[Federal Register Volume 63, Number 145 (Wednesday, July 29, 1998)]
[Proposed Rules]
[Pages 40586-40619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19936]



[[Page 40585]]

_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 144, 145, and 146



Class V Injection Wells Underground Injection Control Regulations, 
Revisions; Proposed Rule

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

[[Page 40586]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 144, 145 and 146

[FRL-6129-4]
RIN 2040-AB83


Revisions to the Underground Injection Control Regulations for 
Class V Injection Wells

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) today is proposing 
changes to the Class V Underground Injection Control (UIC) regulations 
that would add new requirements for three categories of Class V wells 
that pose a high risk when located in ground water-based source water 
protection areas being delineated by states under the 1996 Amendments 
to the Safe Drinking Water Act (SDWA). Class V motor vehicle waste 
disposal wells in such areas would either be banned or would have to 
get a permit that requires fluids released in those wells to meet the 
drinking water maximum contaminant levels (MCLs) at the point of 
injection. Class V industrial waste disposal wells in ground water-
based source water protection areas also would be required to meet the 
MCLs at the point of injection, and large-capacity cesspools in such 
areas would be banned. EPA is proposing these new requirements to 
address three categories of wells that it has identified as posing a 
high risk of ground water contamination based on available information. 
These are motor vehicle waste disposal wells, industrial waste disposal 
wells, and cesspools in ground water-based source water protection 
areas. Targeting the requirements to those wells will achieve 
substantial protection of underground sources of drinking water.
    EPA also is proposing to consolidate the Class V UIC regulations in 
a ``plain-English'' format to make it easier for Class V well owners 
and operators to understand when and how the regulations apply to them. 
To that end, EPA recommends that you review the proposed regulatory 
language first, and then refer to the preamble for background and 
additional rationale not included in the rule.

DATES: EPA must receive public comment, in writing, on the proposed 
regulations by September 28, 1998. Comments will only be accepted on 
certain new sections of the proposed rule (see Table 1 of the 
Preamble). 

ADDRESSES: Send written comments to the UIC Class V, W-98-05 Comment 
Clerk, Water Docket (MC-4101); U.S. Environmental Protection Agency; 
401 M Street, SW, Washington, DC 20460. Comments may be hand-delivered 
to the Water Docket, U.S. Environmental Protection Agency; 401 M 
Street, SW., East Tower Basement, Washington, DC 20460. Comments may be 
submitted electronically to [email protected].
    Please submit all references cited in your comments. Facsimiles 
(faxes) cannot be accepted. EPA would appreciate one original and three 
copies of your comments and enclosures (including any references). 
Commenters who would like EPA to acknowledge receipt of their comments 
should include a self-addressed, stamped envelope.
    The proposed rule and supporting documents, including public 
comments, are available for review in the Water Docket at the above 
address. For information on how to access Docket materials, please call 
(202) 260-3027 between 9 a.m. and 3:30 p.m. Eastern Time, Monday 
through Friday.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
Safe Drinking Water Hotline, phone 800-426-4791. The Safe Drinking 
Water Hotline is open Monday through Friday, excluding federal 
holidays, from 9:00 a.m. to 5:30 p.m. Eastern Time. For technical 
inquiries, contact Robyn Delehanty, Underground Injection Control 
Program, Office of Ground Water and Drinking Water (mailcode 4606), 
EPA, 401 M Street, SW, Washington, DC 20460. Phone: 202-260-1993. E-
mail: [email protected].

SUPPLEMENTARY INFORMATION:
    Regulated Entities: Although certain proposed clarifications to the 
UIC regulations would apply to owners or operators of any type of Class 
V well, the only entities to be regulated by this proposal when final 
are owners or operators of Class V motor vehicle waste disposal wells, 
industrial wells, and large-capacity cesspools. Potentially regulated 
categories and entities include:

------------------------------------------------------------------------
                                     Examples of regulated entities (if 
             Category                     they have a class V well)     
------------------------------------------------------------------------
Industry and Commerce.............  Gasoline service stations, new and  
                                     used car dealers, any facility that
                                     does any vehicle repair work (e.g.,
                                     body shops, transmission repair    
                                     shops, and muffler repair shops),  
                                     chemical manufacturers, dry        
                                     cleaners, electric component       
                                     manufacturers, small machine       
                                     manufacturers, die and tool        
                                     manufacturers, commercial printers,
                                     asphalt manufacturers, and         
                                     carwashes where engine or          
                                     undercarriage washing is performed 
                                     and any other commercial or        
                                     industrial facility with a Class V 
                                     disposal or drainage well (other   
                                     than stormwater drainage wells).   
State and Local Government........  Road facilities, fire stations, and 
                                     solid waste management facilities. 
Federal Government................  Any Federal agency that owns or     
                                     operates one of the above entities.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your injection well is regulated by this action, you should carefully 
examine the applicability criteria in Secs. 144.81 and 144.85 of the 
proposed rule. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

Preamble Outline

I. Format and Scope of Proposed Rule
II. Background
    A. Statutory and Regulatory Framework
    B. Requirements Applicable to Class V Wells
    C. History of this Rulemaking
    1. 1987 Report to Congress on Class V Wells
    2. 1994 Consent Decree With the Sierra Club
    3. 1995 Proposed Rule
    4. 1996 Amendments to the Safe Drinking Water Act
    5. 1997 Consent Decree With the Sierra Club
    6. 1998 Stakeholder Meetings and Small Entity Outreach
III. EPA Strategy for Class V Well Management
    A. Initial Rule for High-Risk Well Types in Source Water 
Protection Areas

[[Page 40587]]

    B. Further Study of Additional Class V Well Types
IV. Integration of the Class V Rule With the Source Water Assessment 
Program
    A. Overview of the Source Water Assessment Program
    B. Class V Rule Focus on Source Water Protection Areas
    1. Proposal
    2. Alternatives
    C. Other Connections Between the Class V Rule and Source Water 
Assessment Program
V. Proposed Class V Well Requirements
    A. Categories of Class V Wells
    B. Requirements for Motor Vehicle Waste Disposal Wells
    1. Proposal to Ban New and Existing Wells
    2. Proposal to Ban New Wells and Require Existing Wells to 
Either Close or Get a Permit
    3. Alternative
    C. Requirements for Class V Industrial Wells
    1. Proposal
    2. Alternatives
    D. Ban of Large-Capacity Cesspools
    E. Exclusion Criteria for Septic Systems and Cesspools
    F. Other Amendments
    1. Sections 144.3 and 146.3--Definitions
    2. Sections 144.6 and 146.5--Classification of Wells
    3. Existing Regulations Being Reiterated or Replaced in 40 CFR 
Part 144, Subpart G
    4. Part 145--State UIC Program Requirements
VI. Regulatory Impact
    A. Executive Order 12866
    B. Children's Health Protection and Executive Order 13045
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Enhancing the Intergovernmental Partnership
    F. Unfunded Mandates
    G. National Technology Transfer and Advancement Act
    H. Environmental Justice
    I. Effect on States With Primacy

I. Format and Scope of Proposed Rule

    Today's notice proposes to consolidate Class V UIC regulations in a 
new Subpart G to 40 CFR Part 144. This subpart is written in a simple-
to-understand, plain-English format. Before reading the rest of this 
preamble, Class V well owners and operators should review the proposed 
new regulation that presents the enforceable legal requirements they 
need to know about. This preamble does not repeat any of the 
requirements contained in the proposed rule, but rather provides 
background and additional rationale not included in the regulation and 
solicits comments on alternative requirements.
    Because the new Subpart G consolidates the Class V UIC regulations 
in one place, it includes portions of the existing regulations together 
with proposed new requirements. The existing regulations that are being 
reiterated in, or, in some cases, moved to Subpart G for the sake of 
clarity are not open for public comment. Instead, EPA is accepting 
public comment only on the proposed new requirements, which include (1) 
some of the minor revisions originally proposed in the August 28, 1995 
notice, which are repeated today to provide a complete and coherent 
picture of all Class V changes being contemplated, and (2) additional 
requirements being proposed for the first time today. Table 1 below 
identifies those sections of the proposed regulation on which EPA is, 
and is not, accepting comment.
    Today's proposal does not solicit comments on other minor 
amendments proposed on August 28, 1995 that have nothing to do with 
Class V wells. These are amendments to Sec. 144.23 to clearly rule 
authorize Class IV wells used to inject treated water into the same 
formation from which it came if such injection is approved by EPA or a 
state as part of a remediation program, and to Sec. 146.10 to include 
plugging and abandonment requirements for Class IV wells. At the same 
time EPA takes final action on today's proposal, EPA will issue a final 
ruling on these other amendments based on public comments received on 
the 1995 proposal.

    Table 1.--Sections of Proposed Regulation Open for Public Comment   
------------------------------------------------------------------------
              Open for public comment                Not open for public
---------------------------------------------------   comment  Existing 
                                Minor amendments        requirements    
 New requirements in today's   proposed on August     included in plain 
          proposal                  28, 1995           English format   
------------------------------------------------------------------------
Sec.  144.1(f) reference to   Sec.  144.1(g)        Sec.  144.80        
 Subpart G, Part 144           specific inclusions   description of the 
                               and exclusions        five classes of    
                                                     injection wells    
                                                     (reiterates        
                                                     existing Sec.      
                                                     144.6).            
Secs.  144.3 and 146.3        Secs.  144.3 and      Sec.  144.82 (a)    
 definition for sanitary       146.3 definitions     through (e)        
 waste.                        for cesspool,         prohibition of     
                               drywell, improved     fluid movement     
                               sinkhole, septic      (reiterates        
                               system, subsurface    existing Sec.      
                               fluid distribution    144.12).           
                               system, well, and                        
                               well injection.                          
Secs.  144.6(e) and 146.5(e)  Sec.  144.6(a)(3)     Sec.  144.83        
 description of Class V        and 146.5(a)(3)       inventory          
 injection wells.              classification of     requirements for   
                               radioactive waste     Class V wells      
                               disposal wells.       (moved from Sec.   
                                                     144.26(b)(1)(iii)  
                                                     and (e)), except   
                                                     the proposed new   
                                                     inventory          
                                                     requirement for    
                                                     well conversions in
                                                     Sec.  144.83(a)(2)(
                                                     iii), which is open
                                                     for public comment.
Secs.  144.81 definition of                                             
 12 types of Class V                                                    
 injection wells.                                                       
Secs.  144.83(a)(2)(iii)                                                
 requirement to submit new                                              
 inventory information if a                                             
 well in a DI Program is                                                
 converted to an industrial                                             
 well.                                                                  
Secs.  144.84(b)(2) and                             Sec.  144.84        
 (b)(3) description of                               description of when
 circumstances in which                              Class V injection  
 permits or other action is                          is authorized by   
 required.                                           rule (moved from   
                                                     existing Sec.      
                                                     144.24), except the
                                                     circumstances in   
                                                     Sec.  144.84(b)(2) 
                                                     and (b)(3) in which
                                                     permits or other   
                                                     action is required 
                                                     for Class V        
                                                     cesspools, motor   
                                                     vehicle waste      
                                                     disposal wells, and
                                                     industrial wells,  
                                                     which is open for  
                                                     public comment.    
Sec.  144.85 description of                                             
 when additional                                                        
 requirements apply to Class                                            
 V cesspools, motor vehicle                                             
 waste disposal wells, and                                              
 industrial waste disposal                                              
 wells.                                                                 

[[Page 40588]]

                                                                        
Sec.  144.86 additional                                                 
 requirements for certain                                               
 Class V cesspools, motor                                               
 vehicle waste disposal                                                 
 wells, and industrial waste                                            
 disposal wells.                                                        
Sec.  144.87(a)(2)                                  Sec.  144.87(a)(1)  
 discussion of available                             closure            
 alternatives for disposing                          requirements for   
 of waste fluids.                                    Class V cesspools, 
                                                     motor vehicle waste
                                                     disposal wells, and
                                                     industrial waste   
                                                     disposal wells     
                                                     subject to Sec.    
                                                     144.86.            
------------------------------------------------------------------------

II. Background

A. Statutory and Regulatory Framework

    Class V wells are regulated under the authority of Part C of the 
Safe Drinking Water Act (SDWA or the Act) (42 U.S.C. 300h et seq.). The 
SDWA is designed to protect the quality of drinking water in the United 
States, and Part C specifically mandates the regulation of underground 
injection of fluids through wells. The Agency has promulgated a series 
of underground injection control (UIC) regulations under this 
authority.
    Section 1421 of the Act requires EPA to propose and promulgate 
regulations specifying minimum requirements for state programs to 
prevent underground injection that endangers drinking water sources. 
EPA promulgated administrative and permitting regulations, now codified 
in 40 CFR Parts 144 and 146, on May 19, 1980 (45 FR 33290), and 
technical requirements in 40 CFR Part 146 on June 24, 1980 (45 FR 
42472). The regulations were subsequently amended on August 27, 1981 
(46 FR 43156), February 3, 1982 (47 FR 4992), January 21, 1983 (48 FR 
2938), April 1, 1983 (48 FR 14146), July 26, 1988 (53 FR 28118), 
December 3, 1993 (58 FR 63890), June 10, 1994 (59 FR 29958), December 
14, 1994 (59 FR 64339), and June 29, 1995 (60 FR 33926).
    Section 1422 of the Act provides that states may apply to EPA for 
primary responsibility to administer the UIC program (those states 
receiving such authority are referred to as ``Primacy States''). Where 
states do not seek this responsibility or fail to demonstrate that they 
meet EPA's minimum requirements, EPA is required to prescribe, by 
regulation, a UIC program for such states. These direct implementation 
(DI) programs were promulgated in two phases, on May 11, 1984 (49 FR 
20138) and November 15, 1984 (49 FR 45308). For the remainder of this 
preamble, references to the UIC Program ``Director'' mean either the 
Director of the EPA program (where the program is implemented directly 
by EPA) or the Director of the Primacy State program (where the state 
is responsible for implementing the program). Also, currently all Class 
V UIC Programs in Indian Country are directly implemented by EPA. 
Therefore, for the remainder of this preamble, references to DI 
Programs include Class V programs in Indian Country.

B. Requirements Applicable to Class V Wells

    The UIC regulations establish five classes of injection wells. 
Class I wells are used to inject hazardous and non-hazardous waste 
beneath the lowermost formation containing an underground source of 
drinking water (USDW) within one-quarter mile of the well bore. Class 
II wells are used to inject fluids associated with oil and natural gas 
recovery and storage of liquid hydrocarbons. Class III wells are used 
in connection with the solution mining of minerals. Class IV wells are 
used to inject hazardous or radioactive wastes into or above a 
formation that is within one-quarter mile of a USDW. (Class IV wells 
are generally prohibited by 40 CFR Sec. 144.13.) Class V wells are 
defined in the regulations as any well not included in Classes I 
through IV.
    Class V wells are currently authorized by rule (Sec. 144.24(a)). 
Well authorization expires upon the effective date of a permit issued 
pursuant to Secs. 144.25, 144.31, 144.33, or 144.34, or upon proper 
closure of the well. The current regulations subject Class V wells to 
the general statutory and regulatory prohibitions against endangerment 
of USDWs, as well as some specific requirements. Under Sec. 144.12(a), 
owners or operators of all injection wells, including Class V injection 
wells, are prohibited from engaging in any injection activity that 
allows the movement of fluid containing any contaminant into USDWs, if 
the presence of that contaminant may cause a violation of any primary 
drinking water regulation under 40 CFR part 142 or may otherwise 
adversely affect human health. Section 144.12 (c) and (d) prescribe 
mandatory and discretionary actions to be taken by the Director if a 
well is not in compliance with Sec. 144.12(a). Specifically, the 
Director must choose between requiring the injector to apply for an 
individual permit, ordering such action as closure of the well to 
prevent endangerment, or taking an enforcement action.
    Owners or operators of Class V injection wells must also submit 
basic inventory and assessment information under Sec. 144.26. In 
addition, Class V wells are subject to the general program requirements 
of Sec. 144.25 under which the Director may require a permit, if 
necessary, to protect USDWs. Moreover, under Sec. 144.27, EPA may 
require owners or operators of any Class V well, in EPA-administered 
programs, to submit additional information deemed necessary to protect 
USDWs. Owners or operators who fail to submit the information required 
under Secs. 144.26 and 144.27 are prohibited from using their injection 
wells.

C. History of This Rulemaking

    While implementing the above requirements, EPA has inventoried and 
assessed Class V wells and has pursued new rulemaking activities and 
non-regulatory approaches to Class V well management. Major milestones 
during this process leading to today's proposal are summarized below.
1. 1987 Report to Congress on Class V Wells
    In accordance with the 1986 Amendments to the SDWA, EPA summarized 
information on 32 categories of Class V wells in a Report to Congress 
entitled Class V Injection Wells--Current Inventory; Effects on Ground 
Water; and Technical Recommendations, September 1987 (EPA Document 
Number 570/9-87-006). This report presents a national overview of Class 
V injection practices

[[Page 40589]]

and state recommendations for Class V design, construction, 
installation, and siting requirements. These state recommendations, 
however, did not give EPA a clear mandate on what, if any, additional 
measures were needed to control Class V wells on the national level. 
For any given type of well, the recommendations can vary broadly and 
are rarely made by more than two or three states. For example, the 
recommendations for septic systems range from further studies (3 
states) to statewide ground water monitoring (1 state). For industrial 
waste water wells, some states recommend immediate action and closure 
while others recommend monitoring and ground water evaluation studies.
2. 1994 Consent Decree With the Sierra Club
    On December 30, 1993, the Sierra Club filed a complaint against EPA 
in the United States District Court for the District of Columbia 
alleging that EPA failed to comply with section 1421 of the SDWA 
regarding publication of proposed and final regulations for Class V 
injection wells. In particular, the complaint alleged that EPA's 
current regulations regarding Class V wells do not meet the SDWA's 
statutory requirements to ``prevent underground injection which 
endangers drinking water sources.'' (Complaint, Paragraph 15)
    On August 31, 1994, EPA entered into a consent decree with the 
Sierra Club which required that no later than August 15, 1995, the 
Administrator sign a notice to be published in the Federal Register 
proposing regulatory action that fully discharges the Administrator's 
rulemaking obligation under section 1421 of the SDWA, 42 U.S.C. 300h, 
with respect to Class V injection wells. In this notice, EPA had to (1) 
propose additional regulations with respect to all Class V injection 
wells, (2) propose a decision that no further rulemaking for these 
wells is necessary, or (3) propose additional regulations for some 
Class V injection wells and a decision that no further rulemaking is 
necessary for the remaining wells (Consent Decree, Paragraph 2). The 
consent decree further required that, no later than November 15, 1996, 
the Administrator sign a final rulemaking notice to be published in the 
Federal Register fully discharging the Administrator's rulemaking 
obligations under section 1421 with respect to Class V injection wells 
(Consent Decree, Paragraph 3).
3. 1995 Proposed Rule
    On August 15, 1995, the Administrator signed a notice of proposed 
rulemaking intended to fulfill EPA's obligation under the 1994 consent 
decree with the Sierra Club (60 FR 44652, August 28, 1995). In this 
notice, EPA proposed not to adopt additional federal regulations for 
any types of Class V injection wells. Instead, the Agency proposed to 
address the risks posed by certain wells using existing authorities and 
a Class V management strategy designed to (1) speed up the closure of 
potentially endangering wells; and (2) promote the use of best 
management practices to ensure that other Class V wells of concern do 
not endanger USDWs. Several factors led EPA to propose this approach, 
including: (1) the wide diversity in the types of fluids being 
injected, ranging from high risk to not likely to endanger; (2) the 
large number of facilities to be regulated; and (3) the nature of the 
regulated community, which consists of a large proportion of small 
businesses.
    EPA received many comments that supported the Agency's proposal to 
not impose more regulations for Class V wells. Commenters who supported 
the rule included some states and industries that use Class V injection 
wells. In general, these commenters supported the rule because it 
provided maximum flexibility to states to use existing authorities to 
address high-risk site specific factors. However, EPA also received a 
number of comments that raised concerns about the proposal, primarily 
from states and an environmental group. In particular, several 
commenters questioned whether a UIC program without additional 
requirements for what they believed to be relatively high-risk well 
types, including Class V industrial waste disposal wells and cesspools, 
could prevent endangerment to drinking water sources as required by the 
SDWA. These commenters claimed that at least some types of wells pose a 
known threat to USDWs and that lack of data or ability to address the 
entire threat posed by Class V wells does not justify failing to act to 
address at least part of the threat.
    EPA now believes that the 1995 proposal was inadequate to protect 
USDWs for two main reasons. First, the 1995 approach proposed to 
address all Class V wells regardless of the level of risks they pose to 
USDWs, with one regulatory approach. Specifically the proposed approach 
did not provide a clear set of regulatory requirements for different 
categories of wells based on their level of risk. As a result, the 
proposed rule did not adequately address high-risk wells that threaten 
public drinking water supplies. EPA now believes that specific 
regulatory requirements are necessary to control the risks posed by 
industrial waste disposal wells, motor vehicle waste disposal wells, 
and large-capacity cesspools in delineated source water protection 
areas, as described below. This belief was echoed in some of the public 
comments received on the proposed rule and in recent stakeholder 
meetings. Second, EPA believes that the 1995 proposed rule did not 
provide for adequate public health protection nationwide. Specifically, 
it did not establish a clear baseline program for states to follow and, 
therefore, even though the authority exists, states could allow 
inadequate controls in those situations where there is inadequate 
information and/or inadequate resources to address Class V wells. On 
the other hand, it has been suggested that the additional information 
expected to be generated through the source water assessment program, 
including an inventory of sources of contamination and an assessment of 
the vulnerability of public water systems to such contamination could 
strengthen the 1995 approach. If commenters wish to submit comments on 
this issue they are welcome to do so.
4. 1996 Amendments to the Safe Drinking Water Act
    The 1996 Amendments to the SDWA establish a new and flexible 
approach to drinking water protection. In particular the Amendments 
make source water protection a national priority. They create 
requirements and incentives for Primacy states to assess their own 
source waters, including the susceptibility of public water systems to 
contamination, and to encourage states to establish source water 
protection programs that fit their particular needs and conditions.
    As discussed in more detail in section IV of today's preamble, EPA 
believes it is necessary to re-propose Class V UIC regulations that are 
integrated with these new programs for source water protection. For 
example, today's proposal focuses on source water protection areas, 
consistent with the national priority established by the 1996 SDWA 
Amendments. Today's proposal also would provide incentives for states 
to complete source water assessments in a timely manner, reinforcing 
other actions the Agency is taking to achieve the goal of enhanced 
protection of source waters.
5. 1997 Consent Decree With the Sierra Club
    The Sierra Club Legal Defense Fund submitted comments on the 1995 
proposed Class V rule alleging that the proposal failed to carry out 
statutory

[[Page 40590]]

requirements. As noted above, based on these and other comments, EPA 
decided to reconsider its proposed approach. Because this 
reconsideration would extend the time necessary to complete the 
rulemaking for Class V wells, EPA and the Sierra Club entered into a 
modified consent decree on January 28, 1997 that extends the dates for 
rulemaking that had been in the 1994 decree. The modified decree 
requires three actions. First, by no later than July 18, 1998 (EPA used 
one of its 30 day extensions to the original June 18, 1998 deadline), 
the EPA Administrator must sign a notice to be published in the Federal 
Register proposing regulatory action that fully discharges the 
Administrator's rulemaking obligation under section 1421 of the SDWA 
with respect to those types of Class V injection wells presently 
determined to be high risk by the Administrator (based on the 
additional study described below, other types of Class V wells may be 
found to pose a high risk and warrant additional regulation later). 
This notice must either (1) propose regulations fully implementing 
section 1421 of the SDWA with respect to the types of Class V wells 
currently known to pose a high risk, (2) propose a decision that no 
further rulemaking is necessary in order to fully discharge the 
Administrator's rulemaking obligation with respect to such high-risk 
wells, or (3) propose regulations fully implementing section 1421 with 
respect to some of these high-risk Class V wells, and propose a 
decision that no further rulemaking is necessary in order to fully 
discharge the Administrator's rulemaking obligations with respect to 
the remaining high-risk Class V injection wells. According to the 
consent decree, the Administrator must sign a final rulemaking for 
high-risk Class V wells by no later than August 31, 1999. (Consent 
Decree, Paragraphs 2a and 2b). Today's proposal has been developed in 
response to this first required action and supersedes the 1995 proposal 
with respect to these high-risk wells.
    Second, by no later than September 30, 1999, EPA must complete a 
study of all Class V wells not included in the rulemaking on high-risk 
Class V injection wells (Consent Decree, Paragraph 2c). Based on this 
study, EPA may find that some of these other types of Class V wells 
also pose a high risk.
    Third, by no later than April 30, 2001, the EPA Administrator must 
sign a notice to be published in the Federal Register proposing to 
discharge the Administrator's rulemaking obligations under section 1421 
of the SDWA with respect to all Class V injection wells not included in 
the rulemaking for currently identified high-risk Class V injection 
wells. That proposal will supersede the 1995 proposal with respect to 
all remaining Class V wells. The Administrator must sign a final 
rulemaking for these remaining Class V wells by no later than May 31, 
2002.
6. 1998 Stakeholder Meetings and Small Entity Outreach
    To help shape today's proposal, EPA convened three stakeholder 
meetings to inform potentially affected entities of the requirements 
under consideration and to solicit feedback. One meeting was in 
Washington, DC, on January 20, 1998, one was in Chicago, IL on January 
27, 1998, and one was in San Francisco, CA on February 19, 1998.
    As required by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA), EPA also has conducted outreach directly to 
representatives of small entities that would be affected by the 
proposed rule. In consultation with the Small Business Administration 
(SBA), EPA identified 17 representatives of small entities that were 
most likely to be affected by the proposal. In December, 1997, EPA 
prepared an outreach brochure titled ``Possible Changes to Class V UIC 
Requirements: Information for Owners and Operators of Class V Injection 
Wells'' (available for review in the public docket supporting today's 
notice). This brochure was distributed to the small entity 
representatives and EPA convened a two-hour conference call with these 
representatives on January 15, 1998. Also in January, 1998, EPA 
presented the new Class V requirements being considered to the SBA 
Environmental Roundtable.
    Efforts to identify and incorporate small entity concerns into this 
rulemaking culminated with the convening of a Small Business Advocacy 
Review Panel, as required by SBREFA. This Panel was headed by EPA's 
Small Business Advocacy Chairperson with the Office of Policy, Planning 
and Evaluation, and consisted of the Director of the Office of Ground 
Water and Drinking Water within EPA's Office of Water, the 
Administrator of the Office of Information and Regulatory Affairs 
within the Office of Management and Budget, and the Chief Counsel for 
Advocacy of the SBA. For a 60-day period starting in February 1998, the 
Panel reviewed technical background information related to this 
rulemaking, reviewed comments provided by small entity representatives, 
and met on several occasions with EPA and the small entity 
representatives to identify issues and explore alternative approaches 
for accomplishing environmental protection goals while minimizing 
impacts to small business. This process, along with the Panel's 
findings and recommendations, are presented in the April 1998 ``Report 
of the Small Business Advocacy Review Panel on the Revisions to the 
Underground Injection Control Regulations for Class V Injection 
Wells,'' available for review in the public docket supporting today's 
proposal.
    Today's notice incorporates all of the recommendations on which the 
Panel reached consensus. In particular, the Panel recommended that the 
proposal offer alternatives to the proposed ban of Class V motor 
vehicle waste disposal wells. Therefore, in addition to the proposed 
ban, today's notice presents a co-proposal in both the preamble and 
proposed regulatory language, as well as another alternative that is 
discussed in the preamble only (see section V.B of the preamble and 
Sec. 144.84(b) and Sec. 144.86 of the proposed regulation). The Panel 
also recommended that UIC Program Directors be allowed to extend the 
time to comply with the new requirements from 90 days to up to a year 
in certain situations. This recommendation has been adopted in today's 
notice (see sections V.B and V.C of the preamble and Sec. 144.85(a) and 
(I) and Sec. 144.86 of the proposed regulation). Other changes made in 
response to Panel recommendations include the following: the proposed 
definitions of industrial wells and drainage wells have been revised to 
make sure wells intended for stormwater management are (subject to 
certain conditions) regulated as drainage wells not industrial wells 
(see section V.A of the preamble and Sec. 144.81(b) and (e) of the 
proposed regulation); additional data and rationale have been added to 
the preamble to support EPA's belief that motor vehicle waste disposal 
wells in source water protection areas pose a high risk (see section 
V.B.1); the preamble discussion of regulatory impacts has been expanded 
to describe and solicit comments on the approach used to estimate the 
type and number of small entities potentially subject to the rule (see 
section VI.D); the proposed definitions of ``industrial'' and ``other 
industrial'' wells have been revised to clarify that wells injecting 
wastewater from carwashes qualify as industrial wells subject to the 
rule only if specifically set up for engine or undercarriage washing 
(see section V.A of the preamble and Sec. 144.81(b) and (l) of the 
proposed regulation); the preamble has been revised to introduce a 
report submitted by the National Funeral Directors Association on 
funeral

[[Page 40591]]

home septic systems and to request comments on the merits of moving 
such systems into the other industrial well category (see section V.A); 
the preamble has been expanded to clarify that Class V wells at motor 
vehicle service facilities may not be subject to the rule if motor 
vehicle waste fluids are prevented from entering the well (see section 
V.B.1); the preamble has been expanded to elaborate on the rationale 
for and ask for comment on the proposed statewide coverage of the new 
requirements in states that fail to complete their source water 
assessments by May 2003 (see section IV.B.1 and 2); the preamble and 
the supporting economic analysis have been revised to acknowledge and 
account for the cleanup requirements that may be triggered by the 
proposal to close certain Class V wells and to account for the likely 
overlap between areas where Class V wells are located and source water 
protection areas (see section V.B.1); the proposed regulatory language 
has been expanded to identify ways well owners or operators can learn 
if they are in a source water protection area (see Sec. 144.85(g)); and 
the preamble has been expanded to explain the rationale for and ask for 
comment on proposing monitoring requirements for motor vehicle waste 
disposal wells but not industrial wells (see section V.B.3).
    The Panel did not reach consensus on two issues. One issue 
concerned the basis for regulation, with some Panel members questioning 
whether EPA had an adequate basis to conclude that the non-regulatory 
approach proposed in 1995 was inadequate. In response to this issue, 
today's preamble includes additional discussion explaining why EPA now 
believes the 1995 proposal is inadequate and why the proposed new 
regulations are necessary (see section II.C.3).
    The other issue concerned the proposed requirement for industrial 
well injectate to meet MCLs at the point of injection, with some Panel 
members suggesting the EPA consider the possibility of allowing the 
injectate to meet some higher multiple of the MCL (e.g., 10 or 100 
times the MCL) for certain contaminants under certain conditions, in 
recognition of the fact that some contaminants are significantly 
attenuated by percolation through soil prior to reaching the water 
table, and most are diluted within the aquifer prior to reaching a 
public water system. There are several research reports in the docket 
which discuss the question of attenuation of volatile organic compounds 
and metals in the soil, under various conditions. In addition, many 
existing wells are designed in accordance with state and local 
requirements to treat wastes before releasing them into the soil. These 
Panel members suggested that for such contaminants (e.g., metals, which 
generally do not travel far from the point of injection unless injected 
directly into the water table) EPA should try to identify conditions 
(e.g., soil type, water table depth, distance to nearest drinking water 
well) that would allow injection of the contaminants without 
endangering drinking water sources. In making this suggestion they 
noted that to be workable, such conditions would have to be easily 
verifiable. They also suggested that EPA consider expanding the 
flexibility available under the permitting option for motor vehicle 
wells to allow UIC Program Directors to permit discharges that exceed 
an MCL at the point of injection if this would not endanger USDWs, 
based on site specific circumstances.
    EPA believes that its proposed approach to regulate cesspools, 
automotive service station wells and industrial wells is consistent 
with its long-standing interpretation of the statutory requirements to 
assure the protection of underground sources of drinking water. EPA 
also believes that developing a set of conditions within which a Class 
V well owner or operator could inject waste that exceeds drinking water 
standards without endangering drinking water sources would not be a 
viable option for most small entities because of the difficulty and 
expense involved in collecting the site-specific hydrologic, geologic, 
and soil information necessary to determine if waste, above the MCL, 
could be injected without endangering the underlying USDW. 
Additionally, EPA questions whether it would be possible to develop 
such conditions because of the difficulty of anticipating certain 
events (such as high volume spills, illicit discharges, the siting of 
new drinking water supplies wells, and improper system maintenance) 
that could endanger underlying USDWs.
    However, EPA is requesting comment on its position. Some commenters 
have suggested that there are situations where a facility could inject 
waste that exceeds some MCLs in source water protection areas without 
endangering drinking water supplies. EPA believes these situations are 
extremely rare and that, if allowed to inject above the MCL, the vast 
majority of facilities would pose an endangerment to current and future 
water supplies. EPA's proposed regulatory approach to require 
facilities to meet MCLs is designed to be protective of public health. 
Commenters are welcome to submit their views on whether or not they 
agree with EPA's position. If commenters disagree with EPA's position 
they should discuss specific contaminants and conditions for which an 
alternative regulatory approach would be appropriate and provide data 
supporting their position.

III. EPA Strategy for Class V Well Management

    Today EPA is proposing an expanded Class V well management strategy 
to resolve major issues raised in public comments on the 1995 proposal, 
to embrace priorities and help achieve goals defined under the 1996 
Amendments to the SDWA, and to fulfill the first phase of the Agency's 
requirements under the 1997 consent decree with the Sierra Club.
    As discussed in section II.B above, Class V wells are currently 
authorized by rule as long as (1) they do not endanger USDWs, and (2) 
the well owners or operators submit basic inventory and assessment 
information. If a Class V well may endanger USDWs, UIC Program 
Directors can require the injector to apply for a permit, order 
preventive actions (including closure of the well) to prevent the 
violation, require remediation to assure USDWs are protected, or take 
enforcement action. These, and other existing, federal requirements and 
authorities will continue as basic elements of EPA's Class V strategy, 
applicable to all Class V wells in all areas.
    Consistent with the 1997 decree, EPA is taking a step-wise approach 
to supplement the existing program and ensure Class V injection wells 
do not endanger USDWs. This approach consists of (1) an initial rule 
creating additional requirements for high-risk Class V well types in 
ground water-based source water protection areas; and (2) further study 
of other types of Class V wells not covered in the initial rule to 
provide the factual basis for further regulatory action, as necessary.

A. Initial Rule for High-Risk Well Types in Source Water Protection 
Areas

    As the first step of its Class V strategy, EPA is today proposing 
to add requirements for three categories of Class V injection wells 
determined to be the highest risk by the Administrator. The three 
categories are: (1) motor vehicle waste disposal wells, (2) industrial 
wells, and (3) large-capacity cesspools, when any of these wells are 
located in source water protection areas delineated for community water 
systems and non-transient non-community water systems that use ground 
water as a

[[Page 40592]]

source.1 Source water protection areas, to be defined by 
states in accordance with the 1996 Amendments to the SDWA, will 
identify places critical for the protection of most public drinking 
water supplies.
---------------------------------------------------------------------------

    \1\ As defined in the drinking water regulations at 40 CFR 
141.2, a ``community water system'' is a public water system that 
serves at least 15 service connections used by year-round residents 
or regularly serves at least 25 year-round residents. A ``non-
transient non-community water system'' is a public water system that 
is not a community water system and that regularly serves at least 
25 of the same people over six months a year. Non-transient non-
community water systems may include systems that provide water to 
day care centers, government/military installations, manufacturers, 
hospitals or nursing homes, office buildings, schools, and other 
facilities. A ``transient non-community water system'' provides a 
less regular source of water, such as to people visiting rest areas 
and campgrounds.
---------------------------------------------------------------------------

    In such delineated areas, today's proposal would ban new Class V 
motor vehicle waste disposal wells, as well as new cesspools having the 
capacity to serve 20 persons or more per day. Existing Class V motor 
vehicle waste disposal wells in delineated areas would either be banned 
or required to get a permit specifying that released fluids must meet 
primary drinking water maximum contaminant levels (MCLs) at the point 
of injection. Existing large-capacity cesspools in delineated areas 
would have to be phased out within five years. Owners or operators of 
Class V industrial wells in delineated areas would either have to close 
their wells or make sure the fluids they inject meet the MCLs at the 
point of injection.
    As discussed later in this preamble, the conclusion that these 
Class V wells pose a high risk when located in ground water-based 
source water protection areas is based on substantial information and 
the combined professional judgment of EPA and state geologists and 
engineers that are responsible for implementing the Class V UIC 
program. EPA requests comment on this position. Specifically, do 
commenters believe that it is appropriate to designate motor vehicle 
and industrial wells in delineated areas as high risk and regulate them 
under this proposal or, alternatively, do commenters believe that there 
is a better (i.e., more or less inclusive) categorization that EPA 
could use to identify high risk wells? Commenters are encouraged to 
provide data supporting their position.
    Available information presented in the Report to Congress and 
summarized in the 1995 proposal also suggests that there may be other 
categories of Class V wells that pose a high risk. Individual wells in 
any of the Class V categories also may endanger USDWs, depending on 
fluids released into the wells and site-specific conditions. However, 
available data regarding the risks posed by other Class V wells are 
insufficient for EPA to conclude that additional federal regulation is 
necessary at this time. Therefore, as the second step of the Class V 
strategy, EPA will continue to study all of the categories of Class V 
wells not addressed in today's proposal to determine the need for 
additional regulations. In the meantime, EPA will continue to rule 
authorize the other categories of Class V wells and actively control 
them by implementing and enforcing the existing regulations. This will 
include enforcing the Sec. 144.12 prohibition against the endangerment 
of USDWs, calling individual problem wells in for a permit under 
Sec. 144.25 authority, and requiring the submittal of additional 
information deemed necessary to protect USDWs in accordance with 
Sec. 144.27.
    At the same time, EPA expects and strongly encourages states to use 
existing UIC authorities to ensure all Class V wells are not 
endangering USDWs. These efforts should not be limited to wells in 
source water protection areas, which have received national priority 
under this regulation. There may be other sensitive areas, outside of 
delineated source water protection areas, that warrant more stringent 
control on a state or local level. Nothing in this rule precludes a 
state or local government from promulgating more stringent requirements 
above and beyond existing UIC authorities.

B. Further Study of Additional Class V Well Types

    The second step in the strategy will involve continuing study to 
assess the size and impact of the Class V well universe not addressed 
by today's proposal. Other types of Class V wells are not covered by 
today's proposal because more information is needed to determine 
whether additional federal regulation for these other well types is 
necessary, and if so, what that additional regulation should entail. 
Therefore, EPA will undertake further study to assess risks, fill 
existing information gaps, and provide a factual basis for any further 
regulatory action.

IV. Integration of the Class V Rule With the Source Water 
Assessment Program

    Today's proposal has been developed to productively use and promote 
linkages between the Class V UIC program and EPA's developing source 
water assessment program. Both programs are authorized by the SDWA. The 
UIC Program is designed to protect all current and potential USDWs from 
pollution by injection wells. The source water assessment program is 
structured to identify all potential sources of contamination within 
areas that now provide short-term recharge to public water supply wells 
and surface water intakes.

A. Overview of the Source Water Assessment Program

    Section 1453 of the SDWA Amendments of 1996 (Pub. L. 104-182) 
establishes a new requirement for source water assessments. EPA 
published guidance describing how the states should carry out a source 
water assessment program within the state's boundaries. The final 
guidance, entitled State Source Water Assessment and Protection 
Programs Guidance (EPA 816-R-97-009), was released in August 1997 and 
is available in the docket for today's proposal.
    Source water assessment programs comprise essentially the first 
three steps of a full prevention program. First, a program must 
delineate the boundaries of the assessment areas in the state from 
which one or more public drinking water systems receive supplies of 
drinking water. In delineating these areas, states must use ``all 
reasonably available hydrogeologic information on the sources of the 
supply of drinking water in the state and the water flow, recharge, and 
discharge and any other reliable information as the state deems 
necessary to adequately determine such areas.'' Second, the state must 
identify contaminants of concern, and for those contaminants, the state 
must inventory significant potential sources of contamination in 
delineated source water protection areas. Third, the state must 
``determine the susceptibility of the public water systems in the 
delineated area to such contaminants.''
    States must submit their proposed source water assessment programs 
to EPA no later than 18 months after publication of the Source Water 
Assessment and Protection Programs Guidance, which would be February 
1999. EPA then has nine months, until November 1999, to approve or 
disapprove the submitted state program. Once approved, a state should 
complete its source water assessments by no later than November 2001, 
or if EPA grants an extension, by May 2003. For purposes of this 
proposed rule, a state program is considered complete when the state 
program has been approved by EPA and all its local assessments for 
community and non-transient non-community water systems have been 
completed. This means that all local assessments within a state have

[[Page 40593]]

performed the three required steps of delineation, source 
identification, and susceptibility analysis. This proposed rule does 
not regulate wells within the source water protection areas for 
transient non-community water systems. Therefore, for purposes of this 
proposed rule, assessments for these systems do not have to be 
performed for the state program to be considered complete.
    Other features of the program include the new section 1452 grant 
program, which established the Drinking Water State Revolving Fund. 
Grants under section 1452 may be used to assist the states in financing 
the source water assessment program and most states have elected to use 
the grants for this purpose. In addition, connections between the 
source water assessment program and relief from the contaminant 
monitoring requirements of the SDWA provide an incentive for states to 
complete implementation of the source water assessment program within a 
relatively short (two-year) timetable. For a state to tailor 
alternative monitoring requirements for public water systems under a 
new permanent monitoring relief provision contained in the 1996 
Amendments, a state must have an EPA-approved source water assessment 
program. Moreover, any public water system seeking alternative 
monitoring requirements under a state's permanent monitoring relief 
authority must have a complete source water assessment.
    Section 1453 expresses Congress' intent that states use data 
generated under other programs. To avoid duplication and encourage 
efficiency, the source water protection area delineation and source 
identifications are specifically encouraged to make use of any of the 
following: vulnerability assessments, sanitary surveys, and monitoring 
programs; delineations or assessments of ground water sources under a 
state wellhead protection program; delineations or assessments of 
surface or ground water sources under a state pesticide management 
plan; delineations or assessments of surface water sources under a 
state watershed initiative or to satisfy the watershed criterion for 
determining if filtering is required under the Surface Water Treatment 
Rule; and delineations or assessments of surface or ground water 
sources under programs or plans pursuant to the Federal Water Pollution 
Control Act.

B. Class V Rule Focus on Source Water Protection Areas

1. Proposal
    Today's proposal focuses on source water protection areas as a key 
element for the protection of USDWs. Areas delineated under a state 
source water assessment program represent, at a minimum, areas 
designated to receive top priority for the protection of public 
drinking water supplies. Consistent with this prioritization, this rule 
would target the high-risk Class V wells in delineated source water 
protection areas for public water systems that use ground water as a 
source.
    Figure 1 shows how the proposed Class V rule would be linked with 
the source water assessment program in terms of major milestones and 
areas covered. According to the 1997 consent decree with the Sierra 
Club (as modified), the new Class V requirements would be finalized by 
August 1999. The requirements would then become effective in DI 
Programs within 60 days, or by October 1999. Primacy States would have 
270 days, or until May 2000, to submit for EPA's approval any program 
revisions needed to implement the new requirements. Assuming it takes 
three months for EPA to approve these revisions, the new requirements 
would become effective in Primacy States by August 2000. If the source 
water assessment program in a state is complete by the effective date 
of the rule (either October 1999 for DI Programs or around August 2000 
for Primacy States), the new requirements would apply only to 
delineated source water protection areas. If some but not all local 
assessments in a state have been completed by that time, meaning that 
the state program is not complete, then the new requirements would 
apply to delineated areas where local assessments are complete. If all 
local assessments are not done by May 2003, which is the time by which 
state programs should be complete according to the State Source Water 
Assessment and Protection Programs Guidance, the new Class V 
requirements would apply statewide because there would be no way of 
knowing which wells in the state pose the highest risk. A possible 
exception would be if a state completed local source water assessments 
in one geographic area, the state would know which wells within that 
specific geographic area pose the highest risk.
    The requirements would apply statewide permanently, even if a state 
completed its source water assessment program at some later time after 
May 2003. EPA realizes that some commenters may think that it is 
unreasonable, unfair, or unnecessary to permanently apply the new 
requirements statewide if a state's source water assessment program is 
not complete by May 2003, but is completed some time later. However, 
EPA believes this is the best approach for two reasons. First, this 
approach would provide a strong incentive for states to establish and 
complete a source water assessment program in a timely manner, 
consistent with the goal under the 1996 SDWA Amendments. Second, 
applying the requirements statewide starting in May 2003 and then 
changing to apply the requirements only to delineated areas when 
programs are completed some time afterward would be very confusing and 
difficult to implement, both for well owners or operators and for UIC 
regulatory agencies. EPA believes this confusion and difficulty would 
ultimately result in the new requirements not being implemented 
effectively to ensure the protection of USDWs. The next section of this 
preamble on alternatives provides further discussion of a permanent 
statewide ban and possible alternative approaches. It should be noted, 
however, that with the exception of Wyoming and Indian Country as 
discussed below, EPA fully expects states to meet the deadline because 
the ground water component of source water assessment programs is 
likely to be based on the Wellhead Protection Programs already 
established in most states. Therefore, the point is expected to be moot 
in most places.

BILLING CODE 6560-50-P

[[Page 40594]]

[GRAPHIC] [TIFF OMITTED] TP29JY98.000


BILLING CODE 6560-59-C

[[Page 40595]]

    The situation is more complicated in Wyoming and Indian Country 
because the State of Wyoming and Tribes do not have primacy for the 
public water system program and, as such, are not required to conduct 
source water assessments. Therefore, the proposed Class V UIC 
requirements would apply throughout Wyoming and Indian Country unless 
the EPA Regional Offices worked with the State and Tribes to delineate 
source water protection areas and implement other source water 
assessment activities. Alternatively, EPA's Source Water Guidance 
recommends that each Tribe implement a source water assessment program 
``to the extent appropriate resources are available to do so.'' Tribes 
may either establish and implement their own program and submit it to 
EPA for approval, or they may participate in a state program as an 
alternative to, or in conjunction with, their own program. It is 
uncertain, however, which Tribes are likely to participate in source 
water assessment activities and to what extent.
    States must delineate source water protection areas for: (1) Public 
water systems based solely on ground water; (2) public water systems 
based solely on surface water; and (3) public water systems using both 
ground and surface water, or systems using ground water that is 
influenced by surface water. In addition, states must delineate source 
water protection areas for: (1) Community water systems; (2) non-
transient non-community water systems; and (3) transient non-community 
water systems. The requirements in today's proposal would apply to 
Class V cesspools, motor vehicle waste disposal wells, and industrial 
wells in source water protection areas delineated for community water 
systems and non-transient non-community water systems that use ground 
water as a source. For the purpose of today's proposal, this would 
include such systems that have at least one ground-water source that 
contributes to their annual water supply.
    This focus on ground water, rather than surface water, is 
consistent with the scope of the UIC program to protect underground 
sources of drinking water. Moreover, based on EPA's most recent 
Community Water System Survey (EPA 815-R-97-001a, January 1997, page 
6), almost 80 percent of community water systems use primarily ground 
water. Less than 10 percent of systems surveyed primarily use surface 
water sources.
    EPA believes the focus on community water systems and non-transient 
non-community systems is justified based on the risks involved and the 
purpose of this rule. According to the most recent survey, community 
systems and non-transient non-community systems supply drinking water 
to 93 percent and 2 percent of the U.S. population, respectively 
(Community Water System Survey, EPA 815-R-97-001a, January 1997, page 
5). In addition, the people relying on transient non-community water 
systems, such as at rest areas or campgrounds, do not drink water from 
the same system on a regular basis. Any exposure to contamination in a 
given system, therefore, tends to be one time or infrequent, as opposed 
to the chronic exposure and potentially significant risk associated 
with the consumption of contaminated water from community systems and 
non-transient non-community systems. Since most of the contaminants 
found in wells covered by today's proposal pose chronic, not acute 
risks, it would take repeated exposure to these contaminants for 
adverse health effects to be realized. Repeat exposure does not occur 
in transient systems. The purpose of today's rule is to address 
designated high-risk wells for which additional information is 
unnecessary. Given the limited exposure at transient systems, EPA does 
not believe that wells within delineated areas for such systems are 
categorically ``high risk'' and thus they are not part of today's rule.
    The Agency recognizes, however, that there may be instances in 
which pathogens in untreated sanitary waste released into Class V 
cesspools could contaminate the water supply source for a transient 
system and pose an ``acute'' risk if consumed (meaning there could be a 
serious health risk given the nature and high level of contamination, 
despite the fact that the water is not regularly consumed). This would 
be a concern only if a Class V cesspool were in a location and 
hydrogeologic setting that would permit pathogens to migrate to a 
ground water supply well that serves a transient system, and then, only 
if there were no (or inadequate) disinfection of the water prior to it 
being consumed. EPA believes these circumstances are in fact limited 
because of the small number of large capacity cesspools that still 
exist. Nevertheless, to further limit the acute risk associated with 
large-capacity cesspools, EPA could expand today's proposed cesspool 
requirements to source water protection areas delineated for transient 
non-community systems that use ground water as a source, in addition to 
such areas for community water systems and non-transient non-community 
water systems. EPA requests comment on the merits and potential impacts 
of including transient systems within the scope of the proposed 
requirements for cesspools. Based on such comment, EPA may adopt that 
approach in the final rule.
    EPA underscores that this initial rule targets certain source water 
protection areas for the purpose of prioritizing national policy. The 
rule does not establish differential levels of protection for different 
areas, but rather proposes specific measures EPA believes are necessary 
to ensure that high risk Class V wells do not endanger USDWs in the 
highest priority areas. The prohibition against endangerment of USDWs, 
found in Sec. 144.12 of the existing UIC regulations, would continue to 
apply to all Class V wells and all areas, whether or not a state has a 
completed source water assessment program. Section 144.12(a) in 
particular provides that no injection-related activity may be conducted 
``in a manner that allows the movement of fluid containing any 
contaminant into underground sources of drinking water, if the presence 
of that contaminant may cause a violation of any primary drinking water 
regulation under 40 CFR Part 142 or may otherwise adversely affect the 
health of persons.'' Similarly, Sec. 144.12(c) and (d) authorize a 
variety of actions if a Class V well may cause a violation of primary 
drinking water regulations or otherwise adversely affect the health of 
persons.
    In addition to Sec. 144.12, other existing UIC authorities would 
continue to be available to control Class V wells on a case-by-case 
basis, as needed to protect USDWs in any area. These can include 
requiring a permit under Secs. 144.25 and/or requiring submission of 
additional inventory information under Sec. 144.26. In states with EPA-
administered programs, the inventory requirements under Sec. 144.26 can 
be supplemented by additional information requirements, including 
ground water monitoring, analysis of injected fluids, or submission of 
geologic information under Sec. 144.27.
    EPA expects and strongly encourages states to use these existing 
authorities to take whatever measures are needed to ensure Class V 
wells are not endangering USDWs in any other sensitive areas beyond 
delineated source water protection areas. Examples of other sensitive 
areas include areas overlying sole-source aquifers, highly productive 
aquifers supplying private wells, continuous and highly productive 
aquifers at points distant from public water supply wells, areas where 
water supply aquifers are recharged, karst aquifers that discharge to 
surface reservoirs serving as public water supplies, susceptible or 
sensitive hydrogeologic settings (e.g., glacial

[[Page 40596]]

outwash deposits, eolian sands, and fractured volcanic rock), and areas 
of special concern selected based on a combination of factors, such as 
hydrogeologic sensitivity, prevailing land-use practices, and 
documented ground water contamination. If believed to be necessary, 
states should apply the same requirements proposed in this rule to 
these and other areas and/or to other Class V wells. Nothing in this 
rule precludes a state or local government from promulgating more 
stringent requirements above and beyond the existing UIC authorities.
2. Alternatives
    The Agency requests public comments on whether the new Class V 
regulations should apply to areas beyond delineated source water 
protection areas, or even apply statewide, in order to ensure 
protection of USDWs in other locations. Although the Agency recognizes 
the merits of this approach, it is not preferred because it would 
uniformly impose stringent new requirements for motor vehicle waste 
disposal wells, large-capacity cesspools, and industrial wells in all 
areas even though such requirements may not be needed to protect USDWs 
in all cases. EPA notes that states are already required to take 
appropriate actions to prevent endangerment of USDWs from Class V UIC 
wells in any part of the state where such endangerment may occur. In 
fact, the Agency strongly encourages states to take appropriate action 
using existing authorities to control Class V wells in other areas. 
Finally, the proposed requirements would apply statewide if a state 
does not have a complete source water assessment program by May 2003. 
This would ensure adequate protection in all areas when a state has not 
studied and defined areas that warrant the greatest protection.
    EPA also requests comments on the merits of broadening the scope of 
the additional requirements to other kinds of delineated source water 
protection areas. This could include areas delineated around public 
water systems using surface water recharged by ground water, or 
transient non-community water systems that depend on at least one 
ground-water source. As discussed above, EPA does not believe these 
options are needed in this first phase of the Class V UIC rulemaking.
    EPA also requests that commenters provide suggestions and ideas for 
alternatives to permanently applying the new requirements statewide if 
a state's source water assessment program is not complete by May 2003. 
Several commenters during the SBREFA process believed this proposed 
approach would unfairly impose a burden on some injection well owners 
or operators, who are not endangering drinking water supplies, because 
of a state's failure to comply with applicable deadlines. In order for 
any alternative to be viable, it would have to be effective in 
accomplishing the overall objective of protecting USDWs. Certain 
advantages of the proposed approach include: the fact that it ensures 
protection in the event new public water supply systems are created 
outside areas currently delineated, and it provides a strong incentive 
for timely completion of source water assessment programs. 
Nevertheless, EPA recognizes there may be other approaches. One 
alternative could be to give UIC Program Directors the flexibility to 
extend the statewide ban date beyond May 2003 if states submit, before 
that time, a plan demonstrating that their source water assessment 
program is ``substantially'' (e.g., 80 to 90 percent) complete and 
showing how they are making steady progress toward completion. This 
approach, however, would not necessarily buy time for Wyoming or 
Tribes, which do not have primacy responsibility for conducting source 
water assessment programs and may not delineate their source water 
protection areas. EPA requests comments on the merits of this 
alternative and any other equally protective alternatives.

C. Other Connections Between the Class V Rule and Source Water 
Assessment Program

    The proposed Class V rule and state source water assessment 
programs will have at least two other potentially beneficial mutual 
connections. First, as states carry out the source identification and 
susceptibility analysis required as the second and third steps of the 
source water assessment program, Class V well inventories and 
hydrogeological information developed under authorities such as 
Sec. 144.27 will provide substantial inputs into the source water 
assessment programs of some states. The Class V program will provide an 
important means of both identifying and controlling risks in the 
delineated source water protection areas.
    Second, grants under section 1452, which established the Drinking 
Water State Revolving Fund mentioned above, may also be used to finance 
a range of state activities related to public supplies of drinking 
water. A state may use up to 10 percent of its allotment for grants 
under Sec. 1452 (with a 1:1 dollar state match) to support its state 
drinking water program, and to develop and implement a source water 
protection program, a capacity development program, and an operator 
certification program. These funds can be used for state activities 
under the UIC program to manage Class V wells, which may be in wellhead 
protection areas of public water supplies. In addition, up to 15 
percent of the capitalization grant is available for local assistance 
and certain other eligible activities described in the SDWA, including 
delineation and assessment of source water protection areas (provided 
that each activity separately receives no more than 10 percent of the 
grant amount). The total amount appropriated for the Drinking Water 
State Revolving Fund Program for fiscal years 1997 and 1998 is $2.0 
billion.

V. Proposed Class V Well Requirements

A. Categories of Class V Wells

    Class V injection wells are generally shallow waste disposal wells, 
stormwater and agricultural drainage systems, or other devices used to 
release fluids either directly into USDWs or into the shallow 
subsurface that overlies USDWs. In some instances, the fluids released 
by these wells contain elevated concentrations of contaminants that may 
endanger drinking water supplies. EPA estimates that more than one 
million Class V wells currently exist in the United States. These wells 
are located in virtually every state, especially in unsewered areas 
where the population is likely to depend on ground water. Frequently, 
Class V wells are designed as no more than shallow holes or septic tank 
and leachfield combinations intended for sanitary waste disposal. While 
such designs may be adequate for the treatment of sanitary waste, they 
may not be appropriate for the disposal of industrial waste or other 
fluids, although they are sometimes used for this purpose. Some types 
of Class V wells may include other types of treatment systems, such as 
oil water separation tanks, which are designed to treat certain types 
of industrial waste.
    Today, EPA is proposing to retain the current definition of Class V 
wells. However, the current regulations also contain a non-inclusive 
list of 16 types of Class V wells (Sec. 146.5). This list was further 
divided into 32 categories in the 1987 Report to Congress on Class V 
wells. The Report to Congress drew distinctions between well types 
based on the design of the well, in some instances, and on the types of 
fluids injected, in others. In reviewing the Report to Congress, the 
Agency has determined that some of these distinctions are of little 
consequence as far as the risk posed by the wells and

[[Page 40597]]

the appropriate management scheme. Therefore, for today's proposal, the 
Agency has grouped Class V wells in 12 more appropriate categories that 
combine together wells that are mostly similar both in terms of the 
nature of fluids they inject and their potential to endanger USDWs.
    The 12 general categories of Class V wells are defined in 
Sec. 144.81 of today's proposed regulation. Table 2 shows how these 
categories relate to the listing of wells in Sec. 146.5(e) of the 
current regulations and the Class V well types addressed in EPA's 1987 
Report to Congress.
    There are two major differences between the categories proposed 
today and the ones proposed in 1995: motor vehicle waste disposal wells 
and ``other industrial'' wells have been removed from the industrial 
well category proposed before and separated into their own categories. 
This makes it easier to tailor Class V regulations to the different 
types of wells based on their relative risk potential. In particular, 
motor vehicle waste disposal wells would be defined more precisely for 
the purpose of targeting additional requirements for this category of 
wells. In addition, carving out the other industrial wells creates a 
smaller and less diverse category of Class V industrial wells than 
defined in the August 28, 1995 proposal. The wells remaining in the 
industrial category in today's proposal--including wells at carwashes 
where engine or undercarriage washing is performed, industrial process 
water and waste disposal wells, and industrial drainage wells--are more 
likely to pose a high risk and are more amenable to control through one 
national minimum requirement than the broader category proposed before. 
Insufficient information is presently available to conclude that the 
other industrial wells should be banned, as EPA is proposing for motor 
vehicle waste disposal wells, or should be required to meet a standard 
on injectate quality, as EPA is proposing for Class V industrial wells. 
Instead, EPA proposes to enforce the general non-endangerment 
provisions in Sec. 144.12 for other industrial wells and, if necessary 
to protect USDWs, require owners or operators to submit specific 
information under Sec. 144.27 or obtain a permit under Sec. 144.25. 
Under the second step of EPA's Class V strategy discussed above, EPA 
also will study the other industrial wells further and address them in 
another regulatory action, if necessary based on the findings of that 
study.

                                 Table 2.--Categories of Class V Injection Wells                                
----------------------------------------------------------------------------------------------------------------
                                                                                         Corresponding injection
   Category in today's proposal        Injection wells in        Current Sec.  146.5     wells in 1987 report to
                                            category                                            Congress        
----------------------------------------------------------------------------------------------------------------
Beneficial Use (Sec.  144.81(f)).  Aquifer recharge.........  (e)(6)..................  5R21 (Aquifer Recharge).
                                   Salt water intrusion       (e)(7)..................  5B22 (Saline Water      
                                    barrier.                                             Intrusion Barrier).    
                                   Subsidence control.......  (e)(10).................  5S23 (Subsidence        
                                                                                         Control).              
                                   Aquifer storage and        Not listed..............  Not addressed as        
                                    recovery.                                            separate category.     
                                   Subsurface environmental   (e)(6)..................  5X26 (Aquifer           
                                    remediation.                                         Remediation Related).  
Fluid Return (Sec.  144.81(g))...  Wells used to inject       (e)(14).................  5X16 (Spent-brine Return
                                    spent brines after the                               Flow).                 
                                    extraction of minerals                                                      
                                    from produced fluids.                                                       
                                   Wells used to inject heat  (e)(1)..................  5A7 (Heat Pump/Air      
                                    pump return fluids.                                  Conditioning Return    
                                                                                         Flow), 5A6 (Direct Heat
                                                                                         Return).               
                                   Wells used to inject       (e)(12).................  5A5 (Electric Power     
                                    fluids that have                                     Return), 5A8 (Ground   
                                    undergone chemical                                   Water Aquaculture      
                                    alteration during the                                Return Flow).          
                                    production of geothermal                                                    
                                    energy for heating,                                                         
                                    aquaculture, or                                                             
                                    production of electric                                                      
                                    power.                                                                      
Sewage Treatment Effluent (Sec.    Wells used to inject       Not listed..............  5W12 (Domestic          
 144.81(h)).                        treated effluent from                                Wastewater Treatment   
                                    POTWs, or privately                                  Plant Effluent         
                                    owned treatment works                                Disposal).             
                                    receiving solely                                                            
                                    sanitary waste.                                                             
Cesspools (Sec.  144.81(c))......  Cesspools having the       (e)(2)..................  5W9 (Untreated Sewage   
                                    capacity to serve 20                                 Waste Disposal), 5W10  
                                    persons or more per day                              (Cesspools).           
                                    and used solely for the                                                     
                                    subsurface emplacement                                                      
                                    of sanitary waste.                                                          
Septic Systems (Sec.  144.81(d)).  Septic tank and fluid      (e)(9)..................  5W11 (Septic Systems--  
                                    distribution system                                  Undifferentiated       
                                    having the capacity to                               Disposal), 5W32 (Septic
                                    serve 20 persons or more                             Systems--Drainfield    
                                    per day and used solely                              Disposal), 5W31 (Septic
                                    for the subsurface                                   Systems--Well          
                                    emplacement of sanitary                              Disposal).             
                                    waste.                                                                      
Experimental Technology (Sec.      Wells used as part of      (e)(15).................  5X25 (Experimental      
 144.81(I)).                        unproven subsurface                                  Technology).           
                                    injection technologies                                                      
                                    other than waste                                                            
                                    disposal.                                                                   
Drainage (Sec.  144.81(e)).......  Wells used to drain        (e)(4)..................  5D2 (Stormwater         
                                    surface and subsurface                               Drainage), 5F1         
                                    fluids, including                                    (Agricultural          
                                    agricultural drainage                                Drainage), 5D3         
                                    and stormwater runoff                                (Improved Sinkholes),  
                                    that may have the                                    5G30 (Special          
                                    potential to receive                                 Drainage), 5X29        
                                    insignificant amounts of                             (Abandoned Drinking    
                                    waste due to small                                   Water Wells, if used   
                                    volume leaks, drips, or                              for the subsurface     
                                    spills.                                              emplacement of         
                                                                                         stormwater).           
Mine Backfill and Drainage (Sec.   Wells used to inject       (e)(8)..................  5X13 (Mining, Sand, or  
 144.81(j)).                        materials into mined out                             Other Backfill).       
                                    portions of subsurface                                                      
                                    mines, whether what is                                                      
                                    injected is a                                                               
                                    radioactive waste or                                                        
                                    not, including (1)                                                          
                                    slurries of sand,                                                           
                                    gravel, cement, mill                                                        
                                    tailings/refuse, fly                                                        
                                    ash, or other solids,                                                       
                                    and (2) mine drainage.                                                      
In Situ and Solution Mining (Sec.  Wells used to inject       (e)(13), (e)(16)........  5X14 (Solution Mining), 
  144.81(k)).                       fluids for the purpose                               5X15 (In situ Fossil   
                                    of producing minerals or                             Fuel Recovery).        
                                    energy, which are not                                                       
                                    Class II or III wells.                                                      

[[Page 40598]]

                                                                                                                
Motor Vehicle Waste Disposal       Wells used to inject       (e)(5)..................  5X28 (Automobile Service
 (Sec.  144.81(a)).                 fluids from motor                                    Station Disposal).     
                                    vehicle repair or                                                           
                                    maintenance activities,                                                     
                                    such as an auto body                                                        
                                    repair shop, automotive                                                     
                                    repair shop, car                                                            
                                    dealership, specialty                                                       
                                    repair shop (e.g.,                                                          
                                    transmission and muffler                                                    
                                    repair shop), or any                                                        
                                    facility that does any                                                      
                                    vehicular repair work.                                                      
Other Industrial (Sec.             Wells used to inject       (e)(5)..................  Not addressed as        
 144.81(l)).                        fluids from carwashes                                separate category.     
                                    where no engine or                                                          
                                    undercarriage washing is                                                    
                                    performed.                                                                  
                                   Wells used to inject       (e)(3)..................  5A19 (Cooling water     
                                    noncontact cooling water                             return flow).          
                                    that contains no                                                            
                                    additives and has not                                                       
                                    been chemically altered.                                                    
                                   Wells used to inject       (e)(5)..................  Not addressed as        
                                    fluids from laundromats                              separate category.     
                                    where no onsite dry                                                         
                                    cleaning is performed or                                                    
                                    where no organic                                                            
                                    solvents are used for                                                       
                                    laundering.                                                                 
                                   Wells used to inject       (e)(5)..................  Not addressed as        
                                    wastewater from food                                 separate category.     
                                    processing operations.                                                      
Industrial (Sec.  144.81(b)).....  Wells used to inject non-  (e)(5)..................  5W20 (Industrial Process
                                    hazardous wastewaters                                Water and Waste        
                                    generated by industrial,                             Disposal), 5D4         
                                    commercial, and service                              (Industrial Drainage), 
                                    establishments and that                              5X17 (Air Scrubber     
                                    are not included in one                              Waste Disposal), 5X18  
                                    of the above categories;                             (Water Softener        
                                    these include wells used                             Regeneration Brine     
                                    to inject fluids from                                Disposal), 5X29        
                                    carwashes where engine                               (Abandoned Drinking    
                                    or undercarriage washing                             Water Wells, if used   
                                    is performed.                                        for the subsurface     
                                                                                         emplacement of         
                                                                                         industrial or          
                                                                                         commercial wastes not  
                                                                                         injected in one of the 
                                                                                         above categories of    
                                                                                         wells), 5X27 (Other).  
----------------------------------------------------------------------------------------------------------------

    The fourth type of other industrial well listed in Table 2--wells 
used to inject wastewater from food processing operations--will receive 
special attention in the ongoing study of Class V wells. As a group, 
EPA believes most of these wells pose a lower risk than the industrial 
wells that would be regulated under today's proposal, because the 
injectate is primarily food rinsewater or equipment washdown water 
containing small quantities of food particles and relatively low 
concentrations of contaminants. The Agency recognizes, however, that 
there may be other wells in this group that pose a higher risk, such as 
wells that inject brine from pickling operations, nutrient-rich 
wastewater from potato processing plants, and so forth. EPA presently 
has very little information on these wells. Therefore, they will be 
examined more closely in the study to determine whether additional 
federal regulation is needed, and if so, what that additional 
regulation should entail. In the meantime, if UIC Program Directors 
have information that any individual wells that fall in this category 
do pose a threat, they can use the existing UIC authorities discussed 
above to ensure protection of USDWs.
    During the development of this proposal, the National Funeral 
Directors Association (NFDA) recommended that the other industrial well 
category be broadened to include Class V septic systems operated by 
funeral homes. This would move these wells out of the industrial well 
category, where they fit in today's proposal, and thus remove them from 
the proposed requirement to meet MCLs at the point of injection. In 
support of this recommendation, NFDA submitted to EPA a report titled 
Septic System Treatment of Funeral Home Wastewater, March 18, 1998 
(copy available for review in the docket). According to NFDA, this 
report shows that only three preservative compounds with potential 
human health concerns--formaldehyde, methanol, and phenol--are likely 
to be found in funeral home wastewater in concentrations that exceed 
health-based levels (MCLs are not available for these chemicals). The 
report concludes that these compounds are generally adequately treated 
in septic systems such that concentrations exceeding the health-based 
levels do not exit the system. NFDA stated that it is unaware of any 
incidence of contamination of USDWs by funeral home septic systems.
    Today's proposal does not include septic systems operated by 
funeral homes in the other industrial well category, because EPA needs 
additional time to evaluate the data submitted by NFDA and determine 
whether such a classification of funeral home wells is warranted. EPA 
requests comment and additional data on the proper classification of 
funeral home septic systems. Specifically, EPA requests comment on the 
information contained in the NFDA report as well as comment and 
information on any important topics that are not addressed in the NFDA 
report but have a bearing on this decision. Based on public comment and 
data, EPA may classify these wells as other industrial wells which are 
outside the scope of this rulemaking.
    Additional discussion is needed to clarify how stormwater drainage 
wells are categorized in today's proposal. As shown in Table 2, wells 
used to drain stormwater runoff would be classified as drainage wells 
(not subject to new requirements under today's proposal), while 
industrial drainage wells would be classified as industrial wells 
(subject to the proposed new requirement to meet MCLs at the point of 
injection). The industrial drainage well category, however, does not 
include Class V wells intended for stormwater management that may have 
the potential to receive insignificant amounts of waste due to 
unintentional small volume leaks, drips, or spills and that cannot 
reasonably be separated from potential sources of contamination. Such 
wells, even if they were located at a commercial or industrial site, 
would be classified as stormwater drainage wells and excluded from the 
new regulation. In this context, ``cannot reasonably be separated'' 
means a well that cannot be moved farther away or uphill from a 
potential source

[[Page 40599]]

of contamination (e.g., due to property boundaries, site layout, or 
other physical constraints) and cannot be separated from a source by 
berms, dikes, or drainage ditches and still perform the function of 
draining stormwater runoff from a site. For example, a well at a gas 
station would be considered a stormwater drainage well, not an 
industrial well, if it is located reasonably far away from the gas 
pumps in a downhill direction and only drains stormwater runoff 
occasionally contaminated with insignificant amounts of gas due to 
unintentional small volume leaks, drips, or spills at the pumps. 
However, a well at a gas station or other commercial or industrial site 
that is in position to directly receive bulk spills of materials or 
wastes, or to receive highly contaminated runoff due to large leaks or 
spills, would be classified as an industrial drainage well, even if the 
well is intended for stormwater management.
    EPA requests comment on this proposed treatment of stormwater 
drainage wells. The Agency is attempting to reasonably distinguish 
between a well at a commercial or industrial site that routinely 
receives highly contaminated drainage or is susceptible to significant 
spills of chemicals or wastes, and a well at a commercial or industrial 
site that is intended for stormwater management but also may receive 
the unintentional insignificant leaks, drips, or spills that are 
commonly contained in street runoff. If these two kinds of wells can be 
distinguished, the wells that are more like industrial wells could be 
regulated like industrial wells and the wells that are more like 
stormwater management wells could be regulated like drainage wells. EPA 
realizes, however, that it may not be practical to make this 
distinction, potentially allowing some endangering drainage wells at 
commercial or industrial sites to escape the additional regulations 
proposed today. EPA also realizes that the proposed categorization may 
be at odds with the programs currently being implemented by existing 
UIC authorities. Therefore, the Agency requests that commenters 
specifically address the merits and potential impact of the proposed 
categorization. Based on these comments, EPA may classify all drainage 
wells at commercial or industrial sites as industrial wells in the 
final rule.
    Finally, wells used to inject fluids from carwashes are in one of 
two categories depending on whether the carwashes perform engine or 
undercarriage washing. Only those wells at car washes that are 
specifically set up to perform engine or undercarriage washing are 
considered to be Class V industrial wells under the proposed rule. 
Wells at coin-operated, manual carwashes where people use hand-held 
hoses to wash only the exteriors of vehicles would be classified as 
other industrial wells, as would those at any other vehicle washing 
facility not set up to perform engine or undercarriage washing. The 
cleaning solutions used at these carwashes generally consist of soap 
solutions, rinsewater, and wax, and do not contain degreasing agents or 
solvents such as methylene chloride or trichloroethylene. As a result, 
the spent washwater disposed in a carwash well that qualifies as 
another industrial well primarily contains detergents, road salts, 
sediments, and incidental contaminants that may be washed from a 
vehicle's exterior, comparable to typical stormwater runoff.

B. Requirements for Motor Vehicle Waste Disposal Wells

    As discussed below, EPA is co-proposing two approaches for 
regulating Class V motor vehicle waste disposal wells in ground water-
based source water protection areas: (1) A ban of new and existing 
wells in such areas; and (2) a ban of new wells and a provision giving 
owners or operators of existing wells an opportunity to apply for a 
waiver from the ban by seeking a permit that requires fluids to meet 
MCLs at the point of injection. EPA also is soliciting comment on a 
specific alternative to these proposed approaches. As recommended by 
some members of the Small Business Advocacy Review (SBAR) Panel, the 
preamble also seeks comment on the issue of allowing waste to be 
injected, in certain situations, that exceeds some MCLs at the point of 
injection. EPA does not support this concept because it believes that 
injecting waste above the MCLs within source water protection areas 
would pose a threat to the public that is drinking this water.
1. Proposal to Ban New and Existing Wells
    As one option, EPA proposes to ban motor vehicle waste disposal 
wells in source water protection areas delineated for ground water 
supplying community water systems and non-transient non-community water 
systems. Starting on the effective date of the rule, owners or 
operators of such existing wells would be required to cease injection 
operations and close their well within 90 days of the completion of the 
local source water assessment program responsible for their area. The 
UIC Program Director would be allowed to extend this deadline for up to 
one year in situations where the most efficient compliance option is 
connection to a sanitary sewer or installation of new treatment 
technology. UIC Program Directors also would have additional 
flexibility to extend the deadline for a reasonable amount of time 
beyond a year through compliance agreements with owners or operators of 
existing wells. Additionally, UIC Program Directors could use 
compliance agreements to extend the 90-day deadline in cases where an 
owner/operator is waiting for the permitting authority to act on an 
application for a waste disposal permit. New motor vehicle waste 
disposal wells, and new conversions to such wells, in those delineated 
areas would be prohibited starting on the effective date of the rule. 
For the purpose of the Class V regulations, an ``existing'' well would 
be one that is operational or under construction when the rule becomes 
effective. A new well or new conversion would be anything starting 
construction after the rule's effective date. If a state does not have 
a complete source water assessment program by May 2003, the ban would 
apply throughout the state.
    As discussed above, EPA proposes to focus this initial rule on 
certain source water protection areas for the purpose of defining a 
category of high risk wells and prioritizing national policy. The rule 
would establish specific measures to ensure that this category of Class 
V wells do not endanger USDWs in the highest-priority areas. All 
existing Class V authorities, including the prohibition against 
endangering USDWs in Sec. 144.12 and the authority to call problem 
wells in for a permit under Sec. 144.25, would continue to apply in all 
areas. EPA expects and strongly encourages states to use these existing 
authorities to take whatever measures are needed to ensure all Class V 
wells are not endangering USDWs in any other sensitive areas beyond 
delineated source water protection areas. Examples of other sensitive 
areas that may warrant priority attention are provided in section 
IV.B.1 above. Nothing in this proposed rule precludes a state or local 
government from promulgating more stringent requirements above and 
beyond those contained in the rule.
    The proposal to ban motor vehicle waste disposal wells located in 
source water protection areas is based on the high potential for these 
wells to endanger USDWs. Available information and damage cases, 
combined with years of experience implementing the Class V UIC program,

[[Page 40600]]

show that these wells stand out as particularly troublesome.
    There are approximately 183,000 automotive-related disposal wells. 
These wells are located in every state in the country--mainly in 
populated areas--at a variety of facilities, such as automobile service 
stations, car dealerships, automotive repair shops, and specialty 
repair shops (e.g., transmission shops, muffler shops, body shops). 
They tend to be shallow, with injection occurring into or above USDWs. 
They also tend to be uncased, which could allow contaminated fluids to 
move more easily into USDWs. Given all of these factors, the quality of 
fluids they inject becomes very important in determining whether these 
wells are a threat to USDWs.
    Although the development and use of best management practices 
(BMPs) by the automotive industry have improved recycling and waste 
disposal practices over the past decade, EPA is concerned that there 
are motor vehicle-related facilities which inject fluids with little or 
no treatment. These fluids, which may be injected intentionally for 
waste disposal or accidentally as a result of spills or leaks, include 
spilled gasoline and oil, waste oil, grease, engine cleaning solvents, 
brake and transmission fluids, and antifreeze. Such fluids contain 
potentially harmful contaminants, often in high concentrations. For 
example, fluids containing waste oils or gasoline generally include 
benzene, toluene, xylenes, and other volatile contaminants. Waste oils 
and antifreeze also contain some priority pollutant heavy metals, such 
as barium, cadmium, chromium, and lead. Other contaminants that may be 
injected include methylene chloride, a compound found in many 
degreasers, and ethylene glycol, a component of antifreeze. All of 
these contaminants can be toxic above certain levels. Some, such as 
benzene and toluene, have the potential to cause cancer.
    Data collected for the 1987 Report to Congress and from later EPA 
Regional investigations indicate that fluids being injected may exceed 
health-based limits for contaminant levels in water by 10 to 100 times 
(see p. 5-19 of the August 1989 Class V Task Force Report available in 
the docket). These data were confirmed for a number of motor vehicle 
service stations during the implementation of a 1991 National 
Administrative Order addressing failures to submit inventory 
information required under 40 CFR 144.26 and 146.52(a). Analyses of 
fluids disposed at a group of facilities subject to this order found a 
total of 13 contaminants present in concentrations above the drinking 
water MCL, although not all contaminants exceeded the MCL in every 
sample at every facility (see Data from the National Administrative 
Order on Motor Vehicle Waste Disposal Wells, March 16, 1998, available 
in the docket). For example, benzene concentrations exceeded the 
drinking water MCL at 19 of the 20 facilities tested and in 32 of 35 
samples analyzed. The highest measured benzene concentration was 40 
times the MCL. Similarly, arsenic exceeded the MCL at 11 of 17 
facilities and in 18 of 30 samples, with the highest arsenic 
concentration being 31 times the MCL.
    The injection of used petroleum products may leave behind an oily 
residue within the wells. A 1995 report on natural bioattenuation of 
hazardous organic compounds in the subsurface states: ``Most organic 
contaminants, however, enter the subsurface as an oily liquid, such as 
a fuel spill or release of chlorinated solvent. Groundwater moving 
through the material dissolves a small portion of the contaminant, 
which becomes a plume of groundwater contamination. Because the 
contaminant mass in the oily material is much greater than that 
dissolved in the groundwater, the spill can continue to maintain the 
plume more or less indefinitely. As the plume moves away from its 
source natural biological processes may attenuate the contamination in 
the groundwater.'' \2\
---------------------------------------------------------------------------

    \2\ Anderson, William, Innovative Site Technology, 
Bioremediation, Chapter 3.4, page 1, 1995
---------------------------------------------------------------------------

    Examples of instances where motor vehicle-related waste disposal 
wells have endangered USDWs are numerous. They include a case in 
Missoula, Montana, a sole-source aquifer area, where investigations 
starting in June of 1988 discovered that tetrachloroethylene (PCE) from 
operating drainage wells at auto service stations had contaminated 
community wells serving approximately 45,000 people.3, 
4 Three community wells were closed and another 15 have 
elevated levels of PCE. In Gilford, New Hampshire, a March 1988 
assessment of a site with a garage, a tire center, auto body shop, and 
a U.S. Army Reserves maintenance shop discovered that operating floor 
drains had contaminated the ground water, the soil, and an on-site 
water supply with PCE.5 In Exton, Pennsylvania, 
trichloroethylene (TCE), PCE, and 1,1,1-trichloroethane from a stone 
bed drain field connected to floor drains of an auto repair/body shop 
operating until 1984, contaminated ground water that supplies drinking 
water to about 76,700 people.6 In Liberal, Kansas, solvents 
disposed in a septic system by an engine repair shop resulted in 
volatile organic compound (VOC) contamination of several water supply 
wells in 1982; concentrations of VOCs in the septic system were as high 
as 32,000 ug/l.7 All of these incidents occurred before 
1989. Some small entity commenters have suggested that motor vehicle 
facilities routinely use management practices, such as recycling of 
used antifreeze and motor oil, that would significantly reduce the risk 
of such contamination. EPA, however, conducts periodic inspections that 
indicate that many facilities do not routinely implement best 
management practices. EPA requests information on more recent instances 
of contamination of USDWs by Class V motor vehicle wells, as well as 
any data commenters may have on the use of BMPs. EPA also requests 
information on situations where USDWs or drinking water wells were 
discovered to contain constituents found in motor vehicle waste.
---------------------------------------------------------------------------

    \3\ Background Paper prepared by Alan English, Missoula City-
County Health Department for U.S. EPA Underground Injection Control 
Program, February 1992.
    \4\ ``An Investigation of the Volatile Organic Content of 
Sludges, Soils and Liquids Entering the Missoula Aquifer from 
Selected Sources,'' prepared by the Missoula City-County Health 
Department, Environmental Health Division, Contributors: Tom Barger 
and Alan English, July 27, 1990.
    \5\ Background information titled ``5X28 Service Station, 
Gilford, NH'' available in the docket. This background information 
was obtained from U.S. EPA Region 1 staff in May 1990.
    \6\ Superfund Site Fact Sheet, A.I.W. Frank/Mid-County Mustang 
Site, Pennsylvania, EPA ID# PAD004351003, Last Update: March 1998. 
http://www.epa.gov/reg3hwmd/super/aiwfrank/pad.htm.
    \7\ Site Description Printout for the Panhandle Eastern Pipeline 
Site, from Teresa Hattan, Kansas Department of Health and 
Environment, July 15, 1998.
---------------------------------------------------------------------------

    Many of these documented problems have been associated with the 
improper disposal of fluids that qualify as a hazardous waste under the 
Resource Conservation and Recovery Act (RCRA). In other words, some 
motor vehicle waste disposal wells are in fact Class IV wells, which 
are already generally banned by 40 CFR 144.13. Data obtained from the 
1991 National Administrative Order suggest that 13 percent of the motor 
vehicle waste disposal wells inject fluids that exhibit the toxicity 
characteristic for RCRA hazardous waste. Considering the potential for 
these wells to also receive listed hazardous wastes,8 such 
as certain spent

[[Page 40601]]

solvents that may be spilled while motor vehicle parts are being 
cleaned, the fraction of wells inadvertently injecting hazardous waste 
may actually be greater. One study by the New Jersey Department of 
Environmental Protection, for example, determined that six out of ten 
automotive waste disposal wells examined (60 percent) were actually 
Class IV injection wells (see p. 7 of Distribution of Organic 
Contaminants in Automotive Waste Disposal Drywell Systems available in 
the public docket). Some small entity representatives and advocates 
involved in the development of this proposal have commented that cases 
of contamination caused by the shallow injection of hazardous waste at 
motor vehicle facilities simply underscore the reason for banning Class 
IV wells and point to the need for greater enforcement of this existing 
ban, not the need for greater regulation of properly operating Class V 
motor vehicle waste disposal wells. EPA, however, believes such cases 
are a symptom of a Class V regulatory problem that needs to be fixed. 
In particular, the lack of specific regulatory requirements that 
mandate control measures to prevent endangerment may provide an 
incentive to some well owners or operators to inject hazardous fluids 
in Class V wells, either unknowingly or on purpose, to avoid more 
stringent regulations governing other waste disposal practices. This is 
a real concern for motor vehicle waste disposal wells, such as floor 
drains in service bays, which are susceptible to spills of fluids that 
commonly qualify as hazardous waste. In these situations, UIC 
inspectors usually cannot tell if a motor vehicle waste disposal well 
is a Class V or a Class IV well.
---------------------------------------------------------------------------

    \8\ A waste can qualify as a RCRA hazardous waste either by 
exhibiting one of the four characteristics of hazardous waste 
(ignitability, corrosivity, reactivity, or toxicity) or by being 
named on one of four lists developed by EPA. The cited 13 percent of 
facilities injecting waste that exhibits the toxicity characteristic 
does not account for the additional facilities that may be injecting 
a listed hazardous waste.
---------------------------------------------------------------------------

    Some states, localities, and industry sources have already 
identified these wells as potentially posing a threat to USDWs and have 
taken steps to address this threat. For example, Connecticut published 
a guidebook for local officials with regulatory responsibility for 
Class V wells (Best Management Practices for the Protection of Ground 
Water, November 4, 1992) recommending that all discharges from existing 
wells at automotive repair and service facilities to other than a 
sanitary sewer be prohibited, and that discharges at new or expanded 
facilities in wellhead protection areas also be prohibited. The state 
also recommends that any authorized wells should be permitted and their 
compliance with published best management practices should be 
certified. Massachusetts does not allow anyone to put fluids in a 
service station floor drain without a ground water discharge permit. 
New Hampshire disallows discharges into floor drains at automotive 
facilities. The City of Missoula, Montana requires a permit for the use 
of drainage wells at motor vehicle fueling facilities and requires a 
separate stormwater collection system with control devices to prevent 
infiltration of fuel-contaminated water into such wells. Other states 
also have permitting requirements for motor vehicle and industrial 
Class V wells in various circumstances. Finally, the American Petroleum 
Institute has developed industry guidance recommending that oil 
companies and service stations eliminate the use of Class V wells to 
dispose of motor vehicle-related waste (Handling Water Discharges from 
Automotive Service Facilities Located at Petroleum Marketing 
Operations, API Recommended Practice 1633, January 1992). Because one 
of EPA's proposed options would allow continued permitting of Class V 
motor vehicle wells in SWPAs, EPA is very interested in state 
experience with such permitting programs. Do states issue general 
permits, applying to classes of facilities, and under what conditions? 
What are the requirements for state issued permits regarding BMPs, 
monitoring, and allowable contaminant concentration levels? How much 
discretion do state permit writers have in implementing these 
requirements? Have there been specific problems with state permitting 
programs? How effective have they been at preventing Class V wells from 
endangering USDWs? Would there be special difficulties for states with 
existing permitting programs if EPA were to require them to close 
previously permitted wells in SWPAs?
    Based on the above information and experience, EPA believes that 
banning motor vehicle waste disposal wells in source water protection 
areas would achieve substantial protection.
    EPA has designed the ban on motor vehicle waste disposal wells to 
be self-implementing by owners or operators, with minimal new reporting 
requirements and no new inspection or other administrative 
requirements. Owners or operators would have substantial flexibility to 
choose how they want to close their wells. Some may choose to connect 
their floor drains to a municipal sewer system or holding tank, whose 
contents can be periodically cleaned out and disposed of properly. 
Others may permanently seal their floor drains or disconnect them from 
existing wells. In these latter situations, owners or operators would 
have to use alternative methods for managing motor vehicle-related 
fluids, such as: (1) Recycling and reusing wastewater as much as 
possible; (2) collecting and recycling petroleum-based fluids and 
coolants drained from vehicles; (3) washing parts in a self-contained, 
recirculating solvent sink, with spent solvent being recovered and 
replaced by the supplier; (4) using absorbents to clean up minor leaks 
and spills, and placing the used materials in approved waste containers 
and disposing of them properly; and (5) using a wet vacuum or mop to 
pick up accumulated rain or snow melt, and disposing of it through a 
publicly owned treatment works. EPA recognizes that facilities may need 
to comply with other regulatory requirements (e.g., obtain permits) in 
order to make use of one of these options. EPA believes, based on 
firsthand experience with owners and operators, that most facilities 
can easily implement these alternatives within a short period of time.
    If all motor vehicle waste fluids generated at a service facility 
are segregated so that none are injected, the facility's Class V well 
may not be prohibited and could be used to dispose of other waste 
streams, such as stormwater, ice melt, and carwash waste water. EPA 
advises that Directors use careful judgment in making such an 
allowance, however, limiting it to cases in which unintentional or 
illicit discharge of motor vehicle waste fluids into the well is 
unlikely based on the facilities compliance history and availability of 
adequate records showing proper waste management and disposal. In these 
instances, the well is converted from a motor vehicle waste disposal 
well to another type of Class V well defined by the nature of fluids it 
receives. For example, a service station could perform all vehicle 
maintenance in areas that do not drain to the Class V well. If the 
service bay connected to the Class V well is then used only for 
draining ice melt or stormwater from tires or vehicle exteriors, the 
well would qualify as a Class V stormwater drainage well. If the 
service bay connected to the Class V well is used for the exterior 
washing of vehicles (and no engine or undercarriage washing is 
performed), the well would qualify as an other industrial well. As 
another example, owners or operators could install a semi-permanent 
plug (also known as a plumber's plug) in the sump outlet leading to the 
injection well.

[[Page 40602]]

Automotive waste and spills could then be collected in the sump and 
periodically disposed offsite. When necessary, the plug could be 
removed and the well used for non-automotive waste only. In order for 
this approach to be acceptable, the plug would truly have to be semi-
permanent. It cannot be something that is easily removed, which would 
create the potential for the well to remain open and subject to abuse. 
Because EPA remains concerned about potential abuses, EPA requests 
comment on the use of semi-permanent plugs for well closure, 
particularly on their limitations and on circumstances where their use 
is or is not inappropriate.
    Regardless of the closure method selected, owners or operators 
would be required to close their well in a manner that complies with 
the prohibition of fluid movement standard in Sec. 144.12 as well as 
any additional or more specific closure standards that may be 
established by the UIC Program Director. This closure requirement would 
be like the one that exists in Sec. 144.23(b)(1) for Class IV wells. 
The proposed rule would not specify any new soil or ground water 
sampling or site remediation requirements. However, EPA understands 
that closure of the well may trigger site characterization and 
remediation requirements under EPA Regional and Primacy State UIC 
Program implementation of 40 CFR 144.12, other state environmental 
programs, insurance policies, business contracts, local ordinances, and 
so forth. The economic analysis supporting today's proposal, therefore, 
reflects the costs of complying with these other existing requirements, 
where they are likely to apply (EA section 2.3.5). Any such remediation 
should be, to the extent possible, carried out consistently with any 
ongoing remediation of underground storage tank contamination at 
affected facilities. In addition, any wastes generated during well 
closure or under alternative waste management scenarios after the wells 
are closed, such as spent cleaning solutions and absorbents, will have 
to be managed in accordance with applicable solid and hazardous waste 
regulations. EPA estimates capital costs ranging from $2,500 to $10,000 
and annual O&M costs ranging from $700 to $26,000 per facility, 
depending on the particular waste stream and off-site management option 
selected. EPA estimates that these costs for most facilities will be at 
the low end of the ranges. Only a few of the affected well types will 
experience costs at the high end of the ranges. EPA requests comment on 
its well closure and alternate waste management cost estimates.
    For EPA-administered (DI) Programs only, owners or operators of 
wells being closed would be required to notify the UIC Program Director 
of the intent to close their well at least 30 days prior to closure 
(owners or operators of wells in Primacy States would have to meet any 
state-established reporting requirements). This is the same requirement 
that currently exists in Sec. 144.23(b)(3) for Class IV wells. Based on 
the Agency's experience and knowledge of how the federal UIC program 
runs, EPA believes such pre-closure notification is needed as a 
mechanism for DI Programs to track high-priority closures. The Agency, 
however, does not know if all state programs need this same 
requirement. States may already have, or could develop, another or a 
better mechanism that they prefer. Therefore, rather than impose pre-
closure notification as a minimum federal requirement that all Primacy 
States must adopt, EPA proposes to keep this aspect of the new 
requirements flexible. If some states want it, they can choose to adopt 
the same or a similar requirement under their own authority when they 
amend their program. Alternatively, EPA requests comments on whether 
such pre-closure notification should be required in every state. If 
such an approach is clearly necessary based on these comments, EPA 
could broaden the requirement to Primacy States in the final rule.
2. Proposal to Ban New Wells and Require Existing Wells to Either Close 
or Get a Permit
    As another option, EPA proposes the same ban on new and existing 
motor vehicle waste disposal wells as discussed above, but would give 
states the option of allowing owners or operators of existing wells to 
seek a permit to continue using their wells. In states adopting this 
option, and in areas where EPA is the primacy agent, owners or 
operators of existing wells would have to either close their wells or 
submit a permit application within 90 days of the completion of the 
local source water assessment program responsible for their area. While 
the permit application is under review, existing wells could continue 
to operate subject to the condition that fluids released in the wells 
meet the primary drinking water MCLs at the point of injection, or, if 
an MCL is not available for specific pollutants, other appropriate 
health-based standards approved by the UIC Program 
Director.9 As with the first option, the UIC Program 
Director would be allowed to extend the closure deadline (but not the 
application submittal deadline) for up to one year in situations where 
the most efficient compliance option is connection to a sanitary sewer 
or installation of new treatment technology. UIC Program Directors also 
would have additional flexibility to extend the closure deadline for a 
reasonable amount of time beyond a year through compliance agreements.
---------------------------------------------------------------------------

    \9\ Requiring MCLs to be met at the point of injection is a way 
to ensure that the non-endangerment provision in Sec. 144.12(a) is 
met. The legislative history of the Safe Drinking Water Act 
(Committee Print, February, 1982, at 564) shows that Congress 
clearly intended for this endangerment standard to be ``liberally 
construed so as to effectuate the preventive and public health 
protective purposes of the bill.'' More specifically, in defining 
endangerment, the legislative history states that ``actual 
contamination of drinking water is not a prerequisite either for the 
establishment of regulations or permit requirements or for the 
enforcement thereof.''
---------------------------------------------------------------------------

    In primacy states that adopted this option, it would require more 
state effort than the first proposal. UIC Program Directors would have 
to review the permit application and site-specific conditions for each 
facility wishing to keep its motor vehicle waste disposal well open. 
Based on this review, Directors would have to either deny the 
application or develop and enforce permit requirements to make sure the 
well does not endanger USDWs.
    The specific permit requirements could vary from one well to the 
next, but would have to include the following three conditions at a 
minimum. First, owners or operators would have to make sure fluids 
released in their wells meet the primary drinking water MCLs at the 
point of injection or other appropriate health-based standards approved 
by the UIC Program Director, if an MCL is not available for specific 
pollutants (comments are being solicited on whether this requirement 
could be relaxed and that EPA does not believe that relaxing this 
requirement would provide adequate public health protection, see 
section II.C.6). Second, owners or operators would have to follow 
accepted BMPs for motor vehicle-related facilities. The BMPs 
recommended in the State of Connecticut's Best Management Practices for 
the Protection of Ground Water and API's Handling Water Discharges from 
Automotive Service Facilities Located at Petroleum Marketing 
Operations, both available in the docket, serve as good models. Third, 
owners or operators would have to monitor the quality of their 
injectate and sludge (if present in dry wells or tanks holding 
injectate) both initially and on a continuing basis in order to 
demonstrate compliance with the MCLs. The rule, however, would not 
specify new injectate monitoring requirements that must be followed, 
leaving those instead to the discretion of the Director.

[[Page 40603]]

    When all of these requirements are put together, EPA believes the 
permit would specify a monitoring and action plan similar to the 
following, but recognizes that states will design monitoring 
requirements appropriate to the situation. As a first step, owners or 
operators might be required to characterize the quality of their 
injectate and any sludge. If liquid from the sludge has chemical 
concentrations below the MCLs, owners or operators might be required to 
analyze the injectate quarterly for the first three years and then 
annually if it is consistently below the MCLs. They also might be 
required to analyze their sludge annually. If the injectate is below 
the MCLs but liquid from the sludge is above the MCLs, then owners or 
operators might have to follow the same monitoring requirements as 
above plus pump and properly dispose of their sludge. Finally, if the 
injectate is above the MCL and the liquid from the sludge is above the 
MCL, then the permit might require: (1) Implementation of specific BMPs 
or treatment measures; (2) pumping and proper disposal of their sludge; 
(3) quarterly sampling of injectate for the first three years and then 
annually if consistently below the MCLs; (4) annual sampling of the 
sludge; and (5) other requirements established by the Director to 
protect USDWs. EPA requests comments on this possible set of permit 
requirements, and any others that could be used to protect USDWs from 
motor vehicle waste disposal wells. EPA is particularly interested in 
receiving comment on the appropriate frequency of the injectate 
monitoring outlined above given the high variability and unpredictable 
nature of the fluids that may be spilled or released into motor vehicle 
waste disposal wells.
    This option recognizes that there may be instances in which owners 
or operators of existing motor vehicle waste disposal wells in source 
water protection areas want to keep using their wells and can do so 
safely given their site-specific circumstances. These circumstances 
include the use of BMPs and/or treatment technologies that effectively 
keep potentially endangering fluids from entering the well, combined 
with regular injectate monitoring, to make sure fluids meet MCLs at the 
point of injection. Some small entity representatives and advocates 
involved with the development of this proposal indicated that many 
service stations and repair shops have already adopted BMPs, such as 
the recycling of used motor oil and antifreeze, spill prevention and 
control, and the use of environmentally friendly cleaning products, 
which have significantly reduced both the volume and toxicity of their 
injectate. These stakeholders asserted that the use of such practices 
is now widespread in the automotive service industry, making it 
unnecessary to categorically ban every well. Under this option, 
therefore, certain motor vehicle waste disposal wells in delineated 
source water protection areas could remain open, if approved by the UIC 
Program Director based on a review of site-specific circumstances and 
if controlled through a permit that requires MCLs to be met at the 
point of injection and any other conditions believed necessary to 
protect USDWs.
3. Alternative
    EPA is requesting comment on an alternative to the two proposals 
outlined above. Under this alternative, EPA could require owners or 
operators who want to continue using motor vehicle waste disposal wells 
in delineated source water protection areas to make sure fluids meet 
MCLs at the point of injection. This would differ from the first 
proposal by not having an outright ban and it would differ from the 
second proposal discussed above by eliminating the site-specific permit 
requirement for owners or operators whose injectate and sludge meet the 
MCLs. Instead, the requirement to meet MCLs at the point of injection 
would be specified in the regulation as a condition for continued rule 
authorization. The regulation also would specify monitoring 
requirements and actions to take based on the monitoring results. 
Owners or operators of existing wells who do not want to or cannot meet 
these conditions would have to close their wells according to the same 
schedule discussed above. New wells in source water protection areas 
would be prohibited starting on the effective date of the rule.
    The specific monitoring requirements that EPA proposes, and 
requests comment on, are the same as the potential permit requirements 
described for the second proposal above. That is, owners or operators 
would be required to initially characterize their injectate and sludge 
quality. If liquid from the sludge has chemical concentrations below 
the MCLs, owners or operators would be required to (1) analyze the 
injectate quarterly for the first three years and then annually if it 
is consistently below the MCLs, and (2) analyze the sludge annually. If 
the injectate is below the MCLs but liquid from the sludge is above the 
MCLs, then owners or operators would have to follow the same monitoring 
requirements and pump and properly dispose of their sludge. If the 
injectate is above the MCL and the liquid from the sludge is above the 
MCL, owners or operators would have to either close their wells or make 
process or operational changes to ensure compliance with the MCLs.
    This approach for regulating existing motor vehicle waste disposal 
wells would be almost identical to the proposed approach for regulating 
Class V industrial wells, discussed below. The only difference would be 
more extensive monitoring at motor vehicle waste disposal wells. EPA 
believes this difference is justified given the nature of the fluids 
routinely handled at motor vehicle-related facilities (e.g., waste oils 
and solvents that have high concentrations of toxic constituents) and 
the relatively high potential for spills of these fluids to occur and 
enter floor drains. Under these conditions, the quality of the 
injectate can be highly variable and unpredictable, and regular 
monitoring is needed to confirm that a problem does not exist or to 
detect a problem early so that it can be quickly mitigated. EPA 
believes the situation is different for most Class V industrial wells, 
where the injectate is a process wastestream that is more constant in 
terms of quality and quantity than the spills that are the primary 
concern at motor vehicle-related facilities. Therefore, although some 
industrial wells are also susceptible to spills or process upsets as 
discussed in the next section below, frequent and regular monitoring at 
industrial facilities is less important in controlling injectate 
quality and protecting USDWs. EPA requests comment on this position as 
well as suggestions for the specific monitoring requirements that would 
be appropriate for motor vehicle waste disposal wells.

C. Requirements for Class V Industrial Wells

1. Proposal
    Owners or operators of existing Class V industrial wells in source 
water protection areas--delineated for community water systems and non-
transient non-community water systems that use ground water as a 
source--would as a condition of rule authorization be required to 
either (1) make sure fluids disposed in their wells meet MCLs at the 
point of injection, or (2) close their wells. New wells in such areas, 
including new conversions to Class V industrial wells, would be 
prohibited unless they were able to meet the same standard on injectate 
quality. For the purpose of this regulation, an ``existing'' well would 
be one that is operational or under construction when

[[Page 40604]]

the rule becomes effective. A well or well conversion would qualify as 
``new'' if construction started after the rule's effective date. 
Because primary MCLs may not exist for some pollutants released in 
industrial wells, UIC Program Directors would have discretion to 
require the injectate to meet other appropriate health-based limits, as 
needed to protect USDWs for these other contaminants. Industrial well 
closures would be subject to the same basic closure requirements as 
proposed for motor vehicle waste disposal wells, including the 
requirement that owners or operators in DI Programs submit pre-closure 
notification at least 30 days prior to abandonment.
    The timing for these new requirements would be the same as that 
proposed for motor vehicle waste disposal wells. Starting on the 
effective date of the rule, existing wells would have to meet the MCLs 
or close within 90 days of the completion of the source water 
assessment program for their local area. The UIC Program Director would 
be allowed to extend this deadline for up to one year in situations 
where the most efficient compliance option is connection to a sanitary 
sewer or installation of new treatment technology. UIC Program 
Directors also would have additional flexibility to extend the deadline 
for a reasonable amount of time beyond a year through compliance 
agreements with owners or operators of existing wells. The requirements 
for new and converted industrial wells in delineated areas would start 
applying immediately on the effective date of the rule.
    Available information suggests that additional federal regulation 
is needed to address the risk posed by Class V industrial wells located 
in delineated areas. Industrial process water and waste disposal (5W20) 
wells, one major well type that fits in the industrial well category 
defined above, pose a significant threat to USDWs especially if they 
inject highly contaminated and/or large volumes of waste. According to 
the 1987 Report to Congress, such wells could potentially receive any 
fluid disposed by the various industries that use Class V wells (e.g., 
commercial printing, die and tool manufacturing, machinery and 
equipment manufacturing, chemical production, and drycleaning). For 
example, the Report estimated that in Nassau and Suffolk Counties in 
New York, an average of 20 million gallons per day--or, 36 thousand 
pounds per day of total dissolved solids--was injected into the 
subsurface by such facilities. This occurred in the early 1980's 
(Report to Congress, p. 4-278).
    Industrial drainage (5D4) wells, also within the Class V industrial 
well category, also pose a significant threat of contamination to USDWs 
especially if they inject poor quality fluids, are susceptible to 
accidental industrial spills, and are available for abuse through 
illicit discharges. For example, studies from Nationwide Urban Runoff 
Program projects in Fresno, CA and Spokane, WA in 1984 and 1986, 
respectively, have shown that industrial areas had the lowest quality 
stormwater runoff of all land-use types evaluated (Report to Congress, 
p. 4-37). A particular example illustrating this high hazard potential 
occurred in Hutchinson, Kansas (in 1986) where a diesel/tar mixture 
from a newly tarred roof washed into what would now be classified as an 
industrial drainage well during a rainstorm, and a nearby city water 
well was shut down as a result of the injected hydrocarbon mixture 
(Report to Congress, p. 4-38).
    Requiring Class V industrial wells in source water protection areas 
to meet primary MCLs, or other appropriate health-based limits selected 
by the UIC Program Director, at the point of injection will greatly 
reduce the threat of these wells. EPA is proposing this approach rather 
than an outright ban of industrial wells because of a lack of 
information indicating that a ban is always warranted. Also, this 
approach is consistent with the controls already imposed in some 
locations. For example, Class V industrial wells in Florida are 
required to meet MCLs at the point of injection, as are most kinds of 
Class V industrial wells in Massachusetts. Requiring MCLs to be met at 
the point of injection would establish a clear threshold to ensure the 
wells are not endangering USDWs, but would give owners or operators 
flexibility in deciding how to meet that threshold. In some cases, it 
will require no action or simple containment and/or treatment measures. 
Owners or operators wishing to keep their wells open may also have to 
monitor their injectate quality to adequately assure that it does not 
exceed MCLs though EPA is not proposing any specific monitoring 
requirements for owners and operators of Class V industrial wells. 
Owners or operators who are not able to ensure that their discharge 
meets MCLs at the point of injection (or who choose not to because of 
the high cost of doing so) would have to close their wells.
2. Alternatives
    As an alternative to the proposed approach, EPA could ban all or 
certain Class V industrial wells in source water protection areas as 
part of this rulemaking. For example, the ban could be extended to 
wells that dispose of washwater from car washes where motor or 
undercarriage washing is performed. As mentioned previously, EPA does 
not believe sufficient information exists to support a broader ban at 
this time. Additional bans, however, could be justified and imposed as 
part of subsequent rulemakings, if additional information supporting a 
broader ban becomes available.
    EPA also requests comment on whether the pre-closure notification 
requirement for industrial wells should be added in Primacy State 
programs. As discussed above for motor vehicle waste disposal wells, 
EPA currently believes it would be best to restrict that requirement to 
DI Programs, as it has restricted the pre-closure notification 
requirement in Sec. 144.23(b)(3) for Class IV wells. Finally, elsewhere 
in this preamble, comments are requested on whether the requirement 
that injectate from industrial wells in source water protection areas 
always meet all MCLs at the point of injection could be relaxed under 
any circumstances without endangering USDWs. EPA's does not support 
this position because it believes that allowing injection of waste that 
exceeds the MCL into source water protection areas poses an 
endangerment to the USDW and to people that drink this water.

D. Ban of Large-Capacity Cesspools

    Cesspools are Class V wells that receive untreated sanitary waste 
and allow the waste to percolate directly into the subsurface. Only 
those cesspools with the capacity to serve 20 or more persons per day 
are subject to UIC regulation.
    As discussed in the August 28, 1995 proposal, EPA believes such 
large-capacity cesspools have a high potential to contaminate USDWs 
because: (1) Sanitary wastes released in cesspools frequently exceed 
drinking water MCLs for nitrates, total suspended solids, and coliform 
bacteria (Report to Congress, p. 4-151); (2) the wastes released in 
cesspools also contain other constituents of concern, including 
phosphates, chlorides, grease, viruses, and chemicals used to clean 
cesspools such as trichloroethane and methylene chloride; and (3) 
cesspools provide no treatment except for some settling of the solids. 
In addition, the 1987 Report to Congress notes that some states have 
reported degradation of USDWs from such cesspools (Report to Congress, 
p. 4-151). Based on these concerns, new

[[Page 40605]]

cesspools are already banned in most states. Where such bans presently 
exist, states are phasing out existing cesspools over a time period 
negotiated by state and local governments and acceptable to EPA.
    The August 28, 1995 notice proposed not to impose a federal ban on 
large-capacity cesspools because of the actions being taken to control 
cesspools at the state level. The Agency proposed instead to use its 
existing enforcement authorities to supplement state bans where 
necessary to ensure compliance with the non-endangerment requirements 
of Sec. 144.12.
    Some commenters on the August 28, 1995 proposal raised a number of 
issues associated with this approach. For example, the Sierra Club 
Legal Defense Fund asserted that the proposal fails to carry out SDWA 
requirements to prevent endangerment of USDWs, that reliance on 
existing enforcement authorities is inadequate, and that the existence 
of some state or local regulations does not justify an EPA decision not 
to regulate. In addition, one state commented that it has not banned 
new cesspools by existing regulations. A ban in the federal UIC 
regulations would ensure that these high-risk wells are not constructed 
in this state or any other state that does not have its own regulations 
banning them.
    Based on these comments, EPA is today proposing to ban, starting on 
the rule's effective date, new large-capacity cesspools in source water 
protection areas delineated for community water systems and non-
transient non-community water systems that use ground water as a 
source. Existing large-capacity cesspools in such areas would be 
required to close within five years of the effective date of the rule. 
Owners or operators of such cesspools in DI Programs would have to 
notify the UIC Program Director of the intent to abandon their cesspool 
at least 30 days prior to abandonment (owners or operators of large-
capacity cesspools in Primacy States would have to meet any state-
established reporting requirements). For the purpose of this 
regulation, a ``new'' cesspool would be one starting construction after 
the rule's effective date. An ``existing'' cesspool would be one that 
is operational or under construction when the rule becomes effective. 
These new federal requirements would strengthen existing programs to 
protect USDWs.
    Existing large-capacity cesspools would have five years to close 
instead of 90 days with a possible one year extension proposed for 
motor vehicle waste disposal wells because cesspool owners or operators 
may need this amount of time to implement appropriate alternatives for 
managing their sanitary waste. In particular, they cannot stop the 
generation of sanitary waste, so the only options they would have would 
be to connect to a sanitary sewer system or install a septic system. 
Both of these options may take more than a year to implement and may 
not even be feasible (e.g., the septic system option would not be 
feasible if onsite soils do not satisfactorily pass a percolation 
test). In comparison, there are generally accepted methods available to 
owners or operators of motor vehicle-related facilities to stop the 
disposal of motor vehicle waste fluids in Class V wells that can be 
implemented within 90 days with a possible one year extension. These 
alternatives include recycling, sending spent solvents back to 
suppliers, installing a semi-permanent plug in the well and a sump to 
capture any spills of motor vehicle fluids, running a dry shop, and the 
other BMPs discussed above. Although EPA recognizes that other types of 
permitting may be required for these options, EPA believes that 90 days 
is sufficient to complete this process.
    EPA proposes to focus the large-capacity cesspool ban on ground 
water-based source water protection areas around community water 
systems and non-transient non-community water systems for the purpose 
of prioritizing national policy and because these are the highest risk 
wells. EPA expects and strongly encourages states to use existing 
authorities to take whatever measures are needed to ensure Class V 
cesspools are not endangering USDWs in any other sensitive areas 
outside delineated source water protection areas (see Sec. IV.B.1 for 
examples of other such areas). If a state does not have a complete 
source water assessment program by May 2003, the federal ban on 
cesspools would apply throughout the state. EPA also requests comment 
on the merits and potential impacts of broadening the proposed cesspool 
ban to source water protection areas delineated for transient non-
community water systems that use ground water as a source. Transient 
systems are those that serve at least 25 people but not on a regular 
basis (e.g., campground or highway rest stop). Including these 
additional areas within the scope of the proposed requirements for 
cesspools could address the unique acute risk associated with the 
shallow disposal of untreated sanitary waste in areas where ground 
water is used as a drinking water source.
    As discussed above for motor vehicle waste disposal wells and 
industrial wells, EPA is proposing the pre-closure notification 
requirement for large-capacity cesspools in DI Programs because of the 
Agency's knowledge of how these programs run and what they need to 
track high-priority closures. Because EPA does not know if this same 
requirement is needed for all Primacy States, and is unsure if such a 
requirement may in fact create a burden that outweighs its benefits in 
the context of individual state programs, the Agency is not proposing 
to impose the pre-closure notification requirement on Primacy States. 
Instead, the proposal would give states flexibility to use their own 
authority to adopt this or a similar requirement tailored to their 
particular needs. However, EPA requests comment on this issue, 
including comments on the merits and potential impacts of extending the 
pre-closure notification requirement to Primacy States.

E. Exclusion Criteria for Septic Systems and Cesspools

    As discussed in the August 28, 1995 notice, the current UIC 
regulations distinguish between septic systems used by single-family 
homes and non-residential septic systems that receive solely sanitary 
waste and have the capacity to serve fewer than 20 people. Section 
144.1(g) excludes from UIC regulation ``individual or single family 
residential waste disposal systems such as domestic cesspools or septic 
systems'' and ``non-residential cesspools, septic systems or similar 
waste disposal systems if such systems (A) are used solely for the 
disposal of sanitary waste, and (B) have the capacity to serve fewer 
than 20 persons a day.''
    EPA now believes there is no difference between a single-family 
residence septic system and a non-residential system serving only a 
small number of people, as long as the non-residential system receives 
only sanitary waste. Therefore, the August 28, 1995 notice proposed to 
revise Sec. 144.1 to exclude from UIC regulation all cesspools and 
septic systems serving fewer than 20 people, regardless of where such 
systems are located. This revision would eliminate the distinction 
between septic systems used by single-family homes and small non-
residential septic systems that receive solely sanitary waste. At the 
same time, EPA proposed to define cesspools and septic systems as wells 
receiving solely sanitary waste to distinguish them from similar 
devices receiving industrial waste waters, which would be defined as 
industrial waste disposal wells. Finally, EPA proposed to define 
sanitary waste as domestic sewage and

[[Page 40606]]

household waste. EPA requested public comment on this proposal and any 
alternatives, such as exclusion criteria based on septic tank size 
(e.g., tanks under 2,000 gallons would not be subject to UIC 
regulation), flow rate (e.g., systems receiving less than 5,000 gallons 
per day would not be subject to UIC regulation), or dwelling size.
    Of the 57 comment letters submitted on the proposal, 28 addressed 
this issue. Only two commenters supported the proposal to maintain the 
threshold of 20 persons per day for systems subject to regulation. 
Eighteen commenters preferred an alternative criterion, with most 
preferring a threshold based on flow rate. The suggested flow rates 
ranged from 2,000 to 20,000 gallons per day. A few of the commenters 
preferred a criterion based on septic tank size (ranging from 2,000 to 
7,500 gallons), and one commenter suggested that a soil application 
rate be used (1.5 gallons per day per square foot). Apart from these 18 
commenters who preferred an alternative criterion, four commenters 
asserted that all septic systems receiving solely sanitary waste--
regardless of capacity--should be excluded from UIC regulation and 
addressed by states through other, existing legal authorities. Two 
other commenters stated that all cesspools--regardless of capacity--
should be banned altogether.
    In addition to comments on the threshold for regulation, seven 
commenters took issue with the proposed definition of sanitary waste. 
These commenters thought the proposed definition would not clearly 
establish that small septic systems and other similar systems receiving 
only domestic sewage and household-type wastes at commercial and 
industrial facilities are excluded from UIC regulation. The commenters 
suggested that the sanitary waste definition be broadened to include 
examples of commercial or industrial settings where the exclusion would 
apply. Alternatively, EPA could use a more general definition of 
sanitary waste that includes wastewater generated from human wastes; 
personal or employee food preparation; gray water (e.g., hand washing 
waste from lavoratory and kitchen sinks); and other domestic-type 
wastes, regardless of where the waste was generated.
    Based on these comments, as well as experience implementing the UIC 
program, EPA recognizes that the current 20 persons-a-day exclusion 
criterion in the federal UIC regulations has weaknesses. However, it is 
not now clear to EPA that a change to this criterion is necessary to 
protect USDWs or could be made without causing undue disruption to 
existing state and local programs. State programs currently interpret 
the criterion in different ways, with most programs using a septic 
system flow rate and other programs using a septic tank size or other 
measure. These various state interpretations appear to work well and 
achieve adequate protection of USDWs. EPA's adoption of an 
interpretation currently used by one or more states may not improve 
protection but might invalidate other state interpretations.
    Therefore, EPA is again requesting comment on the Sec. 144.1(g) 
criteria proposed on August 28, 1995, which would exclude all septic 
systems and cesspools with a capacity to serve fewer than 20 persons a 
day, without distinguishing between residential and non-residential 
systems. This time, however, the Agency asks that commenters 
specifically address the question of whether the federal criteria need 
to be changed to correct a significant operational problem, such as 
inadequate protection of USDWs or extreme burden or confusion in 
implementing the UIC program. If alternative criteria are believed to 
be needed, the Agency also requests that commenters propose a specific 
alternative and address how it would work if adopted on the federal 
level. The vast majority of commenters on the prior proposal simply 
suggested that EPA adopt one state's interpretation, without regard to 
how it might affect other states.
    In response to comments on the proposed definition of sanitary 
waste, EPA agrees that the definition should be broadened to clarify 
that small-capacity septic systems or cesspools at commercial and 
industrial facilities are excluded from UIC regulation if they receive 
solely sanitary waste. Therefore, the Agency is re-proposing today a 
new sanitary waste definition in Secs. 144.3 and 146.3 that references 
commercial and industrial facilities. This proposal is based in part on 
the household waste exclusion established in the RCRA regulations (40 
CFR 261.4(b)(1)).

F. Other Amendments

    As outlined in Table 1 at the beginning of this preamble, EPA is 
reproposing other minor revisions originally proposed in the August 28, 
1995 notice, in order to provide a complete and coherent picture of all 
Class V UIC changes being contemplated. These revisions, on which EPA 
will continue to accept public comment, address (1) a few definitions 
in Secs. 144.3 and 146.3, and (2) the classification of radioactive 
waste disposal wells in Secs. 144.6 and 146.5. In addition, certain 
existing Class V requirements are being reiterated in or moved to the 
plain-English version of the consolidated Class V regulations in 40 CFR 
144 Subpart G. EPA is not accepting comment on these requirements, 
identified with notes in the proposed rule language, because they 
already exist in the UIC regulations and are only being reworded to 
improve their clarity.
1. Sections 144.3 and 146.3--Definitions
    In addition to the proposed new definition of sanitary waste 
discussed above, the proposed regulation would add new definitions for 
the terms ``cesspool,'' ``drywell,'' ``improved sinkhole,'' ``septic 
system,'' and ``subsurface fluid distribution system.'' The rule also 
would revise the existing definitions for ``well'' and ``well 
injection.''
    The definition of ``cesspool'' and ``septic system'' would conform 
with the new Class V categories explained in section V.A of this 
preamble.
    An ``improved sinkhole'' would be defined as a type of injection 
well regulated under the UIC program. Today's proposed definition would 
codify EPA's interpretation that the intentional disposal of waste 
waters in natural depressions, open fractures, and crevices (such as 
those commonly associated with the cooling of lava flows or weathering 
of limestone) fits within the statutory definition of underground 
injection.
    A ``subsurface fluid distribution system,'' which is a term used in 
the proposed new definition of ``septic system,'' would be defined with 
a standard engineering description.
    The definition of ``well'' would be revised to clarify that a 
``well'' includes improved sinkholes and subsurface fluid distribution 
systems.
    The definition of ``well injection'' would be revised to eliminate 
a redundancy and simply state that well injection means the subsurface 
emplacement of fluids through a well.
2. Sections 144.6 and 146.5--Classification of Wells
    The proposed regulation would revise Sec. 144.6(a) and 
Sec. 146.5(a) by adding a paragraph (3) to move Class V radioactive 
waste disposal wells injecting below all USDWs into the Class I 
category. Such Class V wells, in fact, are similar to Class I wells in 
terms of their design, the nature of fluids that they inject, and their 
potential to endanger USDWs. In particular, like Class I wells, such 
radioactive waste injection wells inject below all USDWs and warrant 
the same level of control.

[[Page 40607]]

    The Agency believes that all of these wells are located in Texas, 
which already regulates them as Class I wells. Existing Class V 
radioactive waste disposal wells, therefore, would not be subject to 
any additional regulatory requirements. However, the Agency believes 
that Class I requirements related to permitting, construction, 
operating, monitoring, reporting, mechanical integrity testing, area of 
review, and plugging and abandonment are needed to prevent any new 
radioactive waste disposal wells from endangering USDWs. The Agency, 
thus, proposes to reclassify Class V wells that inject radioactive 
waste below the lowermost USDW as Class I wells and subject them to the 
full set of existing Class I requirements. This approach is 
administratively simpler and more straightforward than keeping the 
wells in the Class V universe and developing identical requirements 
under the Class V program.
    EPA wishes to clarify that this reclassification of Class V 
radioactive waste disposal wells does not affect the disposal of 
naturally occurring radioactive material (NORM) in Class II wells as 
part of oil and gas field operations. The injection of fluids 
associated with oil and natural gas production, including such fluids 
containing NORM, would continue to be regulated under existing Class II 
UIC requirements or under applicable regulations prescribed by the 
Primacy State agency.
3. Existing Regulations Being Reiterated or Replaced in 40 CFR Part 
144, Subpart G
    The existing description of the five classes of injection wells in 
Sec. 144.6 would be reiterated, in a plain-English format, in 
Sec. 144.82 in the new Subpart G. Similarly, the existing prohibition 
of fluid movement in Sec. 144.12 would be reiterated inSec. 144.80.
    The existing inventory requirements for Class V wells in 
Sec. 144.26(b)(1)(iii) and (e) and the description of when Class V 
injection is authorized by rule in Sec. 144.24 would be deleted and 
moved to Secs. 144.83 and 144.84, respectively, in the new Subpart G.
    With only two exceptions, the substance of these existing 
requirements would not be changed. Only the language and format of the 
requirements would be revised to make them easier to understand. One of 
the changes is a proposed new requirement in Sec. 144.83(a)(2)(iii) for 
owners or operators of wells in delineated source water protection 
areas, in DI Programs only, to submit new inventory information if they 
convert their well into a Class V industrial well as defined in today's 
proposal. An analogous inventory requirement for conversions to Class V 
motor vehicle waste disposal wells and cesspools is not needed because 
the rule would prohibit such well conversions, consistent with the ban 
on new motor vehicle waste disposal wells and cesspools. However, wells 
in source water protection areas could be converted to industrial wells 
after the original submittal of inventory information, and there would 
be no way for the UIC Program Director to learn about this potentially 
endangering situation if there is not a requirement to submit new 
inventory information. The other change calls for the submittal of 
inventory information for new wells prior to construction rather than 
prior to starting injection, as currently in Sec. 144.26(e)(3). This 
change does not add any new burden or cost for well owners or 
operators. To the contrary, it is intended to help owners or operators 
avoid a situation in which they have incurred all the cost of well 
construction and then later, due to some unforeseen problem, are 
prohibited from using the well after they submit inventory information. 
Submitting the information prior to construction would give UIC 
Programs the opportunity to intervene or advise before any construction 
costs are wasted.
    Just like the pre-closure notification requirement proposed for 
motor vehicle waste disposal wells, industrial wells, and large-
capacity cesspools, EPA is proposing the new inventory requirement for 
well conversions in DI Programs because the Agency knows how these 
programs run and what the EPA Regions want and need to track the status 
of high-risk wells. Because EPA does not know if this same requirement 
is needed for all Primacy States (comparable or better mechanisms may 
already exist or could be developed), and is unsure if such a 
requirement may in fact create a burden that outweighs its benefits 
given each state's available resources, the Agency is not proposing to 
impose the new inventory requirement on Primacy States. However, as 
with the pre-closure notification requirement, EPA requests comment on 
this issue, including comments on the merits and potential impacts of 
extending the inventory requirement to Primacy States. EPA also 
requests comment on the merits of broadening the inventory requirement 
to well conversions outside of delineated source water protection 
areas. Based on public comment, EPA may broaden the inventory 
requirement in the final rule.
4. Part 145--State UIC Program Requirements
    The Agency proposes to amend Sec. 145.11 to be consistent with the 
proposed changes in 40 CFR Part 144. These proposed amendments would 
insert a set of new requirements in Sec. 144.86 that state programs 
must have the legal authority to implement.
    These proposed amendments to Part 145 are technical corrections to 
incorporate the proposed changes to 40 CFR Part 144. The corrections 
include a reference to the proposed new section and a redesignation of 
paragraphs to accommodate the new references.

VI. Regulatory Impact

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and, therefore, subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, Local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan program or the right and obligation of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action''. As 
such, this action was submitted to the Office of Management and Budget 
(OMB) for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.
    Section 6(a)(3)(B) of EO 12866 requires that for all significant 
regulatory actions, the Agency prepare, and provide to OMB and the 
public, an assessment of the potential costs and benefits of the 
regulatory action, including an explanation of the manner in which the 
regulatory action is consistent with a statutory mandate and, to the 
extent permitted by law, promotes the President's priorities and avoids 
undue interference with State, local,

[[Page 40608]]

and tribal governments in the exercise of their governmental functions. 
Section 6(a)(3)(E) requires that the Agency identify for the public the 
substantive changes made between the draft submitted to OMB for review 
and the published proposal, and those changes made at the suggestion or 
recommendation of OMB.
    Accordingly, the Agency has prepared an Economic Analysis (EA) of 
the Proposed Rule that assesses its costs. The Agency estimated the 
total costs of the rule under two proposals. Under Proposal 1, motor 
vehicle waste disposal wells are banned. Under Proposal 2 motor vehicle 
waste disposal wells are allowed to continue operating under permits. 
The Agency estimates the cost for Proposal 1 at approximately $54.5 
million, with a possible range of $27 million to $85 million. Under 
Proposal 2, the total costs of the rule are estimated at approximately 
$44.5 million, with a possible range of $21 million to $70 million. The 
cost estimates under both proposals cover a wide range because the 
location of most affected Class V wells is unknown, and the boundaries 
of SWPAs have not yet been delineated. Using the multi-step process 
described below, the Agency estimated the number of wells that will 
potentially be affected by the proposed rule.
    First, EPA compiled a list of SIC categories that captures the 
universe of facilities that could use motor vehicle waste disposal 
wells. Injection well inventory data from eight States were reviewed to 
determine the SIC categories associated with industrial wells. An SIC 
category was included in the list of affected industries if it appeared 
once in at least three of the eight State inventories. Starting with 
all facilities listed under each of the selected SIC categories, EPA 
eliminated those facilities that would be outside the scope of the 
proposed rule. These included facilities connected to sewers or 
discharging to surface water, facilities with wells closed under a past 
Administrative Consent Order and facilities located outside source 
water protection areas (SWPAs) delineated around community water 
systems and non-transient non-community water systems that use ground 
water as a source. EPA also eliminated 50 percent of facilities within 
currently delineated wellhead protection areas (WHPAs), and 50 to 75 
percent of the remaining facilities in 10 states that explicitly ban or 
otherwise stringently control such wells. This step was taken because 
these wells are either already prohibited or are otherwise stringently 
controlled.
    In order to assess the number of wells in SWPAs, EPA used the 
analytical assumption that states will delineate SWPAs by using areas 
of one-half mile radius around water supply wells for community water 
systems, and of one-quarter mile radius around water supply wells for 
non-transient non-community water systems. EPA based this assumption on 
the fact that many states used this approach to delineate WHPAs. It was 
also necessary to estimate the likely overlap between SWPAs and areas 
with Class V wells. Both Class V waste disposal wells and drinking 
water wells are likely to be located near populated areas, suggesting 
that more Class V wells will be located within SWPAs than if they were 
randomly distributed across a State. However, because drinking water 
wells are often located on the outskirts of a community and the SWPA is 
relatively small (one-quarter mile radius around non-transient systems 
and one-half mile radius around community water systems) SWPAs are 
likely to have fewer Class V wells than areas near the center of the 
community. EPA assumed that a SWPA is twice as likely to contain a 
Class V waste disposal well as an equal area of land outside a SWPA 
(excluding urban land). Because this assumption is difficult to verify, 
EPA also developed a range of cost estimates using the assumptions that 
SWPAs were either three times as likely or no more likely to contain 
Class V waste disposal wells as non-SWPAs (in the non-urban portion of 
each state). The upper and lower bounds of the estimated cost range 
shown above reflect these alternative assumptions.
    To put this estimate into context, EPA estimates that about 9,420 
waste disposal wells will be affected by the rule. Since there are 
63,524 community and non-transient non-community ground water systems 
in the country, this means on average about one in seven SWPAs will 
have an affected Class V well. Using the upper bound estimate of 14,130 
affected wells implies that about one in four SWPAs would have an 
affected well, while using the lower bound estimate of 4,710 affected 
wells implies that one in thirteen SWPAs would have an affected well. 
The Agency estimated that nationwide, about 2 percent of all motor 
vehicle waste disposal wells are located in SWPAs, with a range of 1 to 
3 percent. (Note: For the baseline case of 2 percent, the percentage 
varies among states with a range between 0.14 percent and 29.22 
percent.) EPA requests comment on its procedure for estimating the 
number of affected wells in SWPAs.
    The Agency assumed that all states will complete their source water 
assessment programs on time. This assumption took into consideration 
that 44 states and 2 territories already have existing wellhead 
protection programs in place and that these states will be able to 
build on these programs to meet the source water protection 
requirements. The Agency also assumed the maximum possible time allowed 
for completing these assessments, including use of the full 180 day 
extension. Further, this proposal affects SWPAs for the 63,524 
community and non-transient non-community ground water systems which 
comprise only 45% of all of the systems for which the state must 
complete a source water assessment and it is envisioned that states 
will complete these assessments first. Finally, states can use 10 
percent of their FY 1997 allotment from Drinking Water State Revolving 
Funds, which totaled $1.2 billion to help this endeavor. EPA is 
proposing that the rule apply statewide if SWAPs are not completed on 
time, however, EPA realizes that the total cost of the rule could 
increase several fold if one or two highly populated states do not meet 
the deadline. The Agency requests comment on its assumption that all 
states will meet the deadline.
    The process described above relating to compiling a list of SIC 
categories and then eliminating facilities outside the scope of the 
rule was also used to estimate the number of industrial facilities that 
might have an affected Class V well. The estimate was provided to EPA's 
Regional program managers who considered the results gross 
overestimates of the actual number of Class V industrial wells, based 
on their extensive field experience. It is likely that using SIC codes 
to estimate the number of industrial facilities with Class V wells is 
not reliable because it is difficult to specifically identify which 
industries within each classification are likely to use Class V wells 
and which wells are covered by this proposal, rather than being 
included in the other industrial well category that is still being 
studied. Also, EPA believes that industrial facilities generally are 
more likely to be located in sewered areas and to employ waste 
recycling measures than motor vehicle facilities. EPA Region 3 
maintained extensive inspection records in their Well Activities 
Tracking, Evaluation and Reporting System II, covering a period from 
1993 through 1996. An analysis of this data, which contains over 11,000 
inspection records, revealed that approximately 75 percent of Class V 
waste disposal wells inspected were

[[Page 40609]]

used by automotive service-related businesses. To be conservative, the 
Agency assumed that the remaining wells would be industrial, resulting 
in a ratio of 3 motor vehicle waste disposal wells for every one 
industrial well. Although this yields a much lower estimate for the 
number of affected industrial wells (2,355) than the estimate of 
potentially affected facilities derived from the SIC code list, EPA 
believes that using this data provides a more realistic picture of the 
number of industrials wells affected by the rule. EPA requests comment 
on this procedure.
    Protecting the quality of Underground Sources of Drinking Water 
(USDWs) has many benefits. Foremost are the benefits to the health and 
welfare of consumers of the water, including children and other 
sensitive groups such as the elderly and the health-impaired for the 
present and for future generations. Related to potential health 
concerns are lost work and school time due to visits to physicians and 
the associated costs of providing medical monitoring and care. A 
protected high-quality source of drinking water also is important to a 
community's development and ability to attract employers. Another major 
benefit of protecting USDWs is avoiding the cost of responding to 
contamination. These avoided costs could include purchasing replacement 
water, installing point-of-use treatment, switching to alternative 
water supply systems, drilling replacement wells, building water 
conveyance structures from new sources, and/or installing permanent 
treatment systems. Some of these benefits are easier to quantify than 
others, but all are significant.

B. Children's Health Protection and Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that EPA determines (1) is economically 
significant as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to E.O. 13054 because this is not 
an economically significant regulatory action as defined by E.O. 12866 
and because the proposed rule has included community, non community and 
non-transient water systems (which include schools and hospitals), EPA 
does not have reason to believe the rule concerns environmental health 
risks or safety risks that may have a disproportionate affect on 
children.

C. Paperwork Reduction Act

    The information collection requirements in this rule are currently 
under development. The Information Collection Request (ICR) will be 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. upon 
completion. Two ICR documents are being prepared by EPA--one for each 
of the proposed alternative regulatory approaches for the motor vehicle 
waste disposal wells (ICR Nos. 1873.01 and 1874.01). Copies will be 
available from Sandy Farmer by mail at OP Regulatory Information 
Division; U.S. Environmental Protection Agency (2137); 401 M St., S.W.; 
Washington, DC 20460, by email at [email protected], or by 
calling (202) 260-2740. The information requirements will be published 
separately in the Federal Register when EPA submits them to OMB for 
review and approval. The ICRs are not effective until OMB approves them 
and EPA publishes an OMB control number. The OMB control numbers for 
EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), requires EPA to 
explicitly consider the effect of proposed regulations on small 
entities. In accordance with Section 603 of the RFA, EPA has prepared 
an initial regulatory flexibility analysis (IRFA) that examines the 
impact of the proposed rule on small entities along with regulatory 
alternatives that could reduce that impact. The IRFA is available for 
review in the docket and is summarized below.
    The RFA's definition of small entity includes small businesses, 
small governmental jurisdictions and small not-for-profit 
organizations. This proposed rule would primarily affect small business 
entities. To define small business entities, EPA used the Small 
Business Administration's (SBA) industry-specific criteria published in 
13 CFR 121. SBA size standards have been established for each type of 
economic activity under the Standard Industrial Classification (SIC) 
system. These criteria are usually expressed in terms of number of 
employees or dollar volume of sales.
    The proposed rule would affect the owners and operators of three 
categories of Class V wells in source water protection areas delineated 
for community water systems and non-transient non-community water 
systems that use ground water as a source: motor vehicle waste disposal 
wells, industrial waste disposal wells, and large-capacity cesspools. 
Because it is infeasible to assess the prevalence of Class V waste 
disposal well use in every industry, EPA developed a list of SIC 
categories which it believes captures the universe of facilities that 
possibly could use motor vehicle and industrial waste disposal wells. 
Injection well inventory data from eight states (Illinois, Kansas, 
Montana, Nebraska, New Hampshire, Pennsylvania, Virginia and West 
Virginia) were reviewed to determine the SIC categories associated with 
industrial and motor vehicle waste disposal wells. An SIC category was 
included in the list of affected industries if it appeared once in at 
least three of the eight state inventories.
    EPA then pared this list down to reflect the number of facilities 
that may be actually affected by the proposed rule. EPA eliminated from 
the list those facilities that would be outside the scope of the rule, 
including: facilities connected to sewers (which presumably would not 
dispose of wastewater in injection wells); facilities located in states 
that have already banned types of Class V wells that would be targeted 
by the proposal; facilities injecting wastewater likely to qualify as 
hazardous waste (in which case, the well is a Class IV well and already 
banned under the existing UIC regulations); and facilities located 
outside source water protection areas delineated around community water 
systems and non-transient non-community water systems that use ground 
water (only wells inside such areas would be subject to the rule, as 
proposed).
    Although states have the flexibility to delineate their source 
water protection areas in a variety of ways, EPA believes that such 
areas delineated for ground water supply sources will be similar to 
wellhead protection areas already delineated in most states. A total of 
44 states and 2 Territories have EPA-approved Wellhead Protection 
Programs. Most of these programs have defined wellhead protection areas 
using a fixed radius around water supply wells.

[[Page 40610]]

    Given this situation, EPA estimated the number of facilities likely 
to fall within source water protection areas by estimating the number 
of facilities likely to fall within a fixed radius of existing supply 
wells. Based on data from the State Wellhead Protection Plans, it was 
assumed that the typical protection area will be a half-mile radius 
around community ground water supply wells and a quarter-mile radius 
around non-transient non-community ground water supply wells. Using 
these areas and current data on the number of supply wells in each 
state, EPA estimated the land area in each state likely to fall within 
a source water protection area targeted by the proposal. That area was 
then divided by the total land area in the state to estimate the 
fraction of land in each state likely to be in a source water 
protection area. As described earlier in this section, the number of 
potentially affected facilities was estimated by multiplying that 
fraction by the total number of facilities in each state estimated to 
have a Class V motor vehicle waste disposal well or industrial well 
that would be subject to the proposal. Then, this number was doubled to 
account for the assumption that SWPA are twice as likely to contain a 
Class V well as an equal area outside of a SWPA. EPA specifically 
requests comments on this approach, which is described in more detail 
in the economic analysis available in the docket, as well as 
suggestions and data that could be used for other approaches.
    Once a final list of affected facilities was determined in this 
manner, EPA estimated which of the affected businesses are primarily 
small businesses using SBA's size thresholds. Of the 57 SIC categories 
included in the analysis, 50 of them are made up primarily of small 
businesses (i.e., at least 95 percent of the facilities fall below the 
SBA size threshold) and 9,176 of the 9,422 affected entities are 
considered small businesses.
    The proposed rule would require affected Class V motor vehicle 
waste disposal wells to either close or get a permit that requires 
waste fluids to meet MCLs at the point of injection, would require 
affected industrial waste disposal wells to close or meet MCLs at the 
point of injection, and would ban affected large-capacity cesspools. 
EPA has determined that these requirements might have a significant 
economic impact on a substantial number of small entities that use 
either motor vehicle waste disposal wells or industrial waste disposal 
wells located in areas delineated for community water systems or non-
transient non-community water systems that use groundwater as a source. 
The basis for this decision is as follows.
    First, if the proposed rule bans Class V motor vehicle waste 
disposal wells while allowing industrial waste disposal wells to 
continue operating under specific conditions, about 4,536 to 4,794 (49 
to 52 percent) of the affected small entities would incur annualized 
compliance costs that represent more than 1 percent of their sales (or 
income for small governments). Furthermore, about 2,036 to 2,160 (22 to 
24 percent) of the affected small entities would incur costs that 
represent more than 3 percent of their sales (or income for small 
governments).
    Second, if the proposed rule allows existing motor vehicle waste 
disposal wells to continue to operate under permits and industrial 
waste disposal wells to continue operating under specific conditions, 
about 4,118 to 4,448 (45 to 48 percent) of the affected small entities 
would incur costs that represent more than 1 percent of their sales (or 
income for small governments); whereas, about 1,644 to 1,836 (18 to 20 
percent) of the affected small entities would incur costs that 
represent more than 3 percent of their sales (or income for small 
governments).
    To reduce the impact on small businesses, EPA has attempted to keep 
permitting, reporting, and other administrative requirements to a 
minimum to provide regulatory relief to small entities while protecting 
drinking water supplies.
    As discussed above in section II.C.6 of this preamble, EPA 
conducted outreach and convened a Small Business Advocacy Review Panel 
to obtain advice and recommendations of representatives of the affected 
small entities under section 609(b) of the RFA as amended by the SBREFA 
of 1996. Today's notice incorporates all of the recommendations made by 
this Panel in an effort to minimize impacts to small businesses. For 
example, today's notice offers a co-proposal and an alternative to the 
proposed ban of motor vehicle waste disposal wells that would give 
owners or operators of such wells greater flexibility. It also gives 
UIC Program Directors discretion to extend the deadline for complying 
with the new requirements when more time is needed by owners or 
operators, and proposes flexibility to regulate certain drainage wells 
at commercial and industrial sites like stormwater drainage wells 
rather than industrial wells, which would be subject to more stringent 
standards. In addition, today's proposal requests comment on several 
issues raised by small entity commenters on which the Small Business 
Advocacy Review Panel did not reach consensus, including the adequacy 
of the non-regulatory approach contained in the 1995 proposal, the 
possibility of allowing injectate to exceed an MCL at the point of 
injection provided it does not endanger USDWs. See section II.C.6 above 
for a more complete list and description of changes made to today's 
proposal in response to recommendations from the Small Business 
Advocacy Review Panel.

E. Enhancing the Intergovernmental Partnership

    To reduce the burden of Federal regulations on state and small 
governments, the President issued Executive Order 12875, entitled 
Enhancing the Intergovernmental Partnership, on October 28, 1993 (48 FR 
58093). Under Executive Order 12875, EPA may not issue a regulation 
that is not required by statute and that creates a mandate upon a 
state, local or Tribal government unless the Federal government 
provides the necessary funds to pay the direct costs incurred by the 
state, local or Tribal government or EPA provides to the Office of 
Management and Budget a description of the extent of the Agency's prior 
consultation and written communications with elected officials and 
other representatives of affected state, local and Tribal governments, 
the nature of their concerns, and an Agency statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of state, local and Tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates''. 
Moreover, because there is an insignificant number of Class V wells 
owned by state, local and Tribal governments in SWPAs, this proposed 
rule does not have significant or unique affects on state, local and 
Tribal governments.

F. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more

[[Page 40611]]

in any one year. Before promulgating an EPA rule for which a written 
statement is needed, section 205 of the UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Specifically, the costs to the regulated 
community is estimated at approximately $55 million for the option in 
which motor vehicle wells are required to close and $45 million for the 
option in which motor vehicle well owners can apply for a permit. The 
cost estimates to state governments are still being refined but are not 
expected to exceed several million dollars. Thus, today's rule is not 
subject to the requirements of section 202 of the UMRA.

G. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is required to use voluntary consensus 
standards in its regulatory and procurement activities unless to do so 
would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standard 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires the Agency to provide 
Congress, through MOB, an explanation of the reasons for not using such 
standards.
    The Agency does not believe that this proposed rule addresses any 
technical standards subject to the NTTAA. A commenter who disagrees 
with this conclusion should indicate how the Notice is subject to the 
Act and identify any potentially applicable voluntary consensus 
standards.

H. Environmental Justice

    Pursuant to Executive Order 12898 (59 FR 7629, February 16, 1994), 
the Agency has considered environmental justice related issues with 
regard to the potential impacts of this action on the environmental and 
health conditions in low-income and minority communities. The Agency 
believes that today's proposal provides equal public health protection 
to communities irrespective of their socio-economic condition and 
demographic make-up.

I. Effect on States With Primacy

    According to regulations at 10 CFR 145.32, Primacy States would 
have 270 days from the effective date of the final rule to submit to 
EPA documents demonstrating that proper legal authority and regulations 
exist to administer and enforce the new requirements for Class V 
cesspools, motor vehicle waste disposal wells, and industrial wells. 
Depending on the existing state program and authorities, these 
documents could include a modified program description that outlines 
the structure, coverage, and processes of the state's Class V UIC 
program. Revisions to State UIC Programs needed to incorporate the new 
requirements would be subject to public notice and comment 
requirements.
    Reasonable efforts by states to implement and enforce the new 
requirements as part of their ongoing programs should not be 
burdensome, because the new requirements are primarily directed toward 
well owners and operators, not UIC program authorities. For example, if 
finalized, the ban on motor vehicle waste disposal wells should be 
self-implementing by owners or operators, with no new reporting, 
inspection, or other administrative requirements for Primacy States 
(the new requirements for owners or operators to submit pre-closure 
notification is reserved for wells in DI Programs). However, if the 
proposal to allow owners or operators of motor vehicle waste disposal 
wells to apply for a permit is finalized, there would be an increased 
burden to states that choose to adopt this option to review the permit 
application and site-specific details for each facility wishing to keep 
its motor vehicle waste disposal well open. Based on this review, 
states would have to either deny the application or develop and enforce 
permit requirements to make sure the well does not endanger USDWs.

List of Subjects

40 CFR Parts 144 and 146

    Environmental protection, Ground water pollution control, Hazardous 
waste, Shallow disposal wells, Water supply.

40 CFR Part 145

    Environmental protection, Water supply.

    Dated: July 17, 1998.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40 chapter I of the 
Code of Regulations is proposed to be amended as follows:

PART 144--UNDERGROUND INJECTION CONTROL PROGRAM

    1. The authority citation for part 144 continues to read as 
follows:

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

    2. Section 144.1 is amended by adding a new paragraph (f)(1)(vii), 
revising paragraphs (g)(1) introductory text, (g)(1)(iii), (g)(1)(iv) 
and (g)(2)(ii), removing paragraph (g)(2)(iii), redesignating 
paragraphs (g)(2)(iv) and (v) as (g)(2)(iii) and (iv), and revising 
newly designated paragraph (g)(2)(iv) to read as follows:


Sec. 144.1  Purpose and scope of part 144.

* * * * *
    (f)(1) * * *
    (vii) Subpart G sets forth requirements for owners and operators of 
Class V injection wells.
* * * * *
    (g) * * *
    (1) Specific inclusions. The following wells are included among 
those types of injection activities which are covered by the UIC 
regulations. (This list is not intended to be exclusive but is for 
clarification only.)
* * * * *
    (iii) Any well used by generators of hazardous waste, or by owners 
or operators of hazardous waste management facilities, to dispose of

[[Page 40612]]

fluids containing hazardous waste. This includes the disposal of 
hazardous waste into what would otherwise be septic systems and 
cesspools, regardless of their capacity.
    (iv) Any septic system, cesspool, or other well, used solely for 
the subsurface emplacement of sanitary waste, having the capacity to 
serve 20 persons or more per day.
    (2) * * *
    (ii) Any septic system, cesspool, or other well used solely for the 
subsurface emplacement of sanitary waste, having the capacity to serve 
fewer than 20 persons a day.
* * * * *
    (iv) Any dug hole, drilled hole, or bored shaft which is not used 
for the subsurface emplacement of fluids.
* * * * *
    3. Section 144.3 is amended by adding new definitions in 
alphabetical order for ``cesspool,'' ``drywell,'' ``improved 
sinkhole,'' ``sanitary waste,'' ``septic system,'' and ``subsurface 
fluid distribution system,'' and by revising the definitions of 
``well'' and ``well injection'' to read as follows:


Sec. 144.3  Definitions.

* * * * *
    Cesspool means a ``drywell'' that receives solely untreated 
sanitary waste, and which sometimes has an open bottom and/or 
perforated sides.
* * * * *
    Drywell means a well, other than an improved sinkhole or subsurface 
fluid distribution system, completed above the water table so that its 
bottom and sides are typically dry except when receiving fluids.
* * * * *
    Improved sinkhole means a naturally occurring karst depression or 
other natural crevice found in volcanic terrain and other geologic 
settings which have been modified by man for the purpose of directing 
and emplacing fluids into the subsurface.
* * * * *
    Sanitary waste means liquid or solid wastes originating solely from 
humans and human activities, such as wastes collected from toilets, 
showers, wash basins, sinks used for cleaning domestic areas, sinks 
used for food preparation, clothes washing operations, and sinks or 
washing machines where food and beverage serving dishes, glasses, and 
utensils are cleaned. Sources of these wastes may include single or 
multiple residences, hotels and motels, restaurants, bunkhouses, 
schools, ranger stations, crew quarters, guard stations, campgrounds, 
picnic grounds, day-use recreation areas, other commercial facilities, 
and industrial facilities provided the waste is not mixed with 
industrial waste.
* * * * *
    Septic system means a ``well'' that is used solely to emplace 
sanitary waste below the surface and is comprised of a septic tank and 
subsurface fluid distribution system.
* * * * *
    Subsurface fluid distribution system means an assemblage of 
perforated pipes, drain tiles, or other mechanisms intended to 
distribute fluids below the surface of the ground.
* * * * *
    Well means:
    (1) A bored, drilled, or driven shaft;
    (2) A dug hole whose depth is greater than the largest surface 
dimension;
    (3) An improved sinkhole; or
    (4) A subsurface fluid distribution system.
    Well injection means the subsurface emplacement of fluids through a 
well.
    4. Section 144.6 is amended by adding a new paragraph (a)(3) and 
revising paragraph (e) to read as follows:


Sec. 144.6  Classification of wells.

    (a) * * *
    (3) Radioactive waste disposal wells which inject fluids below the 
lowermost formation containing an underground source of drinking water 
within one quarter mile of the well bore.
* * * * *
    (e) Class V. Injection wells not included in Class I, II, III, or 
IV. Specific types of Class V injection wells are described in 
Sec. 144.81 in subpart G of this part.
    5. Section 144.24 is revised to read as follows:


Sec. 144.24  Class V wells.

    A Class V injection well is authorized by rule, subject to the 
conditions in Sec. 144.84 in subpart G of this part.


Sec. 144.26  Amended

    6. Section 144.26 is amended by removing paragraphs (b)(1)(iii) and 
(e).
    7. Subpart G is added to read as follows:

Subpart G--Requirements for Owners and Operators of Class V Injection 
Wells

Sec.
144.79  General

Definition of Class V Injection Wells

144.80  What is a Class V injection well?
144.81  Does this subpart apply to me?

Requirements for All Class V Injection Wells

144.82  What must I do to protect underground sources of drinking 
water?
144.83  Do I need to notify anyone about my well?
144.84  Do I need to get a permit?

Additional Requirements for Class V Cesspools, Motor Vehicle Waste 
Disposal Wells, and Industrial Wells

144.85  Do these additional requirements apply to me?
144.86  What are the additional requirements?
144.87  How do I close my Class V injection well?

Subpart G--Requirements for Owners and Operators of Class V 
Injection Wells


Sec. 144.79  General

    This subpart tells you what requirements apply to you if you own or 
operate a Class V injection well. You may also have to follow 
additional requirements listed in the rest of part 144. Where they may 
apply, these other requirements are referenced rather than repeated 
below. The requirements described in this subpart and elsewhere in part 
144 are to protect underground sources of drinking water and are part 
of the Underground Injection Control (UIC) Program established under 
the Safe Drinking Water Act. This subpart is written in a special 
format to make it easier to understand the regulatory requirements. 
Like other EPA regulations, it establishes enforceable legal 
requirements.

Definition of Class V Injection Wells


Sec. 144.80  What is a Class V injection well?

    As described in more detail in Sec. 144.6 in subpart A, injection 
wells are defined as follows:
    (a) Class I wells inject hazardous, industrial, or municipal wastes 
beneath the lowermost formation containing an underground source of 
drinking water (USDW) within one-quarter mile of the well;
    (b) Class II wells inject fluids connected with oil or natural gas 
recovery or production or for the storage of liquid hydrocarbons;
    (c) Class III wells inject fluids for the solution mining of 
minerals; and
    (d) Class IV wells inject hazardous or radioactive waste into or 
above formations containing a USDW within one-quarter mile of the well.
    (e) Class V wells include all other injection wells that do not fit 
one of the classes listed above. Typically, Class V wells are shallow 
wells used to place a variety of fluids directly below the land 
surface. However, if the fluids you place in the ground qualify as a 
hazardous waste under the Resource Conservation and Recovery Act 
(RCRA), your well is either a Class I or Class IV well, not a Class V 
well. Specific types of Class V wells are described in Sec. 144.81.

[[Page 40613]]

Sec. 144.81  Does this subpart apply to me?

    This subpart applies to you if you own or operate one of the 
following well types, all of which qualify as Class V wells:
    (a) Motor vehicle waste disposal wells receive or have received 
fluids from vehicular repair or maintenance activities, such as an auto 
body repair shop, automotive repair shop, new and used car dealership, 
specialty repair shop (e.g., transmission and muffler repair shop), or 
any facility that does any vehicular repair work. Fluids disposed in 
these wells may contain organic and inorganic chemicals in 
concentrations that exceed the maximum contaminant levels (MCLs) 
established by the primary drinking water regulations (see 40 CFR part 
142). These fluids also may include waste petroleum products and may 
contain contaminants, such as heavy metals and volatile organic 
compounds, which pose risks to human health.
    (b) Industrial wells are used to inject non-hazardous industrial or 
commercial waste and fluids other than those described for the other 
types of Class V wells. These include but are not limited to:
    (1) Wastewater from petroleum refineries, chemical manufacturers, 
dry cleaners, electric component manufacturers, small machine 
manufacturers, die and tool manufacturers, commercial printers, asphalt 
manufacturers, and other industrial operations; or
    (2) Spills from industrial or commercial process areas, storage 
areas, or loading docks, or drainage highly contaminated by large 
spills from such areas. This is different than routine stormwater 
runoff. A well intended for stormwater management that may have the 
potential to receive insignificant amounts of waste due to 
unintentional small volume leaks, drips, or spills, and that cannot 
reasonably be separated from potential sources of contamination qualify 
as drainage wells, as described below.
    (3) Wastewater from carwashes specifically set up to perform engine 
or undercarriage washing. This does not include wastewater from manual 
carwashes where people use hand-held hoses to wash the exterior of 
their cars, trucks, or other vehicles. Wells at such manual carwashes, 
as well as other car washes not specifically set up to perform engine 
or undercarriage washing, qualify as other industrial wells. This 
category includes all other industrial or commercial wells that do not 
meet the criteria for other classes of wells or for other Class V 
industrial wells.
    (c) Cesspools are drywells, which sometimes have an open bottom 
and/or perforated sides, used to dispose of untreated sanitary waste. 
They are typically located in areas not served by sanitary sewers. This 
subpart applies to you only if your cesspool has the capacity to 
dispose of sanitary waste from 20 persons or more per day (you are 
exempt from this subpart and from the federal Underground Injection 
Control program if it is smaller than that). However, if you use your 
cesspool to dispose of motor vehicle waste or industrial waste, either 
by themselves or together with sanitary waste, your well qualifies as a 
motor vehicle waste disposal well or an industrial well rather than a 
cesspool.
    (d) Septic systems are septic tanks and fluid distribution systems, 
such as leachfields or wells, used to dispose of sanitary waste only. 
Like cesspools, this subpart applies to you only if your septic system 
has the capacity to dispose of sanitary waste from 20 persons or more 
per day. However, if you use your septic system to dispose of motor 
vehicle waste or industrial waste, either by themselves or together 
with sanitary waste, your well qualifies as a motor vehicle waste 
disposal well or an industrial well rather than a septic system.
    (e) Drainage wells consist of a variety of wells used to drain 
surface and subsurface fluids. These wells include agricultural 
drainage wells that receive irrigation or stormwater runoff. Drainage 
wells also include stormwater runoff wells in municipalities. A well at 
a commercial or industrial site also qualifies as a drainage well, not 
an industrial well, if it is intended for stormwater management, even 
if it may have the potential to receive insignificant amounts of waste 
due to unintentional small volume leaks, drips, or spills, as long as 
it cannot reasonably be separated from potential sources of 
contamination. This category does not include mine drainage wells. Mine 
backfill and drainage wells are defined in paragraph (j) of this 
section.
    (f) Beneficial use wells are used to improve either the quality or 
flow of aquifers or to provide some other ground water management 
benefit. They include aquifer recharge wells used to re-supply 
dwindling ground water resources; aquifer storage and recovery wells 
used to place excess water in the subsurface during periods of high 
flow and then withdraw the water later when it is needed; subsidence 
control wells used to inject fluids to prevent the land surface from 
sinking or settling; injection wells used to help clean up contaminated 
ground water, either by injecting solutions to neutralize contamination 
or to return previously contaminated ground water that has been 
treated; and wells that inject water to control the intrusion of salt 
water in coastal areas into freshwater aquifers.
    (g) Fluid return wells are used to inject fluids associated with 
the production of geothermal energy for space heating or electric 
power, the operation of a heat pump, aquaculture, or the extraction of 
minerals from produced fluids. For example, wells that inject spent 
geothermal fluids, following extraction of the heat energy, are used to 
recharge geothermal reservoirs and avoid surface discharges. Other 
examples of fluid return wells include electric power wells that inject 
fluids from electric power generation facilities, and wells used to 
inject spent brines after the extraction of halogens (e.g., bromine) or 
their salts.
    (h) Sewage treatment effluent wells are used to inject treated 
effluent from publicly owned treatment works or treated effluent from 
privately owned treatment facilities receiving solely sanitary waste. 
If you inject effluent from a privately owned treatment facility that 
receives industrial waste, your well qualifies as an industrial well 
rather than a sewage treatment effluent well. Also, if you own or 
operate a well that injects sewage treatment effluent beneath the 
lowermost formation containing a USDW, it qualifies as a Class I well 
rather than a Class V well.
    (i) Experimental technology wells include any well that is an 
integral part of an unproven subsurface injection technology other than 
waste disposal, such as in situ coal liquification, in situ oil shale 
retorting, tracer studies, and secondary water recovery (e.g., using 
air to force underground water bound in the unsaturated zone into the 
saturated zone where it can be recovered).
    (j) Mine backfill and drainage wells are used to place mine 
drainage or slurries of sand, gravel, cement, mill tailings/refuse, fly 
ash, or other solids into underground mines, whether what is injected 
is a radioactive waste or not. Mine backfill and drainage wells may 
serve a variety of purposes, including subsidence prevention, filling 
dangerous mine openings, disposing of wastes from mine operations, and 
fire control.
    (k) In-situ recovery and solution mining wells are used to inject 
fluids for the purpose of producing energy or minerals. Wells used for 
in-situ recovery of lignite, coal, tar sands, oil shale, and geothermal 
energy are designed to deliver particular solutions (such as water, 
air, oxygen, solvents, combustibles, or explosives) into

[[Page 40614]]

subsurface target formations to liberate the desired products that can 
be brought to the surface via recovery wells. Solution mining wells use 
injection and recovery techniques to bring minerals from underground 
deposits to the surface. Solution mining of conventional mines such as 
stopes leaching is included in Class V. However, in-situ production of 
uranium or other metals from ore bodies that have not been 
conventionally mined is included in Class III (see Sec. 144.6(c)). 
Similarly, mining of sulfur by the Frasch process is included in Class 
III, not Class V.
    (l) Other industrial wells inject industrial and commercial wastes, 
which either contain lower concentrations of contaminants or are more 
like sanitary waste than wastes injected into Class V industrial wells 
described in paragraph (b) of this section. The category of other 
industrial wells was created to exclude these wells from the additional 
requirements in Sec. 144.85 that apply to industrial wells. There are 
four types of other industrial wells:
    (1) Wells used to inject fluids from carwashes that are not 
specifically set up to perform engine or undercarriage washing 
(including, manual carwashes where people use hand-held hoses to wash 
the exterior of their vehicles);
    (2) Wells used to inject noncontact cooling water that contains no 
additives and has not been chemically altered, meaning that it has not 
been mixed with or come into contact with a contaminated waste stream;
    (3) Wells used to inject fluids from laundromats where no onsite 
dry cleaning is performed or where no organic solvents are used for 
laundering; and
    (4) Wells used to inject wastewater from food processing 
operations.

Requirements for all Class V Injection Wells


Sec. 144.82  What must I do to protect underground sources of drinking 
water?

    If you own or operate any type of Class V well listed above, the 
regulations below require that you cannot allow movement of injection 
fluid into USDWs that might cause endangerment, you must properly close 
your well when you are through using it, you must comply with other 
federal UIC requirements in 40 CFR parts 144 through 147, and you must 
comply with any other measures required by your state or EPA Regional 
Office. You also must submit basic information about your well, as 
described in Sec. 144.83.
    (a) Prohibition of fluid movement. (1) As described in 
Sec. 144.12(a), your injection activity cannot allow the movement of 
fluid containing any contaminant into USDWs, if the presence of that 
contaminant may cause a violation of the primary MCLs in 40 CFR part 
142 or may otherwise adversely affect the health of persons. This 
prohibition applies to your well construction, operation, maintenance, 
conversion, plugging, abandonment, or any other injection activity.
    (2) If the Director of the UIC Program in your state or EPA Region 
learns that your injection activity may endanger USDWs, he or she may 
require you to close your well, require you to get a permit, or require 
other actions listed in Sec. 144.12(c), (d), or (e).
    (b) Closure requirements. Prior to abandoning your well, you must 
close the well in a manner that complies with the above prohibition of 
fluid movement. Also, you must dispose or otherwise manage any soil, 
gravel, sludge, liquids, or other materials removed from or adjacent to 
your well in accordance with all applicable Federal, state, and local 
regulations and requirements.
    (c) Other requirements in parts 144 through 147. Beyond this 
subpart, you are subject to other UIC Program requirements in 40 CFR 
parts 144 through 147. While most of the relevant requirements are 
repeated or referenced in this subpart for convenience, you need to 
read these other parts to understand the entire UIC Program.
    (d) Other State or EPA requirements. 40 CFR parts 144 through 147 
define minimum federal UIC requirements. EPA Regional Offices 
administering the UIC Program have the flexibility to establish 
additional or more stringent requirements based on the authorities in 
parts 144 through 147, if believed to be necessary to protect USDWs at 
a local level. States can have their own authorities to establish 
additional or more stringent requirements if needed to protect USDWs. 
You must comply with these additional requirements, if any exist in 
your area. Contact the UIC Program Director in your state or EPA Region 
to learn more.


Sec. 144.83  Do I need to notify anyone about my well?

    Yes, you need to provide basic ``inventory information'' about your 
well, if you haven't already. You also need to provide any other 
information that your UIC Program Director requests in accordance with 
the provisions of the UIC regulations.
    (a) Inventory requirements. Unless you know you have already 
satisfied the inventory requirements in Sec. 144.26 that were in effect 
prior to the issuance of this subpart G, and you have not since 
converted your well into an industrial well, you must give your UIC 
Program Director certain information about yourself and your injection 
operation.
    (1) The requirements differ depending on your well status and 
location, as described in the following table:

------------------------------------------------------------------------
                              And you're in one of                      
                                 these locations                        
                              (``Primacy'' States,                      
                               which run the Class                      
                              V UIC Program) * * *                      
                               Alabama, Arkansas,    Or you're in one of
                                 Commonwealth of       these locations  
                                Northern Mariana          (``Direct     
                                    Islands,         Implementation'' or
                                  Connecticut,       DI Programs, where 
                               Delaware, Florida,   EPA runs the Class V
                                 Georgia, Guam,      UIC Program) * * * 
                                Idaho, Illinois,      Alaska, American  
                               Kansas, Louisiana,      Samoa, Arizona,  
                                Maine, Maryland,         California,    
    If your well is * * *        Massachusetts,       Colorado, Hawaii, 
                                  Mississippi,         Indiana, Iowa,   
                                Nebraska, Nevada,    Kentucky, Michigan,
                               New Hampshire, New    Minnesota, Montana,
                               Jersey, New Mexico,        New York,     
                                 North Carolina,     Pennsylvania, South
                               North Dakota, Ohio,   Dakota, Tennessee, 
                                Oklahoma, Oregon,     Virginia, Virgin  
                               Puerto Rico, Rhode   Islands, Washington,
                                  Island, South       DC, or any Indian 
                                Carolina, Texas,           Country      
                               Utah, Vermont, West                      
                              Virginia, Wisconsin,                      
                                 Washington, or                         
                                     Wyoming                            
------------------------------------------------------------------------
New (construction not yet     * * * then you must   * * * then you must 
 started).                     contact your State    submit the         
                               UIC Program to        inventory          
                               determine what you    information        
                               must submit and by    described in (a)(2)
                               when.                 of this section    
                                                     (below) prior to   
                                                     constructing your  
                                                     well.              
Existing (construction        * * * then you must   * * * then you must 
 underway or completed).       contact your State    cease injection and
                               UIC Program to        submit the         
                               determine what you    inventory          
                               must submit and by    information. You   
                               when.                 may resume         
                                                     injection 90 days  
                                                     after you submit   
                                                     the information    
                                                     unless the UIC     
                                                     Program notifies   
                                                     you that injection 
                                                     may not resume or  
                                                     may resume sooner. 
------------------------------------------------------------------------


[[Page 40615]]

    (2) If your well is in a DI Program State, here is the information 
you must submit to EPA:
    (i) No matter what type of Class V well you own or operate, you 
must submit at least the following information for each Class V well: 
facility name and location; name and address of legal contact; 
ownership of facility; nature and type of injection well(s); and 
operating status of injection well(s).
    (ii) You must submit the above information plus the additional 
information described here if you own or operate an industrial well, a 
mine backfill and drainage well, a fluid return well, or an 
experimental technology well. The UIC Program Director may also require 
the owners and operators of other types of Class V wells to submit this 
additional information. In these cases, you must provide a listing of 
all Class V wells that you own or operate along with the following 
information for each well (a single description of wells at a single 
facility with substantially the same characteristics is acceptable as 
long as the number of wells and their location is described):
    (A) Location of each well or project given by Township, Range, 
Section, and Quarter-Section, or by latitude and longitude to the 
nearest second, according to conventional practice in your state;
    (B) Date of completion of each well;
    (C) Identification and depth of the underground formation(s) into 
which each well is injecting;
    (D) Total depth of each well;
    (E) Construction narrative and schematic (both plan view and cross-
sectional drawings);
    (F) Nature of the injected fluids;
    (G) Average and maximum injection pressure at the wellhead;
    (H) Average and maximum injection rate; and
    (I) Date of the last inspection.
    (iii) If you convert your well into an industrial well any time 
after you submit the inventory information listed in paragraph 
(a)(2)(i) and (ii), you must resubmit the information noting the 
changes in your well type, status, and operations.
    (3) Regardless of whether your well is in a Primacy State or DI 
Program, you are responsible for knowing about, understanding, and 
complying with these inventory requirements.
    (b) Information in response to requests. If you are in one of the 
DI Programs listed in the table above, the UIC Program Director may 
require you to submit other information believed necessary to protect 
underground sources of drinking water.
    (1) The Director may require you to:
    (i) Perform ground water monitoring and periodically submit your 
monitoring results;
    (ii) Analyze the fluids you inject and periodically submit the 
results of your analyses;
    (iii) Describe the geologic layers through which and into which you 
are injecting; and
    (iv) Conduct other analyses and submit other information, if needed 
to protect underground sources of drinking water.
    (2) If the Director requires this other information, he or she will 
request it from you in writing, along with a brief statement on why the 
information is required. This written notification also will tell you 
when to submit the information.
    (3) You are prohibited from using your well if you fail to comply 
with the written request within the time frame specified. You can start 
injecting again only if you get a permit.


Sec. 144.84  Do I need to get a permit?

    No, as long as certain conditions do not apply to you.
    (a) General authorization by rule. With certain exceptions listed 
in paragraph (b) of this section, your Class V injection activity is 
``authorized by rule,'' meaning you have to comply with all the 
requirements of this subpart and the rest of the UIC Program but you 
don't have to get an individual permit. Well authorization expires once 
you have properly closed your well, as described in Sec. 144.82(b).
    (b) Circumstances in Which Permits or other Action is Required. If 
you fit into one of the categories listed below, your Class V well is 
no longer authorized by rule. This may mean that you have to get a 
permit, if you want to keep using your well. You can find out by 
contacting the UIC Program Director in your state or EPA Region if this 
is the case. Subpart D of this part tells you how to apply for a permit 
and describes other aspects of the permitting process. Subpart E of 
this part outlines some of the requirements that might apply to you if 
you get a permit.
    (1) You fail to comply with the prohibition of fluid movement 
standard in Sec. 144.12(a) and described in Sec. 144.82(a) above (in 
which case, you have to get a permit, close your well, and/or comply 
with other conditions determined by the UIC Program Director in your 
state or EPA Region);
    (2) Proposal 1: You own or operate a Class V cesspool or motor 
vehicle waste disposal well in a source water protection area (in which 
case, you must close your well as specified in the additional 
requirements below);
    (2) Proposal 2: You own or operate a Class V cesspool in a source 
water protection area (in which case, you must close your well as 
specified in the additional requirements below) or a Class V motor 
vehicle waste disposal well in a source water protection area (in which 
case, you must either close your well or get a permit as specified in 
the additional requirements below);
    (3) You own or operate a Class V industrial well in a source water 
protection area, and the fluid you put down your well has chemical 
concentrations above the drinking water MCLs (in which case, you must 
either close your well or make sure your waste fluids meet the MCLs at 
the point of injection as specified in the additional requirements 
below);
    (4) You are specifically required by the UIC Program Director in 
your state or EPA Region to get a permit. In which case, rule 
authorization expires upon the effective date of the permit issued, or 
you are prohibited from injecting into your well upon:
    (i) Failure to submit a permit application in a timely manner as 
specified in a notice from the Director, or
    (ii) Upon the effective date of permit denial;
    (5) You have failed to submit inventory information to your UIC 
Program Director, as described in Sec. 144.83(a) (in which case, you 
are prohibited from injecting into your well until you comply with the 
inventory requirements); or
    (6) You received a request from your UIC Program Director for 
additional information under Sec. 144.83(b), and have failed to comply 
with the request in a timely manner (in which case, you are prohibited 
from injecting into your well until you get a permit).

Additional Requirements for Class V Cesspools, Motor Vehicle Waste 
Disposal Wells, and Industrial Wells


Sec. 144.85  Do these additional requirements apply to me?

    (a) Whether and when these additional requirements apply to you 
depends on the location of your Class V cesspool, motor vehicle waste 
disposal well, or industrial well relative to delineated source water 
protection areas, and on the status of your state's source water 
assessment program.
    (1) If the source water assessment program in your state is 
complete before May 2003 (i.e., the state program has been approved by 
EPA and all its local assessments for community and

[[Page 40616]]

nontransient noncommunity water systems have been completed. This means 
that all local assessments within a state have performed the three 
required steps of delineation, source identification, and 
susceptibility analysis), the additional requirements apply to you only 
if your well is in a source water protection area delineated for 
community water systems and non-transient non-community water systems 
that use ground water as a source. The additional requirements start 
applying to you 90 days after the local program that covers you is 
completed. The UIC Program Director may extend this deadline for up to 
one year if you have to hook up to a sanitary sewer or install new 
treatment systems in order to comply with the additional requirements.
    (2) If the source water assessment program in your state is not 
complete, and it is before May 2003, the additional requirements apply 
to you only if your well is in a source water protection area 
delineated by a complete local program for community water systems and 
non-transient non-community water systems that use ground water as a 
source. The additional requirements start applying to you 90 days after 
your local program is completed. Again, the UIC Program Director may 
extend this deadline for up to one year if you have to hook up to a 
sanitary sewer or install new treatment systems in order to comply with 
the additional requirements.
    (3) If the source water assessment program in your state is not 
complete, and it is after May 2003 (i.e., the state program has not 
been approved by EPA or the state has not completed its local 
assessments for community and nontransient noncommunity water systems), 
the additional requirements apply to you regardless of the location of 
your well relative to delineated source water protection areas and 
regardless of the status of any local program that covers your area. In 
other words, the additional requirements apply statewide.
    (b) Source water assessment program. This is a new approach to 
protecting drinking water sources, specified in the 1996 Amendments to 
the Safe Drinking Water Act. States must prepare and submit for EPA 
approval a program to:
    (1) Delineate the boundaries of areas providing source waters for 
public water systems (called ``source water protection areas'');
    (2) Inventory significant potential sources of contaminants of 
concern in such areas, to the extent practical; and
    (3) Determine the susceptibility of public water systems in the 
delineated areas to contaminants of concern.
    (c) Source water protection area. A source water protection area is 
a geographic area defined by a state as supplying ground water and/or 
surface water for a public drinking water system. Such an area receives 
priority for the protection of public drinking water supplies. The 
additional requirements in Sec. 144.86 apply to you only if your Class 
V well is in an area delineated for ground water (rather than surface 
water) and for either community water systems or non-transient non-
community water systems. In many states, these areas will be the same 
as Wellhead Protection Areas that have been delineated previously.
    (d) Community water system. A community water system is a public 
water system that serves at least 15 service connections used by year-
round residents or regularly serves at least 25 year-round residents.
    (e) Non-transient non-community water system. A public water system 
that is not a community water system and that regularly serves at least 
25 of the same people over six months a year. These may include systems 
that provide water to schools, day care centers, government/military 
installations, manufacturers, hospitals or nursing homes, office 
buildings, and other facilities.
    (f) Delineation. States may define the boundaries of a source water 
protection area in a variety of ways. Regardless of the methods used, 
the delineation will be presented in a format that is understandable to 
the public so you will know if your Class V injection well is in a 
delineated source water protection area or not. In most instances, maps 
will be used to show the boundaries of the source water protection 
area.
    (g) How to find out if your well is in a source water protection 
area. States are supposed to make their delineations widely available 
to the public through a variety of methods right after the results are 
done. You can find out if your Class V well is in a source water 
protection area by contacting the state or local agency responsible for 
source water protection in your area. You may call the Safe Drinking 
Water Hotline at 1-800-426-4791 to find out who to call in your state 
for information. Alternatively, you may be able to get this information 
by calling a special telephone number in your state (if your state has 
set one up), calling your local water supplier, calling the EPA Program 
Office, following your local news (paper, radio and TV), looking on the 
Internet, or getting a copy of your state's Clean Water Act Section 
305(b) report. Your state may also send you information in your water 
bill, send each household a newsletter or flyer, advertise the 
availability of information in a local newspaper, and develop a 
database of information that people can access through a computer 
homepage. Even though you may get information from these and other 
sources, the state office responsible for implementing the source water 
assessment program in your area is the source that makes the final and 
official determination of boundaries for source water protection areas.
    (h) When a state does not have a complete program by May 2003. The 
Source Water Assessment and Protection Program requires states to 
delineate priority areas for the protection of their public drinking 
water systems. If states do not do this, there is no way to tell if 
your large-capacity cesspool, motor vehicle waste disposal well, or 
industrial well is in an area that overlies ground water serving as a 
drinking water supply source. In order to assure protection of public 
drinking water supplies, therefore, these requirements will apply 
statewide if a state has failed to complete its source water 
delineations and assessments by May 2003. The additional requirements 
apply statewide permanently, even if the state eventually completes its 
source water delineations and assessments sometime after May 2003.
    (i) Changes in your status. Over time, three changes in your 
state's source water assessment program might occur and affect whether 
the additional regulations apply to you:
    (1) Before May 2003, if the local source water assessment program 
responsible for your area becomes completed, the additional regulations 
apply to you if your well is in a source water protection area 
delineated for community water systems and non-transient non-community 
water systems that use ground water as a source. The additional 
regulations start applying to you 90 days after your local program is 
completed. The UIC Program Director responsible for your area may 
extend this deadline for up to one year if you have to hook up to a 
sanitary sewer or install new treatment systems in order to comply with 
the additional requirements.
    (2) After May 2003, if your state fails to complete its source 
water program by that time (meaning all of the local programs in your 
state are not complete), the additional regulations apply to you even 
if your well is not in a delineated source water protection area.
    (3) After May 2003, if your state's source water program was 
completed before that time, your state may delineate a source water 
protection area

[[Page 40617]]

for ground water supplying a new community water system or a new non-
transient non-community water system that includes your Class V 
injection well. Also, your state may extend the boundaries of a source 
water protection area delineated previously. This would make the 
additional regulations apply to you if your well is in such an area. 
The additional regulations start applying to you 90 days after the 
local program responsible for the new or extended area is completed. 
The UIC Program Director responsible for your area may extend this 
deadline for up to one year if you have to hook up to a sanitary sewer 
or install new treatment systems in order to comply with the additional 
requirements.
    (j) Application of the additional requirements outside of source 
water protection areas. EPA expects and strongly encourages states to 
use existing authorities in the UIC program to take whatever measures 
are needed to ensure Class V wells are not endangering USDWs in any 
other areas outside of delineated source water protection areas (e.g., 
areas overlying sole-source aquifers; highly productive aquifers 
supplying private wells; continuous and highly productive aquifers at 
points distant from public water supply wells; areas where water supply 
aquifers are recharged; karst aquifers that discharge to surface 
reservoirs serving as public water supplies; susceptible or sensitive 
hydrogeologic settings, such as glacial outwash deposits, eolian sands, 
and fractured volcanic rock; and areas of special concern selected 
based on a combination of factors, such as hydrogeologic sensitivity, 
prevailing land-use practices, and documented ground water 
contamination). Such measures could include, if believed to be 
necessary by a UIC Program Director, applying the additional 
requirements below to other areas and/or other types of Class V wells. 
Therefore, the Director may apply the additional requirements to you, 
even if you do not meet the criteria in paragraph (a) of this section.


Sec. 144.86  What are the additional requirements?

    The additional requirements are specified in the following table:

  Additional Requirements for Large-Capacity Cesspools in Source Water  
                            Protection Areas                            
[See Sec.  144.85 to determine if these additional requirements apply to
                                  you]                                  
------------------------------------------------------------------------
  If your cesspool is * * *      Then you * * *                         
        (well Status)             (requirement)      By * * * (deadline)
------------------------------------------------------------------------
Existing (operational or      Must close the well.  [insert date five   
 under construction by                               years from         
 [insert effective date].                            effective date].   
                              Must notify the UIC   At least 30 days    
                               Program Director in   prior to           
                               your EPA Region (if   abandonment.       
                               you are in one of                        
                               the DI Programs                          
                               listed in the table                      
                               above) of your                           
                               intent to close the                      
                               well.                                    
                              Must meet any state-  The date in state-  
                               established           established        
                               reporting             reporting          
                               requirements (if      requirements.      
                               you are in one of                        
                               the Primacy States                       
                               listed in the table                      
                               above).                                  
New or converted              Are prohibited......  [insert effective   
 (construction not started                           date].             
 before [insert effective                                               
 date].                                                                 
------------------------------------------------------------------------


Additional Requirements for Motor Vehicle Waste Disposal Wells in Source
                         Water Protection Areas                         
[See Sec.  144.85 to determine if these additional requirements apply to
                                  you]                                  
------------------------------------------------------------------------
 If your motor vehicle waste                                            
disposal well is * * * (well     Then you * * *      By * * * (deadline)
           status)                (requirement)                         
------------------------------------------------------------------------
Existing (operational or      Proposal 1: Must      Within 90 days of   
 under construction by         close the well.       the completion of  
 [insert effective date]).                           your local source  
                                                     water assessment   
                                                     program, starting  
                                                     [insert effective  
                                                     date]; your UIC    
                                                     Program Director   
                                                     may extend the     
                                                     closure deadline   
                                                     for up to one year 
                                                     if the most        
                                                     efficient          
                                                     compliance option  
                                                     is connection to a 
                                                     sanitary sewer or  
                                                     installation of new
                                                     treatment          
                                                     technology.        
                              Proposal 2: Must      Within 90 days of   
                               close the well or     the completion of  
                               apply for a waiver    your local source  
                               from the ban by       water assessment   
                               seeking a permit.     program, starting  
                                                     [insert effective  
                                                     date]; your UIC    
                                                     Program Director   
                                                     may extend the     
                                                     closure deadline,  
                                                     but not the permit 
                                                     application        
                                                     deadline, for up to
                                                     one year if the    
                                                     most efficient     
                                                     compliance option  
                                                     is connection to a 
                                                     sanitary sewer or  
                                                     installation of new
                                                     treatment          
                                                     technology.        
                              Proposal 2: Must      The date you submit 
                               meet MCLs at the      your permit        
                               point of injection    application.       
                               while your permit                        
                               application is                           
                               under review, if                         
                               you choose to keep                       
                               operating your well.                     
                              Proposal 2: Must      The date(s)         
                               comply with all       specified in your  
                               permit conditions,    permit.            
                               if you choose to                         
                               keep operating your                      
                               well, including                          
                               requirements to                          
                               meet MCLs at the                         
                               point of injection,                      
                               follow best                              
                               management                               
                               practices, and                           
                               monitor your                             
                               injectate and                            
                               sludge quality.                          
                              Both proposals: Must  At least 30 days    
                               notify the UIC        prior to           
                               Program Director in   abandonment.       
                               your EPA Region (if                      
                               you are in one of                        
                               the DI Programs                          
                               listed in the table                      
                               above) of your                           
                               intent to abandon                        
                               the well.                                

[[Page 40618]]

                                                                        
                              Both proposals: Must  The date in state-  
                               meet any state-       established        
                               established           reporting          
                               reporting             requirements.      
                               requirements (if                         
                               you are in one of                        
                               the Primacy States                       
                               listed in the table                      
                               above).                                  
New or converted              Are prohibited......  [insert effective   
 (construction not started                           date].             
 before [insert effective                                               
 date]).                                                                
------------------------------------------------------------------------


  Additional Requirements for Class V Industrial Wells in Source Water  
                            Protection Areas                            
[See Sec.  144.85 to determine if these additional requirements apply to
                                  you]                                  
------------------------------------------------------------------------
If your industrial well is *     Then you * * *                         
      * * (well status)           (requirement)      By * * * (deadline)
------------------------------------------------------------------------
Existing (operational or      Must close the well   Within 90 days of   
 under construction by         or make sure fluids   the completion of  
 [insert effective date]).     in the well meet      your local source  
                               the primary MCLs      water assessment   
                               listed in 40 CFR      program, starting  
                               Part 142 or other     [insert effective  
                               health-based limits   date]; your UIC    
                               selected by the       Program Director   
                               Director for          may extend this    
                               contaminants          deadline for up to 
                               without primary       one year if the    
                               MCLs.                 most efficient     
                                                     compliance option  
                                                     is connection to a 
                                                     sanitary sewer or  
                                                     installation of new
                                                     treatment          
                                                     technology.        
                              Must notify the UIC   At least 30 days    
                               Program Director in   prior to           
                               your EPA Region (if   abandonment.       
                               you are in one of                        
                               the DI Programs                          
                               listed in the table                      
                               above) of your                           
                               intent to abandon                        
                               the well.                                
                              Must meet any state-  The date in state-  
                               established           established        
                               reporting             reporting          
                               requirements (if      requirements.      
                               you are in one of                        
                               the Primacy States                       
                               listed in the table                      
                               above).                                  
New or converted              Are prohibited        [insert effective   
 (construction not started     unless you make       date].             
 before [insert effective      sure fluids in the                       
 date]).                       well are always                          
                               below the primary                        
                               MCLs listed in 40                        
                               CFR Part 142 or                          
                               other health-based                       
                               limits selected by                       
                               the Director for                         
                               contaminants                             
                               without primary                          
                               MCLs.                                    
------------------------------------------------------------------------

Sec. 144.87  How do I close my Class V injection well?

    The following describes the requirements for closing your Class V 
injection well.
    (a) Closure. (1) Prior to closing a Class V cesspool, motor vehicle 
waste disposal well, or industrial well, you must plug or otherwise 
close the well in a manner that complies with the prohibition of fluid 
movement standard in Sec. 144.12 and summarized in Sec. 144.82(a) 
above. If the UIC Program Director in your state or EPA Region has any 
additional or more specific closure standards, you have to meet those 
standards too. You also must dispose or otherwise manage any soil, 
gravel, sludge, liquids, or other materials removed from or adjacent to 
your well in accordance with all applicable Federal, state, and local 
regulations and requirements.
    (2) This does not mean that you need to cease operations at your 
facility, only that you need to close your well. A number of 
alternatives are available for disposing of waste fluids. Examples of 
alternatives that may be available to motor vehicle stations include: 
recycling and reusing wastewater as much as possible; collecting and 
recycling petroleum-based fluids, coolants, and battery acids drained 
from vehicles; washing parts in a self-contained, recirculating solvent 
sink, with spent solvents being recovered and replaced by the supplier; 
using absorbents to clean up minor leaks and spills, and placing the 
used materials in approved waste containers and disposing of them 
properly; using a wet vacuum or mop to pick up accumulated rain or snow 
melt, and if allowed, disposing of it through a publicly owned 
treatment works; or, connecting floor drains to a municipal sewer 
system or holding tank, and if allowed, disposing of the holding tank 
contents through a publicly owned treatment works. You should check 
with the publicly owned treatment works you might use to see if they 
would accept your wastes.
    (b) [Reserved]

PART 145--STATE UIC PROGRAM REQUIREMENTS

    8. The authority citation for part 145 continues to read as 
follows:

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


Sec. 145.11  [Amended]

    9. Section 145.11 is amended by adding paragraph (a)(32) and 
revising the first sentence in paragraph (b)(1):


Sec. 145.11  Requirements for permitting.

    (a) * * *
    (32) Section 144.86--(What are the additional requirements?);
    (b)(1) States need not implement provisions identical to the 
provisions listed in paragraphs (a)(1) through (a)(32) of this section.
    * * *
* * * * *

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

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

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

    11. Section 146.3 is amended by adding the following new 
definitions in alphabetical order: ``cesspool,'' ``drywell,'' 
``improved sinkhole,'' ``sanitary waste,'' ``septic system,'' and 
``subsurface fluid distribution system,''

[[Page 40619]]

and by revising the definitions of ``well'' and ``well injection'' to 
read as follows:


Sec. 146.3  Definitions.

* * * * *
    Cesspool means a ``drywell'' that receives solely untreated 
sanitary waste, and which sometimes has an open bottom and/or 
perforated sides.
* * * * *
    Drywell means a well, other than an improved sinkhole or subsurface 
fluid distribution system, completed above the water table so that its 
bottom and sides are typically dry except when receiving fluids.
* * * * *
    Improved sinkhole means a naturally occurring karst depression 
which has been modified by man for the purpose of directing and 
emplacing fluids into the subsurface.
* * * * *
    Sanitary waste means liquid or solid wastes originating solely from 
humans and human activities, such as wastes collected from toilets, 
showers, wash basins, sinks used for cleaning domestic areas, sinks 
used for food preparation, clothes washing operations, and sinks or 
washing machines where food and beverage serving dishes, glasses, and 
utensils are cleaned. Sources of these wastes may include single or 
multiple residences, hotels and motels, restaurants, bunkhouses, 
schools, ranger stations, crew quarters, guard stations, campgrounds, 
picnic grounds, day-use recreation areas, other commercial facilities, 
and industrial facilities provided the waste is not mixed with 
industrial waste.
* * * * *
    Septic system means a ``well'' that is used solely to emplace 
sanitary waste below the surface and is comprised of a septic tank and 
subsurface fluid distribution system.
* * * * *
    Subsurface fluid distribution system means an assemblage of 
perforated pipes, drain tiles, or other mechanisms intended to 
distribute fluids below the surface of the ground.
* * * * *
    Well means:
    (1) A bored, drilled, or driven shaft;
    (2) A dug hole whose depth is greater than the largest surface 
dimension;
    (3) An improved sinkhole; or
    (4) A subsurface fluid distribution system.
    Well injection means the subsurface emplacement of fluids through a 
well.
* * * * *
    12. Section 146.5 is amended by adding a new paragraph (a)(3) and 
revising paragraph (e) to read as follows:


Sec. 146.5  Classification of injection wells.

    (a) * * *
    (3) Radioactive waste disposal wells which inject fluids below the 
lowermost formation containing an underground source of drinking water 
within one quarter mile of the well bore.
* * * * *
    (e) Class V. Injection wells not included in Class I, II, III, or 
IV. Specific types of Class V injection wells are described in 
Sec. 144.81 in subpart G of 40 CFR part 144.

[FR Doc. 98-19936 Filed 7-28-98; 8:45 am]
BILLING CODE 6560-50-P