[Federal Register Volume 69, Number 135 (Thursday, July 15, 2004)]
[Rules and Regulations]
[Pages 42341-42345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16075]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[FRL-7788-1]


State of Alabama; Underground Injection Control Program Revision; 
Response to Court Remand

AGENCY: Environmental Protection Agency.

ACTION: Final determination on court remand on final rule.

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SUMMARY: In this document, the Environmental Protection Agency (EPA) is 
providing its response to the Eleventh Circuit Court of Appeals' remand 
in Legal Environmental Assistance Foundation, Inc. v. United States 
Environmental Protection Agency (11th Cir. 2001) (hereinafter LEAF II), 
directing EPA to determine whether Alabama's revised underground 
injection control (UIC) program covering hydraulic fracturing of coal 
bed seams to recover methane gas complies with the requirements for 
Class II wells. In LEAF II, the Eleventh Circuit affirmed EPA's 
decision to review Alabama's hydraulic fracturing program pursuant to 
the approval criteria in section 1425 of the Safe Drinking Water Act 
(SDWA), instead of the approval criteria in section 1422 of the SDWA, 
and rejected LEAF's claim that EPA's approval of the program pursuant 
to section 1425 was arbitrary. However, the Court remanded the matter, 
in part, for EPA ``to determine whether Alabama's revised UIC program 
complies with the requirements for Class II wells.'' After issuing a 
proposed response in the April 8, 2004, Federal Register and receiving 
comments on that proposal, EPA has determined that the hydraulic 
fracturing portion of the State's UIC program relating to coal bed 
methane production, which was approved under section 1425 of the SDWA, 
complies with the requirements for Class II wells within the context of 
section 1425's approval criteria.

ADDRESSES: Documents relevant to this action are available for 
inspection at a docket, which is located at U.S. Environmental 
Protection Agency, Region 4, Water Management Division, Ground Water 
and Drinking Water Branch, Sam Nunn Atlanta Federal Center, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303. The docket may be accessed between 
8 a.m. and 5 p.m., Monday through Friday, excluding legal holidays. A 
reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: General questions, and questions on 
technical issues concerning today's document should be directed to 
Larry Cole at (404) 562-9474, or at the address listed in the ADDRESSES 
section. Questions on legal issues concerning today's document should 
be addressed to Zylpha Pryor, Office of Environmental Accountability, 
U.S. Environmental Protection Agency--Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303; telephone (404) 562-9535.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Information
    A. Court Decisions
    B. Section 1425 of the SDWA
II. EPA's Response to Court Remand
III. EPA's Response to Public Comments

I. Background Information

A. Court Decisions

    On May 3, 1994, the Legal Environmental Assistance Foundation, 
Inc., (LEAF) submitted a petition to EPA to withdraw Alabama's UIC 
program, asserting that the State was not appropriately regulating 
injection activities associated with coal bed methane gas production 
wells. Following the Agency's May 5, 1995, denial of the petition, LEAF 
sought review of this decision by the United States Court of Appeals 
for the Eleventh Circuit. On August 7, 1997, in LEAF v. EPA, 118 F. 3d 
1467 (11th Cir. 1997) (LEAF I), the Court held that hydraulic 
fracturing activities constitute underground injection under Part C of 
the SDWA and must be regulated by permit or rule. On February 18, 1999, 
the Eleventh Circuit directed EPA to implement the Court's August 1997 
decision. The Court established a schedule for EPA to follow in 
determining whether, in light of the Court's ruling regarding hydraulic 
fracturing, EPA should withdraw approval of Alabama's UIC program. In a 
January 19, 2000, Federal Register final rule, EPA announced its 
determination that Alabama's UIC program regulating hydraulic 
fracturing associated with coal bed methane production was consistent 
with the requirements of the SDWA and the LEAF I Court mandate (65 FR 
2889, January 19, 2000).
    LEAF filed a petition for review of EPA's determination with the 
Eleventh Circuit Court, arguing that it should be set aside for three 
reasons. First, LEAF argued that the underground injection of hydraulic 
fracturing fluids to enhance the recovery of methane gas from coal beds 
is not underground injection for the secondary or tertiary recovery of 
natural gas under section 1425 of the SDWA. Second, LEAF contended that 
wells used for the injection of hydraulic fracturing fluids to enhance 
the recovery of methane gas from coal beds are Class II wells as 
defined in 40 CFR 144.6(b), and EPA's classification of hydraulic 
fracturing as a ``Class II-like underground injection activity'' was 
not in accordance with law. Third, LEAF argued that, even if Alabama's 
revised UIC program was covered by the alternative approval procedure 
of section 1425, EPA's approval of the revised program was arbitrary 
and capricious. The Eleventh Circuit generally ruled in favor of EPA, 
holding that: (1) EPA's decision to approve Alabama's hydraulic 
fracturing program pursuant to section 1425 of the SDWA was a 
permissible construction of the statute; and (2) EPA was not arbitrary 
in determining that Alabama's UIC program complies with the section 
1425 statutory approval requirements. LEAF II, 276 F.3d at 1260-61, 
1265. However, the Court remanded, in part, for EPA to determine 
whether Alabama's revised program covering the hydraulic fracturing of 
coal beds to produce methane complies with the requirements for Class 
II wells. Id. at 1264. The purpose of this document is to announce 
EPA's determination regarding the remanded issue.

B. Section 1425 of the SDWA

    Any State that seeks to acquire primary enforcement responsibility 
for the regulation of Class II wells may, at its option, apply for 
primacy for its Class II UIC program under the approval criteria in 
either section 1422 or section 1425 of the SDWA. Approval under either 
section is aimed at achieving the same fundamental objective of

[[Page 42342]]

protecting underground sources of drinking water from endangerment by 
well injection. However, State program approvals under section 
1422(b)(1) of the SDWA are required to meet a different legal standard 
than State program approvals under section 1425. Section 1425 was added 
as part of the 1980 amendments to the SDWA to offer States an approval 
alternative that was not necessarily tied to the detailed regulatory 
requirements for Class II wells found at 40 CFR parts 124, 144, 145, 
and 146.
    Approval under section 1422(b)(1)(A) requires that the State UIC 
program meet the requirements of regulations in effect under section 
1421. Those regulations, which are found at 40 CFR parts 124, 144, 145, 
and 146, are very detailed and specific. However, under the alternate 
section 1425 approval criteria, a State may instead demonstrate that 
the Class II portion of its UIC program meets the requirements of 
section 1421(b)(1)(A) through (D) and represents an ``effective'' 
program to prevent injection which endangers drinking water sources. A 
State has more flexibility in developing a section 1425-approvable 
Class II program than if it were developing the same program for 
approval under section 1422. Similarly, EPA has more discretion to 
approve a Class II program under the section 1425 criteria, because 
that program does not have to ``track'' or be ``as stringent as'' each 
of the Class II-related requirements of 40 CFR parts 124, 144, 145, and 
146. See 40 CFR 145.11(b)(1). If a State makes a satisfactory 
demonstration pursuant to section 1425 that its Class II program 
warrants approval, it has done all that is required to demonstrate that 
its program complies with the requirements for Class II wells.

II. EPA's Response to Court Remand

    During the hydraulic fracturing process, fracturing fluids are 
injected through methane production wells to create fractures in the 
formation through which methane flows to the well and up to the 
surface. In its January 19, 2000, Federal Register final rule approving 
Alabama's UIC program revisions, EPA characterized hydraulic fracturing 
for the production of coal bed methane as a ``Class II-like underground 
injection activity.'' In the final rule, EPA acknowledged that its 
classification scheme recognizes only five classes of wells. However, 
EPA stated that, since the injection of fracture fluids is often a one-
time exercise of extremely limited duration and was ancillary to the 
well's principal function of producing methane, it did not seem 
entirely appropriate to ascribe full Class II status to that activity. 
EPA also based its Alabama well classification decision on the fact 
that the general UIC ``well classification systems found in 40 CFR 
144.6 and 146.5 do not expressly include hydraulic fracturing'' and 
``the various permitting, construction, and other requirements found in 
parts 144 and 146 do not specifically address hydraulic fracturing.'' 
65 FR 2892. It is still the case today that EPA has not promulgated 
national regulations expressly and specifically designed to establish 
minimum requirements for State programs that regulate hydraulic 
fracturing of coal beds to enhance methane production.
    The LEAF II Court found EPA's classification of Alabama's 
hydraulically fractured coal bed methane wells as ``Class II-like'' to 
be inconsistent with the plain language of 40 CFR 144.6, which defines 
Class II injection wells. In its opinion, the Court held that, even 
though the injection of fracture fluids is often a one-time exercise of 
extremely limited duration, ``wells used for the injection of hydraulic 
fracturing fluids fit squarely within the definition of Class II 
wells.'' LEAF II, 276 F.3d at 1263; see also 40 CFR 144.6(b)(2). In 
view of its finding that the wells are Class II wells, the Court 
remanded, in part, for EPA to determine whether Alabama's revised UIC 
program complies with the requirements for Class II wells.
    In applying for approval of that part of its Class II UIC program 
regulating hydraulic fracturing of coal beds, Alabama could have sought 
primacy either under section 1422 or section 1425 approval criteria of 
the SDWA. Since Alabama chose to make its demonstration pursuant to 
section 1425, EPA appropriately evaluated that part of Alabama's Class 
II program regulating hydraulic fracturing of coal beds using the 
section 1425 alternative approval requirements.
    To receive approval for its Class II program, or some component 
thereof, under the optional demonstration, section 1425 requires a 
State to show that its program meets the following five criteria: (1) 
Section 1421(b)(1)(A) provides that the State program must prohibit any 
underground injection which is not authorized by permit or rule; (2) 
section 1421(b)(1)(B) provides that the State program must require that 
the applicant for a permit satisfy the State that the underground 
injection will not endanger drinking water sources and prohibits the 
State from promulgating any rule that authorizes underground injection 
which endangers drinking water sources; (3) section 1421(b)(1)(C) 
requires that the State program include inspection, monitoring, 
recordkeeping, and reporting requirements; (4) section 1421(b)(1)(D) 
provides that the State program must apply to underground injections by 
Federal agencies, as well as underground injections by any other 
person, whether or not occurring on property owned or leased by the 
United States; and (5) the State program must represent ``an effective 
program'' to prevent underground injection which endangers drinking 
water sources, in accordance with section 1425(a). If a State can 
successfully demonstrate that its Class II program satisfies all of 
these requirements, the program has met all the statutory requirements 
for approval. As previously discussed, under section 1425, that 
program, or a component thereof, does not have to demonstrate that it 
contains requirements as stringent as, or identical to, each of the 
specific Class II requirements found in 40 CFR parts 144 and 146 of 
EPA's regulations. Instead, a finding that such a program, or component 
thereof, meets the Class II approval requirements of section 1425 means 
that such a program, by virtue of that finding, necessarily complies 
with all applicable statutory and regulatory requirements for Class II 
wells.
    EPA's determination that Alabama's hydraulic fracturing program 
related to coal bed methane production complied with the section 1425 
requirements for Class II program approval was explained in great 
detail in the January 19, 2000, Federal Register final rule. The LEAF 
II Court held that EPA's determination that Alabama's UIC program 
complies with the SDWA's statutory requirements was not arbitrary. LEAF 
v. EPA, 276 F.3d at 1265. EPA did not reopen that earlier approval 
decision or solicit additional comment on it. EPA only sought comment 
on its proposed response to the LEAF II Court's question on remand.
    In reviewing and approving Alabama's coal bed methane-related 
hydraulic fracturing program, EPA was cognizant of the various 
regulatory provisions in 40 CFR parts 144 and 146, which are designed 
to prevent Class II injection wells from causing the movement of fluid 
containing any contaminant into a USDW. EPA generally expects 
traditional State Class II programs, i.e., those regulating the 
injection of fluids brought to the surface either in connection with 
conventional oil and gas production or for enhanced recovery or storage 
of oil and gas, to demonstrate their ``effectiveness'' to prevent 
underground injection which endangers USDWs, pursuant to Section 1425, 
by inclusion of statutory or

[[Page 42343]]

regulatory provisions preventing fluid movement. EPA was concerned that 
according ``full'' Class II status to Alabama's hydraulically-fractured 
methane production wells could have been misconstrued as requiring a 
strict application of those ``no fluid movement'' provisions and could 
have unnecessarily impeded methane gas production in Alabama within the 
meaning of SDWA section 1441(b)(2) because Alabama's revised program 
allowed injection of fracturing fluids into USDWs, provided they did 
not cause a violation of any MCL or otherwise adversely affect the 
health of persons. LEAF v. EPA, F.3d at 1264 n.12; EPA brief at 30-31. 
EPA thus decided to characterize wells used to inject hydraulic 
fracturing fluids into Alabama's coal bed formations as ``Class II-
like,'' rather than Class II. However, this characterization of 
Alabama's hydraulically-fractured methane production wells, while 
designed to further ensure that regulation of those wells did not 
unnecessarily interfere with or impede methane gas production, was 
unnecessary for purposes of EPA's approval. EPA's decision to approve 
Alabama's regulation of these wells pursuant to section 1425 is due in 
part to the unique attributes of hydraulic fracturing in Alabama, as 
well as to EPA's substantive finding, which was upheld by the LEAF II 
Court, that Alabama's program does not endanger USDWs because, among 
other requirements, the injection must not cause a violation of any MCL 
or otherwise adversely affect the health of persons. EPA thus 
appropriately exercised the discretion and flexibility inherent in SDWA 
section 1425 to approve Alabama's coal bed methane-related hydraulic 
fracturing program despite the fact that it does not prohibit fluid 
movement into USDWs because: (1) EPA's Class II regulations were not 
designed to, and do not specifically address the unique technical and 
temporal attributes of hydraulic fracturing, and (2) more importantly, 
EPA determined pursuant to section 1425 that Alabama's program is 
effective at preventing endangerment of USDWs.
    In sum, the SDWA gives Alabama more flexibility in developing a 
section 1425-approvable Class II program for the hydraulic fracturing 
of coal beds to produce methane than if it were developing the same 
program for approval under the criteria in section 1422. Similarly, EPA 
has more discretion to approve Alabama's revised Class II program 
relating to coal bed methane production under the criteria in section 
1425, because that program does not have to ``track'' or be ``as 
stringent as'' each of the Class II-related requirements of 40 CFR 
parts 124, 144, 145, and 146. See 40 CFR 145.11(b)(1). Because Alabama 
made a satisfactory demonstration pursuant to section 1425 that its 
coal bed methane-related hydraulic fracturing program warranted 
approval, it did all that was required to demonstrate that its program 
complies with the requirements for Class II wells.

III. EPA's Response to Public Comments

Summary of Comments

    All of the commenters except one supported EPA's determination. One 
pointed out that the States, which have decades of regulatory 
experience in protecting ground water from drilling activities, have 
supervised the fracturing of nearly a million wells without a single 
occurrence of harm to ground water. This and other statistics were 
cited by several commenters as evidence of the strength of the State 
regulatory programs and, conversely, of the lack of need for additional 
Federal regulation. One commenter noted that any additional regulation 
would impede production. Another commenter mentioned that because of 
the unique aspects of hydraulic fracturing as compared to traditional 
Class II activities, additional Federal regulations, or the application 
of Class II requirements at the national level on hydraulic fracturing, 
is unnecessary and would only result in increased costs to the Federal 
and State governments, as well as to oil and gas operators, with no 
additional environmental benefit. One commenter found the distinction 
between classification of hydraulic fracturing wells as Class II or 
Class II-like to be of no importance given approval under 1425, while 
another took issue with the holding in LEAF I, which defined hydraulic 
fracturing as underground injection under Part C of the SDWA. Overall, 
the supportive submittals were perhaps best summarized by the commenter 
who stated that EPA's response demonstrates a ``* * * convergence of 
sound legal reasoning with clear environmental and economic benefits.''
    EPA appreciates the comments supportive of its determination and 
does not believe that they need a response. Those comments regarding 
decisions already made by the Eleventh Circuit Court are beyond the 
scope of the remanded issue and therefore do not require a response.
    One commenter did not support EPA's determination on the remand. 
The commenter stated that Alabama's revised underground injection 
control program for hydraulic fracturing of coalbeds to produce methane 
gas failed to demonstrate (1) that permit applicants are required to 
``satisfy the State that underground injection will not endanger 
drinking water sources'' and (2) ``that the program represents an 
effective program to prevent underground injection which endangers 
drinking water sources.'' Additionally, it said that Alabama's revised 
program ``does not comply with the requirements for Class II wells.''
    The commenter stated that, despite the general requirement in EPA's 
UIC rules that all new Class II wells shall be sited in such a fashion 
that they inject into a formation which is separated from any 
underground source of drinking water by a confining zone that is free 
of known open faults or fractures within the area of review (40 CFR 
146.22(a)), the Alabama program allows hydraulic fracturing fluids to 
be injected directly into underground sources of drinking water. The 
commenter also cited a number of other provisions of EPA's UIC rules 
that the commenter said would ``impose technical requirements for `good 
engineering' practices designed to prevent movement of fluids into 
underground sources of drinking water,'' e.g., 40 CFR 146.23(a), 
144.28(f)(6)(ii), 144.52(a)(3), 144.52(a)(9). The commenter noted that 
``EPA previously found these technical requirements necessary to 
effectuate the preventive and public health protective purposes of the 
Act. 45 FR 42472, 42478 (1980).'' The commenter continued to say that 
Alabama's requirement that well operators certify that the hydraulic 
fracturing fluid injectate does not exceed MCLs for drinking water is 
not sufficient to satisfy the State that the injection will not 
endanger drinking water sources and does not represent an ``effective 
method'' to prevent endangerment. A list of constituent hydraulic 
fracturing fluids that have been used in Alabama was submitted by the 
commenter, which pointed out that MCLs have been established for only 
four of the 50 hydraulic fracturing fluid constituents it identified. 
Moreover, the commenter indicated that an operator's MCL certification 
did not address whether contaminants in the hydraulic fracturing fluid 
``may adversely affect the health of persons.'' It said the Alabama 
program does not require that the operator or the State Oil and Gas 
Board of Alabama ensure that injection will not adversely affect the 
health of persons.
    Absent implementation criteria and assignment of implementation 
responsibility, the commenter stated, the statutory proscription 
against

[[Page 42344]]

contamination which ``may adversely affect the health of persons'' is 
likely to be ignored by the operator and the State Oil and Gas Board of 
Alabama until after complaints are received that drinking water 
supplies have been contaminated. Then, the commenter continued, the 
proscription will be invoked only to justify the imposition of 
additional requirements for corrective action as are necessary to 
prevent a further threat to the health of persons. The commenter 
believes that this outcome ``is even more likely'' given ``Alabama's 
and EPA's reluctance to regulate hydraulic fracturing.''
    At the outset, EPA must point out that to the extent these comments 
assert that Alabama's revised underground injection control program for 
hydraulic fracturing of coalbeds failed to demonstrate that such 
underground injection ``will not endanger drinking water sources'' and 
that Alabama's revised program does not represent an ``effective 
program to prevent underground injection which endangers drinking water 
sources,'' they merely repeat claims made by LEAF during its challenge 
in the Eleventh Circuit Court of Appeals to EPA's January 2000 approval 
of Alabama's program. In its December 21, 2001, opinion generally 
upholding that approval, the Eleventh Circuit observed that LEAF had 
made a number of arguments in support of its contention that EPA had 
arbitrarily approved Alabama's program, including that ``Alabama's 
revised UIC program fails to require that a permit applicant satisfy 
the state that underground injection will not endanger underground 
sources of drinking water'' and that ``Alabama's revised UIC control 
program does not represent an effective program to prevent underground 
injection which endangers drinking water sources.'' LEAF v. EPA, 276 
F.3d 1253, 1265 n.13 (11th Cir. 2001). The court said it ``carefully 
considered'' each of LEAF's arguments and concluded that ``none of 
these arguments would support setting aside the agency's determination 
in this case.'' EPA believes that these reasserted, generalized 
critiques of Alabama's approved program are beyond the limited scope of 
the Court's remand and does not believe that further response to such 
critiques is necessary.
    More relevant to the issue on remand is the commenter's claim that 
Alabama's revised UIC program ``does not comply with the requirements 
for Class II wells.'' In support of that claim, a number of provisions 
are cited in CFR parts 144 and 146 that apply to Class II wells: 40 CFR 
146.22(a), 146.23(a), 144.28(f)(6)(ii), 144.52(a)(3), and 144.52(a)(9). 
The commenter says that each of these regulatory provisions is designed 
to prevent movement of fluids containing contaminants into underground 
sources of drinking water and criticizes Alabama's program for allowing 
hydraulic fracturing fluids to be injected into underground sources of 
drinking water.
    It is true that Alabama's revised UIC program regulating hydraulic 
fracturing of coalbed formations (1) allows, under certain limited 
circumstances, the injection of hydraulic fracturing fluids into 
underground sources of drinking water and (2) does not contain State 
regulatory provisions analogous to the CFR part 144 and part 146 
provisions cited by LEAF. This does not mean, however, that Alabama's 
program does not comply with the requirements for Class II wells. As 
EPA explained at length in its April 2004 proposed determination on 
remand and again in this document, a State UIC program seeking approval 
under the alternate SDWA section 1425 approval criteria ``does not have 
to `track' or be `as stringent as' each of the Class-II-related 
requirements of 40 CFR parts 124, 144, 145, and 146.'' 69 FR 18478, 
18479 (April 8, 2004). The commenter does not dispute this in its 
assertions. Accordingly, the fact that certain provisions of 40 CFR 
parts 144 and 146 have been identified that are not found in Alabama's 
revised program does not render that program out of compliance with the 
requirements for Class II wells.
    Nor is it problematic that Alabama requires a certification in 
writing that ``the mixture of fluids to be used to hydraulically 
fracture the coal beds does not exceed the maximum contaminant levels 
contained in 40 CFR part 141, subparts B and G. Alabama Rule 400-3-
8-.03(2)(b)(3). It is true that Alabama's certification requirement 
addresses MCL exceedences, and not whether the operator believes 
hydraulic fracturing fluid injection will ``adversely affect the health 
of persons.'' However, this does not mean that the certification 
requirement is insufficient or ineffective. Alabama's certification 
requirement must be viewed in the larger context of the program's 
requirements as a whole. Significantly, the Alabama program expressly 
requires that each coal bed be hydraulically fractured ``so as not to 
endanger any underground source of drinking water (USDW).'' Alabama 
Rule 400-3-8-.03(1). If endangerment occurs despite this prohibition, 
the well must be plugged and abandoned and remediation of the USDW may 
be required. Alabama Rule 400-3-8-.03(1). Moreover, the Alabama program 
expressly provides that coal beds shall not be hydraulically fractured 
in a manner that allows the movement of fluid containing any 
contaminant into a USDW, if the presence of that contaminant may cause 
an exceedence of an MCL or ``otherwise adversely affect the health of 
persons.'' Alabama Rule 400-3-8-.03(2). So, while the certification 
requirement does not specifically address whether injected contaminants 
may ``adversely affect the health of persons,'' the program's 
fundamental regulatory requirements, as expressly stated in Alabama 
Rule 400-3-8-.03(1) and (2), prohibit any hydraulic fracturing (within 
or outside a USDW) that may ``adversely affect the health of persons.'' 
This prohibition embodies the SDWA's endangerment test in 42 U.S.C. 
300h(d). Under Alabama law an operator cannot simply inject ``any 
quantity'' of a hydraulic fracturing fluid's constituent chemicals into 
a USDW without regard to whether such injection would violate Alabama 
Rule 400-3-8-.03(1) and (2) and ``adversely affect the health of 
persons.'' Contrary to the commenter's view, the Alabama program does 
require that the operator and the State Oil and Gas Board of Alabama 
ensure that injection will not ``adversely affect the health of 
persons.'' It does that by requiring written permission to inject and 
expressly prohibiting any injections that might ``adversely affect the 
health of persons.'' And the Eleventh Circuit has found that Alabama's 
program was ``effective'' for purposes of 42 U.S.C. 300h-4(a).
    The commenter asserts that Alabama's approved program lacks 
sufficient implementation criteria and assignment of implementation 
responsibility. EPA disagrees. The program's fundamental criteria are 
clear: no hydraulic fracturing that endangers USDWs, exceeds MCLs, or 
may ``otherwise adversely affect the health of persons.'' EPA strongly 
disagrees with the claim that these prohibitions are likely to be 
ignored by the operator and State Oil and Gas Board of Alabama. Nothing 
in the record supports that assertion. The placement of implementation 
responsibility upon the State Oil and Gas Board of Alabama is also 
clear.
    EPA believes the State of Alabama's hydraulic fracturing regulatory 
program, with its regulatory criteria, technical review process, and 
written approval procedures, continues to be effective in preventing 
endangerment to underground sources of drinking water.
    Conclusion: EPA has determined that the hydraulic fracturing 
portion of the State's UIC program relating to coal bed methane 
production, which was

[[Page 42345]]

approved under section 1425 of the SDWA, complies with the requirements 
for Class II wells within the context of section 1425's approval 
criteria.

    Dated: July 9, 2004.
Benjamin H. Grumbles,
Acting Assistant Administrator for Water.
[FR Doc. 04-16075 Filed 7-14-04; 8:45 am]
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