[Federal Register Volume 83, Number 79 (Tuesday, April 24, 2018)]
[Rules and Regulations]
[Pages 17758-17761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08425]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-HQ-OW-2013-0280; FRL-9976-92-OW]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is hereby 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 
within Indian lands.

DATES: This regulation is effective April 24, 2018. The incorporation 
by reference of certain publications listed in the rule is approved by 
the Director of the Federal Register as of April 24, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OW-2013-0280. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available electronically through http://www.regulations.gov.

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 Craig 
Boomgaard, Underground Injection Control Unit, U.S. Environmental 
Protection Agency, Region 8, 1595 Wynkoop Street, MSC 8WP-SUI, Denver, 
Colorado 80202; telephone number: (303) 312-6794; 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 September 21, 1984, and Class II injection 
wells under SDWA section 1425 on May 11, 1984. The state of North 
Dakota has applied to the EPA under SDWA section 1422, 42 U.S.C. 300h-
1, for primacy for Class VI injection wells, except within 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

[[Page 17759]]

this review, the EPA is approving the state of North Dakota's 
application because it 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.

III. 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, enforcement authority, and information sharing.

IV. 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 notice 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 notice announcing North Dakota's Underground 
Injection Control Program Revision was published in the Federal 
Register (78 FR 48639) and in the Bismarck Tribune. This notice 
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.

V. Public Comments Received on the Proposed Rule and EPA's Response to 
Comments

    On May 19, 2017, EPA issued a proposed rulemaking (82 FR 22949) and 
requested public comment. The public comment period was open for 60 
days and ended on July 18, 2017. The EPA received comments from 15 
individual commenters. Of these 15 commenters, 11 submitted comments in 
support of the rule; 1 commenter submitted a comment outside the scope 
of the rule; and 3 commenters submitted 13 comments asserting that 
certain provisions in North Dakota's regulations do not meet the 
federal requirements. After close consideration of these 13 comments, 
the EPA resolved 11 in its response and determined 2 to be outside the 
scope of the rule. The comments EPA received and EPA's responses are 
available in EPA's Docket No. EPA-HQ-OW-2013-0280.

VI. EPA's Approval

    In this action, the EPA is approving the state of North Dakota's 
Class VI UIC program; hereby, the state will assume primary enforcement 
responsibility (primacy) for regulating Class VI injection wells in the 
state, except within Indian lands. Support of this action is part of 
the public record in EPA's Docket No. EPA-HQ-OW-2013-0280. This action 
amends 40 CFR part 147 and incorporates by reference the EPA-approved 
state statutes and regulations. The EPA will continue to administer the 
UIC program for all well classes within 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 are 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 
incorporating by reference a binder that contains the EPA-approved 
North Dakota Statutes and Regulations for Well Classes I, III, IV, V 
and VI. This binder is incorporated by reference into Sec.  147.1751 
and is available at http://www.regulations.gov in the docket for this 
rule. A complete list of the contents of the binder ``EPA-approved 
North Dakota SDWA Sec.  1422 Underground Injection Control Program 
Statutes and Regulations for Well Classes I, III, IV, V and VI'' is 
codified as Table 1 to paragraph (a) in that section.
    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 CFR 144.8. 
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.

VII. Effective Date

    This final rule is effective immediately upon publication. Section 
553(d) of the Administrative Procedure Act (``APA''), 5 U.S.C. 553(d), 
provides that final rules shall not become effective until 30 days 
after publication in the Federal Register, ``except . . . as otherwise 
provided by the agency for good cause,'' among other exceptions. The 
purpose of this provision is to ``give affected parties a reasonable 
time to adjust their behavior before the final

[[Page 17760]]

rule takes effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. 
Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 
(8th Cir. 1977) (quoting legislative history). Thus, in determining 
whether good cause exists to waive the 30-day delay, an agency should 
``balance the necessity for immediate implementation against principles 
of fundamental fairness which require that all affected persons be 
afforded a reasonable amount of time to prepare for the effective date 
of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA has determined that 
there is good cause for making this final rule effective immediately 
because 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. At this time, there are no federally permitted Class VI wells 
in North Dakota. As a result, there are no current permittees that need 
time to prepare for this rule and any prospective permittees will 
benefit from the regulatory certainty that an immediate effective date 
will provide. This final rule will not require affected persons to take 
action or change behavior to come into compliance within the next 30 
days. Furthermore, several prospective applicants are waiting for the 
state of North Dakota to receive primacy before submitting their permit 
applications. For these reasons, the EPA finds that good cause exists 
under section 553(d)(3) to make this rule effective immediately upon 
publication.

VIII. 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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. 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 recordkeeping requirements will 
be based on the state of North Dakota UIC Regulations, and the state of 
North Dakota is not subject to the PRA.

D. 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.

E. 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.

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

G. 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.

H. Executive Order 13045: Protection of Children From Environmental 
Health and 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.

I. 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.

J. National Technology Transfer and Advancement Act and 1 CFR Part 51

    This rulemaking does not involve technical standards. The binder, 
``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, is described in greater detail in 
Section VI of this preamble. The material is reasonably available 
through the rulemaking docket on www.regulations.gov and from the EPA.

K. 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.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 147

    Environmental protection, Incorporation by reference, Indian--
lands, Intergovernmental relations,

[[Page 17761]]

Reporting and recordkeeping requirements, Water supply.

    Dated: April 10, 2018.
E. Scott Pruitt,
Administrator.

    For the reasons set out in the preamble, the Environmental 
Protection Agency amends 40 CFR part 147 as follows:

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

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

    Authority: 42 U.S.C. 300h-4.


0
2. In Sec.  147.1751:
0
a. Revise the section heading, the introductory text, paragraph (a), 
and paragraph (b) introductory text.
0
b. Add paragraphs (e) through (h).
    The revisions and additions 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 the 
EPA pursuant to SDWA section 1422. Notification 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. 
Notification of this approval was published in the Federal Register on 
April 24, 2018; the effective date of this program is April 24, 2018. 
This program consists of the following elements, as submitted to the 
EPA in the state's program revision application.
    (a) 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 listed in Table 1 to paragraph (a) of this section, are 
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/cfr/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    Regulation, Development and             1980  September 21, 1984, 49 FR
 38-12-01--38-12-03.                   Production of Subsurface                      37066.
                                       Minerals.
North Dakota Century Code Sections    Control, Prevention and                 1989  March 6, 1991, 56 FR 9418.
 61-28-02 and 61-28-06.                Abatement of Pollution of
                                       Surface Waters.
North Dakota Administrative Code      Underground Injection                   1983  September 21, 1984, 49 FR
 Sections 33-25-01-01--33-25-01-18.    Control Program.                              37066.
North Dakota Administrative Code      Subsurface Mineral                      1986  March 6, 1991, 56 FR 9418.
 Sections 43-02-02-01-43-02-02-50.     Exploration and Development.
North Dakota Administrative Code      Underground Injection                   1984  September 21, 1984, 49 FR
 Sections 43-02-02.1-01--43-02-02.2-   Control Program.                              37066.
 19.
North Dakota Century Code Sections    Carbon Dioxide Underground              2009  April 24, 2018, [Insert
 38-22-01--38-22-23.                   Storage.                                      Federal Register citation].
North Dakota Administrative Code      Control of Oil and Gas                  2013  April 24, 2018, [Insert
 Sections 38-08-16--38-08-17.          Resources.                                    Federal Register citation].
North Dakota Administrative Code      Geologic Storage of Carbon              2013  April 24, 2018, [Insert
 Sections 43-05-01-01--43-05-01-20.    Dioxide.                                      Federal Register citation].
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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.

    (b) The following statutes and regulations, although not 
incorporated by reference, also are part of the approved State-
administered program:
* * * * *
    (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.
    (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.
    (g) The 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.
    (h) The Class VI Program Description and any other materials 
submitted as part of the program revision or as supplements thereto.

[FR Doc. 2018-08425 Filed 4-23-18; 8:45 am]
BILLING CODE 6560-50-P