a source water protection

area in a variety of ways. Regardless of

the methods used, the delineation will

be presented in a format that is

understandable to the public so you will

know if your Class V injection well is

in a delineated source water protection

area or not. In most instances, maps will

be used to show the boundaries of the

source water protection area.

(g) How to find out if your well is in

a source water protection area. States

are supposed to make their delineations

widely available to the public through a

variety of methods right after the results

are done. You can find out if your Class

V well is in a source water protection

area by contacting the state or local

agency responsible for source water

protection in your area. You may call

the Safe Drinking Water Hotline at 1–

800–426–4791 to find out who to call in

your state for information. Alternatively,

you may be able to get this information

by calling a special telephone number in

your state (if your state has set one up),

calling your local water supplier, calling

the EPA Program Office, following your

local news (paper, radio and TV),

looking on the Internet, or getting a copy

of your state’s Clean Water Act Section

305(b) report. Your state may also send

you information in your water bill, send

each household a newsletter or flyer,

advertise the availability of information

in a local newspaper, and develop a

database of information that people can

access through a computer homepage.

Even though you may get information

from these and other sources, the state

office responsible for implementing the

source water assessment program in

your area is the source that makes the

final and official determination of

boundaries for source water protection

areas.

(h) When a state does not have a

complete program by May 2003. The

Source Water Assessment and

Protection Program requires states to

delineate priority areas for the

protection of their public drinking water

systems. If states do not do this, there

is no way to tell if your large-capacity

cesspool, motor vehicle waste disposal

well, or industrial well is in an area that

overlies ground water serving as a

drinking water supply source. In order

to assure protection of public drinking

water supplies, therefore, these

requirements will apply statewide if a

state has failed to complete its source

water delineations and assessments by

May 2003. The additional requirements

apply statewide permanently, even if

the state eventually completes its source

water delineations and assessments

sometime after May 2003.

(i) Changes in your status. Over time,

three changes in your state’s source

water assessment program might occur

and affect whether the additional

regulations apply to you:

(1) Before May 2003, if the local

source water assessment program

responsible for your area becomes

completed, the additional regulations

apply to you if your well is in a source

water protection area delineated for

community water systems and nontransient non-community water systems

that use ground water as a source. The

additional regulations start applying to

you 90 days after your local program is

completed. The UIC Program Director

responsible for your area may extend

this deadline for up to one year if you

have to hook up to a sanitary sewer or

install new treatment systems in order

to comply with the additional

requirements.

(2) After May 2003, if your state fails

to complete its source water program by

that time (meaning all of the local

programs in your state are not

complete), the additional regulations

apply to you even if your well is not in

a delineated source water protection

area.

(3) After May 2003, if your state’s

source water program was completed

before that time, your state may

delineate a source water protection area
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40617

for ground water supplying a new

community water system or a new nontransient non-community water system

that includes your Class V injection

well. Also, your state may extend the

boundaries of a source water protection

area delineated previously. This would

make the additional regulations apply to

you if your well is in such an area. The

additional regulations start applying to

you 90 days after the local program

responsible for the new or extended area

is completed. The UIC Program Director

responsible for your area may extend

this deadline for up to one year if you

have to hook up to a sanitary sewer or

install new treatment systems in order

to comply with the additional

requirements.

(j) Application of the additional

requirements outside of source water

protection areas. EPA expects and

strongly encourages states to use

existing authorities in the UIC program

to take whatever measures are needed to

ensure Class V wells are not

endangering USDWs in any other areas

outside of delineated source water

protection areas (e.g., areas overlying

sole-source aquifers; highly productive

aquifers supplying private wells;

continuous and highly productive

aquifers at points distant from public

water supply wells; areas where water

supply aquifers are recharged; karst

aquifers that discharge to surface

reservoirs serving as public water

supplies; susceptible or sensitive

hydrogeologic settings, such as glacial

outwash deposits, eolian sands, and

fractured volcanic rock; and areas of

special concern selected based on a

combination of factors, such as

hydrogeologic sensitivity, prevailing

land-use practices, and documented

ground water contamination). Such

measures could include, if believed to

be necessary by a UIC Program Director,

applying the additional requirements

below to other areas and/or other types

of Class V wells. Therefore, the Director

may apply the additional requirements

to you, even if you do not meet the

criteria in paragraph (a) of this section.

§ 144.86 What are the additional

requirements?

The additional requirements are

specified in the following table:

ADDITIONAL REQUIREMENTS FOR LARGE-CAPACITY CESSPOOLS IN SOURCE WATER PROTECTION AREAS

[See § 144.85 to determine if these additional requirements apply to you]

If your cesspool is * * *

(well Status) Then you * * * (requirement) By * * * (deadline)

Existing (operational or

under construction by [insert effective date].

Must close the well ......................................................... [insert date five years from effective date].

Must notify the UIC Program Director in your EPA Region (if you are in one of the DI Programs listed in

the table above) of your intent to close the well.

At least 30 days prior to abandonment.

Must meet any state-established reporting requirements

(if you are in one of the Primacy States listed in the

table above).

The date in state-established reporting requirements.

New or converted (construction not started before [insert effective date].Are prohibited .................................................................. [insert effective date].

ADDITIONAL REQUIREMENTS FOR MOTOR VEHICLE WASTE DISPOSAL WELLS IN SOURCE WATER PROTECTION AREAS

[See § 144.85 to determine if these additional requirements apply to you]

If your motor vehicle waste

disposal well is * * * (well

status)

Then you * * * (requirement) By * * * (deadline)

Existing (operational or

under construction by [insert effective date]).

Proposal 1: Must close the well ...................................... Within 90 days of the completion of your local source

water assessment program, starting [insert effective

date]; your UIC Program Director may extend the

closure deadline for up to one year if the most efficient compliance option is connection to a sanitary

sewer or installation of new treatment technology.

Proposal 2: Must close the well or apply for a waiver

from the ban by seeking a permit.

Within 90 days of the completion of your local source

water assessment program, starting [insert effective

date]; your UIC Program Director may extend the

closure deadline, but not the permit application deadline, for up to one year if the most efficient compliance option is connection to a sanitary sewer or installation of new treatment technology.

Proposal 2: Must meet MCLs at the point of injection

while your permit application is under review, if you

choose to keep operating your well.

The date you submit your permit application.

Proposal 2: Must comply with all permit conditions, if

you choose to keep operating your well, including requirements to meet MCLs at the point of injection,

follow best management practices, and monitor your

injectate and sludge quality.

The date(s) specified in your permit.

Both proposals: Must notify the UIC Program Director

in your EPA Region (if you are in one of the DI Programs listed in the table above) of your intent to

abandon the well.

At least 30 days prior to abandonment.
40618 Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules

ADDITIONAL REQUIREMENTS FOR MOTOR VEHICLE WASTE DISPOSAL WELLS IN SOURCE WATER PROTECTION AREAS—

Continued

[See § 144.85 to determine if these additional requirements apply to you]

If your motor vehicle waste

disposal well is * * * (well

status)

Then you * * * (requirement) By * * * (deadline)

Both proposals: Must meet any state-established reporting requirements (if you are in one of the Primacy States listed in the table above).The date in state-established reporting requirements.

New or converted (construction not started before [insert effective date]).Are prohibited .................................................................. [insert effective date].

ADDITIONAL REQUIREMENTS FOR CLASS V INDUSTRIAL WELLS IN SOURCE WATER PROTECTION AREAS

[See § 144.85 to determine if these additional requirements apply to you]

If your industrial well is * * *

(well status) Then you * * * (requirement) By * * * (deadline)

Existing (operational or

under construction by [insert effective date]).

Must close the well or make sure fluids in the well meet

the primary MCLs listed in 40 CFR Part 142 or other

health-based limits selected by the Director for contaminants without primary MCLs.

Within 90 days of the completion of your local source

water assessment program, starting [insert effective

date]; your UIC Program Director may extend this

deadline for up to one year if the most efficient compliance option is connection to a sanitary sewer or installation of new treatment technology.

Must notify the UIC Program Director in your EPA Region (if you are in one of the DI Programs listed in

the table above) of your intent to abandon the well.

At least 30 days prior to abandonment.

Must meet any state-established reporting requirements

(if you are in one of the Primacy States listed in the

table above).

The date in state-established reporting requirements.

New or converted (construction not started before [insert effective date]).Are prohibited unless you make sure fluids in the well

are always below the primary MCLs listed in 40 CFR

Part 142 or other health-based limits selected by the

Director for contaminants without primary MCLs.

[insert effective date].

§ 144.87 How do I close my Class V

injection well?

The following describes the

requirements for closing your Class V

injection well.

(a) Closure. (1) Prior to closing a Class

V cesspool, motor vehicle waste

disposal well, or industrial well, you

must plug or otherwise close the well in

a manner that complies with the

prohibition of fluid movement standard

in § 144.12 and summarized in

§ 144.82(a) above. If the UIC Program

Director in your state or EPA Region has

any additional or more specific closure

standards, you have to meet those

standards too. You also must dispose or

otherwise manage any soil, gravel,

sludge, liquids, or other materials

removed from or adjacent to your well

in accordance with all applicable

Federal, state, and local regulations and

requirements.

(2) This does not mean that you need

to cease operations at your facility, only

that you need to close your well. A

number of alternatives are available for

disposing of waste fluids. Examples of

alternatives that may be available to

motor vehicle stations include:

recycling and reusing wastewater as

much as possible; collecting and

recycling petroleum-based fluids,

coolants, and battery acids drained from

vehicles; washing parts in a selfcontained, recirculating solvent sink,

with spent solvents being recovered and

replaced by the supplier; using

absorbents to clean up minor leaks and

spills, and placing the used materials in

approved waste containers and

disposing of them properly; using a wet

vacuum or mop to pick up accumulated

rain or snow melt, and if allowed,

disposing of it through a publicly

owned treatment works; or, connecting

floor drains to a municipal sewer system

or holding tank, and if allowed,

disposing of the holding tank contents

through a publicly owned treatment

works. You should check with the

publicly owned treatment works you

might use to see if they would accept

your wastes.

(b) [Reserved]

PART 145—STATE UIC PROGRAM

REQUIREMENTS

8. The authority citation for part 145

continues to read as follows:

Authority: 42 U.S.C. 300f et seq.

§ 145.11 [Amended]

9. Section 145.11 is amended by

adding paragraph (a)(32) and revising

the first sentence in paragraph (b)(1):

§ 145.11 Requirements for permitting.

(a) * * *

(32) Section 144.86—(What are the

additional requirements?);

(b)(1) States need not implement

provisions identical to the provisions

listed in paragraphs (a)(1) through

(a)(32) of this section.

* * *

* * * * *

PART 146—UNDERGROUND

INJECTION CONTROL PROGRAM:

CRITERIA AND STANDARDS

10. 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.

11. Section 146.3 is amended by

adding the following new definitions in

alphabetical order: ‘‘cesspool,’’

‘‘drywell,’’ ‘‘improved sinkhole,’’

‘‘sanitary waste,’’ ‘‘septic system,’’ and

‘‘subsurface fluid distribution system,’’
Federal Register / Vol. 63, No. 145 /Wednesday, July 29, 1998 / Proposed Rules 40619

and by revising the definitions of ‘‘well’’

and ‘‘well injection’’ to read as follows:

§ 146.3 Definitions.

* * * * *

Cesspool means a ‘‘drywell’’ that

receives solely untreated sanitary waste,

and which sometimes has an open

bottom and/or perforated sides.

* * * * *

Drywell means a well, other than an

improved sinkhole or subsurface fluid

distribution system, completed above

the water table so that its bottom and

sides are typically dry except when

receiving fluids.

* * * * *

Improved sinkhole means a naturally

occurring karst depression which has

been modified by man for the purpose

of directing and emplacing fluids into

the subsurface.

* * * * *

Sanitary waste means liquid or solid

wastes originating solely from humans

and human activities, such as wastes

collected from toilets, showers, wash

basins, sinks used for cleaning domestic

areas, sinks used for food preparation,

clothes washing operations, and sinks or

washing machines where food and

beverage serving dishes, glasses, and

utensils are cleaned. Sources of these

wastes may include single or multiple

residences, hotels and motels,

restaurants, bunkhouses, schools, ranger

stations, crew quarters, guard stations,

campgrounds, picnic grounds, day-use

recreation areas, other commercial

facilities, and industrial facilities

provided the waste is not mixed with

industrial waste.

* * * * *

Septic system means a ‘‘well’’ that is

used solely to emplace sanitary waste

below the surface and is comprised of

a septic tank and subsurface fluid

distribution system.

* * * * *

Subsurface fluid distribution system

means an assemblage of perforated

pipes, drain tiles, or other mechanisms

intended to distribute fluids below the

surface of the ground.

* * * * *

Well means:

(1) A bored, drilled, or driven shaft;

(2) A dug hole whose depth is greater

than the largest surface dimension;

(3) An improved sinkhole; or

(4) A subsurface fluid distribution

system.

Well injection means the subsurface

emplacement of fluids through a well.

* * * * *

12. Section 146.5 is amended by

adding a new paragraph (a)(3) and

revising paragraph (e) to read as follows:

§ 146.5 Classification of injection wells.

(a) * * *

(3) Radioactive waste disposal wells

which inject fluids below the lowermost

formation containing an underground

source of drinking water within one

quarter mile of the well bore.

* * * * *

(e) Class V. Injection wells not

included in Class I, II, III, or IV. Specific

types of Class V injection wells are

described in § 144.81 in subpart G of 40

CFR part 144.

[FR Doc. 98–19936 Filed 7–28–98; 8:45 am]

BILLING CODE 6560–50–P