[Federal Register Volume 70, Number 224 (Tuesday, November 22, 2005)]
[Rules and Regulations]
[Pages 70513-70532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23088]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 146

[FRL-7999-7]


Underground Injection Control Program--Revision to the Federal 
Underground Injection Control Requirements for Class I Municipal 
Disposal Wells in Florida

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Today's rule amends the current Federal Underground Injection 
Control (UIC) requirements by providing a regulatory alternative to 
owners and operators of Class I municipal disposal wells in specific 
areas of Florida that have caused or may cause movement of fluid into 
an Underground Source of Drinking Water (USDW). Because operation of 
Class I wells with fluid movement into a USDW is prohibited by Federal 
UIC regulations, this new rule offers owners and operators of municipal 
disposal wells in certain counties in Florida the ability to continue 
to operate their wells provided they meet additional wastewater 
treatment requirements. These new treatment requirements, which apply 
only to injection operations in certain counties of Florida, are 
designed to provide an equivalent level of protection to USDWs that is 
afforded by the no-fluid-movement standard.

DATES: This regulation is effective December 22, 2005. For purposes of 
judicial review, this final rule is promulgated as of 1 p.m., Eastern 
time on December 6, 2005, as provided in 40 CFR 23.7.

ADDRESSES: The official public docket for this rule is located at the 
U.S. Environmental Protection Agency (EPA), Region 4 Library (9th 
Floor), Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., 
Atlanta, GA 30303-8960. The docket is available for inspection from 8 
a.m. to 3:30 p.m., Eastern time, Monday through Friday, excluding legal 
holidays. For information on how to access Docket materials, please 
call (404) 562-8190 and refer to the Florida UIC docket.

FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact Nancy 
H. Marsh, Ground Water & UIC Section, U.S. EPA Region 4, 61 Forsyth 
Street, SW., Atlanta, GA 30303-8960 (phone: 404-562-9450; E-mail: 
<a href="/cdn-cgi/l/email-protection#b0ddd1c2c3d89eded1ded3c9f0d5c0d19ed7dfc6"><span class="__cf_email__" data-cfemail="c1aca0b3b2a9efafa0afa2b881a4b1a0efa6aeb7">[email protected]</span></a>) or Lee Whitehurst, Office of Ground Water and 
Drinking Water, U.S. EPA, EPA East, 1200 Pennsylvania Avenue, 
NW.,Washington, DC 20460 (phone: 202-564-3896; E-mail: 
<a href="/cdn-cgi/l/email-protection#16617e7f62737e63646562387a73735673667738717960"><span class="__cf_email__" data-cfemail="bccbd4d5c8d9d4c9cecfc892d0d9d9fcd9ccdd92dbd3ca">[email protected]</span></a>). For general information, contact the Safe 
Drinking Water Hotline, at 800-426-4791. The Safe Drinking Water 
Hotline is open Monday through Friday, excluding legal holidays, from 9 
a.m. to 5 p.m., Eastern time.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
    A. Who Are Regulated Entities?
    B. Abbreviations and Acronyms Used in the Preamble and Final 
Rule
II. Background
    A. Why Is EPA Taking This Regulatory Action?
    B. Statutory and Regulatory Framework
    C. Requirements To Prevent Fluid Movement
    D. Domestic Wastewater Disposal in Florida Through Class I Wells
    E. July 7, 2000 Proposed Rule
    1. Option 1: Advanced Wastewater Treatment (AWT) with a Non-
endangerment Demonstration.
    2. Option 2: In-depth Hydrogeologic Demonstration and Advanced 
Treatment, as Necessary

[[Page 70514]]

    F. 2003 Relative Risk Assessment
    1. Relative Risk Assessment Question 1: What Level of Treatment 
and Disinfection Is Provided for the Management Options of Treated 
Wastewater in South Florida?
    2. Relative Risk Assessment Question 2: What Stressors Remain 
(After Treatment) That May Be a Concern for the Management Options 
of Treated Wastewater in South Florida?
    3. Relative Risk Assessment Question 3: What Exposure Pathways 
Are (or May Be) of Significance for the Management Options of 
Treated Wastewater in South Florida?
    4. Relative Risk Assessment Question 4: What Is the Overall 
Estimate of Risk for the Management Options of Treated Wastewater in 
South Florida?
    5. Relative Risk Assessment Question 5: What Are the Important 
Data or Knowledge Gaps for Deep Well Injection?
    G. May 5, 2003, Notice of Availability and Notice of Data 
Availability
    1. NODA Question 1: What Is the Appropriate Level of Wastewater 
Treatment Prior to Injection?
    2. NODA Question 2: Is it Feasible To Predict Movement of Fluids 
Through Hydrogeologic Demonstrations?
    3. NODA Question 3: Have Some Deep Wells Been Misclassified as 
Class I, When They Are Actually Class V?
III. Summary of Public Comments
    A. Comments on the July 7, 2000, Proposed Rule
    1. Selection of Option 1, Option 2, or a Combination of Both
    2. Appropriate Level of Wastewater Treatment
    3. Need for Pretreatment
    4. Feasibility of Hydrogeologic Demonstrations to Predict 
Movement of Fluids
    5. Monitoring Requirements
    6. Rule Applicability
    7. Suitability of Florida Geology for Domestic Wastewater 
Disposal Through Class I Wells
    B. Comments on the Notice of Data Availability and the Relative 
Risk Assessment
    1. Appropriate Level of Wastewater Treatment Prior to Injection
    2. Feasibility of Hydrogeologic Demonstrations To Predict 
Movement of Fluids
    3. Class I or Class V
IV. Explanation of Today's Action
    A. Objectives and Approach
    B. Operating Requirements
    1. Selected Approach
    a. Rationale for Requiring Pretreatment of Wastewater
    b. Rationale for Requiring Secondary Treatment of Wastewater
    c. Rationale for Using Florida Definition of High-Level 
Disinfection
    d. Rationale for Not Requiring the Removal of Other Contaminants
    e. Rationale for Phasing In the New Treatment Over Time
    2. In-Depth Hydrogeologic Demonstrations
    C. Monitoring Requirements
    D. Rule Applicability
    1. How Will the New Rule Affect New Wells?
    2. What Florida Counties Are Covered by the Final Rule?
    E. Reclassification of Wells that Have Caused Fluid Movement
V. Cost of the Rule
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. General Information

A. Who Are Regulated Entities?

    This regulation is limited in application to the owners and/or 
operators of existing Class I underground injection wells that inject 
domestic wastewater effluent in certain parts of Florida. It is limited 
geographically to wells in the following counties: Brevard, Broward, 
Charlotte, Collier, Flagler, Glades, Hendry, Highlands, Hillsborough, 
Indian River, Lee, Manatee, Martin, Miami-Dade, Monroe, Okeechobee, 
Orange, Osceola, Palm Beach, Pinellas, St. Johns, St. Lucie, Sarasota, 
and Volusia. These counties are included in this rule because they have 
the unique geologic conditions that are predominated by carbonate 
rocks. Such rocks commonly contain fractures, faults, and solution 
cavities that provide preferential paths for the movement of 
underground fluids.
    Class I injection wells are wells that inject fluids beneath the 
lowermost formation containing, within one-quarter mile of a well bore, 
a USDW (40 CFR 144.6(a)). Class I wells can be used to inject 
hazardous, industrial, or municipal wastes. Class I municipal disposal 
wells inject treated wastewater from publicly or privately owned and 
operated facilities that treat domestic wastewater (commonly referred 
to as sanitary wastewater or sewage), which is principally derived from 
dwellings, business buildings, and institutions. Treated wastewater 
from industrial facilities, often controlled through pretreatment 
standards, may also be found in this wastewater. Currently, Class I 
municipal disposal wells are located only in the State of Florida. 
Specific regulated categories and entities include:

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                Category                       Examples of entities
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Municipalities and Local Government....  Class I municipal disposal
                                          wells disposing of domestic
                                          wastewater effluent in certain
                                          parts of Florida
Private................................  Class I municipal disposal
                                          wells disposing of domestic
                                          wastewater effluent in certain
                                          parts of Florida.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility is regulated by this action, you should carefully examine 
the applicability criteria in 40 CFR 146.15 of the rule. If you have 
questions regarding the applicability of this action to a particular 
entity, consult one of the persons listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. Abbreviations and Acronyms Used in the Preamble and Final Rule

AWT Advanced Wastewater Treatment
BOD Biochemical Oxygen Demand
CFR Code of Federal Regulations
EPA Environmental Protection Agency
F.A.C. Florida Administrative Code
FDEP Florida Department of Environmental Protection
ICR Information Collection Request
MGD Million Gallons per Day
NDWAC National Drinking Water Advisory Council
NOA Notice of Availability
NODA Notice of Data Availability
NTTAA National Technology Transfer and Advancement Act
O&M Operations and Maintenance
OMB Office of Management and Budget
RCRA Resource Conservation and Recovery Act

[[Page 70515]]

RFA Regulatory Flexibility Act
SBREFA Small Business Regulatory Enforcement Fairness Act
SDWA Safe Drinking Water Act
TDS Total Dissolved Solids
TSS Total Suspended Solids
USDW Underground Source of Drinking Water
UIC Underground Injection Control
UMRA Unfunded Mandates Reform Act

II. Background

A. Why Is EPA Taking This Regulatory Action?

    In the early 1980's EPA found that some Class I municipal wells in 
specific areas in Florida caused or may cause fluid movement into an 
Underground Source of Drinking Water (USDW). On July 7, 2000, EPA 
proposed a revision to the UIC regulations whereby continued injection 
would be allowed only if owners or operators met certain additional 
wastewater treatment requirements. EPA requested public comment on 
options for providing additional wastewater treatment at municipal 
disposal facilities in certain counties in Florida that have or may 
cause fluid movement.
    As part of EPA's FY 2000 appropriations bill, Congress asked EPA to 
conduct a relative risk assessment of deep well injection, ocean 
disposal, surface discharge, and aquifer recharge of treated effluent 
in South Florida. EPA published the Relative Risk Assessment of 
Management Options for Treated Wastewater in South Florida in April 
2003. In the Relative Risk Assessment, EPA reported that results from 
ground water monitoring around some Class I municipal disposal wells in 
Florida confirm that fluids have migrated out of the permitted 
injection zone and, in some cases, into USDWs. EPA also found that the 
full extent of USDWs contamination is not known because the fate and 
transport of pathogens contained in injected effluent is especially 
difficult to define even with the most sophisticated ground water 
modeling or monitoring.
    On May 5, 2003, EPA issued a Notice of Availability (NOA) 
announcing the availability of the Relative Risk Assessment and a 
Notice of Data Availability (NODA), requesting public comment on how 
the findings in the Relative Risk Assessment should inform this final 
rulemaking.
    Without today's rule, the no-fluid-movement requirement would 
remain the only available approach for regulating Class I municipal 
disposal wells in Florida, regardless of the level of wastewater 
treatment prior to injection. Enforcing this approach would, in effect, 
require owners and operators to shut these wells down because 
wastewater isolation from USDWs cannot be ensured. Shutting down the 
injection wells would, in turn, force the municipal wastewater to be 
managed by other means, which could increase the risks to surface water 
and coastal ecosystems.
    As an alternative, EPA has chosen, for Class I municipal disposal 
wells in certain parts of Florida, another approach that it believes 
will be as effective as confinement in protecting USDWs from the 
contaminants in the wastewater. This alternate approach involves the 
rigorous control of the quality of the injected fluids. Under this 
approach, the movement of fluids into USDWs, whether known or 
suspected, should not endanger the USDWs because the quality of the 
wastewater has been treated to a level that is no longer a threat to 
USDWs. Today's action shifts the endangerment protection strategy 
employed for Class I municipal disposal wells in certain parts of 
Florida from the no-fluid-movement standard to an alternate approach 
that relies on treatment of wastewater before it is injected. This 
shift, however, does not undercut the protection of USDWs or weaken the 
UIC Program requirements. Although facility owners and operators in the 
designated counties must meet new treatment requirements to continue 
injecting without violating the no-fluid-movement standard, they must 
also comply with all other applicable UIC requirements to ensure that 
their injection wells do not endanger USDWs.
    In the Relative Risk Assessment's evaluation of injection practices 
in Florida, pathogens were identified as the contaminant in municipal 
wastewater that presents the greatest risk to USDWs. High-level 
disinfection of this municipal wastewater is an effective method for 
inactivating these pathogens.
    Therefore, in today's rule, EPA amends the current Federal UIC 
regulations to allow owners and operators of Class I municipal disposal 
wells in specific areas of Florida to continue using their wells, even 
if they have caused or may have caused movement of fluid into a USDW, 
provided they meet new requirements to treat their municipal wastewater 
with pretreatment, secondary treatment, and high-level disinfection.

B. Statutory and Regulatory Framework

    Class I underground injection wells are regulated under the 
authority of Part C of the Safe Drinking Water Act (``SDWA'' or ``the 
Act'') (42 U.S.C. 300h et seq.). The SDWA is designed to protect the 
quality of drinking water sources in the United States and prescribes 
that:

    Underground injection endangers drinking water sources if such 
injection may result in the presence in underground water which 
supplies or can reasonably be expected to supply any public water 
system of any contaminant, and if the presence of such contaminant 
may result in such system's not complying with any national primary 
drinking water regulation or may otherwise adversely affect the 
health of persons. (Section 1421(d)(2) of the SDWA, 42 U.S.C. 
300h(d)(2).)

    Part C Protection of Underground Sources of Drinking Water of the 
Act specifically mandates the regulation of underground injection. The 
Agency has promulgated a series of UIC regulations under this authority 
at 40 CFR parts 144 through 147. The chief goal of any Federally 
approved UIC Program (whether administered by the State or EPA) is the 
protection of USDWs. This includes not only those aquifers which are 
presently being used for drinking water, but also those which can 
reasonably be expected to be used in the future. EPA has established 
through its UIC regulations that underground aquifers with less than 
10,000 mg/l total dissolved solids (TDS) and which contain a sufficient 
quantity of ground water to supply a public water system are USDWs. (40 
CFR 144.3)
    Section 1421 of the Act requires EPA to propose and promulgate 
regulations specifying minimum requirements for effective State 
programs to prevent underground injection that endangers drinking water 
sources. EPA promulgated administrative and permitting regulations, now 
codified in 40 CFR parts 144 and 146, on May 19, 1980 (45 FR 33290), 
and technical requirements, in 40 CFR part 146, on June 24, 1980 (45 FR 
42472). The regulations were subsequently amended on August 27, 1981 
(46 FR 43156), February 3, 1982 (47 FR 4992), January 21, 1983 (48 FR 
2938), April 1, 1983 (48 FR 14146), July 26, 1988 (53 FR 28118), 
December 3, 1993 (58 FR 63890), June 10, 1994 (59 FR 29958), December 
14, 1994 (59 FR 64339), June 29, 1995 (60 FR 33926), December 7, 1999 
(64 FR 68546), May 15, 2000 (65 FR 30886), and June 7, 2002 (67 FR 
39584). Section 1421(b)(3)(A) of the Act also provides that EPA's UIC 
regulations shall ``permit or provide for consideration of varying 
geologic, hydrological, or historical conditions in different States 
and in different areas within a State.''
    When EPA promulgated its UIC regulations, it defined five classes 
of injection wells in 40 CFR 144.6. Class I wells are defined as wells 
which inject

[[Page 70516]]

fluids beneath the lowermost formation containing, within one-quarter 
mile of the well bore, a USDW. Class I wells can be hazardous waste or 
other industrial or municipal disposal wells. (Hazardous waste 
injection must meet additional Resource Conservation and Recovery Act 
(RCRA) requirements. See 40 CFR part 148. Class I municipal disposal 
wells can be owned by public and private entities, as discussed above.
    Section 1422 of the Act provides that States may apply to EPA for 
national primary enforcement responsibility to administer the UIC 
program. Those States receiving such authority are referred to as 
``Primacy States.'' Florida received national primary enforcement 
responsibility for the UIC program for Class I, III, IV, and V wells on 
March 9, 1983. UIC regulations specific to Florida's primacy program 
are established in 40 CFR part 147, Subpart K. For the remainder of 
this preamble, reference to the UIC Program ``Director'' means the 
Secretary of the Florida Department of Environmental Protection (FDEP). 
Currently, all UIC Programs in Indian Country for Florida are directly 
implemented by EPA. It is EPA's intent that the provisions of this 
regulation apply to Class I municipal disposal wells in Indian Country 
within the counties identified in 40 CFR 146.15(f). At this time, there 
are no known Class I municipal disposal wells in Florida in Indian 
Country.

C. Requirements To Prevent Fluid Movement

    When EPA promulgated its regulations for the UIC program, it 
established different requirements for each class of wells, based upon 
the uses and risks of various types of wells. All classes of wells are 
required to comply with 40 CFR 144.12(a) which states:

    No owner and/or operator shall construct, operate, maintain, 
convert, plug, abandon, or conduct any other injection activity in a 
manner that allows the movement of fluid containing any contaminant 
into underground sources of drinking water, if the presence of that 
contaminant may cause a violation of any primary drinking water 
regulation under 40 CFR part 142 or may otherwise adversely affect 
the health of persons.

    Then, for Class I, II, and III wells, 40 CFR 144.12(b) more 
specifically provides that:

    If any water quality monitoring of an underground source of 
drinking water indicates the movement of any contaminant into the 
underground source of drinking water, except as authorized under 40 
CFR part 146, the Director shall prescribe such additional 
requirements for construction, corrective action, operation, 
monitoring, or reporting (including closure of the injection well) 
as are necessary to prevent such movement.

    In contrast to subsection (a), which, for all classes of wells, 
prohibits fluid movement that may endanger USDWs, 40 CFR 144.12(b) 
requires for Class I, II, and III wells that a State or Federal UIC 
Program Director, upon detection of contaminant movement into a USDW, 
prescribe requirements to prevent any such movement, regardless of 
whether the movement may endanger the USDW.
    In addition to 40 CFR 144.12(b), EPA established technical and 
other requirements for specific classes of wells in Parts 144 and 146 
regulations. Parts 144 and 146 regulations address siting, 
construction, operation, and closure of wells. Parts 144.12(b) and the 
specific technical requirements of parts 144 and 146 regulate the 
activities through which fluid movement may result and impose 
requirements designed to ensure that Class I, II, and III wells will 
not endanger USDWs by prohibiting movement of any fluid into the USDW.

D. Domestic Wastewater Disposal in Florida Through Class I Wells

    Beginning more than 20 years ago, municipalities in Florida began 
to pursue the use of underground injection as an alternative to surface 
disposal of treated wastewater from domestic wastewater treatment 
facilities. Underground injection technology was employed to relieve 
stress to surface water environments because it was technologically 
feasible to inject large volumes of wastewater into deep permeable and 
transmissive formations. Through technical and monetary assistance, EPA 
supported construction of many of these facilities in an effort to 
safeguard surface waters. Through injection technology, domestic 
wastewater facilities have been able to dispose of large quantities of 
domestic effluent, with the resulting benefit of reducing impacts to 
surface ecosystems. Wells at facilities that inject domestic wastewater 
into wells below the lowermost USDW are considered to be Class I 
municipal disposal wells, and in Florida such wells inject into zones 
ranging from 650 to 3,500 feet below the land surface.
    The volumes of domestic wastewater permitted for injection at Class 
I municipal disposal well facilities presently range from one well with 
less than one million gallons per day (MGD) at the Gasparilla Island 
Water Utilities to 17 wells with about 110 MGD at Miami-Dade Water & 
Sewer Department, South District Wastewater Treatment Plant. Florida 
requires that domestic wastewater must, at a minimum, be treated to 
secondary wastewater treatment standards (see 40 CFR part 133). At the 
time Florida permitted the currently operating Class I municipal 
disposal wells, characterization of the geology indicated that there 
was adequate confinement to isolate the injection fluids from any 
USDWs. Because it was thought there was adequate confinement, it was 
believed that injection fluids would never migrate upwards into the 
shallower geologic formations containing USDWs.
    The current injection and confining zones in peninsular Florida 
exist in what is known as the Floridan Aquifer System. This system is 
made up of carbonate rocks. The uppermost geologic formations of the 
Floridan Aquifer System, as well as formations above the Floridan 
Aquifer, are USDWs. The porosity and permeability variations of the 
carbonate rocks of peninsular Florida and the existence of fractures 
within the formation determine their confining ability. The porosity 
varies greatly, even within the same horizon or geological deposit of a 
particular time. Monitoring of injection operations over the past 
several years has indicated that some deep geologic zones provide less 
confinement between formations than was originally thought.
    It now appears, from recent well monitoring data, that upward fluid 
movement from some Class I municipal disposal operations occurs in 
Florida because the injection fluid from Class I municipal disposal 
wells has a lower density (lower TDS) than the native formation fluids. 
This tends to cause the less dense injection fluids to rise to the top 
of the injection zone preferentially through fractures that may exist 
within the formations and above the injection zone if migration 
pathways, such as fractures, exist. Movement of injected fluid into 
USDWs either has been confirmed or is suspected at eight facilities, as 
evidenced by levels of nitrates and ammonia, as well as significant 
changes in dissolved solids concentrations. (The preferential flow that 
leads to the movement of fluid with nitrates and ammonia can also lead 
to the presence of pathogens.) At an additional eight facilities, there 
is evidence of movement outside of the injection zone, though not into 
USDWs.

E. July 7, 2000 Proposed Rule

    On July 7, 2000, EPA proposed revisions to the UIC regulations that 
would allow continued wastewater injection by existing Class I 
municipal disposal wells that have caused or may cause movement of 
contaminants into USDWs in specific areas of Florida (65

[[Page 70517]]

FR 42234). Continued injection would be allowed only if owners or 
operators met certain additional requirements that provide adequate 
protection for USDWs. EPA co-proposed two primary options for the 
additional requirements:
1. Option 1: Advanced Wastewater Treatment (AWT) With a Non-
Endangerment Demonstration
    The authorization to inject under Option 1 would have required that 
the owner and/or operator of a Class I municipal disposal well 
injecting domestic wastewater effluent treat the wastewater by advanced 
treatment methods and high-level disinfection and demonstrate that 
injection would not cause fluids that exceed the national primary 
drinking water regulations or other health-based standards to enter the 
USDW. The non-endangerment demonstration would focus on any 
contaminants that still exceed national drinking water regulations or 
other health-based standards after wastewater treatment. In the 
proposal, EPA solicited public comment on the appropriateness of this 
option, as well as the appropriate level of wastewater treatment, 
nutrient removal, and high-level disinfection that should be required 
if Option 1 is selected. The alternatives proposed were:
    Treatment to 10-24 mg/l biochemical oxygen demand (BOD) with 
disinfection;
    Treatment to 10-24 mg/l BOD with disinfection and nutrient removal;
    Treatment to <10 mg/l BOD with disinfection;
    Treatment to <10 mg/l BOD with disinfection and nutrient removal.
2. Option 2: In-Depth Hydrogeologic Demonstration and Advanced 
Treatment, as Necessary
    The authorization to inject under Option 2 would have required that 
the owner and/or operator of a Class I municipal disposal well 
injecting domestic wastewater effluent provide a hydrogeologic 
demonstration that the injection operation would not cause the USDW to 
exceed national primary drinking water regulations or other health-
based standards. EPA anticipated that this hydrogeologic demonstration 
would be an extensive evaluation, similar in detail to those required 
for a RCRA land ban no-migration petition, and consist of an analysis 
of the contaminants in wastewater prior to injection, include 
monitoring data from deep wells at the base of the USDW, and also 
include detailed hydrogeologic modeling of vertical and horizontal 
fluid transport in the injection zone and USDWs. If it was anticipated 
that the fluids may enter the USDW, the demonstration would have to 
show that the fluids would not cause the USDW to exceed primary 
drinking water regulations in 40 CFR part 141 or other health-based 
standards. Operators who could not successfully demonstrate that the 
injection operation meets these criteria would have been required to 
treat their injectate to address the contaminants of concern and 
satisfy additional requirements proposed to be added in a new 40 CFR 
146.15(d). This second option also proposed a provision whereby all 
facilities qualifying for authorization to inject under this option 
would be required to install advanced wastewater treatment and high-
level disinfection by 2015.
    EPA proposed to limit the applicability of the rule to existing 
Class I municipal disposal wells that have caused or may cause fluid 
movement into USDWs in specific counties and under certain geologic 
conditions in Florida. The proposed counties were: Brevard, Broward, 
Charlotte, Collier, Flagler, Glades, Hendry, Highlands, Hillsborough, 
Indian River, Lee, Manatee, Martin, Miami-Dade, Monroe, Okeechobee, 
Orange, Osceola, Palm Beach, Pinellas, St. Johns, St. Lucie, Sarasota, 
and Volusia. These counties were targeted in the proposal because they 
have the unique geologic conditions that are predominated by carbonate 
rocks discussed previously. The counties were selected using a map 
adapted from Florida Geological Survey map series 94 ``Potential 
Subsurface Zones for Liquid-Waste Storage in Florida,'' created by 
James A. Miller of the United States Geological Survey in 1979. The 
proposed geological conditions were those where the injection and 
confining zones are both in the Floridan Aquifer, and no clastic 
confining unit separates the injection zone from the lowermost USDW. 
See United States Geological Survey's Web site for specific information 
on Florida's geology at http://www.usgs.gov or at http://www.dep.state.FL.us/geology/.
    EPA requested comment on a range of issues associated with this 
proposal, including the following: (1) Should the Agency select Option 
1 or 2, or, if it would be more appropriate, select a combination of 
both options? (2) What is the appropriate level of wastewater 
treatment, if Option 1 were selected? (3) What is the need to require 
pretreatment as an additional condition of authorization under the 
rule, and is it necessary to extend the pretreatment standards 
presently required by the State to injection facilities with less than 
5 MGD? (4) Are owners and operators able to provide the kind of 
hydrogeologic and other information necessary for a successful 
hydrogeologic demonstration under Option 2? (5) Is there a need for any 
additional monitoring requirements for the final rule? (6) Is it 
appropriate to make the rule applicable only to existing wells (not new 
wells) and only to the proposed list of counties? (7) Is the Florida 
geology suitable for domestic wastewater disposal through Class I 
injection wells?
    Following publication of the proposed rule, EPA held a series of 
public meetings during the comment period. These meetings provided an 
opportunity for interested parties to submit oral comments on the 
proposal. Two public meetings were held on August 22, 2000, in Tampa, 
Florida, and an additional two meetings were held on August 24, 2000, 
in West Palm Beach, Florida.
    The written comments submitted on the proposed rule and the oral 
comments provided during the public meetings mirror each other. EPA has 
carefully considered all of these comments and has responded to them in 
full in the comment response document for the proposal, which is part 
of the record for this final rule. These comments are also summarized 
in Section III.A and factored into the Agency's final decisionmaking 
discussed in Section IV of today's preamble.

F. 2003 Relative Risk Assessment

    As noted previously, following the July 7, 2000, proposal, Congress 
included the following provision as part of EPA's fiscal year 2000 
appropriations bill: ``Within available funds, the conferees direct EPA 
to conduct a relative risk assessment of deep well injection, ocean 
disposal, surface discharge, and aquifer recharge of treated effluent 
in South Florida, in close cooperation with the Florida Department of 
Environmental Protection and South Florida municipal water utilities.'' 
Because this directive came at a time when EPA's work on the July 7, 
2000, proposal was substantially complete, the Agency decided to 
proceed with the proposal and the relative risk assessment along 
separate but converging paths. EPA initiated and conducted the relative 
risk assessment with the intent of using relevant findings from the 
assessment to inform the final rulemaking. EPA published the Relative 
Risk Assessment of Management Options for Treated Wastewater in South 
Florida (EPA 816-R-03-010) in April 2003.
    The methodology for the assessment involved a process of 
investigating the

[[Page 70518]]

four very different wastewater disposal options: deep well injection, 
aquifer recharge, discharge to ocean outfalls, and discharge to other 
(non-ocean) surface water bodies. Each option has its own specific 
stressors (hazards), exposure pathways, receptors, and potential 
effects. Parameters that are relevant to one particular disposal option 
are not necessarily relevant to the other three. Therefore, a strictly 
quantitative comparison between the four options was not possible.
    Instead, EPA conducted what is termed a relative risk assessment to 
both assess the risks associated with each disposal method and allow 
comparisons. Individual risk assessments were completed for each 
wastewater disposal option and the risks associated with each were 
characterized. The risks and risk factors identified for each specific 
disposal option were then evaluated and described. Overall comparisons 
and conclusions were then presented as relative risk assessment 
matrices.
    The Relative Risk Assessment addresses five key questions 
specifically related to deep well injection: (1) What level of 
treatment and disinfection is provided for deep well injection? (2) 
What stressors remain (after treatment) that may be a concern for deep 
well injection? (3) What exposure pathways are (or may be) of 
significance for deep well injection? (4) What is the overall estimate 
of risk for deep well injection? (5) What are the important data or 
knowledge gaps for deep well injection? The significant findings of the 
Relative Risk Assessment pertaining to deep well injection are 
contained in the report and are summarized below. (See the Relative 
Risk Assessment document for details on the other disposal options.)
1. Relative Risk Assessment Question 1: What Level of Treatment and 
Disinfection Is Provided for the Management Options of Treated 
Wastewater in South Florida?
    All facilities that manage municipal wastewater by deep well 
injection in Florida are required by Florida law to provide at least 
secondary treatment of the wastewater prior to injection. In addition, 
utilities that employ deep well injection must maintain, as a 
contingency, disinfection capability, per F.A.C 62-500.540(1), but many 
do not disinfect treated effluent prior to injection. For example, 
treatment of wastewater that is injected by Class I municipal disposal 
wells in Miami-Dade and Brevard Counties consists of secondary 
treatment with no disinfection, although backup disinfection capability 
is required. In contrast, in Pinellas County, wastewater is treated to 
more stringent reclaimed water standards before being discharged into 
Class I municipal disposal wells, because the Class I wells are used to 
dispose of reclaimed water during periods of wet weather. Reclaimed 
water standards, as specified by the State of Florida, include 
secondary treatment plus a variety of techniques to remove 
microorganisms, including filtration and high-level disinfection. 
Filtration before disinfection serves to increase the ability of the 
disinfection process to inactivate viruses and other pathogens. 
Filtration also serves as the primary means for removing protozoa, such 
as Cryptosporidium and Giardia.
2. Relative Risk Assessment Question 2: What Stressors Remain (After 
Treatment) That May Be a Concern for the Management Options of Treated 
Wastewater in South Florida?
    ``Stressors'' include chemical or biological agents that may cause 
adverse effects if exposure levels are high enough. The Relative Risk 
Assessment describes the human health and ecological health stressors 
that may be found in wastewater effluent after it has been treated and 
that may pose a risk.
    In cases where injectate has received secondary treatment only, 
microorganisms are generally not inactivated prior to deep well 
injection in Florida. When used, disinfection serves to inactivate 
bacteria and viruses, especially when the wastewater is sufficiently 
filtered prior to disinfection. Protozoan pathogens (e.g., 
Cryptosporidium and Giardia) may still be present if the wastewater is 
not filtered. Disinfection (or chlorination) byproducts such as 
trihalomethanes may also be present in some wastewater, although no 
data are available to suggest that such byproducts are a serious 
concern for deep well injection or any of the other wastewater 
management options studied.
    Nutrients (e.g., nitrogen and phosphorus) can potentially stimulate 
the production of algae, which can lead to adverse side effects such as 
eutrophication, should the stressors reach surface water. Nitrogen is 
the primary nutrient of concern for Class I injection, because of its 
mobility in ground water.
3. Relative Risk Assessment Question 3: What Exposure Pathways Are (or 
May Be) of Significance for the Management Options of Treated 
Wastewater in South Florida?
    An ``exposure pathway'' is the course a stressor takes from a 
source of release to an exposed organism. It is defined by the 
different environmental media through which a stressor migrates (e.g., 
air, surface water, ground water) as well as the mechanism by which an 
organism is actually exposed (e.g., inhalation, drinking, topical 
contact).
    There are documented impacts to USDWs resulting from deep well 
injection in Florida, which raise concerns about potential human 
exposures via the drinking water pathway. Beginning in the late 1980s, 
ground water monitoring wells at 16 of the 42 municipal facilities that 
utilize Class I deep well injection in Florida began to detect the 
movement of fluid outside of the permitted injection zones. As 
previously mentioned, movement of contamination into USDWs either has 
been confirmed or is suspected at eight facilities.
    There is also the potential for contaminants released by deep well 
injection to migrate through the subsurface and discharge into marine 
and/or surface waters, where they could pose risk via other pathways if 
loadings were sufficiently large. However, the risk assessment 
concluded that it is unlikely that stressors would migrate from the 
deep injection zone to surface water.
4. Relative Risk Assessment Question 4: What Is the Overall Estimate of 
Risk for the Management Options of Treated Wastewater in South Florida?
    Although the report does not quantify risks, it offers conclusions 
about the relative risks of the four wastewater management options 
studied and about the various factors that influence risks to human and 
ecological health.
What Is the Human Health Risk?
    The human health risks associated with deep well injection (as well 
as the other three wastewater management options studied in the risk 
assessment) were found to be generally low. However, the degree of 
wastewater treatment, and in particular the level of disinfection and 
filtration of pathogenic microorganisms, is a major risk driver. There 
is greater potential risk associated with wastewater that is not 
filtered and then disinfected to inactivate bacteria and viruses, and 
not filtered to remove protozoan pathogens, such as Cryptosporidium and 
Giardia. This suggests higher relative risks for deep well injection 
operations that do not filter and disinfect wastewater and the risk is 
highest in situations where the injectate migrates through fractures, 
and solution cavities. The risk associated with microorganisms being 
released by deep well injection would be mitigated somewhat in 
situations where the

[[Page 70519]]

injection is dominated by porous media flow, characterized by long 
travel times to current or potential drinking water sources and fine 
pore spaces capable of retaining microorganisms.
    Once microorganisms and other stressors are released to the 
environment, the level of risk they pose to human health depends 
largely on how likely they are to enter drinking water supplies. The 
Relative Risk Assessment suggests that deep well injection has a higher 
risk than the other wastewater management options because current UIC 
regulatory requirements for pathogen removal/inactivation are less 
stringent.
What Are the Ecological Health Risks?
    Overall, the risk to surface water ecosystems is low when treated 
wastewater is managed by deep well injection. The potential for damage 
may be higher where treated wastewater is released in proximity to 
surface water with previously impaired water quality, which is the case 
for many surface water bodies in Florida. Deep well injection could 
also pose a risk to marine ecology if contaminants can readily migrate 
and discharge to offshore waters. Although some uncertainty remains, 
the potential for this actually to happen in Florida and pose a real 
threat in the ocean is believed to be unlikely. Two potential 
ecological effects of particular concern, should surface or ocean 
waters be sufficiently contaminated, include harmful algal blooms and 
bioconcentration of toxic contaminants in the food web. Algal blooms 
can cause a variety of toxic symptoms (including death) in aquatic 
organisms as well as nontoxic adverse effects such as clogging of gills 
and smothering of coral reefs and sea grass beds. Food web 
bioconcentration of metals and other contaminants can also cause a 
variety of toxic effects.
5. Relative Risk Assessment Question 5: What Are the Important Data or 
Knowledge Gaps for the Management Options of Treated Wastewater in 
South Florida?
    For all four wastewater management options that were considered in 
the Relative Risk Assessment, EPA found that there is a lack of 
definitive studies in Florida that use a physical or chemical tracer or 
indicator to identify the source and transport pathways of stressors 
detected in the environment. Without more definitive tracer studies for 
each wastewater management option, it is difficult to assess the 
potential effects of local conditions on the fate and transport of 
treated wastewater after being released into the environment. While 
results from ground water monitoring around some Class I municipal 
disposal wells in Florida confirm that fluids have migrated out of the 
permitted injection zone, the full areal extent of USDW contamination 
is not known. The unknown degree of migration is not only because of 
limited availability of monitoring data, but also because the location 
and connectivity of natural conduits for fluid flow (fractures and 
solution cavities in underground formations) are difficult to predict. 
In addition, the rates of microbial survival, inactivation, and 
transport are difficult to predict. Also uncertain are the rates of 
microbial straining or filtration by geological materials under 
different fluid flow scenarios, including porous media and conduit 
flow. The fate and transport of pathogens is especially difficult to 
verify for deep well injection, even with the most sophisticated 
modeling or with expensive monitoring, since the receiving formations 
are thousands of feet underground.

G. May 5, 2003, Notice of Availability and Notice of Data Availability

    On May 5, 2003, EPA issued a Notice of Availability (NOA) (68 FR 
23673) announcing the availability of the Relative Risk Assessment and 
a Notice of Data Availability (NODA) (68 FR 23666), requesting public 
comment on how the Relative Risk Assessment informs this rulemaking.
    Following publication of the NOA and NODA, EPA held a series of 
public meetings on the Relative Risk Assessment. These meetings, held 
during the comment period, provided an opportunity for interested 
parties to submit oral comments on the Relative Risk Assessment. Two 
public meetings were held, one in West Palm Beach, Florida on June 24, 
2003, and a second in Tampa, Florida on June 25, 2003.
    The comments provided at the meetings address the same issues as 
those submitted in writing. EPA has considered the comments provided in 
the meetings along with the written comments submitted during the 
comment period following publication of the NODA. The comment response 
document for the NODA, which is part of the record for this rule, 
summarizes all of these comments and provides EPA's responses. These 
comments are also summarized in Section III.A and factored into the 
Agency's final decisionmaking discussion in Section IV of today's 
preamble.
    In the NODA, EPA summarized the findings of the Relative Risk 
Assessment, highlighting those that are most relevant findings to 
informing the final regulatory action, and requested comment on three 
issues: The appropriate level of wastewater treatment required for 
continued deep well injection; the feasibility of hydrogeological 
demonstrations for showing that injection will not cause fluids to 
enter USDWs; and whether some of the Class I municipal disposal wells 
in Florida are actually misclassified Class V wells.
1. NODA Question 1: What Is the Appropriate Level of Wastewater 
Treatment Prior to Injection?
    In the NODA, EPA requested comment on an alternative option for 
defining the appropriate level of wastewater treatment required for 
continued injection in deep municipal disposal wells in Florida 
(instead of the four options included in the July 7, 2000, proposal, as 
listed in Section II.D above). Based on comments received on the 
proposed rule related to wastewater treatment, as well as findings from 
the Relative Risk Assessment, the NODA solicited comments on 
prescribing wastewater treatment requirements that conform with 
relevant State requirements. Under this alternative, the Agency would 
simply adopt, in lieu of the standards considered in the proposal, the 
Florida standards in Rule 62-610.460, F.A.C. (for waste treatment and 
disinfection applicable to reclaimed water that may come into contact 
with people) or the standards in Rule 62-600.540(2), F.A.C. (for ground 
water disposal by underground injection in Class V wells) and Rule 62-
600.440(5), F.A.C. (for design and operational criteria for high-level 
disinfection). Specifically, EPA would require wastewater treatment 
that results in injected water meeting, at a minimum, secondary 
treatment and high-level disinfection as defined in the Florida 
regulations. Also, filtration would be required for total suspended 
solids (TSS) control prior to disinfection, which would specify that 
the treated wastewater not contain more than 5.0 mg/l of TSS before the 
application of the disinfectant. As discussed in the NODA, EPA believes 
that this treatment standard might offer some important advantages over 
the alternatives proposed on July 7, 2000. In particular, it might 
better address the risks associated with pathogens and it would be 
consistent with the standards already adopted and implemented in 
Florida for reclaimed water and wastewater disposed through Class V 
injection wells, which are part of domestic wastewater treatment 
systems.
    In the NODA, EPA asked commenters whether this standard for 
advanced

[[Page 70520]]

treatment and high-level disinfection should be specified in the final 
rule. EPA also requested that commenters describe the type of treatment 
that would be necessary to achieve the performance standards (i.e., 
national primary drinking water regulations and other health-based 
standards) and provide any information they have on the costs of this 
option.
2. NODA Question 2: Is It Feasible To Predict Movement of Fluids 
Through Hydrogeologic Demonstrations?
    In the NODA, EPA requested comment on whether the findings from the 
Relative Risk Assessment regarding deep well injection suggest anything 
about the practicability and feasibility of the approach outlined under 
Option 2 in the July 7, 2000, proposal. As summarized above, Option 2 
would allow owners and operators to conduct hydrogeologic 
demonstrations to show that injection will not cause fluids that exceed 
any national primary drinking water regulations or other health-based 
standards to enter any USDW.
    Based on the added findings in the Relative Risk Assessment 
regarding the Florida geology, EPA posed several questions in the NODA 
related to the uncertainties of hydrogeologic demonstrations that would 
be required under Option 2. In particular, EPA asked whether facilities 
should be granted the opportunity to conduct the demonstrations; how 
the UIC Program Director should address anticipated technical 
difficulties in his/her review of a demonstration; and how a 
satisfactory hydrogeological demonstration would be conducted.
3. NODA Question 3: Have Some Deep Wells Been Misclassified as Class I, 
When They Are Actually Class V?
    Given the extent of fluid movement documented at some sites, as 
well as information concerning the geology and the construction of some 
municipal disposal wells in Florida, it is possible that some wells may 
have been misclassified as Class I, when they are actually Class V. 
According to the Federal UIC regulations, Class I wells ``inject fluids 
beneath the lowermost formation containing, within one quarter mile of 
the well bore, an underground source of drinking water'' (40 CFR 
144.6(a)(2)). Class V wells are defined as wells that are not included 
in Class I, II, III, or IV. Typically, Class V wells release 
nonhazardous fluids into or above formations containing USDWs.
    Separate from the issue of how Class I and Class V wells are 
defined, the Federal Class I and Class V UIC programs differ in their 
basic approach to protecting USDWs. As previously described in Section 
II.B, the basic standard of protection in the Class I program is to 
ensure that there is no movement of any contaminant into USDWs. This 
standard is achieved through a Class I regulatory program that focuses 
on the development and enforcement of stringent permit requirements, 
including, but not limited to, criteria for well siting, construction, 
and operation and maintenance. A key component of the Class I program 
is ensuring that adequate confinement exists between the permitted 
injection zone and USDWs at a given site.
    Since most Class V wells release fluids either directly into or 
above USDWs, they by definition cause the movement of fluid, which may 
contain contaminants, into or above USDWs. Therefore, the basic 
standard of protection in the Class V program is to prevent any 
contaminants in the fluid from endangering USDWs. Protection efforts in 
the Class V program mainly focus on regulating and monitoring injectate 
quality to ensure that the movement of injected fluid will not contain 
any contaminants that may endanger USDWs. This standard is achieved 
through inventory and assessment requirements, additional reporting 
requirements, closure requirements, and other requirements (possibly 
including permitting requirements) believed by UIC Program staff to be 
necessary to protect drinking water supplies.
    Information collected for the Relative Risk Assessment raises a 
question as to whether certain Florida municipal disposal wells should 
have been classified as Class V at the time they were first permitted. 
In particular, all of the lithologic units of the upper Floridan 
Aquifer in Pinellas County and the lower Floridan Aquifer in Miami-Dade 
consist of limestone and dolomite that have shown evidence of solution 
cavities and fractures. These natural conduits for fluid flow raise a 
question as to whether lithologic units in these aquifers are effective 
confining layers and whether the injection zones and overlying USDWs 
are in different and distinct formations, as they were believed to be 
when the wells were originally sited, constructed, and permitted as 
Class I wells.
    Based on this information, the NODA requested comment on whether 
the findings from the Relative Risk Assessment suggest that some 
Florida wells may have been misclassified as Class I wells. EPA also 
asked whether the findings suggest that some wells in Florida may, in 
fact, discharge directly to (and not below) formations containing a 
USDW, and if the findings suggest that this misclassification should be 
accepted for the entire group of Florida municipal disposal wells, or 
only a subset.

III. Summary of Public Comments

A. Comments on the July 7, 2000, Proposed Rule

    EPA received 1,181 comments in response to the proposed rule. The 
following sections summarize the more significant public comments on 
the seven main issues raised in the proposal. These comments are 
addressed in more detail in the comment response document available for 
review in the Florida UIC docket as well as in Section IV of today's 
preamble.
1. Selection of Option 1, Option 2, or a Combination of Both
    In the proposal, EPA solicited comment on whether to select Option 
1 (advanced wastewater treatment (AWT) with a non-endangerment 
demonstration), Option 2 (in-depth hydrogeologic demonstration and 
advanced treatment, as necessary), or a combination of both options.
    Commenters who favor Option 1 explained that, although initially 
more costly, this option offers the advantage of allowing 
identification and avoidance of potential drinking water contamination, 
which would be more cost-effective than ground water remediation. One 
commenter offered that Option 1 should be required only if needed to 
meet the non-endangerment requirement. A commenter opposed to Option 1 
said that even with AWT, the proposed requirements may not prevent 
violations of drinking water standards in USDWs.
    Those commenters favoring Option 2 argued that it would be 
burdensome to require utilities to employ AWT immediately. They 
therefore suggested that AWT either should not be required at all or 
should be phased-in. One commenter opposing Option 2 said that 
facilities already perform analyses to demonstrate compliance, and 
geochemical modeling should be required only where actual data are not 
available. Another commenter opposing Option 2 said that it is unclear 
what geochemical modeling would accomplish.
2. Appropriate Level of Wastewater Treatment
    In the proposed rule, EPA requested comment on which treatment 
alternative to specify in the final rule, if Option 1 were selected. 
Comments were

[[Page 70521]]

solicited on the appropriate level of BOD treatment and the need for 
disinfection and nutrient removal.
    Commenters who favored higher levels of BOD treatment (to less than 
10 mg/l) asserted that these standards would protect the environment 
and can be met with available cost-effective technologies. Commenters 
opposed to requiring BOD treatment said that it is not possible to meet 
the disinfection requirement with BOD levels of 10 to 24 mg/l, or that 
there is no technical basis for requiring those levels, since the 
treated wastewater is being discharged to an anaerobic environment 
without plant life.
    Commenters who supported nutrient removal requirements said that 
such treatment would have environmental benefits, including protecting 
wetlands and endangered species. Commenters who opposed nutrient 
removal explained that it could adversely impact water reuse programs. 
These commenters also opposed setting phosphorus limitations, saying 
that there are no human health benefits associated with phosphorus 
removal.
    Commenters who favored requiring AWT said that injected fluids can 
move into surficial aquifers or near shore surface waters, and AWT is 
thus needed to protect aquatic species. Commenters opposed to requiring 
AWT asserted that imposing health-based standards as discharge 
requirements is inconsistent with the SDWA and not supported by 
scientific data. These commenters added that injection provides 
effective source separation that has protected water supplies for many 
years and that requiring AWT would jeopardize the viability of this 
practice going forward. Other commenters thought that AWT is 
insufficient to prevent endangerment of USDWs. These commenters 
expressed concern that the proposal does not adequately protect USDWs 
from many of the substances that may be found in municipal wastewater.
3. Need for Pretreatment
    EPA solicited public comment on the need for pretreatment as an 
additional condition of the authorization to inject, and on whether to 
extend the pretreatment requirements presently required by the State of 
Florida to injection facilities with flows of less than 5 MGD.
    Commenters advocating pretreatment requirements suggested that 
requiring industrial users to pretreat their wastewater would reduce 
the chance of contaminating USDWs and reduce the costs to municipal 
treatment works. Several commenters advocated extending pretreatment 
requirements to facilities with flows of less than 5 MGD.
    Commenters opposed to the pretreatment requirements cited concerns 
about the ineffectiveness of pretreatment programs to prevent fluid 
movement or protect public health.
4. Feasibility of Hydrogeologic Demonstrations To Predict Movement of 
Fluids
    EPA solicited comment on the ability of injection well owners and 
operators to provide the kind of hydrogeologic and other information 
necessary for a successful hydrogeologic demonstration that their 
injectate will not cause a USDW to exceed any primary drinking water 
regulations or other health-based standards.
    Commenters opposed to the proposed hydrogeologic demonstrations 
asserted that they could not accurately reflect flow responses after 
prolonged injection, and that EPA should not rely on them to protect 
USDWs. These commenters cited limitations in available knowledge of the 
subsurface geology of Florida and the fate of contaminants.
5. Monitoring Requirements
    EPA requested comments on the proposed monitoring requirements 
(which would include, at a minimum, effluent monitoring and an analysis 
of any such contaminants following injection), and asked whether any 
additional monitoring requirements should be included in the final 
rule.
    Some commenters challenged the proposed monitoring requirements, 
claiming that they are not adequate to prevent endangerment of ground 
water quality. Two commenters suggested a need to monitor for 
pathogens, viruses, and pharmaceuticals. Several commenters requested 
an increased monitoring frequency, believing that annual monitoring is 
insufficient to characterize the injected fluids.
    Many commenters requested that EPA clarify certain aspects of the 
proposed monitoring requirements, including what is meant by ``other 
health-based standards.''
6. Rule Applicability
    EPA requested comment on whether the rule should apply to existing 
wells only or also to new wells. Some commenters suggested that the 
rule apply to new and existing wells, as well as to replacement wells, 
and recommended that the rule apply in all counties where fluid 
migration could or does occur. Those commenters who opposed applying 
the rule to facilities that have not shown movement of fluid to USDWs 
expressed concern that such an approach would limit the future 
application of injection as a disposal technology.
    In the proposal, EPA also requested comment on whether any 
additional (or fewer) counties in Florida should be included within the 
scope of the rule. No comments requesting the addition or removal of 
any counties were received.
7. Suitability of Florida Geology for Domestic Wastewater Disposal 
Through Class I Wells
    Commenters provided information and background on the geology of 
Florida, fluid migration, and the appropriateness of wastewater 
injection in Florida.
    Some commenters expressed concern about injection operations 
contaminating drinking water aquifers with a virus or pathogen, citing 
evidence that effluent is leaking into the Floridan Aquifer that is 
hydrogeologically connected to the Biscayne Aquifer, the sole source of 
Miami-Dade's drinking water. These commenters said that there are many 
unknowns about the geology of Florida and that the behavior of injected 
fluids cannot be accurately predicted.
    Other commenters asserted that injection is a safe practice that 
has been taking place in Florida for decades without any documented 
adverse impacts to USDWs. They indicated that the injected fluid is 
``freshening'' the highly saline receiving waters, and that the 
availability of injection as a disposal alternative has resulted in 
significant improvements to surface water quality in Florida. Some 
commenters added that, in the proposal, EPA did not adequately 
characterize the subsurface geology in Florida. Some commenters 
recognized that fluid movement is occurring, but support a rule that 
allows fluid movement if it is accompanied by a non-endangerment 
policy. These commenters added that a strict no movement policy would 
eliminate all injection and supply wells in the region.

B. Comments on the Notice of Data Availability and the Relative Risk 
Assessment

    EPA received 203 comments in response to the NODA and its summary 
of the Relative Risk Assessment. The paragraphs below summarize the 
more significant comments on the three main issues raised in the NODA. 
The complete comment response document available for review in the 
Florida UIC docket addresses these comments in more detail.

[[Page 70522]]

1. Appropriate Level of Wastewater Treatment Prior to Injection
    In the NODA, EPA asked for comment regarding the level to which 
wastewater should be treated before it is injected into deep wells that 
have caused or may cause fluid movement into a USDW. Some commenters 
advocated requiring treatment to drinking water standards before 
injection, citing concerns about pathogens migrating to aquifers and 
the inability of modeling to identify all pathways by which 
contamination could occur. Some commenters also expressed concern about 
the potential migration of viruses, pathogenic bacteria, and protozoa. 
They asserted that data show that injected fluids are migrating and, 
without disinfection, pathogens may survive, especially where the 
travel times to USDWs are short.
    Some commenters advocated requiring denitrification as well. 
Commenters opposed to requiring advanced wastewater treatment said that 
current treatment requirements are adequate, and that the cost of 
requiring AWT all the time would be excessive. Some commenters 
cautioned against a ``one-size-fits-all'' approach, and suggested 
including case-by-case treatment requirements in permits. They added 
that, at most facilities, drinking water standards are already met 
within the aquifer and that, given the salinity of the injection zone, 
any water from the USDW would require reverse osmosis treatment before 
it is usable for drinking.
    EPA also asked commenters whether treatment consistent with 
corresponding Florida requirements (i.e., treatment that meets the 
State's secondary treatment and high-level disinfection standards) is 
appropriate. Some commenters advocated requiring AWT in accordance with 
Florida's standards. Other commenters said that Florida sets differing 
standards based on the quality of the receiving waters, and that simply 
adopting the Florida standard would not resolve the issue where fluid 
migration is occurring.
2. Feasibility of Hydrogeologic Demonstrations To Predict Movement of 
Fluids
    As previously described in Section II.F.2, the NODA requested 
comment on the practicality and feasibility of allowing facilities to 
conduct hydrogeologic demonstrations, given the inherent difficulties 
and uncertainties regarding the extent, location, and connectivity of 
possible natural conduits for flow identified in the Relative Risk 
Assessment.
    Commenters who advocated the use of hydrogeological demonstrations 
said that such demonstrations would provide utilities needed 
flexibility, given the hydrogeologic variability in Florida. They added 
that this approach would be in line with the intent of Congress and the 
SDWA. These commenters added that monitoring shows that contaminants 
are not moving into USDWs, and that the critical point to consider is 
whether the USDW is endangered (rather than just that fluids are moving 
into USDWs).
    Commenters who opposed allowing facilities to conduct hydrogeologic 
demonstrations said that monitoring programs cannot adequately 
characterize fluid movement in the subsurface, especially given the 
faulted and fractured geology of Florida.
    Other commenters agreed that hydrogeological demonstrations should 
be conducted to understand the geology of the injection zone, but said 
that treatment should be required as well.
3. Class I or Class V
    EPA solicited comment on ways to address the fluid movement that 
has occurred, while preventing the endangerment of USDWs. Specifically, 
EPA asked for comment on whether wells with fluid movement should be 
reclassified as Class V wells, or whether Class I or Class V 
requirements specific to Florida should be promulgated.
    Commenters who advocated reclassifying the wells as Class V said 
that the injection and confining layers are sufficiently similar to be 
considered a single formation. These commenters were against 
``blanket'' reclassification of the wells, however, saying that each 
well should be considered individually.
    Other commenters, who were against reclassifying the wells as Class 
V, cited concerns that doing so would lead to greater reliance on 
injection as a wastewater disposal method. They asserted that some 
injected fluid is migrating to and impacting coral reefs, the wells are 
in violation of SDWA requirements, and the level of treatment specified 
will not protect USDWs. These commenters expressed doubt whether, given 
the existence of natural conduits connecting subsurface layers, the 
upper layer is sufficiently confining injected wastewater. They added 
that two subsurface layers sharing certain characteristics do not 
constitute a single formation.

IV. Explanation of Today's Action

    This section describes today's action. It also discusses how EPA 
considered information in the Relative Risk Assessment and the NODA, as 
well as public comments received on each of these documents.

A. Objectives and Approach

    Under Section 1421 of the Act, UIC regulations must prevent 
underground injection that endangers drinking water sources. While EPA 
met this statutory requirement in the past by prohibiting fluid 
movement, the Act authorizes other approaches as well, such as the 
approach used in today's rule, which requires treatment of wastewater 
prior to injection. The overriding objective of today's action is to 
ensure the protection of USDWs, which is the chief goal of the Federal 
UIC Program. In so doing, it is important that the rule: (1) Not 
undercut or unnecessarily burden the Florida UIC Program as it pertains 
to Class I municipal disposal wells; and (2) not transfer potential 
problems to other programs or increase concerns associated with the 
management of treated municipal wastewater by other practices, 
including aquifer recharge, surface water discharge, and ocean 
disposal.
    In order to meet this last objective, EPA has concluded that it is 
important to maintain underground injection as a viable alternative for 
managing treated municipal wastewater in Florida. There are eight 
instances of known or suspected contamination of USDWs caused by Class 
I municipal disposal wells, but the Relative Risk Assessment has shown 
that the overall risks associated with such underground injection are 
low. The factors on which this determination of ``low risk'' was based 
include: The quality of the treated wastewater and the contaminants 
that are found in wastewater; the reduction in certain contaminants 
provided by secondary and, for some facilities, advanced treatment; the 
estimated time of travel for wastewater to move vertically to USDWs; 
and the anticipated reduction in contaminant concentration that occurs 
in the deep underground environment.
    In comparison, the other wastewater management options EPA assessed 
in the Relative Risk Assessment do not offer clear environmental 
advantages and are more expensive than underground injection. The 
Relative Risk Assessment found that the other wastewater management 
options each pose specific (yet low) risks to human health and the 
environment that do not necessarily make them preferable to underground 
injection. For example, disposal of secondary treated wastewater into 
surface water or the ocean, rather than deep injection, carries 
nutrients that feed algae blooms that, in turn, can deplete the oxygen

[[Page 70523]]

necessary for plant life. Fish need plants for food to live. To limit 
these nutrients in critical surface water areas (such as Tampa Bay), 
municipalities are required to provide advanced wastewater treatment 
with nutrient removal, which is more expensive than underground 
injection, even when the effluent is treated by high-level 
disinfection. It is also important to note that, while ocean outfalls 
have not been prohibited by Florida statute or regulation, no new 
outfalls have been approved and constructed for more than 15 years. 
Therefore, it is questionable whether additional ocean disposal would 
even be an option, if injection were no longer allowed.
    In order to continue to allow underground injection, the question 
becomes how to allow it and, at the same time, ensure the protection of 
USDWs. There are two basic approaches within the UIC Program for doing 
this. The first approach, which is currently employed for all Class I, 
II, and III wells, is to ensure that injected fluids are confined and 
isolated from USDWs. This approach is based on the premise that the 
quality of the injected fluids is poor and the movement of such fluids 
into a USDW is likely to endanger its use. To implement this approach, 
the standard of protection for Class I, II, and III wells is to prevent 
any movement of fluid into a USDW, as summarized in Section II.B of 
this preamble.
    In the absence of today's rule, the requirement for no fluid 
movement would remain the basic approach for regulating Class I 
municipal disposal wells and be the requirement that owner/operators 
would have to meet in order to remain in operation. Enforcing this 
approach would, in effect, require these wells to shut down, because 
isolation from USDWs cannot be ensured due to the Florida geology and 
available monitoring data at some sites as described above. Shutting 
down the injection wells would in turn force the municipal wastewater 
to be managed by other means, which would not provide any net 
environmental benefits, would increase the risks to surface water and 
coastal ecosystems, and would increase treatment and other costs to 
owners and operators of domestic wastewater treatment facilities. The 
Relative Risk Assessment found that the other wastewater management 
options, including underground injection, pose a low risk to human 
health and the environment. Shutting down the wells would result in a 
different, but not necessarily better, alternative. All of this, in 
EPA's view, provides a compelling argument for an alternate approach.
    The alternate approach, which is used when adequate confinement 
between the permitted injection zone and USDWs cannot be assured, is 
the rigorous control of the quality of the injected fluids. Under this 
approach, movement of fluids into USDWs is known or suspected, but that 
movement should not endanger the USDWs because the quality of the 
injectate is not a concern. This is the basic approach employed by EPA 
and the States for Class V wells, most of which release fluids into or 
above USDWs. Today's rule adopts a similar approach that relies on an 
appropriate level of wastewater treatment prior to injection in order 
to assure the protection of USDWs. While changing to this approach does 
represent a shift in the form of the controls employed for certain 
Class I municipal disposal wells in certain parts of Florida, it is not 
undercutting protection of USDWs, weakening the UIC Program 
requirements, or introducing a new standard. To the contrary, it is 
simply taking a standard approach long used in the UIC Program and 
applying it to this narrow category of Class I wells as a way to 
prevent endangerment where the existing regulations do not offer any 
flexibility.
    Today's rule, therefore, provides a regulatory alternative to 
owners and operators of Class I municipal disposal wells in specific 
areas of Florida that have caused or may cause unauthorized movement of 
fluid into a USDW. Because operation of such wells is prohibited by 
existing Federal UIC regulations, the new rule offers owners and 
operators the ability to continue to operate their wells, provided they 
meet requirements to protect USDWs by treating their waste according to 
these requirements.

B. Operating Requirements

    Today's rule provides owners and operators of Class I municipal 
disposal wells in certain counties of Florida whose injection has 
caused or may cause the movement of fluids into a USDW the option to 
(1) develop and implement a pretreatment program that is no less 
stringent than the requirements of Chapter 62-625, F.A.C. or 
demonstrates that they have no significant industrial users as defined 
in Chapter 62-625, F.A.C., and (2) treat the injected wastewater using 
secondary treatment in a manner that is no less stringent than the 
requirements of Florida Rule 62-600.420(1)(d), and use high-level 
disinfection in a manner that is no less stringent than the 
requirements of Florida Rule 62-600.440(5)(a)-(f). To continue 
injecting, owners and operators of facilities that have caused or may 
cause fluid movement into a USDW will have five years from the 
effective date of this rule to install the required treatment; these 
owners and operators have already been notified by the UIC Program 
Director that their injection wells have caused or may cause fluid 
movement into USDWs. If, at a later time, the Director determines that 
other Class I municipal disposal wells in the targeted areas of Florida 
have caused or may cause movement of fluids into USDWs, owners and 
operators of those wells will be so notified by the Director and will 
have five years from the date of that notification to install high-
level disinfection. See new 40 CFR 146.15(d)(2). During the time 
between such notification and the time high-level disinfection becomes 
operational at these facilities, the Director has the authority to 
require additional operating requirements on a site-specific basis in 
order to protect USDWs.
    These new provisions comprise Option 1 from the July 7, 2000, 
proposed rule as refined by the alternative treatment standard proposed 
in the May 5, 2003, NODA. Option 1 of the proposed rule proposed 
additional treatment, beyond secondary treatment, in the form of four 
suboptions. All four suboptions proposed high-level disinfection with 
advanced treatment as defined by two levels of BOD reduction with and 
without nutrient removal. The alternative treatment level in the NODA, 
like all of the suboptions in the proposed rule, also called for high-
level disinfection. However, the alternative treatment level in the 
NODA called for high-level disinfection as it is currently prescribed 
by the State, which includes a reduction in TSS levels to 5 ppm. This 
TSS level is substantially equivalent to the two suboptions in the 
proposed rule that called for high-level disinfection and advanced 
treatment defined by reduction in BOD to less than 10 ppm. In selecting 
this option for high-level disinfection, as first prescribed in Option 
1 of the proposed rule and refined in the NODA, EPA agrees with 
commenters who recommended that EPA require additional or enhanced 
treatment because of concerns for insufficient confinement, as well as 
uncertainties regarding the areal extent of movement of injected 
wastewater in the subsurface. The selected approach, therefore, 
requires an additional or enhanced level of treatment that will provide 
an effluent quality that would not endanger USDWs. As discussed in the 
preceding section of this preamble, an approach that focuses on 
effluent

[[Page 70524]]

quality is a standard approach used in the Federal UIC program when 
adequate confinement cannot be assured.
    The final operating requirements, however, do not call for the non-
endangerment demonstration that was included within Option 1 of the 
July 7, 2000, proposal. As envisioned in the proposal, this non-
endangerment demonstration would have focused on any contaminants that 
still exceed national drinking water regulations or other health-based 
standards after advanced wastewater treatment. However, the proposal 
did not rigorously define the level of advanced treatment that would be 
required, instead the proposal states that ``advanced treatment is any 
level of treatment in excess of secondary treatment'' (65 FR 42239, 
July 7, 2000). At the same time, the four alternative treatment 
standards proposed as part of Option 1 provided numerical criteria for 
BOD removal, but did not provide any criteria or other specific details 
to define the required level of ``disinfection.'' By adopting the 
definition of ``high-level disinfection'' from the Florida regulations, 
today's final rule imposes a specific and widely accepted standard for 
ensuring the removal of microorganisms, which the Relative Risk 
Assessment (completed after the proposal) now shows are the primary 
contaminants of concern. As a result, EPA does not believe that the 
final rule needs to require a non-endangerment demonstration focusing 
on contaminants after treatment. EPA is confident that the problem will 
be adequately solved by the treatment itself. Instead, the Florida UIC 
Program Director is left with the flexibility that he or she currently 
has to require such a demonstration, or any other measure deemed 
necessary, to protect USDWs on a case-by-case basis.
    The following subsections provide additional discussion of two key 
aspects of these final operating requirements. The first discusses the 
selected requirement for pretreatment, secondary treatment, and high-
level disinfection, including the rationale for adopting the Florida 
standard; the rationale for not requiring the removal of BOD, 
nutrients, or other contaminants besides microorganisms; and the 
rationale for phasing in the new treatment over time. The second 
subsection elaborates on EPA's rationale for not adopting the 
hydrogeologic demonstration approach discussed in the proposal and 
NODA.
1. Selected Approach
    The following sections outline EPA's rationale for the specific 
requirements in today's rule, including requiring pretreatment, 
secondary treatment, and high-level disinfection, as well as the 
rationale for not requiring the removal of other contaminants and why 
the new treatment will be phased in over time.
    a. Rationale for Requiring Pretreatment of Wastewater. Today's rule 
includes requirements for owners and operators of facilities that wish 
to be covered by the alternative endangerment standard to comply with 
existing pretreatment requirements for those facilities. EPA found that 
almost all (14 of the 16) facilities that have caused or may cause 
fluid movement into a USDW already have pretreatment programs in place, 
and the remaining two facilities have conducted surveys indicating that 
they are not handling waste streams from significant industrial users. 
EPA believes that existing pretreatment programs at the affected 
facilities are adequate and necessary to ensure that a variety of 
contaminants that might appear in wastewater do not endanger USDWs.
    EPA agrees with commenters who suggested that requiring industrial 
users to pretreat their wastewater would reduce the chance of 
contaminating USDWs and reduce the costs to municipal treatment works. 
EPA also agrees with several commenters who advocated extending 
pretreatment requirements to facilities with flows of less than 5 MGD. 
EPA disagrees with commenters who opposed the pretreatment 
requirements, and who cited concerns about the ineffectiveness of 
pretreatment programs to prevent fluid movement or protect public 
health. EPA believes that it is important for significant industrial 
users to pretreat their wastewater to remove those contaminants that 
would not be consistently removed by a municipal wastewater treatment 
facility before they are injected.
    Therefore, today's rule requires that owners and operators develop 
and implement a pretreatment program that is no less stringent than the 
State's requirements in Florida Rule 62-625, unless they have no 
significant industrial users as defined in that chapter, if they wish 
to avail themselves of the alternative endangerment standard. The State 
developed these pretreatment requirements to ensure that contaminants 
are prevented from endangering the public. EPA is adopting pretreatment 
provisions consistent with those requirements under the authority of 
the SDWA to prevent contaminants from endangering USDWs.
    b. Rationale for Requiring Secondary Treatment of Wastewater. 
Florida currently requires Class I municipal wastewater facilities to 
apply secondary treatment prior to injection, and this requirement will 
stay in place regardless of the addition of the high-level disinfection 
requirement. Applying secondary treatment, which requires BOD reduction 
to 25 ppm and TSS reduction to 30 ppm, is necessary for high-level 
disinfection to work. Without significant reduction in suspended solids 
that is first achieved by secondary treatment and is further addressed 
by filtration, the standards for compliance with the high-level 
disinfection standard of 5 ppm of total suspended solids in this rule 
could not be achieved.
    EPA's July 2000 proposed rule assumed that domestic wastewater 
effluent injected into Class I municipal disposal wells would have been 
subject to secondary treatment. See new 40 CFR 146.15(c)(3). Although 
some commenters expressed opposition to the options for advanced 
treatment proposed, no commenters expressed opposition to secondary 
treatment. Since the State already requires secondary treatment, and 
all Class I municipal well facilities provide secondary treatment, no 
facilities would need to upgrade their plants to meet this requirement.
    c. Rationale for Using the Florida Definition of High-Level 
Disinfection. The record supporting this rule--including available 
monitoring data, the Relative Risk Assessment, and public comments--
provides compelling evidence that additional wastewater treatment to 
remove pathogenic microorganisms is needed to ensure that continued 
Class I municipal disposal in certain parts of Florida does not 
endanger USDWs. EPA agrees with concerns expressed by many commenters 
that the quality of secondary-treated wastewater poses a threat to 
USDWs in certain parts of Florida in light of information that injected 
fluid at some sites is not being confined to the injection zone. In 
particular, pathogens may remain in wastewater following secondary 
treatment and can threaten USDWs if injected in certain parts of 
Florida. As found in the Relative Risk Assessment, the degree to which 
pathogenic microorganisms are removed by wastewater treatment is the 
main factor determining the risk associated with injection.
    The Relative Risk Assessment identified pathogens as being of 
concern not only because of their high concentration in secondary-
treated wastewater, but also because of uncertainties associated with 
fluid movement and their fate within the subsurface of certain parts of 
Florida.

[[Page 70525]]

EPA acknowledges, as noted by some commenters, that there will be some 
level of pathogen die-off in the deep subsurface and that a shallow 
confining system may serve as a barrier to the movement of 
contamination in some locations. However, EPA believes that there is 
incomplete information about the movement and fate of pathogens in the 
subsurface. This lack of information prevents EPA from concluding that 
pathogen die-off is sufficient to protect USDWs in the areas of Florida 
targeted by today's rule.
    Based on these concerns, EPA has determined that owners and 
operators of Class I municipal disposal wells in specific areas of 
Florida must provide high-level disinfection if their injection has 
caused or may cause fluid movement into a USDW. EPA has decided to 
adopt Florida's definition of high-level disinfection in today's rule 
because it effectively addresses the risk of pathogens better than any 
of the other proposed alternatives. It also offers the important 
advantage of being consistent with the standards already adopted and 
implemented in Florida, thereby eliminating any confusion or disruption 
to existing programs.
    The specific definition of high-level disinfection, as detailed in 
Florida Rule 62-600.440(5)(a)-(f), includes requirements to: (1) Reduce 
total suspended solids to 5.0 mg/l or less before the application of 
the disinfectant to maximize disinfection effectiveness which, (2) 
result in an effluent with fecal coliform values that are below 
detectable levels in 75 percent of the samples, and that are never 
above 25 organisms per 100 ml in any one sample; and (3) where chlorine 
is used for disinfection, assure rapid and uniform mixing with a 
minimum dose of 1 mg/l of free chlorine for a minimum contact time of 
15 minutes. EPA is confident that requiring high-level disinfection, 
defined in this way (no less stringent than Florida Rule 62-
600.440(5)(a)-(f)), will satisfactorily address the risk associated 
with microbial pathogens released by Class I injection wells in the 
targeted areas of Florida. Viruses and bacteria will be inactivated 
through high-level disinfection, the effectiveness of which is ensured 
by operational criteria (i.e., fecal coliform limits) and the 
requirement to filter the wastewater beforehand. Filtration is also the 
accepted method for the removal of protozoa (e.g., Cryptosporidium and 
Giardia).
    The State of Florida found, after significant public comment and 
evaluation by the State Department of Health, that high-level 
disinfection thus defined will significantly address pathogens and 
reduce the chance of waterborne disease. For this reason, the State 
allows wastewater that has been treated by high-level disinfection to 
be reclaimed for reuse purposes where the public has access, such as 
watering lawns and golf courses. In addition, Florida requires domestic 
wastewater systems to use high-level disinfection when they discharge 
effluent above or directly into USDWs using Class V wells or when they 
discharge to certain surface waters, such as Tampa Bay. It is important 
to note, however, that these standards for high-level disinfection are 
not equivalent to the standards that apply to drinking water. Florida 
requires that valves and outlets that use reclaimed water be painted 
purple and labeled with ``Do Not Drink'' warning signs. Reclaimed water 
and water injected into Class I wells that meet the standards of 
today's rule will have the same water quality resulting from 
pretreatment, secondary treatment, filtration and high-level 
disinfection to ensure that they will not endanger USDWs.
    In contrast to the standards for high-level disinfection, Florida 
also has standards for basic disinfection and intermediate 
disinfection, which EPA believes are not appropriate for today's rule. 
The State requires basic disinfection for certain surface water 
discharge and offshore ocean disposal, or for reclaimed wastewater used 
for other purposes where the public will not be exposed, such as 
cooling water use. Basic disinfection does not limit the quantity of 
TSS in the effluent and requires half the chlorine dose of high-level 
disinfection. Facilities that provide basic disinfection must be 
designed to result in a fecal coliform value of not more than 200 
organisms per 100 ml.
    Facilities that use intermediate disinfection must be designed for 
rapid and uniform mixing of chlorine with a minimum dose of 1 mg/l free 
of chlorine for a minimum contact time of 15 minutes, as with high-
level disinfection. However, no TSS limitations are set, so the 
facilities avoid the expense of filtration. Facilities that provide 
intermediate disinfection must be designed to result in not more than 
14 fecal coliform values per 100 ml. In contrast, high-level 
disinfection treatment facilities are designed to result in zero fecal 
coliform values per 100 ml. Intermediate disinfection is used in a few 
``middle-ground'' instances where public access is restricted but could 
possibly occur; high-level disinfection is required where there is 
public access; and basic disinfection is allowed where public access is 
clearly restricted. One such instance is discharge to wetlands where 
public access is restricted.
    EPA is adopting the State's standard for high-level disinfection 
rather than basic or intermediate disinfection because high-level 
disinfection is more appropriate for effluent injected into wells that 
have caused or may cause fluid movement into a USDW. Such a standard 
applied to effluent that moves into a USDW from below is consistent 
with standards the State applies to effluent that is released into or 
above USDWs by Class V wells. Florida's definitions and standards for 
basic disinfection and intermediate disinfection were established by 
the State to apply to situations where wastewater would be isolated and 
not come in contact with humans. The State anticipated the possibility 
that humans could inadvertently come into contact with water that has 
achieved high-level disinfection despite warnings. The reclaimed 
wastewater is not intended for regular ingestion by the population and 
thus does not require that level of advanced treatment needed to meet 
drinking water standards prior to discharge. EPA believes that the 
injection scenario is similar to use of reclaimed water in that, 
because of the depths at which wastewater is injected, the possibility 
of inadvertent human ingestion prior to additional treatment is remote.
    However, the lack of control over the movement of fluids into USDWs 
in certain parts of Florida and the uncertainties about the location, 
concentration, and survivability of waterborne pathogens injected in 
those areas call for the degree of disinfection and filtration that is 
defined by high-level disinfection. As noted above, without the 
filtration that goes with high-level disinfection, there is no 
assurance that the treatment would effectively remove pathogenic 
protozoa, such as Cryptosporidium and Giardia.
    d. Rationale for Not Requiring the Removal of Other Contaminants. 
Although pretreatment, secondary treatment, and high-level disinfection 
will remove many contaminants that may be present in municipal 
wastewater, EPA agrees with commenters who said that a large variety of 
contaminants, such as pharmaceutical products and disinfection 
byproducts, that may be present in treated municipal wastewater, may 
not be removed.
    Today's final rule does not specifically require all affected 
facilities to install treatment to remove these other contaminants for 
four main reasons: (1) The Relative Risk

[[Page 70526]]

Assessment found that the only contaminants that posed a potential 
threat were pathogenic microorganisms; (2) Class I municipal disposal 
wells are precluded from injecting listed or characteristically 
hazardous waste streams; (3) Class I municipal disposal wells are 
allowed to inject only wastewater that has received a level of 
treatment, specified in individual permits, deemed necessary by the 
Director to prevent endangerment; and (4) many other contaminants are 
addressed through EPA's existing pretreatment regulations (see Section 
IV.B.1.a, above) . If the Director finds that any other contaminants 
pose a threat to USDWs, that threat can be addressed on a site-specific 
basis under existing authorities.
    In the July 7, 2000, notice, EPA proposed four treatment 
alternatives that prescribed varying levels of BOD removal. This 
approach seemed reasonable because BOD, along with TSS, is a universal 
measure for defining levels of wastewater treatment and contaminant 
removal. In this sense, EPA does not agree with commenters who said 
that BOD cannot be used as a parameter for defining the level of 
treatment necessary to protect drinking water. However, the Agency does 
acknowledge, as several commenters pointed out, that a BOD standard 
would not necessarily achieve the objectives of today's final rule. EPA 
believes that the State's definition and standards for high-level 
disinfection which uses a standard for fecal coliform and a TSS limit, 
rather than a BOD limit, sufficiently defines the level of treatment 
that is necessary to protect USDWs.
    The July 7, 2000, notice also proposed nutrient (nitrogen and 
phosphorus) removal as an element of some of the treatment 
alternatives. However, EPA agrees with those commenters who said that 
nutrient removal may not be necessary based on two findings from the 
Relative Risk Assessment: (1) There is not strong evidence that Class I 
injection has caused or may cause exceedances of the nitrate MCL in 
USDWs; and (2) there is not strong evidence that nutrients released by 
Class I injection wells are migrating into surface waters. These 
findings do not necessarily mean that nutrients are never a potential 
concern, only that there is not sufficient evidence to compel a 
nutrient removal standard for all wells. Therefore, today's rule does 
not require nutrient removal. However, the Director retains the 
flexibility and discretion under current authority to address nutrients 
on a case-by-case basis if necessary to protect USDWs.
    e. Rationale for Phasing In the New Treatment Over Time. EPA agrees 
with commenters who said that it will take time for facilities to 
install high-level disinfection systems. Therefore, the final rule 
requires owners and operators wishing to avail themselves of today's 
final rule's alternative endangerment standard to have high-level 
disinfection installed and operating within five years of the rule's 
effective date, if they have already been notified by the Director that 
they have caused or may cause fluid movement, or within five years of 
the time they are so notified. EPA selected five years because it is 
consistent with the time that has been determined to be needed to 
install high-level disinfection at Miami-Dade Water & Sewer Department, 
South District Wastewater Treatment Plant. In the meantime, the 
Director has the authority to require additional operating requirements 
on a site-specific basis to address any potential for endangerment 
until the additional treatment goes into operation.
2. In-Depth Hydrogeologic Demonstrations
    Today's rule does not provide the option for facility owners and 
operators to use a hydrogeologic demonstration to show that injection 
either will not cause fluids to enter USDWs, or if that cannot be 
shown, will not cause USDWs to exceed MCLs or other health-based 
standards (i.e., will not endanger USDWs). This approach was originally 
proposed as Option 2 and discussed further in the NODA. EPA has instead 
determined that, where injection has caused or may cause fluid movement 
into USDWs, pretreatment, secondary treatment, and high-level 
disinfection is the only effective alternative to the ``no-movement'' 
standard as a means of ensuring non-endangerment.
    EPA does not agree with commenters who support the use of 
hydrogeological demonstrations in lieu of wastewater treatment. EPA 
believes that existing compliance monitoring programs are not 
sufficient to protect against movement of contaminants into USDWs, nor 
do they provide sufficient early warning of contamination. To 
demonstrate that injected fluids are not migrating into and endangering 
a USDW, a facility would need to show the full areal extent of the 
fluids' movement and its quality. However, as discussed in the NODA, 
ground water monitoring wells at most deep well facilities in Florida 
are only intended to provide some initial indication of fluid movement 
and are not capable of characterizing the full areal extent of fluid 
movement, especially where natural conduits for flow are present. 
Moreover, once any contamination is detected, it may be too late to 
prevent endangerment.
    There are at least two other problems with relying on monitoring 
for this purpose. First, deep monitoring wells are very costly to site, 
design, and construct. As stated in the NODA, it is unclear whether it 
would be practicable to provide a sufficient number of additional 
ground water monitoring wells to provide the information needed to 
demonstrate that injection has not caused fluid movement, or that USDWs 
are not being contaminated at sites where natural conduits for flow 
exist. Second, there is a potential that monitoring wells installed for 
this purpose could themselves create artificial conduits for fluid 
movement. Additional deep monitoring wells would have to perforate all 
shallow confining layers as they are installed, posing the risk of 
contamination along the well borehole to more shallow aquifers.
    EPA also does not believe that modeling can provide an adequate 
demonstration in the complex geology of Florida. For example, in the 
Relative Risk Assessment, EPA used numerical modeling to simulate the 
time of travel for fluid to move vertically from the injection zone to 
USDWs and the depth of hypothetical public water supply wells. This 
modeling used input parameter values for porous media flow (relatively 
slow movement through small pore spaces) and for preferential flow 
(rapid movement through larger fissures, cracks, fractures, voids, and 
channels). The Agency found that the time of travel estimated from the 
preferential flow model matches actual experience fairly closely at 
Miami-Dade and Pinellas Counties. However, the modeling only simulated 
time of travel and did not show the full extent of the movement of 
injectate from specific sites. A more in-depth modeling effort to show 
the extent of vertical and horizontal movement of the hundreds of 
millions of gallons a day would require information on the location and 
extent of fissures, cracks, voids, and channels which is impossible, 
using current technologies, to obtain with any certainty. Therefore, 
the Relative Risk Assessment showed that a credible hydrogeological 
demonstration that would need to rely on this type of more in-depth 
modeling does not appear feasible at this time.
    Finally, in the public comments, EPA did not receive answers to key 
questions that it posed in the NODA as to whether hydrogeological 
demonstrations were feasible (i.e., whether they would work

[[Page 70527]]

or whether they were adequate for showing that there was no 
endangerment to USDWs). Commenters did not describe how the technical 
challenges and missing information regarding wastewater fate and 
transport could be overcome, or how the UIC Program Director might 
address these difficulties in his or her review and decisionmaking. 
With no new information on how to effectively use monitoring data or 
effectively simulate the location and extent of channels and solution 
cavities that are pervasive in Florida's complex geology, a final rule 
allowing demonstrations would establish an expensive and burdensome 
approval process. The Agency questions (based on all of the evidence 
cited above) whether that process would yield credible demonstrations. 
Before adopting this approach, EPA would need extensive credible 
evidence that facilities can provide demonstrations that would show 
where all, or a significant volume, of the fluid is located and that it 
does not endanger drinking water sources.
    Given these uncertainties about the subsurface geology of Florida, 
the ability of ground water monitoring to identify and characterize the 
full extent of fluid movement, and the ability of models to predict the 
movement of fluids in the Florida subsurface, EPA has determined that 
relying on hydrogeologic demonstrations would not be sufficiently 
protective of USDWs. Today's rule therefore takes the more conservative 
approach of requiring owners and operators in certain parts of Florida 
to treat their injected wastewater using pretreatment, secondary 
treatment, and high-level disinfection if they wish to avail themselves 
of the alternative endangerment standard.

C. Monitoring Requirements

    Today's rule does not add any new monitoring requirements to those 
that currently exist in the Federal regulations at 40 CFR 146.13. That 
section provides the Director with authority to require a site-specific 
monitoring program and periodic monitoring of ground water quality 
within the lowermost USDW and aquifer above the injection zone. The 
State's monitoring requirements and the procedures for modifying those 
requirements also remain in effect.
    In the July 7, 2000, notice, EPA did not propose any changes to the 
monitoring requirements for Class I municipal disposal wells. EPA did, 
however, consider adding more specific requirements for effluent and 
ground water monitoring than currently contained in 40 CFR 146.13, and 
asked for comments on the appropriate level of monitoring.
    EPA agrees with comments on the proposal saying that deep ground-
water monitoring does not, by itself, prevent endangerment, and thus is 
not prescribing new deep monitoring requirements as part of today's 
rule. EPA believes that the threat of USDW contamination in the 
targeted areas of Florida is best addressed by requiring the wastewater 
to be treated with pretreatment, secondary treatment, and high-level 
disinfection before it is injected. Nevertheless, the Agency recognizes 
that effluent and ground water monitoring provides an indication of 
whether treatment is sufficient and working as it was designed and 
whether fluid movement is occurring. EPA believes that the current 
authority provided to the Director in 40 CFR 146.13 for a site-specific 
monitoring program is sufficient and that appropriate monitoring 
requirements for effluent and ground water will be prescribed by the 
State in the facility permit. This provision allows the Director to 
require that certain parameters and contaminants be monitored and 
reported, some of which have specific health-based limits under the 
national primary drinking water regulations. The Director also has the 
authority to require other contaminants to be monitored in order to 
``protect the health of persons'' even if a national primary drinking 
water regulation has not been promulgated.

D. Rule Applicability

1. How Will the New Rule Affect New Wells?
    EPA agrees with several public comments on the Agency's proposal, 
to require any new Class I municipal disposal well constructed in one 
of the counties in Florida identified in today's rule to meet the 
pretreatment, secondary treatment, and high-level disinfection standard 
being established for existing wells. To be clear, the standard applies 
to any new Class I municipal disposal well in the counties in Florida 
identified in today's rule, not just new wells at facilities that (as 
determined and notified by the Director) have caused or may cause fluid 
movement, per new 40 CFR 146.16 in today's rule.
    Contrary to other public comments, EPA does not believe that 
applying the rule to new wells will prohibit new facilities or wells 
from being constructed. EPA believes that new wells in the identified 
counties where there is a history of fluid movement can be constructed 
and operated to meet the new treatment standards as a way to ensure the 
protection of USDWs.
2. What Florida Counties Are Covered by the Final Rule?
    As mentioned previously, EPA did not receive any public comments 
regarding the proposed list of Florida counties to be targeted by the 
rule. Therefore, the rule is being finalized to apply only to 
publically and privately owned facilities in those counties listed in 
the proposal, as follows: Brevard, Broward, Charlotte, Collier, 
Flagler, Glades, Hendry, Highlands, Hillsborough, Indian River, Lee, 
Manatee, Martin, Miami-Dade, Monroe, Okeechobee, Orange, Osceola, Palm 
Beach, Pinellas, St. Johns, St. Lucie, Sarasota, and Volusia. These 
counties are being targeted because they have the unique geologic 
conditions that are predominated by carbonate rocks, as discussed 
above.

E. Reclassification of Wells That Have Caused Fluid Movement

    In today's action, EPA is promulgating new Class I requirements. In 
the NODA, EPA asked for comment on whether, based on the findings of 
the Relative Risk Assessment, wells with fluid movement should be 
regulated as Class I, Class V, or under provisions for both Class I and 
Class V.
    Public comments on this issue were mixed. Some commenters were in 
favor of reclassifying the wells as Class V, saying that the injection 
zone and confining layers are sufficiently similar to be considered a 
single formation. Other commenters were against reclassifying the wells 
as Class V, citing concerns that doing so would lead to greater 
reliance on injection as a wastewater disposal method or that Class V 
standards would provide less protection.
    After considering these different approaches and public comments, 
EPA believes the best approach is to keep the wells as Class I and 
impose the new requirements as a condition for future injection. As 
previously discussed in Section IV A, this approach does represent a 
change in the criteria (i.e., currently ``no fluid movement'') that 
apply to certain Class I wells in certain counties in Florida, but it 
embraces the long-standing approach of controlling injectate quality as 
a way to ensure protection when fluid movement is known or suspected. 
Therefore, EPA believes that the rule is protective and entirely 
consistent with measures used in the Federal UIC Program, does not 
undermine the goals or integrity of the Class I program, and does not 
set a dangerous precedent for other Class I

[[Page 70528]]

wells found to be causing fluid movement. Reclassifying the wells as 
Class V would provide no greater protection than this rule but would 
introduce substantial confusion and new burdens to well owners and 
operators and regulators, who would have to develop and implement 
substantially revised UIC programs.

V. Cost of the Rule

    In the absence of the availability of the regulatory alternative in 
today's rule, owners and operators with wells that have caused or may 
cause fluid movement to a USDW would need to find a way to operate so 
that the injected fluid does not move into a USDW. However, that simply 
cannot be done if the movement is a function of a lack of sufficient 
confinement. Owners and operators would face having to close their 
wells and adopt other disposal alternatives. For the purpose of 
estimating the cost of the final rule, EPA assumes that operators would 
have to use surface disposal, because Florida has not approved new 
ocean disposal pipelines for many years in order to protect its coral 
reefs and beaches.
    The economic analysis supporting today's rule compares the costs of 
compliance under the previous regulations (the baseline) with the costs 
of compliance under the new rule. The baseline scenario assumes that 
operators of affected wells would be required to abandon their 
injection wells and switch to surface disposal. Assumptions for 
estimating the cost of complying with today's rule include the addition 
of treatment necessary at each affected facility to meet the high-level 
disinfection requirements of Florida Rule 62-600.440(5)(a)-(f). Of a 
total of 42 Class I municipal disposal well facilities in Florida, EPA 
estimates that approximately 16 cause or may cause fluid movement into 
a USDW and therefore fall within the scope of this rule. EPA estimates 
costs only for those 16 facilities.
    To develop the cost estimates, EPA used Version 3.0 of EPA's W/W 
Costs Model, combined with a methodology recommended by the National 
Drinking Water Advisory Council (NDWAC). The W/W Costs Model generates 
capital and annual operations and maintenance (O&M) costs based on 
treatment technology, design and average daily flows, and chemical 
dose.
    EPA relied on information from Florida DEP to determine the number 
of wells that would likely be affected by the rule. The State reports 
that there has been confirmed fluid movement into USDWs from deep wells 
at three facilities. The State also reports that fluid has likely moved 
into USDWs from wells at another five facilities and that fluid has 
moved outside of the permitted injection zone into a non-USDW at 
another eight facilities.
    EPA also used relevant information from domestic wastewater 
facility permits, compliance monitoring data, and information about the 
availability of high-level disinfection to determine the required 
treatment upgrades for each facility. At many of these facilities, 
high-level disinfection capacity is already in place; at the remainder, 
if movement into the USDW is likely, high-level disinfection will be 
necessary if the well is to avail itself of the authorization to inject 
provided by this rule, once these requirements are adopted by Florida 
as part of its UIC program and approved by EPA. For this reason, EPA 
has included all 16 of the wells with varying degrees of fluid movement 
or suspected movement in the economic assessment for the rule. The 16 
facilities included in the cost assessment are for the purpose of 
estimating the cost of today's rule. This rule does not specifically 
require any of these facilities to install additional treatment. The 
remaining wells in Florida with no fluid movement outside the injection 
zone may never have fluid movement detected in deep monitoring wells, 
or, over a period of years and decades, some will show fluid movement. 
Due to this level of uncertainty, EPA did not include them in the 
economic assessment for this rule. EPA does not believe that owners and 
operators will incur additional costs due to the pretreatment 
requirements of this rule, because the 16 facilities with varying 
degrees of fluid movement or suspected movement already have a 
pretreatment plan in place or have no significant industrial users.
    Based on the cost analysis, today's rule is significantly less 
costly than the baseline requirements. The table below presents a 
summary of the total capital and annualized costs (at two discount rate 
scenarios--3 percent and 7 percent) for the baseline case and under 
today's rule. The cost savings are calculated by subtracting costs for 
the injection requirements associated with today's alternative approach 
from the baseline case. As the table shows, the costs for meeting the 
new requirements for 14 of 16 existing facilities, that are not already 
required to install additional wastewater treatment, where there is 
some form of fluid movement or suspected movement is $27.7 million in 
capital costs and $7.2 million annually (3 percent discount rate), 
including O&M, as compared to the baseline costs of $132.2 million in 
capital costs and $15.2 million annually (3 percent discount rate). At 
the 7 percent discount rate, the annualized capital costs and O&M costs 
are $7.9 million. Thus, today's alternative represents a savings of 
$104.5 million in capital costs and $8.0 million annually at the 3 
percent discount rate ($12.6 million at the 7 percent discount rate). 
EPA's complete cost estimation document is in the Florida UIC docket.

----------------------------------------------------------------------------------------------------------------
                                          Total cost  (in millions)         Average cost  per facility--based on
                                   ---------------------------------------     14 facilities *  (in millions)
                                                     Annualized costs     --------------------------------------
                                                   (annualized capital +                    Annualized costs
             Scenario                 Capital              O&M)                          (annualized  capital +
                                       costs    --------------------------   Capital              O&M)
                                                                              costs    -------------------------
                                                      3%           7%                        3%           7%
----------------------------------------------------------------------------------------------------------------
    Baseline: Abandon injection          $132.2        $15.2        $20.6         $9.4         $1.1         $1.5
     wells and switch to surface
     disposal.....................
    Today's rule: Continue                 27.7          7.2          7.9          2.0          0.5          0.6
     injecting after treating with
     high-level disinfection......
                                   --------------
        Cost Savings..............        104.5          8.0         12.6          7.5          0.6          0.9
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not appear to add due to independent rounding.
Costs are annualized over 20 years.
* Two of the 16 affected facilities are under a consent order and are excluded from the cost analysis.


[[Page 70529]]

    EPA solicited comments on the cost estimation approach. A few 
commenters provided input on costs at specific affected facilities, and 
several general comments were offered on the cost analysis, including 
that it is overly simplistic, given the complexity of the rule. Many 
commenters believed the cost of the rule as proposed was too high. The 
comment response documents in the Florida UIC docket provide a more 
complete summary of and response to these comments on the cost 
analysis.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.
    One comment was submitted on this topic, stating that the proposed 
rule is a significant regulatory action. The commenter believes the 
rule will create a serious inconsistency or otherwise interfere with an 
action by another agency and will raise novel legal and policy issues. 
The commenter did not provide any specific information in support of 
the comment. EPA does not agree with this comment. Providing this 
alternative set of requirements for certain Class I wells in Florida 
does not create any inconsistency with the rest of the UIC program, nor 
does it raise novel issues triggering this Executive Order. Today's 
alternative applies the Agency's long-standing Class V endangerment 
test to a class of municipal disposal wells that are unique to Florida. 
That these wells are suspected of injecting below formations without 
adequate confinement makes application of the Class V standard both 
reasonable and appropriate. As noted in Section V above, the Agency 
estimates that implementing the selected option will result in a 
savings of $104.5 million in capital costs and $8.0 million annually.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to Office of Management and Budget (OMB) under 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information 
collection requirements are not enforceable until OMB approves them.
    The ICR estimates monitoring, demonstration, reporting, and 
recordkeeping burdens and costs for Class I municipal disposal well 
operators in selected parts of Florida associated with today's rule. 
Class I municipal disposal well operators must submit this information 
per Sec.  144.51 of the CFR. Information regarding wastewater quality, 
treatment, and migration will be collected as outlined in the rule for 
review by the State of Florida as primacy agent. Under the rule, the 
Primacy State would be required to revise and resubmit a UIC program 
application for Class I wells.
    Information collected under SDWA and, by extension, this ICR is 
expected to be used by EPA and the State of Florida to help ensure the 
maintenance of clean, safe public drinking water supplies.
    Operators of injection wells may claim confidentiality, as provided 
in section 144.5, Confidentiality of Information. If confidentiality is 
requested, the information is treated in accordance with the provisions 
of 40 CFR part 2, Public Information. Information collected under this 
ICR is intended for the Agency's and/or State's internal use and there 
are no plans to routinely release or publish any of the data. However, 
if no claim of confidentiality is made at the time of submission, the 
information can be made available to the public without further notice.
    EPA estimates that the average annual burden on Class I municipal 
disposal well operators (which includes public and private entities) 
and the State of Florida associated with this rule will be 2,003 hours. 
This is based on an estimate that one State, Florida, will need to 
provide 6 responses each year at 88.4 hours per response. It is also 
estimated that each of the 16 Class I municipal disposal well operators 
will need to provide an average of 10.7 responses each year at an 
average of 138 hours per response. The labor burden is estimated for 
activities associated with reading and understanding the rule, 
performing and reviewing monitoring, and meeting primacy requirements. 
No respondents are expected to incur capital or O&M costs to complete 
information collection requirements. Burden means the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is 
approved by OMB, the Agency will publish a technical amendment to 40 
CFR part 9 in the Federal Register to display the OMB control number 
for the approved information collection requirements contained in the 
rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's action on small 
entities, a small entity is defined as: (1) A small business that is 
primarily engaged in waste management services as defined by NAICS code 
562998 with annual revenue less than $6 million according

[[Page 70530]]

to Small Business Administration size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    Of a total of 42 Class I municipal disposal well facilities in 
Florida, EPA estimates that approximately 16 cause or may cause fluid 
movement into a USDW and fall within the scope of this rule. As 
discussed in Section V, the economic impact of this action actually 
results in a cost savings to the Class I municipal disposal well 
facilities compared to the baseline, i.e., complying with existing UIC 
regulations. Because Class I municipal disposal well facilities that 
may avail themselves of the authorization to inject provided by this 
rule are only affected if they cause or may cause fluid movement 
prohibited by present law, EPA has determined that the effect on small 
entities will be positive to the extent they are impacted. If the 
entity chooses not to follow these new requirements, the legal status 
of its continued operations is not impacted by the rule. We have 
therefore concluded that today's final rule either will have no effect 
on or, in the alternative, will relieve regulatory burden for all small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most 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.
    Today's rule contains no Federal mandate (under the provisions of 
Title II of the UMRA) for State, local, and Tribal governments or the 
private sector. Because the authorization to inject provided for by 
today's rule is optional on applicants, the costs incurred by an entity 
in conjunction with such authorization to inject under the rule are 
discretionary, not mandated. The total cost impact, in comparison to 
other alternatives to provide effective wastewater disposal, is 
anticipated to be positive for those entities that choose to avail 
themselves of the option provided by this rule. This rule will reduce 
the burden imposed by the current regulations. Thus, today's rule is 
not subject to the requirements of sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. This rule is not targeted at small governments. It offers 
owners and operators of Class I municipal disposal wells in certain 
parts of Florida that inject domestic wastewater effluent an 
alternative method of compliance with the existing UIC rules, which 
prohibit fluid movement, without requiring the facilities to cease 
injection and abandon their existing Class I municipal disposal wells. 
This rule will provide them with a less burdensome alternative for 
compliance. Thus, today's rule is not subject to the requirements of 
section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This rule does not have Federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. The rule allows for an optional 
alternate method for the State of Florida to use to ensure that no 
owner and/or operator would endanger a USDW by injection of domestic 
wastewater effluent into a Class I municipal disposal well. EPA is not 
requiring that an owner and/or operator use this authorization, but 
rather is providing options that owners and/or operators of existing 
Class I municipal disposal wells may wish to use in order to maintain 
their injection operations. Thus, the requirements of Section 6 of the 
Executive Order do not apply to this rule. Although Section 6 of 
Executive Order 13132 does not apply to this rule, EPA did consult with 
the Florida Department of Environmental Protection (FDEP) in developing 
this rule and FDEP agrees with EPA's approach.
    Two public comments were submitted on this topic. Both comments 
suggest EPA should revise its determination under Executive Order 
13132, and claim the rule imposes significant burdens and costly 
solutions on the State of Florida. One commenter suggested that EPA 
modify its final rule to allocate all permitting decisions solely to 
the State.

[[Page 70531]]

    In response, today's rule does not change the current process by 
which the State of Florida exercises its primacy over injection 
operations in the State. While the State would have to revise and 
resubmit a UIC program application for Class I wells if it wished to 
provide owners and operators of Class I municipal disposal wells in 
Florida with the optional authorization contained in this rule, it is 
anticipated that the Director will retain authority over Class I 
injection in Florida. In the spirit of Executive Order 13132, and 
consistent with EPA policy to promote communications between EPA and 
State and local governments, EPA solicited comment on the proposed rule 
from State officials.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.''
    This final rule does not have Tribal implications as specified in 
Executive Order 13175. At present, there are no Class I injection wells 
used for domestic wastewater effluent disposal in Florida that are 
owned or operated by an Indian Tribal community. The intent of this 
rule is to protect all USDWs from endangerment caused by Class I 
municipal disposal wells, including those on Tribal land.

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

    Executive Order 13045: ``Protection of Children from Environmental 
Health and Safety Risks'' (62 FR 19885, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to Executive Order 13045 because it 
is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. The rule provides an optional 
authorization for certain Class I wells in Florida to inject domestic 
wastewater effluent in accordance with regulatory requirements designed 
to prevent endangerment of underground sources of drinking water. The 
criteria established in the rule safeguard these resources for all 
potential users, including but not limited to children.
    Three comments were received on this topic from environmental 
advocates and a citizen. All three suggest that the proposal has not 
adequately assessed potential risk to children's health, or that 
contaminants in injected wastewater may have a disproportionate effect 
on vulnerable populations, including children. EPA disagrees that Class 
I municipal disposal of wastewater that has been subjected to 
pretreatment, secondary treatment, and high-level disinfection as a 
result of this rule will have a disproportionate impact on children or 
any other vulnerable population. By requiring pretreatment, secondary 
treatment, and high-level disinfection as a condition of future 
operation of the targeted injection wells, the rule is ensuring the 
protection of USDWs and the health of children who may rely on these 
USDWs as drinking water sources.

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

    This rule is not subject to Executive Order 13211, ``Actions That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public 
Law. No. 104-113, 12(d), (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are [Underground Injection Control 
Program--Revision of Federal Underground Injection Control Requirements 
for Class I Municipal Disposal Wells in Florida Page 62 of 62.] 
technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
action does not involve technical standards. Therefore, EPA does not 
consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on December 22, 2005.

List of Subjects in 40 CFR Part 146

    Environmental protection, Hazardous waste, Indians-lands, Water 
supply.

    Dated: November 15, 2005.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth in the preamble, 40 CFR part 146 is amended 
as follows:

PART 146--UNDERGROUND INJECTION CONTROL PROGRAM: CRITERIA AND 
STANDARDS

0
1. The authority citation for part 146 continues to read as follows:

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

Subpart B--Criteria and Standards Applicable to Class I Wells

0
2. Section 146.15 is added to Subpart B to read as follows:


Sec.  146.15  Class I municipal disposal well alternative authorization 
in certain parts of Florida.

    (a) Existing Class I municipal disposal wells in specific 
geographic regions as defined in paragraph (f) of this section may 
continue to inject without violating the regulatory prohibitions in 
Parts 144 and 146 of this chapter against the

[[Page 70532]]

movement of injection or formation fluids into a USDW, provided that 
such wells meet the requirements of this section, even if the Director 
determines they have caused or may cause fluid movement into a USDW. 
Nothing in this section excuses such Class I municipal disposal wells 
from meeting all other applicable State and Federal requirements 
including 40 CFR 144.12(a).
    (b) For purposes of this section, an existing Class I municipal 
disposal well is defined as a well for which a complete UIC 
construction permit application was received by the Director on or 
before December 22, 2005.
    (c) For purposes of this section, the determination that a Class I 
municipal disposal well has caused or may cause movement of injection 
or formation fluids into a USDW may be made by the Director based on 
any relevant data available to him/her, including ground water 
monitoring data generated pursuant to regulatory requirements governing 
operation of Class I municipal disposal wells.
    (d) In order for a Class I municipal disposal well to qualify for 
authorization to inject pursuant to paragraph (a) of this section, the 
Owner/Operator of that well shall:
    (1) Develop and implement a pretreatment program that is no less 
stringent than the requirements of Chapter 62-625, Florida 
Administrative Code, or have no significant industrial users as defined 
in that chapter.
    (2) Treat the injectate using secondary treatment in a manner that 
is no less stringent than the requirements of Florida Rule 62-
600.420(1)(d), and using high-level disinfection in a manner that is no 
less stringent than the requirements of Florida Rule 62-600.440(5)(a)-
(f), within five years after notification by the Director that the well 
has caused or may cause fluid movement into a USDW.
    (e) Where the Director issued such notice for a well prior to 
December 22, 2005, in order for that well to qualify for authorization 
to inject pursuant to paragraph (a) of this section, the Owner/Operator 
shall:
    (1) Develop and implement a pretreatment program that is no less 
stringent than the requirements of Chapter 62-625, Florida 
Administrative Code, or have no significant industrial users as defined 
in that chapter; and
    (2) Treat the injectate using secondary treatment in a manner that 
is no less stringent than the requirements of Florida Rule 62-
600.420(1)(d), and using high-level disinfection in a manner that is no 
less stringent than the requirements of Florida Rule 62-600.440(5)(a)-
(f), within five years after December 22, 2005.
    (f) Authorization to inject wastewater into existing Class I 
municipal disposal wells pursuant to this section is limited to Class I 
municipal disposal wells in Florida in the following counties: Brevard, 
Broward, Charlotte, Collier, Flagler, Glades, Hendry, Highlands, 
Hillsborough, Indian River, Lee, Manatee, Martin, Miami-Dade, Monroe, 
Okeechobee, Orange, Osceola, Palm Beach, Pinellas, St. Johns, St. 
Lucie, Sarasota, and Volusia.

0
3. Section 146.16 is added to Subpart B to read as follows:


Sec.  146.16  Requirements for new Class I municipal wells in certain 
parts of Florida.

    Prior to commencing injection, any Class I municipal disposal well 
in one of the counties identified in Sec.  146.15(f) that is not an 
existing Class I municipal disposal well as defined in Sec.  146.15(b) 
of this section shall meet all of the requirements for existing wells 
seeking authorization to inject pursuant to Sec.  146.15.

[FR Doc. 05-23088 Filed 11-21-05; 8:45 am]
BILLING CODE 6560-50-P


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