[Federal Register: November 4, 2008 (Volume 73, Number 214)]
[Rules and Regulations]
[Page 65556-65565]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no08-18]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[EPA-R09-OW-2007-0248; FRL-8734-5]
Navajo Nation; Underground Injection Control (UIC) Program;
Primacy Approval
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving an
application from the Navajo Nation (``Tribe'') under Section 1425 of
the Safe Drinking Water Act (SDWA) for primary enforcement
responsibility (or ``primacy'') for the underground injection control
(UIC) program for Class II (oil and gas-related) injection wells
located within the exterior boundaries of the formal Navajo
Reservation, including the three satellite reservations (Alamo,
Canoncito and Ramah), but excluding the former Bennett Freeze Area, the
Four Corners Power Plant and the Navajo Generating Station; and on
Navajo Nation tribal trust lands and trust allotments outside the
exterior boundaries of the formal Navajo Reservation. (These areas are
collectively referred to hereinafter as ``areas covered by the Tribe's
Primacy Application.'')
DATES: This approval is effective December 4, 2008. The incorporation
by
[[Page 65557]]
reference of certain publications listed in the regulations is approved
by the Director of the Federal Register as of December 4, 2008.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R09-OW-2007-0248. All documents in the docket, including the
Decision Document, the Navajo Nation's Primacy Application and EPA's
supporting documentation, are listed on the http://www.regulations.gov
Web site. Although listed in the docket index, some information is not
publicly available, e.g., CBI or other information the disclosure of
which is restricted by statute. Certain other material, such as
copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, Ground Water Office (WTR-9), 75 Hawthorne Street,
San Francisco, CA 94105-3920. This Docket Facility is open Monday
through Friday, between 8 a.m. and 4 p.m., Pacific time excluding legal
holidays.
FOR FURTHER INFORMATION CONTACT: Kate Rao, U.S. Environmental
Protection Agency, Ground Water Office (WTR-9), 75 Hawthorne Street,
San Francisco, CA 94105-3920. Telephone number: 415-972-3533. E-mail:
rao.kate@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Regulated Entities
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North American
Examples of Industry
Category potentially regulated Classification
entities System
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State, Local, and Tribal State, local, and 924110
Governments. tribal governments
that own and operate
Class II injection
wells in the areas
covered by the
Tribe's Primacy
Application.
Industry...................... Private owners and 221310
operators of Class
II injection wells
in the areas covered
by the Tribe's
Primacy Application.
Municipalities................ Municipal owners and 924110
operators of Class
II injection wells
in the areas covered
by the Tribe's
Primacy Application.
------------------------------------------------------------------------
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 be potentially regulated by this action. Other types of entities
not listed in the table could also be regulated. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
II. Background
A. The Navajo Nation's Class II UIC Primacy Application
On October 18, 2001, the Navajo Nation submitted an initial
application for primacy for its UIC program for Class II wells. On
January 30, 2002, the EPA notified the Navajo Nation that its
application required revision, clarification and additional
documentation. The Tribe provided various supplemental application
materials to EPA. The Tribe amended its underground injection control
regulations, and, in 2006, submitted the final outstanding components
of its Primacy Application to EPA. Subsequently, in 2007, as an
addendum to its Primacy Application, the Tribe submitted several Navajo
Nation Class II UIC permits that it had issued pursuant to its
authority under tribal laws and regulations. The materials described
above are collectively referred to hereinafter as the Tribe's ``Primacy
Application,'' and are described in detail in EPA's Decision Document:
The Navajo Nation--Approval of Tribal Application for Primacy, Class II
Underground Injection Control Program, Safe Drinking Water Act.
B. Proposed Rule
On April 24, 2008, EPA issued a proposed rule in which the Agency
announced its proposal to approve the Tribe's primacy for the Class II
UIC program in the areas covered by the Tribe's Primacy Application
under section 1425 of the SDWA, 42 U.S.C. 300h-4. EPA requested public
review of the proposed rule; the Navajo Nation's Primacy Application; a
proposed Decision Document, which included findings that the Navajo
Nation meets all eligibility requirements of section 1451 of the SDWA
and its implementing regulations at 40 CFR part 145, Subpart E, as well
as all applicable requirements for approval under SDWA section 1425,
and EPA's supporting documentation (see 73 FR 22111-22120, April 24,
2008). EPA received two comments on the proposal: one supporting the
action, and the other challenging EPA's proposed approval of the
Tribe's Application based on concerns about the Tribe's jurisdictional
authority in certain areas covered by the Tribe's Primacy Application.
EPA's response to the submitted comments is provided in section V.
Response to Comments.
III. Legal Authorities
These regulations are being promulgated under authority of sections
1422, 1425, 1450 and 1451 of the SDWA, 42 U.S.C. 300h-1, 300h-4, 300j-9
and 300j-11.
A. Requirements for State UIC Programs
Section 1421 of the SDWA requires the Administrator of EPA to
promulgate minimum requirements for effective State UIC programs to
prevent underground injection activities that endanger underground
sources of drinking water (USDWs). Sections 1422 and 1425 of the SDWA
establish requirements for States seeking EPA approval of State UIC
programs.
For States that seek primacy for UIC programs under section 1422 of
the SDWA, EPA has promulgated regulations setting forth the applicable
procedures and substantive requirements. These regulations are codified
in the Code of Federal Regulations (40 CFR part 145). They include
requirements for State permitting programs (by reference to certain
provisions of 40 CFR parts 124 and 144), compliance evaluation
programs, enforcement authority, and information sharing.
Section 1425 of the SDWA describes alternative requirements for
States to obtain primacy for UIC programs that relate solely to Class
II wells. Section 1425 allows a State, in lieu of the showing required
under SDWA section 1422(b)(1)(A), to demonstrate that its proposed
Class II UIC program meets the minimum requirements of SDWA sections
1421(b)(1)(A)-(D), and represents an ``effective program (including
adequate recordkeeping and reporting) to prevent underground injection
which endangers drinking water sources.'' EPA published interim
guidance entitled ``Guidance for State Submissions Under Section 1425
of the Safe Drinking Water Act, Ground Water
[[Page 65558]]
Program Guidance 19'' (Guidance 19) in the Federal Register
(46 FR 27333-27339, May 19, 1981) which sets forth the criteria EPA
generally considers in evaluating applications under SDWA section 1425.
B. Tribal UIC Programs--Tribal Eligibility Requirements
Section 1451 of the SDWA and 40 CFR 145.52 authorize the
Administrator of EPA to treat an Indian Tribe in the same manner as a
State for purposes of delegating primary enforcement responsibility for
the UIC program if the Tribe demonstrates that: (1) It is recognized by
the Secretary of the Interior; (2) it has a governing body carrying out
substantial governmental duties and powers over a defined area; (3) the
functions to be exercised by the Tribe are within an area of the tribal
government's jurisdiction; and (4) the Tribe is reasonably expected to
be capable, in the EPA Administrator's judgment, of implementing a
program consistent with the terms and purposes of the SDWA and
applicable regulations.
Tribes may apply for primacy under either or both sections 1422 and
1425 of the SDWA; and the references in 40 CFR part 145 and the EPA's
May 19, 1981, interim guidance to ``State'' programs are also construed
to include eligible ``tribal'' programs. (See also 40 CFR 145.1(h),
which provides that all requirements of parts 124, 144, 145, and 146
that apply to States with UIC primacy also apply to Indian Tribes
except where specifically noted.)
IV. Explanation of This Action
EPA is approving the Navajo Nation's application for primacy for
the SDWA Class II UIC program in the areas covered by the Tribe's
Primacy Application. EPA's final rulemaking decision is based on a
careful and extensive legal and technical review of the Tribe's Primacy
Application, the two public comments received, the Navajo Nation's
response to those comments, and other relevant information.
EPA's Decision Document in support of EPA's approval is part of the
public record and is available for public review. The Decision Document
includes findings that the Navajo Nation meets all requirements of
section 1451 of the SDWA, including that the Tribe has demonstrated
adequate jurisdictional authority over all Class II injection
activities in the areas covered by the Tribe's Primacy Application,
including those conducted by nonmembers, and that the Tribe's program
meets all applicable requirements for approval under section 1425 of
the SDWA.
As a result of this final action, the Navajo Nation will assume
primary enforcement authority for regulating all Class II injection
activities in the areas covered by the Tribe's Primacy Application.
Because Indian Tribes are precluded under Federal Indian law from
pursuing certain criminal enforcement matters under 25 U.S.C. 1302, EPA
has entered into a Criminal Enforcement Memorandum of Agreement with
the Navajo Nation (signed by EPA on October 30, 2006), per 40 CFR
145.13(e), whereby the Tribe will notify EPA of potential criminal
violations of its SDWA Class II UIC program. EPA will continue to
administer its SDWA UIC program for any Class I, III, IV, and V wells
on Navajo Indian lands (defined as Indian country in EPA UIC
regulations; see definition of ``Indian lands'' at 40 CFR 144.3). EPA
will oversee the Navajo Nation's administration of the SDWA Class II
UIC program in the areas covered by the Tribe's Primacy Application.
Part of EPA's oversight responsibility will include requiring quarterly
reports of non-compliance and annual UIC program performance reports
pursuant to 40 CFR 144.8. The UIC Memorandum of Agreement between EPA
and the Navajo Nation (signed by EPA on August 21, 2001) provides EPA
with the opportunity to review and comment on all permits and, where
applicable, object.
EPA is amending 40 CFR part 147 to revise the references to the
EPA-administered program for Class II injection wells in the areas
covered by the Tribe's Primacy Application to refer to the Navajo
Nation's Class II UIC program. The provisions of the Navajo Nation
Underground Injection Control (NNUIC) Regulations that contain
standards, requirements, and procedures applicable to owners or
operators of Class II wells in the areas covered by the Tribe's Primacy
Application are being incorporated by reference into 40 CFR part 147.
Any provisions incorporated by reference, as well as all Tribal permit
conditions or permit denials issued pursuant to such provisions, are
enforceable by EPA pursuant to section 1423 of the SDWA and 40 CFR
147.1(e).
Class II UIC Permitting Matrix
EPA evaluated the existing Federal and Tribal UIC Class II
permitting matrix in the areas covered by the Tribe's Primacy
Application, which can be summarized into four categories: 1) Wells
with both Navajo Nation- and EPA-issued permits; 2) wells with EPA-
issued permits only; 3) wells with Navajo Nation-issued permits only
(Federally authorized by rule); and 4) wells without permits
(authorized by rule). Below is a summary of the impact of this final
rulemaking action on each category of wells.
Wells with both Navajo Nation- and EPA-issued permits: The Navajo
Nation-issued UIC permits will remain in effect as the Federally
enforceable UIC permits under the SDWA and the EPA-issued permits for
wells in this category will expire.
EPA-issued permits only: The Navajo Nation will administer the EPA-
issued Class II UIC permits until Navajo Nation UIC permits are issued.
Navajo Nation-issued permits only: The Navajo-Nation-issued Class
II UIC permits will remain in effect as Federally enforceable UIC
permits under the SDWA.
Wells not currently permitted by EPA or the Tribe: The Navajo
Nation, in its UIC Regulations, has adopted by reference the Federal
authorization by rule regulations that will apply until the Tribe
issues UIC permits for these wells.
Copies of the 18 Navajo Nation-issued permits are part of the
public record and available for review in EPA's Docket No. EPA-R09-OW-
2007-0248.
Proposed Rule Revisions Not Included
In its proposed rule for this action, EPA proposed minor revisions
to specific introductory language at 40 CFR part 147 and updates to 40
CFR 147.1, which were not specific to the Navajo Nation's Primacy
Application. The same regulatory revisions were previously proposed by
EPA Region 8 (see 73 FR 5471, January 30, 2008; Fort Peck Assiniboine
and Sioux Tribes in Montana; Underground Injection Control (UIC)
Program; Proposed Primacy Approval and Minor Revisions) and
subsequently promulgated (see Fort Peck final rule which published in
the Federal Register on October 27, 2008 at 73 FR 63639: Fort Peck
Assiniboine and Sioux Tribes in Montana; Underground Injection Control
(UIC) Program; Primacy Approval and Minor Revisions). Thus, today's
rule does not include this regulatory language because it has already
been incorporated into 40 CFR part 147 and 40 CFR 147.1.
Cross Media Electronic Reporting Rule
The analysis of the Navajo Nation's program with respect to 40 CFR
145.11 in EPA's proposed Decision Document for this action did not
include a discussion of the Tribal program's consistency with 40 CFR
145.11(a)(33). 40 CFR 145.11(a)(33) requires that State programs under
that part that ``wish to
[[Page 65559]]
receive electronic documents'' have legal authority to implement 40 CFR
part 3, the Cross Media Electronic Reporting Rule (CROMERR) (see 70 FR
59879, October 13, 2005). CROMERR includes requirements applicable to
States, Tribes, and local governments administering or seeking to
administer authorized programs under Title 40 of the CFR where such
programs receive electronic documents in lieu of paper to satisfy
requirements under such programs. EPA has consulted with the Navajo
Nation and determined that the Navajo Nation UIC Program does not
accept electronic copies of official documents or records, and
therefore has concluded that the Tribe's program is consistent with 40
CFR 145.11(a)(33).
V. Response to Comments
Summary
EPA received two letters providing comments on the proposed
rulemaking. One comment was from a private individual (``Commenter
A''), who expressed support for the Tribe's application and EPA's
proposed decision to approve it. The second comment was submitted by a
private law firm on behalf of an industry client that is a member of
the regulated community (``Commenter B''). It opposed on several legal
grounds EPA's proposed decision, particularly regarding areas outside
of the exterior boundaries of the formal Navajo Reservation, although
it did not specifically contest the proposed decision for areas within
the boundaries of the Reservation. As provided for by EPA policy, EPA
provided the Navajo Nation with an opportunity to respond to these
comments, and the response submitted by the Navajo Nation supplements
the record for this action.
Comments Received
A. Commenter A: An individual, who previously lived on the Navajo
Nation, commented that he approved of EPA's proposed primacy
determination.
EPA appreciates the comment in support of the Tribe's application
and EPA's proposed decision to approve the application.
B. Commenter B:
1. The United States Supreme Court Has Applied Federal Common Law
Principles of Indian Sovereignty Over the Activities of Non-Indians in
the Context of and Only to Conduct on Reservation Land
Commenter B first objects to EPA's proposed approval because he
argues that Federal common law and Supreme Court precedent limit tribal
authority over nonmember activities to conduct on reservation land and,
therefore, EPA's approval may not extend to nonmember activities
outside the formal Reservation. EPA disagrees. Section 1451 of the SDWA
authorizes EPA to treat a Tribe in a manner similar to a State (TAS) to
carry out functions authorized by the SDWA ``within the area of the
Tribal Government's jurisdiction.'' 42 U.S.C. 300j-11(b)(1)(B). There
is no language in the SDWA limiting the role of Tribes under the SDWA
to lands within the boundaries of Indian reservations, and no evidence
of Congressional intent to impose such limits. As noted by the Navajo
Nation in its response, the SDWA is different from the Clean Water Act,
which contains a TAS provision that limits the role of Tribes to
reservation areas. See 33 U.S.C. 1377(e)(2) (specifying that the
functions exercised by the Tribe must pertain to water resources within
the borders of an Indian reservation). Cf. 42 U.S.C. 7601(d)(2)(B)
(authorizing TAS for Tribes under the Clean Air Act for
``reservation[s] or other areas within the Tribe's jurisdiction,''
which includes non-reservation areas of Indian country).
The relevant legal term with respect to who has jurisdiction in a
particular area is ``Indian country,'' as defined at 18 U.S.C. 1151.
Indian Country, U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967, 973 (10th
Cir. 1987) (``[T]he Indian country classification is the benchmark for
approaching the allocation of Federal, tribal, and State authority with
respect to Indians and Indian lands.''). The ``Indian country'' statute
makes it clear that Indian country extends beyond reservations and
encompasses three types of land: All lands within reservation
boundaries, all dependent Indian communities, and ``all Indian
allotments, the Indian title to which have not been extinguished.''
Alaska v. Native Village of Venetie, 522 U.S. 520, 526-527, (1998),
quoting 18 U.S.C. 1151 (a)-(c). In Venetie, the Supreme Court confirmed
that the ``Indian country'' statute is a codification of Federal case
law, and that, while the statute is found in the criminal code, it also
generally applies to questions of tribal civil jurisdiction. Id. at 527
and n.1, citing with approval to DeCoteau v. District Court, 420 U.S.
425, 427 n. 2 (1975). As discussed further in this section, the case
law codified by the statute, as described in Venetie, includes Supreme
Court decisions establishing that Indian country includes both areas
that are within reservations and areas that are not, and that the term
reservation includes both formal reservations and informal reservations
(i.e., lands held by the government in trust for Tribes that have not
been formally designated as reservations). The Venetie Court also
recognized that the term ``Indian country'' delineates the areas over
which primary jurisdiction rests with the Federal government and the
Tribes rather than the States. Id. at 527 n. 1.
EPA has previously construed the language in SDWA section 1451 as
covering the full extent of Indian country. In particular, EPA granted
the Navajo Nation primacy under the SDWA Public Water Systems
Supervision (PWSS) program for lands within the formal Reservation
boundary as well as tribal trust lands (which EPA treated as informal
reservation lands) and for allotments in the Eastern Agency, noting
that, ``[t]he statutory language in section 1451 of the SDWA
establishes a relatively broad standard for tribal jurisdiction.'' EPA
DETERMINATION OF THE NAVAJO NATION'S ELIGIBILITY UNDER SECTION 1451 OF
THE SDWA 8 (October 23, 2000) (``EPA PWSS DETERMINATION''). In EPA's
approval of the Navajo Nation's SDWA PWSS primacy program, EPA found
that Indian country was the relevant standard: ``EPA agrees that
`Indian country' is the appropriate standard for determining the
territorial extent of jurisdiction of the Navajo Nation for the
purposes of section 1451 of the SDWA.'' EPA PWSS DETERMINATION at 10.
EPA found in the SDWA PWSS approval that the Navajo Nation had
demonstrated its authority under the SDWA over lands within the formal
Reservation boundary and tribal trust lands and allotments in the
Eastern Agency.
EPA's interpretation of section 1451 in the primacy determination
for the Navajo Nation SDWA PWSS program has not been challenged by
Commenter B or any other party, but EPA's position that tribal
authority in Indian country may extend beyond a formal reservation has
been challenged and upheld in other contexts, including Arizona Public
Service Co. v. EPA, 211 F.3d 1280, 1292-94 (D.C. Cir. 2000) (upholding
EPA's regulations that interpret the Clean Air Act's TAS provisions as
authorizing tribal programs for reservations (including informal
reservations, i.e., tribal trust lands not formally designated as a
reservation) and for other Indian country areas (including dependent
Indian communities and allotments) within the Tribe's jurisdiction).
[[Page 65560]]
2. The Navajo Nation Asserts That It Has Inherent Authority and
Jurisdiction Over Indian Country as Defined in 18 U.S.C. 1151 and 7
N.N.C. 254
Commenter B argues that 18 U.S.C. 1151 is neither a Congressional
delegation of authority nor a source of inherent sovereign authority
for the Navajo Nation. EPA recognizes that 18 U.S.C. 1151 does not
provide the source of a Tribe's inherent sovereign authority, but
rather generally defines the limit of the area over which a Tribe may
demonstrate authority. As explained in EPA's Decision Document for this
action, and supported by the Findings of Fact, Appendix A, EPA finds
that the Navajo Nation has demonstrated its authority under the SDWA
over the areas covered by its application, including tribal trust lands
and trust allotments in the Eastern Agency.
3. The Montana Doctrine Indicates That ``Navajo Tribal Sovereignty''
and ``Inherent Sovereignty'' Over the Activities of Non-Indians Does
Not Extend Beyond the Boundaries of the Navajo Reservation Regardless
of How the Land Is Titled
Commenter B's third comment overlaps with his first comment in
stating that ``to the extent that the Navajo Nation may have inherent
sovereign authority over the activities of non-Indians, that authority
applies only to lands within the Navajo reservation if Montana
exceptions (described more fully below in section VI) apply, as
determined on a case-by-case basis, and does not extend to lands or
activities outside the exterior boundaries of the Navajo reservation.''
Commenter B cites several cases, but none of the cases cited support
Commenter B's assertion that the Navajo Tribe may not exercise inherent
authority over tribal ``lands or activities outside the exterior
boundaries'' of a formal reservation; rather, the cited cases present
the more common factual scenario involving fee lands within a formal
reservation boundary.
The Tenth Circuit has previously considered the argument that the
Montana test cannot apply outside a reservation boundary, and more
specifically that it cannot apply in the Eastern Agency. See Texaco,
Inc. v. Zah, 5 F.3d 1374 (10th Cir. 1993). In Zah, the appellants
contended that the tribal courts lacked jurisdiction because the Navajo
Nation's authority over non-Indians terminated at the reservation
boundary, citing specifically to United States v. Montana, (1981) and
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982). The Tenth
Circuit in Zah rejected this argument, however, finding, ``[s]uch cases
* * * do not expressly stand for the proposition that a tribal court
has no jurisdiction over non-Indian activity occurring outside the
reservation, but within Indian Country.'' Zah at 1377.
Contrary to Commenter B's comments, neither the Tenth Circuit nor
the Supreme Court have held that Tribes cannot exercise inherent
authority in Indian country outside of reservation boundaries.\1\
Indeed such a holding would effectively eliminate any significance to
the broader scope of the term ``Indian country.'' Moreover, as already
noted, the Supreme Court has expressly recognized that Indian country
is the area of primary Federal and tribal, rather than State,
jurisdiction, and that Indian country, and thus tribal jurisdiction,
can exist outside reservations, consistent with both the text of the
Indian country statute and the Federal common law that the statute
codified. Venetie, 522 U.S. at 527-529. Moreover, the Supreme Court has
found that lands owned by the Federal government in trust for Indian
Tribes are Indian country, and that formal designation as a reservation
is not a necessary requirement for status as Indian country. See, e.g.,
Oklahoma Tax Comm'n v. Potawatomi Tribe, 498 U.S. 505, 511 (1991),
(``formally designated `reservation' '' status not dispositive; trust
lands can be Indian country); Oklahoma Tax Comm'n v. Sac & Fox Nation,
508 U.S. 114, 123 (1993) (``formal reservation'' is not a necessary
precondition for Indian country status under 18 U.S.C. 1151(a);
rejecting argument that a State has taxing jurisdiction over tribal
members unless they live ``on a reservation'') (emphasis in original).
The Court has also held, directly contrary to the commenter's
assertion, that Indian allotments that are not located on a reservation
can be Indian country and thus subject to tribal jurisdiction. Venetie,
522 U.S. at 529, citing U.S. v. Pelican, 232 U.S. 442, 449 (1914). As
discussed earlier in this response to comments, EPA has also stated in
regulations and in previous determinations that tribal authority to
implement the SDWA can extend to the limits of Indian country.
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\1\ The most recent Tenth Circuit decision, MacArthur v. San
Juan County, 497 F.3d 1057 (10th Cir. 2007) cert. denied, 128 S.Ct.
1229 (2008), involved tribal authority over employment-related
claims against a non-tribal facility located on state-owned fee land
within the Navajo reservation rather than a non-reservation area of
Navajo Indian country.
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Although the most recent Supreme Court case addressing tribal
authority over nonmember activities was decided after Commenter B
submitted its comments on this action, the Court in that case confirms
that Montana continues to be the relevant test with respect to tribal
authority over nonmember activities, and that in certain circumstances,
``tribes may exercise authority over the conduct of nonmembers[.]''
Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554 U.S.
------, 128 S.Ct. 2709, 2726 (2008). In its decision, the Court did not
distinguish between whether lands are within or outside the boundaries
of a formal reservation, as the primary issue was whether the sale of
nonmember-owned fee land constituted a nonmember activity subject to
regulation by the Tribe. Id. at 2723.
4. Even if There Is Inherent Authority Over the Activities of Non-
Indians on Tribal Trust Lands Outside the Exterior Boundaries of the
Reservation, the Navajo Nation Does Not Have Inherent Authority Over
the Activities of Non-Indians on ``Split Estate'' and Allotted Lands
Outside the Boundaries of the Reservation
Commenter B's fourth comment argues in the alternative that if the
Navajo Nation has authority over the activities of nonmembers on tribal
trust lands in the Eastern Agency, the Navajo Nation does not have
authority over the activities of nonmembers on ``split estate'' and
allotments in the Eastern Agency area. As discussed more extensively
earlier in this response to comments and in the Decision Document, EPA
has previously found that Tribes may exercise authority under the SDWA
over areas within their jurisdiction, including tribal trust lands and
allotments in the Eastern Agency. As EPA has noted in the Decision
Document and earlier in this discussion, no Congressional intent to
limit tribal authority to reservation lands can be read into the SDWA.
With respect to split estate lands described in the Decision Document,
the U.S. Court of Appeals for the Tenth Circuit has previously
determined that split estate lands in the Eastern Agency are Indian
country, as discussed in greater length in the Decision Document. HRI
Inc. v. EPA, 198 F. 3d 1224, 1254 (``The split nature of surface and
mineral estates does not alter the jurisdictional status of these lands
for SDWA purposes.''). In finding that lands outside the formal Navajo
Reservation were Indian country, the Court in HRI cited to a previous
Tenth Circuit case finding that allotments outside the boundaries of a
formal reservation qualify as Indian country under tribal civil
jurisdiction.
[[Page 65561]]
HRI at 1250. (``See Mustang Prod. Co. v. Harrison, 94 F.3d 1382, 1384
(10th Cir. 1996) (holding that `disestablishment of the reservation is
not dispositive of the question of tribal jurisdiction. In order to
determine whether the Tribes have jurisdiction we must instead look to
whether the land in question is Indian country' '' (internal citations
omitted)). Commenter B also argues that the Navajo Nation waived the
right to occupy lands outside the Reservation, as defined in the 1868
Treaty, and therefore waived its basis for inherent authority in any
area outside the exterior boundaries of the formal Reservation. The
Navajo Nation has provided a detailed response to this comment, and has
described how in fact the formal Navajo Reservation was expanded 11
times by Executive Orders and Acts of Congress subsequent to the 1868
Treaty. Clearly, the Federal government has affirmatively set aside all
the lands that are held in trust for the Navajo Nation or its members,
and there is no indication that the Navajo Nation ever intended to
waive authority over the lands in the Eastern Navajo Agency. Moreover,
apart from the power to exclude, ``tribes retain authority to govern
`both their members and their territory.' '' Plains Commerce, 128 S.Ct.
at 2718, quoting U.S. v. Mazurie, 419 U.S. 544 (1975).
5. Jurisdiction Based on the Montana Exceptions Must Be Determined on a
Case-by-Case Basis
Finally, Commenter B's fifth comment states that jurisdiction based
on the Montana test must be determined on a case-by-case basis. EPA
does evaluate tribal TAS applications on a case-by-case basis,
examining the facts presented in each application, as EPA did in this
case. The Decision Document, including the Findings of Fact, shows
clearly that EPA has conducted a thorough analysis of the Navajo
Nation's authority to regulate nonmember activities and found that, for
purposes of primacy of the SDWA Class II underground injection control
program, the Navajo Nation has demonstrated that it has the necessary
inherent authority over such activities in the areas covered by its
application, including individual and tribal trust lands outside the
boundaries of the formal Reservation.
VI. Generalized Findings
As described earlier, EPA's decision to approve the Navajo Nation
to implement a Class II UIC program includes findings that the Tribe
meets all requirements of section 1451 of the SDWA, including that the
Tribe has demonstrated adequate jurisdictional authority over all Class
II injection activities in the areas covered by the Tribe's Primacy
Application, including those conducted by nonmembers. With regard to
authority over nonmember activities on nonmember-owned fee lands, EPA
finds that the Tribe has demonstrated such authority under the test
established by the United States Supreme Court in Montana v. United
States, 450 U.S. 544 (1981) (Montana test). Under the Montana test, the
Supreme Court held that absent a Federal grant of authority, Tribes
generally lack inherent jurisdiction over the activities of nonmembers
on nonmember-owned fee lands. However, the Court also found that Indian
Tribes retain inherent sovereign power to exercise civil jurisdiction
over nonmember activities on nonmember-owned fee lands within the
reservation where: (1) Nonmembers enter into ``consensual relationships
with the Tribe or its members, through commercial dealing, contracts,
leases, or other arrangements'' or (2) ``* * * [nonmember] conduct
threatens or has some direct effect on the political integrity, the
economic security or the health or welfare of the Tribe.'' Id. at 565-
66. In analyzing Tribal assertions of inherent authority over nonmember
activities on Indian reservations, the Supreme Court has reiterated
that the Montana test remains the relevant standard. See e.g., Strate
v. A-1 Contractors, 520 U.S. 438, 445 (1997) (describing Montana as
``the pathmarking case concerning Tribal civil authority over
nonmembers''); Nevada v. Hicks, 533 U.S. 353, 358 (2001) (``Indian
Tribes' regulatory authority over nonmembers is governed by the
principles set forth in [Montana]''); Plains Commerce Bank v. Long
Family Land & Cattle Co., Inc., 128 S.Ct. 2709.
As part of the public record available for review, EPA's Decision
Document, and Appendix A thereto, set forth the Agency's specific
factual findings relating to the Tribe's demonstration of inherent
authority over the UIC Class II activities of nonmembers under the
Montana test and, in particular, the potential for direct effects of
nonmember UIC activities on the Tribe's health, welfare, political
integrity, and economic security that are serious and substantial. In
addition, EPA is publishing the general findings set forth below
regarding the effects of underground injection activities. These
general findings provide a backdrop for EPA's analysis of the Tribe's
assertion of authority under the Montana test and supplement the
Agency's factual findings specific to the Tribe and to the areas
covered by the Tribe's Primacy Application.
A. General Finding on Human Health and Welfare, and Economic and
Political Impacts
In enacting part C of the SDWA, Congress generally recognized that
if left unregulated or improperly managed, underground injection can
endanger drinking water sources and thus has the potential to cause
serious and substantial, harmful impacts on human health and welfare,
and economic and political interests. As stated in the legislative
history of the SDWA:
[U]nderground injection of contaminants is clearly an increasing
problem. Municipalities are increasingly engaging in underground
injection of sewage, sludge, and other wastes. Industries are
injecting chemicals, byproducts, and wastes. Energy production
companies are using injection techniques to increase production and
to dispose of unwanted brines brought to the surface during
production. Even government agencies, including the military, are
getting rid of difficult to manage waste problems by underground
disposal methods. Part C is intended to deal with all of the
foregoing situations insofar as they may endanger USDWs.\2\
\2\ See H.R. Report No. 93-1185, 93rd Congress, 2nd Session
(1974), reprinted in ``A Legislative History of the Safe Drinking
Water Act,'' February, 1982, by the Government Printing Office,
Serial No. 97-9, page 561.
---------------------------------------------------------------------------
In response to the problem of the substantial risks inherent in
underground injection activities, Congress enacted section 1421 of the
SDWA ``to assure that drinking water sources, actual and potential, are
not rendered unfit for such use by underground injection of
contaminants.'' \3\
---------------------------------------------------------------------------
\3\ Id., page 560.
---------------------------------------------------------------------------
In enacting the SDWA, Congress also generally found that waste
disposal practices, including mismanaged underground injection
activities, could have serious and substantial, harmful impacts on
human health and welfare, and economic and political interests. For
example, Congress found that:
Federal air and water pollution control legislation have
increased the pressure to dispose of waste materials on or below
land, frequently in ways, such as subsurface injection, which
endanger drinking water quality. Moreover, the national economy may
be expected to be harmed by unhealthy drinking water and the
illnesses which may result therefrom.\4\
---------------------------------------------------------------------------
\4\ Id., page 540.
---------------------------------------------------------------------------
Congress specifically noted several economic and political
consequences that can result from the degradation of good quality
drinking water supplies,
[[Page 65562]]
including: (1) Inhibition of interstate tourism and travel; (2) loss of
economic productivity because of absence from employment due to
illness; (3) limited ability of a town or region to attract workers;
and (4) impaired economic growth of a town or region, and, ultimately,
the nation.\5\
---------------------------------------------------------------------------
\5\ Id., page 540.
---------------------------------------------------------------------------
As the Agency charged by Congress with implementing part C of the
SDWA and assuring implementation of effective UIC programs throughout
the United States, EPA agrees with these Congressional findings. EPA
finds that underground injection activities, if not effectively
regulated, can have serious and substantial, harmful impacts on human
health and welfare, and economic and political interests. In making
this finding, EPA recognizes that: (1) The underground injection
activities, currently regulated as five distinct classes of injection
wells as defined in the UIC regulations, typically emplace a variety of
potentially harmful organic and inorganic contaminants (e.g., brines
and hazardous wastes) into the ground; (2) these injected contaminants
have the potential to enter USDWs through a variety of migratory
pathways if injection wells are not properly managed; and (3) once
present in USDWs, these injected contaminants can have harmful impacts
on human health and welfare, and economic and political interests, that
are both serious and substantial.
In 1980, EPA issued a document entitled, ``Underground Injection
Control Regulations: Statement of Basis and Purpose,'' which provides
the rationale for the Agency in proposing specific regulatory controls
for a variety of underground injection activities. These controls, or
technical requirements (e.g., testing to ensure the mechanical
integrity of an injection well), were promulgated to prevent release of
pollutants through the six primary ``pathways of contamination,'' or
well-established and recognized ``ways in which fluids can escape the
well or injection horizon and enter USDWs.'' \6\ EPA has found that
USDW contamination from one or more of these pathways can occur from
underground injection activity of all classes (I-V) of injection wells.
---------------------------------------------------------------------------
\6\ ``Underground Injection Control Regulations: Statement of
Basis and Purpose,'' EPA (May 1980) page 7.
---------------------------------------------------------------------------
The six pathways are:
1. Migration of fluids through a leak in the casing of an injection
well and directly into a USDW;
2. Vertical migration of fluids through improperly abandoned and
improperly completed wells in the vicinity of injection well
operations;
3. Direct injection of fluids into or above a USDW;
4. Upward migration of fluids through the annulus, which is the
space located between the injection well's casing and the well bore.
This can occur if there is sufficient injection pressure to push such
fluid into an overlying USDW;
5. Migration of fluids from an injection zone through the confining
strata over or underlying a USDW. This can occur if there is sufficient
injection pressure to push fluid through a stratum, which is either
fractured or permeable, and into the adjacent USDW; and
6. Lateral migration of fluids from within an injection zone into a
portion of that stratum considered to be a USDW. In this scenario,
there may be no impermeable layer or other barrier to prevent migration
of such fluids.\7\
---------------------------------------------------------------------------
\7\ Id., pp. 7-17.
---------------------------------------------------------------------------
Moreover, consistent with EPA's findings, the U.S. Department of
the Interior has recognized the ability of injection wells to
contaminate surface waters that are hydrogeologically connected to
contaminated ground water.\8\ Such contamination of surface waters
could further cause negative impacts on human health and welfare, and
economic and political interests.
---------------------------------------------------------------------------
\8\ See Federal Water Quality Administration's Order COM 5040.10
(1970), as referred to in H.R. Report No. 93-1185, 561.
---------------------------------------------------------------------------
In sum, EPA finds that, given the common presence of contaminants
in injected fluids, serious and substantial contamination of ground
water and surface water resources can result from improperly regulated
underground injection activities. Moreover, such contamination has the
potential to cause correspondingly serious and substantial harm to
human health and welfare, and economic and political interests. EPA
also has determined that Congress reached a similar finding when it
enacted part C of the SDWA, directing EPA to establish UIC programs to
mitigate and prevent such harm through the proper regulation of
underground injection activities.
B. General Finding on the Protection of Safe Drinking Water Sources as
Necessary To Protect Self-Government
Consistent with the finding that improperly managed underground
injection activities can have direct harmful effects on human health
and welfare, and economic and political interests that are serious and
substantial, EPA has determined that proper management of such
activities serves the purpose of protecting these human health and
welfare, and economic and political interests. Protection of these
interests is a core governmental function, the exercise of which is
integral to, and is a necessary aspect of, self-government. See 56 FR
64876, 64879 (December 12, 1991); Montana v. EPA, 137 F.3d 1135, 1140-
41 (9th Cir. 1998). EPA has determined that Congress reached this
conclusion in enacting the SDWA, and that Congress considered the water
quality protection functions authorized by the SDWA to be a necessary
act of self-government, serving to protect essential and vital public
interests by ensuring that the public's essential drinking water
sources are safe from contamination, including contamination caused by
underground injection activities.
The above findings regarding the effects on human health and
welfare, and economic and political interests are generally true for
human beings and their communities, wherever they may be located. EPA
has determined that the above findings are generally true for any
Federal, State and/or Tribal government having responsibility for
protecting human health and welfare. With specific relevance to Tribes,
EPA has long noted the relationship between proper environmental
management within Indian country and Tribal self-government and self-
sufficiency. Moreover, in the 1984 EPA Policy for the Administration of
Environmental Programs on Indian Reservations, EPA determined that as
part of the ``principle of Indian self-government,'' Tribal governments
are the ``appropriate non-Federal parties for making decisions and
carrying out program responsibilities affecting Indian reservations,
their environments, and the health and welfare of the reservation
populace,'' consistent with Agency standards and regulations. (EPA
Policy for the Administration of Environmental Programs on Indian
Reservations, Paragraph 2, November 8, 1984).
EPA interprets section 1451 of the SDWA, in providing for the
approval of Tribal programs under the Act, as authorizing eligible
Tribes to assume a primary role in protecting drinking water sources.
These general findings provide a backdrop for EPA's legal analysis of
the Navajo Tribe's Application and, in effect, supplement EPA's factual
findings specific to the Navajo Tribe and the areas covered by the
Tribe's Application contained in the Decision Document and Appendix A
thereto, and the Tribe's similar conclusions, contained in its
Application, pertaining specifically to
[[Page 65563]]
the Navajo Tribe and areas covered by its Primacy Application.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the EO.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
Reporting or recordkeeping requirements will be based on the Navajo
Nation UIC Regulations, and the Navajo Nation is not subject to the
Paperwork Reduction Act. However, the Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing regulations (40 CFR parts 144-148) under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and
has assigned OMB control number 2040-0042. The OMB control numbers for
EPA's regulations in 40 CFR are listed in part 9.
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 this rule on small
entities, a ``small entity'' is defined as: (1) A small business that
is defined in the Small Business Administration's regulations at 13 CFR
121.201; (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 this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities operating existing Class II wells would be subject to
requirements substantially similar to the existing requirements of the
EPA's program under 40 CFR 147.3000, and will not incur significant new
costs as a result of this final rule.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies, unless otherwise
prohibited by law, to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. Federal
agencies must also develop a plan to provide notice to small
governments that might be significantly or uniquely affected by any
regulatory requirements. The plan must enable officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates and must inform, educate, and advise small
governments on compliance with the regulatory requirements. The rule
imposes no enforceable duty on any State, local or tribal governments
or the private sector. EPA's approval of the Navajo Nation's program
will not constitute a ``Federal mandate'' because there is no
requirement that the Tribe establish UIC regulatory programs and
because the program is a Tribal, rather than a Federal program. Thus,
this rule is not subject to the requirements of sections 202 and 205 of
the UMRA. In developing this rule, EPA consulted with small governments
under a plan developed consistent with section 203 of UMRA concerning
the regulatory requirements in the rule that might significantly or
uniquely affect small governments. The only small government that might
be significantly or uniquely affected by this rule is the Navajo Nation
Tribal government. Accordingly, EPA has made the Tribe fully aware of
the Federal requirements for approval to administer its own Class II
UIC program; enabled the Tribe to have meaningful and timely input in
the development of this rule; and informed, educated, and advised the
Tribe on compliance with these requirements. However, the Tribal
government is implementing and complying with these regulatory
requirements because it has: (1) Voluntarily requested EPA approval to
administer its Class II UIC program; and (2) voluntarily assumed the
Tribal share of the costs for doing so.
E. Executive Order 13132--Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on 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. This rule would simply provide that
the Tribe has primary enforcement responsibility under the SDWA for the
Class II UIC program, pursuant to which the Tribe would be implementing
and enforcing a tribal regulatory program that is generally equivalent
to the existing Federal program, as explained in more detail in section
IV and in the Decision Document. The EPA will continue to administer
the Federal Class I, III, IV, and V UIC programs on Navajo Indian
lands. Authorizing the Navajo Nation as the primacy agency for the
Class II UIC program in the areas covered by the Tribe's Primacy
Application will not substantially alter the distribution of power and
responsibilities among levels of government or significantly change
EPA's relationship with the relevant States. The substitution of a
Navajo Nation Class II program for an EPA-administered Class II program
in the areas covered by the Tribe's Primacy Application will impose no
additional costs on the States of Arizona, Utah or New Mexico. Thus,
Executive Order 13132 does not apply to this rule.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Subject to Executive Order 13175 (65 FR 67249, November 6, 2000)
EPA may not issue a regulation that has tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
EPA has concluded that this rule will have tribal implications.
However, it will neither impose substantial direct
[[Page 65564]]
compliance costs on the tribal government, nor preempt tribal law. The
Navajo Nation has voluntarily requested authorization for primary
enforcement responsibility for the Class II UIC program and has
voluntarily assumed the Tribal share of the costs for doing so.
Additionally, EPA is approving the Navajo Nation's application for
Class II UIC primacy and thus replacing the existing Federal Class II
UIC program in the areas covered by the Tribe's Primacy Application
with a Tribal program administered pursuant to the laws of the Navajo
Nation. Thus, the requirements of sections 5(b) and 5(c) of the
Executive Order do not apply to this rule.
Consistent with EPA policy, EPA nonetheless consulted with Tribal
officials early in the process of developing this regulation to permit
them to have meaningful and timely input into its development. Since
awarding the first developmental grant to the Navajo Nation in fiscal
year 1995 for developing capacity to assume the Class II UIC program,
EPA has consulted and worked closely with the Tribe in the
administration of these funds and in the development of the Tribe's
regulatory program.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it approves a tribal primary enforcement (primacy)
program. This rule simply provides that the Tribe has primary
enforcement responsibility under the SDWA for the Class II UIC program,
pursuant to which the Tribe would be implementing and enforcing a
tribal regulatory program that is generally equivalent to the existing
Federal program, as explained in more detail in the Decision Document.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations 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
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 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 rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629, February 16, 1994)
establishes Federal executive policy on environmental justice. Its main
provision directs Federal agencies, to the greatest extent practicable
and permitted by law, to make environmental justice part of their
mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it does not decrease the level of
protection provided to human health or the environment or lessen
current environmental standards. This rule will simply provide that the
Tribe has primary enforcement responsibility under the SDWA for the
Class II UIC program, pursuant to which the Tribe will be implementing
and enforcing a tribal regulatory program that is generally equivalent
to the existing Federal program, as explained in more detail in the
Decision Document.
K. 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 December 4, 2008.
List of Subjects in 40 CFR Part 147
Environmental protection, Indian lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water supply,
Incorporation by reference.
Dated: October 21, 2008.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, chapter 1 of title 40 of the
Code of Federal Regulations is amended as follows:
PART 147--STATE, TRIBAL, AND EPA-ADMINISTERED UNDERGROUND INJECTION
CONTROL PROGRAMS
Subpart D--[Amended]
0
1. The authority citation for part 147 continues to read as follows:
Authority: 42 U.S.C. 300h et seq.; and 42 U.S.C. 6901 et seq.
0
2. Section 147.151 is amended by revising the first two sentences of
paragraph (a) and the last sentence of paragraph (b) to read as
follows:
Sec. 147.151 EPA-administered program.
(a) Contents. The UIC program that applies to all injection
activities in Arizona, including those on Indian lands, except for
Class II wells on Navajo Indian lands for which EPA has granted the
Navajo Nation primacy for the SDWA Class II UIC program (as defined in
Sec. 147.3400), is administered by EPA. The UIC program for Navajo
Indian lands, except for Class II wells on Navajo Indian lands for
which EPA has granted the Navajo Nation primacy for the SDWA Class II
UIC program, consists of the requirements contained in subpart HHH of
this part. * * *
(b) * * * The effective date for the UIC program on the lands of
the Navajo, except for Class II wells on Navajo Indian lands for which
EPA has granted
[[Page 65565]]
the Navajo Nation primacy for the SDWA Class II UIC program (as defined
in Sec. 147.3400), is November 25, 1988.
Subpart GG--[Amended]
0
3. Section 147.1603 is amended by revising the first sentence of
paragraph (a) and paragraph (b) to read as follows:
Sec. 147.1603 EPA-administered program--Indian Lands.
(a) Contents. The UIC program for all classes of wells on Indian
lands in New Mexico, except for Class II wells on Navajo Indian lands
for which EPA has granted the Navajo Nation primacy for the SDWA Class
II UIC program (as defined in Sec. 147.3400), is administered by EPA.
* * *
(b) Effective date. The effective date for the UIC program on
Indian lands in New Mexico, except for Class II wells on Navajo Indian
lands for which EPA has granted the Navajo Nation primacy for the SDWA
Class II UIC program (as defined in Sec. 147.3400), is November 25,
1988.
Subpart TT--[Amended]
0
4. Section 147.2253 is amended by revising the first two sentences of
paragraph (a) and paragraph (b) to read as follows:
Sec. 147.2253 EPA-administered program.
(a) Contents. The UIC program for all classes of wells on Indian
lands in the State of Utah, except for Class II wells on Navajo Indian
lands for which EPA has granted the Navajo Nation primacy for the SDWA
Class II UIC program (as defined in Sec. 147.3400), is administered by
EPA. The program for wells on Navajo Indian lands, except for Class II
wells on Navajo Indian lands for which EPA has granted the Navajo
Nation primacy for the SDWA Class II UIC program, and for Ute Mountain
Ute consists of the requirements set forth at subpart HHH of this part.
* * *
(b) Effective date. The effective date for this program for all
other Indian lands in Utah, except for Class II wells on Navajo Indian
lands for which EPA has granted the Navajo Nation primacy for the SDWA
Class II UIC program (as defined in Sec. 147.3400), is November 25,
1988.
Subpart HHH--[Amended]
0
5. Section 147.3000 is amended by revising the first sentence of
paragraph (a) and paragraph (b) to read as follows:
Sec. 147.3000 EPA-administered program.
(a) Contents. The UIC program for Navajo Indian lands, except for
Class II wells on Navajo Indian lands for which EPA has granted the
Navajo Nation primacy for the SDWA Class II UIC program (as defined in
Sec. 147.3400), the Ute Mountain Ute (Class II wells only on Ute
Mountain Ute lands in Colorado and all wells on Ute Mountain Ute lands
in Utah and New Mexico), and all wells on other Indian lands in New
Mexico is administered by EPA. * * *
(b) Effective date. The effective date for the UIC program on these
lands, except for Class II wells on Navajo Indian lands for which EPA
has granted the Navajo Nation primacy for the SDWA Class II UIC program
(as defined in Sec. 147.3400), is November 25, 1988.
0
6. Subpart KKK is added and reserved to read as follows:
Subpart KKK--[Reserved]
0
7. Subpart LLL consisting of Sec. 147.3400 is added to read as
follows:
Subpart LLL--Navajo Indian Lands
Sec. 147.3400 Navajo Indian Lands--Class II wells.
The UIC program for Class II injection wells located: Within the
exterior boundaries of the formal Navajo Reservation, including the
three satellite reservations (Alamo, Canoncito and Ramah), but
excluding the former Bennett Freeze Area, the Four Corners Power Plant
and the Navajo Generating Station; and on Navajo Nation tribal trust
lands and trust allotments outside those exterior boundaries
(collectively referred to as ``Navajo Indian lands for which EPA has
granted the Navajo Nation primacy for the SDWA Class II UIC program''),
is the program administered by the Navajo Nation approved by EPA
pursuant to section 1425 of the SDWA. Notice of this approval was
published in the Federal Register on November 4, 2008; the effective
date of this program is December 4, 2008. This program consists of the
following elements as submitted to EPA in the Navajo Nation's program
application:
(a) Incorporation by Reference. The requirements set forth in the
Navajo Nation Statutes, Regulations and Resolution notebook, dated
October 2008, are hereby incorporated by reference and made part of the
applicable UIC program under the SDWA for Class II injection wells on
Navajo Indian lands for which EPA has granted the Navajo Nation primacy
for the SDWA Class II UIC program (as defined in this section). This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained or inspected at the Navajo Nation Environmental
Protection Agency UIC Office, Old NAPA Auto Parts Building (Tribal
Bldg. S009-080), Highway 64, Shiprock, New Mexico 87420 (505-
368-1040), at the Environmental Protection Agency, Region 9, 75
Hawthorne Street, San Francisco, California 94105-3920 (415-972-3533),
or at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call (202)
741-6030, or go to: http://www.archives.gov/federal_register/code_
of_federal_regulations/ibr_locations.html.
(b) Memorandum of Agreement (MOA). The MOA between EPA Region 9 and
the Navajo Nation, signed by the EPA Regional Administrator on August
21, 2001. The Criminal Enforcement MOA between EPA Region 9 and the
Navajo Nation, signed by EPA on October 30, 2006.
(c) Statement of Legal Authority. (1) ``Statement of the Attorney
General of the Navajo Nation Pursuant to 40 CFR 145.24'', August 27,
2001.
(2) ``Statement of the Attorney General of the Navajo Nation
Regarding the Regulatory Authority and Jurisdiction of the Navajo
Nation with Respect To Its Underground Injection Control Program'',
July 3, 2002.
(3) ``Supplemental Statement of the Navajo Nation Attorney General
Regarding the Regulatory Authority and Jurisdiction of the Navajo
Nation to Operate an Underground Injection Control Program under the
Safe Drinking Water Act'', October 11, 2006.
(d) Program Description. The Program Description submitted as part
of the Navajo Nation's application, and any other materials submitted
as part of this application or as a supplement thereto.
[FR Doc. E8-26023 Filed 11-3-08; 8:45 am]
BILLING CODE 6560-50-P