[Federal Register Volume 82, Number 96 (Friday, May 19, 2017)]
[Proposed Rules]
[Pages 22949-22952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-10001]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-HQ-OW-2013-0280; FRL-9962-68-OW]


State of North Dakota Underground Injection Control Program; 
Class VI Primacy Approval

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to issue a 
rule approving an application from the state of North Dakota under the 
Safe Drinking Water Act (SDWA) to implement an underground injection 
control (UIC) program for Class VI injection wells located within the 
state, except those on Indian lands.

DATES: Comments must be received on or before July 18, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2013-0280, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. EPA 
may publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system).
    For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Lisa McWhirter, Drinking Water 
Protection Division, Office of Ground Water and Drinking Water (4606M), 
U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: (202) 564-2317; fax number: 
(202) 564-3754; email address: [email protected] or Douglas 
Minter, Underground Injection Control Unit, U.S. Environmental 
Protection Agency, Region 8, 1595 Wynkoop Street, MSC 8WP-SUI, Denver, 
Colorado 80202; telephone number: (303) 312-6079; fax number: (303) 
312-7084; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The state of North Dakota received primary enforcement 
responsibility (primacy) for Class I, III, IV and V injection wells 
under SDWA section 1422 on October 5, 1984, and Class II injection 
wells under SDWA section 1425 on September 24, 1983. The state of North 
Dakota has applied to the EPA under SDWA section 1422, 42 U.S.C. 
sections 300h-1, for primacy for Class VI injection wells, except those 
located on Indian lands. This action is based on a legal and technical 
review of the state of North Dakota's application as directed in the 
Code of Federal Regulations (CFR) at 40 CFR part 145. As a result of 
this review, EPA is proposing that the state of North Dakota's 
application meets all applicable requirements for approval under SDWA 
section 1422, and the state is capable of administering a Class VI UIC 
program in a manner consistent with the terms and purposes of SDWA and 
all applicable regulations.

II. Legal Authorities

    These regulations are being promulgated under authority of SDWA 
sections 1422 and 1450, 42 U.S.C. 300h-1 and 300j-9.

Requirements for State UIC Programs

    SDWA Section 1421 requires the Administrator of the EPA to 
promulgate minimum requirements for effective state UIC programs to 
prevent underground injection activities that endanger underground 
sources of drinking water (USDWs). SDWA Section 1422 establishes 
requirements for states seeking EPA approval of state UIC programs.
    For states that seek approval for UIC programs under SDWA section 
1422, the EPA has promulgated a regulation setting forth the applicable 
procedures and substantive requirements, codified in 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,

[[Page 22950]]

enforcement authority, and information sharing.

III. North Dakota's Application

A. Background

    On June 21, 2013, the state of North Dakota submitted a program 
revision application to add Class VI injection wells to its SDWA 
section 1422 UIC program. The EPA reviewed the application and 
published a Federal Register document of North Dakota's Underground 
Injection Control Program Revision Application on August 9, 2013 (78 FR 
48639), which sought public comments and provided an opportunity to 
request a public hearing. Public notice of North Dakota's application 
was also published in the Bismarck Tribune on August 9, 2013.

B. Public Participation Activities Conducted by the State of North 
Dakota

    The state of North Dakota held two public hearings with public 
comment periods on the state's intent to adopt its Class VI UIC 
regulations. The first public hearing was held on April 24, 2012, and 
the public comment period closed on June 8, 2012. The second public 
hearing was held on October 22, 2012, and the public comment period 
closed on November 1, 2012. Both public hearings were held in Bismarck, 
North Dakota, and no public comments were received during the two 
public comment periods.

C. Public Participation Activities Conducted by the EPA

    On August 9, 2013, a document announcing North Dakota's Underground 
Injection Control Program Revision was published in the Federal 
Register (78 FR 48639) and in the Bismarck Tribune. This document 
provided that a public hearing would be held if requested. The agency 
did not receive any requests for a public hearing and received five 
written comments. Two comments were outside the scope of the state's 
application and three comments were focused on the Memorandum of 
Agreement between Region 8 and the North Dakota Industrial Commission. 
The EPA worked with the Commission to address these comments and revise 
the Memorandum of Agreement.

IV. EPA's Proposed Action

    In this action, the EPA is proposing that the state of North 
Dakota's Class VI UIC program will assume primary enforcement authority 
(primacy) for regulating Class VI injection wells in the state, except 
for those located on Indian lands. Support of this action is part of 
the public record in EPA's Docket No. EPA-HQ-OW-2013-0280. When 
finalized, this action will amend 40 CFR part 147 and incorporate by 
reference the EPA-approved state statutes and regulations. The EPA will 
continue to administer its UIC program for Class I, II, III, IV, V and 
VI injection wells on Indian lands.
    The provisions of the state of North Dakota's Code that contain 
standards, requirements, and procedures applicable to owners or 
operators of Class VI UIC wells will be incorporated by reference into 
40 CFR 147.1751. Provisions of the state of North Dakota's Code that 
contain standards, requirements, and procedures applicable to owners or 
operators of Class I, III, IV and V injection wells have already been 
incorporated by reference into 40 CFR 147.1751. Any provisions 
incorporated by reference, as well as all permit conditions or permit 
denials issued pursuant to such provisions, will be enforceable by the 
EPA pursuant to SDWA section 1423 and 40 CFR 147.1(e).
    In order to better serve the public, the EPA is reformatting the 
codification of the EPA-approved North Dakota SDWA section 1422 
Underground Injection Control Program Statutes and Regulations for Well 
Classes I, III, IV, V and VI. Instead of codifying the North Dakota 
Statutes and Regulations as separate paragraphs, the EPA is now 
codifying a binder that contains the EPA-approved North Dakota Statutes 
and Regulations for Well Classes I, III, IV, V and VI. This binder will 
be incorporated by reference into part 147. The EPA has made, and will 
continue to make, these documents available electronically through 
http://www.regulations.gov and in hard copy at the appropriate EPA 
office (see the ADDRESSES section of this preamble for more 
information).
    The EPA will continue to oversee the state of North Dakota's 
administration of the SDWA Class VI program. Part of the EPA's 
oversight responsibility will require quarterly reports of non-
compliance and annual UIC performance reports pursuant to 40 CFR144.8. 
The Memorandum of Agreement between the EPA and the state of North 
Dakota, signed by the Regional Administrator on October 28, 2013, 
provides the EPA with the opportunity to review and comment on all 
permits.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2040-0042. Reporting or record-keeping requirements will 
be based on the state of North Dakota UIC Regulations, and the state of 
North Dakota is not subject to the PRA.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This rule does not impose any 
requirements on small entities as this rule approves a state program. 
We have therefore concluded that this action will have no net 
regulatory burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector. EPA's approval of 
the state of North Dakota's program will not constitute a federal 
mandate because there is no requirement that a state establish UIC 
regulatory programs and because the program is a state, rather than a 
federal program.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national

[[Page 22951]]

government and the states, or on the distribution of power and 
responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. This action contains no federal mandates for 
tribal governments and does not impose any enforceable duties on tribal 
governments. Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it approves a state program.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    The EPA has determined that this action is not subject to Executive 
Order 12898 (59 FR 7629, February 16, 1994) because it does not 
establish an environmental health or safety standard. This action will 
simply provide that the state of North Dakota has primacy under SDWA 
for the Class VI UIC program, pursuant to which the state of North 
Dakota will be implementing and enforcing a state regulatory program 
that is as stringent as the existing federal program.

List of Subjects in 40 CFR Part 147

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

    Dated: May 8, 2017.
E. Scott Pruitt,
Administrator.
    For the reasons set out in the preamble, Title 40 chapter 1 of the 
Code of Federal Regulations is proposed to be amended as follows:

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

0
1. The authority citation for part 147 is amended to read as follows:

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

0
2. Amend Sec.  147.1751 by revising the section heading, introductory 
text and paragraph (a) and adding paragraphs (e) through (h) to read as 
follows:


Sec.  147.1751  State-administered program--Class I, III, IV, V and VI 
wells.

    The UIC program for Class I, III, IV, and V wells in the state of 
North Dakota, except those located on Indian lands, is the program 
administered by the North Dakota Department of Health, approved by EPA 
pursuant to SDWA section 1422. Notice of this approval was published in 
the Federal Register on September 21, 1984; the effective date of this 
program is October 5, 1984. The UIC Program for Class VI wells in the 
state of North Dakota, except those located on Indian lands, is the 
program administered by the North Dakota Industrial Commission, 
approved by the EPA pursuant to SDWA section 1422. Notice of this 
approval was published in the Federal Register on [DATE OF PUBLICATION 
OF THE FINAL RULE IN THE Federal Register]; the effective date of this 
program is [DATE 90 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN 
THE Federal Register]. This program consists of the following elements, 
as submitted to the EPA in the state's program revision application.
0
(a) Incorporation by reference. The requirements set forth in the state 
statutes and regulations cited in the binder entitled ``EPA-Approved 
North Dakota SDWA Sec.  1422 Underground Injection Control Program 
Statutes and Regulations for Well Classes I, III, IV, V and VI'', dated 
December 2013, and Table 1 to paragraph (a) of this section are hereby 
incorporated by reference and made a part of the applicable UIC program 
under SDWA for the state of North Dakota. The Director of the Federal 
Register approves this incorporation by reference in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. Copies of the North Dakota regulations 
that are incorporated by reference in paragraph (a) of this section may 
be inspected at the U.S. Environmental Protection Agency, Region 8, 
Library 2nd Floor, 1595 Wynkoop Street, Denver, Colorado 80202; Water 
Docket, EPA Docket Center (EPA/DC) EPA West, Room 3334, 1301 
Constitution Ave. NW., Washington, DC 20460; and the National Archives 
and Records Administration (NARA). If you wish to obtain materials from 
the EPA Regional Office, please call (303) 312-1226; for materials from 
a docket in the EPA Headquarters Library, please call the Water Docket 
at (202) 566-2426. 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.

    Table 1 to Paragraph (a) EPA-Approved North Dakota SDWA Sec.   1422 Underground Injection Control Program
                         Statutes and Regulations for Well Classes I, III, IV, V and VI
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                                                                             State
            State citation                       Title/subject          effective date    EPA approval date \1\
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North Dakota Century Code Sections 38-  Regulation, Development and               1980  September 21, 1984, 49
 12-01--38-12-03.                        Production of Subsurface                        FR 37066.
                                         Minerals.
North Dakota Century Code Sections 61-  Control, Prevention and                   1989  March 6, 1991, 56 FR
 28-02 and 61-28-06.                     Abatement of Pollution of                       9418.
                                         Surface Waters.
North Dakota Administrative Code        Underground Injection Control             1983  September 21, 1984, 49
 Sections 33-25-01-01--33-25-01-18.      Program.                                        FR 37066.
North Dakota Administrative Code        Subsurface Mineral Exploration            1986  March 6, 1991, 56 FR
 Sections 43-02-02-01--43-02-02-50.      and Development.                                9418.

[[Page 22952]]

 
North Dakota Administrative Code        Underground Injection Control             1984  September 21, 1984, 49
 Sections 43-02-02.1-01--43-02-02.2-19.  Program.                                        FR 37066.
North Dakota Century Code Sections 38-  Carbon Dioxide Underground                2009  [Insert new FR date and
 22-01--38-22-23.                        Storage.                                        #].
North Dakota Administrative Code        Control of Oil and Gas                    2013  [Insert new FR date and
 Sections 38-08-16--38-08-17.            Resources.                                      #].
North Dakota Administrative Code        Geologic Storage of Carbon                2013  [Insert new FR date and
 Sections 43-05-01-01--43-05-01-20.      Dioxide.                                        #].
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\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
  Federal Register notice cited in this column for the particular provision.

* * * * *
0
(e) The Memorandum of Agreement between EPA Region VIII and the North 
Dakota Industrial Commission, signed by the EPA Regional Administrator 
on October 28, 2013.
0
(f) The Memorandum of Understanding between the North Dakota Industrial 
Commission, Department of Mineral Resources, Oil and Gas Division and 
the North Dakota Department of Health, Water Quality Division, Related 
to the Underground Injection Control Program signed on June 19, 2013.
0
(g) Statement of Legal Authority: ``Class VI Underground Injection 
Control Program, Attorney General's Statement,'' signed by the Attorney 
General of North Dakota on January 22, 2013.
0
(h) The Class VI Program Description and any other materials submitted 
as part of the program revision or as supplements thereto.

[FR Doc. 2017-10001 Filed 5-18-17; 8:45 am]
 BILLING CODE 6560-50-P