[Federal Register Volume 67, Number 107 (Tuesday, June 4, 2002)]
[Rules and Regulations]
[Pages 38403-38407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13699]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 144 and 146

[FRL-7221-1]


Notice of Final Decision on Motor Vehicle Waste Disposal Wells in 
EPA Region 8; Underground Injection Control (UIC) Class V Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final decision.

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SUMMARY: Today the Environmental Protection Agency's Region 8 Office in 
Denver, Colorado, is announcing a decision under which each motor 
vehicle waste disposal well in Colorado, Montana, or South Dakota 
(regardless of whether it is in Indian country) or in Indian country in 
North Dakota, Utah, or Wyoming must either be closed or covered by a 
Class V Underground Injection Control (UIC) permit application no later 
than January 1, 2007. The term ``Indian country'' as used in this 
document is defined in 18 United States Code Section 1151.

DATES: This decision is effective June 4, 2002.

[[Page 38404]]


ADDRESSES: The decision and supporting documents, including public 
comments, are available for review from 8 am to 5 pm on working days at 
the U.S. Environmental Protection Agency, Region 8, 999 18th Street, 
Suite 300, Denver, CO 80202-2466.

FOR FURTHER INFORMATION CONTACT: Douglas Minter (8P-W-GW), EPA Region 
8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466. Phone: 800-
227-8917, extension 6079 or 303-312-6079. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: Motor vehicle waste disposal wells typically 
are septic systems or dry wells that can receive or have received waste 
fluids from floor drains or shop sinks in public or private facilities 
that service cars, trucks, buses, aircraft, boats, trains, snowmobiles, 
construction and farm machinery, or other motor vehicles.
    Today's decision applies to every motor vehicle waste disposal well 
that became operational or for which construction had begun by April 5, 
2000, if that well is (1) anywhere in Colorado, Montana, or South 
Dakota, in Indian country or not, or (2) in Indian country in North 
Dakota, Utah, or Wyoming.
    Today's decision does not apply to wells for which construction 
began after April 5, 2000. Since that date, new or converted motor 
vehicle waste disposal wells have been prohibited (unless construction 
began before that date). See the Background section below for more 
details.

1. Background

    Under the authority of part C of the Safe Drinking Water Act 
(SDWA), 42 U.S.C. 300h et seq., the United States Environmental 
Protection Agency (``EPA'') regulates underground injection of fluids 
into wells. The purpose of EPA's UIC program is to prevent underground 
injection that may contaminate underground sources of drinking water 
(USDW). (42 U.S.C. 300h(b) and (d).) A ``USDW'' is an aquifer, or its 
portion, that has not been found by the EPA to be an ``exempted 
aquifer'' and that (1) supplies any public water system, or (2) 
contains a sufficient quantity of ground water to supply a public water 
system and either currently supplies drinking water for human 
consumption or contains fewer than 10,000 milligrams per liter (mg/l) 
of dissolved solids. (40 CFR 144.3.)
    There are five classes of injection wells. Motor vehicle waste 
disposal wells are considered Class V wells. (40 CFR 144.80, 144.81, 
and 146.5.) All owners or operators of Class V wells must comply with 
various requirements, including submission of inventory information to 
State or EPA regulatory agencies prior to operating any Class V well. 
(See 40 CFR part 144, especially Secs. 144.26 and 144.83.)
    UIC programs are administered either by EPA or by states whose UIC 
programs EPA has approved. In Region 8, EPA has authorized North 
Dakota, Utah, and Wyoming to administer Class V UIC programs. For 
Indian country in these three states, however, EPA directly administers 
the Class V UIC program. EPA also directly administers the Class V UIC 
program throughout Colorado, Montana, South Dakota (i.e., in both 
Indian country and elsewhere).
    On December 7, 1999, EPA revised its regulations for Class V wells. 
(64 FR 68546.) Effective April 5, 2000, all new motor vehicle waste 
disposal wells were prohibited. (40 CFR 144.88(a)(2).) Motor vehicle 
waste disposal wells already in operation or under construction by that 
date are to be closed or permitted, with the final deadlines for 
closure or permit applications depending on a determination of the 
susceptibility of the nearby groundwater to contamination. (40 CFR 
144.87 and 144.88(b).)
    The areas with greatest priority for protection are known as 
``Ground Water Protection Areas'' or ``GWPAs.'' States are required to 
delineate and assess GWPAs. (See section 1453 of the SDWA and 40 CFR 
144.86.) An example of a GWPA is a recharge area of an aquifer that 
serves a ``community'' or ``non-transient non-community'' public water 
supply system. (See 40 CFR 144.86.) Any motor vehicle waste disposal 
well in a GWPA must either close or be covered by a permit application 
within one year of the state's completion of a local source water 
assessment, with certain allowances for extensions relating to the 
timing of the state delineation and assessment. (See 40 CFR 144.87(b) 
and 144.88(b)(1)(i) and (v).)
    States and the EPA may also identify other areas where groundwater 
protection is important. These additional areas are known as ``Other 
Sensitive Ground Water Areas'' or ``OSGWAs.'' Any motor vehicle waste 
disposal well in any designated OSGWA must either close or be covered 
by a permit application no later than January 1, 2007, again with 
certain allowances for extensions. (See 40 CFR 144.86(g), 144.87(c), 
and 144.88(b)(1)(ii) and (vi).)
    States and the EPA are not required to designate ``OSGWAs.'' If no 
OSGWAs are designated in a particular state, then all motor vehicle 
waste disposal wells in that state are to close or be covered by a 
permit application no later than January 1, 2007 (or the extended 
deadline, if any). (40 CFR 144.87(f).) If, however, some areas are 
designated as OSGWAs and others are not, then only those wells within 
OSGWAs are subject to this particular deadline.

2. Today's Decision and Its Consequences

    The purpose of this document is to announce that EPA Region 8 has 
decided not to designate any OSGWAs. The consequence of this decision 
is that no later than January 1, 2007, each motor vehicle waste 
disposal well that is in Colorado, Montana, or South Dakota (regardless 
of whether it is in Indian country) or that is in Indian country in 
North Dakota, Utah, or Wyoming must close or be covered by either a 
permit or permit application.
    If EPA Region 8 had decided to designate any OSGWA(s), then any 
motor vehicle waste disposal well outside of the designated OSGWA(s) 
would not have been subject to the final January 1, 2007 deadline.
    There is no provision in EPA's regulations for extending the 
January 1, 2007 deadline in jurisdictions where EPA directly 
administers the Class V UIC program. The extension provisions apply 
only to state-administered programs, as described in 40 CFR 144.87(c). 
Consequently, the January 1, 2007 deadline is a final deadline.
    To obtain a permit to operate a motor vehicle waste disposal well, 
an owner or operator must demonstrate, among other things, that the 
well's waste stream does not contain contaminants in concentrations 
greater than the Maximum Contaminant Levels (MCLs) established in 40 
CFR part 141 or Health Advisory Limits. A Health Advisory Limit (HAL) 
is an estimate of an acceptable drinking water level for a chemical 
substance based on health effects information. HALs can be used by UIC 
programs to establish enforceable limits for contaminants for which no 
primacy MCL has been established. HAL information can be obtained from 
EPA at the address given above in the section entitled FOR FURTHER 
INFORMATION CONTACT.
    Permits usually require owners or operators of motor vehicle waste 
disposal wells to sample and analyze their waste streams on a quarterly 
basis. If a well's owner or operator does not obtain a permit for 
authorization to inject, then the well must be closed in a manner that 
cannot allow any waste fluids to be released into the ground, with 
thirty days' advance notice to Region 8 of the closure. (40 CFR 
144.88(b)(1)(vii).) More details on the

[[Page 38405]]

permit application process are available from EPA upon request. (Please 
see the preceding section entitled For Further Information Contact.)
    In some cases, motor vehicle waste disposal well owners or 
operators may be required to close their wells or apply for permits 
before January 1, 2007. For example, if a Class V well is in a 
designated GWPA, it must be closed or covered by a permit application 
within one year of the completion of a source water assessment, as 
mentioned above. As another example, if EPA finds that a well may cause 
a violation of a National Primary Drinking Water Regulation at 40 CFR 
part 141 or may be otherwise adversely affecting the health of persons, 
then EPA may require the owner or operator of the well to apply for a 
permit application or to close the well by a date to be specified by 
Region 8. (See 40 CFR 144.12(c) and (d).) Under no circumstance would a 
well's location in a GWPA or an OSGWA (had Region 8 decided to 
designate any) postpone a more immediate closure/permit application 
deadline specified by Region 8.

3. EPA Region 8's Public Participation Process

    EPA Region 8 has made extensive efforts to educate and consult with 
the public, including Indian tribes, concerning the requirements for 
motor vehicle waste disposal wells and Region 8's options for 
designating OSGWAs. The Region's efforts are summarized below. The 
following does not include owner/operator-specific compliance 
assistance, inspections, enforcement actions, and other efforts that 
also have served to disseminate information about the new requirements.
    March, 2000: Region 8 directly mailed information on the new/
existing Class V requirements to sanitarians affiliated with all county 
health departments in Colorado. County sanitarians are responsible for 
ensuring that on-site waste water (e.g., septic) systems in their 
jurisdiction are constructed and used properly.
    April, 2000: At the Spring Sanitarians' Educational Conference in 
Helena, Montana, Region 8 presented a summary of the new/existing Class 
V requirements.
    April, 2000: Region 8 staff presented a summary of the new/existing 
Class V requirements to the Montana Department of Environmental Quality 
(DEQ) in Helena, Montana. The DEQ is responsible for implementing the 
source water assessment program and other ground water protection 
programs within Montana.
    July, 2000: Region 8 presented a summary of the new/existing Class 
V requirements at the National Environmental Health Association's 
Annual Education Conference in Denver, Colorado. This conference drew 
sanitarians from Region 8 and other parts of the country.
    August, 2000: Region 8 discussed the new Class V requirements with 
representatives from the Colorado Department of Public Health and 
Environment (DPH&E) and Montana DEQ, during the State UIC/Source Water 
Directors' Meeting in Glenwood Springs, Colorado.
    October, 2000: Region 8 discussed the new Class V requirements with 
representatives of the South Dakota Department of Environment and 
Natural Resources (DENR) in Pierre, South Dakota. The DENR is 
responsible for implementing the source water assessment program and 
other ground water protection programs within South Dakota.
    March, 2001: Region 8 sent a letter to all Tribal Chairpersons and 
Tribal Environmental Program Directors in Indian country in Region 8 
describing Region 8's implementation options. The letter included a 
draft proposal for applying the closure/permitting requirements 
throughout all Indian country in Region 8.
    April, 2001: Region 8 invited potential stakeholders (including 
motor vehicle-related industry groups) in South Dakota to participate 
in upcoming workshops on the new/existing Class V requirements. The 
invitation letter described Region 8's draft proposal to apply the 
closure/permitting requirements throughout South Dakota.
    May, 2001: In Rapid City and Huron, South Dakota, Region 8 
presented a summary of the new/existing Class V requirements to 
federal, state, county, municipal, nonprofit, and private citizen 
stakeholders. Region 8 described its implementation options and its 
draft proposal to apply the closure/permitting requirements throughout 
South Dakota. It also received comments from the public on the draft 
proposal.
    July, 2001: In Fort Yates, North Dakota, Region 8 presented a 
summary of the new/existing Class V requirements to Tribal 
Environmental Program Directors attending a Regional Operations 
Committee meeting, describing Region 8's implementation options and its 
draft proposal for applying the closure/permitting requirements 
throughout Indian country in Region 8.
    September/October, 2001: Region 8 published a notice announcing its 
proposal for implementing the motor vehicle waste disposal well 
permitting/closure requirements on a state and Indian countrywide 
basis, as described below.
    October, 2001: Region 8 discussed the new Class V requirements with 
representatives from the Colorado DPH&E, Montana DEQ, and the South 
Dakota DENR during the State UIC/Source Water Directors Meeting held in 
Lead, South Dakota.
    October, 2001: Region 8 presented a summary of the new/existing 
Class V requirements and Region 8's previously-published formal 
proposal in Helena, Montana, to General Motors' automobile facility 
dealerships in Montana.

4. Public Notice of Proposal

    In late September and early October of 2001, Region 8 formally 
announced that it was proposing to implement the 1999 Class V 
requirements throughout Colorado, Montana, and South Dakota, and only 
in Indian country in the other three Region 8 states (i.e., North 
Dakota, Utah, and Wyoming). Region 8 made its announcement by 
publishing a two-page notice in nineteen newspapers throughout Region 
8. It also mailed this notice directly to over 300 potential 
stakeholders in the Region and posted it on Region 8's Web site.
    In this notice, Region 8 made a finding that motor vehicle waste 
disposal wells are located predominately in unsewered areas with 
permeable soils, where local populations depend on ground water as a 
source of drinking water or could do so in the future. Region 8 also 
found that for wells located in areas with more impermeable soils, 
motor vehicle wastes (e.g., solvents) can migrate downward through 
natural (e.g., fractures) and artificial (e.g., abandoned wells) 
pathways and indirectly contaminate USDWs. Therefore, Region 8 proposed 
implementing a closure/permitting requirement throughout the area in 
which it directly implements the Class V program as the most prudent 
and equitable way to achieve its regulatory goal of protecting all 
USDWs for current and future uses.
    Neither the Safe Drinking Water Act nor any EPA regulation requires 
Region 8 to publish a formal notification of its proposed or final 
decision not to delineate OSGWAs. If Region 8 does not designate any 
OSGWAs by January 1, 2004, then the ``default'' closure/permit 
application deadline is January 1, 2007. (See 40 CFR 144.87(c).) Thus, 
as of January 1, 2004, any member of the regulated community could have 
learned of the January 1, 2007 deadline by finding out that as of that 
date Region 8 had designated no OSGWAs. Region 8

[[Page 38406]]

has chosen, however, not to let the regulated community wait in this 
manner. Today's document is intended to publicize and clarify well in 
advance of the January 1, 2007 deadline that motor vehicle waste 
disposal wells in areas where Region 8 directly implements the Class V 
UIC program will need to be closed or covered by permit applications by 
that time. Region 8 is also taking this opportunity to reiterate its 
ongoing concerns with disposal of motor vehicle waste fluids. The 
Region will continue to use its authority under 40 CFR 144.12(c) and 
(d) to take any appropriate action (including requiring permit 
applications or well closure, as well as to take an enforcement action) 
upon finding that any Class V well may cause a violation of a National 
Primary Drinking Water Regulation or otherwise adversely affect public 
health.

5. Public Comments and EPA Region 8's Response

    In the public notice described above, EPA Region 8 asked any 
interested member of the public to submit written comments within 30 
days. Approximately 20 persons responded by the end of the comment 
period, speaking at the meetings described above and/or sending letters 
or electronic correspondence to EPA. The substantive comments that 
Region 8 interprets as objections to its proposal are summarized below, 
along with the Region's responses.
    Comment: Some USDWs are not at risk from motor vehicle disposal 
well-related contamination, while others are. There are areas where the 
ground water is not located near the land surface and/or is underlain 
by soil and rock formations (e.g., clays and shales) that prevent the 
downward migration of motor vehicle-related waste fluids into an 
underlying USDW. Region 8 should delineate OSGWAs only where USDWs are 
relatively shallow and not overlain by an impermeable formation.
    Response: Due to hydrogeologic variability, some USDWs are more 
vulnerable than others. However, deeper, more confined USDWs are at 
some risk from motor vehicle disposal well-related contamination. 
Natural (e.g., fractures) and artificial (e.g., abandoned wells) 
pathways in soil and rock formations, including clays and shales, can 
facilitate the downward migration of contaminants. This is particularly 
true for certain chemicals (e.g., solvents), which are heavier than 
water and routinely used in motor vehicle-related operations.
    In addition to large, well-defined shallow aquifer systems, there 
are less well-defined shallow aquifer systems that have been or could 
be used extensively in rural areas for drinking water. While often very 
limited in areal extent, these aquifers constitute USDWs based on their 
quality (i.e., less than 10,000 mg/l total dissolved solids) and 
quantity (i.e., sufficient to supply a public water system, which 
Region 8's UIC program generally interprets as an aquifer yielding two 
or more gallons of water per minute). These USDWs include: (1) 
Fractured rock (e.g., granite, shale, and limestone) aquifers; (2) 
alluvial sand and gravel aquifers adjacent to small drainages; and (3) 
limited sand lenses within confining (e.g., shale) formations. While 
there may be economic or other reasons for these USDWs not to be used 
for supplying public water systems, it is prudent and in keeping with 
the purposes of the SDWA for EPA to protect them as drinking water 
sources for future users and for those who now use existing private 
wells.
    Therefore, Region 8 has concluded that the 1999 Class V 
requirements affecting existing motor vehicle waste disposal wells 
should not be restricted to certain geographic areas.
    Comment: The proposal would place an economic burden on owners/
operators of existing motor vehicle waste disposal wells in rural areas 
where USDWs are not susceptible to contamination. For example, if an 
owner or operator installs a holding tank to capture motor vehicle-
related wastes, there may be a high price for disposing of these wastes 
properly, because the nearest facility accepting the waste may be many 
miles away. As a result, some of these owners/operators could be forced 
out of business.
    Response: Applying the new permitting/closure requirements 
regardless of facility location should not impose an unreasonable 
economic burden on owners/operators of motor vehicle waste disposal 
wells. Having overseen the closure of hundreds of existing motor 
vehicle waste disposal wells in urban and rural areas over the past 15 
years, Region 8 has found that owners/operators have been able to find 
affordable, alternative methods for managing and disposing of their 
motor vehicle-related wastes.
    Rural facilities often have limited options because the greater 
distances to a sewer line make connection to a municipal system 
expensive. However, many motor vehicle-related facilities in rural 
areas are allowed to discharge into municipal sewer systems, and Region 
8 has found that owners/operators are able to afford the costs 
associated with capturing, pumping, and transporting their wastes to 
these locally-available systems. These costs also have been affordable 
due to the small amounts of waste (from occasional drips, leaks, and 
spills) generated from typical motor vehicle-related operations. In the 
few instances where larger facilities were found to be generating 
significant volumes of motor vehicle-related fluid wastes, owners/
operators have recycled their wastes or obtained permits requiring 
injection at levels that would not compromise drinking water standards.
    Comment: Committing resources to address existing motor vehicle 
waste disposal wells in areas where no USDWs are at risk from 
contamination is not a good use of taxpayers' money. Designating OSGWAs 
would focus resources on USDWs most susceptible to contamination.
    Response: First, in order to designate OSGWAs, Region 8 would need 
to expend considerable resources to develop a delineation methodology 
and conduct delineations to support implementation and possible 
enforcement on a site-by-site basis. Rather than conduct a technically 
complex and legally defensible exercise, Region 8 believes the idea of 
designating OSGWAs can be put into practice more efficiently by 
targeting resources in areas overlying the most vulnerable USDWs. 
Second, having found over the past 15 years that the majority of motor 
vehicle waste disposal wells are located in populated areas, where 
local communities depend on accessible (and vulnerable) ground water as 
a source of drinking water, Region 8 has made these areas its primary 
focus for implementation in order to achieve the greatest level of risk 
reduction with its limited resources.

6. EPA Region 8's Final Implementation Decision

    Having reviewed all comments received during the public comment 
period, Region 8 has concluded that no new or compelling information 
was received to justify substantive changes to its implementation 
proposal. Therefore, Region 8 has decided to apply the closure/
permitting requirements of the December 7, 1999 revisions to all motor 
vehicle waste disposal wells throughout the States of Colorado, 
Montana, and South Dakota (regardless of whether they are in Indian 
country), and throughout Indian country within North Dakota, Utah, and 
Wyoming.
    In making its final decision, Region 8 considered the following 
additional factors:

[[Page 38407]]

    Consistency in Implementation: Nationally, almost all State/EPA UIC 
programs intend to apply the new Class V requirements state and Indian 
country-wide. The remaining UIC programs nonetheless expect that all 
motor vehicle waste disposal wells will be either closed or permitted.
    Possible Delay of Source Water Assessment Completion: EPA's 1999 
rule states that if all four steps (i.e., inventory, delineation, 
susceptibility analysis, and public notification) of the assessment 
process for all applicable public water systems (PWSs) are not 
completed by a state or tribe by January 1, 2004, the new requirements 
affecting existing motor vehicle waste disposal wells will apply 
throughout the relevant state or area of Indian country, absent a 
formal request for a one-year extension. (40 CFR 144.87(b).) Based on 
feedback Region 8 has received from state and tribal source water 
program contacts, it is unlikely that assessments will be completed for 
all PWSs affected by this rule. This is particularly true in Indian 
country because tribes are not required to complete this work under the 
SDWA. Therefore, Region 8 expects that the new requirements will most 
likely apply across all Region 8 states and areas of Indian country, 
consistent with today's decision.
    Reduced Owner/Operator Liability: EPA and State UIC program 
inspections and environmental audits conducted by property owners, 
lenders, and insurers have identified motor vehicle waste disposal 
wells as an unnecessary and long-term environmental liability. The 
costs of soil and ground water cleanup have far exceeded the preventive 
costs of adopting alternatives such as sewer connections, holding 
tanks, and dry shops. Today's decision will encourage these 
alternative, more environmentally sound means of managing and disposing 
of motor vehicle waste fluids.

    Dated: May 17, 2002.
Kerrigan G. Clough,
Assistant Regional Administrator, Office of Partnerships and Regulatory 
Assistance, Region 8.
[FR Doc. 02-13699 Filed 6-3-02; 8:45 am]
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