[Federal Register: April 24, 2008 (Volume 73, Number 80)]
[Proposed Rules]
[Page 22111-22120]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ap08-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[EPA-R09-OW-2007-0248; FRL-8556-9]
Navajo Nation; Underground Injection Control (UIC) Program;
Proposed Primacy Approval and Minor Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve 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 and allotted lands 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.'') EPA would 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''). EPA is also proposing minor revisions to regulations
that are not specific to the Navajo Nation's application. EPA requests
public comment on this proposed rule, the Navajo Nation's application,
and EPA's supporting documentation, and will consider all comments
received within the public comment period before taking final action.
DATES: The public may submit written comments to the EPA through the
end of the comment period on May 27, 2008. EPA will schedule a public
hearing, unless insufficient interest is expressed during the public
comment period. Any such public hearing will be held no earlier than 30
days after EPA provides notice of the hearing.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OW-2007-0248, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: rao.kate@epa.gov
Fax: 415-947-3549
Mail: Environmental Protection Agency, Ground Water Office
(WTR-9), 75 Hawthorne Street, San Francisco, CA 94105-3920
Hand Delivery: Deliver your comments to Kate Rao,
Environmental Protection Agency, Ground Water Office (WTR-9), 75
Hawthorne Street, San Francisco, CA 94105-3920, Attention Docket ID No.
EPA-R09-OW-2007-0248. Such deliveries are only accepted during the
Docket's normal hours of operation: Monday through Friday, between 8:00
am and 4:00 p.m., Pacific time, excluding legal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R09-OW-
2007-0248. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information the disclosure of which
is restricted by statute. Do not submit information through
www.regulations.gov or e-mail that you consider to be CBI or otherwise
protected by statute. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters or any form of encryption, and should be
free of any defects or viruses. For additional information about EPA's
public docket visit the EPA Docket Center homepage at http://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. 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 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 8:00 am and 4:00 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. Phone number: 415-972-3533. E-mail:
rao.kate@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Regulated Entities
[[Page 22112]]
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North American
Examples of potentially Industry
Category regulated entities Classification
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.
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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 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.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit CBI to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and provide substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
II. Introduction
The Navajo Nation has applied to the EPA under Section 1425 of the
SDWA, 42 U.S.C. Section 300h-4, for primary enforcement responsibility
for the SDWA Class II (oil and gas-related) UIC program in the areas
covered by the Tribe's Primacy Application. EPA's proposal is based on
a careful and extensive legal and technical review of the Tribe's
application. As a result of this review, EPA is issuing a proposed
determination that the Tribe meets all requirements of Section 1451 of
the SDWA, including the requirement that the Tribe demonstrate adequate
jurisdictional authority over all Class II injection activities in the
areas covered by the Tribe's Primacy Application, including those
activities conducted by nonmembers. EPA has also determined that the
Tribe's program meets all applicable requirements for approval under
SDWA Section 1425, and that the Tribe is capable of administering an
effective Class II UIC program in a manner consistent with the terms
and purposes of the SDWA and all applicable regulations.
III. Legal Authorities
These regulations are being proposed 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 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
[[Page 22113]]
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 Section
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. The Navajo Nation's Application
A. Background
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 has provided various supplemental application
materials to EPA. In February 2004, the Navajo Nation sent EPA a letter
clarifying that it was requesting primacy under Section 1425 of the
SDWA. 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 Proposed Decision Document for this
action.
B. Public Comments Received by the Navajo Nation
Pursuant to 40 CFR Section 145.31, on August 16, 2001, the Navajo
Nation published a public notice of its intent to apply for primacy for
the UIC program for Class II wells in both the Farmington Daily Times
and the Navajo Times and, on September 17, 2001, the Tribe held a
public hearing in Shiprock, New Mexico. The Tribe received two requests
for copies of its primacy application and received one comment.
The one comment received was from the Arizona Public Service (APS)
Company, which stated that the Navajo Nation's assertion of
jurisdiction in the primacy application did not contain any exclusion
for the Four Corners Power Plant. APS requested that the jurisdictional
statement be revised to clarify that the Navajo Nation is not intending
to address or resolve in its UIC primacy application the question of
whether the Tribe may regulate any aspect of operations at the Four
Corners Power Plant. The Navajo Nation agreed with the comment and
added the following phrase to the jurisdictional statement: The Navajo
Nation also requests EPA to refrain from making a jurisdictional
finding regarding the Four Corners Power Plant and the Navajo
Generating Station, since the Navajo Nation and the owners and
operators of the power plants are in the middle of negotiations to
address jurisdictional issues regarding the plants. EPA believes that
this revision to the jurisdictional statement fully addresses the
comment received. Because the Tribe has requested that EPA exclude
these two facilities from its determination at this time, EPA is not
proposing to make a jurisdictional finding with respect to these two
facilities at this time, and EPA will continue to administer the Class
II UIC program for these two facilities as it does for other areas for
which it retains primacy for the Class II program.
Additionally in July 2006, the Navajo Nation ran a public notice in
the Farmington Daily Times and on the Navajo/English radio station
announcing its proposed revisions to the Navajo Nation Class II UIC
Regulations. No comments were received.
V. EPA's Proposed Action
A. Overview of EPA's Proposed Action
EPA is proposing to approve the Navajo Nation's application for
primacy for the SDWA Class II UIC program in the areas covered by the
Tribe's Primacy Application. If EPA approves the Navajo Nation's
application, the Navajo Nation would assume primary enforcement
authority for regulating all Class II injection activities in the areas
covered by the Tribe's Primacy Application. Indian Tribes are precluded
under Federal Indian law, however, from pursuing criminal enforcement
as follows: (1) Against non-Indians; and (2) against Indians where the
potential fine required is greater than $5,000 or where the penalty
would require imprisonment for more than one year (in accordance with
25 U.S.C. Section 1302). For this reason, EPA has entered into a
Criminal Enforcement Memorandum of Agreement with the Tribe (signed by
EPA on October 30, 2006) whereby the Tribe will notify EPA of potential
criminal violations of its SDWA Class II UIC program. See 40 CFR
145.13(e).
EPA has prepared a Proposed Decision Document in support of its
action. This document is part of the public record and is now available
for public review and comment. The Proposed Decision Document includes
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. The Proposed Decision Document also finds that the
Navajo Nation's Class II UIC program meets all applicable requirements
for approval under Section 1425 of the SDWA.
If approved as proposed, the Navajo Nation would administer and
enforce its Class II UIC program with respect to all Class II injection
wells in the areas covered by the Tribe's Primacy Application. Upon
approving the Navajo Nation's Class II program, EPA would amend 40 CFR
part 147 as proposed in this notice 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. EPA would 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). (Although the Navajo Nation UIC
Regulations prohibit injection in Class I and IV wells, these
prohibitions are separate from, and not within the scope of, the Class
II UIC program for which EPA today proposes to approve the Tribe's
application for primacy.) As noted above, EPA also maintains criminal
enforcement authority for violations of Class II UIC requirements,
including violations by non-Indians on Navajo Indian lands, and by
Indians on Navajo Indian lands where the potential fine required is
greater than $5,000 or where the penalty would require imprisonment for
more than one year.
EPA would 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 would include
requiring quarterly reports of non-compliance and annual UIC program
performance reports pursuant to 40 CFR 144.8. The Memorandum of
Agreement between EPA and the Navajo Nation (signed by EPA on August
21, 2001) provides EPA with the opportunity to review and
[[Page 22114]]
comment on all permits and, where applicable, object.
B. Permit Transfer
As part of this proposed program approval, 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 discussion on
how each category of wells would be affected if EPA were to grant
primacy to the Navajo Nation for its SDWA Class II UIC program.
Wells with both Navajo Nation- and EPA-issued permits: The Navajo
Nation UIC Program has issued 18 Navajo Nation UIC permits to date for
Class II UIC wells pursuant to its authority under Tribal laws and
regulations. A number of these facilities are also subject to EPA-
issued Class II UIC permits. EPA conducted a thorough review of each of
the existing Navajo Nation-issued UIC permits and verified that each
meets the substantive permitting requirements of the Navajo Nation's
proposed program and that those requirements are at least as stringent
as Federal permitting requirements. EPA also confirmed that each of the
Navajo Nation's permits was issued pursuant to the Tribe's procedural
regulations for permit issuance and that those procedural regulations
are at least as stringent as the provisions of 40 CFR part 124. EPA
considers these Navajo Nation-issued permits to be part of the existing
Navajo Nation UIC program for which the Navajo Nation is seeking
primacy. EPA is proposing that, after authorization of primacy, the
pre-existing Navajo Nation-issued UIC permits would remain in effect as
the federally-enforceable UIC permits under the SDWA. Descriptions of
the 18 permits are available for review and comment in the Decision
Document, Appendix B, which can be accessed in EPA's Docket No. EPA-
R09-OW-2007-0248.
In contrast, the EPA-issued permits include provisions stating that
the permits ``will expire upon authorization of primary enforcement
responsibility'' to the Navajo Nation, unless the Navajo Nation ``has
the appropriate authority and chooses to adopt and enforce this permit
as a Tribal permit.'' Although the Navajo Nation has this authority, it
has not chosen to adopt and enforce EPA-issued permits for wells which
the Navajo Nation has also permitted. Thus, the EPA-issued permits for
wells in this category would expire upon authorization of primacy.
EPA-issued permits only: Pursuant to its authority, the Navajo
Nation chose to adopt and enforce these EPA-issued permits as Tribal
permits. The Navajo Nation would administer EPA's permits for wells in
this category until Navajo Nation UIC permits are issued.
Navajo Nation-issued permits only: As with the wells with both
Navajo Nation- and EPA-issued permits, these pre-existing Tribal UIC
permits would remain in effect as the Federally-enforceable UIC permits
under the SDWA.
Wells not currently permitted by EPA or the Tribe: These wells are
currently authorized to operate by rule. 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. After the authorization of primacy to the Navajo Nation,
these wells would continue to operate by rule authorization. A more in-
depth discussion of the proposed permit transfer process is contained
in the Proposed Decision Document available in the EPA docket.
C. EPA's Proposed Findings Regarding Tribal Eligibility
Under Section 1451 of SDWA and 40 CFR part 145, Subpart E, EPA is
authorized to treat Indian Tribes similarly to States and may approve a
Tribe's application for primary enforcement authority for the UIC
Program. EPA's proposed decision to approve the Navajo Nation's
application for primacy for the Class II UIC program incorporates
findings that the Tribe meets all the requirements of Section 1451 of
the SDWA, including the proposed finding that the Tribe has
demonstrated adequate jurisdictional authority over all Class II
injection activities in the areas covered by the Tribe's Primacy
Application. EPA's Proposed Decision Document describes in detail EPA's
analysis supporting its findings and decision.
D. EPA's Determination Regarding SDWA Section 1425 and Guidance 19
As described above, the Navajo Nation has requested primacy for the
Class II UIC program authorized under Section 1425 of the SDWA, which
allows States and eligible Tribes, in lieu of the showing required
under SDWA Section 1422(b)(1)(A), to demonstrate that their Class II
UIC programs meet the requirements of SDWA Sections 1421(b)(1)(A)-(D),
and represent an ``effective program [including adequate recordkeeping
and reporting] to prevent underground injection which endangers
drinking water sources.'' EPA has evaluated the Tribe's SDWA Section
1425 primacy application pursuant to the criteria in Guidance 19 (see
discussion of Guidance 19 in Section III.A).
As explained in detail in EPA's Proposed Decision Document, EPA has
determined that the Navajo Nation's SDWA Class II UIC program meets the
requirements of SDWA Section 1425 and represents an effective program
to prevent underground injection which endangers drinking water
sources. The Tribe's program is ``effective'' as that term is discussed
in Guidance 19, and has many of the same (or somewhat more stringent)
components as the Federal UIC regulations at 40 CFR parts 124, 144,
145, 146 and 147. In addition, Navajo Nation UIC program personnel
currently issue UIC permits which are reviewed by EPA staff, support
EPA annual reporting, participate in enforcement actions, and conduct
various inspections for verification of compliance with UIC
requirements. In sum, EPA believes that the Navajo Nation's Primacy
Application and the Tribe's current administration of the Navajo Nation
Class II UIC program demonstrates that the Tribe has the legal
authority, as well as the technical and administrative capacity, to
administer an effective UIC Program that prevents underground injection
from endangering drinking water sources, consistent with the
requirements of SDWA Section 1425.
VI. Generalized Findings
As described earlier, EPA's proposed 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 is proposing to find 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
[[Page 22115]]
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]'').
As part of the public record available for review and comment in
EPA's Docket, EPA's Proposed Decision Document, and Appendix A thereto,
sets 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. In
addition, EPA is proposing the general findings set forth below
regarding the effects of underground injection activities. These
general findings provide a foundation for EPA's analysis of the Tribe's
assertion of authority under the Montana test and, in effect,
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 Political, Economic and Human Health and Welfare
Impacts
In enacting part C of the SDWA, Congress generally recognized that
if left unregulated or improperly managed, underground injection wells
have the potential to cause serious and substantial, harmful impacts on
political and economic interests and human health and welfare.
Specifically, as stated in 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 underground
sources of drinking water (USDWs).\1\
\1\ 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.'' \2\
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\2\ Id., page 560.
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In enacting part C of the SDWA, Congress more specifically found
that mismanaged underground injection activities could have serious and
substantial, harmful impacts on the public's economic and political
interests, as well as its health and welfare. 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.\3\
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\3\ Id., page 540.
Congress specifically noted several economic and political
consequences that can result from the degradation of good quality
drinking water supplies, 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.\4\
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\4\ Id., page 540.
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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, welfare, 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 political and economic 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.'' \5\ 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.
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\5\ ``Underground Injection Control Regulations: Statement of
Basis and Purpose,'' EPA, (May, 1980) page 7.
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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
[[Page 22116]]
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.\6\
---------------------------------------------------------------------------
\6\ 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.\7\ Such contamination of surface waters
could further cause negative impacts on human health and welfare, and
economic and political interests.
---------------------------------------------------------------------------
\7\ 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 political and economic interests. EPA
also has determined that Congress reached a similar finding when it
enacted part C of the SDWA, directing EPA to establish minimum
requirements for effective UIC programs to mitigate and prevent such
harm through the proper regulation of underground injection activities.
B. General Finding on the Necessity of Protecting Safe Drinking Water
Supplies as a Necessary Incident of 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, EPA has determined
that proper management of such activities serves the purpose of
protecting these public health and welfare, and political and economic
interests, which is a core governmental function whose exercise is
integral to, and 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 SDWA to be important
governmental functions serving to protect essential and vital public
interests by ensuring that the public's essential drinking water
supplies are safe from contamination, including contamination caused by
underground injection activities.
The above findings regarding the effects on public 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 that underground injection
regulation is an integral and necessary incident of self-government is
generally true for any Federal, State and/or Tribal government having
responsibility for protecting public 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 Proposed Decision Document and
Appendix A thereto, and the Tribe's similar conclusions, contained in
its Application, pertaining specifically to 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 an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
EPA has determined that there is no need for an Information Collection
Request under the Paperwork Reduction Act for this action because this
proposed rule would not impose any new Federal reporting or record-
keeping requirements. Reporting or record-keeping requirements would 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 Sec. 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 40 CFR 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 today's proposed 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 today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Under this
proposed rule, 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
[[Page 22117]]
incur significant new costs as a result of this proposed rule.
Nonetheless, EPA continues to be interested in any potential
impacts of the proposed rule on small entities and welcomes comments on
issues related to any such impacts.
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 to
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 as to 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 proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector because the rule imposes no
enforceable duty on any State, local, or tribal governments or the
private sector. EPA's proposed approval of the Navajo Nation's Class II
UIC program would not constitute a ``Federal mandate'' because there is
no requirement that Tribes establish UIC regulatory programs, and
because the program, if finally approved, would be a tribal, rather
than a Federal program. Thus, today's proposed rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
For the same reason, EPA has determined that this proposed rule
contains no regulatory requirements that might significantly or
uniquely affect small governments. Thus, today's proposed 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'' 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.''
EPA has determined that this proposed 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. If
finalized, the proposed 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 V
and in the Proposed 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.
In the spirit of Executive Order 13132, and consistent with EPA's
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local 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.''
EPA has concluded that this proposed rule will have tribal
implications. However, it will neither impose substantial direct
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 proposing to approve the Navajo Nation's
application for Class II UIC primacy and thus replace 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 proposed 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.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and Tribal governments,
EPA specifically solicits additional comment on this proposed rule from
Tribal officials.
[[Page 22118]]
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks & 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 proposed rule is not subject to the Executive Order because it
is not economically ``significant'' as defined in the Executive Order
12866. If finalized, the proposed 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 the
Proposed Decision Document. Therefore, it does not concern an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate risk to children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed 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.
Section 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 proposed 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 proposed rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because it provides the same level of
environmental protection as is currently provided by EPA and therefore
will not have any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. If finalized, the proposed 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 the Proposed Decision Document.
List of Subjects in 40 CFR Part 147
Environmental protection, Indian lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water supply.
Dated: April 16, 2008.
Stephen L. Johnson,
Administrator.
For the reasons set out in the preamble, chapter I of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 147--STATE, TRIBAL, AND EPA-ADMINISTERED UNDERGROUND INJECTION
CONTROL PROGRAMS
1. The authority citation for part 147 is revised to read as
follows:
Authority: 42 U.S.C. 300h et seq.; and 42 U.S.C. 6901 et seq.
2. Part 147 heading is revised as set forth above.
Subpart A--[Amended]
3. Section 147.1 is revised to read as follows:
Sec. 147.1 Purpose and scope.
(a) This part sets forth the applicable Underground Injection
Control (UIC) programs for each of the States, territories, and
possessions identified pursuant to the Safe Drinking Water Act (SDWA)
as needing a UIC program, including any Indian country geographically
located within those States, territories, and possessions.
(b) The applicable UIC programs set forth in this part may be
State-administered programs approved by EPA, Tribally-administered
programs approved by EPA, or Federally-administered programs
promulgated by EPA. In some cases, the applicable UIC program for a
particular area may consist of a State-administered or Tribally-
administered program applicable to some classes of wells and a
Federally-administered program applicable to other classes of wells.
Approval of a State or Tribal program is based upon a determination by
the Administrator that the program meets the requirements of section
1422 or section 1425 of the SDWA, any other applicable provisions of
this subpart, and the applicable provisions of 40 CFR parts 124, 144,
145 and 146. A Federally-administered program is promulgated in those
instances where the State or Tribe has not submitted any program for
approval or where the submitted program does not meet the minimum
Federal statutory and regulatory requirements.
(c) In the case of each State or Tribal program approved by EPA
pursuant to section 1422 of the SDWA, the relevant subpart describes
the major elements of that program, including the relevant State or
Tribal statutes and regulations, the Statement(s) of Legal Authority,
the Memorandum of Agreement, and the Program Description. State or
Tribal statutes and regulations that contain standards, requirements,
and procedures applicable to owners or operators have been incorporated
by reference pursuant to regulations of the Office of the Federal
Register. Material
[[Page 22119]]
incorporated by reference is available for inspection in the
appropriate EPA Regional office, in EPA Headquarters, and 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. Other State or Tribal statutes and
regulations containing standards and procedures that constitute
elements of a State or Tribal program but do not apply directly to
owners or operators have been listed but have not been incorporated by
reference.
(d) In the case of any program promulgated under section 1422 for a
State or Tribe that is to be administered by EPA, the relevant State or
Tribal subpart makes applicable the provisions of 40 CFR parts 124,
144, 146, and 148, and any other additional requirements pertinent to
the specific State or Tribal program.
(e) Regulatory provisions incorporated by reference (in the case of
approved State or Tribal programs) or promulgated by EPA (in the case
of EPA-administered programs), and all permit conditions or permit
denials issued pursuant to such regulations, are enforceable by the
Administrator pursuant to section 1423 of the SDWA.
Subpart D--[Amended]
4. 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 the Navajo Nation primacy for the SDWA Class II UIC
program (as defined in Sec. 147.3400), is November 25, 1988.
Subpart GG--[Amended]
5. 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]
6. 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]
7. 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.
8. Subpart KKK is added and reserved to read as follows:
Subpart KKK--[Reserved]
9. Subpart LLL 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; on Navajo Nation tribal trust and
allotted lands 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 [insert date of publication of final rule]; the effective
date of this program is [insert date 30 days after publication of final
rule]. 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's statutes, regulations, and resolutions cited in this
paragraph 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 Office UIC Office, Old NAPA Auto Parts Building
(Tribal Bldg. S009-080), Highway 64, Shiprock, New Mexico,
87420, at the
[[Page 22120]]
Environmental Protection Agency, Region 9, 75 Hawthorne Street, San
Francisco, California, 94105-3920, or at the Office of the Federal
Register, 800 North Capitol Street, NW., Suite 200, Washington, DC.
(1) Navajo Nation Safe Drinking Water Act, Navajo Nation Code Sec.
2501 et seq., Title 22, Chapter 11, Subchapter 15, Subchapters 1, 2, 5,
7, 8 (August 9, 2001):
(2) Navajo Nation Underground Injection Control Regulations
promulgated September 12, 2006, Parts 1 through 3:
(3) Permit and Monitoring Fee Schedule, adopted June 28, 2001:
(4) Uniform Regulations for Permit Review, Administrative
Enforcement: Orders, Hearings, and Rulemakings under Navajo Nation
Environmental Acts, adopted September 5, 2001, Subparts 1 through 3.
(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 Sec. 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. E8-8961 Filed 4-23-08; 8:45 am]
BILLING CODE 6560-50-P