[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Proposed Rules]
[Pages 28450-28456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09302]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[EPA-HQ-OW-2023-0073; FRL 9916-01-OW]
State of Louisiana Underground Injection Control Program; Class
VI Program Revision Application
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA or Agency) has
received a complete Underground Injection Control (UIC) program
revision package from the State of Louisiana (State), requesting
approval of a revision to the State's Safe Drinking Water Act (SDWA)
section 1422 UIC program to include Class VI injection well primary
enforcement responsibility (primacy). The proposed revision would allow
the Louisiana Department of Natural Resources (LDNR) to issue UIC
permits for geologic carbon sequestration facilities as Class VI wells
and ensure compliance of Class VI wells under the UIC program. EPA
proposes to issue a final rule approving Louisiana's application to
implement the UIC program for Class VI injection wells located within
the State, except those on Indian lands. EPA proposes amendments to
reflect this proposed approval of Louisiana's Class VI primacy
application.
DATES: Comments must be received on or before July 3, 2023. The
application is available for inspection and copying at the address
appearing in the ADDRESSES section of this document.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2023-0073, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m.,
Monday through Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Suzanne Kelly, Drinking Water
Infrastructure Development Division, Office of Ground Water and
Drinking Water (4606M), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202)
564-3887; email address: [email protected] or Lisa Pham, U.S. EPA
Region 6, Groundwater/UIC Section (Mail code WDDG), 1201 Elm Street,
Suite 500, Dallas, Texas 75720-2102; telephone number: (214) 665-8326;
email address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Written Comments
B. Participation in Public Hearing
C. Public Participation Activities Conducted by Louisiana
II. Introduction
A. UIC Program and Primary Enforcement Authority (Primacy)
B. Class VI Wells Under the UIC Program
C. Louisiana UIC Programs
III. Legal Authorities
IV. EPA's Evaluation of Louisiana's Primacy Revision Application
A. Background
B. Environmental Justice in Class VI Permitting
C. Summary of EPA's Comprehensive Evaluation
V. EPA's Proposed Action--Incorporation by Reference
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental
Justice in Minority Populations and Low-Income Populations
VII. References
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2023-
0073, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at https://www.regulations.gov any information you consider to
be Confidential Business Information (CBI), Proprietary Business
Information (PBI), or other information whose disclosure is restricted
by statute. If you need to submit CBI, contact Lisa Pham, contact
information available in the FOR FURTHER INFORMATION CONTACT section.
Multimedia submissions (audio, video, etc.) must be accompanied by
written comments. Written comments are considered the official comments
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). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment
policy; information about CBI, PBI, or multimedia submissions; and
general guidance on making effective comments.
B. Participation in Public Hearing
A public hearing will be held on June 15, 2023 at Louisiana
Department of Natural Resources, LaBelle Hearing Room, 1st Floor,
LaSalle Building, 617 North 3rd Street, Baton Rouge, LA 70802. For
additional information regarding the public hearing, please contact
Lisa Pham at (214) 665-8326 or [email protected].
EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the hearing, please contact Lisa Pham at (214) 665-8326 or
[email protected]. The last day to pre-register to speak at the hearing
will be June 8, 2023. On
[[Page 28451]]
June 14, 2023, EPA will post a general agenda for the hearing that will
list pre-registered speakers in approximate order at: https://www.epa.gov/uic/underground-injection-control-epa-region-6-ar-la-nm-ok-and-tx. EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Additionally, requests to speak will be accepted the day of the hearing
at the hearing registration desk. EPA will make every effort to
accommodate all speakers who arrive and register, although it may not
be possible to fulfill preferences on speaking times.
EPA encourages commenters to provide EPA with a copy of their oral
testimony electronically by emailing it to [email protected]. EPA also
recommends submitting the text of your oral comments as written
comments to the rulemaking docket.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing.
Please note that any updates made to any aspect of the hearing are
posted online at: https://www.epa.gov/uic/underground-injection-control-epa-region-6-ar-la-nm-ok-and-tx. While EPA expects the hearing
to go forward as set forth above, please monitor our website or contact
Lisa Pham at (214) 665-8326 or [email protected] to determine if there
are any updates. EPA does not intend to publish a document in the
Federal Register announcing updates.
EPA will not provide audiovisual equipment for presentations unless
we receive special requests in advance. Commenters should notify Lisa
Pham when they pre-register to speak that they will need specific
equipment. If you require the services of an interpreter or special
accommodations such as audio description, please pre-register for the
hearing with Lisa Pham and describe your needs by June 8, 2023. EPA may
not be able to arrange accommodations without advance notice.
C. Public Participation Activities Conducted by Louisiana
In October 2020, the Louisiana Department of Natural Resources
(LDNR) published a notice of intent in the Louisiana Register to adopt
Statewide Order No. 29-N-6 providing rules for Class VI injection
wells. LDNR held a public comment period from October 20, 2020, to
December 1, 2020, and provided the opportunity to request a public
hearing. There was no request for a public hearing. LDNR received five
comments, which did not result in changes to the proposed rule. LDNR
later provided a second public comment period on the State's intent to
seek Class VI Primacy from May 28, 2021, to July 13, 2021. LDNR held a
public hearing at the LDNR Office in Baton Rouge on July 6, 2021.
Notice of the comment period and public hearing was published in six
newspapers across Louisiana, through email mailing list, and on LDNR's
website to ensure statewide attention of the comment period and public
hearing. LDNR received seven oral comments at the hearing and 21
written public comments. Commenters shared general concerns about the
role of carbon capture and storage in mitigating climate change,
sensitive coastal areas and erosion caused by pipelines, and the
current pollution and environmental hazard burden in Louisiana.
Commenters were also specifically concerned about whether LDNR had
adequate resources to successfully permit and monitor Class VI projects
and the State's assumption of liability after completion of projects.
Environmental Justice (EJ) was also a major concern, with commenters
seeking a clear EJ review process and criteria, as well as a mechanism
for Class VI projects to avoid impacts on already overburdened
communities with EJ concerns. LDNR responded to all public comments
including details about increased staffing and resources for Class VI
permitting responsibilities. Documentation of Louisiana's public
participation activities, including comments received and responses by
the LDNR, can be found in EPA's Docket ID No. EPA-HQ-OW-2023-0073.
II. Introduction
A. UIC Program and Primary Enforcement Authority (Primacy)
The Safe Drinking Water Act (also known as SDWA) was passed by
Congress in 1974. It protects public health by regulating the nation's
public drinking water supply, including both surface and groundwater
sources. The SDWA requires EPA to develop requirements and provisions
for the state and tribal Underground Injection Control (UIC) programs.
These programs regulate the injection of fluids (such as water,
wastewater, brines from oil and gas production, and carbon dioxide) to
protect underground sources of drinking water (USDWs). USDWs are
aquifers or parts of aquifers that supply a public water system or
contain enough groundwater to supply a public water system. See 40 CFR
144.3.
The UIC program regulates various aspects of an injection well
project. These include technical aspects throughout the lifetime of the
project from site characterization, construction, operation, and
testing and monitoring through site closure, as well as permitting,
site inspections, and reporting to ensure well owners and operators
comply with UIC regulations.
SDWA section 1422 directs EPA to establish requirements that
states, territories, and federally recognized tribes (hereafter
referred to as applicants) must meet to be granted primary enforcement
responsibility or ``primacy'' for implementing a UIC program, including
a Class VI program. An applicant seeking primacy under SDWA section
1422 for a Class VI program must demonstrate to EPA that the
applicant's Class VI program is as stringent as the Federal
requirements and is protective of USDWs, including jurisdiction over
underground injection and provisions for the necessary administrative,
civil, and criminal enforcement penalty remedies under SDWA.
EPA conducts a comprehensive technical and legal evaluation of each
primacy application to assess and confirm that the proposed program is
as stringent as the Federal regulations and to evaluate the
effectiveness of the state's proposed program. Louisiana's application
included the following elements: Louisiana's Class VI-related UIC
statutes and regulations; documents describing the public participation
process; a letter from the Governor of Louisiana requesting Class VI
primacy; a Program Description that explains how the State intends to
carry out its responsibilities; an Attorney General's statement of
enforcement authority; and an addendum to the existing Memorandum of
Agreement (MOA) between EPA and Louisiana describing the
administration, implementation, and enforcement of the Louisiana's
Class VI program.
B. Class VI Wells Under the UIC Program
Class VI wells are used to inject carbon dioxide into deep rock
formations for the purpose of long-term underground storage, also known
as geologic sequestration. Geologic sequestration, when used as a part
of carbon capture and storage and carbon dioxide removal projects, is a
promising tool for reducing the amount of carbon dioxide in the
atmosphere. Class VI injection wells are regulated under an
[[Page 28452]]
existing, rigorous SDWA permitting framework that protects USDWs.
The UIC Class VI program provides multiple safeguards that work
together to protect USDWs and human health. Owners or operators that
wish to inject carbon dioxide for the purpose of geologic sequestration
must demonstrate that their injection well will meet all regulatory
requirements and receive a Class VI permit for each well. The UIC Class
VI program requires applicants to meet strict technical, financial, and
managerial requirements to obtain a Class VI permit, including:
Site characterization to ensure the geology in the project
area will contain the carbon dioxide within the zone where it will be
injected.
Modeling to delineate the predicted area influenced by
injection activities through the lifetime of operation.
Evaluation of the delineated area to ensure all potential
pathways for fluid movement have been identified and addressed through
corrective action.
Well construction requirements that ensure the Class VI
injection well will not leak carbon dioxide.
Testing and monitoring throughout the life of the project,
including after carbon dioxide injection has ended. Requirements
include, for example, testing to ensure physical integrity of the well,
monitoring for seismic activity near the injection site, monitoring of
injection pressure and flow, chemical analysis of the carbon dioxide
stream that is being injected, and monitoring the extent of the
injected carbon dioxide plume and the surrounding area (e.g., ground
water) to ensure the carbon dioxide is contained as predicted.
Operating requirements to ensure the injection activity
will not endanger USDWs or human health.
Financial assurance mechanisms sufficient to cover the
cost for all phases of the geologic sequestration project including the
post injection site care period and until site closure has been
approved by the permitting authority.
Emergency and remedial response plans.
Reporting of all testing and monitoring results to the
permitting authority to ensure the well is operating in compliance with
all permit and regulatory requirements.
The permitting authority ensures that these protective requirements
are included in each Class VI permit. A draft of each Class VI permit
is made available to the public for comment before a final permit is
issued.
C. Louisiana UIC Programs
The State of Louisiana received primacy for Class I, III, IV, and V
injection wells under SDWA section 1422, and Class II injection wells
under SDWA section 1425 on March 23, 1982. On September 17, 2021,
Louisiana applied to EPA under section 1422 of SDWA, 42 U.S.C. 300h-1,
for primacy for Class VI injection wells located within the State,
except those located on Indian lands.
III. Legal Authorities
This regulation is proposed under authority of SDWA sections 1422
and 1450, 42 U.S.C. 300h-1 and 300j-9.
Section 1421 of SDWA requires the Administrator of EPA to
promulgate Federal requirements for effective state UIC programs to
prevent underground injection activities that endanger USDWs. Section
1422 of SDWA establishes requirements for states and tribes seeking EPA
approval of their UIC programs. It also requires that states and tribes
seeking approval demonstrate how the applicant (after public notice)
will implement a UIC program which meets the requirements set forth
under section 1421.
For states and tribes that seek approval for UIC programs under
section 1422 of SDWA and those seeking EPA approval of revisions to
existing state and tribal UIC programs, EPA has promulgated regulations
setting forth the applicable procedures and substantive requirements
codified in 40 CFR parts 144, 145 and 146. 40 CFR part 144 outlines
general program requirements that each state must meet to obtain
primary enforcement authority. 40 CFR part 145 specifies the procedures
EPA will follow in approving, revising, and withdrawing state programs
and outlines the elements and provisions that a state must include in
their application. It also 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. 40 CFR part 146 contains the technical criteria
and standards applicable to each well class, including Class VI wells.
IV. EPA's Evaluation of Louisiana's Primacy Revision Application
A. Background
On September 17, 2021, Louisiana submitted to EPA a program
revision application to add Class VI injection wells to the State's
SDWA section 1422 UIC program. The UIC program revision package from
Louisiana includes a description of the State's UIC Class VI program,
copies of all applicable rules and forms, a statement of legal
authority, a summary and results of Louisiana's public participation
activities, and an addendum to the existing MOA between Louisiana and
EPA's Region 6 office. EPA reviewed the application for completeness
and performed a technical evaluation of the application materials.
B. Environmental Justice in Class VI Permitting
People across the country have shared with EPA concerns about the
safety of carbon capture and storage and carbon dioxide removal
projects as well as their concern that already environmentally
overburdened communities may yet again bear a disproportionate
environmental burden associated with geologic sequestration. Executive
Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies,
to the greatest extent practicable and permitted by law, to identify
and address, as appropriate, disproportionate and adverse human health
or environmental impacts on minority (people of color) and low-income
populations. On December 9, 2022, EPA sent a letter to state governors
recognizing the importance of developing and deploying clean energy
technologies that capture and remove carbon from the atmosphere while
mitigating impacts on vulnerable communities, and ensuring protection
of underground drinking water sources. EPA called for states seeking
primacy to incorporate EJ and equity into proposed UIC Class VI
programs, including in permitting. EPA outlined a variety of
approaches, such as implementing an inclusive public participation
process, consideration of EJ impacts on communities, enforcing Class VI
regulatory requirements, and incorporating mitigation measures.
As part of developing this proposal, EPA worked with the State of
Louisiana to adopt the environmental justice approaches encouraged in
the letter, which Louisiana has incorporated into their primacy
application. EPA reviewed Louisiana's EJ approach as described in the
State's Program Description and MOA addendum and compared it to the EJ
elements discussed in the December 9, 2022 letter. Louisiana's
committed in its MOA addendum to adopt all the EJ elements described in
the letter, including implementing an inclusive public participation
process, incorporating EJ and civil rights considerations in permit
review processes, enforcing Class VI regulatory protections, and
incorporating mitigation measures. More specifically, Louisiana also
committed in the MOA addendum to examine the potential
[[Page 28453]]
risks of each proposed Class VI well to minority and low-income
populations. EPA supports these commitments. Furthermore, Louisiana's
Program Description specifies that LDNR will require well owners or
operators to conduct an EJ review as part of the Class VI application
process. EPA supports LDNR's commitment in its Program Description to
evaluate project sites using EPA's EJ Screen and to utilize qualified
third-party reviewers to conduct additional evaluation of the Class VI
application when communities with EJ concerns and/or other increased
risk factors are identified. The results of the review will be used by
LDNR to determine if an enhanced public comment period will be
required. Lastly, LDNR's Program Description provides that LDNR will
require applicants to assess alternatives to the site location and
propose mitigating measures to ensure adverse environmental effects are
minimized. EPA supports each of these efforts described in LDNR's
program description.
Based on its review of LDNR's MOA addendum and Program Description,
EPA concludes that Louisiana has addressed all EJ elements that were
discussed in the December 9, 2022, letter. EPA supports LDNR's
agreement to adopt these approaches to protecting EJ communities.
Louisiana's Class VI Program, as described in LDNR's primacy
application, includes approaches to ensure that equity and EJ will be
appropriately considered in permit reviews, and in LDNR's UIC Class VI
program as a whole.
C. Summary of EPA's Comprehensive Evaluation
EPA conducted a comprehensive technical and legal evaluation of
Louisiana's Class VI primacy application to assess and confirm that the
State's UIC Class VI program is as stringent as the Federal regulations
and evaluated the effectiveness of the State's Class VI program. To be
approved for Class VI primacy under SDWA section 1422, a state or tribe
must have a UIC program that meets Federal requirements (40 CFR parts
124, 144, 145, and 146). EPA evaluated Louisiana's draft and final UIC
statutes and Class VI regulations against these Federal requirements.
The evaluation involved identifying and resolving any discrepancies
between the State and Federal UIC Class VI statutory and/or regulatory
provisions. EPA worked with Louisiana to address any stringency issues
with their draft and final Class VI regulations prior to submittal of
the primacy application. The Agency also evaluated for stringency and
effectiveness Louisiana's Class VI Program Description, the Attorney
General's statement of enforcement authority, and the addendum to the
MOA between EPA and Louisiana, describing the administration,
implementation, and enforcement of Louisiana's UIC Class VI program.
EPA evaluated Louisiana's program description against 40 CFR
145.23, which lists all the information that must be submitted as part
of the program description. EPA's evaluation of the program description
includes reviewing the scope, structure, coverage, processes and
organizational structure of the permitting authority. EPA evaluated
LDNR's permitting, administrative and judicial review procedures and
reviewed the permit application, reporting, and manifest forms. EPA
also reviewed the State's compliance tracking and enforcement
mechanisms. EPA evaluated LDNR's proposed schedule for issuing permits
within the first 2 years after program approval. More specifically, EPA
required Louisiana to demonstrate that the State's Class VI program
will have adequate in-house staff or access to contractor support for
technical areas including site characterization, modeling, well
construction and testing, financial responsibility, regulatory and risk
analysis expertise.
EPA evaluated Louisiana's Attorney General's statement against 40
CFR 145.24 to ensure it met Federal requirements. The Attorney
General's statement is required to ensure that a state's top legal
officer affirms that state statutes, regulations and judicial decisions
demonstrate adequate authority to administer the UIC Program as
described in the program description and consistent with EPA's
regulatory requirements for UIC programs. EPA independently evaluates
and confirms that the Attorney General's statement certifies that the
state either does not have environmental audit privilege and/or
immunity laws, or, if there are environmental audit privilege and/or
immunity laws, that they will not affect the ability of the state to
meet the enforcement and information gathering requirements under SDWA.
EPA evaluated Louisiana's MOA addendum against 40 CFR 145.25 to
ensure it met Federal requirements. The MOA is the central agreement
setting the provisions and arrangements between the state and EPA
concerning the administration, implementation, and enforcement of the
state UIC Program. EPA's evaluation includes ensuring that the MOA
contains the necessary provisions pertaining to agreements on
coordination, permitting, compliance monitoring, enforcement, and EPA
oversight. For example, the MOA addendum specifies that LDNR and EPA
agree to maintain a high level of cooperation and coordination to
assure successful and efficient administration of the UIC Class VI
program. EPA is aware that stakeholders have raised concern about
Louisiana's long term liability provision in Louisiana Revised Statute
(LA R.S.) 30:1109. LDNR agreed in the MOA addendum that LDNR will not
issue a certificate of completion pursuant to LA R.S. 30:1109 until the
owner or operator submits a site closure report pursuant to 40 CFR
146.93(f) and Louisiana Code (LAC) 43:XVII.3633.A.6 and otherwise fully
complies with the site closure requirements in 40 CFR 146.93 and LAC
43:XVII.3633.A. Additionally, EPA and LDNR agree to coordinate prior to
LDNR approving any site closure to ensure doing so is consistent with
the requirements of the Federal Safe Drinking Water Act. EPA concludes
that Louisiana's Class VI Program--implemented consistent with the MOA
addendum--meets Federal requirements. EPA will also confirm that
specific aspects of LA R.S. 30:1109 are consistent with EPA's
interpretation.
Louisiana has demonstrated that it has the legal authority to
implement all permit requirements found in 40 CFR 145.11. Louisiana's
UIC Class VI permitting provisions are as stringent as EPA's
regulations in 40 CFR 124 and 144. The State has incorporated necessary
procedures, pursuant to 40 CFR 145.12 to support a robust compliance
evaluation program. Additionally, Louisiana has the necessary
administrative, civil, and criminal enforcement penalty remedies
pursuant to 40 CFR 145.13. Louisiana's Class VI regulations regarding
permitting, inspection, operation, and monitoring are at least as
stringent as found in 40 CFR parts 145 and 146. Louisiana's reporting
and recordkeeping requirements are as stringent as found in 40 CFR
144.54 and 146.91 for Class VI wells. EPA is aware that stakeholders
have raised concern that Louisiana's long term liability provision in
LA R.S. 30:1109 undercuts the state's ability to meet the enforcement
authority requirements at 40 CFR 145.13. EPA's interpretation is that
Louisiana's enforcement authority related to Class VI meets Federal
requirements if LDNR implements LA R.S. 30:1109 consistent with the MOA
addendum. We are working with Louisiana to confirm that specific
aspects of LA R.S. 30:1109 are consistent with our interpretation.
As a result of this comprehensive review, EPA is proposing to
approve
[[Page 28454]]
Louisiana's application because EPA has determined that the application
meets all applicable requirements for approval under SDWA section 1422
and the State is capable of administering a UIC Class VI program in a
manner consistent with the terms and purposes of SDWA and all
applicable UIC regulations.
V. EPA's Proposed Action--Incorporation by Reference
EPA is proposing to approve a revision to the State of Louisiana's
UIC Program for primacy for regulating Class VI injection wells in the
State, except for those located on Indian lands. Louisiana's statutes
and supporting documentation are publicly available in EPA's Docket No.
EPA-HQ-OW-2023-0073. If finalized, this action would amend 40 CFR
147.950 and incorporate by reference EPA-approved state statutes and
regulations that contain standards, requirements, and procedures
applicable to Class VI owners or operators. EPA will continue to
administer the UIC program for Class I, II, III, IV, V and VI injection
wells on Indian lands.
If finalized, the provisions of Louisiana's statutes and
regulations that contain standards, requirements, and procedures
applicable to owners or operators of UIC Class VI wells would be
incorporated by reference into 40 CFR 147.950. Provisions of
Louisiana's statutes and regulations 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 147.950. Any provisions incorporated by
reference, as well as all permit conditions or permit denials issued
pursuant to such provisions, are enforceable by EPA pursuant to section
1423 of SDWA and 40 CFR 147.1(e).
For clarity, EPA is reformatting the codification of EPA-approved
Louisiana SDWA section 1422 UIC Program statutes and regulations for
Well Classes I, III, IV, V and VI that are already incorporated by
reference. Instead of codifying Louisiana statutes and regulations as
separate paragraphs, EPA will be incorporating by reference a
compilation that contains ``EPA-approved Louisiana statutes and
regulations for Well Classes I, III, IV, V and VI.'' This notebook
compilation will be incorporated by reference into 40 CFR 147.950 and
the documents will be available at https://www.regulations.gov in the
docket for this proposed rule. EPA will also codify a table listing
EPA-approved Louisiana Statutes and Regulations for Well Classes I,
III, IV, V and VI in 40 CFR 147.950, including those already
incorporated by reference.
Upon approval, EPA would oversee Louisiana's administration of SDWA
Class VI program and will continue to oversee Louisiana's
administration of the programs for SDWA Class I, II, III, IV, and V
wells. EPA will require quarterly reports of non-compliance and annual
UIC performance reports pursuant to 40 CFR 144.8. The MOA addendum
between EPA and Louisiana, signed by the Regional Administrator on
March 3, 2023, articulates that EPA will oversee the State's
administration of the UIC Class VI program on a continuing basis to
assure that such administration is consistent with the program MOAs,
the State UIC grant application, and all applicable requirements
embodied in current regulations, policies, and Federal law. In
addition, the MOA addendum provides that EPA may request specific
information including permits and the accompanying EJ reviews.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at: https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is exempt from review by the Office of Management and
Budget (OMB) because OMB has exempted, as a category, the approval of
state UIC programs.
B. Paperwork Reduction Act (PRA)
This proposed action will 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 Louisiana's UIC Regulations, and the
State of Louisiana is not subject to the PRA.
C. Regulatory Flexibility Act (RFA)
I certify that this proposed action will not have a significant
economic impact on a substantial number of small entities under the
RFA. This proposed action does not impose any requirements on small
entities as this action approves an existing state program.
D. Unfunded Mandates Reform Act (UMRA)
This proposed 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 proposed action imposes no
enforceable duty on any state, local, or tribal governments or the
private sector. EPA's proposed approval of Louisiana's Class VI 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 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 proposed action does not have tribal implications as specified
in Executive Order 13175. This proposed 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 proposed action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that 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 proposed 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 proposed 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 proposed action does not involve technical standards.
[[Page 28455]]
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color) and low-income
populations.
EPA believes that it is not practicable to assess whether the human
health or environmental conditions that exist prior to this action
result in disproportionate and adverse effects on people of color, low-
income populations and/or Indigenous peoples because there currently
are no Class VI wells permitted in Louisiana and because this is a
procedural action. EPA has reviewed Louisiana's proposed approach to
environmental justice, as outlined in the Program Description and MOA,
and described in section IV.B of this preamble. EPA considers
Louisiana's Class VI primacy application to fully integrate
environmental justice and equity considerations into their UIC Class VI
program, while ensuring protection of USDWs. This proposed action would
provide Louisiana with primacy under SDWA section 1422 for a UIC Class
VI program, pursuant to which Louisiana will be implementing a program
that is as stringent as an EPA administered UIC Class VI program.
VII. References
Attorney General's Statement ``Attorney General's Statement to
Accompany Louisiana's Underground Injection Control Program Class VI
Primacy Application,'' signed by the Attorney General for the State
of Louisiana, February 10, 2021.
Memo from Environmental Defense Fund and Gupta Wessler PLLC to EPA
related to Long Term Liability, March 2, 2023.
Letter from EPA to State Governors, December 9, 2022.
Letter from Governor of Louisiana to Regional Administrator, EPA
Region VI, March 4, 2021.
Louisiana Administrative Code 43:XVIII.Chapter 36 (Statewide Order
No. 29-N-6). Class VI Injection Well Regulations. January 2021.
Memorandum of Agreement Addendum 3 between the State of Louisiana
and EPA, Region VI for the UIC Class VI Program, signed by the EPA
Regional Administrator on March 3, 2023.
State of Louisiana Class VI Underground Injection Control Program
1422 Description, April 2021.
State of Louisiana. Summary Report of Public Comment Class VI
Geologic Sequestration of Carbon Dioxide Office of Conservation
Rules and Regulations LAC 43:XVII.Chapter 6 (Statewide Order 29-N-
6), April 21, 2021.
State of Louisiana. Comment Response Document. Class VI Geologic
Sequestration of Carbon Dioxide Office of Conservation Rules and
Regulations LAC 43:XVII.Chapter 6 (Statewide Order 29-N-6), December
9, 2020.
State of Louisiana. Public Hearing and Rule Docket for the Class VI
USEPA Primacy Application, July 6, 2021.
State of Louisiana. Public Hearing Transcript for the Class VI USEPA
Primacy Application, July 6, 2021.
State of Louisiana. Compilation of Public Comments. Class VI
Geologic Sequestration of Carbon Dioxide Office of Conservation
Rules and Regulations LAC 43:XVII.Chapter 6 (Statewide Order 29-N-
6), August 12, 2021.
State of Louisiana Summary Report of Public Comment Class VI
Geologic Sequestration of Carbon Dioxide Office of Conservation
Rules and Regulations LAC 43:XVII.Chapter 6 (Statewide Order 29-N-
6), September 17, 2021.
List of Subjects in 40 CFR Part 147
Environmental protection, Incorporation by reference, Indian lands,
Intergovernmental relations, Reporting and recordkeeping requirements,
Water supply.
Michael S. Regan,
Administrator.
For the reasons set forth in the preamble, EPA proposes 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 continues to read as follows:
Authority: 42 U.S.C. 300f et seq.; and 42 U.S.C. 6901 et seq.
0
2. Amend Sec. 147.950 by:
0
a. Revising the section heading;
0
b. Revising the introductory text and paragraph (a);
0
c. Adding paragraphs (b)(3) and (4), and (c)(4); and
0
d. Revising paragraph (d).
The revisions and additions read as follows.
Sec. 147.950 State-administered program--Class I, II, III, IV, V and
VI wells.
The UIC program for Class I, II, III, IV, and V wells in the State
of Louisiana, except those wells on Indian lands, is the program
administered by the Louisiana Department of Natural Resources approved
by EPA pursuant to sections 1422 and 1425 of the SDWA. Notice of this
approval was published in the Federal Register on April 23, 1982; the
effective date of this program is March 23, 1982. The UIC Program for
Class VI wells in Louisiana, except those located on Indian lands, is
the program administered by the Louisiana Department of Natural
Resources, approved by EPA pursuant to SDWA section 1422. The effective
date of this program is [DATE OF FINAL RULE PUBLICATION IN THE FEDERAL
REGISTER]. The UIC program for Class I, II, III, IV, V, and VI wells in
the State of Louisiana, except those located on Indian lands, consists
of the following elements, as submitted to EPA in the State's program
application and program revision application.
(a) Incorporation by reference. EPA-approved Louisiana statutes and
regulations for Well Classes I, III, IV, V and VI, dated [date when EPA
compiles the notebook] (as described in table 1 to this paragraph (a))
is incorporated by reference and made a part of the applicable UIC
program under the SDWA for the State of Louisiana. This incorporation
by reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. This material is
available for inspection at the EPA and the National Archives and
Records Administration (NARA). Contact the EPA at: the Water Docket,
EPA Docket Center (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave.
NW, Washington, DC 20460; (202) 566-2426. For information on the
availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. The
material may be obtained from or inspected at the Louisiana Department
of Natural Resources (LDNR), Office of Conservation, Injection and
Mining Division, LaSalle Building, 617 North Third Street, Room 817,
Baton Rouge, LA 70802; (225) 342-5581.
[[Page 28456]]
Table 1 to Paragraph (a)--EPA-Approved Louisiana SDWA Sec. 1422 Underground Injection Control Program Statutes
and Regulations for Well Classes I, III, IV, V and VI
----------------------------------------------------------------------------------------------------------------
State citation Title/subject State effective date EPA approval date
----------------------------------------------------------------------------------------------------------------
Louisiana Revised Statutes Minerals, Oil, and 1975 and Supp. 1982............ June 25, 1984.
Annotated sections 30:1; 30:4; Gas and
30:6; 30:18; 30:22-23, and Environmental
30:1101 to 30:1111. Quality.
Underground Injection Control Class I, III, IV and February 20, 1982.............. June 25, 1984.
Program Regulations for Class I, V Injection Wells.
III, IV, and V wells, (Statewide
Order No. 29-N-1).
Louisiana Administrative Code Drilling for and August 26, 1974................ June 25, 1984.
43:XIX.Chapters 1-5 (Statewide Producing of Oil and
Order No. 29-B). Gas in the State of
Louisiana.
Louisiana Administrative Code Hydrocarbon Storage July 20, 1977.................. June 25, 1984.
43:XVIII.Chapter 3 (Statewide Wells in Salt Dome
Order No. 29).. Cavities.
Louisiana Administrative Code Class VI Injection January 2021................... [DATE OF FINAL RULE
43:XVIII.Chapter 36 (Statewide Wells. PUBLICATION IN THE
Order No. 29-N-6). FEDERAL REGISTER.]
----------------------------------------------------------------------------------------------------------------
(b) * * *
(3) Memorandum of Agreement Addendum 3 between the State of
Louisiana and EPA, Region VI for the UIC Class VI Program, signed by
the EPA Regional Administrator on March 3, 2023.
(4) Letter from Governor of Louisiana to Regional Administrator,
EPA Region VI, March 4, 2021.
(c) * * *
(4) Attorney General's Statement ``Attorney General's Statement to
Accompany Louisiana's Underground Injection Control Program Class VI
Primacy Application,'' signed by the Attorney General for the State of
Louisiana, February 10, 2021.
(d) The Program Description and any other materials submitted as
part of the application or amendment thereto, and the Program
Description and any other materials submitted as part of the program
revision application or amendment thereto.
[FR Doc. 2023-09302 Filed 5-3-23; 8:45 am]
BILLING CODE 6560-50-P