[Federal Register Volume 73, Number 20 (Wednesday, January 30, 2008)]
[Proposed Rules]
[Pages 5471-5480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1667]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-R08-OW-2007-0153; FRL-8522-5]


Fort Peck Assiniboine and Sioux Tribes in Montana; Underground 
Injection Control (UIC) Program; Proposed Primacy Approval and Minor 
Revisions

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve an application from the Fort Peck Assiniboine and Sioux Tribes 
in Montana under Section 1425 of the Safe Drinking Water Act (SDWA) to 
implement an underground injection control (UIC) program for Class II 
(oil and gas-related) injection wells. EPA is also proposing minor 
revisions to regulations that are not specific to the Fort Peck Tribes' 
application. EPA requests public comment and has scheduled a public 
hearing on this application, the proposed rule, and EPA's supporting 
documentation. EPA will consider comments received at the public 
hearing and during the public comment period before taking final 
action.

DATES: Comments must be received on or before February 29, 2008. The 
public hearing will be held at the Fort Peck Community College 
Auditorium located at 605 Indian Avenue in Poplar, Montana at 7 p.m. on 
Monday, February 25, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OW-2007-0153, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     Mail: Environmental Protection Agency, 8P-W-GW, 1595 
Wynkoop Street, Denver, CO 80202-1129.
     Hand Delivery: Deliver your comments to Douglas Minter, 
Environmental Protection Agency, 8P-W-GW, 1595 Wynkoop Street, Denver, 
CO 80202-1129, Attention Docket ID No. EPA-R08-OW-2007-0153. Such 
deliveries are only accepted during the Docket's normal hours of 
operation: Monday through Friday, between 8 a.m. and 4 p.m., excluding 
legal holidays. Special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OW-
2007-0153. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly

[[Page 5472]]

to EPA without going through http://www.regulations.gov, your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit EPA's Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm. For additional 
instructions on submitting comments, go to I.B of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy in the Ground Water 
Program, EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202-1129. This 
Docket Facility is open Monday through Friday, between 8 a.m. and 4 
p.m., excluding legal holidays. The Docket telephone number is 303-312-
6079.

FOR FURTHER INFORMATION CONTACT: Douglas Minter, U.S. Environmental 
Protection Agency, 8P-W-GW, 1595 Wynkoop Street, Denver, CO 80202-1129. 
Phone number: 303-312-6079. E-mail address: [email protected]

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Regulated Entities

 
----------------------------------------------------------------------------------------------------------------
                                                                                                 North American
                                                                                                    Industry
                   Category                       Examples of potentially regulated entities     Classification
                                                                                                     System
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State, Local, and Tribal Governments.........  State, local, and Tribal governments that own              924110
                                                and operate Class II injection wells within
                                                the boundaries of the Fort Peck Indian
                                                Reservation.
Industry.....................................  Private owners and operators of Class II                   221310
                                                injection wells within the boundaries of the
                                                Fort Peck Indian Reservation.
Municipalities...............................  Municipal owners and operators of Class II                 924110
                                                injection wells within the boundaries of the
                                                Fort Peck Indian Reservation.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI
    Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Introduction

    The Fort Peck Assiniboine and Sioux Tribes of Montana (the ``Fort 
Peck Tribes'') have applied to EPA under Sections 1422 and 1425 of the 
Safe Drinking Water Act (``SDWA''), 42 U.S.C. 300h-1 and 300h-4, for 
approval of the Fort Peck Tribes' program regulating Class II (oil and 
gas-related) underground injection wells on the Fort Peck Indian 
Reservation in Montana. Because the Fort Peck Tribes have sought 
primacy only for the Class II UIC program, EPA proposes to approve 
their program under SDWA section 1425. EPA's proposal is based on a 
careful and extensive legal and technical review of the Tribes' 
application. As a result of this review, EPA has determined that the 
Fort Peck Tribes meet all requirements of section 1451 of the SDWA, 
including that the Tribes have demonstrated adequate jurisdictional 
authority over all Class II injection activities on the Reservation, 
including those conducted by nonmembers. EPA has also determined that 
the Tribes' program meets all applicable requirements for approval 
under SDWA section 1425, and that they are capable of administering an 
effective UIC Class II program in a manner consistent with the terms 
and purposes of the SDWA and all applicable regulations.

[[Page 5473]]

III. Legal Authorities

    These regulations are being proposed under authority of sections 
1422, 1425, 1450 and 1451 of the Safe Drinking Water Act, 42 U.S.C. 
300h-1, 300h-4, 300j-9 and 300j-11.

A. Requirements for State UIC Programs

    Section 1421 of the SDWA requires the Administrator of EPA to 
promulgate minimum requirements for effective State UIC programs to 
prevent underground injection activities that endanger underground 
sources of drinking water (``USDWs''). Sections 1422 and 1425 of the 
SDWA establish requirements for States seeking EPA approval of State 
UIC programs.
    For States that seek approval for UIC programs under Section 1422 
of the SDWA, EPA has promulgated a regulation setting forth the 
applicable procedures and substantive requirements. This regulation has 
been codified in the Code of Federal Regulations (40 CFR part 145). It 
includes requirements for State permitting programs (by reference to 
certain provisions of 40 CFR parts 124 and 144), compliance evaluation 
programs, enforcement authority, and information sharing.
    For States that seek approval under Section 1425 of the SDWA, which 
provides an alternative set of requirements for Class II programs, EPA 
has published interim guidance in the Federal Register (46 FR 27333-
27339, May 19, 1981), describing how States may apply for program 
approval under Section 1425 and setting forth the criteria EPA will use 
in approving or disapproving applications under this provision. By 
demonstrating that its program represents an effective program to 
prevent endangerment of USDWs and meets the more general statutory 
requirements of Section 1421(b)(1)(A) through (D), a State may obtain 
primacy for a Class II UIC program.

B. Tribal UIC Programs

    Section 1451 of the SDWA and 40 CFR 145.52 authorize the 
Administrator of EPA to treat an Indian Tribe in the same manner as a 
State for purposes of the UIC program if the Tribe demonstrates that: 
(1) It is recognized by the Secretary of the Interior; (2) it has a 
governing body carrying out substantial governmental duties and powers 
over a defined area; (3) the functions to be exercised by the Tribe are 
within an area of the Tribal government's jurisdiction; and (4) the 
Tribe is reasonably expected to be capable, in the EPA Administrator's 
judgment, of implementing a program consistent with the terms and 
purposes of the SDWA and applicable regulations.
    Under Section 1451 of the SDWA and 40 CFR part 145, Subpart E, EPA 
is authorized to treat Indian Tribes similarly to States and may 
approve Tribal UIC programs. Tribes may apply for primacy under either 
or both Sections 1422 and 1425 of the SDWA, and the references in 40 
CFR part 145 and EPA's May 19, 1981 interim guidance to ``State'' 
programs are also construed to include eligible ``Tribal'' programs. 
(See 40 CFR 145.1(h), which provides that all requirements of parts 
124, 144, 145, and 146 that apply to States with UIC primacy also apply 
to Indian Tribes except where specifically noted.)

IV. Fort Peck Tribes' Application

    On December 18, 1995, the Fort Peck Tribes submitted an initial 
application for primacy for all Class II wells on all lands within the 
exterior boundaries of the Fort Peck Indian Reservation (the 
``Reservation''). On April 22, 1996, EPA determined that the Fort Peck 
Tribes' application was complete. On September 12, 1997, EPA published 
a notice in the Federal Register (62 FR 48086-48087) requesting initial 
comments and scheduling a public hearing on the application. A similar 
public notice was also published in newspapers in Great Falls, 
Billings, and Poplar, Montana. A public hearing was held on October 16, 
1997, in Poplar, Montana. On February 12, 1998, EPA provided a set of 
formal comments to the Fort Peck Tribes for incorporation into their 
application. In response, the Fort Peck Tribes submitted a revised 
application on July 27, 1999, stating that the Fort Peck Tribal 
Executive Board had formally adopted underground injection control 
provisions in the Tribal Code and requesting primacy under both 
Sections 1422 and 1425 of the SDWA.

V. EPA's Proposed Action

    EPA is proposing to approve the Fort Peck Tribes' Class II UIC 
program. Under EPA's proposed approval of the Fort Peck Tribes' 
application, the Fort Peck Tribes would assume primary enforcement 
authority (except for the authority that EPA would retain to take 
criminal actions: (1) Against non-Indians; and (2) against Indians 
where the potential fine required is greater than $5,000 or where the 
penalty would require imprisonment for more than one year, in 
accordance with 25 U.S.C. 1302) for regulating all Class II injection 
activities on all lands within the exterior boundaries of the 
Reservation.
    EPA's proposed Decision Document in support of EPA's proposed 
approval is part of the public record and is now available for public 
review and comment. The proposed Decision Document includes findings 
that the Fort Peck Tribes meet all requirements of section 1451 of the 
SDWA, including that the Tribes have demonstrated adequate 
jurisdictional authority over all Class II injection activities on the 
Reservation, including those conducted by nonmembers, and that the Fort 
Peck Tribes' program meets all applicable requirements for approval 
under section 1425 of the SDWA.
    If approved as proposed, the Fort Peck Tribes would administer and 
enforce their Class II program with respect to all Class II injection 
wells on the Reservation. Upon approving the Fort Peck Tribes' Class II 
program, EPA would amend 40 CFR part 147 as proposed in this notice to 
revise the reference to the EPA-administered program for Class II 
injection wells on the Reservation to refer to the Fort Peck Tribes' 
Class II program. EPA would continue to administer its UIC program for 
Class I, III, IV, and V wells on the Reservation. (Although the Tribal 
Code prohibits injection in Class I, III, and IV wells, these 
prohibitions are separate from the Class II program that EPA proposes 
to approve in this action.) As noted above, EPA would also retain Class 
II-related criminal enforcement authority against non-Indians on the 
Reservation, and against Indians on the Reservation where the potential 
fine required is greater than $5,000 or where the penalty would require 
imprisonment for more than one year.
    EPA would oversee the Fort Peck Tribes' administration of the Class 
II program on the Reservation. Part of EPA's oversight responsibility 
would include requiring quarterly reports of non-compliance and annual 
UIC program performance reports pursuant to 40 CFR 144.8. The 
Memorandum of Agreement between EPA and the Fort Peck Tribes would 
require, among other things, that EPA review all permits associated 
with aquifer exemptions not previously approved by EPA.
    The provisions of the Tribal Code that contain standards, 
requirements, and procedures applicable to owners or operators of Class 
II wells on the Reservation would be incorporated by reference into 40 
CFR part 147. Any provisions incorporated by reference, as well as all 
Tribal permit conditions or permit denials issued pursuant to such 
provisions, would be enforceable by EPA pursuant to section 1423 of the 
SDWA and 40 CFR 147.1(e).

[[Page 5474]]

    Although the Program Description submitted with the Fort Peck 
Tribes' application indicates that the Fort Peck Tribes requested an 
aquifer exemption for the Dakota Sand formation, the Fort Peck Tribes 
have decided not to pursue this exemption at this time.

VI. Public Comments Received to Date

    In connection with the public comment period and hearing that the 
Fort Peck Tribes held on September 20, 1995, members of the public 
asked questions about or commented on several aspects of the proposed 
Tribal program. The Fort Peck Tribes' written and verbal answers to 
these questions and comments are given in detail in the Fort Peck 
Tribes' application, which, along with the other contents of the 
application and related documentation, are available for public review 
as described in this proposed rule. The general areas of the comments 
and summaries of the Fort Peck Tribes' answers are presented briefly 
below. EPA concurs with the answers that the Fort Peck Tribes have 
provided.
    In addition, during EPA's 1997 public comment period on the Fort 
Peck Tribes' complete application, EPA received comments on the Fort 
Peck Tribes' proposed program, which are incorporated below.

A. Transition From EPA to Tribal Permits

    Well operators asked various questions about how the Tribal permit 
program would be administered. In response to questions about Tribal 
re-permitting for existing wells, the Fort Peck Tribes stated that all 
EPA-issued permits remain in full effect and Tribal permits will be 
issued upon review of the EPA permit. The Fort Peck Tribes will charge 
a fee of $200 per year per well. If the Fort Peck Tribes deny an 
application for a permit, permit renewal, or permit modification, 
operators would not be able to obtain permits, permit renewals, or 
permit modifications from EPA. The Tribal program will apply on all 
land within the exterior boundaries of the Reservation, including land 
owned in fee by non-members.

B. Requirement To Obtain a Permit

    An operator recommended that some wells should be authorized by 
rule to operate until a permit application is either granted or denied. 
The Fort Peck Tribes replied that they would not change their 
regulation or the need to obtain a permit before operating wells. EPA 
takes the position that States and Tribes are free to promulgate 
requirements more stringent than the minimum Federal requirements for 
UIC primacy, and the SDWA does not prevent the Fort Peck Tribes from 
requiring permits for all wells.

C. Reporting Requirements

    Some commenters suggested reducing the reporting requirements by, 
for example, eliminating the requirement to notify the Fort Peck Tribes 
within 24 hours of any well workover, suggesting alternative 
notification requirements, eliminating the monthly reporting 
requirement, and using monthly rather than daily data. The Fort Peck 
Tribes elected to retain their reporting requirements, stating, for 
example, that daily monitoring would reduce the potential to endanger 
underground sources of drinking water and that monthly reporting makes 
compliance easier to achieve.
    A comment addressed to EPA stated that the Fort Peck Tribes' 
proposed requirement for monthly and annual injection fluid reports may 
be too stringent, recommending quarterly reporting instead. In 
response, EPA notes that section 302(b)(11) of the Tribal Code 
incorporates the requirements of 40 CFR 144.51, 144.54 and 146.23(b) 
for reporting and monitoring, with certain additional monitoring 
requirements, which EPA finds to be reasonable in helping ensure that 
USDWs are being protected. EPA has determined more frequent monitoring 
and reporting improves the operator's and the Tribes' ability to 
promptly identify problems and reduce the potential for violations.

D. Operating Requirements

    A commenter questioned the need for the requirement to maintain 
pressure gauges on the tubing and annulus. The Fort Peck Tribes 
responded that pressure gauges allowed for agency field inspectors to 
observe instantaneous wellhead pressures, that several operators on the 
Reservation already had such pressure gauges, and that this requirement 
had been developed from protocols used by the State of North Dakota.

E. Financial Responsibility Requirements

    A commenter suggested that a company's size and financial stability 
should be considered in deciding what type of mechanism, if any, to 
require for demonstrating financial integrity. The Fort Peck Tribes 
responded that requiring a surety bond is an easy way to enforce 
financial responsibility, and that a financially sound company should 
have no difficulty securing one. The Tribes also responded that part of 
a company's capability to maintain and operate an injection well safely 
is demonstrated in securing a surety bond. EPA has determined that 
requiring a surety bond prior to well operation is reasonable since it 
eliminates the need to require annual financial statements from a 
company. Review of annual financial statements creates an ongoing 
compliance monitoring workload and creates the potential for associated 
violations for failure to submit such documentation.

F. Mechanical Integrity Requirements

    Two commenters suggested that mechanical integrity tests should be 
run at pressures no higher than 500 psi (according to one commenter) or 
1,000 psi (according to another commenter), instead of up to the 
``maximum permitted injection pressure.'' In response, the Fort Peck 
Tribes said that they would require mechanical integrity tests to be 
run at the higher of: (1) 300 psi above the average operational 
injection pressure; or (2) the highest operational injection pressure 
recorded during the past year. The Tribes also stated that the testing 
pressure required would never be higher than the ``maximum permitted 
injection pressure.'' The Tribes recognized that a ``maximum permitted 
injection pressure'' much higher than actual operating pressures can be 
requested by operators in order to avoid the need for subsequent permit 
modifications. EPA has determined the Tribes' requirement will help 
ensure that mechanical integrity is maintained up to the ``maximum 
permitted injection pressure,'' and that operators should keep this 
requirement in mind when requesting such pressure limits in their 
permits.
    A commenter suggested requiring cement bond logs only in special 
cases. The Fort Peck Tribes replied that this was an important tool in 
determining external mechanical integrity and indicated that some 
States require cement bond logs as a demonstration of mechanical 
integrity.

G. Conflict of Interest

    Some commenters were concerned that the Fort Peck Tribes would not 
only regulate injection wells themselves but also own or operate them. 
They made various suggestions to avoid what they perceived as a 
conflict, such as having the State of Montana regulate all Class II 
wells in Montana, including those on the Reservation, having EPA rather 
than the Tribal court handle appeals for non-Indian operators, and 
having some mediation process for disputes between the Fort Peck Tribes 
and permittees.

[[Page 5475]]

    In response, the Fort Peck Tribes explained that the Tribal Office 
of Environmental Protection, which would administer and enforce the 
Fort Peck Tribes' regulatory Class II program, is a regulatory body 
within the Tribal government separate from the entities within the Fort 
Peck Tribes that own or operate injection wells. The Tribal program 
would be no different from a State UIC program in which one State 
department regulates injection activities but another State department 
maintains mineral holdings. In addition, the Fort Peck Tribes indicated 
that all surface and royalty agreements relating to mineral leasing and 
development on the Reservation are required to be approved by the 
Bureau of Indian Affairs after negotiation by the Fort Peck Tribes. In 
this sense, the Tribal program would be no different from an approved 
State UIC program in which appeals would be heard in State court.
    The Fort Peck Tribes also cited legal authority in support of their 
civil jurisdiction over non-Indians on Reservation land, concluding 
that providing appeals to be heard by a Federal Agency instead of the 
Tribal courts would be inconsistent with the Fort Peck Tribes' 
governmental authority.

H. Permitting Fee

    Some comments addressed to EPA questioned the annual $200 
permitting fees. In response, EPA notes that this fee is intended to 
help the Fort Peck Tribes cover a portion of the anticipated expense 
associated with administering their Class II UIC program. The Fort Peck 
Tribes have estimated annual implementation costs of approximately 
$55,000, which is considerably more than the amount likely covered by 
EPA's UIC grant funds to the Tribes. Other UIC programs, such as the 
program administered by the Montana Board of Oil and Gas Conservation, 
impose a similar fee on Class II well operators. Although the Fort Peck 
Tribes expect that the present injection well fee will help cover 
program administration costs, they will retain the flexibility to raise 
or lower this fee if appropriate.

VII. Other Changes to UIC Regulations

    This proposed rule includes some minor revisions to 40 CFR 147.1 
that are not specific to the Fort Peck Tribes. As a convenience to the 
reader, EPA has included the full text of 40 CFR 147.1 in this 
proposal. However, this proposal solicits comments only on the specific 
amendments proposed, which are: (1) To revise 40 CFR 147.1 to include 
specific references to Tribal programs in light of the fact that EPA is 
proposing in this notice to approve its first Tribal UIC program; and 
(2) to reserve 40 CFR 147.1(f), because it duplicates 40 CFR 9.1. It is 
important and necessary that EPA's regulations codifying approved UIC 
programs account for the fact that such programs may be run by Tribes.

VIII. Generalized Findings

    As described earlier, EPA's proposed decision to approve the Fort 
Peck Tribes to implement a Class II UIC program includes findings that 
the Tribes meet all requirements of section 1451 of the SDWA, including 
that the Tribes have demonstrated adequate jurisdictional authority 
over all Class II injection activities on the Reservation, including 
those conducted by nonmembers. With regard to authority over nonmember 
activities on nonmember-owned fee lands, EPA is proposing to find that 
the Tribes have demonstrated such authority under the test established 
by the United States Supreme Court in Montana v. United States, 450 
U.S. 544 (1981) (Montana test). Under the Montana test, the Supreme 
Court held that absent a Federal grant of authority, Tribes generally 
lack inherent jurisdiction over the activities of nonmembers on 
nonmember-owned fee lands. However, the Court also found that Indian 
Tribes retain inherent sovereign power to exercise civil jurisdiction 
over nonmember activities on nonmember-owned fee lands within the 
reservation where: (1) Nonmembers enter into ``consensual relationships 
with the Tribe or its members, through commercial dealing, contracts, 
leases, or other arrangements'' or (2) ``* * * [nonmember] conduct 
threatens or has some direct effect on the political integrity, the 
economic security or the health or welfare of the Tribe.'' Id. at 565-
66. In analyzing Tribal assertions of inherent authority over nonmember 
activities on Indian reservations, the Supreme Court has reiterated 
that the Montana test remains the relevant standard. See e.g., Strate 
v. A-1 Contractors, 520 U.S. 438, 445 (1997) (describing Montana as 
``the pathmarking case concerning Tribal civil authority over 
nonmembers''); Nevada v. Hicks, 533 U.S. 353, 358 (2001) (``Indian 
Tribes'' regulatory authority over nonmembers is governed by the 
principles set forth in [Montana]'').
    As part of the public record available for review and comment, 
EPA's proposed Decision Document, and Appendix A thereto, sets forth 
the Agency's specific factual findings relating to the Tribes' 
demonstration of inherent authority over the UIC Class II activities of 
nonmembers under the Montana test and, in particular, the potential for 
direct effects of nonmember UIC activities on the Tribes' health, 
welfare, political integrity, and economic security. In addition, EPA 
is proposing the general findings set forth below regarding the effects 
of underground injection activities. These general findings provide a 
foundation for EPA's analysis of the Tribes' assertion of authority 
under the Montana test and, in effect, supplement the Agency's factual 
findings specific to the Tribes and to the Fort Peck Reservation.

A. General Finding on Political, Economic and Human Health and Welfare 
Impacts

    In enacting part C of the SDWA, Congress generally recognized that 
if left unregulated or improperly managed, underground injection wells 
have the potential to cause serious and substantial, harmful impacts on 
political and economic interests and human health and welfare. 
Specifically, as stated in legislative history of the SDWA:

    [U]nderground injection of contaminants is clearly an increasing 
problem. Municipalities are increasingly engaging in underground 
injection of sewage, sludge, and other wastes. Industries are 
injecting chemicals, byproducts, and wastes. Energy production 
companies are using injection techniques to increase production and 
to dispose of unwanted brines brought to the surface during 
production. Even government agencies, including the military, are 
getting rid of difficult to manage waste problems by underground 
disposal methods. Part C is intended to deal with all of the 
foregoing situations insofar as they may endanger underground 
sources of drinking water (USDWs).\1\

    \1\ See H.R. Report No. 93-1185, 93rd Congress, 2nd Session 
(1974), reprinted in ``A Legislative History of the Safe Drinking 
Water Act,'' February, 1982, by the Government Printing Office, 
Serial No. 97-9, page 561.
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    In response to the problem of the substantial risks inherent in 
underground injection activities, Congress enacted section 1421 of the 
SDWA `` to assure that drinking water sources, actual and potential, 
are not rendered unfit for such use by underground injection of 
contaminants.'' \2\
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    \2\ Ibid., page 560.
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    In enacting part C of the SDWA, Congress more specifically found 
that mismanaged underground injection activities could have serious and 
substantial, harmful impacts on the public's economic and political 
interests, as well as its health and welfare. For example, Congress 
found that:

[[Page 5476]]

    Federal air and water pollution control legislation have increased 
the pressure to dispose of waste materials on or below land, frequently 
in ways, such as subsurface injection, which endanger drinking water 
quality. Moreover, the national economy may be expected to be harmed by 
unhealthy drinking water and the illnesses which may result 
therefrom.\3\
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    \3\ Ibid., page 540.
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    Congress specifically noted several economic and political 
consequences that can result from the degradation of good quality 
drinking water supplies, including: (1) Inhibition of interstate 
tourism and travel; (2) loss of economic productivity because of 
absence from employment due to illness; (3) limited ability of a town 
or region to attract workers; and (4) impaired economic growth of a 
town or region, and, ultimately, the nation.\4\
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    \4\ Ibid., page 540.
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    As the Agency charged by Congress with implementing part C of the 
SDWA and assuring implementation of effective UIC programs throughout 
the United States, EPA agrees with these Congressional findings. EPA 
finds that underground injection activities, if not effectively 
regulated, can have serious and substantial, harmful impacts on human 
health, welfare, economic, and political interests. In making this 
finding, EPA recognizes that: (1) The underground injection activities, 
currently regulated as five distinct classes of injection wells as 
defined in the UIC regulations, typically emplace a variety of 
potentially harmful organic and inorganic contaminants (e.g., brines 
and hazardous wastes) into the ground; (2) these injected contaminants 
have the potential to enter USDWs through a variety of migratory 
pathways if injection wells are not properly managed; and (3) once 
present in USDWs, these injected contaminants can have harmful impacts 
on human health and welfare, and political and economic interests, that 
are both serious and substantial.
    In 1980, EPA issued a document entitled, ``Underground Injection 
Control Regulations: Statement of Basis and Purpose,'' which provides 
the rationale for the Agency in proposing specific regulatory controls 
for a variety of underground injection activities. These controls, or 
technical requirements (e.g., testing to ensure the mechanical 
integrity of an injection well), were promulgated to prevent release of 
pollutants through the six primary ``pathways of contamination,'' or 
well-established and recognized ``ways in which fluids can escape the 
well or injection horizon and enter USDWs.'' \5\ EPA has found that 
USDW contamination from one or more of these pathways can occur from 
underground injection activity of all classes (I-V) of injection wells.
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    \5\ ``Underground Injection Control Regulations: Statement of 
Basis and Purpose,'' EPA (May, 1980), page 7.
---------------------------------------------------------------------------

    The six pathways are:
    1. Migration of fluids through a leak in the casing of an injection 
well and directly into a USDW;
    2. Vertical migration of fluids through improperly abandoned and 
improperly completed wells in the vicinity of injection well 
operations;
    3. Direct injection of fluids into or above a USDW;
    4. Upward migration of fluids through the annulus, which is the 
space located between the injection well's casing and the well bore. 
This can occur if there is sufficient injection pressure to push such 
fluid into an overlying USDW;
    5. Migration of fluids from an injection zone through the confining 
strata over or underlying a USDW. This can occur if there is sufficient 
injection pressure to push fluid through a stratum, which is either 
fractured or permeable, and into the adjacent USDW; and
    6. Lateral migration of fluids from within an injection zone into a 
portion of that stratum considered to be a USDW. In this scenario, 
there may be no impermeable layer or other barrier to prevent migration 
of such fluids.\6\
---------------------------------------------------------------------------

    \6\ ``Underground Injection Control Regulations: Statement of 
Basis and Purpose,'' EPA, (May, 1980), pp. 7-17.
---------------------------------------------------------------------------

    Moreover, consistent with EPA's findings, the U.S. Department of 
the Interior has recognized the ability of injection wells to 
contaminate surface waters that are hydrogeologically connected to 
contaminated ground water.\7\ Such contamination of surface waters 
could further cause negative impacts on human health and welfare, and 
economic and political interests.
---------------------------------------------------------------------------

    \7\ See Federal Water Quality Administration's Order COM 5040.10 
(1970), as referred to in H.R. Report No. 93-1185, 561.
---------------------------------------------------------------------------

    In sum, EPA finds that, given the common presence of contaminants 
in injected fluids, serious and substantial contamination of ground 
water and surface water resources can result from improperly regulated 
underground injection activities. Moreover, such contamination has the 
potential to cause correspondingly serious and substantial harm to 
human health and welfare, and political and economic interests. EPA 
also has determined that Congress reached a similar finding when it 
enacted part C of the SDWA, directing EPA to establish UIC programs to 
mitigate and prevent such harm through the proper regulation of 
underground injection activities.

B. General Finding on the Necessity of Protecting Safe Drinking Water 
Supplies as a Necessary Incidence of Self-Government

    Consistent with the finding that improperly managed underground 
injection activities can have direct harmful effects on human health 
and welfare, and economic and political interests that are serious and 
substantial, EPA has determined that proper management of such 
activities serves the purpose of protecting these public health and 
welfare, and political and economic interests, which is a core 
governmental function whose exercise is integral to, and a necessary 
aspect of, self-government. See 56 FR 64876, 64879 (December 12, 1991); 
Montana v. EPA, 137 F.3d 1135, 1140-41 (9th Cir. 1998). EPA has 
determined that Congress reached this conclusion in enacting the SDWA 
and that Congress considered enactment of the SDWA to be a necessary 
act of self-government, serving to protect essential and vital public 
interests by ensuring that the public's essential drinking water 
supplies are safe from contamination, including contamination caused by 
underground injection activities.
    The above findings regarding the effects on public health and 
welfare, and economic and political interests are generally true for 
human beings and their communities, wherever they may be located. EPA 
has determined that the above findings that underground injection 
regulation is an integral and necessary incident of self-government is 
generally true for any Federal, State and/or Tribal government having 
responsibility for protecting public health and welfare. With specific 
relevance to Tribes, EPA has long noted the relationship between proper 
environmental management within Indian country and Tribal self-
government and self-sufficiency. Moreover, in the 1984 EPA Policy for 
the Administration of Environmental Programs on Indian Reservations, 
EPA determined that as part of the ``principle of Indian self-
government,'' Tribal governments are the ``appropriate non-Federal 
parties for making decisions and carrying out program responsibilities 
affecting Indian reservations, their environments, and the health and 
welfare of the reservation populace,'' consistent with Agency standards 
and regulations. (EPA Policy for the Administration of Environmental 
Programs on Indian Reservations,

[[Page 5477]]

Paragraph 2, November 8, 1984). EPA interprets section 1451 of the 
SDWA, in providing for the approval of Tribal programs under the Act, 
as authorizing eligible Tribes to assume a primary role in protecting 
drinking water sources. These general findings provide a backdrop for 
EPA's legal analysis of the Fort Peck Tribes' Application and, in 
effect, supplement EPA's factual findings specific to the Fort Peck 
Tribes and to the Fort Peck Reservation, contained in the proposed 
Decision Document and Appendix A thereto, and the Fort Peck Tribes' 
similar conclusions, contained in their Application, pertaining 
specifically to the Fort Peck Tribes and the Fort Peck Reservation.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the EO.
    The Class II injection wells the Tribes propose to regulate are 
currently subject to EPA's regulatory program as described in 40 CFR 
part 147, subpart BB. Additionally, the Tribes' proposed program is, in 
many respects, identical to, and in some respects, more stringent than, 
EPA's program.

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. 
EPA has determined that there is no need for an Information Collection 
Request under the Paperwork Reduction Act because this proposed rule 
would not impose any new Federal reporting or record-keeping 
requirements. Reporting or record-keeping requirements would be based 
on the Tribal Code, and the Fort Peck Tribes are not subject to the 
Paperwork Reduction Act.
    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 in 40 CFR are listed in 40 CFR part 9.

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 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business that 
is primarily engaged in crude petroleum and natural gas extraction as 
defined by NAICS Code 211111 according to Small Business Administration 
size standards for entities employing fewer than 500 employees; (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities directly regulated by this proposed rule are owners or 
operators of Class II wells, employing fewer than 500 employees. We 
have determined that less than 7 small entities will experience an 
impact of greater than 1% of annual revenues. These entities would be 
subject to requirements substantially similar to the existing 
requirements of EPA's program under 40 CFR 147.1351(a) and would not 
incur significant new costs as a result of this proposed rule. For 
example, the Tribes propose to charge an annual $200 permitting fee for 
each Class II well on the Reservation. While this will impose a new 
cost on a small entity, this cost will not have a significant economic 
impact on a substantial number of small entities due to the few small 
entities owning/operating the 23 Class II wells on the Reservation. 
Moreover, in approving State UIC programs imposing similar fees on a 
greater number of small entities, EPA determined that these new costs 
did not have a significant economic impact on a substantial number of 
small entities.
    Although this proposed rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of this rule on small entities. The Fort 
Peck Tribes' program is more stringent than the existing Federal 
program in certain respects. For example, unlike the existing Federal 
program, the Fort Peck Tribes' program requires permits for all Class 
II wells, with no provision for authorization by rule. (See section 
202(c) of the Tribal Code.) However, because all Class II wells now in 
operation on the Reservation currently hold EPA permits, this more 
stringent requirement will not impose a significant economic impact on 
the owners or operators of these wells. Other requirements in the Fort 
Peck Tribes' program that are more stringent than the existing Federal 
program are identified in the proposed Decision Document available for 
public review and comment and are mostly minor observation, recording, 
and reporting requirements. These requirements also will not impose a 
significant economic effect on the owners or operators of these wells.
    We continue to be interested in any potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to any such impacts.

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

[[Page 5478]]

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.
    This proposed 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. EPA's proposed approval of the Fort Peck Tribes' 
program would not constitute a ``Federal mandate'' because there is no 
requirement that Tribes establish UIC regulatory programs and because 
the program, if finally approved, will be a Tribal, rather than a 
Federal program. Thus, this proposed rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    For the same reason, EPA has determined that this proposed rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. Thus, this proposed rule is not 
subject to the requirements of section 203 of the 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 States, on the relationship between the national government 
and States, or on the distribution of power and responsibilities among 
the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. If finalized, the proposed rule 
would merely put in place a Tribal regulatory program that is identical 
in many respects to the existing federal program and more stringent in 
certain respects, as explained in more detail in the proposed Decision 
Document. EPA will continue to administer its Class I, III, IV, and V 
UIC programs on the Reservation. Authorizing the Fort Peck Tribes to 
administer the Class II program will not substantially alter the 
distribution of power and responsibilities among levels of government 
or significantly change EPA's relationship with Montana. The 
substitution of a Tribal Class II program in place of an EPA-
administered Class II program on the Fort Peck Reservation will impose 
no additional costs on the State of Montana. Thus, Executive Order 
13132 does not apply to this rule.
    In the spirit of Executive Order 13132, EPA specifically solicits 
comment on this 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 9, 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.''
    EPA has concluded that this proposed rule will have Tribal 
implications. However, it will neither impose substantial direct 
compliance costs on Tribal governments, nor preempt Tribal law. The 
Fort Peck Tribes have voluntarily requested EPA authorization to 
administer their own Class II UIC program and have voluntarily assumed 
the Tribal share of the costs for doing so. Additionally, EPA is 
proposing to approve the Tribes' application for UIC Class II primacy 
and thus replace the existing Federal UIC Class II program for the Fort 
Peck Indian Reservation with a Tribal program administered pursuant to 
the laws of the Fort Peck Tribes. Thus, the requirements of sections 
5(b) and 5(c) of the Executive Order do not apply to this proposed 
rule.
    EPA consulted with Tribal officials early in the process of 
developing this regulation to permit them to have meaningful and timely 
input into its development. (See section IV, V, and VI for more 
information.)
    In the spirit of Executive Order 13175, EPA specifically solicits 
additional comment on this proposed rule from Tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks & Safety Risks'' (62 FR 19885, April 23, 1997) applies to 
any rule that: (1) Is determined to be economically significant as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
it is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. The proposed Fort Peck Tribes' Class 
II UIC program is more stringent than the existing federal program; the 
Tribal program requirements have been established to prevent 
underground injection activities that endanger underground sources of 
drinking water (USDWs). The Fort Peck Tribal Executive Board has 
formally adopted underground injection control provisions in the Tribal 
Code in their program to safeguard these resources for all potential 
users, including but not limited to children.

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

    This proposed 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.

[[Page 5479]]

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 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.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
decrease the level of protection provided to human health or the 
environment or lessen current environmental standards. If finalized, 
this proposed rule would put in place a Tribal regulatory program that 
is more stringent than the federal program and, therefore, would 
increase the level of protection. For example, unlike the existing 
federal program, the Fort Peck Tribes' program requires permits for all 
Class II wells, with no provision for authorization by rule. Moreover, 
in proposing to approve the Tribes' own Class II program, EPA is 
enhancing the Tribes' ability to determine its own UIC affairs on its 
Reservation.

List of Subjects in 40 CFR Part 147

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

    Dated: November 16, 2007.
Robert E. Roberts,
Regional Administrator, U.S. EPA Region 8.

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

PART 147--STATE, TRIBAL, AND EPA-ADMINISTERED UNDERGROUND INJECTION 
CONTROL PROGRAMS

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

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

    2. Part 147 heading is revised as set forth above.

Subpart A--[Amended]

    3. Section 147.1 is revised to read as follows:


Sec.  147.1  Purpose and scope.

    (a) This part sets forth the applicable Underground Injection 
Control (UIC) programs for each of the States, territories, and 
possessions identified pursuant to the Safe Drinking Water Act (SDWA) 
as needing a UIC program, including any Indian country geographically 
located within those States, territories, and possessions.
    (b) The applicable UIC programs set forth in this part may be 
State-administered programs approved by EPA, Tribally-administered 
programs approved by EPA, or Federally-administered programs 
promulgated by EPA. In some cases, the applicable UIC program for a 
particular area may consist of a State-administered or Tribally-
administered program applicable to some classes of wells and a 
Federally-administered program applicable to other classes of wells. 
Approval of a State or Tribal program is based upon a determination by 
the Administrator that the program meets the requirements of section 
1422 or section 1425 of the SDWA, any other applicable provisions of 
this subpart, and the applicable provisions of 40 CFR parts 124, 144, 
145 and 146. A Federally-administered program is promulgated in those 
instances where the State or Tribe has not submitted any program for 
approval or where the submitted program does not meet the minimum 
Federal statutory and regulatory requirements.
    (c) In the case of each State or Tribal program approved by EPA 
pursuant to section 1422 of the SDWA, the relevant subpart describes 
the major elements of that program, including the relevant State or 
Tribal statutes and regulations, the Statement(s) of Legal Authority, 
the Memorandum of Agreement, and the Program Description. State or 
Tribal statutes and regulations that contain standards, requirements, 
and procedures applicable to owners or operators have been incorporated 
by reference pursuant to regulations of the Office of the Federal 
Register. Material incorporated by reference is available for 
inspection in the appropriate EPA Regional office, in EPA Headquarters, 
and at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call (202) 
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Other State or Tribal 
statutes and regulations containing standards and procedures that 
constitute elements of a State or Tribal program but do not apply 
directly to owners or operators have been listed but have not been 
incorporated by reference.
    (d) In the case of any program promulgated under section 1422 for a 
State or Tribe that is to be administered by EPA, the relevant State or 
Tribal subpart makes applicable the provisions of 40 CFR parts 124, 
144, 146, and 148, and any other additional requirements pertinent to 
the specific State or Tribal program.
    (e) Regulatory provisions incorporated by reference (in the case of 
approved State or Tribal programs) or promulgated by EPA (in the case 
of EPA-administered programs), and all permit conditions or permit 
denials issued pursuant to such regulations, are enforceable by the 
Administrator pursuant to section 1423 of the SDWA.
    (f) [Reserved].

Subpart BB--[Amended]

    4. Section 147.1351 is amended by revising the first sentence of 
paragraph (a) and by revising paragraph (b) to read as follows:


Sec.  147.1351  EPA-administered program.

    (a) Contents. The UIC program in the State of Montana for Class I, 
III, IV, and V wells, and for all Classes of wells in Indian country in 
Montana, except for Class II wells on all lands within the exterior 
boundaries of the Fort Peck Indian Reservation, is administered by EPA. 
* * *

[[Page 5480]]

    (b) Effective dates. The effective date for the UIC program for 
Class I, III, IV, and V wells for all lands in Montana, including all 
Indian country in Montana, and for Class II wells for all Indian 
country in Montana other than the Fort Peck Indian Reservation, is June 
25, 1984. The effective date for the EPA-approved State-administered 
UIC Class II program for all lands in Montana, except for those in 
Indian country, is provided in Sec.  147.1350.
    5. Subpart JJJ is added to read as follows:

Subpart JJJ--Assiniboine and Sioux Tribes


Sec.  147.3200  Fort Peck Indian Reservation: Assiniboine & Sioux 
Tribes--Class II wells.

    The UIC program for Class II injection wells on all lands within 
the exterior boundaries of the Fort Peck Indian Reservation is the 
program administered by the Assiniboine and Sioux (Fort Peck) Tribes 
approved by EPA pursuant to section 1425 of the SDWA. Notice of this 
approval was published in the Federal Register on [DATE OF FINAL RULE 
PUBLICATION]; the effective date of this program is [DATE OF FINAL RULE 
PUBLICATION]. This program consists of the following elements as 
submitted to EPA in the Fort Peck Tribes' program application:
    (a) Incorporation by Reference. The requirements set forth in the 
Fort Peck Tribes' statutes, regulations, and resolutions cited in this 
paragraph are hereby incorporated by reference and made part of the 
applicable UIC program under the SDWA for the Fort Peck Indian 
Reservation. This incorporation by reference was approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. Copies may be obtained or inspected at the Fort Peck 
Tribal Offices, 605 Indian Avenue, Poplar, Montana 59255, at the 
Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (1) Tribal Code. Provisions of the Tribal Code listed in Appendix A 
to this Subpart.
    (2) Tribal Government Resolution No. 1106-92-6.
    (b) Memorandum of Agreement (MOA). The MOA between EPA and the Fort 
Peck Tribes signed by EPA on July 31, 2007.
    (c) Statements of legal authority. Letters to EPA from Sonosky, 
Chambers, Sachse, Endreson & Perry, dated September 4, 2003 (attaching 
a June 17, 2002 letter), March 27, 2001, July 19, 1999, March 13, 1995, 
March 16, 1994, November 4, 1992, July 14, 1989, and April 13, 1989, 
and letters submitted as part of the Fort Peck Tribes' application.
    (d) Program Description. The Program Description submitted as part 
of the Fort Peck Tribes' application, and any other materials submitted 
as part of the application or as a supplement to it.

Appendix A to Subpart JJJ of Part 147--Fort Peck Tribal Requirements 
Incorporated by Reference in Subpart JJJ of Part 147 of the Code of 
Federal Regulations

    The following is an informational listing of Fort Peck Tribal 
requirements incorporated by reference in Subpart JJJ of part 147 of 
the Code of Federal Regulations:

Fort Peck Assiniboine and Sioux Tribes

    (a) The statutory provisions include portions of the following 
insofar as they pertain to Class II injection wells:
    Fort Peck Assiniboine and Sioux Tribal Underground Injection 
Control Code, adopted June 1999, Title 18:

Chapter 1. General Provisions
    Section 101. Purposes.
    Section 102. Administration.
    Section 103. Regulations, Criteria, and Standards.
    Section 104. Definitions.
    Section 105. Application.
Chapter 2. General Underground Injection Control Program 
Requirements
    Section 201. Introduction.
    Section 202. Requirements.
Chapter 3. Underground Injection Control Permit Requirements
    Section 301. Introduction.
    Section 302. Requirements.
Chapter 4. UIC Permitting Procedures
    Section 401. Introduction.
    Section 402. Requirements.
Chapter 5. UIC Technical Criteria and Standards
    Section 501. Introduction.
    Section 502. Requirements.
    Section 503. Additional Requirements.
Chapter 6. Enforcement
    Section 601. Requirements for Compliance Evaluation Programs.
    Section 602. Administrative Enforcement.
    Section 603. Administrative Penalties.
    Section 604. Civil Penalties.
    Section 605. Criminal Violations.
    Section 606. Judicial Relief.
    Section 607. Public Participation in Office of Environmental 
Protection Enforcement Process.
Chapter 7. Appeals
    Section 701. Judicial Review.
Chapter 8. Public Hearings
    Section 801. Public Hearings.
Chapter 9. Miscellaneous
    Section 901. Savings.
    Section 902. Effective Date.

    (b) The provisions of Tribal Government Resolution Number 1106-
92-6, adopted June 22, 1992, insofar as this resolution prohibits 
injection by Class II wells into the Judith River formation.

 [FR Doc. E8-1667 Filed 1-29-08; 8:45 am]
BILLING CODE 6560-50-P