[Federal Register Volume 89, Number 229 (Wednesday, November 27, 2024)]
[Proposed Rules]
[Pages 93538-93545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27638]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[EPA-HQ-OW-2024-0357; FRL 12000-01-OW]
West Virginia Underground Injection Control (UIC) Program; Class
VI Primacy
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency)
has received a complete Underground Injection Control (UIC) program
revision package from the State of West Virginia (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 West Virginia Department of Environmental Protection (WVDEP) to
issue UIC permits for geologic carbon sequestration facilities as Class
VI wells and ensure compliance of Class VI wells under the UIC program.
The EPA proposes to issue a final rule approving West Virginia's
application to implement the UIC program for Class VI injection wells
located within the State, except those on Indian lands. The EPA
proposes amendments to reflect this proposed approval of West
Virginia's Class VI primacy application.
DATES: Comments must be received on or before December 30, 2024. Public
hearing: The EPA will hold a public hearing on December 30, 2024.
Please refer to the SUPPLEMENTARY INFORMATION section for additional
information on the public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2024-0357 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-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 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: Colin Dyroff, Drinking Water
Infrastructure Development Division, Office of Ground Water and
Drinking Water (4606M), Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202)
564-3149; or Himanshu Vyas, Water Division, Source Water & UIC Section
(3WD22), Environmental Protection Agency, Region 3, Four Penn Center,
1600 JFK Boulevard, Philadelphia, PA 19103; telephone number: (215)
814-2112. Both can be reached by emailing [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Written Comments
B. Participation in Public Hearing
C. Public Participation Activities Conducted by West Virginia
II. Introduction
A. UIC Program and Primary Enforcement Authority (Primacy)
B. Class VI Wells Under the UIC Program
C. West Virginia UIC Program
III. Legal Authorities
IV. The EPA's Evaluation of West Virginia's Program Revision
Application
A. Background
B. Environmental Justice in Class VI Permitting
C. Summary of the EPA's Comprehensive Evaluation
V. The EPA's Proposed Action
A. Incorporation by Reference
B. Class I-V Codification--No Action
VI. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing 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 (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
VII. References
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2024-
0357, 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. The EPA may
publish any comment received to its public docket. Do not submit to the
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 Himanshu Vyas
with the contact information available in the FOR FURTHER INFORMATION
CONTACT section. 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
[[Page 93539]]
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 is anticipated to be held on December 30, 2024.
The EPA expects to announce the location, time of the hearing, as well
as any updates made to any aspect of the hearing online at https://www.epa.gov/aboutepa/epa-region-3-mid-atlantic#pn. The hearing can also
be attended virtually at https://www.zoomgov.com/j/1600637199. While
the EPA expects the hearing to go forward as set forth above, please
monitor our website or contact Himanshu Vyas at (215) 814-2112 or
[email protected] to determine if there are any updates or for
additional information regarding the public hearing. The EPA does not
intend to publish a document in the Federal Register announcing
updates.
The 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 Himanshu Vyas at (215) 814-2112 or
[email protected] and indicate whether you will be attending in-person
or virtually. The last day to pre-register to speak at the hearing will
be December 23, 2024. Prior to the hearing, the EPA will post a general
agenda for the hearing that will list pre-registered speakers in
approximate order at: https://www.epa.gov/aboutepa/epa-region-3-mid-atlantic#pn.
The 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 taken the day of the hearing at
the hearing registration desk. The EPA will make every effort to
accommodate all speakers who arrive and register, although preferences
on speaking times may not be able to be fulfilled.
The EPA encourages commenters to provide the EPA with a copy of
their oral testimony electronically by emailing it to
[email protected]. The EPA also recommends submitting the text of your
oral comments as written comments to the rulemaking docket.
The 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.
The EPA will not provide audiovisual equipment for presentations
unless we receive special requests in advance. Commenters should notify
Himanshu Vyas 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 Himanshu Vyas and describe your needs by December
23, 2024. The EPA may not be able to arrange accommodations without
advance notice.
C. Public Participation Activities Conducted by West Virginia
On June 23, 2021, the WVDEP posted a notice of public comment
period on their website for an action to revise West Virginia Code of
State Rules 47CSR13 to add new regulations for Class VI wells and to
update the State's existing Class I-V regulations. The WVDEP held a
public comment period from June 23, 2021 to July 23, 2021 and held a
virtual public hearing on July 23, 2021. The WVDEP received 55
comments, 19 of which commented on Class VI wells. These comments did
not result in changes to the proposed regulatory revisions. The
effective date for this rule revision was March 9, 2022.
Then, on June 12, 2023, the WVDEP posted a notice of public comment
period on their website for another action to make additional updates
to the State's Class I-VI regulations in 47CSR13 of the West Virginia
Code of State Rules. The WVDEP held a public comment period from June
12, 2023 to July 18, 2023 and held a public hearing on July 18, 2023 in
Charleston, WV. The WVDEP received five comments, all of which related
to Class VI wells. These comments did not result in changes to the
proposed updates to the regulations. The effective date for this rule
revision was April 5, 2024.
Commenters on the WVDEP's proposed rulemakings shared concerns on
various topics including applicant financial burden, fees, the area of
review radius, post-injection site care, and seismic activity reviews.
Commenters also expressed concern about whether the WVDEP has adequate
staffing and technical expertise to properly manage a UIC Class VI
program. Environmental justice (EJ) also appeared to be a major
concern, with commenters asking about how EJ protections will be
integrated into the program. The WVDEP responded to all public
comments, provided various clarifications, and confirmed to commenters
that EJ will be an important part of the agency's Class VI program. The
WVDEP also added that the agency's Class VI team would be composed of
technical specialists with expertise in geology, well construction, and
UIC inspections. Additionally, the WVDEP stated that the rule revisions
were adopted to be consistent with Federal requirements and that the
agency's primary objective is to protect underground sources of
drinking water, groundwater, and surface water. Documentation of West
Virginia's public participation activities, including comments received
and responses by the WVDEP, can be found in the EPA's Docket ID No.
EPA-HQ-OW-2024-0357.
II. Introduction
A. UIC Program and Primary Enforcement Authority (Primacy)
The SDWA protects public health by regulating the nation's public
drinking water supply, including both surface and groundwater sources.
The SDWA requires the EPA to develop minimum requirements for effective
State and Tribal UIC programs to prevent underground injection of
fluids (such as water, wastewater, brines from oil and gas production,
and carbon dioxide) from endangering underground sources of drinking
water (USDWs). In general, 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 1421 directs the 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 the EPA that the
applicant's Class VI program meets the Federal requirements and is
protective of USDWs. An applicant agency must also demonstrate
jurisdiction over underground injection
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and the administrative, civil, and criminal enforcement authorities
required by EPA regulation. After the EPA approves a State for UIC
primacy, the State's UIC program may be revised with EPA approval. See
40 CFR 145.32. When a State that already has primacy under SDWA section
1422 seeks to add Class VI primacy to its existing program, a
subsequent primacy application and review process takes the form of a
program revision.
The EPA conducts a comprehensive technical and legal evaluation of
each primacy application to assess and confirm that the proposed
program meets Federal regulations and to evaluate the effectiveness of
the State's proposed program. The EPA likewise conducts a comprehensive
evaluation of a proposed revision to an existing UIC program,
particularly a revision as substantial as adding Class VI primacy.
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. The geologic sequestration of carbon dioxide
in UIC Class VI wells is used in carbon capture and storage to prevent
carbon dioxide emissions from industrial sources from reaching the
atmosphere. Class VI injection wells are regulated under an 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 underground for the purpose of geologic
sequestration must demonstrate that their injection well and injection
activities 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 (for example, injection pressure
limitations) to ensure the injection activity will not endanger USDWs
or human health.
Financial assurance mechanisms sufficient to cover the
costs 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 the decision is made
whether to issue a final permit.
C. West Virginia UIC Program
The State of West Virginia 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 December 9, 1983 (48 FR 55127). On May
1, 2024, West Virginia applied to the 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 the 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 that the EPA
promulgated 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, the 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 the EPA will follow in approving, revising, and withdrawing
State programs and outlines the elements and provisions that a State
must include in its application for primacy. 40 CFR part 145 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 sharing of information between the
EPA and the State. 40 CFR part 146 contains the technical criteria and
standards applicable to each well class, including Class VI wells.
IV. The EPA's Evaluation of West Virginia's Program Revision
Application
A. Background
On May 1, 2024, West Virginia submitted to the EPA a program
revision application to add Class VI wells to the State's SDWA section
1422 UIC program. The UIC program revision package from West Virginia
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 West Virginia's public participation activities,
an amended addendum to the existing Memorandum of Agreement (MOA)
between West Virginia and the EPA's Region 3 office, an interagency MOA
between the WVDEP and the West Virginia Geologic and Economic Survey
(WVGES), and an interagency MOA between the WVDEP and the West Virginia
Department of Health. The 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 the EPA concerns that
already environmentally overburdened communities may bear a
disproportionate environmental burden associated with geologic
sequestration.
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Executive Order 12898 (59 FR 7629, February 16, 1994) and Executive
Order 14096 (88 FR 25251, April 21, 2023) direct 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 communities with EJ concerns. On August 17,
2023, the EPA released a guidance document titled Environmental Justice
Guidance for UIC Class VI Permitting and Primacy. This guidance
outlines expectations for the EPA to incorporate EJ considerations into
Class VI activities. It is organized into five themes that address
various aspects of EJ in UIC Class VI permitting, and strongly
encourages States, Tribes, and Territories to implement their Class VI
programs in a similar fashion.
As part of developing this proposal, the EPA worked with the State
of West Virginia to adopt the EJ approaches encouraged in the August
17, 2023 guidance document, which West Virginia has incorporated in its
primacy application. The EPA reviewed West Virginia's EJ approach as
described in the State's Class VI program description and amended MOA
addendum and compared it to the EJ themes and actions in the guidance
document. The EJ approach in the amended MOA addendum corresponds to
the five themes in the EPA's August 17, 2023 guidance document, which
include identifying communities with potential EJ concerns,
implementing an augmented public participation process, conducting
additional assessments for projects identified as having EJ concerns,
ensuring the permitting process is transparent, and minimizing adverse
effects to underground sources of drinking water and the communities
they may serve. Furthermore, West Virginia's Class VI program
description specifies that the WVDEP will require well owners or
operators to conduct an EJ review as part of the Class VI permit
application process. The EPA supports the WVDEP's agreement in its
Class VI program description to evaluate project sites using the EPA's
EJ Screen and to take additional steps if this initial screening
identifies the presence of an EJ community or other risk factors in the
area of review (AOR). West Virginia's Class VI program, as described in
the WVDEP's primacy application, includes approaches to ensure equity
and EJ will be appropriately considered in permit reviews, and in the
WVDEP's UIC Class VI program as a whole.
C. Summary of the EPA's Comprehensive Evaluation
The EPA conducted a comprehensive technical and legal evaluation of
West Virginia'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). The EPA evaluated West
Virginia's Class VI UIC statutes and regulations against these Federal
requirements. The EPA worked with West Virginia to address any
stringency issues with their Class VI statutes and regulations prior to
submittal of the Class VI primacy application. The Agency also
evaluated for stringency and effectiveness West Virginia's Class VI
program description, the Class VI Attorney General's statement, the
amended Class VI addendum to the MOA between the EPA and West Virginia,
the interagency MOA between the WVDEP and the West Virginia Geologic
and Economic Survey, and the interagency MOA between the WVDEP and the
West Virginia Department of Health.
The EPA evaluated West Virginia's Class VI program description
against 40 CFR 145.23, which lists all the information to be submitted
as part of the program description. The EPA's evaluation of the Class
VI program description included reviewing the scope, structure,
coverage, processes, and organizational structure of the permitting
authority. The EPA evaluated the WVDEP's permitting, administrative,
and judicial review procedures, as well as the State's permit
application, reporting, and manifest forms. The EPA also reviewed the
State's compliance evaluation and enforcement mechanisms. The EPA
evaluated the WVDEP's proposed schedule for issuing Class VI permits
within the first two years after program approval. The EPA required
West Virginia 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, and regulatory and
risk analysis.
The EPA evaluated West Virginia's Class VI 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 Class VI program description and consistent
with the EPA's regulatory requirements for UIC programs. The 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 the SDWA.
The EPA evaluated West Virginia's amended Class VI 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 the EPA concerning the administration, implementation,
and enforcement of the State UIC program. The 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 amended MOA addendum
specifies that the WVDEP and the EPA agree to maintain a high level of
cooperation and coordination to assure successful and efficient
administration of the UIC Class VI program.
The EPA reviewed the WVDEP's interagency MOA with the West Virginia
Geological and Economic Survey. The WVGES is a West Virginia agency
with expertise to provide information to the WVDEP on local geologic
characteristics in relation to proposed underground injection
operations. The interagency MOA between the WVDEP and the WVGES
establishes a coordinated relationship between the two state agencies
to properly assess geological characteristics in a proposed work area
to support permit determinations. The EPA also reviewed the WVDEP's
interagency MOA with the West Virginia Department of Health (WVDOH).
Under this interagency MOA, the WVDOH will conduct a review of the
proposed area of work and permit application details and provide input
to assist in permit determinations, among other provisions.
The EPA is aware that stakeholders have raised concern about
geologic sequestration long term liability transfer provisions enacted
in West Virginia and other States. The EPA reviewed the West Virginia
statutory provision relating to long-term liability transfer
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(W. Va. Code Sec. 22-11B-12) and determined that it does not undermine
any protections under the Safe Drinking Water Act. Under the West
Virginia long-term liability transfer provision, all Class VI
regulatory and permit requirements must be met before liability
transfer may occur.\1\ Consistent with EPA regulations, West Virginia
imposes extensive post-injection monitoring--a default of 50 years--and
site closure requirements at the end of a Class VI well's life cycle to
ensure that there will be no danger to USDWs. Only after all those
requirements are met does West Virginia's long-term liability transfer
provision allow a limited transfer of any future liability to a state-
administered and industry-funded trust fund. Among other additional
limitations, the provision is explicit that it does not: relieve any
owner or operator from any liability that arises from noncompliance
with UIC laws, regulations or permits; apply if the WVDEP determines
that there is fluid migration for which the operator is responsible
that threatens imminent and substantial endangerment to a USDW; or
interfere with the EPA's emergency authority under SDWA section 1431.
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\1\ Such requirements include the post closure deed notation and
record retention requirements at 40 CFR 146.93 and 47CSR13.13.9, as
specifically mentioned in the Class VI MOA amended addendum.
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West Virginia has demonstrated that it has the legal authority to
implement all permit requirements found in 40 CFR 145.11 for Class VI
permits. West Virginia's UIC Class VI permitting provisions are as
stringent as the EPA's regulations in 40 CFR parts 124 and 144. The
State has incorporated necessary procedures, pursuant to 40 CFR 145.12
to support a robust Class VI compliance evaluation program.
Additionally, West Virginia has the necessary administrative, civil,
and criminal enforcement authorities pursuant to 40 CFR 145.13. West
Virginia's Class VI regulations regarding permitting, inspection,
operation, and monitoring meet Federal requirements found in 40 CFR
parts 145 and 146. West Virginia's reporting and recordkeeping
requirements meet Federal requirements found in 40 CFR 144.54 and
146.91 for Class VI wells.
As a result of this comprehensive review, the EPA is proposing to
approve West Virginia's application because the 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. The EPA's Proposed Action
A. Incorporation by Reference
The EPA is proposing to approve a revision to the State of West
Virginia's UIC program for primacy for regulating Class VI injection
wells in the State, except for those located on Indian lands. West
Virginia's statutes and regulations that are proposed to be
incorporated by reference are publicly available in the EPA's Docket
No. EPA-HQ-OW-2024-0357. If finalized, this action would amend 40 CFR
147.2450 and incorporate by reference EPA-approved State statutes and
regulations that contain standards, requirements, and procedures
applicable to Class VI owners or operators. Any provisions incorporated
by reference, as well as all permit conditions or permit denials issued
pursuant to such provisions, are enforceable by the EPA pursuant to
section 1423 of SDWA and 40 CFR 147.1(e). The EPA will continue to
administer the UIC program for Class I, II, III, IV, V, and VI
injection wells on Indian lands.
The EPA proposes to incorporate by reference the West Virginia
statutes and regulations applicable to owners or operators of Class VI
wells as a compilation titled ``EPA-approved West Virginia SDWA section
1422 Underground Injection Control Program Statutes and Regulations for
Well Class VI,'' dated [date when the EPA compiles the notebook]. This
compilation would be incorporated by reference into 40 CFR 147.2450 and
is available at www.regulations.gov in the docket for this proposed
rulemaking. The EPA also proposes to codify a table in 40 CFR 147.2450
listing the EPA-approved West Virginia Statutes and Regulations for
Well Class VI included in the compilation that EPA would incorporate by
reference. While the regulations in 47CSR13 contain requirements for
all UIC well classes (i.e., Class I-VI), only the requirements
applicable to owners or operators of Class VI wells would be
incorporated by reference as part of this action.
Upon approval, the EPA would oversee West Virginia's administration
of its Class VI program and will continue to oversee West Virginia's
administration of its programs for Class I, II, III, IV, and V wells.
The EPA will require quarterly reports on non-compliance and annual UIC
performance reports pursuant to 40 CFR 144.8. The amended MOA addendum
between the EPA and West Virginia, signed by the Regional Administrator
on October 9, 2024, articulates that the 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,
UIC grant agreements, and all applicable requirements embodied in
current regulations and Federal law. In addition, the amended MOA
addendum provides that the EPA may request specific information
including permits and the accompanying EJ reviews.
B. Class I-V Codification--No Action
As referenced in section II.C of this preamble, the EPA approved
West Virginia for Class I-V primacy in 1983. After notice and public
comment, the EPA determined that West Virginia's UIC program met
Federal requirements and published its decision to approve West
Virginia's UIC program in the Federal Register (48 FR 55127, December
9, 1983). The Code of Federal Regulations (CFR) sets forth the
applicable UIC program for each State (40 CFR 147.1) and, upon
approving a State for UIC primacy, the EPA typically updates the CFR to
reflect its approval. However, for reasons that current EPA staff were
unable to ascertain, when the EPA approved West Virginia's UIC program
in 1983, the CFR was not revised to reflect the EPA's approval, and the
CFR currently does not reflect West Virginia's Class I-V primacy. While
the EPA is not addressing this CFR discrepancy as part of this proposed
action, the EPA expects to address it later as part of a separate
action. The current proposal is confined to approving a revision to
West Virginia's existing UIC primacy program to grant the State primacy
over Class VI wells; it is not addressing other well classes.\2\
Separately, the EPA is working with West Virginia to assess the State's
current Class I-V program elements and expects to codify in the CFR the
State's Class I-V program in 2025 as part of a separate action. An
email from the WVDEP affirming the State's intention to submit a Class
I-V program revision package in 2025 following the Class VI process can
be found in the docket for this proposed rulemaking.
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\2\ Even if this proposed action were not a revision to an
existing UIC program, the UIC regulations at 40 CFR 145.1(i) allow
States to apply for primary enforcement responsibility for Class VI
wells independently of other injection well classes.
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VI. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive orders
can be found at: https://www.epa.gov/laws-regulations/laws-and-executive-orders.
[[Page 93543]]
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This proposed action is exempt from review under Executive Order
12866, as amended by Executive Order 14094, because the Office of
Management and Budget (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 West Virginia's Class VI UIC Regulations,
and the State of West Virginia 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 would not impose any new requirements on
small entities. It simply approves and codifies West Virginia's UIC
Class VI program, which meets the same standard under SDWA section 1422
as is required for the EPA's regulations governing its direct
implementation of a UIC Class VI program.
D. Unfunded Mandates Reform Act (UMRA)
This proposed action does not contain an 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. The EPA's proposed approval of West Virginia'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 proposed 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
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 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 (NTTAA)
This proposed rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that it is not practicable to assess whether the
human health or environmental conditions that exist prior to this
proposed action result in disproportionate and adverse effects on
communities with environmental justice concerns. There currently are no
Class VI wells permitted in West Virginia and this proposed action
would be a procedural action. The EPA has reviewed West Virginia's
proposed approach to environmental justice, as outlined in the Class VI
Program Description and Class VI MOA amended addendum, and described in
section IV.B of this preamble. The EPA considers West Virginia's Class
VI primacy application to integrate environmental justice and equity
considerations into the State's UIC Class VI program, while ensuring
protection of USDWs. This proposed action would provide West Virginia
with primacy under SDWA section 1422 for a UIC Class VI program,
pursuant to which West Virginia would implement a program that meets
the EPA's requirements for UIC Class VI programs.
VII. References
Attorney General's Statement ``Attorney General's Statement to
Accompany West Virginia's Underground Injection Program Class VI
Primacy Application,'' signed by the General Counsel of the West
Virginia Department of Environmental Protection, April 29, 2024.
Class VI Underground Injection Control Program Description ``WV
Class 6 Program Description'', June 2024.
Email from West Virginia to EPA related to Class I-V program
revision, April 22, 2024.
Letter from Governor of West Virginia to Regional Administrator, EPA
Region III, April 25, 2024.
Memorandum of Agreement Amended Addendum 1 between the State of West
Virginia and the EPA, Region III for the UIC Class VI Program,
signed by the EPA Regional Administrator on October 9, 2024.
Federal Register notice ``West Virginia Department of Natural
Resources; Underground Injection Control Program Approval'', EPA, 48
FR 55127-55128 (December 9, 1983).
Memorandum of Agreement between the State of West Virginia and the
EPA, Region III, signed by the EPA Regional Administrator on August
31, 1983.
Memorandum of Agreement Between The West Virginia Department of
Environmental Protection and The West Virginia Department of Health,
signed April 26, 2024.
Memorandum of Agreement Between The West Virginia Department of
Environmental Protection and The West Virginia Geological and
Economic Survey, signed April 29, 2024.
Program Description ``Program Description for the West Virginia
Underground Injection Control Program'', December 1983.
State of West Virginia. Notice of Action Taken by Legislative Rule-
Making Review Committee, December 9, 2021.
State of West Virginia. Notice of Action Taken by Legislative Rule-
Making Review Committee, September 13, 2023.
State of West Virginia. Notice of Public Comment Period and Hearing,
June 12, 2023.
State of West Virginia. Notice of Public Comment Period and Hearing,
June 23, 2021.
State of West Virginia. Public Comments and Responses, July 24,
2023.
State of West Virginia. Public Comments and Responses, July 30,
2021.
State of West Virginia. Public Hearing Transcript (Public Hearing
Date: July 23, 2021), July 31, 2021.
[[Page 93544]]
State of West Virginia. Public Hearing Transcript (Public Hearing
Date: July 18, 2023), August 12, 2023.
USEPA. 2023b. U.S. Environmental Protection Agency. Memorandum to
Water Division Directors, Regions I-X, from Radhika Fox, Office of
Water. Environmental Justice Guidance for UIC Class VI Permitting
and Primacy (August 17, 2023).
West Virginia Code Sec. 22-11. Water Pollution Control Act. May 13,
2024.
West Virginia Code Sec. 22-11A. Carbon Dioxide Sequestration Pilot
Program. May 20, 2022.
West Virginia Code Sec. 22-11B. Underground Carbon Dioxide
Sequestration and Storage. May 13, 2024.
West Virginia Code of State Rules Sec. 47-13. Underground Injection
Control. April 5, 2024.
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, the 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. Add Sec. 147.2450 to read as follows:
Sec. 147.2450 State-administered program--Class VI Wells
The UIC program for Class VI wells in the State of West Virginia,
except those on Indian lands, is the program administered by the West
Virginia Department of Environmental Protection, approved by the EPA
pursuant to SDWA section 1422. The effective date of this program is
[DATE 30 DAYS AFTER FINAL RULE PUBLICATION IN THE FEDERAL REGISTER].
The UIC program for Class VI wells in the State of West Virginia,
except those located on Indian lands, consists of the following
elements, as submitted to the EPA in the State's program revision
application.
(a) Incorporation by reference. The requirements applicable to
owners or operators of Class VI wells set forth in the State statutes
and regulations approved by the EPA for including in ``EPA-approved
West Virginia SDWA Sec. 1422 Underground Injection Control Program
Statutes and Regulations for Well Class VI,'' dated [date when the EPA
compiles the notebook], and listed in table 1 to this paragraph (a),
are hereby incorporated by reference and made a part of the applicable
UIC program under the SDWA for the State of West Virginia. 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 State
of West Virginia's statutes and regulations that are incorporated by
reference may be inspected at the U.S. Environmental Protection Agency,
Region 3, Four Penn Center, 1600 JFK Blvd., Philadelphia, PA 19103 and
the U.S. Environmental Protection Agency, Water Docket, EPA Docket
Center (EPA/DC), EPA WJC West, Room 3334, 1301 Constitution Ave. NW,
Washington, DC 20004. If you wish to obtain materials from the EPA
Regional Office, please call (215) 814-2816, or from the EPA
Headquarters Library, please call the Water Docket at (202) 566-2426.
You may also view this material at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. You may also obtain
the State of West Virginia's statutes and regulations that are
incorporated by reference from: Room MB-27, Building 1, State Capitol
Complex, Charleston, West Virginia 25305; phone: (304) 347-4836;
website: www.wvlegislature.gov.
Table 1 to Paragraph (a)--EPA-Approved West Virginia SDWA Sec. 1422 Underground Injection Control Program
Statutes and Regulations for Well Class VI
----------------------------------------------------------------------------------------------------------------
State citation Title/subject State effective date EPA approval date
----------------------------------------------------------------------------------------------------------------
West Virginia Code Sec. 22-11...... Water Pollution Control May 13, 2024........... [DATE OF FINAL RULE
Act. PUBLICATION IN THE
FEDERAL REGISTER.]
West Virginia Code Sec. 22-11A..... Carbon Dioxide May 30, 2022........... [DATE OF FINAL RULE
Sequestration Pilot PUBLICATION IN THE
Program. FEDERAL REGISTER.]
West Virginia Code Sec. 22-11B..... Underground Carbon May 13, 2024........... [DATE OF FINAL RULE
Dioxide Sequestration PUBLICATION IN THE
and Storage. FEDERAL REGISTER.]
West Virginia Code of State Rules Underground Injection April 5, 2024.......... [DATE OF FINAL RULE
Sec. 47-13. Control. PUBLICATION IN THE
FEDERAL REGISTER.]
----------------------------------------------------------------------------------------------------------------
(b) Memorandum of Agreement (MOA). (1) The Memorandum of Agreement
between the State of West Virginia and the EPA, Region III, signed by
the EPA Regional Administrator on August 31, 1983.
(2) Memorandum of Agreement Amended Addendum 1 between the State of
West Virginia and the EPA, Region III for the UIC Class VI Program,
signed by the EPA Regional Administrator on October 9, 2024.
(c) Letter from Governor. Letter from Governor of West Virginia to
Regional Administrator, EPA Region III, April 25, 2024.
(d) West Virginia Memorandums of Agreement. (1) Memorandum of
Agreement Between The West Virginia Department of Environmental
Protection and The West Virginia Geological and Economic Survey,
effective April 1, 2024.
(2) Memorandum of Agreement Between The West Virginia Department of
Environmental Protection and The West Virginia Department of Health,
signed April 26, 2024.
(e) Statement of legal authority. Attorney General's Statement,
``Attorney General's Statement to Accompany West Virginia's Underground
Injection Program Class VI Primacy Application'', signed by the
Attorney General of West Virginia on April 29, 2024.
(f) Program Description. The Program Description, ``Program
Description for the West Virginia Underground Injection Control
Program'', and any other materials submitted as part of the application
or amendment thereto, and the Class VI Underground Injection Control
Program Description, ``WV Class
[[Page 93545]]
6 Program Description'', and any other materials submitted as part of
the program revision application or as amendment thereto.
[FR Doc. 2024-27638 Filed 11-25-24; 8:45 am]
BILLING CODE 6560-50-P