[Federal Register Volume 73, Number 80 (Thursday, April 24, 2008)]
[Proposed Rules]
[Pages 22111-22120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8961]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-R09-OW-2007-0248; FRL-8556-9]


Navajo Nation; Underground Injection Control (UIC) Program; 
Proposed Primacy Approval and Minor Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve an application from the Navajo Nation (``Tribe'') under Section 
1425 of the Safe Drinking Water Act (SDWA) for primary enforcement 
responsibility (or ``primacy'') for the underground injection control 
(UIC) program for Class II (oil and gas-related) injection wells 
located: within the exterior boundaries of the formal Navajo 
Reservation, including the three satellite reservations (Alamo, 
Canoncito and Ramah), but excluding the former Bennett Freeze Area, the 
Four Corners Power Plant and the Navajo Generating Station; and on 
Navajo Nation tribal trust and allotted lands outside the exterior 
boundaries of the formal Navajo Reservation. (These areas are 
collectively referred to hereinafter as ``areas covered by the Tribe's 
Primacy Application.'') EPA would continue to administer its SDWA UIC 
program for any Class I, III, IV, and V wells on Navajo Indian lands 
(defined as Indian country in EPA UIC regulations; see definition of 
``Indian lands''). EPA is also proposing minor revisions to regulations 
that are not specific to the Navajo Nation's application. EPA requests 
public comment on this proposed rule, the Navajo Nation's application, 
and EPA's supporting documentation, and will consider all comments 
received within the public comment period before taking final action.

DATES: The public may submit written comments to the EPA through the 
end of the comment period on May 27, 2008. EPA will schedule a public 
hearing, unless insufficient interest is expressed during the public 
comment period. Any such public hearing will be held no earlier than 30 
days after EPA provides notice of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OW-2007-0248, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected]
     Fax: 415-947-3549
     Mail: Environmental Protection Agency, Ground Water Office 
(WTR-9), 75 Hawthorne Street, San Francisco, CA 94105-3920
     Hand Delivery: Deliver your comments to Kate Rao, 
Environmental Protection Agency, Ground Water Office (WTR-9), 75 
Hawthorne Street, San Francisco, CA 94105-3920, Attention Docket ID No. 
EPA-R09-OW-2007-0248. Such deliveries are only accepted during the 
Docket's normal hours of operation: Monday through Friday, between 8:00 
am and 4:00 p.m., Pacific time, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R09-OW-
2007-0248. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information the disclosure of which 
is restricted by statute. Do not submit information through 
www.regulations.gov or e-mail that you consider to be CBI or otherwise 
protected by statute. The 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 to EPA without 
going through 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 or any form of encryption, and should be 
free of any defects or viruses. For additional information about EPA's 
public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the docket index, some 
information is not publicly available, e.g., CBI or other information 
the disclosure of which 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 www.regulations.gov or in hard copy at the U.S. 
Environmental Protection Agency, Ground Water Office (WTR-9), 75 
Hawthorne Street, San Francisco, CA 94105-3920. This Docket Facility is 
open Monday through Friday, between 8:00 am and 4:00 p.m., Pacific time 
excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Kate Rao, U.S. Environmental 
Protection Agency, Ground Water Office (WTR-9), 75 Hawthorne Street, 
San Francisco, CA 94105-3920. Phone number: 415-972-3533. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities

[[Page 22112]]



------------------------------------------------------------------------
                                                          North American
                                 Examples of potentially     Industry
            Category                regulated entities    Classification
                                                              System
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State, Local, and Tribal         State, local, and                924110
 Governments.                     tribal governments
                                  that own and operate
                                  Class II injection
                                  wells in the areas
                                  covered by the Tribe's
                                  Primacy Application.
Industry.......................  Private owners and               221310
                                  operators of Class II
                                  injection wells in the
                                  areas covered by the
                                  Tribe's Primacy
                                  Application.
Municipalities.................  Municipal owners and             924110
                                  operators of Class II
                                  injection wells in the
                                  areas covered by the
                                  Tribe's Primacy
                                  Application.
------------------------------------------------------------------------

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 be potentially 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 CBI to EPA through 
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--EPA 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 provide 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 Navajo Nation has applied to the EPA under Section 1425 of the 
SDWA, 42 U.S.C. Section 300h-4, for primary enforcement responsibility 
for the SDWA Class II (oil and gas-related) UIC program in the areas 
covered by the Tribe's Primacy Application. EPA's proposal is based on 
a careful and extensive legal and technical review of the Tribe's 
application. As a result of this review, EPA is issuing a proposed 
determination that the Tribe meets all requirements of Section 1451 of 
the SDWA, including the requirement that the Tribe demonstrate adequate 
jurisdictional authority over all Class II injection activities in the 
areas covered by the Tribe's Primacy Application, including those 
activities conducted by nonmembers. EPA has also determined that the 
Tribe's program meets all applicable requirements for approval under 
SDWA Section 1425, and that the Tribe is capable of administering an 
effective Class II UIC program in a manner consistent with the terms 
and purposes of the SDWA and all applicable regulations.

III. Legal Authorities

    These regulations are being proposed under authority of Sections 
1422, 1425, 1450 and 1451 of the SDWA, 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 primacy for UIC programs under Section 1422 of 
the SDWA, EPA has promulgated regulations setting forth the applicable 
procedures and substantive requirements. These regulations are codified 
in the Code of Federal Regulations (40 CFR part 145). They include 
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.
    Section 1425 of the SDWA describes alternative requirements for 
States to obtain primacy for UIC programs that relate solely to Class 
II wells. Section 1425 allows a State, in lieu of the showing required 
under SDWA Section 1422(b)(1)(A), to demonstrate that its proposed 
Class II UIC program meets the minimum requirements of SDWA Sections 
1421(b)(1)(A)-(D), and represents an ``effective program (including 
adequate recordkeeping and reporting) to prevent underground injection 
which endangers drinking water sources.'' EPA published interim 
guidance entitled ``Guidance for State Submissions Under Section 1425 
of the Safe Drinking Water Act, Ground Water Program Guidance 
19'' (Guidance 19) in the Federal Register (46 FR 27333-27339, 
May 19, 1981) which sets forth the criteria EPA generally considers in 
evaluating applications under SDWA Section 1425.

B. Tribal UIC Programs--Tribal Eligibility Requirements

    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 delegating primary enforcement responsibility for 
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

[[Page 22113]]

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.
    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 the EPA's 
May 19, 1981 interim guidance to ``State'' programs are also construed 
to include eligible ``tribal'' programs. (See also 40 CFR Section 
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. The Navajo Nation's Application

A. Background

    On October 18, 2001, the Navajo Nation submitted an initial 
application for primacy for its UIC program for Class II wells. On 
January 30, 2002, the EPA notified the Navajo Nation that its 
application required revision, clarification and additional 
documentation. The Tribe has provided various supplemental application 
materials to EPA. In February 2004, the Navajo Nation sent EPA a letter 
clarifying that it was requesting primacy under Section 1425 of the 
SDWA. The Tribe amended its underground injection control regulations, 
and, in 2006, submitted the final outstanding components of its primacy 
application to EPA. Subsequently, in 2007, as an addendum to its 
primacy application, the Tribe submitted several Navajo Nation Class II 
UIC permits that it had issued pursuant to its authority under tribal 
laws and regulations. The materials described above are collectively 
referred to hereinafter as the Tribe's ``Primacy Application,'' and are 
described in detail in EPA's Proposed Decision Document for this 
action.

B. Public Comments Received by the Navajo Nation

    Pursuant to 40 CFR Section 145.31, on August 16, 2001, the Navajo 
Nation published a public notice of its intent to apply for primacy for 
the UIC program for Class II wells in both the Farmington Daily Times 
and the Navajo Times and, on September 17, 2001, the Tribe held a 
public hearing in Shiprock, New Mexico. The Tribe received two requests 
for copies of its primacy application and received one comment.
    The one comment received was from the Arizona Public Service (APS) 
Company, which stated that the Navajo Nation's assertion of 
jurisdiction in the primacy application did not contain any exclusion 
for the Four Corners Power Plant. APS requested that the jurisdictional 
statement be revised to clarify that the Navajo Nation is not intending 
to address or resolve in its UIC primacy application the question of 
whether the Tribe may regulate any aspect of operations at the Four 
Corners Power Plant. The Navajo Nation agreed with the comment and 
added the following phrase to the jurisdictional statement: The Navajo 
Nation also requests EPA to refrain from making a jurisdictional 
finding regarding the Four Corners Power Plant and the Navajo 
Generating Station, since the Navajo Nation and the owners and 
operators of the power plants are in the middle of negotiations to 
address jurisdictional issues regarding the plants. EPA believes that 
this revision to the jurisdictional statement fully addresses the 
comment received. Because the Tribe has requested that EPA exclude 
these two facilities from its determination at this time, EPA is not 
proposing to make a jurisdictional finding with respect to these two 
facilities at this time, and EPA will continue to administer the Class 
II UIC program for these two facilities as it does for other areas for 
which it retains primacy for the Class II program.
    Additionally in July 2006, the Navajo Nation ran a public notice in 
the Farmington Daily Times and on the Navajo/English radio station 
announcing its proposed revisions to the Navajo Nation Class II UIC 
Regulations. No comments were received.

V. EPA's Proposed Action

A. Overview of EPA's Proposed Action

    EPA is proposing to approve the Navajo Nation's application for 
primacy for the SDWA Class II UIC program in the areas covered by the 
Tribe's Primacy Application. If EPA approves the Navajo Nation's 
application, the Navajo Nation would assume primary enforcement 
authority for regulating all Class II injection activities in the areas 
covered by the Tribe's Primacy Application. Indian Tribes are precluded 
under Federal Indian law, however, from pursuing criminal enforcement 
as follows: (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. Section 1302). For this reason, EPA has entered into a 
Criminal Enforcement Memorandum of Agreement with the Tribe (signed by 
EPA on October 30, 2006) whereby the Tribe will notify EPA of potential 
criminal violations of its SDWA Class II UIC program. See 40 CFR 
145.13(e).
    EPA has prepared a Proposed Decision Document in support of its 
action. This document is part of the public record and is now available 
for public review and comment. The Proposed Decision Document includes 
findings that the Navajo Nation meets all eligibility requirements of 
Section 1451 of the SDWA and its implementing regulations at 40 CFR 
part 145, Subpart E. The Proposed Decision Document also finds that the 
Navajo Nation's Class II UIC program meets all applicable requirements 
for approval under Section 1425 of the SDWA.
    If approved as proposed, the Navajo Nation would administer and 
enforce its Class II UIC program with respect to all Class II injection 
wells in the areas covered by the Tribe's Primacy Application. Upon 
approving the Navajo Nation's Class II program, EPA would amend 40 CFR 
part 147 as proposed in this notice to revise the references to the 
EPA-administered program for Class II injection wells in the areas 
covered by the Tribe's Primacy Application to refer to the Navajo 
Nation's Class II UIC program. EPA would continue to administer its 
SDWA UIC program for any Class I, III, IV, and V wells on Navajo Indian 
lands (defined as Indian country in EPA UIC regulations; see definition 
of ``Indian lands'' at 40 CFR 144.3). (Although the Navajo Nation UIC 
Regulations prohibit injection in Class I and IV wells, these 
prohibitions are separate from, and not within the scope of, the Class 
II UIC program for which EPA today proposes to approve the Tribe's 
application for primacy.) As noted above, EPA also maintains criminal 
enforcement authority for violations of Class II UIC requirements, 
including violations by non-Indians on Navajo Indian lands, and by 
Indians on Navajo Indian lands 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 Navajo Nation's administration of the SDWA 
Class II UIC program in the areas covered by the Tribe's Primacy 
Application. 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 Navajo Nation (signed by EPA on August 
21, 2001) provides EPA with the opportunity to review and

[[Page 22114]]

comment on all permits and, where applicable, object.

B. Permit Transfer

    As part of this proposed program approval, EPA evaluated the 
existing Federal and Tribal UIC Class II permitting matrix in the areas 
covered by the Tribe's Primacy Application, which can be summarized 
into four categories: (1) Wells with both Navajo Nation- and EPA-issued 
permits; (2) wells with EPA-issued permits only; (3) wells with Navajo 
Nation-issued permits only (Federally authorized by rule); and (4) 
wells without permits (authorized by rule). Below is a discussion on 
how each category of wells would be affected if EPA were to grant 
primacy to the Navajo Nation for its SDWA Class II UIC program.
    Wells with both Navajo Nation- and EPA-issued permits: The Navajo 
Nation UIC Program has issued 18 Navajo Nation UIC permits to date for 
Class II UIC wells pursuant to its authority under Tribal laws and 
regulations. A number of these facilities are also subject to EPA-
issued Class II UIC permits. EPA conducted a thorough review of each of 
the existing Navajo Nation-issued UIC permits and verified that each 
meets the substantive permitting requirements of the Navajo Nation's 
proposed program and that those requirements are at least as stringent 
as Federal permitting requirements. EPA also confirmed that each of the 
Navajo Nation's permits was issued pursuant to the Tribe's procedural 
regulations for permit issuance and that those procedural regulations 
are at least as stringent as the provisions of 40 CFR part 124. EPA 
considers these Navajo Nation-issued permits to be part of the existing 
Navajo Nation UIC program for which the Navajo Nation is seeking 
primacy. EPA is proposing that, after authorization of primacy, the 
pre-existing Navajo Nation-issued UIC permits would remain in effect as 
the federally-enforceable UIC permits under the SDWA. Descriptions of 
the 18 permits are available for review and comment in the Decision 
Document, Appendix B, which can be accessed in EPA's Docket No. EPA-
R09-OW-2007-0248.
    In contrast, the EPA-issued permits include provisions stating that 
the permits ``will expire upon authorization of primary enforcement 
responsibility'' to the Navajo Nation, unless the Navajo Nation ``has 
the appropriate authority and chooses to adopt and enforce this permit 
as a Tribal permit.'' Although the Navajo Nation has this authority, it 
has not chosen to adopt and enforce EPA-issued permits for wells which 
the Navajo Nation has also permitted. Thus, the EPA-issued permits for 
wells in this category would expire upon authorization of primacy.
    EPA-issued permits only: Pursuant to its authority, the Navajo 
Nation chose to adopt and enforce these EPA-issued permits as Tribal 
permits. The Navajo Nation would administer EPA's permits for wells in 
this category until Navajo Nation UIC permits are issued.
    Navajo Nation-issued permits only: As with the wells with both 
Navajo Nation- and EPA-issued permits, these pre-existing Tribal UIC 
permits would remain in effect as the Federally-enforceable UIC permits 
under the SDWA.
    Wells not currently permitted by EPA or the Tribe: These wells are 
currently authorized to operate by rule. The Navajo Nation, in its UIC 
Regulations, has adopted by reference the Federal authorization by rule 
regulations that will apply until the Tribe issues UIC permits for 
these wells. After the authorization of primacy to the Navajo Nation, 
these wells would continue to operate by rule authorization. A more in-
depth discussion of the proposed permit transfer process is contained 
in the Proposed Decision Document available in the EPA docket.

C. EPA's Proposed Findings Regarding Tribal Eligibility

    Under Section 1451 of SDWA and 40 CFR part 145, Subpart E, EPA is 
authorized to treat Indian Tribes similarly to States and may approve a 
Tribe's application for primary enforcement authority for the UIC 
Program. EPA's proposed decision to approve the Navajo Nation's 
application for primacy for the Class II UIC program incorporates 
findings that the Tribe meets all the requirements of Section 1451 of 
the SDWA, including the proposed finding that the Tribe has 
demonstrated adequate jurisdictional authority over all Class II 
injection activities in the areas covered by the Tribe's Primacy 
Application. EPA's Proposed Decision Document describes in detail EPA's 
analysis supporting its findings and decision.

D. EPA's Determination Regarding SDWA Section 1425 and Guidance 19

    As described above, the Navajo Nation has requested primacy for the 
Class II UIC program authorized under Section 1425 of the SDWA, which 
allows States and eligible Tribes, in lieu of the showing required 
under SDWA Section 1422(b)(1)(A), to demonstrate that their Class II 
UIC programs meet the requirements of SDWA Sections 1421(b)(1)(A)-(D), 
and represent an ``effective program [including adequate recordkeeping 
and reporting] to prevent underground injection which endangers 
drinking water sources.'' EPA has evaluated the Tribe's SDWA Section 
1425 primacy application pursuant to the criteria in Guidance 19 (see 
discussion of Guidance 19 in Section III.A).
    As explained in detail in EPA's Proposed Decision Document, EPA has 
determined that the Navajo Nation's SDWA Class II UIC program meets the 
requirements of SDWA Section 1425 and represents an effective program 
to prevent underground injection which endangers drinking water 
sources. The Tribe's program is ``effective'' as that term is discussed 
in Guidance 19, and has many of the same (or somewhat more stringent) 
components as the Federal UIC regulations at 40 CFR parts 124, 144, 
145, 146 and 147. In addition, Navajo Nation UIC program personnel 
currently issue UIC permits which are reviewed by EPA staff, support 
EPA annual reporting, participate in enforcement actions, and conduct 
various inspections for verification of compliance with UIC 
requirements. In sum, EPA believes that the Navajo Nation's Primacy 
Application and the Tribe's current administration of the Navajo Nation 
Class II UIC program demonstrates that the Tribe has the legal 
authority, as well as the technical and administrative capacity, to 
administer an effective UIC Program that prevents underground injection 
from endangering drinking water sources, consistent with the 
requirements of SDWA Section 1425.

VI. Generalized Findings

    As described earlier, EPA's proposed decision to approve the Navajo 
Nation to implement a Class II UIC program includes findings that the 
Tribe meets all requirements of Section 1451 of the SDWA, including 
that the Tribe has demonstrated adequate jurisdictional authority over 
all Class II injection activities in the areas covered by the Tribe's 
Primacy Application, including those conducted by nonmembers. With 
regard to authority over nonmember activities on nonmember-owned fee 
lands, EPA is proposing to find that the Tribe has 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

[[Page 22115]]

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 in 
EPA's Docket, EPA's Proposed Decision Document, and Appendix A thereto, 
sets forth the Agency's specific factual findings relating to the 
Tribe's 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 Tribe's 
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 Tribe's 
assertion of authority under the Montana test and, in effect, 
supplement the Agency's factual findings specific to the Tribe and to 
the areas covered by the Tribe's Primacy Application.

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.

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\
---------------------------------------------------------------------------

    \2\ Id., page 560.
---------------------------------------------------------------------------

    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:

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\ Id., page 540.

    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\
---------------------------------------------------------------------------

    \4\ Id., page 540.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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

[[Page 22116]]

    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\ Id., 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 minimum 
requirements for effective 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 Incident 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, 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 the water 
quality protection functions authorized by SDWA to be important 
governmental functions 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, 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 Navajo Tribe's Application and, in effect, supplement EPA's factual 
findings specific to the Navajo Tribe and the areas covered by the 
Tribe's Application contained in the Proposed Decision Document and 
Appendix A thereto, and the Tribe's similar conclusions, contained in 
its Application, pertaining specifically to the Navajo Tribe and areas 
covered by its Primacy Application.

VII. 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.

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 for this action 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 Navajo Nation UIC Regulations, and the Navajo Nation is 
not subject to the Paperwork Reduction Act.
    However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations (40 CFR Sec.  144-148) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2040-0042. 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 today's proposed rule on 
small entities, a ``small entity'' is defined as: (1) A small business 
that is defined in the Small Business Administration's regulations at 
13 CFR 121.201; (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 today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Under this 
proposed rule, entities operating existing Class II wells would be 
subject to requirements substantially similar to the existing 
requirements of the EPA's program under 40 CFR 147.3000, and will not

[[Page 22117]]

incur significant new costs as a result of this proposed rule.
    Nonetheless, EPA continues to be interested in any potential 
impacts of the proposed rule on small entities and welcomes comments on 
issues related to any such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and to 
adopt the least costly, most cost-effective or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least costly, most cost-effective or least burdensome 
alternative if the Administrator publishes with the final rule an 
explanation as to why that alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's 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 Navajo Nation's Class II 
UIC 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, would be a tribal, rather 
than a Federal program. Thus, today's 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, today's 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 the States, or on the distribution of power and responsibilities 
among the various levels of government.''
    EPA has determined that 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 simply provide that the Tribe has 
primary enforcement responsibility under the SDWA for the Class II UIC 
program, pursuant to which the Tribe would be implementing and 
enforcing a tribal regulatory program that is generally equivalent to 
the existing Federal program, as explained in more detail in Section V 
and in the Proposed Decision Document. The EPA will continue to 
administer the Federal Class I, III, IV, and V UIC programs on Navajo 
Indian lands. Authorizing the Navajo Nation as the primacy agency for 
the Class II UIC program in the areas covered by the Tribe's Primacy 
Application will not substantially alter the distribution of power and 
responsibilities among levels of government or significantly change 
EPA's relationship with the relevant States. The substitution of a 
Navajo Nation Class II program for an EPA-administered Class II program 
in the areas covered by the Tribe's Primacy Application will impose no 
additional costs on the States of Arizona, Utah or New Mexico. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA's 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. 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 the tribal government, nor preempt tribal law. The 
Navajo Nation has voluntarily requested authorization for primary 
enforcement responsibility for the Class II UIC program and has 
voluntarily assumed the Tribal share of the costs for doing so. 
Additionally, EPA is proposing to approve the Navajo Nation's 
application for Class II UIC primacy and thus replace the existing 
Federal Class II UIC program in the areas covered by the Tribe's 
Primacy Application with a Tribal program administered pursuant to the 
laws of the Navajo Nation. Thus, the requirements of sections 5(b) and 
5(c) of the Executive Order do not apply to this proposed rule.
    Consistent with EPA policy, EPA nonetheless consulted with Tribal 
officials early in the process of developing this regulation to permit 
them to have meaningful and timely input into its development. Since 
awarding the first developmental grant to the Navajo Nation in fiscal 
year 1995 for developing capacity to assume the Class II UIC program, 
EPA has consulted and worked closely with the Tribe in the 
administration of these funds and in the development of the Tribe's 
regulatory program.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and Tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
Tribal officials.

[[Page 22118]]

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 the Executive Order because it 
is not economically ``significant'' as defined in the Executive Order 
12866. If finalized, the proposed rule would simply provide that the 
Tribe has primary enforcement responsibility under the SDWA for the 
Class II UIC program, pursuant to which the Tribe would be implementing 
and enforcing a tribal regulatory program that is generally equivalent 
to the existing Federal program, as explained in more detail in the 
Proposed Decision Document. Therefore, it does not concern an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate risk to children.

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

    This 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.

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. 
Section 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, February 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 provides the same level of 
environmental protection as is currently provided by EPA and therefore 
will not have any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. If finalized, the proposed rule would simply provide 
that the Tribe has primary enforcement responsibility under the SDWA 
for the Class II UIC program, pursuant to which the Tribe would be 
implementing and enforcing a tribal regulatory program that is 
generally equivalent to the existing Federal program, as explained in 
more detail in the Proposed Decision Document.

List of Subjects in 40 CFR Part 147

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

    Dated: April 16, 2008.
Stephen L. Johnson,
Administrator.
    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

[[Page 22119]]

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.

Subpart D--[Amended]

    4. Section 147.151 is amended by revising the first two sentences 
of paragraph (a) and the last sentence of paragraph (b) to read as 
follows:


Sec.  147.151  EPA-administered program.

    (a) Contents. The UIC program that applies to all injection 
activities in Arizona, including those on Indian lands, except for 
Class II wells on Navajo Indian lands for which EPA has granted the 
Navajo Nation primacy for the SDWA Class II UIC program (as defined in 
Sec.  147.3400), is administered by EPA. The UIC program for Navajo 
Indian lands, except for Class II wells on Navajo Indian lands for 
which EPA has granted the Navajo Nation primacy for the SDWA Class II 
UIC program, consists of the requirements contained in subpart HHH of 
this part. * * *
    (b) * * * The effective date for the UIC program on the lands of 
the Navajo, except for Class II wells on Navajo Indian lands for which 
EPA has granted the Navajo Nation primacy for the SDWA Class II UIC 
program (as defined in Sec.  147.3400), is November 25, 1988.

Subpart GG--[Amended]

    5. Section 147.1603 is amended by revising the first sentence of 
paragraph (a) and paragraph (b) to read as follows:


Sec.  147.1603  EPA-administered program--Indian Lands.

    (a) Contents. The UIC program for all classes of wells on Indian 
lands in New Mexico, except for Class II wells on Navajo Indian lands 
for which EPA has granted the Navajo Nation primacy for the SDWA Class 
II UIC program (as defined in Sec.  147.3400), is administered by EPA. 
* * *
    (b) Effective date. The effective date for the UIC program on 
Indian lands in New Mexico, except for Class II wells on Navajo Indian 
lands for which EPA has granted the Navajo Nation primacy for the SDWA 
Class II UIC program (as defined in Sec.  147.3400), is November 25, 
1988.

Subpart TT--[Amended]

    6. Section 147.2253 is amended by revising the first two sentences 
of paragraph (a) and paragraph (b) to read as follows:


Sec.  147.2253  EPA-administered program.

    (a) Contents. The UIC program for all classes of wells on Indian 
lands in the State of Utah, except for Class II wells on Navajo Indian 
lands for which EPA has granted the Navajo Nation primacy for the SDWA 
Class II UIC program (as defined in Sec.  147.3400), is administered by 
EPA. The program for wells on Navajo Indian lands, except for Class II 
wells on Navajo Indian lands for which EPA has granted the Navajo 
Nation primacy for the SDWA Class II UIC program, and for Ute Mountain 
Ute consists of the requirements set forth at subpart HHH of this part. 
* * *
    (b) Effective date. The effective date for this program for all 
other Indian lands in Utah, except for Class II wells on Navajo Indian 
lands for which EPA has granted the Navajo Nation primacy for the SDWA 
Class II UIC program (as defined in Sec.  147.3400), is November 25, 
1988.

Subpart HHH--[Amended]

    7. Section 147.3000 is amended by revising the first sentence of 
paragraph (a) and paragraph (b) to read as follows:


Sec.  147.3000  EPA-administered program.

    (a) Contents. The UIC program for Navajo Indian lands, except for 
Class II wells on Navajo Indian lands for which EPA has granted the 
Navajo Nation primacy for the SDWA Class II UIC program (as defined in 
Sec.  147.3400), the Ute Mountain Ute (Class II wells only on Ute 
Mountain Ute lands in Colorado and all wells on Ute Mountain Ute lands 
in Utah and New Mexico), and all wells on other Indian lands in New 
Mexico is administered by EPA. * * *
    (b) Effective date. The effective date for the UIC program on these 
lands, except for Class II wells on Navajo Indian lands for which EPA 
has granted the Navajo Nation primacy for the SDWA Class II UIC program 
(as defined in Sec.  147.3400), is November 25, 1988.
    8. Subpart KKK is added and reserved to read as follows:

Subpart KKK--[Reserved]

    9. Subpart LLL is added to read as follows:

Subpart LLL--Navajo Indian Lands


Sec.  147.3400  Navajo Indian Lands--Class II wells.

    The UIC program for Class II injection wells located: Within the 
exterior boundaries of the formal Navajo Reservation, including the 
three satellite reservations (Alamo, Canoncito and Ramah), but 
excluding the former Bennett Freeze Area, the Four Corners Power Plant 
and the Navajo Generating Station; on Navajo Nation tribal trust and 
allotted lands outside those exterior boundaries (collectively referred 
to as ``Navajo Indian lands for which EPA has granted the Navajo Nation 
primacy for the SDWA Class II UIC program''), is the program 
administered by the Navajo Nation approved by EPA pursuant to Section 
1425 of the SDWA. Notice of this approval was published in the Federal 
Register on [insert date of publication of final rule]; the effective 
date of this program is [insert date 30 days after publication of final 
rule]. This program consists of the following elements as submitted to 
EPA in the Navajo Nation's program application:
    (a) Incorporation by Reference. The requirements set forth in the 
Navajo Nation's 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 Class II injection wells on 
Navajo Indian lands for which EPA has granted the Navajo Nation primacy 
for the SDWA Class II UIC program (as defined in this section). 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 Navajo Nation Environmental 
Protection Agency Office UIC Office, Old NAPA Auto Parts Building 
(Tribal Bldg. S009-080), Highway 64, Shiprock, New Mexico, 
87420, at the

[[Page 22120]]

Environmental Protection Agency, Region 9, 75 Hawthorne Street, San 
Francisco, California, 94105-3920, or at the Office of the Federal 
Register, 800 North Capitol Street, NW., Suite 200, Washington, DC.
    (1) Navajo Nation Safe Drinking Water Act, Navajo Nation Code Sec.  
2501 et seq., Title 22, Chapter 11, Subchapter 15, Subchapters 1, 2, 5, 
7, 8 (August 9, 2001):
    (2) Navajo Nation Underground Injection Control Regulations 
promulgated September 12, 2006, Parts 1 through 3:
    (3) Permit and Monitoring Fee Schedule, adopted June 28, 2001:
    (4) Uniform Regulations for Permit Review, Administrative 
Enforcement: Orders, Hearings, and Rulemakings under Navajo Nation 
Environmental Acts, adopted September 5, 2001, Subparts 1 through 3.
    (b) Memorandum of Agreement (MOA). The MOA between EPA Region 9 and 
the Navajo Nation, signed by the EPA Regional Administrator on August 
21, 2001. The Criminal Enforcement MOA between EPA Region 9 and the 
Navajo Nation, signed by EPA on October 30, 2006.
    (c) Statement of Legal Authority. (1) ``Statement of the Attorney 
General of the Navajo Nation Pursuant to 40 CFR Sec.  145.24'', August 
27, 2001.
    (2) ``Statement of the Attorney General of the Navajo Nation 
Regarding the Regulatory Authority and Jurisdiction of the Navajo 
Nation with Respect To Its Underground Injection Control Program'', 
July 3, 2002.
    (3) ``Supplemental Statement of the Navajo Nation Attorney General 
Regarding the Regulatory Authority and Jurisdiction of the Navajo 
Nation to Operate an Underground Injection Control Program under the 
Safe Drinking Water Act'', October 11, 2006.
    (d) Program Description. The Program Description submitted as part 
of the Navajo Nation's application, and any other materials submitted 
as part of this application or as a supplement thereto.

[FR Doc. E8-8961 Filed 4-23-08; 8:45 am]
BILLING CODE 6560-50-P