[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]
BILLING CODE 6560-50-P