[Federal Register: November 22, 2005 (Volume 70, Number 224)]
[Rules and Regulations]
[Page 70513-70532]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22no05-12]
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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:
marsh.nancy@epa.gov) 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:
whitehurst.lee@epa.gov). 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.
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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