[Federal Register Volume 66, Number 217 (Thursday, November 8, 2001)]
[Proposed Rules]
[Pages 56496-56503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27835]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[FRL-7098-2]


Proposed Revision to That Portion of the Approved Texas 
Underground Injection Control (UIC) Program Administered by the Texas 
Natural Resource Conservation Commission (TNRCC)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: EPA received an application to revise portions of Texas' 
approved UIC program for Class I, III, IV, and V injection wells. After 
careful review of the application, EPA determined the revisions to 
TNRCC's UIC program warrant approval. Further, the relevant UIC 
regulation at 40 CFR 145.32(b)(2) requires that whenever EPA determines 
the proposed program revision is substantial, EPA shall publish its 
decision in the Federal Register and in enough large newspapers to 
achieve statewide coverage to allow the opportunity for the public to 
comment for at least 30 days. By this notification, EPA advises the 
public of the nature of the proposed action, time-frame during which 
public comment will be taken, and the address where comments should be 
sent. The regulation provides an opportunity for the public to request 
a hearing. Such a hearing shall be held if there is significant public 
interest based on requests received. As such, this action advises the 
public of the hearing request process and opportunity to request a 
hearing.
    The application to revise portions of the State's approved UIC 
program, and public comments received in response to this document, 
will provide EPA with the essential information necessary to approve, 
disapprove, or approve in part, the proposed revisions submitted under 
Section 1422 of the Safe Drinking Water Act (SDWA). This action is 
being taken to ensure that the proposed revisions of the Texas UIC 
program which are the Texas statutes and regulations governing 
underground injection are accurately incorporated by reference into the 
Code of Federal Regulations.

DATES: EPA will accept public comments and requests for hearing on the 
proposed revisions to the approved TNRCC UIC program from November 8, 
2001 until the close of the business day of December 10, 2001.

ADDRESSES: Written public comments should be sent to the Environmental 
Protection Agency, Ground Water/UIC Section (6WQ-SG), 1445 Ross Avenue, 
Dallas, Texas, 75202, or electronically to [email protected]. Please 
include your name, address, and optionally, your affiliation with any 
public or private organization. Paper copies of the revision 
application, related correspondence, and documents are available for 
examination and duplication (for a nominal fee) between the hours of 8 
a.m. and 4:30 p.m. Monday through Friday at the EPA offices in Dallas.

FOR FURTHER INFORMATION CONTACT: Technical Information: Ray Leissner, 
Ground Water/UIC Section (6WQ-SG), Environmental Protection Agency, 
Region 6, (214) 665-7183.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 1421 of the SDWA requires the Administrator to promulgate 
minimum requirements for effective State programs to prevent 
underground injection activities which endanger underground sources of 
drinking water (USDWs). Section 1422 of the SDWA allows states to apply 
to the EPA Administrator for authorization of primary enforcement and 
permitting authority (primacy) over injection wells within the State. 
Section 1422(b)(1)(A) provides that States shall submit to the 
Administrator an application which contains a showing satisfactory to 
the Administrator that the State has adopted and will implement an 
underground injection control program which meets

[[Page 56497]]

the requirements of regulations in effect under Section 1421 of the 
SDWA, and will keep such records and make such reports with respect to 
its activities under its underground injection control program as the 
Administrator may require by regulation. Section 1422(b)(1)(B)(2) 
requires, after reasonable opportunity for public comment, the 
Administrator by rule to approve, disapprove, or approve in part, the 
State UIC program.
    EPA's approval of primacy for to the State of Texas for underground 
injection into Class I, III, IV, and V wells was published on January 
6, 1982 (47 FR 618), and became effective February 7, 1982. Elements of 
the State's approved primacy application, submitted through the Texas 
Department of Water Resources, a predecessor to the Texas Natural 
Resource Conservation Commission (TNRCC), were published in Title 40 of 
the Code of Federal Regulations, at 40 CFR 147.2200.
    Section 1422 of the SDWA and regulations at 40 CFR 145.32 allow for 
revision of approved State UIC programs when State statutory or 
regulatory authority is modified or supplemented. In accordance with 
those requirements, TNRCC submitted an application to EPA for revision 
of the UIC program governing Class I, III, IV, and V injection wells.

II. Actions Related to This Rulemaking

A. Petition

    On June 17, 1996, Mr. Richard Lowerre of the law firm of Henry, 
Lowerre, Johnson, Hess and Fredrick, acting on behalf of his clients, 
the Environmental Defense Fund (EDF) and later the Oil and Chemical 
Association of Workers (OCAW), filed a petition for partial withdrawal 
of program approval for the Texas UIC program. The petition informed 
EPA of EDF's intent to sue under Sections 1422 and 1449 of the SDWA and 
EPA rules at 40 CFR Part 135, subpart B. The petition alleged that, due 
to changes made by the Texas Legislature to environmental statutes and 
TNRCC's interpretation of those changes, TNRCC's UIC program no longer 
met the conditions for primacy for the UIC program. The petition 
identified specific elements of TNRCC's UIC program that formed the 
basis for EDF's request to EPA to withdraw approval of TNRCC's UIC 
program. These included: Inadequate enforcement authority due to 
recently passed audit privilege and takings laws, inadequate public 
participation in enforcement activities, inadequate public 
participation in permitting decisions, and inadequate opportunities for 
judicial review of permit decisions made by TNRCC. Over the course of 
the resolution of the petition, additional issues were raised by the 
Petitioners but not included within the petition. These issues, as well 
as issues raised by EPA, were satisfactorily addressed through 
subsequent negotiations.
    Many issues raised over the course of the negotiations were 
applicable to other federal programs authorized to Texas for 
implementation, such as the National Pollutant Discharge Elimination 
System (NPDES) and the Resource Conservation and Recovery Act (RCRA). 
The effort to resolve issues spanning several programs resulted in the 
exchange of several letters, memos, and other documentation addressing 
other programs in addition to UIC. Note however, this notice only 
addresses the resolutions reached to satisfy the EDF/OCAW petition and 
federal UIC program requirements under the SDWA.

B. EDF/OCAW Petition Issues

Enforcement Authority and Audit Privilege Law
    The petition alleged that TNRCC did not possess adequate 
enforcement authority due to recently passed laws regarding audit 
privilege and takings and the interpretations of those laws by TNRCC. 
In 1995 the Texas legislature passed House Bill 2473, the Texas Audit 
Privilege Law. The petition claimed this law established broad immunity 
from prosecution from environmental laws and restricted the public's 
right to know and right to bring enforcement actions.
    On February 11, 1997, EPA representatives met with the Governor of 
Texas to discuss the impact of recent legislation on the UIC program. 
Discussions led to an agreement that TNRCC would seek amendments to the 
audit law needed to meet specific requirements for enforcement 
authority and public availability of information associated with 
authorized federal programs administered by the State. This agreement 
was briefly discussed in an April 23, 1997, letter from the EPA Office 
of Enforcement and Compliance Assurance (OECA) to Mr. Lowerre. This 
letter also outlined four general points providing the context of EPA's 
approach to State audit immunity and privilege laws and explained how 
the proposed amendments, if implemented properly, met federal 
requirements to retain enforcement authority on all delegated and 
authorized federal programs. Further, the letter concluded that the 
proposed amendments restored information gathering authority, provided 
public availability equal to that afforded under the federal program, 
and addressed additional concerns of the petitioner including: 
Protection of whistle blowers, immunity from repeat violations, and 
reduction of the scope of immunity from penalties based upon economic 
benefit. On September 1, 1997, Texas House Bill (HB) 3459 took effect 
and amended, as agreed to by EPA and TNRCC, the Texas Environmental, 
Health, and Safety Audit Privilege Act. A copy of HB 3459 was submitted 
as part of the UIC revision supplement submitted by Texas in March 
1999.
Enforcement Authority and the Takings Law
    The Texas legislature passed Senate Bill 14, the Takings Law in 
1995. A ``taking'' is defined under the Private Real Property Rights 
Preservation Act as a governmental action that affects an owner's 
private real property that is the subject of the government's action, 
in whole or in part, temporarily or permanently, in a manner that 
restricts or limits the owner's right to the property. The Takings Law 
established a new right for compensation where certain government 
authorized action reduced the value of real property by 25%. The 
petition alleged that the legislature did not appropriate funds for 
compensation requests and this lack of funding had a chilling effect on 
the State's ability to act responsibly on permit and enforcement 
actions. The petition alleged the Takings Law increased the State's 
burden of proof in enforcement actions beyond that required in the 
federal UIC program. 40 CFR 145.13(b)(2) requires an authorized State 
program's burden of proof under State law be no greater than that 
established for the federal program under the SDWA.
    40 CFR Part 145, subpart B, lists the provisions and requirements 
State programs authorized under section 1422 of the SDWA must 
administer within their UIC program. These rules, promulgated in 1983, 
do not address or consider the effect of takings laws as they would 
apply to UIC program activities. The takings issue was resolved in the 
manner described below.
    The Petitioners proposed that TNRCC include in the UIC program 
revision Memorandum of Agreement (MOA) with EPA, additional annual 
reporting on any effect the Takings Law may have imposed on the State's 
UIC program. TNRCC found the additional reporting suggested by 
Petitioners was not required under the federal regulations for UIC 
authorization. EPA agreed. However, under the March 23, 1999 MOA, TNRCC 
agreed to keep EPA informed of any proposed changes to laws, 
regulations, guidelines, judicial

[[Page 56498]]

decisions, or administrative actions that might affect the State UIC 
program. As such, TNRCC agreed to document and compile any action 
demonstrating impacts to the UIC program from implementation of the 
Takings Law. This documentation will be made available to the general 
public and EPA in Central Records in TNRCC's main offices in Austin, 
Texas on April 1 of each year for the next four years.
Public Participation in Enforcement and Permitting Activities
Enforcement Activities
    The petition contended that public participation in enforcement 
activities was inadequate based on a 1995 letter from the EPA Regional 
Counsel to the Texas Attorney General's (AG) office responding to an 
application for primacy for the Texas NPDES program that had similar 
participation requirements. The EPA letter identified as inadequate the 
State's agreement not to oppose the permissive intervention by a 
citizen in an enforcement action. EPA opined that, under Texas rules, 
the scope of interests necessary for a citizen to intervene in a 
contested case in Texas appeared narrower than those allowed for under 
federal law.
    In addition, the petition contended that TNRCC lacked the necessary 
statutory or regulatory requirements to establish appropriate 
procedures or practice to notify affected citizens of enforcement 
proceedings. The petition claimed that publishing notice within the 
Texas Register was insufficient.
Permitting Activities
    The petition raised several issues with public participation in UIC 
permitting activities. Primarily, the petition argued TNRCC's public 
participation process for permitted activities was more restrictive 
than federal requirements, affording only ``affected persons'' with 
standing to participate through an adjudicatory hearing process. The 
federal public participation requirements for UIC permits, found at 40 
CFR Part 124, allow for a more informal open meeting and comment 
process. The petition asserted the State adjudicatory hearing process 
was too restrictive. The passage of Senate Bill 1546 narrowed the 
conditions for standing, thus limiting participation to ``affected 
persons''. Other issues included problems with the content of the 
public notices, publication of the notice before a draft permit was 
complete, a lack of response to public comments, and a slow review 
process on claims of confidentiality precluding timely citizen inquiry.

Resolution

    In June 1997, EPA Region 6, EPA Headquarters (HQ), and TNRCC 
reached tentative agreements to resolve these public participation 
issues. These agreements are discussed in letters from TNRCC to Region 
6 dated June 6, 1997, and in response by EPA to TNRCC on June 19, 1997.
    TNRCC proposed: (1) To draft rules that would amend Title 30 of the 
Texas Administrative Code (TAC), Chapter 55, subchapter B, to implement 
changes wherein written responses to public comment on permitting 
decisions would be considered and responded to by the person or body 
making the permitting decision; (2) to provide for notice and comment 
on administrative enforcement cases for the UIC program; (3) to provide 
that the rules at 30 TAC Chapter 39 concerning comments, public 
meetings and notices of public meetings were sufficient to meet EPA's 
concerns; (4) to draft rules that expanded citizens' opportunity for 
permissive intervention in UIC penalty actions; and (5) to draft rules 
with less restrictive conditions for determining a person's status as 
an affected person (standing), and to eliminate the need to seek a 
contested case hearing to obtain a judicial review of the permitting 
decision.
    EPA accepted the above proposal subject to the following: (1) That 
the State Supreme Court never articulate a more restrictive test for 
standing than that allowed under federal statutes; (2) that TNRCC had 
the statutory authority to implement these agreements and fully 
institute the notice and comment process proposed; and (3) that there 
be timely adoption of regulations necessary to implement the 
agreements. These agreements resolved concerns regarding the need for: 
(1) Written responses to comments on permitting actions; (2) public 
notice and opportunity to comment on proposed settlements of 
administrative enforcement actions; (3) notice of right to request a 
public hearing (meeting) on UIC permit applications; (4) permissive 
intervention in administrative enforcement actions; and (5) standing to 
participate as a commenter in permitting actions and in subsequent 
judicial proceedings.
    The proposed revisions to implement the regulatory changes called 
for in the agreement were published in the August 8, 1997, edition of 
the Texas Register. The regulatory actions included adoption of rule 
changes in 30 TAC, Chapter 55, subchapter B, section 52.25, repeal of 
30 TAC, section 305.106 to avoid duplication of the new rules, and 
adoption of new rules at 30 TAC, Chapter 80, subchapters C and F, 
sections 80.105-80.257. These changes were published in the Texas 
Register on November 21, 1997, effective December 1, 1997.

Response to Comments and More Open Public Meetings

    The new rules in 30 TAC, Chapter 55, subchapter B, section 55.25(b) 
provided the specific provisions agreed to in EPA's letter of June 19, 
1997. The amendment to 30 TAC, section 55.25(b), provides procedures 
for content and timing of Commission responses, and authorizes the 
Executive Director to call and conduct public meetings and provides 
requirements governing those meetings. These public meetings, open to 
all, provide an opportunity for public input into proposed UIC permits 
equivalent to the public meetings requested and held under 40 CFR Part 
124.

Expanded Consideration of Comments

    Under federal regulations found at 40 CFR 124.12(c), any person may 
submit oral or written statements or data concerning a draft permit and 
40 CFR 124.17 requires a response to all significant public comments at 
the time of final permit action. This level of participation is much 
less formal or restrictive than that reserved for a formal hearing 
process. The amendment at 30 TAC, Chapters 55 and 80, addressed 
concerns in the petition that public comments could not be considered 
within the context of contested case hearings. To ensure comments 
received during the public comment period are duly considered when a 
contested case hearing is held, all comments recieved and any 
subsequent response by TNRCC are entered into the evidentiary hearing 
record, and may be considered by the Commission in its decision. In 
addition, parties to the hearing are allowed to enter any comments or 
responses received in the public meeting into the evidentiary hearing 
record (30 TAC, section 80.127).

Intervention in Enforcement Actions

    TNRCC finalized amendments to 30 TAC Chapter 80, as proposed in the 
Texas Register August 8, 1997. These amendments provided a process to 
ensure that all federally delegated and approved programs, including 
the UIC program, meet federal requirements preserving the rights of 
citizens to intervene in enforcement actions. 40 CFR 145.13(d) outlines 
the requirements for an approved State UIC program to involve the 
public in its enforcement proceedings. In part, under 40 CFR 145.13(d), 
a State may either provide

[[Page 56499]]

authority to allow any citizen having an interest in the action (i.e., 
standing) to intervene, or provide assurance that the agency will 
investigate and provide written responses to all citizen complaints 
provided to the agency through procedures set by the agency for 
collecting such information. The Petitioners alleged the State's 
narrower view on standing prohibited more citizens from achieving 
intervener status in comparison to the federal UIC program. An 
amendment to 30 TAC, section 80.105, provides that a preliminary 
hearing is required for an enforcement action under any federally 
authorized program. A citizen's right to intervene in a proposed 
enforcement action was broadened under 30 TAC, section 80.109, which 
expanded the scope of potential parties to contested cases. The term 
``party'' to enforcement actions was expanded to include any party 
granted permissive intervention by the administrative law judge (ALJ). 
Further, the ALJ will not oppose intervention by parties having a 
justiciable interest where intervention would not present a risk of 
delay or prejudice to the original parties. These amendments to 30 TAC, 
section 80 implemented the regulatory changes required by EPA's 
agreement dated June 19, 1997.

Opportunities for Judicial Review of Permit Decisions

    The petition asserted that the State UIC program must allow for 
judicial review of permit decisions. Further, the petition alleged that 
the State UIC program must allow for a measure of judicial review of 
permit decisions equivalent to that afforded persons appealing a permit 
decision by a federal UIC program. 40 CFR 124.19 allows any person who 
filed comments on the draft permit or participated in a public hearing 
on the matter, to seek review of the permit decision by the 
Environmental Appeals Board. Thereafter, parties can seek judicial 
review under section 1448 of the SDWA. The petition contends, because 
of the narrower interpretation of standing by the State, fewer citizens 
could seek judicial review of a TNRCC UIC permit decision than could 
under a federal UIC program.
    The Petition alleged that the opportunity for a citizen to appeal 
for judicial review of a TNRCC UIC permit decision was inadequate. 
Section 1448(a)(2) of the SDWA provides that a petition for judicial 
review of any action taken by the Administrator under the Act (other 
than actions pertaining to establishment of MCLs or MCLGs) may be filed 
within the circuit in which the petitioner resides or transacts 
business. The relevant federal UIC regulation referencing judicial 
review is at 40 CFR 124.19(e). Overall, 40 CFR Part 124 identifies 
conditions for judicial review and various scenarios wherein final 
agency action occurs on a permit decision.
    TNRCC affords the right to seek judicial review of any permit 
decision at section 5.351 of the Texas Water Code. In addition, the 
general public's ability to seek judicial review of a permit decision 
was enhanced and broadened through the rule amendments at 30 TAC, 
section 55. These amendments expand the TNRCC's response to public 
comments and provide a greater opportunity for public comments through 
public meetings and/or preliminary hearings and comments considered at 
a contested case hearing. Further, 30 TAC, section 55.25(b)(3) provides 
the procedural prerequisites enabling a commenter to preserve and 
exercise the right to seek judicial review.

Changes to the Texas UIC Program

    The petition alleged that numerous statutory and regulatory changes 
to the UIC program occurred since the program was approved in 1982, and 
TNRCC did not provide appropriate notice to EPA of these changes, or 
afford EPA the opportunity to comment on the changes. Under 40 CFR 
145.32(a), an approved State UIC program is required to ``keep EPA 
fully informed of any proposed modifications to its basic statutory or 
regulatory authority, its forms, procedures, or priorities''.
    On August 14, 1998, TNRCC submitted one original and two certified 
copies of its UIC revision package. To review the revision package, EPA 
set up a review team comprised of personnel specialized in UIC program 
activites, enforcement activities, and legal requirements. Additional 
copies were created and distributed to the review team to determine 
completeness. The initial package contained a summary, a program 
description, Attorney General's (AG) Statement, Memorandum of Agreement 
(MOA), a listing of all applicable regulations and State Statutes, and 
numerous other appendices, including forms, shell permits, shell 
notices, and guidance documents utilized to implement the program.
    Over the course of review, EPA received comments on the submission 
from the Petitioners, including numerous additional issues consisting 
of past and present program and legislative activities. These issues 
were also included in EPA's review. In a February 14, 1999 letter, EPA 
provided TNRCC with its first formal response to the submission. It 
contained the EPA review team's findings resulting from a comparison of 
the submission to required elements for approvable UIC programs found 
at 40 CFR Part 145. The letter summarized the review team's findings 
and included requests for revisions and/or clarifications to several 
elements, including the MOA, AG Statement, and Program Description, as 
well as a clarification to the TNRCC/Railroad Commission of Texas 
Memorandum of Understanding (MOU).
    On March 23, 1999, TNRCC submitted its initial revision supplement 
in response to EPA's comments. Ongoing negotiations with the 
Petitioners and additional review by EPA resulted in a second set of 
comments sent to TNRCC on July 22, 1999. On November 30, 1999, TNRCC 
provided a second supplement to the revision submission as a combined 
response to the ongoing negotiations and EPA's findings. The second 
supplement included updates and/or corrections to TNRCC's 
organizational charts and program staffing, a revised Program 
Description, a Quality Management Plan, an aquifer exemption listing, 
new public notification requirements under HB801, and clarifications to 
TNRCC's penalty assessment policy.

Settlement Agreement

    In some cases, issues raised by the Petitioners extended into 
details of UIC program implementation. For those issues, a negotiated 
agreement was reached. This settlement agreement, signed between the 
Petitioners and EPA in August and September 2000 respectively, is part 
of the administrative docket available for review at EPA Region 6. In 
exchange for additional reporting by TNRCC and oversight by EPA, the 
Petitioners withdrew their petition for withdrawal of program 
authorization and agreed not to contest this program revision. EPA 
believes that there are no unresolved issues raised during the 
submission and review process that warrant disapproval of this program 
revision application.

III. Related Action With the Railroad Commission of Texas

    In 1982, under the authority of section 1422 of the SDWA, the U.S. 
EPA Administrator approved Texas' UIC program governing Class I, III, 
IV and V injection wells except those wells located on Indian lands. 
This approval conveyed primary enforcement responsibility, ``primacy,'' 
to the State. That portion of the program administered by the Texas 
Department

[[Page 56500]]

of Water Resources (TDWR), predecessor to the TNRCC, included Class III 
brine mining wells.
    However, in 1985, the Texas legislature transferred the regulation 
of Class III brine mining wells from the TDWR to the Railroad 
Commission of Texas (RRC). The transfer of authority over Class III 
brine mining wells is not reflected in the existing description of the 
Texas UIC program within 40 CFR part 147, subpart SS. The TNRCC UIC 
program revision submitted for final approval, along with a RRC UIC 
program revision submitted in May 1999 (which is also proposed for 
approval elsewhere in today's Federal Register), accurately reflects 
that transfer of authority within the State's UIC program approved 
under section 1422.

IV. Revision Package Program Elements

    All elements of the TNRCC's comprehensive program revision 
application are contained within a set of three-ring binders that 
include the initial submission in August 1998 (3 volume set), a 
supplement submitted in March of 1999 (1 volume set), and by a second 
supplement (1 volume set) submitted in November of 1999. Below is a 
table of contents developed to assist the reader in identifying each 
element within the application and all relevant amendments that 
together, comprise the final version of the application EPA proposes to 
approve.

------------------------------------------------------------------------
                                    March 23, 1999     November 30, 1999
    August 14, 1998 revision           revision            revision
           application                supplement          supplement
------------------------------------------------------------------------
         Volume I of III             Volume I of I       Volume I of I
 
Cover Letter/Table of Contents..  Cover Letter/Table  Cover Letter/Table
                                   of Contents/EPA     of Contents/EPA
                                   Review Summary.     Review Summary/
                                                       October 1, 1999
                                                       letter from Jim
                                                       Phillips, TNRCC
                                                       to Larry
                                                       Starfield, EPA
                                                       Region 6 on
                                                       proposed
                                                       understanding
                                                       between EPA, EDF,
                                                       and TNRCC.
Summary
Program Description.............  Revised Program     Revised Program
                                   Description.        Description.
Memorandum of (MOA).............  Revised MOA.......
Attorney General's Statement
Appendix 1 Chronology
Appendix 2 Organization.........  Revised Appendix 2  Revised Appendix
                                                       2.
Appendix 3 Staffing.............  Revised Appendix 3  Revised Appendix
                                                       3.
Appendix 4 Checklist
Appendix 5 Aquifers
Appendix 6 Inventory............  Revised Appendix 6
Appendix 7 Rules
 
        Volume II of III
 
Appendix 8 Legislative Updates/
 State Statues
 
        Volume III of III
 
Appendix 9 Forms................  Revised Appendix 9
Appendix 10 Permits.............  Revised Appendix
                                   10.
Appendix 11 Notices.............  Revised Appendix
                                   11.
Appendix 12 Guidance............  Revised Appendix
                                   12.
                                  Appendix 13
                                   Memorandum of
                                   Understanding
                                   between TNRCC and
                                   RRC.
                                  Appendix 14 TNRCC
                                   Quality Assurance
                                   Program Plan.
                                  Appendix 15 TNRCC
                                   Penalty Policy.
                                  Appendix 16
                                   Aquifer
                                   Exemptions for
                                   Projects prior to
                                   1982.
                                  Appendix 17         Revised Appendix
                                   Aquifer             17.
                                   Exemptions
                                   approved since
                                   1982.
                                  Appendix 18
                                   Supporting
                                   Documents for AG
                                   Statement.
                                  Appendix 19
                                   Response to TNRCC/
                                   MOU Concerns.
                                  Appendix 20
                                   Administrative
                                   Records
                                   Management.
                                  Appendix 21 Public
                                   Participation--Pr
                                   oduction Area
                                   Authorizations
                                   (PAAs).
                                                      Appendix 22 TNRCC
                                                       Quality
                                                       Management Plan.
                                                      Appendix 23
                                                       Additional
                                                       Information on
                                                       Public
                                                       Participation.
                                                      Appendix 24 TNRCC
                                                       Confidentiality
                                                       Policy.
                                                      Appendix 25 UIC
                                                       Permits/PAAs.
------------------------------------------------------------------------

    The original revision and supplements, consisting of five (3 ring) 
binders, have been kept in original condition as submitted by the TNRCC 
for those who may wish to view all documentation as submitted.

V. 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

[[Page 56501]]

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 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 E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in E.O. 12866, and because 
UIC programs afford protection by isolating wastes underground, 
reducing the risk of exposure to all age groups equally. Therefore, EPA 
does not believe the environmental health or safety risks addressed by 
this action present a disproportionate risk 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 injected wastes.

C. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
EPA has determined that the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., does not apply to this proposed rule since limited information 
collection or record-keeping would be involved. The proposed rule would 
merely update the incorporation by reference material for which any 
information collection or record-keeping requirements have already been 
approved by OMB.

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 applies to rules subject to notice-and-comment rulemaking 
requirements under the Administrative Procedure Act (APA) or any other 
statute. However, under section 605(b) of the RFA, if EPA certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities, EPA is not required to prepare a 
regulatory flexibility analysis. This rule merely proposes Federal 
approval of regulations already adopted and implemented by the State of 
Texas ensuring the protection of underground sources of drinking water. 
This proposed approval only seeks to revise the existing federally 
approved Texas UIC program, described at 40 CFR 147.2200, to reflect 
current statutory, regulatory, and other key programmatic elements of 
the program. Therefore Federal approval of these revisions, would not 
result in additional regulatory burden to or directly impact small 
businesses in Texas. Pursuant to section 605(b) of the Regulatory 
Flexibility Act, 5 U.S.C. 605(b), the Administrator, through her duly 
delegated representative, the Regional Administrator, certifies that 
this rule, if approved, will not have a significant economic impact on 
small entities in Texas.

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.''
    This proposed rule does not have federalism implications. This 
rule, if finalized, will not have substantial direct effects on the 
State, on the relationship between the national government and the 
State, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
This rule merely proposes Federal approval of regulations already 
adopted and implemented by the State of Texas ensuring the protection 
of underground sources of drinking water. This proposed approval only 
seeks to revise the existing federally approved Texas UIC program, 
described at 40 CFR 147.2200, to reflect current statutory, regulatory, 
and other key programmatic elements of the program. Therefore this 
action will not effect the existing relationship between the national 
government and the State, or the distribution of power and 
responsibilities among the various levels of government. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. 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

[[Page 56502]]

government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector because the rule imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector.

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, section 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 12898: Environmental Justice

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

I. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
The UIC program for Indian Lands is separate from the State of Texas 
UIC program proposed for revision here. The UIC program for Indian 
lands in Texas is administered by EPA and can be found at 40 CFR 
147.2205 under the Code of Federal Regulations. Thus, Executive Order 
13175 does not apply to this proposed rule.

J. Executive Order 13211 (Energy Effects)

    This proposed rule is not subject to Executive Order 13211, 
``Action Concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), because it 
is not a significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 147

    Environmental protection, Indian lands, Reporting and recordkeeping 
requirements, Water supply.

    Dated: October 23, 2001.
Gregg Cooke,
Regional Administrator, Region 6.

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

PART 147--STATE UNDERGROUND INJECTION CONTROL PROGRAMS

    1. The authority citation for part 147 continues to read as 
follows:

    Authority: 42 U.S.C. 300h; and 42 U.S.C. 6901 et seq.

Subpart SS--Texas

    2. Section 147.2200 is revised to read as follows:


Sec. 147.2200  State-administered program--Class I, III, IV, and V 
wells.

    The UIC program for Class I, III, IV, and V wells in the State of 
Texas, except for those wells on Indian lands, is the State-
administered program approved by EPA pursuant to section 1422 of the 
SDWA. Notice of this approval was published on January 6, 1982 and 
effective February 7, 1982. A revision, by application of the Texas 
Natural Resource Conservation Commission (TNRCC), to the program was 
approved pursuant to the requirements at Sec. 145.32 on [signature date 
of final rule]. That portion of the State of Texas underground 
injection control program, approved under section 1422 of the SDWA, and 
administered by the TNRCC, consists of the following elements:
    (a) Incorporation by reference. The requirements set forth in the 
State statutes and regulations cited in this paragraph (a) are hereby 
incorporated by reference and made part of the applicable UIC program 
under the SDWA for the State of Texas. This incorporation by reference 
was approved by the Director of the Federal Register on [date of FR 
Director's approval].
    (1) Title 30 of the Texas Administrative Code sections 281.5, 
281.11, 281.21, Chapter(s) 305, 331, and 335 subchapters A and C.
    (2) Vernon's Texas Codes Annotated, Water Code, Chapter 27 (The 
Injection Well Act).
    (b) Other laws. The following statutes and regulations, although 
not incorporated by reference except for select sections identified in 
paragraph (a) of this section, are also part of the approved State-
administered UIC program.
    (1) Title 30 of the Texas Administrative Code Chapters 39, 50, 55, 
80, and 281.
    (2) Vernon's Texas Codes Annotated, Water Code, Chapters 5, 7, 26, 
and 32, Health and Safety Code section 361, Government Code (ORA) 
Chapter 552 and Government Code (APA) Chapter 2001.
    (c) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region VI and the Texas Natural Resource Conservation Commission, 
revised March 23, 1999, and signed by the EPA Regional Administrator on 
October 23, 2001.

[[Page 56503]]

    (d) Statement of legal authority. ``State of Texas Office of 
Attorney General Statement for Class I, III, IV, and V Underground 
Injections Wells' signed by the Attorney General of Texas, June 30, 
1998.
    (e) Program Description. The Program Description and all final 
elements of the revised application.
    (f) Other Wells. Certain Class V and Class III wells are regulated 
under the UIC program of the Railroad Commission of Texas approved on 
April 23, 1982 and revised [date of Administrator's approval of the 
RRC's Class III Brine mining program]. This authority is cited in 
147.2201.

[FR Doc. 01-27835 Filed 11-7-01; 8:45 am]
BILLING CODE 6560-50-P