[Federal Register Volume 84, Number 72 (Monday, April 15, 2019)]
[Rules and Regulations]
[Pages 15119-15122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07442]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-HQ-OW-2018-0669; FRL-9992-26-OW]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 
has revised 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: This final rule is effective on May 15, 2019. The Director of 
the Federal Register approved this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51 on May 15, 2019. For 
judicial purposes, this final rule is promulgated as of April 15, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OW-2018-0669. 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 (CBI) or other information disclosure 
of which 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: 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 8, 
1595 Wynkoop Street, 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 (SDWA), on September 21, 1984. The State has revised 
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 
the UIC program. 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 among 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 are federally enforceable as of 
the effective date of the EPA's approval of the respective revision and 
40 CFR part 147 codification.
    In the EPA's announcement of its proposed rule in the Federal 
Register on December 4, 2018, Table 1 in the proposed amendment to 40 
CFR part 147 indicated a State effective date of 2018 for the revisions 
to the North Dakota Century Code and North Dakota Administrative Code. 
In the final rule, the EPA is revising Sec.  147.1751(a) to identify 
2019 as the effective date of the statute and regulations that North 
Dakota submitted to the EPA in its program revision submission. The 
revised statute specified in Sec.  147.1751(a) was enacted in 2018 and 
will be fully effective in April 2019. The revised regulations in Sec.  
147.1751(a) were promulgated in 2018 and became effective on January 1, 
2019.
    Consistent with the EPA Guidance 34, Guidance for Review and 
Approval of State Underground Injection Control (UIC) Programs and 
Revisions to Approved State Programs, 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's regulations, this means that there was 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.

[[Page 15120]]

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 that the application contains all the required 
elements.
    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 8 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 Department 
published the notice in 52 North Dakota newspapers. The Department 
accepted written comments on the proposed rule changes between April 
12, 2018 and May 31, 2018. The Department received no comments. The 
Department held a public hearing regarding the UIC rules on March 21, 
2018. There were no attendees.

C. Public Participation Activities Conducted by the EPA

    On December 4, 2018, the EPA published a public notice in the 
Bismarck Tribune announcing the Agency's proposed approval, request for 
public comment, and notice of a public hearing to be held, if requested 
within 30 days, on January 8, 2019, and posted it on the EPA Region 8's 
website at: https://www.epa.gov/uic/underground-injection-control-epa-region-8-co-mt-nd-sd-ut-and-wy.
    The EPA received three comments in response to the Agency's 
proposed rule. Further information regarding the comments can be found 
in the docket for this action under Docket ID No. EPA-HQ-OW-2018-0669. 
The EPA did not receive a request for a public hearing; as a result, 
the EPA announced that no public hearing would be held.

IV. The EPA's Final Action

A. What is the EPA finalizing in this action?

    In this final rule, the EPA is approving 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 updates 40 CFR part 147, subpart JJ, to reflect the 
transfer of authority.
    The supporting documents for this final rule are part of the public 
record in the EPA's Docket No. EPA-HQ-OW-2018-0669. This action amends 
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 making in this rule?

    In this rule, the EPA is finalizing 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, 
the EPA is finalizing the incorporation by reference of the North 
Dakota statutes and regulations 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 8, Library 2nd Floor, 
1595 Wynkoop Street, Denver, Colorado 80202-1129. The EPA is revising 
the incorporation by reference at 40 CFR 147.1751 with ``EPA-Approved 
North Dakota SDWA Sec.  1422 Underground Injection Control Program 
Statutes and Regulations for Well Classes I, III, IV, V and VI,'' dated 
January 2019.
    The EPA is also revising table 1 to paragraph (a) of Sec.  
147.1751, which lists the EPA-approved North Dakota statutes and 
regulations contained in the material incorporated by reference at 40 
CFR 147.1751.

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 therefore 
the EPA did not submit it 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. The 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's 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 
the

[[Page 15121]]

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 does 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 does 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.

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

    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 
simply approves North Dakota's transfer of 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.

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, Reporting and recordkeeping requirements, 
Water supply.

    Dated: April 8, 2019.
Andrew R. Wheeler,
Administrator.

    For the reasons set out in the preamble, the Environmental 
Protection Agency is amending 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. Adding the word ``and'' at the end of paragraph (b)(1);
0
c. Removing paragraphs (b)(2) and (3);
0
d. Redesignating paragraph (b)(4) as paragraph (b)(2);
0
e. Revising paragraphs (c), (d), (e), (f), (g), and (h); and
0
f. 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 April 15, 2019; the program is effective May 15, 2019. 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 approved by the EPA for inclusion in ``EPA-Approved North 
Dakota SDWA Sec.  1422 Underground Injection Control Program Statutes 
and Regulations for Well Classes I, III, IV, V and VI,'' dated January 
2019, and listed in table 1 to this paragraph (a), 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 material 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. If you wish to obtain this 
material from the EPA Regional Office, call (303) 312-1226. Copies of 
this material also may be inspected at the EPA Headquarters Library, in 
the Water Docket, at the EPA Docket Center (EPA/DC), EPA WJC West, Room 
3334, 1301 Constitution Ave. NW, Washington, DC 20460. If you wish to 
obtain this material from the EPA Docket Center, call (202) 566-2426. 
Copies of this material also may be inspected 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 
www.archives.gov/federal-register/cfr/ibr-locations.html.

[[Page 15122]]



   Table 1 to Paragraph (a)--EPA-Approved North Dakota SDWA Section 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
----------------------------------------------------------------------------------------------------------------
North Dakota Century Code Sections 38-12- Regulation, Development               1980  September 21, 1984, 49 FR
 01 through 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...            2019  April 15, 2019, [insert
 28.1-01 and 61-28.1-12.                                                               Federal Register
                                                                                       citation].
North Dakota Administrative Code          Underground Injection                 2019  April 15, 2019, [insert
 Sections 33.1-25-01-01 through 33.1-25-   Control Program.                            Federal Register
 01-18.                                                                                citation].
North Dakota Administrative Code          Subsurface Mineral                    1986  March 6, 1991, 56 FR 9418.
 Sections 43-02-02-01 through 43-02-02-    Exploration and
 50.                                       Development.
North Dakota Administrative Code          Underground Injection                 1984  September 21, 1984, 49 FR
 Sections 43-02-02.1-01 through 43-02-     Control Program.                            37066.
 02.2-19.
North Dakota Century Code Sections 38-22- Carbon Dioxide Underground            2009  April 24, 2018, 83 FR
 01 through 38-22-23.                      Storage.                                    17761.
North Dakota Administrative Code          Control of Oil and Gas                2013  April 24, 2018, 83 FR
 Sections 38-08-16 and 38-08-17.           Resources.                                  17761.
North Dakota Administrative Code          Geologic Storage of Carbon            2013  April 24, 2018, 83 FR
 Sections 43-05-01-01 through 43-05-01-    Dioxide.                                    17761.
 20.
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* * * * *
    (c) The Memorandum of Agreement for the Class I, III, IV, and V 
Underground Injection Control Program between EPA Region 8 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 the ``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 8 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. 2019-07442 Filed 4-12-19; 8:45 am]
 BILLING CODE 6560-50-P