[Federal Register Volume 69, Number 38 (Thursday, February 26, 2004)]
[Rules and Regulations]
[Pages 8824-8828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3223]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[FRL-7622-9]


Revision to the Texas Underground Injection Control Program 
Approved Under Section 1422 of the Safe Drinking Water Act and 
Administered by the Railroad Commission of Texas

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: Today, EPA is amending the Code of Federal Regulations (CFR) 
and incorporating by reference (IBR), the revised Underground Injection 
Control (UIC) Program for Brine Mining Wells implemented by the 
Railroad Commission (RRC) of Texas. EPA

[[Page 8825]]

initially approved that portion of the Texas UIC program which is the 
subject of this rule on April 23, 1982. Since then, the State has had 
primary authority to implement the UIC program for brine mining wells. 
Subsequently, the State has made changes to the EPA-approved brine 
mining wells program and submitted them to EPA for review. Those 
changes are the subject of this rule. EPA, after conducting a thorough 
review, is hereby approving and codifying these program revisions. As 
required in the Federal UIC regulations, substantial State UIC program 
revisions must be approved and codified in the CFR by a rule signed by 
the EPA Administrator. The intended effect of this action is to 
approve, update and codify the revisions to the authorized Texas UIC 
program for brine mining wells and to incorporate by reference the 
relevant portions of the revisions in the Code of Federal Regulations.

DATES: This rule is effective on March 29, 2004. The Director of the 
Federal Register approves the incorporation by reference contained in 
this rule as of March 29, 2004.

FOR FURTHER INFORMATION CONTACT: Mario Salazar, 
([email protected]), Mail code 4606M, Environmental Protection 
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, voice 
(202) 564-3894, fax 202 564-3756. For technical and background 
information contact Ray Leissner, ([email protected]) Ground Water/
UIC Section (6WQ-SG), Environmental Protection Agency, Region 6, 1445 
Ross Avenue, Dallas, TX, 75202-2733, voice (214) 665-7183, fax (214) 
665-2191.

SUPPLEMENTARY INFORMATION:

I. Regulated Entities

    This action does not impose any regulation on the public, and in 
fact there are no entities affected. This action merely approves, 
codifies, and incorporates by reference into the Code of Federal 
Regulations the revisions to the Texas UIC program previously adopted 
by the State. The rules that are the subject of this codification are 
already in effect in Texas under Texas law. The IBR allows EPA to 
enforce the State authorized UIC program, if necessary, and to 
intervene effectively in case of an imminent and substantial 
endangerment to public health and/or underground sources of drinking 
water (USDWs) in the State.

II. Background

    Section 1421 of Safe Drinking Water Act (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 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 that: (1) Contains a 
showing satisfactory to the Administrator that the State has adopted 
and will implement an underground injection control program which meets 
the requirements of regulations in effect under section 1421 of SDWA, 
and (2) 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.
    To be approved under section 1422, a State must, among other 
things, show that it will implement an underground injection control 
program that meets the requirements of the Federal regulations in 
effect under SDWA, section 1421. Specifically, all State programs 
approved under section 1422 must meet the minimum requirements in title 
40 parts 144 to 146 and 148. States need not implement provisions 
identical to the provisions listed in these parts, but they must 
implement provisions that are at least as stringent. Section 
1422(b)(1)(B)(2) requires, after reasonable opportunity for public 
comment, the Administrator to, by rule, approve, disapprove, or approve 
in part, the State UIC program.
    EPA's approval of primacy for 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 6, 1982. Elements of 
the State's primacy application, submitted through the Texas Department 
of Water Resources (TDWR), a predecessor to the Texas Commission on 
Environmental Quality \1\ (TCEQ), were approved and published in title 
40 of the Code of Federal Regulations, at 40 CFR 147.2200. Since that 
time, authority has been passed through to succeeding agencies. The 
TDWR became the Texas Water Commission (TWC), which was reorganized in 
1993 into the Texas Natural Resource Conservation Commission (TNRCC) 
and recently renamed the Texas Commission on Environmental Quality 
(TCEQ). TCEQ is the agency currently charged with administering the UIC 
program for Class I, III, IV, and most Class V wells in Texas.
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    \1\ On September 1, 2002, the Texas Natural Resources 
Conservation Commission changed its name to the Texas Commission on 
Environmental Quality. The proposal published by EPA on November 8, 
2001 (66 FR 56503-56507) referenced the prior name, the Texas 
Natural Resources Conservation Commission (TNRCC).
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    In addition to TDWR receiving approval to administer the UIC 
program for Class I, III, IV and V injection wells, RRC received 
approval to administer the UIC program for energy related injection 
activities in the State, effective May 23, 1982. These wells include 
Class II injection wells related to oil and gas exploration and 
production, and Class V geothermal return and in situ coal combustion 
wells. In 1985, the 69th Texas Legislature enacted legislation that 
transferred jurisdiction over Class III brine mining wells from the 
Texas Water Commission, now the Texas Commission on Environmental 
Quality, to the RRC.
    Section 1422 of 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, and in conjunction with a substantial revision 
submitted by the TNRCC (now TCEQ) and approved earlier, RRC submitted 
revisions to EPA for approval and codification of that portion of RRC's 
UIC program governing Class III brine mining wells. The RRC program 
related to Class V geothermal return and in situ combustion of coal has 
not been revised and remains in effect. Other Class III injection wells 
remain regulated by the TCEQ.
    EPA proposed the program revisions to RRC's Class III brine mining 
program in the Federal Register on November 8, 2001 (66 FR 56503-56507) 
and in five major newspapers within the State. That proposal indicated 
EPA's intention to approve the revisions to the RRC program for Class 
III brine mining wells, asked for comments, and offered the opportunity 
to request a public meeting. That notice included a description of key 
issues raised and actions taken to achieve issue resolution. The key 
issues identified and discussed in the proposal related to the 
following components in the RRC UIC program:
     Protection Standard;
     Fluid Migration;
     Plugging and Abandonment;
     Permit Application Requirements;
     Monitoring, Compliance Tracking and Enforcement 
Activities;
     Public Participation;
     References to State Law.

As indicated above, the proposal gives specific steps that were taken 
to achieve issue resolution. No comments or requests for hearing were 
received in response to the proposal of November 8, 2001.

[[Page 8826]]

    The proposal published in the Federal Register on November 8, 2001 
(66 FR 56503-56507) included changes to 40 CFR 147.2200 to implement 
RRC programmatic changes. The changes to Part 147 promulgated in 
today's rule differ from the proposed changes only in formatting and in 
the addition of a specific list of the types of wells, other than Class 
II, that are included in the RRC program.
    Today's action approves, codifies, and incorporates by reference 
those revisions submitted by the RRC to the Class III portion of the 
State's UIC program for brine mining wells originally approved under 
section 1422 of SDWA in 1982.

III. Statutory and Executive Order Reviews

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 rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
It does not impose any information collection, reporting, or record-
keeping requirements. It merely approves, codifies, and incorporates by 
reference State revisons to the EPA approved UIC program.
    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.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures 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, we defined small entities as (1) a small business based on 
Small Business Administration (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 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 final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule 
merely approves, codifies, and incorporates by reference into 40 CFR 
part 147 the revisions to the Texas program regulations already adopted 
and implemented by the State of Texas ensuring the protection of 
underground sources of drinking water. Codification of these revisions 
does not result in additional regulatory burden to or directly impact 
small businesses in Texas.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 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. 
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. This final rule only approves the State's UIC 
regulations as revised and in effect in the State of Texas. Thus 
today's rule is not subject to the requirements of sections 202 and 205 
of UMRA. For the same reason, EPA has determined that this rule 
contains no regulatory

[[Page 8827]]

requirements that might significantly or uniquely affect small 
governments. Thus, today's rule is not subject to the requirements of 
section 203 of UMRA.

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 final rule does not have federalism implications. It 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 approves and 
codifies regulations already adopted and implemented by the State of 
Texas ensuring the protection of underground sources of drinking water. 
This codification revises 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. Thus, 
Executive Order 13132 does not apply to this rule. Although Executive 
Order 13132 does not apply to this rule, extensive consultation between 
EPA and the State of Texas went into revising the UIC regulations. The 
proposal published in the Federal Register on November 8, 2001 (66 FR 
56503-56507) provides a detailed description of the consultations that 
took place in preparation of the Texas UIC regulations which are the 
subject of this codification. In addition, in the spirit of Executive 
Order 13132, and consistent with EPA policy to promote communications 
between EPA and State and local governments, EPA specifically solicited 
comment on the proposed rule from State and local officials.

F. 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 final 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. The UIC program for Indian lands in Texas is administered 
by EPA and can be found at 40 CFR 147.2205 of the Code of Federal 
Regulations. Thus, Executive Order 13175 does not apply to this rule. 
Nevertheless, in the spirit of Executive Order 13175, and consistent 
with EPA policy to promote communications between EPA and Tribal 
governments, EPA specifically solicited comment on the proposed rule 
from Tribal officials in its notice published in the Federal Register 
on November 8, 2001 (66 FR 56496-56503), and in five major newspapers 
within the State.

G. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks

    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 final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866. 
Further, it does not concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate risk to 
children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub. L. 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, business practices) that are developed or adopted 
by voluntary consensus standards bodies. The NTTAA directs EPA to 
provide to Congress, through the Office of Management and Budget (OMB), 
explanations when EPA decides not to use available and applicable 
voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations or Low-Income Populations

    Executive Order 12898 establishes a Federal policy for 
incorporating environmental justice into Federal agency missions by 
directing agencies to identify and address disproportionately high and 
adverse human health or environmental effects of its programs, 
policies, and activities on minority and low-income populations. This 
rule does not affect minority or low income populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other

[[Page 8828]]

required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on March 29, 2004.

List of Subjects in 40 CFR Part 147

    Environmental protection, Incorporation by reference, Indians-
lands, Intergovernmental relations, Reporting and recordkeeping 
requirements, Water supply.

    Dated: February 9, 2004.
Michael O. Leavitt,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 147--STATE UNDERGROUND INJECTION CONTROL PROGRAMS

0
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

0
2. Section 147.2200 is amended by adding three sentences to the end of 
the introductory text and by adding paragraphs (a)(2), (b)(2), (c)(2), 
(d)(2), and (e)(2) to read as follows:


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

    * * * The UIC program for Class III brine mining wells in the State 
of Texas, except for those wells on Indian lands, is the program 
administered by the Railroad Commission of Texas. A program revision 
application for Class III brine mining wells was submitted by Texas and 
approved by EPA. Notice of that approval was published in the Federal 
Register on February 26, 2004; the effective date of this program is 
March 29, 2004.
    (a) * * *
    (2) Texas Statutory and Regulatory Requirements Applicable to the 
Underground Injection Control Program for Class III Brine Mining Wells, 
March 2002.
    (b) * * *
    (2) Class III brine mining wells. (i) Vernon's Texas Codes 
Annotated, Natural Resources Code, Chapters 91, 2001, and 331;
    (ii) Vernon's Texas Codes Annotated, Government Code Title 10, 
Chapters 2001, 552, and 311.
    (iii) General Rules of Practice and Procedure before the Railroad 
Commission of Texas.
    (c) * * *
    (2) Class III brine mining wells. The Memorandum of Agreement 
between EPA Region VI and the Railroad Commission of Texas signed by 
the EPA Regional Administrator on October 23, 2001.
    (d) * * *
    (2) Class III brine mining wells. State of Texas ``Attorney 
General's Statement'' for Class III Brine Mining Injection Wells, 
signed by the Attorney General of Texas, February 2, 1992 and the 
``Supplement to Attorney General's Statement of February 19, 1992,'' 
signed by the Attorney General of Texas, June 2, 1998.
    (e) * * *
    (2) Class III brine mining wells. The Program Description and any 
other materials submitted as part of the revision application or as 
supplements thereto.

[FR Doc. 04-3223 Filed 2-25-04; 8:45 am]
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