[Federal Register Volume 83, Number 233 (Tuesday, December 4, 2018)]
[Proposed Rules]
[Pages 62536-62540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25893]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-HQ-OW-2018-0669; FRL-9987-17-OW]


State of North Dakota Underground Injection Control Program; 
Class I, III, IV, and V Primacy Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve 
an application from the State of North Dakota under the Safe Drinking 
Water Act (SDWA) to revise the State's existing Underground Injection 
Control (UIC) program for Class I, III, IV, and V injection wells 
located within the State, except those in Indian country. North Dakota 
is revising its UIC Class I, III, IV, and V program regulations to 
transfer primary enforcement authority from the North Dakota Department 
of Health to the North Dakota Department of Environmental Quality.

DATES: Comments must be received on or before January 8, 2019. A public 
hearing is scheduled to be held on January 8, 2019 from 2 p.m. to 5 
p.m. and 6 p.m. to 8 p.m., central daylight time. The hearing will be 
held only if requests are received within 30 days of publication. If no 
requests are received by January 3, 2019, the hearing will be 
cancelled. Confirmation or cancellation of the public hearing will be 
announced on January 3, 2019, on the EPA Region VIII's website at: 
https://www.epa.gov/uic/underground-injection-control-epa-region-8-co-mt-nd-sd-ut-and-wy.

ADDRESSES: Hearing location: North Dakota Department of Health's fourth 
floor Conference Room, 918 East Divide Avenue, Bismarck, North Dakota. 
Requests for a public hearing may be mailed or emailed to: Omar Sierra-
Lopez, U.S. Environmental Protection Agency, Region VIII, Mail Code: 
8WP-SUI, 1595 Wynkoop Street, Denver, Colorado 80202-1129, or [email protected].
    Docket Review and Comments Requested: The application and 
supplemental docket materials are available electronically on https://www.regulations.gov, identified by Docket ID No. EPA-HQ-OW-2018-0669. 
Submit your comments to the Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. The 
EPA may publish any comments 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. The 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: Kyle Carey, 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) 564-2322; fax number: (202) 564-3754; 
email address: [email protected], or Omar Sierra-Lopez, Underground 
Injection Control Unit, Safe Drinking Water Program, Office of Water 
Protection (8WP-SUI), U.S. Environmental Protection Agency, Region 
VIII, 1595 Wynkoop Street,

[[Page 62537]]

Denver, Colorado 80202-1129; telephone number: (303) 312-7045; fax 
number: (303) 312-7517; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The EPA approved North Dakota's UIC program as meeting the 
requirements for primary enforcement responsibility (primacy) for Class 
I, III, IV, and V injection wells, under section 1422 of the Safe 
Drinking Water Act, on September 21, 1984. The State is revising its 
UIC Class I, III, IV, and V program statutes and regulations to 
transfer this authority from the North Dakota Department of Health to 
the North Dakota Department of Environmental Quality.

II. Legal Authorities

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

A. Revision of State UIC Programs

    As required by section 1421 of the SDWA, the EPA promulgated 
minimum requirements in the Code of Federal Regulations (CFR) at 40 CFR 
part 145, for effective State UIC programs, to prevent underground 
injection activities that endanger underground sources of drinking 
water (USDWs). Under section 1422 of the SDWA, once the EPA approves a 
State UIC program, the State has primary enforcement responsibility for 
underground water sources. A State may revise its UIC program as 
provided under 40 CFR 145.32(a) and by following the procedures 
described under 40 CFR 145.32(b), which require the State to submit a 
modified program description, an Attorney General's statement, a 
Memorandum of Agreement, or other such documentation as the EPA 
determines to be necessary under the circumstances (40 CFR 
145.32(b)(1)). States with approved programs are required to notify the 
EPA whenever they propose to transfer all or part of the approved State 
agency to any other State agency and to identify any new division of 
responsibilities amongst the agencies involved. Organizational charts 
required in the State's original primacy approval package must be 
revised and resubmitted. The new agency is not authorized to administer 
the program until approval by the Administrator (40 CFR 145.32(c)).
    All revisions to the UIC program would be federally enforceable as 
of the effective date of the EPA's approval of the respective revision 
and 40 CFR part 147 codification. The State plans to rely on the date 
when the EPA signs the final notice for purposes of notifying the State 
legislature that the EPA has approved these revisions, which will 
provide for the transfer authority from the North Dakota Department of 
Health to the North Dakota Department of Environmental Quality (NDDEQ) 
to be effective under State law. Thus, prior to the effective date of 
this approval, the State intends to take the necessary additional steps 
as specified in S.L. 2017, ch. 199, Section 1, to ensure that the NDDEQ 
rules would become federally enforceable on the effective date of the 
EPA's approval and codification of the approved program in 40 CFR part 
147.
    Consistent with the EPA Guidance 16, the EPA considers State-
initiated program revisions to transfer all or part of any program from 
the approved authority to another State agency as substantial program 
revisions. Under the EPA regulations, this means there is an 
opportunity for public comment and to request a public hearing (40 CFR 
145.32(b)(2)).

B. Indian Country

    The EPA's approval of North Dakota's application to transfer its 
SDWA UIC Class I, III, IV, and V primary enforcement authority from the 
North Dakota Department of Health to the North Dakota Department of 
Environmental Quality does not extend to Indian lands. Pursuant to the 
EPA's UIC regulations at 40 CFR 144.3, Indian lands ``means `Indian 
country' as defined in 18 U.S.C. 1151.'' As defined in 18 U.S.C. 1151, 
Indian country generally includes lands within the exterior boundaries 
of the following Indian reservations located within North Dakota: The 
Fort Berthold Indian Reservation, The Spirit Lake Reservation, The 
Standing Rock Sioux Reservation, and The Turtle Mountain Reservation; 
any land held in trust by the United States for an Indian tribe; and 
any other areas that are Indian country within the meaning of 18 U.S.C. 
1151. The EPA, or eligible Indian tribes, as appropriate, will retain 
responsibilities under the SDWA UIC program for Class I, III, IV, and V 
injection wells in Indian country.

III. North Dakota's Application

A. Notice of Completion

    On September 18, 2018, the EPA received a complete program revision 
package from the State of North Dakota, requesting approval of its 
revised UIC regulations for Class I, III, IV, and V injection wells, to 
transfer primary enforcement authority from the North Dakota Department 
of Health to the North Dakota Department of Environmental Quality. The 
EPA has determined the application contains all the required elements; 
the application and supplemental materials are available electronically 
at https://www.regulations.gov; and a copy of the application can be 
accessed for inspection and copying at: The EPA Region VIII, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, by contacting Omar Sierra-
Lopez at: Telephone number: (303) 312-7045; fax number: (303) 312-7517; 
email address: [email protected]. Public comments are 
requested, and a public hearing will be held if requests are received 
within 30 days of publication (see ADDRESSES for further information on 
how to request a public hearing).
    The UIC program revision package from the State of North Dakota 
includes revised versions of: (1) The description of the State's UIC 
program (40 CFR 145.23); (2) copies of all applicable State statutes, 
regulations, and forms (40 CFR 145.22(a)(5)); (3) the Attorney 
General's statement that the State has adequate legal authority to 
carry out the program described and to meet the requirements of 40 CFR 
part 145; and (4) the Memorandum of Agreement between the State of 
North Dakota and the EPA's Region VIII Administrator (40 CFR 145.25).

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

    On April 12, 2018, the North Dakota Department of Environmental 
Quality provided public notice of its intent to amend and adopt North 
Dakota's 1422 Underground Injection Control Rules. The public notice 
was published in 52 North Dakota newspapers. Written comments on the 
proposed rule changes were accepted between April 12, 2018 and May 31, 
2018; no comments were received. A public hearing regarding the UIC 
rules was held on March 21, 2018; the hearing was unattended.

C. Public Participation Activities Conducted by the EPA

    On December 4, 2018, a public notice announcing this proposed 
approval, request for public comment, and notice of a public hearing to 
be held on January 8, 2019, was published in the Bismarck Tribune and 
posted to the EPA Region VIII's website at: https://www.epa.gov/uic/underground-injection-control-epa-region-8-co-mt-nd-sd-ut-and-wy. 
Confirmation or cancellation of the public hearing will be announced on 
January 3, 2019 and on the EPA Region VIII's website at: https://
www.epa.gov/uic/underground-injection-control-epa-

[[Page 62538]]

region-8-co-mt-nd-sd-ut-and-wy. For information regarding the public 
hearing, including a request to hold a hearing, please contact Omar-
Sierra Lopez, U.S. Environmental Protection Agency, Region VIII, Mail 
Code: 8WP-SUI, 1595 Wynkoop Street, Denver, Colorado 80202-1129, or 
[email protected].

IV. The EPA's Proposed Action

A. What is the EPA proposing?

    In this action, the EPA is proposing to approve the State of North 
Dakota's application to transfer its Class I, III, IV, and V primary 
enforcement authority from the North Dakota Department of Health to the 
North Dakota Department of Environmental Quality and to make conforming 
changes to its regulations to reflect such transfer. Regulations under 
40 CFR part 147 set forth the applicable UIC programs for each of the 
States. This rule would update 40 CFR part 147 subpart JJ to reflect 
the transfer of authority.
    Support of this proposed approval is part of the public record in 
the EPA's Docket No. EPA-HQ-OW-2018-0669. When finalized, this action 
will amend 40 CFR part 147 Subpart JJ to incorporate by reference the 
revised EPA-approved State statutes and regulations. The EPA will 
continue to administer its UIC program for Class I, III, IV, and V 
injection wells in Indian country.
    The EPA will continue to oversee the State of North Dakota's 
administration of UIC Class I, III, IV, V and VI programs as authorized 
under the SDWA. Part of the EPA's oversight responsibility will require 
State 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 September 18, 2018, provides the EPA with the 
opportunity to review and comment on all draft permits.

B. What codification decisions is the EPA proposing in this rule?

    In this rule, the EPA is proposing to finalize the federal 
regulatory text that incorporates by reference the federally authorized 
North Dakota UIC program for Class I, III, IV, and V injection wells, 
except those in Indian country. In accordance with the requirements of 
1 CFR 51.5, we are proposing to finalize the incorporation by reference 
of the North Dakota rules described in the amendments to 40 CFR part 
147 set forth below. The EPA has made, and will continue to make, these 
documents generally available through www.regulations.gov and at the 
U.S. Environmental Protection Agency, Region VIII, Library 2nd Floor, 
1595 Wynkoop Street, Denver, Colorado 80202-1129.
    The EPA will revise the binder at 40 CFR 147.1751 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 
40 CFR 147.1751. The EPA will also revise the table listing the EPA-
approved North Dakota Statutes and Regulations for Well Classes I, III, 
IV, V, and VI in 40 CFR 147.1751. Section 147.1751 also references the 
Memorandum of Agreement, the statement of legal authority (the Attorney 
General's Statement), and the Program Description, which are approved 
as part of the UIC program authorized under the SDWA.

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. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not expected to be 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 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.

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 the State of North 
Dakota's UIC program revisions. 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. The EPA's approval 
of the State of North Dakota's program revisions 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 & 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 the State of North Dakota's 
UIC program revisions.

[[Page 62539]]

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

    This rulemaking does not involve technical standards.

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 is transferring its 
primary enforcement authority for its Class I, III, IV, and V wells, 
pursuant to which the State of North Dakota will be implementing and 
enforcing a State UIC regulatory program that is as stringent as the 
existing federal program.

List of Subjects in 40 CFR Part 147

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

    Dated: November 20, 2018.
Andrew R. Wheeler,
Acting Administrator.

    For the reasons set out in the preamble, the Environmental 
Protection Agency is proposing to amend 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 is revised to read as follows:

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

0
2. Amend Sec.  147.1751 by:
0
a. Revising the introductory text and paragraph (a);
0
b. Revising paragraph (b)(2) and removing paragraphs (b)(3) and (b)(4);
0
c. Revising paragraphs (c), (d), (e), (f), (g), (h); and
0
e. Adding paragraph (i).

    The revisions and addition 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, as defined under 40 
CFR 144.3, is the program administered by the North Dakota Department 
of Environmental Quality, approved by the EPA pursuant to section 1422 
of the SDWA. Notification 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 to be determined 
at time of final decision but will be no less than 30 days after 
publication in the Federal Register). 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 (NDIC), approved by the EPA pursuant to section 1422 of the 
SDWA. Notification of this approval was published in the Federal 
Register on April 24, 2018; the effective date of the NDIC UIC Class VI 
program is April 24, 2018. The State-administered UIC programs for 
Classes I, III, IV, V, and VI consist of the following elements, as 
submitted to the EPA in the State's program applications.
    (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 
2018, and Table 1 to paragraph (a) of this section are incorporated by 
reference and made a part of the applicable UIC program under the 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 this paragraph (a) may be inspected at 
the U.S. Environmental Protection Agency, Region VIII, Library 2nd 
Floor, 1595 Wynkoop Street, Denver, Colorado 80202-1129; Water Docket, 
EPA Docket Center (EPA/DC), EPA WJC 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 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
----------------------------------------------------------------------------------------------------------------
                                                                           State
             State citation                      Title/subject        effective date       EPA approval date
----------------------------------------------------------------------------------------------------------------
North Dakota Century Code Sections 38-12- Regulation, Development               1980  September 21, 1984, 49 FR
 01--38-12-03.                             and Production of                           37066.
                                           Subsurface Minerals.
North Dakota Century Code Sections 61-28- Control, Prevention and               1989  March 6, 1991, 56 FR 9418.
 02 and 61-28-06.                          Abatement of Pollution of
                                           Surface Waters.
North Dakota Century Code Sections 61-    Safe Drinking Water Act...            2018  [insert FR citation of
 28.1-01--61-28.1-12.                                                                  final rule].
North Dakota Administrative Code          Underground Injection                 2018  [insert FR citation of
 Sections 33.1-25-01-01--33.1-25-01-18.    Control Program.                            final rule].
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--43-02-02.2-19.    Control Program.                            37066.
North Dakota Century Code Sections 38-22- Carbon Dioxide Underground            2009  April 24, 2018, 83 FR
 01--38-22-23.                             Storage.                                    17761.
North Dakota Administrative Code          Control of Oil and Gas                2013  April 24, 2018, 83 FR
 Sections 38-08-16--38-08-17.              Resources.                                  17761.

[[Page 62540]]

 
North Dakota Administrative Code          Geologic Storage of Carbon            2013  April 24, 2018, 83 FR
 Sections 43-05-01-01--43-05-01-20.        Dioxide.                                    17761.
----------------------------------------------------------------------------------------------------------------

    (b) * * *
    (2) North Dakota Administrative Code Article 33-22 (Practice and 
Procedure) (1983).
    (c) The Memorandum of Agreement for the Class I, III, IV, and V 
Underground Injection Control Program between EPA Region VIII and the 
North Dakota Department of Environmental Quality, signed by the EPA 
Regional Administrator on September 18, 2018.
    (d) The statement of legal authority, ``Class I, III, IV, and V 
Underground Injection Control Program, Attorney General's Statement,'' 
signed by the Assistant Attorney General of North Dakota on July 30, 
2018, and ``Supplement to the Attorney General Statements Relating to 
Programs Being Transferred to the North Dakota Department of 
Environmental Quality'' signed by the Assistant Attorney General of 
North Dakota on October 23, 2018.
    (e) The Class I, III, IV, and V Underground Injection Control 
Program Description and any other materials submitted as part of the 
program revision or as supplements thereto.
    (f) The Memorandum of Agreement for the Class VI Underground 
Injection Control Program between EPA Region VIII and the North Dakota 
Industrial Commission, signed by the EPA Regional Administrator on 
October 28, 2013.
    (g) The Memorandum of Understanding for Class VI 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.
    (h) 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.
    (i) The Class VI Underground Injection Control Program Description 
and any other materials submitted as part of the program revision or as 
supplements thereto.

[FR Doc. 2018-25893 Filed 12-3-18; 8:45 am]
 BILLING CODE 6560-50-P