[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Rules and Regulations]
[Pages 63639-63647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25317]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-R08-OW-2007-0153; FRL-8733-4]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: EPA is approving 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 
revising regulations that are not specific to the Fort Peck Tribes' 
application.

DATES: Effective Dates: This approval is effective November 26, 2008. 
The incorporation by reference of certain publications listed in the 
regulations is approved by the Director of the Federal Register as of 
November 26, 2008.

[[Page 63640]]


ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OW-2007-0153. All documents in the docket are listed on the 
http://www.regulations.gov Web site. 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
                                     Examples of            Industry
           Category             potentially regulated    Classification
                                       entities              System
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State, Local, and Tribal        State, local, and                 924110
 Governments.                    Tribal governments
                                 that own and operate
                                 Class II injection
                                 wells within the
                                 boundaries of the
                                 Fort Peck Indian
                                 Reservation.
Industry......................  Private owners and                221310
                                 operators of Class
                                 II injection wells
                                 within the
                                 boundaries of the
                                 Fort Peck Indian
                                 Reservation.
Municipalities................  Municipal owners and              924110
                                 operators of Class
                                 II injection wells
                                 within the
                                 boundaries of the
                                 Fort Peck Indian
                                 Reservation.
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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.

II. Introduction

    The Fort Peck Assiniboine and Sioux Tribes of Montana (the ``Fort 
Peck Tribes'') 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 sought primacy 
only for the Class II UIC program, EPA is approving their program under 
SDWA section 1425. EPA's decision 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.

III. Legal Authorities

    These regulations are being promulgated 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.
    States that seek approval for UIC programs under section 1422 of 
the SDWA must demonstrate their UIC program is at least as stringent as 
the federal minimum requirements. 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

[[Page 63641]]

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''). This application included comments received during 
the public comment period and hearing the Tribes held on September 20, 
1995. 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. Public comments received by EPA and the Tribes, and 
EPA's and the Tribes' responses to these comments, are summarized in 
the Federal Register notice of EPA's proposed approval of the Tribes' 
application noted under VI. Response to Public Comments. 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. Since this submission, 
EPA and the Tribes have: (1) Conducted additional analyses which have 
been incorporated into EPA's Decision Document (see Section V) and the 
Tribes' application; and (2) updated their Memorandum of Agreement 
(MOA).

V. Explanation of This Action

    After reviewing the very few public comments received on its 
January 30, 2008, proposal, EPA is approving the Fort Peck Tribes' 
Class II UIC program under SDWA Section 1425 with minor revisions to 
the Tribes' Program Description (PD) in their application. As a result, 
the Fort Peck Tribes will assume primary enforcement authority (except 
for the authority that EPA will 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 will 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 Decision Document in support of EPA's approval is part of the 
public record and is available for public review. The 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.
    The Fort Peck Tribes will administer and enforce their Class II 
program with respect to all Class II injection wells on the 
Reservation. EPA is amending 40 CFR part 147 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 
will 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 is approving in this action.) As noted above, 
EPA will 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 will require imprisonment for more than one year.
    EPA will oversee the Fort Peck Tribes' administration of the Class 
II program on the Reservation. Part of EPA's oversight responsibility 
will 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 requires, 
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 are being 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, are enforceable by EPA pursuant to section 1423 of the SDWA 
and 40 CFR 147.1(e).

Cross Media Electronic Reporting Rule

    EPA was recently made aware that its analysis of the Fort Peck 
Tribes' program with respect to 40 CFR 145.11 in its proposed Decision 
Document for this action did not include a discussion of the Tribal 
program's consistency with 40 CFR 145.11(a)(33). 40 CFR 145.11(a)(33) 
requires that State programs under that part that ``wish to receive 
electronic documents'' have legal authority to implement 40 CFR Part 3, 
the Cross Media Electronic Reporting Rule (CROMERR) (see 70 FR 59879, 
October 13, 2005). CROMERR includes requirements applicable to States, 
Tribes, and local governments administering or seeking to administer 
authorized programs under Title 40 of the CFR where such programs 
receive electronic documents in lieu of paper to satisfy requirements 
under such programs. EPA has consulted with the Fort Peck Tribes and 
determined that the Tribes' UIC Program does not accept electronic 
copies of official documents or records, and therefore has concluded 
that the Tribes' program is consistent with 40 CFR 145.11(a)(33).

VI. Response to Public Comments

    EPA published its proposal to approve the Fort Peck Tribes' 
application in the Federal Register on January 30, 2008. As part of its 
proposal, EPA requested public comment and announced that a public 
hearing would be held on February 25, 2008. The public comments 
received, and EPA's responses to them, are summarized below.
    Comment: One Class II injection well owner/operator objected to 
Tribal regulation of non-tribally owned and operated wells located on 
fee land within the Reservation.
    Response: EPA carefully considered the Tribes' application under 
the statutory and regulatory framework set out in the SDWA and at 40 
CFR 145.52 and concluded that the Tribes have demonstrated adequate 
jurisdictional authority over all Class II injection well activities 
within the exterior boundaries of the Reservation, including those 
conducted by non-Tribal members on fee lands. Detailed findings that 
form the basis of this conclusion are included under Section VIII. 
Generalized Findings and in EPA's Decision Document supporting EPA's 
approval of the Tribes' application, which is available for public 
review.
    Comment: This commenter also expressed concern that Tribal 
regulation of its Class II injection well would enable the Tribes to 
require that: (1) Only Tribal members be hired to operate

[[Page 63642]]

and maintain this well; and (2) tribal employment-related monetary 
payments be made to the Tribes. This commenter stated that if the 
Tribes did regulate their Class II injection well, EPA should 
explicitly state in its authorization that Tribal employment or related 
monetary payments will not become a condition in the UIC permit.
    Response: This comment raises issues that are outside the scope of 
EPA's action approving the Tribes' program. Employment rights and 
authority to require monetary payments related to employment are 
outside the scope of EPA's Federal UIC program.
    Comment: The Tribes described how their Office of Environmental 
Protection (OEP) has further enhanced its technical and administrative 
expertise and gained additional experience in assuming responsibility 
for Class II injection well program implementation since the original 
application was submitted. The Tribes also requested that the following 
sections of the Program Description (PD) in their application be 
updated: (1) OEP's two year projected budget for implementing its Class 
II injection well program; and (2) OEP's organizational chart.
    Response: These two sections of the Tribes' PD have been updated. 
In addition, EPA noted in its January 30, 2008, proposal that the 
Tribes' original request for an aquifer exemption for the Dakota Sand 
formation did not reflect the Tribes' current intent, since the Tribes 
have subsequently decided not to pursue this exemption at this time. 
Consequently, reference to the Tribes' original request has been 
deleted from the PD.
    Comment: The Bureau of Land Management (BLM) expressed its desire 
to develop a Memorandum of Understanding (MOU) with the Tribes for 
purposes of Class II injection well program implementation. 
Specifically, the BLM stated that it would like to encourage the Tribes 
to enter into a MOU with the BLM to delineate its trust 
responsibilities for Class II injection wells and ensure protection of 
tribal or allotted mineral resources on the Reservation. The BLM cited 
similar MOUs currently in place with EPA's and Montana's Class II 
injection well programs.
    Response: EPA fully supports the development of a new MOU between 
the Tribes and the BLM, and has communicated to both parties that it is 
willing to assist in the development of this document.

VII. Other Changes to UIC Regulations

    This rule includes the following revisions to 40 CFR 147.1 that are 
not specific to the Fort Peck Tribes: (1) Revising 40 CFR 147.1 to 
include specific references to Tribal programs in light of the fact 
that EPA is approving its first Tribal UIC program; and (2) reserving 
40 CFR 147.1(f), because it duplicates 40 CFR 9.1. EPA's regulations 
are codifying these minor revisions to account for the fact that such 
programs may be run by Tribes.

VIII. Generalized Findings

    As described earlier, EPA's 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 finds 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]''); 
Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 128 S.Ct. 
2709 (2008).
    As part of the public record available for review, EPA's 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 that are serious and substantial. In 
addition, EPA is publishing the general findings set forth below 
regarding the effects of underground injection activities. These 
general findings provide a backdrop 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 Fort Peck 
Tribes and to the Fort Peck Reservation.

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

    In enacting part C of the SDWA, Congress generally recognized that 
if left unregulated or improperly managed, underground injection can 
endanger drinking water sources and thus has the potential to cause 
serious and substantial, harmful impacts on human health and welfare, 
and economic and political interests. As stated in the 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 USDWs.\1\
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    \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\
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    \2\ Id., page 560.
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    In enacting the SDWA, Congress also generally found that waste 
disposal practices, including mismanaged underground injection 
activities, could have serious and substantial, harmful impacts on 
human health and welfare,

[[Page 63643]]

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and economic and political interests. 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\
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    \4\ Id., 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 and welfare, and 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 economic and political 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.
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    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\
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    \6\ ``Underground Injection Control Regulations: Statement of 
Basis and Purpose,'' EPA, (May, 1980), pp. 7-17.
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    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.
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    \7\ See Federal Water Quality Administration's Order COM 5040.10 
(1970), as referred to in H.R. Report No. 93-1185, 561.
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    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 economic and political 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 Protection of Safe Drinking Water Sources as 
Necessary To Protect 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 human health and 
welfare, and economic and political interests. Protection of these 
interests is a core governmental function, the exercise of which is 
integral to, and is 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 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 
sources are safe from contamination, including contamination caused by 
underground injection activities.
    The above findings regarding the effects on human 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 are generally true for any 
Federal, State and/or Tribal government having responsibility for 
protecting human 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

[[Page 63644]]

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 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.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Reporting or recordkeeping requirements will be based on the Tribal 
Code, and the Fort Peck Tribes are 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 sections 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 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 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 today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities directly regulated by this final 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 percent of annual revenues. These entities will be 
subject to requirements substantially similar to the existing 
requirements of EPA's program under 40 CFR 147.1351(a) and will not 
incur significant new costs as a result of this rule. For example, the 
Tribes will 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 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 Decision Document available for public review 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.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and tribal governments and the private sector. Federal 
agencies must also develop a plan to provide notice to small 
governments that might be significantly or uniquely affected by any 
regulatory requirements. The plan must enable officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates and must inform, educate, and advise small 
governments on compliance with the regulatory requirements. The rule 
imposes no enforceable duty on any State, local or tribal governments 
or the private sector. EPA's approval of the Fort Peck Tribes' program 
will not constitute a ``Federal mandate'' because there is no 
requirement that Tribes establish UIC regulatory programs and because 
the program is a Tribal, rather than a Federal program. Thus, this rule 
is not subject to the requirements of sections 202 and 205 of the UMRA. 
In developing this rule, EPA consulted with small governments under a 
plan developed pursuant to section 203 of UMRA concerning the 
regulatory requirements in the rule that might significantly or 
uniquely affect small governments. The only small government directly 
affected by this rule is the Fort Peck Tribal government. Accordingly, 
EPA has made the Tribes fully aware of the Federal requirements for 
approval to administer their own Class II UIC program; enabled the 
Tribes to have meaningful and timely input in the development of this 
rule; and informed, educated, and advised the Tribes on compliance with 
these requirements. However, the Tribal government is only implementing 
and complying with these regulatory requirements because it has: (1) 
Voluntarily requested EPA approval to administer their own Class II UIC 
program; and (2) voluntarily assumed the Tribal share of the costs for 
doing so.

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

[[Page 63645]]

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 final 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. This rule will 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 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.

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    Subject to the Executive Order 13175 (65 FR 67249, November 6, 
2000) EPA may not issue a regulation that has tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by tribal governments, or 
EPA consults with tribal officials early in the process of developing 
the proposed regulation and develops a tribal summary impact statement.
    EPA has concluded that this action 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 approval to administer their own Class II UIC 
program and have voluntarily assumed the Tribal share of the costs for 
doing so.
    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. EPA has made the Tribes fully aware of the 
Federal requirements for approval to administer their own Class II UIC 
program; enabled the Tribes to have meaningful and timely input in the 
development of this rule; and informed, educated, and advised the 
Tribes on compliance with these requirements. (See sections IV, V, and 
VI for more information.)

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it approves a tribal primary enforcement (primacy) 
program. The 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 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 action is not subject to Executive Order 13211 (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. 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. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This action does not involved technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations 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 final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. This final rule will put in place a Tribal 
regulatory program that is more stringent than the Federal program and, 
therefore, will 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 approving the Tribes' own Class II program, EPA is 
enhancing the Tribes' ability to determine its own UIC affairs on its 
Reservation.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register.

[[Page 63646]]

This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
rule will be effective November 26, 2008.

List of Subjects in 40 CFR Part 147

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

    Dated: October 17, 2008.
Stephen L. Johnson,
Administrator.

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

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

0
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.


0
2. Part 147 heading is revised as set forth above.

Subpart A--[AMENDED]

0
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]

0
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. 
* * *
    (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.

0
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 October 27, 2008; the 
effective date of this program is November 26, 2008. 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 notebook, 
dated June 2008, 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, (406) 768-
5155, at the Environmental Protection Agency, Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129, (800) 227-8917, 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.
    (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

[[Page 63647]]

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.

[FR Doc. E8-25317 Filed 10-24-08; 8:45 am]
BILLING CODE 6560-50-P