[Federal Register Volume 65, Number 131 (Friday, July 7, 2000)]
[Proposed Rules]
[Pages 42234-42245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16753]



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Part IV





Environmental Protection Agency





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40 CFR Part 146



Revision to the Federal Underground Injection Control (UIC) 
Requirements for Class I--Municipal Wells in Florida; Proposed Rule

  Federal Register / Vol. 65, No. 131 / Friday, July 7, 2000 / Proposed 
Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 146

[FRL-6729-2]
RIN 2040-AD40


Revision to the Federal Underground Injection Control (UIC) 
Requirements for Class I--Municipal Wells in Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing changes to the Underground Injection Control 
(UIC) regulations that would affect specific Class I municipal wells in 
Florida. Groundwater monitoring has revealed that injected or native 
formation fluids have migrated into underground sources of drinking 
water (USDW) as a result of Class I municipal well injection activity 
in areas of Florida with unique geological conditions. Such fluid 
migration is not allowed under current Federal UIC regulations. The 
proposed changes would allow for continued injection by existing Class 
I municipal wells that have caused or may cause such fluid movement 
into USDWs in specific areas of Florida if certain requirements are met 
which provide adequate protection for underground sources of drinking 
water. This proposed rule would only affect wells in certain parts of 
Florida that dispose of treated domestic wastewater through Class I 
injection wells.

DATES: Comments must be submitted on or before September 5, 2000.
    Public hearings will be held:

August 22, 2000, 1:00 p.m. to 4:00 p.m., Tampa, Florida
August 22, 2000, 6:00 p.m. to 9:00 p.m., Tampa, Florida
August 24, 2000, 1:00 p.m. to 4:00 p.m., West Palm Beach, Florida
August 24, 2000, 6:00 p.m. to 9:00 p.m., West Palm Beach, Florida

ADDRESSES: Send written comments to Nancy H. Marsh: U.S. Environmental 
Protection Agency, Region 4; 61 Forsyth St., SW, Atlanta, GA, 30303. 
Comments may be submitted electronically to [email protected]. For 
additional information see Additional Docket information in the 
SUPPLEMENTARY INFORMATION section of this Federal Register.
    Public hearing locations are:

Travelodge, 820 East Busch Boulevard, Tampa, Florida 33612
The Sheraton West Palm Beach Hotel, 630 Clearwater Park Road, West Palm 
Beach, Florida 33401

FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact Nancy 
H. Marsh, Ground Water & UIC Section, EPA Region 4, 61 Forsyth Street, 
SW, Atlanta, GA 30303 (phone: 404-562-9450; E-mail: 
[email protected]) or Howard Beard, Office of Ground Water and 
Drinking Water, U.S. Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, N.W.,Washington, DC 20460 (phone: 
202-260-8796; E-mail: [email protected]). 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 daylight-saving time.

SUPPLEMENTARY INFORMATION:

Additional Docket Information

    When submitting written comments (see ADDRESSES section above) 
please submit an original and three copies of your comments and 
enclosures (including any references). For an acknowledgment that we 
have received your information, please include a self-addressed, 
stamped envelope. EPA will not accept facsimiles (faxes).
    The record is available for inspection from 8 a.m. to 3:30 p.m. 
Eastern daylight-saving time, Monday through Friday, excluding legal 
holidays at the Environmental Protection Agency, Region 4 Library (9th 
Floor), Sam Nunn Atlanta Federal Center, 61 Forsyth St., S.W., Atlanta, 
GA 30303-8960. For information on how to access Docket materials, 
please call (404) 562-8190 and refer to the Florida UIC docket.
    Regulated entities. This proposed regulation is limited in 
application to the owners and/or operators of existing Class I 
underground injection wells that inject domestic wastewater effluent in 
certain parts of Florida. Regulated categories and entities include:

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                                                Examples of regulated
                 Category                             entities
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Municipalities and Local Government.......  Class l municipal injection
                                             wells disposing of domestic
                                             wastewater effluent in
                                             certain parts of Florida.
Private...................................  Class l municipal injection
                                             wells disposing of domestic
                                             wastewater effluent in
                                             certain parts of Florida.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility is regulated by this action, you should carefully examine 
the applicability criteria in Sec. 146.15 of the proposed rule. If you 
have questions regarding the applicability of this action to a 
particular entity, consult one of the persons listed in the preceding 
FOR FURTHER INFORMATION CONTACT section.

Preamble Outline

I. Background
    A. Statutory and Regulatory Framework
    B. Domestic Wastewater Disposal in Florida Through Class I Wells
    1. Fluid migration requirements
    2. Florida geology
    C. 1999 Stakeholder Meeting
    D. Proposed Regulations
    1. Flexibility provided in SDWA Section 1421
    2. What the proposal will allow
    3. Rule applicability
    4. Monitoring
    5. Operating conditions
    6. Demonstration review
    E. The Cost of Compliance
II. Regulatory Impact/Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Executive Order 13045: Children's Health Protection
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Executive Order 13132: Federalism
    F. Unfunded Mandates Reform Act
    G. National Technology Transfer and Advancement Act
    H. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    I. Plain Language

I. Background

A. Statutory and Regulatory Framework

    Class I underground injection 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 sources in the United States and prescribes 
that:

    Underground injection endangers drinking water sources if such 
injection may result in the presence in underground water which 
supplies or can reasonably be expected to supply any public water 
system of any contaminant, and if the presence of such contaminant 
may result in such system's not complying with any national primary 
drinking water regulation or may otherwise adversely affect the 
health of persons. (Section 1421(d)(2) of the SDWA, 42 U.S.C. 
300h(d)(2).)

    Part C of the Act specifically mandates the regulation of 
underground injection. The Agency has promulgated a series of UIC 
regulations under this authority at 40 CFR Parts 144-147. The

[[Page 42235]]

chief goal of any Federally-approved UIC Program (whether administered 
by the State or EPA) is the protection of underground sources of 
drinking water (USDWs). This includes not only those aquifers which are 
presently being used for drinking water, but also those which may 
potentially be used in the future. EPA has established through its UIC 
regulations that underground aquifers with less than 10,000 mg/l total 
dissolved solids (TDS) which contain a sufficient quantity of ground 
water to supply a public water system are USDWs. (40 CFR 144.3)
    Section 1421 of the Act requires EPA to propose and promulgate 
regulations specifying minimum requirements for effective 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), June 29, 1995 (60 FR 33926) and December 7, 
1999 (64 FR 68546). Section 1421(b)(3)(A) of the Act also provides that 
EPA's UIC regulations shall ``permit or provide for consideration of 
varying geologic, hydrological, or historical conditions in different 
States and in different areas within a State.''
    When EPA promulgated its UIC regulations, it defined five classes 
of injection wells in Sec. 144.6. Class I wells are defined as wells 
which inject fluids beneath the lowermost formation containing, within 
one quarter mile of the well bore, a USDW. Class I wells can be 
hazardous, industrial or municipal waste disposal wells. EPA is only 
discussing existing Class I municipal wells in this proposed rule. 
Class I municipal wells can be owned by public and private entities.
    Section 1422 of the Act provides that States may apply to EPA for 
national primary enforcement responsibility to administer the UIC 
program. Those States receiving such authority are referred to as 
``Primacy States.'' Florida received national primary enforcement 
responsibility for the UIC program for Class I, III, IV and V wells on 
March 9, 1983. UIC regulations specific to Florida's primacy program 
are established in Part 147, Subpart K. For the remainder of this 
preamble, references to the UIC Program ``Director'' means the 
Secretary of the Florida Department of Environmental Protection (FDEP). 
Currently, all UIC Programs in Indian Country for Florida are directly 
implemented by EPA. There are no known Class I municipal wells in 
Florida in Indian Country.

B. Domestic Wastewater Disposal in Florida Through Class I Wells

    Beginning more than 20 years ago, municipalities in Florida began 
to pursue the use of underground injection as an alternative to surface 
disposal of treated wastewater from domestic wastewater treatment 
facilities. Underground injection technology was employed to relieve 
stress to surface water environments because it was technologically 
feasible to inject large volumes of wastewater into deep cavernous 
formations. Through technical and monetary assistance, EPA supported 
construction of many of these facilities in an effort to safeguard 
surface waters. Through injection technology, domestic wastewater 
facilities have been able to dispose of large quantities of domestic 
effluent, with the resulting benefit of reducing impacts to surface 
ecosystems. Facilities that inject domestic wastewater into wells below 
the lowermost USDW, are considered to have a Class I municipal 
injection well and in Florida inject into zones ranging from 650 to 
3,500 feet below land surface.
    The volumes of domestic wastewater permitted for injection at Class 
I municipal well facilities presently range from less than one million 
gallons per day (MGD) at the Gasparilla Island Water Utilities to about 
110 MGD at Miami-Dade Water & Sewer Department, South District 
Wastewater Treatment Plant. Florida requires that domestic wastewater 
must be treated to secondary wastewater treatment (See 40 CFR Part 133) 
standards at a minimum prior to injection.
    At the time Florida permitted the currently operating Class I 
municipal wells, characterization of the geology indicated that there 
was adequate confinement to separate the injection fluids from the 
USDW. Because it was thought there was adequate confinement, it was 
believed that injection fluids would never migrate upwards into the 
shallower geologic formations containing USDWs. However, monitoring of 
injection operations over the past several years has indicated some 
deep geologic zones provide less confinement between formations than 
originally thought. In a few cases, fluid movement has occurred into 
the base of the lowermost USDW.
1. Fluid Migration Requirements
    In addition to municipal wells, Class I wells also include 
hazardous or nonhazardous industrial wells which inject into geologic 
formations below the lowermost USDW. (Hazardous waste injection must 
meet additional Resource Conservation and Recovery Act (RCRA) 
requirements. See 40 CFR Part 148.)
    When EPA promulgated its regulations for the UIC program, it 
established different requirements for each class of wells, based upon 
the uses and risks of various types of wells. All classes of wells are 
required to comply with Sec. 144.12(a) which states:

    No owner and/or operator shall construct, operate, maintain, 
convert, plug, abandon, or conduct any other injection activity 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.

    Then, for Class I, II and III wells, Sec. 144.12(b) more 
specifically provides that:

if any water quality monitoring of an underground source of drinking 
water indicates the movement of any contaminant into the underground 
source of drinking water, except as authorized under Part 146, the 
Director shall prescribe such additional requirements for 
construction, corrective action, operation, monitoring, or reporting 
(including closure of the injection well) as are necessary to 
prevent such movement.

    In contrast to subsection (a), which, for all classes of wells, 
prohibits fluid movement that endangers USDWs, Section 144.12(b) 
requires for Class I, II and III wells, that a State or Federal UIC 
program director, upon detection of contaminant movement into a USDW, 
prescribe requirements to prevent any such movement, regardless of 
whether the movement may endanger the USDW.
    In addition to Sec. 144.12(b), EPA established technical and other 
requirements for specific classes of wells in Parts 144 and 146 
regulations. The Parts 144 and 146 regulations address siting, 
construction, operation, and closure of wells. Section 144.12(b) and 
the specific technical requirements of Parts 144 and 146 regulate the 
activities through which fluid movement may result and impose 
requirements designed to ensure that Class I, II and III wells will not 
endanger USDWs by prohibiting movement of any fluid into the USDW.
    Today's proposed change to the technical requirements in Part 146 
for Class I municipal wells in certain parts of Florida will be 
implemented through

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the addition of Sec. 146.15 pursuant to the authority of Section 
1421(b)(3)(A) of the SDWA. Section 1421(b) of the SDWA requires that 
EPA promulgate regulations which provide the minimum requirements for 
an effective UIC program: such regulations ``shall contain minimum 
requirements for effective programs to prevent underground injection 
which endangers drinking water sources.'' (Section 1421(b)(1), 42 
U.S.C. Sec. 300h(b)(1).) Section 1421(b)(3)(A) also provides that EPA 
regulations ``shall permit or provide for consideration of varying 
geologic, hydrological, or historical conditions in different States 
and in different areas within a State.'' (Section 1421(b)(3)(A), 42 
U.S.C. Sec. 300h(b)(3)(A).) The proposed change in the technical 
requirements for Class I municipal wells in certain parts of Florida is 
being undertaken pursuant to Section 1421(b)(3)(A) in recognition of 
the appropriateness of a different standard of USDW protection in light 
of Florida's unique geology, hydrogeology and historical (as well as 
present and future) wastewater disposal needs.
2. Florida Geology
    In Florida, as in most areas of the country, sedimentary rocks are 
the predominant rock type, although the specific types of sedimentary 
rocks are different. In other areas, the underlying rock consists of 
clastic rock (sandstone, siltstone, and shale) and carbonate rock 
(limestone and dolomite). Limestone and dolomite are often classified 
as carbonate rock because of their mineral composition. Limestone is 
often formed by accumulation of organic remains such as corals or 
shells, and consists mainly of calcium carbonate. Dolomite is composed 
of the mineral calcium magnesium carbonate and is generally formed by 
alteration of limestone. Clastic rocks are formed from weathering and 
erosion and are made up of fragments of sand, silt, and clay. This 
eroded clastic material is transported and deposited at locations where 
it becomes the subsurface rock after burial and compression.
    Where sedimentary rocks exist, clastic rocks (sandstones, 
siltstones, shales) and carbonate rocks (limestones and dolomites) 
comprise the geologic formations that serve as the injection zones and 
confining zones for underground injection activity. Whether a rock 
layer can serve as an injection zone or a confining zone depends on its 
porosity (the amount of pore space between grains of sand) and its 
permeability (the interconnectivity of this pore space). In general, 
rocks with higher porosity and permeability usually serve as injection 
zones because these characteristics readily allow for the fluids that 
naturally exist in the pore spaces (known as native, formation, or 
connate fluids) to be displaced by injection fluids. Rock layers with 
lower permeability or porosity do not allow such movement, and 
typically serve as confining zones. Sandstones usually serve as 
injection zones because their porosity and permeability allows for 
native formation fluids to move freely and be displaced by injection 
fluids. Siltstones generally are not good injection zones because they 
have less permeability than needed for injection operations. However, 
they also generally have too much permeability to serve as a confining 
unit. Shales often serve as confining zones for underground injection 
purposes because they have high porosity but low permeability (fluids 
do not move freely through the zone).
    Limestone and dolomite sequences can be lithologically complex 
because, within a carbonate rock layer, the porosity and permeability 
may be greatly affected by geologic processes that occur after the 
rocks are formed. These include tectonic fracturing and chemical 
interactions between carbonate rock and fluids traveling through these 
fractures. The porosity and permeability of carbonate rock has been 
enhanced, reduced, and, in places, eliminated. The porosity and 
permeability variations of the carbonate rocks of peninsular Florida, 
which define their confining ability, may be quite local in nature.
    That is, even within the same geological horizon or geological 
deposit of a particular time, there may be areas of high porosity and 
permeability close to low-porosity areas of porosity and permeability. 
This can complicate or compromise the use of carbonate rocks as 
injection or confining zones.
    Sedimentary rock types in a given location vary based on changes in 
the environment at the time they were deposited. Carbonate sediments 
may develop in many environmental settings, but the most prolific 
accumulations occur in warmer climates which are conducive to the 
development of corals and other skeletal marine organisms with shells 
composed of calcium carbonate minerals. A lack of clastic deposition 
also favors carbonate deposition. If clastic sediments start to be 
deposited on a coral formation, the sediments would bury and kill the 
organisms, thereby preventing further growth of the coral formation.
    In many areas of the country, sequences of sediment deposition 
alternate between clastic and carbonate rocks, reflecting changes in 
the depositional environment. Clastic sediments usually accumulate near 
the medium that transported the sediments, such as the mouth of a 
river. Carbonate sediments, on the other hand, generally accumulate 
near where they are formed, such as a coral formation. The thickest 
deposits of carbonate rocks occur where there are warm climates and 
limited media (rivers for example) to transport clastic sediment.
    The current injection and confining zones in peninsular Florida 
exist in what is known as the Floridan Aquifer System. The Floridan 
Aquifer System is made up of carbonate rocks. Parts of the Floridan 
Aquifer System also are USDWs. The rocks were formed on a broad, marine 
shelf with a warm climate, which was distant from sources of clastic 
sediment such as rivers. This setting allowed for the development of 
thick deposits of limestone and dolomite (carbonate rock) without 
significant amounts of sandstones, siltstones, and shales (clastic 
rock) found in other areas of the country. Because of the absence of 
shales in peninsular Florida, which are frequently the confining zones 
in other areas of the country, the carbonate rocks themselves must 
serve as both the confining and injection zone. This is unusual and 
unique, but possible because of the variability in the porosity and 
permeability of carbonate rocks as discussed previously as well as the 
existence of numerous vertical and horizontal faults within the 
formations.
    The porosity and permeability variations of the carbonate rocks of 
peninsular Florida and the existence of fractures within the formation 
determine their confining ability. The porosity varies greatly, even 
within the same horizon or geological deposit of a particular time. 
While the confining ability within the rock sequences that comprise the 
Floridan Aquifer appears adequate for most injection facilities, there 
are some injection well locations where the carbonate formation does 
not appear to provide adequate confinement. This is substantiated by 
water quality analysis of monitoring wells at selected injection 
facilities. While most of the country can depend on clastic shales for 
confinement, Florida's geology has very different characteristics which 
were not considered during original promulgation of the Class I 
regulations.
    It now appears, from recent well monitoring data, that upward fluid 
movement from some Class I municipal operations occurs in Florida 
because the injection fluid from Class I municipal wells has a lower 
density (lower total

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dissolved solids) than the native formation fluids. This tends to cause 
the less dense injection fluids to rise to the top of the injection 
zone preferentially through fractures that may exist within the 
formations. Because of its buoyancy, the injectate may also rise above 
the injection zone if these migration pathways exist. This monitoring 
data also indicates that injection fluid has migrated vertically into 
USDWs.
    The application of the proposed rule is limited to both certain 
geologic conditions and certain geographic areas in Florida. It is 
limited geographically to the following counties: Brevard, Broward, 
Charlotte, Collier, Dade, Flagler, Glades, Hendry, Highlands, 
Hillsborough, Indian River, Lee, Manatee, Martin, Monroe, Okeechobee, 
Orange, Osceola, Palm Beach, Pinellas, St. Johns, St. Lucie, Sarasota, 
and Volusia. These counties are included in this proposed rule because 
they have the unique geologic conditions that are predominated by 
carbonate rocks discussed previously. The counties were selected using 
a map adapted from Florida Geological Survey map series 94 ``Potential 
Subsurface Zones for Liquid-Waste Storage in Florida,'' created by 
James A. Miller of the United States Geological Survey in 1979. The 
geological conditions considered are those where the injection and 
confining zones are both in the Floridan Aquifer, and no clastic 
confining unit separates the injection zone from the lowermost USDW. 
EPA requests comment on whether these are the appropriate counties to 
target in this proposal or whether additional (or fewer) counties in 
Florida should be included. See United States Geological Survey's 
website for specific information on Florida's geology at http://www.usgs.gov.

C. 1999 Stakeholder Meeting

    To assist in developing an approach to deal with the Class I 
municipal wells in Florida, EPA held a stakeholder meeting on July 7, 
1999, in West Palm Beach, Florida to solicit stakeholder input. Over 
100 people attended the meeting in person or via conference call with 
30 people giving oral comments. Additional written statements have been 
received since the meeting. Municipalities, industry, environmental 
groups and private citizens participated. At that meeting, EPA 
presented four general options then being considered: (1) Make no 
regulatory change, (2) reclassify the wells from Class I municipal to 
Class V municipal, (3) convert the wells directly to Class V by 
allowing injection directly into the USDW, and (4) make some regulatory 
change. The following is a discussion of each of these options.
    Option 1: Make no regulatory change. This option would require 
those facilities where it has been shown that fluids are migrating into 
a USDW to either cease Class I injection and find another disposal 
alternative or obtain an aquifer exemption to allow continued 
injection. Some facilities indicated that, because of other state laws 
and rules, there is no surface water disposal option available to them. 
Other facilities said they would have to treat the effluent to a much 
higher standard than is currently required in order to use surface 
waters as a disposal option. If a facility would choose to obtain an 
aquifer exemption, they would need to show that the aquifer is not 
reasonably expected to supply a public water system, which would be 
very difficult to show.
    Option 2: Reclassify the wells from Class I municipal wells to 
Class V wells. This option would have involved the determination that 
the facility no longer meets the regulatory definition of a Class I 
well, i.e., a well injecting below the lowermost formation containing a 
USDW (40 CFR 144.6). Under this option, EPA and stakeholders discussed 
whether facilities with fluid movement could seek reclassification in a 
permit action from Class I to Class V on the basis that injection is 
taking place into (rather than below) the formation that contains the 
USDW. Under current Florida requirements, if a Class V well is 
discharging into a USDW, the facility must meet the national primary 
drinking water standards at the point of discharge. Compliance at the 
point of discharge could make this option more costly to the discharger 
than Option 1. The Agency is not planning to allow reclassification 
unless the well was misclassified in the first instance. 
Misclassification might have occurred if the well did not originally 
meet the definition of a Class I well. The facility could demonstrate 
this if new information has become available that proves that the well 
originally was injecting into a USDW and therefore would meet the 
definition of a Class V well.
    Option 3: Convert the wells to Class V by allowing injection 
directly into the USDW. Under this option, wells would inject municipal 
wastewater directly into or above the formation containing the 
lowermost USDW. This option is different from the reclassification 
option (Option 2) because the well would have to be physically altered 
to inject into the USDW. Similar to the previous option, under current 
Florida rules, a facility would have to meet national primary drinking 
water standards at the point of discharge under this option. Several 
stakeholders commented that the formations within the USDW do not have 
sufficient capacity to accept the quantities of fluid currently 
injected into the deeper formations which, because of their unique 
hydrogeologic characteristics, can accept large quantities of fluid. 
This option has always been available to the facilities but has not 
been used because of these limitations and the extensive treatment that 
would be required for the discharge to meet the State's standards.
    Option 4: Make some regulatory change. This is the option that is 
being proposed today and will be discussed in Section D.
    Participants in the stakeholder meeting suggested that protecting 
ground water was a high priority. Some municipalities advocated 
reclassification to Class V wells while others said a regulatory change 
would be more beneficial. Municipalities advocated the reclassification 
of the wells to Class V. Environmental groups generally wanted to 
require the facilities to apply higher levels of treatment prior to 
injection. Many felt that injection was still a viable option but 
attention should be paid to protect the future use of the ground water 
resource.

D. Proposed Regulations

1. Flexibility Provided in SDWA Section 1421
    The SDWA requires EPA to promulgate regulations that contain 
minimum requirements for effective programs to prevent underground 
injection which endangers drinking water sources. The Act further 
states that:

    Underground injection endangers drinking water sources if such 
injection may result in the presence in underground water which 
supplies or can reasonably be expected to supply any public water 
system of any contaminant, and if the presence of such contaminant 
may result in such system's not complying with any national primary 
drinking water regulation or may otherwise adversely affect the 
health of persons. (42 U.S.C. 300h (d)(2))

    EPA responded to the SDWA mandate (1421(b)(5)) that underground 
injection not endanger USDWs by requiring that Class I wells prevent 
the movement of any fluids into a USDW. However, EPA prescribed no 
limits on the quality or quantity of the fluids being injected. EPA 
established a ``no fluid movement'' requirement for all Class I wells 
even though such wells are different with respect to their design, 
construction, and operation. EPA believed a uniform standard would be 
easier to interpret,

[[Page 42238]]

comply with, and enforce, and such a standard was generally accepted 
among the regulated community. This acceptance was based upon the 
assumption that specific strata existed around the country that could 
generally serve as a barrier to fluid movement and that, therefore, 
there was no need for additional limits on effluent quantity or 
quality. This was also thought to be true in Florida, even though 
Florida's geology does not fit the ``classic'' model.
    Since the original UIC regulations were passed, information from 
several deep monitoring wells placed at the base of the lowermost USDW 
near certain municipal injection wells in Florida have shown evidence 
that there has been fluid migration out of the designated injection 
zone. Through evaluation of this information, it is suspected that 
sufficient geologic strata separating the injection zones and the USDW 
do not exist in certain parts of Florida. Therefore, considering the 
State's unique geology, the assumption underlying the development of 
the fluid movement prohibition for Class I municipal wells needs (i.e., 
availability of adequate confinement) to be reviewed for Florida. Since 
current Federal UIC regulations do not provide Class I municipal wells 
with the flexibility to demonstrate that injection and any subsequent 
fluid movement would not endanger underground drinking water sources, 
EPA has decided that such flexibility should now be built into the 
Florida-specific UIC regulations for existing municipal Class I wells.
    The Act permits EPA, under Section 1421(b)(3)(A), to consider 
specific State geologic, hydrological and historical conditions when 
passing regulations to prevent endangerment. Section 1421(b)(3)(A) 
states, ``The regulations of the Administrator under this section shall 
permit or provide for consideration of varying geologic, hydrological, 
or historical conditions in different States and in different areas 
within a State.'' The proposed rule is being developed based on South 
Florida's unique carbonate--rock geology, discussed previously, the 
vast hydrological capacity that characterize the formations where 
wastewater is injected and the extent to which municipalities in South 
Florida have turned to Class I wells as a very important method for 
wastewater disposal. Florida is currently also the only State in the 
country that disposes of treated domestic waste through Class I 
municipal injection wells. EPA believes that all these conditions 
support the regulatory approach being proposed here for existing Class 
I municipal wells in certain parts of Florida.
2. What the Proposal Will Allow
    EPA is now considering a regulatory approach for existing Class I 
municipal wells in certain counties in Florida that addresses the lack 
of sufficient confinement of Class I municipal injection while 
continuing to meet the requirement of the Act to prevent underground 
injection that endangers underground drinking water sources. These 
counties are: Brevard, Broward, Charlotte, Collier, Dade, Flagler, 
Glades, Hendry, Highlands, Hillsborough, Indian River, Lee, Manatee, 
Martin, Monroe, Okeechobee, Orange, Osceola, Palm Beach, Pinellas, St. 
Johns, St. Lucie, Sarasota, and Volusia. The proposed rule provides an 
option for qualified operators of domestic wastewater facilities in 
these counties to continue disposal underground rather than relying on 
surface and/or ocean disposal of effluent. Further, the proposed rule 
would compel facilities to provide more advanced wastewater treatment 
that will raise the economic value of the treated effluent and in turn 
promote greater wastewater reuse.
    The proposed rule creates, for certain Florida Class I wells that 
inject domestic wastewater, an authorization to inject, regardless of 
fluid movement into the USDW, so long as the facility can demonstrate 
that it will meet certain protective criteria relating to the quality 
of the injected fluid, and that the injected fluids will not cause any 
USDWs to exceed primary drinking water regulations in Part 141 of this 
chapter and other health based standards. The proposed rule is 
consistent with the mandate of the SDWA, as it establishes requirements 
which prevent endangerment of USDWs. The conditions placed upon wells 
receiving this authorization to inject are designed to prevent 
endangerment of USDWs, while providing for the possibility of continued 
injection operations. In order to further ensure that the authorization 
to inject is consistent with the goals of the SDWA, the proposal 
specifies that EPA participate in the review and approval of the 
facility's application for this authorization, even though the State of 
Florida has primacy for the Class I UIC program. EPA will have 90 days 
to disapprove the State's approval of any authorization under this 
proposed rule. If EPA does not respond within 90 days, the 
demonstration is approved.
    EPA is co-proposing for public comment two approaches for 
regulating Class I municipal wells in specific areas of Florida where 
injection has caused or may cause fluid movement into a USDW. The two 
options are: Option 1--Facilities must provide advanced wastewater 
treatment with a demonstration that the injectate will not cause a USDW 
to exceed any primary drinking water regulations in Part 141 of this 
chapter and other health based standards (e.g., Federal or State health 
advisories); and Option 2--Facilities must conduct an in-depth 
hydrogeologic demonstration and must provide advanced treatment, as 
necessary, to ensure that injectate will not cause a USDW to exceed any 
primary drinking water regulations in Part 141 of this chapter and 
other health based standards. The requirements of these options are in 
paragraph (d).
    The difference between these two options is that Option 2 would 
require a much more extensive demonstration than in Option 1 because a 
high level of treatment before injection provides a safety net of 
contaminant removal. Both of these proposals apply to existing 
municipal wells which inject domestic wastewater effluent.. An existing 
well is defined as a well for which a complete UIC construction permit 
application has been received by the Director on or before the date of 
publication of this proposed rule in the Federal Register. This rule is 
proposed for existing wells only because, given current knowledge of 
the existing fluid migration problems, future well applications will be 
reviewed with more scrutiny than wells that have already been permitted 
and such review will ensure that adequate confinement exists so that 
fluid movement should not occur. The Agency is requesting comments on 
whether this proposed rule should apply to existing wells only, or if 
this proposed rule should also apply to new wells.
    Although the municipal wells that are covered by this proposed rule 
receive primarily domestic wastewater, they also receive some 
wastewater from industrial sources. This rulemaking does not 
specifically require that these industrial facilities have a 
pretreatment program in place that would require them to pretreat the 
wastewater that enters the facility's treatment system. Such a program 
may be necessary to address contaminants that enter a facility's 
wastewater treatment system and are not sufficiently removed by the 
treatment system to prevent concentrations of the contaminant from 
entering a USDW and causing the USDW to exceed drinking water 
regulations or other health based standards. Although Florida requires 
that publicly owned treatment works (POTWs) greater than 5 million 
gallons

[[Page 42239]]

per day (MGD) meet certain pretreatment requirements, this may not 
sufficiently address contaminants in fluids that move into a USDW as a 
result of underground injection from smaller POTWs or others that could 
be exempt from existing pretreatment requirements. EPA therefore 
solicits public comment on the need by the Agency to require 
pretreatment as an additional condition of authorization under today's 
proposal and, whether to extend the pretreatment standards presently 
required by the State to injection facilities with less than 5 MGD.
3. Rule Applicability
    This proposed rule applies only to existing Class I municipal wells 
which inject treated domestic wastewater effluent that have caused or 
may cause fluid movement into USDWs in specific counties in Florida. 
These counties are: Brevard, Broward, Charlotte, Collier, Dade, 
Flagler, Glades, Hendry, Highlands, Hillsborough, Indian River, Lee, 
Manatee, Martin, Monroe, Okeechobee, Orange, Osceola, Palm Beach, 
Pinellas, St. Johns, St. Lucie, Sarasota, and Volusia. This rule 
applies to both publically and privately owned facilities. The 
definition of domestic wastewater can be found in paragraph (c) of this 
proposed rule.
4. Monitoring
    EPA is considering adding more specific monitoring requirements for 
the effluent and the ground water than specified in Sec. 146.13. The 
effluent will be characterized initially to determine the level of 
contaminants in the wastewater and then at least annually to ensure 
that the treatment process is meeting its objectives. This monitoring, 
at a minimum, would be for all contaminants regulated under the 
national primary drinking water regulations and other health based 
standards. The Director shall also require that the owner and/or 
operator develop and implement an ambient/ground water monitoring 
program. The ground water monitoring program will, at a minimum, 
analyze the ground water to determine if any primary drinking water 
regulations in Part 141 of the chapter or other health based standards 
have been violated. The monitoring is to verify that the injection 
operation shall not endanger the USDW through movement of the injectate 
or formation fluids. These requirements would be incorporated as permit 
conditions of an operation permit under the Florida UIC program. 
Additional requirements, such as the construction of additional 
monitoring wells may be needed on a case-by-case basis. EPA is 
requesting comments on any additional monitoring requirements for the 
final rule.
5. Operating Conditions
    Operating conditions determined necessary to prevent endangerment 
of the USDW by the demonstration will be incorporated by the Director 
as permit conditions to either a permit modification or permit 
issuance. Conditions may include, but are not limited to, treatment 
requirements including pretreatment (if any), monitoring criteria and 
frequency, and reporting frequency.
    The options which are being co-proposed for paragraph (d) are as 
follows:
    Option 1--Advanced wastewater treatment with a non-endangerment 
demonstration. The authorization to inject under Option 1 requires that 
the owner and/or operator of a Class I municipal well injecting 
domestic wastewater effluent treat their wastewater by advanced 
treatment methods and high-level disinfection and demonstrate that the 
injection of the wastewater effluent would not cause fluids that exceed 
the national primary drinking water regulations or other health based 
standards to enter the USDW. The non-endangerment demonstration would 
focus on any contaminants that still exceed national drinking water 
regulations or other health based standards after advanced wastewater 
treatment. The demonstration would identify any such contaminants and 
demonstrate that they would not cause similar exceedances in the USDW.
    EPA solicits public comment on four alternatives for the 
appropriate level of advanced wastewater treatment, nutrient removal, 
and high-level disinfection that should be required of these 
facilities. The final rule will specify only one alternative.
    Advanced treatment options reflect a wide range of biochemical 
oxygen demand (BOD) removal and nutrient removal capabilities. In 
designing the Clean Water Needs Survey, States and EPA identified four 
advanced treatment options that represent a range of treatment 
scenarios commonly used by municipalities for advanced wastewater 
treatment. These include plants designed to meet BOD levels of 10-24 
mg/l with and without nutrient removal capability, and plants designed 
to meet more stringent BOD levels of less than 10 mg/l with and without 
nutrient removal capability. EPA is considering a range of advanced 
treatment alternatives, and is seeking comment on which alternative to 
specify in the final rule if Option 1 is selected. The alternatives 
evaluated and proposed are:

Treatment to 10-24 mg/l BOD with disinfection;
Treatment to 10-24 mg/l BOD with disinfection and nutrient removal;
Treatment to 10 mg/l BOD with disinfection;
Treatment to 10mg/l BOD with disinfection and nutrient removal.

    Advanced treatment is any level of treatment in excess of secondary 
treatment and may include processes to remove nutrients such as 
nitrogen and phosphorus and other pollutants found in the wastewater 
stream entering the municipal treatment plant. To achieve high level 
disinfection, a process designed to kill most microorganisms in water 
including pathogenic (disease causing) bacteria, owners and/or 
operators must allow the wastewater to remain in contact with at least 
1.0 mg/l of free chlorine for at least 15 minutes of contact with no 
fecal coliform. Facilities will also be required to provide 
dechlorination, if necessary, as part of the advanced wastewater 
treatment to ensure that USDWs are not endangered from disinfection by-
products.
    Option 2--In-depth hydrogeologic demonstration and advanced 
treatment, as necessary. The authorization to inject under Option 2 
requires that the owner and/or operator of a Class I municipal well 
injecting domestic wastewater effluent provide a hydrogeologic 
demonstration that the injection operation would not cause fluids that 
will migrate into the USDW to exceed the national primary drinking 
water regulations or other health based standards. EPA anticipates that 
this hydrogeologic demonstration would be similar in detail to that 
required for a RCRA land ban no-migration petition and consist of an 
evaluation of the results of sampling and analysis for contaminants in 
wastewater prior to injection and in water samples from deep monitoring 
wells at the base of the USDW and would also include detailed 
hydrogeologic modeling of fluid transport from the injection zone to 
those areas of the subsurface including USDWs to which the fluid and 
contaminants in the fluid have migrated and may migrate. This 
demonstration would include at a minimum: ground-water modeling, 
geochemical analysis and effluent and ground-water monitoring and 
analysis. The items included in the demonstration are intended to 
characterize how the effluent is expected to move vertically and 
horizontally after it is injected into the subsurface and to determine 
if the

[[Page 42240]]

effluent or the formation fluids will enter the USDW. If it is 
anticipated that the fluids may enter the USDW, the demonstration must 
show that the fluids will not endanger the USDW and exceed primary 
drinking water regulations in Part 141 or other health based standards.
    If the owner and/or operator cannot successfully demonstrate that 
the injection operation meets these criteria, the owner and/or operator 
must treat the injectate to address the contaminants of concern and 
satisfy the criteria of paragraph (d) that the injectate would not 
cause a USDW to exceed the national primary drinking water regulations 
or other health based standards prior to receiving an authorization for 
permit authorizing continued injection pursuant to this rule. The 
Agency also solicits comments as to whether this hydrogeologic 
demonstration, and the determination of what level of advanced 
wastewater treatment may be necessary, should include a requirement for 
pretreatment as may be necessary to address contaminants that may move 
through a treatment system and enter into a USDW at concentrations of 
concern.
    The differences between the two options proposed under paragraph 
(d) are that the first option gives a higher level of confidence that 
any fluids that migrate into the USDW will meet the applicable 
standards. This is because the facilities must design, construct and 
operate a specific level of advanced wastewater treatment and also 
demonstrate that, after the effluent is treated, any constituent which 
exceeds any primary drinking water regulations in Part 141 or other 
health based standards at the point of injection will not exceed the 
standards when the fluid enters the base of the USDW.
    For Option 1, this demonstration could be as simple as referencing 
technical literature describing die-off rates for viruses and other 
pathogens, or how metals bind in soils compared to the results of 
ground water sampling and analysis pursuant to Sec. 146.13. EPA expects 
that there would be fewer parameters (contaminants in concentrations of 
concern) requiring a demonstration in Option 1 since the effluent would 
be subject to advanced treatment and disinfection and less ground water 
modeling.
    For Option 2 under paragraph (d), the facility is afforded the 
opportunity to demonstrate the necessity for additional treatment and 
tailor the level of treatment to the quality of fluid that has migrated 
or may migrate into the base of the USDW. The level of treatment needed 
to make a successful demonstration under Option 2 could vary from 
facility to facility. Constituents in the effluent that exceed primary 
drinking water regulations in Part 141 or other health based standards 
would need to be sampled at the base of the USDW, analyzed and 
evaluated to ensure that the requirements of this proposed rule are 
met. EPA solicits comments on each of these options for ensuring that 
any fluid that does migrate into the base of a USDW will meet 
applicable standards. In particular, EPA solicits comments on the 
ability of owners and operators to provide the kind of hydrogeologic 
and other information necessary for a successful hydrogeologic 
demonstration.
    If it adopts Option 2, EPA also proposes to require that all 
facilities qualifying for authorization to inject under this section 
must have advanced wastewater treatment and high level disinfection in 
place by the year 2015. This requirement is to address water shortages 
in Florida and encourage water reuse. The year 2015 is being proposed 
in order to provide the wastewater treatment facilities with adequate 
time to evaluate all of their municipal wastewater reuse and disposal 
options and to plan for any construction of treatment facilities 
needed. Prior to the year 2015, under Option 2, the owner/operator of 
the wastewater treatment facility would still have to demonstrate that 
they will not endanger USDWs. EPA is soliciting comment on the 
appropriate level of advanced wastewater treatment and nutrient removal 
to be required by the facilities by 2015. The levels of treatment being 
considered are the same as those listed in Option 1 above.
6. Demonstration Review
    The demonstration under paragraph (d) must be submitted to both the 
State and EPA for review. The authorization to continue to inject under 
a permit shall become final 90 days after the State Director approves 
the demonstration and submits the approval in writing to the Regional 
Administrator if he or she does not disapprove the authorization within 
the 90 days. Any disapproval by the Regional Administrator shall state 
the reasons and shall constitute final Agency action. The owner and/or 
operator must update the required demonstration with each subsequent 
Class I operation permit application, every five (5) years, as required 
in paragraph (f). The update shall include an analysis of all 
monitoring results since the original demonstration and verification 
that the original demonstration is still valid for the disposal 
operation.
    EPA is soliciting comments on all aspects of this proposal, and in 
particular on whether to select either Option 1 or 2 or, if it would be 
more appropriate, to select a combination of both options. In addition 
the Agency requests comments on EPA's regulatory approach to continue 
to allow facilities with fluid movement to inject by improving the 
quality of the injected fluid. In particular, the Agency invites 
comment and data on any commenters' preference among the various means 
of domestic wastewater disposal in Florida, the effects that those 
methods have on Florida's fragile environment, and the extent to which 
this proposal may result in the increased or decreased use of reuse or 
other disposal practices such as ocean or other surface water disposal.

E. The Cost of Compliance

    The proposed rule does not impose any new requirements on Class I 
municipal wells in Florida, but merely provides an alternative 
authorization to inject for which a well owner and/or operator may 
apply if the well falls within the narrow criteria of the proposed 
rule. Because continued operation of Class I municipal injection wells 
which result in movement of fluids into or between USDWs is contrary to 
existing Federal UIC regulations, the proposed rule offers such 
facilities an ability to continue to operate legally provided they meet 
the new requirements.
    The proposed rule presents owners and/or operators of such Class I 
wells with options for continued authorization to inject should fluid 
movement occur. In the absence of the proposed regulatory changes, 
facilities that exhibit fluid movement would need to close their wells 
and adopt alternative disposal practices. The economic analysis for 
this proposed rule compares the costs of compliance under this proposed 
rule with the costs of compliance under the current regulations. Small 
private and governmental entities are the likely owners and/or 
operators of Class I wells in Florida disposing of domestic wastewater 
effluent.
    The factors taken into account in estimating these costs include 
the number of existing facilities that are potentially affected by the 
proposed rule, the current regulatory requirements for Florida Class I 
municipal facilities, and the current extent of treatment at each 
facility. Many of the cost estimates are presented as a range, with the 
lower figures representing an assumption that 25% of the existing 
facilities will experience

[[Page 42241]]

fluid movement and the upper figures representing an assumption that 
100% of the facilities will experience fluid movement. Specific to 
Option 2, of the facilities that do not currently provide advanced 
wastewater treatment and high level disinfection, 25% are assumed to be 
able to make the hydrogeologic demonstration with the addition of high-
level disinfection only and 75% will have to provide both high-level 
disinfection and advanced wastewater treatment. The baseline assumes 
the costs associated with complying with the current UIC regulations. 
These costs include closing the wells and adopting alternative disposal 
practices, which could consist of surface water disposal, ocean 
outfall, and/or reuse.
    Four different treatment scenarios have been evaluated with each of 
the proposed options. The target contaminant removal levels are based 
on the pollutant parameter biochemical oxygen demand (BOD) removal:

Treatment to 10-24 mg/l BOD with disinfection
    Treatment to 10-24 mg/l BOD with disinfection and nutrient removal
    Treatment to 10 mg/l BOD with disinfection
    Treatment to 10mg/l BOD with disinfection and nutrient removal

    Given these assumptions, the costs to Class I municipal facilities 
, including monitoring costs, in Florida are estimated to be as follows 
(in millions of dollars):

Baseline Scenario: Total Capital Costs $721-2,882
    Total Annualized Costs (Capital & Operating) $203-811
Regulatory Option 1: Total Capital Costs $254-1,678
    Total Annualized Costs (Capital & Operating) $131-587
    Total Annualized Savings from Baseline $72-224
Regulatory Option 2: Total Capital Costs $201-1,329
    Total Annualized Costs (Capital & Operating) $101-453
    Total Annualized Savings from Baseline $102-358

    EPA is soliciting comments on the assumptions used in the economic 
analysis that was developed for this proposed rule. The economic 
analysis is part of the record for this proposed rule (see Additional 
Docket Information in the SUPPLEMENTARY INFORMATION section above).
    EPA notes that a facility may choose to cease underground injection 
and, as permitted under State or Federal law, opt to discharge to 
surface waters, either to fresh waters, estuaries or through an outfall 
to ocean waters. EPA solicits comments regarding whether these are 
preferred disposal methods. In particular, EPA solicits comments about 
what disposal actions municipalities may take if there is no regulatory 
change or in the event either one of the two proposed options is 
promulgated. EPA also solicits comments on the potential economic or 
environmental impact of either making no change or choosing either of 
the proposed options.

II. Regulatory Impact/Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    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 programs or the rights and obligations 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.
    It has been determined that this proposed rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is, therefore, not subject to OMB review.

B. Executive Order 13045: Children's Health Protection

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
it is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. The proposed rule provides an 
optional authorization for certain Class I wells in Florida to inject 
domestic wastewater effluent only if the practice is demonstrated not 
to endanger underground sources of drinking water. The criteria 
established in the rule safeguards these resources for all potential 
users, including but not limited to children.
    The public is invited to submit or identify peer-reviewed studies 
and data, of which the Agency may not be aware, that assessed results 
of early life exposure to secondarily treated wastewater injected into 
the subsurface through Class I municipal wells in Florida.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 317.17) and a copy may be obtained from Sandy Farmer by mail 
at Collection Strategies Division; U.S. Environmental Protection Agency 
(2822); 1200 Pennsylvania Avenue, N.W., Washington, DC 20460; by email 
at [email protected], or by calling (202) 260-2740. A copy 
may also be downloaded off the internet at http://www.epa.gov/icr.
    The proposed ICR estimates monitoring, demonstration, reporting and 
recordkeeping burdens and costs for Class I underground injection well 
operators in Florida under the proposed rule. Information regarding 
wastewater quality, treatment and migration will be collected as 
outlined in the rule for review by the State of Florida as primacy 
agent. Under the proposed rule, the primacy State would be required to 
revise and resubmit a UIC program application for Class I wells. EPA is 
also requesting that facility owners and/or operators demonstrate, 
using a modeling study, that by the time effluent reaches the USDW, it 
is in compliance with the SDWA national primary drinking water 
standards. Wells for which it cannot be demonstrated that sufficient 
water

[[Page 42242]]

quality exists at the bottom of the USDW would have to upgrade their 
wastewater treatment to qualify for the proposed authorization to 
inject.
    Information collected under SDWA and, by extension, this ICR is 
expected to be used by EPA and the State of Florida to help insure the 
maintenance of clean, safe public drinking water supplies.
    Operators of injection wells may claim confidentiality, as provided 
in Sec. 144.5, Confidentiality of Information. If confidentiality is 
requested, the information is treated in accordance with the provisions 
of 40 CFR Part 2, Public Information.
    Information collected under this ICR is intended for the Agency's 
and/or State's internal use and there are no plans to routinely release 
or publish any of the data. However, if no claim of confidentiality is 
made at the time of submission, the information can be made available 
to the public without further notice.
    EPA estimates that the average annual burden on Class I municipal 
well operators (which includes public and private entities) and the 
State of Florida will be 1,556 hours for Option 1 of the proposed rule 
and 2,265 hours for Option 2. This is based on an estimate that 1 
State, Florida, will need to provide 44 responses each year at 10 hours 
per response for Option 1 and 44 responses at 10.6 hours per response 
for Option 2. It is also estimated that 9 Class I municipal well 
operators will need to provide an average of 15.7 responses each year 
at an average of 7.9 hours per response for Option 1 and an average of 
15.7 responses each year at an average of 12.8 hours per response for 
Option 2. The labor burden is estimated for activities associated with 
reading and understanding the rule, performing and reviewing 
monitoring, performing and reviewing engineering demonstrations, and 
meeting primacy requirements. In addition to the recordkeeping and 
reporting burden, it is estimated that an average annual cost of 
$688,678 will be incurred for capital and operations and maintenance 
(O&M) costs for Option 1, and $884,943 annually for Option 2. Capital 
costs are for installation of monitoring wells and associated equipment 
needed to collect data under the rule requirements. O&M costs are for 
acquisition of contracting services to perform analysis and 
demonstrations required by the proposed rule.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, Collection Strategies Division; U.S. Environmental Protection 
Agency (2822); 1200 Pennsylvania Avenue, N.W., Washington, DC 20460; 
and to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, 725 17th St., N.W., Washington, DC 20503, marked 
``Attention: Desk Officer for EPA.'' Include the ICR number in any 
correspondence. Since OMB is required to make a decision concerning the 
ICR between 30 and 60 days after July 7, 2000, a comment to OMB is best 
assured of having its full effect if OMB receives it by August 7, 2000. 
The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

D. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, unless the agency certifies that the rule will not have 
a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business whose annual 
revenue is less than $5 million according to SBA size standards; (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 
Sections 603 and 604. Thus, an agency may certify that a rule will not 
have a significant economic impact on a substantial number of small 
entities if the rule relieves regulatory burden, or otherwise has a 
positive economic effect on all of the small entities subject to the 
rule. EPA estimates there are approximately 42 existing Class I 
municipal wells that at some point during their operating life could 
cause fluid movement into a USDW and fall within the scope of this 
proposed rule. Of these 42 facilities, 13 are small governmental 
entities and one is a small business.
    As discussed in section I.E., the economic impact of this proposed 
rule actually results in a cost savings to the Class I municipal 
facilities compared to the baseline, i.e., complying with current 
regulations. Because Class I wells which may seek the authorization to 
inject provided by the proposed rule are only affected if they cause 
fluid movement prohibited by present law, EPA has determined that the 
effect on small entities will be positive to the extent they are 
impacted. If the entity chooses not to seek the authorization to 
inject, the legal status of its continued operations is not impacted by 
the proposed rule. We have therefore concluded that today's proposed 
rule either will have no effect on or, in the alternative, will provide 
regulatory relief for small entities.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome

[[Page 42243]]

comments on issues related to such impacts.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The proposed rule allows for an 
optional alternate method for the State of Florida to use to ensure 
that no owner and/or operator would endanger a USDW by injection of 
domestic wastewater effluent into a Class I municipal well. EPA is not 
proposing that an owner and/or operator must use this proposed 
authorization, but rather is proposing options that owners and/or 
operators of existing Class I municipal wells may wish to explore in 
order to maintain the use of their injection operations. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule. Although Section 6 of Executive Order 13132 does not apply to 
this rule, EPA did consult with the Florida Department of Environmental 
Protection in developing this rule and they agree with EPA's strategy.

F. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, Section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and 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 proposed 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. Because the authorization to inject 
provided for by the proposed rule is optional on applicants, the costs 
incurred by an entity in conjunction with such authorization to inject 
under the proposed rule are discretionary, not mandated. The total cost 
impact, in comparison to other alternatives to provide effective 
wastewater disposal, is anticipated to be positive for those entities 
that choose to avail themselves of the option provided by this proposed 
rule. This rule will reduce the burden imposed by the current 
regulations. Thus, today's rule is not subject to the requirements of 
Section 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. This proposed rule is not targeted at small governments. 
It offers owners and operators of Class I wells in certain parts of 
Florida which inject domestic wastewater effluent an alternative method 
of compliance with the existing UIC rule, which prohibits injection 
that endangers USDWs, without requiring the facilities to cease 
injection and abandon their existing Class I municipal injection wells. 
This rule will provide them with a less burdensome alternative for 
compliance. Thus, today's rule is not subject to the requirements of 
Section 203 of UMRA.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
proposed rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.
    EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

H. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal

[[Page 42244]]

governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 13084 requires EPA to provide to the Office 
of Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments nor does it impose substantial 
direct compliance costs on them. At present, there are no Class I UIC 
wells used for domestic wastewater effluent disposal in Florida that 
are owned or operated by an Indian tribal community. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

I. Plain Language

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. We 
invite your comments on how to make this proposed rule easier to 
understand. For example:

--Have we organized the material to suit your needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that is not clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make the rule easier to understand?

List of Subjects in 40 CFR Part 146

    Environmental protection, Indians-lands, Intergovernmental 
relations, Reporting and Recordkeeping requirements, Water Supply.

    Dated: June 27, 2000.
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 146--UNDERGROUND INJECTION CONTROL PROGRAM

    1. 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.

    2. Section 146.15 is added to read as follows:


Sec. 146.15  Class I municipal well alternate authorization in Florida.

    (a) Authorization to inject pursuant to this section is limited to 
existing Class I municipal wells in specific geographic regions as 
defined in paragraph (h) of this section that inject domestic 
wastewater effluent as defined in paragraph (c) of this section and 
that have caused or may cause fluid movement into USDWs. Pursuant to 
this section, an existing Class I well does not violate the regulatory 
prohibitions in Parts 144 and 146 of this chapter against the movement 
of injection or formation fluids into a USDW, provided that such well 
operates consistently with the requirements of this section.
    (b) For purposes of this section, an existing Class I well is 
defined as a well for which a complete UIC construction permit 
application has been received by the Director on or before the date of 
publication of this proposed rule in the Federal Register.
    (c) For purposes of this section, injected fluids shall be 
considered domestic wastewater effluent if they are injected by a 
facility that:
    (1) Is a publicly or privately owned and operated domestic 
wastewater treatment facility;
    (2) Receives wastewater derived principally from dwellings, 
business buildings, institutions, and the like, commonly referred to as 
sanitary wastewater or sewage, and
    (3) Provides at least secondary treatment, as described in 
Sec. 133.102 of this chapter, of the waste prior to injection.

Option 1 for Paragraph (d)

    (d) In order for a Class I municipal well to qualify for 
authorization pursuant to paragraph (a) of this section, the owner and/
or operator shall treat the well's injectate prior to injection using 
advanced wastewater treatment and high-level disinfection and shall 
also provide a non-endangerment demonstration that the injected fluids 
will not cause any USDWs to exceed primary drinking water regulations 
in Part 141 of this chapter and other health based standards (e.g., 
Federal and State health advisories). This demonstration would focus on 
any contaminants that are expected to exceed primary drinking water 
regulations in Part 141 of this chapter and other health based 
standards (e.g., Federal and State health advisories) after treatment 
and would include, at a minimum, effluent monitoring and an analysis of 
any such contaminants following injection. To achieve high level 
disinfection, a process designed to kill most microorganisms in water 
including pathogenic (disease causing) bacteria, owners and/or 
operators must allow the wastewater to remain in contact with at least 
1.0 mg/l of free chlorine for at least 15 minutes of contact with no 
fecal coliform. The minimum level of advanced wastewater treatment that 
must be provided is:

Option a: 10-24 mg/l BOD with disinfection.
Option b: 10-24 mg/l BOD with disinfection and nutrient removal.
Option c: 10 mg/l BOD with disinfection.
Option d: 10 mg/l BOD with disinfection and nutrient removal.

Option 2 for Paragraph (d)

    (d) In order for a Class I municipal well to qualify for 
authorization pursuant to paragraph (a) of this section, the owner and/
or operator must provide a hydrogeologic demonstration to the 
satisfaction of the Director and EPA that the injected fluids will not 
cause any USDWs to exceed primary drinking water regulations in Part 
141 of this chapter and other health based standards (e.g., Federal and 
State health advisories). This demonstration would include at a 
minimum: ground-water modeling, geochemical analysis and effluent and 
ground-water monitoring and analysis. If they cannot make this 
demonstration, the owner and/or operator must provide sufficient 
advanced wastewater treatment, nutrient removal and high-level 
disinfection to enable them to demonstrate that the injected fluids 
will not cause any USDWs to exceed primary drinking water regulations 
in Part 141 of this chapter and other health based standards (e.g., 
Federal and State health advisories).
    (e) The demonstration pursuant to paragraph (d) of this section 
must be submitted to both the State and EPA for review. The 
demonstration shall be reviewed and either approved or disapproved in 
writing by the Director. If the Director disapproves the demonstration, 
the applicant shall not have met the requirements of paragraph (d) of 
this section. If the Director

[[Page 42245]]

approves the demonstration, he or she shall promptly mail a copy of the 
approval to the Regional Administrator. The authorization shall become 
final if the State Director submits the approval in writing to the 
Regional Administrator and the Regional Administrator has not 
disapproved the authorization within 90 days. Any disapproval by the 
Regional Administrator shall state the reasons for disapproval and 
shall constitute final Agency action. In the event the Regional 
Administrator exercises this authority to disapprove the demonstration, 
the applicant shall not have met the requirements of paragraph (d) of 
this section. The Director's approval and any conditions of the 
authorization shall be included as part of the permit decision.
    (f) Monitoring and reporting. In addition to meeting the 
requirements of Sec. 146.13, the owner/operator must perform such 
monitoring, analysis, and reporting as specified by the Director in the 
permit authorization. The monitoring required under this section will 
include, at a minimum, initial characterization and annual analysis of 
the injectate for contaminants covered by the primary drinking water 
regulations in Part 141 of this chapter or other health based 
standards. The Director shall also require that the owner/operator 
develop and implement an ambient/ground water monitoring program.
    The ground water monitoring program will, at a minimum, analyze the 
ground water to determine if any primary drinking water regulations in 
Part 141 of the chapter or other health based standards have been 
violated. The monitoring is to verify that the injection operation 
shall not endanger the USDW through movement of the injectate or 
formation fluids. These requirements would be incorporated as permit 
conditions of an operation permit under the Florida UIC program. 
Additional requirements, such as the construction of additional 
monitoring wells may be needed on a case-by-case basis.
    (g) Owners and/or operators of Class I injection wells which are 
operating under the authority of paragraph (d) of this section shall 
update and resubmit their demonstration under paragraph (d) of this 
section with each subsequent Class I operation permit application, 
every five (5) years. The owner and/or operator shall submit, as part 
of such subsequent demonstrations, all monitoring results not available 
at the time of the prior permit review and verification that the 
original demonstration is still valid for the disposal operation.
    (h) Authorization to inject domestic wastewater through existing 
Class I wells pursuant to this section is limited to municipal wells in 
Florida in the following counties: Brevard, Broward, Charlotte, 
Collier, Dade, Flagler, Glades, Hendry, Highlands, Hillsborough, Indian 
River, Lee, Manatee, Martin, Monroe, Okeechobee, Orange, Osceola, Palm 
Beach, Pinellas, St. Johns, St. Lucie, Sarasota, and Volusia.

Proposed only if Option 2 for paragraph (d) of this section is 
selected:

    (i) Beginning on January 1, 2015, owners and/or operators of Class 
I injection wells operating under the authority of this section may not 
qualify for authorization pursuant to this section unless the injectate 
has been subject to advanced wastewater treatment and high-level 
disinfection.
    The minimum level of advanced wastewater treatment that must be 
provided is:

Option a: 10-24 mg/l BOD with disinfection, or
Option b: 10-24 mg/l BOD with disinfection and nutrient removal, or
Option c: 10 mg/l BOD with disinfection, or
Option d: 10 mg/l BOD with disinfection and nutrient removal.

    (2) The owners and/or operators would still have to demonstrate 
that the injected fluids will not cause any USDWs to exceed primary 
drinking water regulations in Part 141 of this chapter and other health 
based standards (e.g., Federal and State health advisories).

[FR Doc. 00-16753 Filed 7-6-00; 8:45 am]
BILLING CODE 6560-50-P