[Federal Register Volume 64, Number 153 (Tuesday, August 10, 1999)]
[Proposed Rules]
[Pages 43329-43331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20314]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[FRL-6415-6]
State of Alabama; Underground Injection Control (UIC) Program;
Notice of Rescheduled Public Hearing and Extension of Comment Period on
Withdrawal of Alabama's Class II UIC Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of rescheduled public hearing and extension of public
comment period on withdrawal.
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SUMMARY: EPA announces a rescheduled public hearing and extension of
the public comment period regarding withdrawal of Alabama's Class II
Underground Injection Control (UIC) Program from the State Oil and Gas
Board of Alabama on the grounds that it does not regulate as
``underground injection,'' hydraulic fracturing associated with coalbed
methane gas production. This program is currently approved by EPA under
section 1425 of the Safe Drinking Water Act (SDWA), as amended. This
action is being taken in accordance with paragraph 2(a) of the Writ of
Mandamus issued on February 18, 1999, by the U. S. Court of Appeals for
the Eleventh Circuit and in accordance with Federal regulations for
withdrawal of State programs.
DATES: The rescheduled public hearing will be held Thursday, September
9, 1999, at 4:00 p.m. Central Standard Time (CST) to discuss withdrawal
of the Alabama Class II UIC Program due to its failure to regulate
hydraulic fracturing associated with coalbed methane gas production and
EPA's proposed rule seeking such withdrawal. Registration for the
hearing will begin at 3 p.m.. Written comments on EPA's proposed rule
withdrawing approval of the Alabama Class II UIC Program on the grounds
that it does not regulate as ``underground injection'' hydraulic
fracturing associated with coalbed methane gas production must be
received by the close of business Thursday, September 16, 1999.
ADDRESSES: The rescheduled public hearing will be held at the
University of Alabama in the Sellers Auditorium of the Bryant
Conference Center, 240 Bryant Drive, Tuscaloosa, Alabama 35401. Those
interested should contact the Bryant Conference Center at (205) 348-
8751 for directions. Persons wishing to comment upon or object to any
aspects of this proposed withdrawal action of Alabama's Section 1425
approved Class II Program are invited to submit oral or written
comments at the September 9th, 1999, public hearing or submit written
comments by September 16, 1999, to the Ground Water/Drinking Water
Branch, Ground Water & UIC Section, United States Environmental
Protection Agency, Region 4, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, SW., Atlanta, GA 30303-8960, Attention: Mr. Larry Cole.
Copies of documents regarding this action are available between 8:30
a.m. and 4 p.m. Monday through Friday at the following locations for
inspection and copying: Environmental Protection Agency, Region 4, 9th
Floor Library, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW.,
Atlanta, GA 30303-8960, PH: (404) 562-8190; and the State Oil & Gas
Board of Alabama, 420 Hackberry Lane, Tuscaloosa, AL 35489-9780, PH:
(205) 349-2852.
FOR FURTHER INFORMATION CONTACT: Mr. Larry Cole at (404) 562-9474 or at
the following address: Environmental Protection Agency, Water
Management Division, Ground Water/Drinking Water Branch, Ground Water &
UIC Section, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW,
Atlanta, GA 30303-8960.
SUPPLEMENTARY INFORMATION:
I. Background Information
This public hearing is a reschedule of the public hearing held on
July 28th at 5:30 pm in the Tuscaloosa Public Library, 1801 River Road,
Tuscaloosa, Alabama 35401, announced in the Federal Register/Vol. 64.
No. 98/Friday, May 21, 1999, Pages 27744-27747. The July 28th hearing
was canceled prior to its conclusion by the Tuscaloosa Fire Marshal.
With this notice we are also
[[Page 43330]]
extending the comment period on withdrawal.
By court order, the Regional Administrator for EPA's Region 4
Office informed the State Oil and Gas Board of Alabama of specific
areas of alleged noncompliance regarding its approved UIC Program.
Specifically, EPA informed the State that, consistent with the Eleventh
Circuit's ruling in LEAF v. EPA, hydraulic fracturing associated with
coalbed methane gas production must be regulated as an ``underground
injection'' under Alabama's UIC Program. Withdrawal of the Alabama
program would, if completed, divest Alabama of primary enforcement
authority under the SDWA to regulate Class II Wells, including
hydraulic fracturing associated with coalbed methane gas wells within
Alabama.
EPA is proceeding at this time with this notice of reschedule of
public hearing and extension of the public comment period in order to
comply with paragraph 2(a) of the Writ of Mandamus because hydraulic
fracturing associated with coalbed methane gas production is not
currently regulated as underground injection (by permit or rule)
pursuant to the EPA-approved underground injection control program for
Alabama.
At the rescheduled public hearing, all interested persons shall be
given the opportunity to make written or oral presentations on EPA's
proposed action to withdraw approval of Alabama's section 1425 approved
Class II Program on the grounds of its failure to regulate as
``underground injection'' hydraulic fracturing associated with coalbed
methane gas production. In addition, comments may be submitted as
provided herein. All written and oral presentations submitted prior to
the cancellation of the July 28th public hearing were recorded and will
be considered in EPA's final evaluation of the State of Alabama's
section 1425 Program.
On August 2, 1982, EPA granted primary enforcement responsibility
(primacy) for the Class II Underground Injection Control (UIC) Program
under Section 1425 of the Safe Drinking Water Act (SDWA) to the State
of Alabama. The SDWA requires EPA to approve an effective in-place
state UIC Program to protect Underground Sources of Drinking Water
(USDW) from endangerment that could result from the improper injection
of fluids associated with, among other things, oil and gas production.
On May 3, 1994, the Legal Environmental Assistance Foundation, Inc.
(LEAF) submitted a petition to EPA to withdraw Alabama's UIC Program
asserting that the State was not regulating activities associated with
coalbed methane gas production wells. Following EPA's May 5, 1995
denial of the petition, LEAF sought review of this decision by the
United States Court of Appeals for the Eleventh Circuit. On August 7,
1997, in LEAF v. EPA, 118 F. 3d 1467 (11th Cir. 1997), the Court held
as follows: hydraulic fracturing activities constitute ``underground
injection'' under Part C of the Safe Drinking Water Act, id. at 1478;
all underground injection is required to be regulated (by permit or
rule), id. at 1474; and hydraulic fracturing associated with coalbed
methane gas production is not currently regulated under Alabama's UIC
Program, id. at 1471. On February 18, 1999, the Eleventh Circuit issued
a Writ of Mandamus directed at EPA to enforce its August 1997 decision.
The Writ established a schedule for EPA to follow to determine whether,
in light of the Court's holding regarding hydraulic fracturing, EPA
should withdraw approval of Alabama's UIC Program.
In response to the LEAF decision and the Writ of Mandamus, EPA must
review Alabama's UIC Program in accordance with federal regulations at
40 CFR 145.34(b). The timing of EPA's review and decision-making
process must adhere to the time frame contained in the Writ of
Mandamus. In order to comply with the Writ of Mandamus and 40 CFR
145.34(b)(2), EPA must hold a public hearing no less than 60 days nor
more than 75 days, following the publication of this notice of the
hearing in the Federal Register. Therefore, in order to comply with
this time frame, Region 4 held a public hearing on July 28, 1999, at
5:30 pm in the Tuscaloosa Public Library, Tuscaloosa, Alabama. Due to
the cancellation of that hearing prior to its conclusion, Region 4 has
rescheduled the public hearing to occur on Thursday, September 9, 1999,
at the University of Alabama in the Sellers Auditorium of the Bryant
Conference Center, Tuscaloosa, Alabama. All interested persons shall be
given the opportunity to make written or oral presentation at the
public hearing on whether EPA should withdraw Alabama's Class II UIC
Program on the ground that it does not regulate as ``underground
injection'' hydraulic fracturing associated with coalbed methane gas
production.
Alabama Class II UIC Section 1425 Program Deficiencies
The State Oil & Gas Board of Alabama is not regulating hydraulic
fracturing of coalbed methane gas production wells as ``underground
injection'' (by permit or rule) pursuant to its EPA-approved
underground injection control program.
Withdrawal Procedure
Section 1425 of the SDWA and subsequent published EPA guidance does
not contain express procedures for the withdrawal of a Section 1425
Program. EPA has promulgated procedures for withdrawing a Section 1422
Program at 40 CFR 145.34(b). In lieu of different express regulatory
provisions for the withdrawal of Section 1425 programs and in light of
the Court's Writ of Mandamus, EPA is following the procedures at 40 CFR
145.34(b) in proposing to withdraw Alabama's Section 1425 Program.
On March 19, 1999, the Regional Administrator of EPA Region 4
notified the Supervisor of the State Oil and Gas Board of Alabama of
EPA's decision to initiate the process to withdraw approval of the
Alabama UIC Program. The Regional Administrator's notice to the
Supervisor of the State Oil and Gas Board of Alabama constituted the
first step in the withdrawal process. According to the procedures
established in 40 CFR 145.34(b) and the Writ of Mandamus, the State was
given 30 days after the notice to demonstrate that its UIC Program is
in compliance with the SDWA and 40 CFR part 145 (i.e., that hydraulic
fracturing associated with methane gas production is regulated as
``underground injection,'' by permit or rule, pursuant to the EPA
approved Underground Injection Control Program).
The Supervisor of the State Oil and Gas Board responded to the
Regional Administrator's letter by a letter dated April 15, 1999. The
response indicated that on March 5, 1999, the State Oil & Gas Board of
Alabama promulgated rules which regulate hydraulic fracturing of
coalbed methane gas wells by rule authorization. These new regulations
were added as an Emergency Order and sent to the Alabama Legislative
Reference Service under Section 41-22-5 of the Code of Alabama (1975).
They became effective on March 11, 1999, for a period of no longer than
120 days. To become part of the EPA approved UIC Program, Alabama
should submit a revised UIC Program package containing new regulations
to EPA for review and approval. These new regulations must protect
current and potential USDWs from endangerment.
The State will not have fully corrected the identified program
deficiencies consistent with the requirements of the Writ of Mandamus
until a revised Alabama Section 1425 Program has been approved by EPA.
Therefore, in accordance with 40 CFR 145.34(b)(2), the Regional
Administrator of Region 4 is soliciting comments on the
[[Page 43331]]
appropriateness of withdrawing the Class II UIC Program from the State
Oil & Gas Board of Alabama on the grounds that it does not, as
currently approved by EPA, regulate as ``underground injection''
hydraulic fracturing associated with methane gas production. This
action constitutes the second step in the withdrawal process set out in
40 CFR 145.32(b) and the Writ of Mandamus. Following the public hearing
and close of the public comment period, EPA will fully evaluate the
record in this matter. If EPA determines that the State is still not in
compliance, the Administrator will notify the State.
Within 90 days of receipt of that notification, the State of
Alabama must fully implement any required remedial actions regarding
regulating hydraulic fracturing or the State's Class II UIC Program
will be withdrawn. Class II program approval will, however, not be
withdrawn if Alabama can demonstrate that hydraulic fracturing
associated with methane gas production is regulated as ``underground
injection'' (by permit or rule) pursuant to the EPA approved
underground injection control program. If EPA withdraws approval of the
Alabama Class II Program pursuant to the requirement of 40 CFR
145.32(b) and the Writ of Mandamus, it will propose and promulgate a
federal program for Class II wells located in Alabama, including
hydraulic fracturing associated with methane gas production.
EPA is extending the public comment period regarding withdrawal of
the Alabama Class II UIC Program for failure to adequately regulate
hydraulic fracturing associated with methane gas production as
``underground injection.'' Public comments received on or before close
of business on September 16, 1999, will be considered in EPA's final
evaluation of the State of Alabama Section 1425 Program. Comments may
be submitted at the rescheduled public hearing to be held on September
9, 1999, at 4 p.m., CST at the University of Alabama, in the Sellers
Auditorium of the Bryant Conference Center at 240 Bryant Drive,
Tuscaloosa, Alabama 35401.
List of Subjects in 40 CFR Part 147
Environmental protection, Intergovernmental relations, Water
supply.
Dated: July 30, 1999.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 99-20314 Filed 8-9-99; 8:45 am]
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