Navajo Nation; Underground Injection Control (UIC) Program; Primacy Approval, 65556-65565 [E8-26023]

Download as PDF 65556 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule simply stays the effectiveness of requirements for air emission testing bodies that would have become effective on January 1, 2009. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, entitled ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. dwashington3 on PRODPC61 with RULES I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104–113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule simply stays the effectiveness of requirements for air emission testing bodies that would have become effective on January 1, 2009. Moreover, when first promulgated, the AETB provision required the use of ASTM D 7036–04, an applicable voluntary consensus standard. VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision 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 and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not change the level of protection provided to human health or the environment, but simply stays the effectiveness of requirements for air emission testing bodies that would have become effective on January 1, 2009. Moreover, when first promulgated, the AETB provision did not change the level of protection provided to human health or the environment. List of Subjects in 40 CFR Part 75 Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Electric utilities, Carbon dioxide, Continuous emission monitoring, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur oxides, Reference test methods. Dated: October 29, 2008. Stephen L. Johnson, Administrator. ■ 40 CFR part 75 is amended as follows: PART 75—CONTINUOUS EMISSION MONITORING 1. The authority citation for part 75 continues to read as follows: ■ Authority: 42 U.S.C. 7401–7671q. Appendix A to Part 75—[Amended] 2. In Appendix A to Part 75, the effectiveness of Section 6.1.2(a) through (c) is stayed indefinitely. ■ [FR Doc. E8–26264 Filed 11–3–08; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 147 K. Congressional Review Act [EPA–R09–OW–2007–0248; FRL–8734–5] The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established that the effective date shall be upon publication in the Federal Register. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Navajo Nation; Underground Injection Control (UIC) Program; Primacy Approval PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 Environmental Protection Agency. ACTION: Final rule. AGENCY: SUMMARY: The Environmental Protection Agency (EPA) is approving an application from the Navajo Nation (‘‘Tribe’’) under Section 1425 of the Safe Drinking Water Act (SDWA) for primary enforcement responsibility (or ‘‘primacy’’) for the underground injection control (UIC) program for Class II (oil and gas-related) injection wells located within the exterior boundaries of the formal Navajo Reservation, including the three satellite reservations (Alamo, Canoncito and Ramah), but excluding the former Bennett Freeze Area, the Four Corners Power Plant and the Navajo Generating Station; and on Navajo Nation tribal trust lands and trust allotments outside the exterior boundaries of the formal Navajo Reservation. (These areas are collectively referred to hereinafter as ‘‘areas covered by the Tribe’s Primacy Application.’’) DATES: This approval is effective December 4, 2008. The incorporation by E:\FR\FM\04NOR1.SGM 04NOR1 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of December 4, 2008. EPA has established a docket for this action under Docket ID No. EPA–R09–OW–2007–0248. All documents in the docket, including the Decision Document, the Navajo Nation’s Primacy Application and EPA’s supporting documentation, are listed on the https://www.regulations.gov Web site. Although listed in the docket ADDRESSES: index, some information is not publicly available, e.g., CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in https:// www.regulations.gov or in hard copy at the U.S. Environmental Protection Agency, Ground Water Office (WTR–9), 75 Hawthorne Street, San Francisco, CA 94105–3920. This Docket Facility is open Monday through Friday, between 8 a.m. and 4 p.m., Pacific time excluding legal holidays. FOR FURTHER INFORMATION CONTACT: Kate Rao, U.S. Environmental Protection Agency, Ground Water Office (WTR–9), 75 Hawthorne Street, San Francisco, CA 94105–3920. Telephone number: 415– 972–3533. E-mail: rao.kate@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A. Regulated Entities North American Industry Classification System Category Examples of potentially regulated entities State, Local, and Tribal Governments .... State, local, and tribal governments that own and operate Class II injection wells in the areas covered by the Tribe’s Primacy Application. Private owners and operators of Class II injection wells in the areas covered by the Tribe’s Primacy Application. Municipal owners and operators of Class II injection wells in the areas covered by the Tribe’s Primacy Application. Industry .................................................... Municipalities ........................................... This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. II. Background dwashington3 on PRODPC61 with RULES A. The Navajo Nation’s Class II UIC Primacy Application On October 18, 2001, the Navajo Nation submitted an initial application for primacy for its UIC program for Class II wells. On January 30, 2002, the EPA notified the Navajo Nation that its application required revision, clarification and additional documentation. The Tribe provided various supplemental application materials to EPA. The Tribe amended its underground injection control regulations, and, in 2006, submitted the final outstanding components of its Primacy Application to EPA. Subsequently, in 2007, as an addendum to its Primacy Application, the Tribe submitted several Navajo Nation Class II UIC permits that it had issued pursuant to its authority under tribal laws and regulations. The materials described above are collectively referred to hereinafter as the Tribe’s ‘‘Primacy Application,’’ and are described in detail in EPA’s Decision Document: The Navajo Nation—Approval of Tribal VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 Application for Primacy, Class II Underground Injection Control Program, Safe Drinking Water Act. B. Proposed Rule On April 24, 2008, EPA issued a proposed rule in which the Agency announced its proposal to approve the Tribe’s primacy for the Class II UIC program in the areas covered by the Tribe’s Primacy Application under section 1425 of the SDWA, 42 U.S.C. 300h–4. EPA requested public review of the proposed rule; the Navajo Nation’s Primacy Application; a proposed Decision Document, which included findings that the Navajo Nation meets all eligibility requirements of section 1451 of the SDWA and its implementing regulations at 40 CFR part 145, Subpart E, as well as all applicable requirements for approval under SDWA section 1425, and EPA’s supporting documentation (see 73 FR 22111–22120, April 24, 2008). EPA received two comments on the proposal: one supporting the action, and the other challenging EPA’s proposed approval of the Tribe’s Application based on concerns about the Tribe’s jurisdictional authority in certain areas covered by the Tribe’s Primacy Application. EPA’s response to the submitted comments is provided in section V. Response to Comments. III. Legal Authorities These regulations are being promulgated under authority of sections 1422, 1425, 1450 and 1451 of the SDWA, 42 U.S.C. 300h–1, 300h–4, 300j–9 and 300j–11. PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 65557 924110 221310 924110 A. Requirements for State UIC Programs Section 1421 of the SDWA requires the Administrator of EPA to promulgate minimum requirements for effective State UIC programs to prevent underground injection activities that endanger underground sources of drinking water (USDWs). Sections 1422 and 1425 of the SDWA establish requirements for States seeking EPA approval of State UIC programs. For States that seek primacy for UIC programs under section 1422 of the SDWA, EPA has promulgated regulations setting forth the applicable procedures and substantive requirements. These regulations are codified in the Code of Federal Regulations (40 CFR part 145). They include 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. Section 1425 of the SDWA describes alternative requirements for States to obtain primacy for UIC programs that relate solely to Class II wells. Section 1425 allows a State, in lieu of the showing required under SDWA section 1422(b)(1)(A), to demonstrate that its proposed Class II UIC program meets the minimum requirements of SDWA sections 1421(b)(1)(A)–(D), and represents an ‘‘effective program (including adequate recordkeeping and reporting) to prevent underground injection which endangers drinking water sources.’’ EPA published interim guidance entitled ‘‘Guidance for State Submissions Under Section 1425 of the Safe Drinking Water Act, Ground Water E:\FR\FM\04NOR1.SGM 04NOR1 65558 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations Program Guidance #19’’ (Guidance 19) in the Federal Register (46 FR 27333– 27339, May 19, 1981) which sets forth the criteria EPA generally considers in evaluating applications under SDWA section 1425. dwashington3 on PRODPC61 with RULES B. Tribal UIC Programs—Tribal Eligibility Requirements Section 1451 of the SDWA and 40 CFR 145.52 authorize the Administrator of EPA to treat an Indian Tribe in the same manner as a State for purposes of delegating primary enforcement responsibility for the UIC program if the Tribe demonstrates that: (1) It is recognized by the Secretary of the Interior; (2) it has a governing body carrying out substantial governmental duties and powers over a defined area; (3) the functions to be exercised by the Tribe are within an area of the tribal government’s jurisdiction; and (4) the Tribe is reasonably expected to be capable, in the EPA Administrator’s judgment, of implementing a program consistent with the terms and purposes of the SDWA and applicable regulations. Tribes may apply for primacy under either or both sections 1422 and 1425 of the SDWA; and the references in 40 CFR part 145 and the EPA’s May 19, 1981, interim guidance to ‘‘State’’ programs are also construed to include eligible ‘‘tribal’’ programs. (See also 40 CFR 145.1(h), which provides that all requirements of parts 124, 144, 145, and 146 that apply to States with UIC primacy also apply to Indian Tribes except where specifically noted.) IV. Explanation of This Action EPA is approving the Navajo Nation’s application for primacy for the SDWA Class II UIC program in the areas covered by the Tribe’s Primacy Application. EPA’s final rulemaking decision is based on a careful and extensive legal and technical review of the Tribe’s Primacy Application, the two public comments received, the Navajo Nation’s response to those comments, and other relevant information. EPA’s Decision Document in support of EPA’s approval is part of the public record and is available for public review. The Decision Document includes findings that the Navajo Nation meets all requirements of section 1451 of the SDWA, including that the Tribe has demonstrated adequate jurisdictional authority over all Class II injection activities in the areas covered by the Tribe’s Primacy Application, including those conducted by nonmembers, and that the Tribe’s program meets all applicable VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 requirements for approval under section 1425 of the SDWA. As a result of this final action, the Navajo Nation will assume primary enforcement authority for regulating all Class II injection activities in the areas covered by the Tribe’s Primacy Application. Because Indian Tribes are precluded under Federal Indian law from pursuing certain criminal enforcement matters under 25 U.S.C. 1302, EPA has entered into a Criminal Enforcement Memorandum of Agreement with the Navajo Nation (signed by EPA on October 30, 2006), per 40 CFR 145.13(e), whereby the Tribe will notify EPA of potential criminal violations of its SDWA Class II UIC program. EPA will continue to administer its SDWA UIC program for any Class I, III, IV, and V wells on Navajo Indian lands (defined as Indian country in EPA UIC regulations; see definition of ‘‘Indian lands’’ at 40 CFR 144.3). EPA will oversee the Navajo Nation’s administration of the SDWA Class II UIC program in the areas covered by the Tribe’s Primacy Application. Part of EPA’s oversight responsibility will include requiring quarterly reports of non-compliance and annual UIC program performance reports pursuant to 40 CFR 144.8. The UIC Memorandum of Agreement between EPA and the Navajo Nation (signed by EPA on August 21, 2001) provides EPA with the opportunity to review and comment on all permits and, where applicable, object. EPA is amending 40 CFR part 147 to revise the references to the EPAadministered program for Class II injection wells in the areas covered by the Tribe’s Primacy Application to refer to the Navajo Nation’s Class II UIC program. The provisions of the Navajo Nation Underground Injection Control (NNUIC) Regulations that contain standards, requirements, and procedures applicable to owners or operators of Class II wells in the areas covered by the Tribe’s Primacy Application are being incorporated by reference into 40 CFR part 147. Any provisions incorporated by reference, as well as all Tribal permit conditions or permit denials issued pursuant to such provisions, are enforceable by EPA pursuant to section 1423 of the SDWA and 40 CFR 147.1(e). Class II UIC Permitting Matrix EPA evaluated the existing Federal and Tribal UIC Class II permitting matrix in the areas covered by the Tribe’s Primacy Application, which can be summarized into four categories: 1) Wells with both Navajo Nation- and EPA-issued permits; 2) wells with EPA- PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 issued permits only; 3) wells with Navajo Nation-issued permits only (Federally authorized by rule); and 4) wells without permits (authorized by rule). Below is a summary of the impact of this final rulemaking action on each category of wells. Wells with both Navajo Nation- and EPA-issued permits: The Navajo Nationissued UIC permits will remain in effect as the Federally enforceable UIC permits under the SDWA and the EPA-issued permits for wells in this category will expire. EPA-issued permits only: The Navajo Nation will administer the EPA-issued Class II UIC permits until Navajo Nation UIC permits are issued. Navajo Nation-issued permits only: The Navajo-Nation-issued Class II UIC permits will remain in effect as Federally enforceable UIC permits under the SDWA. Wells not currently permitted by EPA or the Tribe: The Navajo Nation, in its UIC Regulations, has adopted by reference the Federal authorization by rule regulations that will apply until the Tribe issues UIC permits for these wells. Copies of the 18 Navajo Nation-issued permits are part of the public record and available for review in EPA’s Docket No. EPA–R09–OW–2007–0248. Proposed Rule Revisions Not Included In its proposed rule for this action, EPA proposed minor revisions to specific introductory language at 40 CFR part 147 and updates to 40 CFR 147.1, which were not specific to the Navajo Nation’s Primacy Application. The same regulatory revisions were previously proposed by EPA Region 8 (see 73 FR 5471, January 30, 2008; Fort Peck Assiniboine and Sioux Tribes in Montana; Underground Injection Control (UIC) Program; Proposed Primacy Approval and Minor Revisions) and subsequently promulgated (see Fort Peck final rule which published in the Federal Register on October 27, 2008 at 73 FR 63639: Fort Peck Assiniboine and Sioux Tribes in Montana; Underground Injection Control (UIC) Program; Primacy Approval and Minor Revisions). Thus, today’s rule does not include this regulatory language because it has already been incorporated into 40 CFR part 147 and 40 CFR 147.1. Cross Media Electronic Reporting Rule The analysis of the Navajo Nation’s program with respect to 40 CFR 145.11 in EPA’s proposed Decision Document for this action did not include a discussion of the Tribal program’s consistency with 40 CFR 145.11(a)(33). 40 CFR 145.11(a)(33) requires that State programs under that part that ‘‘wish to E:\FR\FM\04NOR1.SGM 04NOR1 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations receive electronic documents’’ have legal authority to implement 40 CFR part 3, the Cross Media Electronic Reporting Rule (CROMERR) (see 70 FR 59879, October 13, 2005). CROMERR includes requirements applicable to States, Tribes, and local governments administering or seeking to administer authorized programs under Title 40 of the CFR where such programs receive electronic documents in lieu of paper to satisfy requirements under such programs. EPA has consulted with the Navajo Nation and determined that the Navajo Nation UIC Program does not accept electronic copies of official documents or records, and therefore has concluded that the Tribe’s program is consistent with 40 CFR 145.11(a)(33). V. Response to Comments Summary EPA received two letters providing comments on the proposed rulemaking. One comment was from a private individual (‘‘Commenter A’’), who expressed support for the Tribe’s application and EPA’s proposed decision to approve it. The second comment was submitted by a private law firm on behalf of an industry client that is a member of the regulated community (‘‘Commenter B’’). It opposed on several legal grounds EPA’s proposed decision, particularly regarding areas outside of the exterior boundaries of the formal Navajo Reservation, although it did not specifically contest the proposed decision for areas within the boundaries of the Reservation. As provided for by EPA policy, EPA provided the Navajo Nation with an opportunity to respond to these comments, and the response submitted by the Navajo Nation supplements the record for this action. Comments Received dwashington3 on PRODPC61 with RULES A. Commenter A: An individual, who previously lived on the Navajo Nation, commented that he approved of EPA’s proposed primacy determination. EPA appreciates the comment in support of the Tribe’s application and EPA’s proposed decision to approve the application. B. Commenter B: 1. The United States Supreme Court Has Applied Federal Common Law Principles of Indian Sovereignty Over the Activities of Non-Indians in the Context of and Only to Conduct on Reservation Land Commenter B first objects to EPA’s proposed approval because he argues that Federal common law and Supreme Court precedent limit tribal authority VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 over nonmember activities to conduct on reservation land and, therefore, EPA’s approval may not extend to nonmember activities outside the formal Reservation. EPA disagrees. Section 1451 of the SDWA authorizes EPA to treat a Tribe in a manner similar to a State (TAS) to carry out functions authorized by the SDWA ‘‘within the area of the Tribal Government’s jurisdiction.’’ 42 U.S.C. 300j–11(b)(1)(B). There is no language in the SDWA limiting the role of Tribes under the SDWA to lands within the boundaries of Indian reservations, and no evidence of Congressional intent to impose such limits. As noted by the Navajo Nation in its response, the SDWA is different from the Clean Water Act, which contains a TAS provision that limits the role of Tribes to reservation areas. See 33 U.S.C. 1377(e)(2) (specifying that the functions exercised by the Tribe must pertain to water resources within the borders of an Indian reservation). Cf. 42 U.S.C. 7601(d)(2)(B) (authorizing TAS for Tribes under the Clean Air Act for ‘‘reservation[s] or other areas within the Tribe’s jurisdiction,’’ which includes non-reservation areas of Indian country). The relevant legal term with respect to who has jurisdiction in a particular area is ‘‘Indian country,’’ as defined at 18 U.S.C. 1151. Indian Country, U.S.A. v. Oklahoma Tax Comm’n, 829 F.2d 967, 973 (10th Cir. 1987) (‘‘[T]he Indian country classification is the benchmark for approaching the allocation of Federal, tribal, and State authority with respect to Indians and Indian lands.’’). The ‘‘Indian country’’ statute makes it clear that Indian country extends beyond reservations and encompasses three types of land: All lands within reservation boundaries, all dependent Indian communities, and ‘‘all Indian allotments, the Indian title to which have not been extinguished.’’ Alaska v. Native Village of Venetie, 522 U.S. 520, 526–527, (1998), quoting 18 U.S.C. 1151 (a)–(c). In Venetie, the Supreme Court confirmed that the ‘‘Indian country’’ statute is a codification of Federal case law, and that, while the statute is found in the criminal code, it also generally applies to questions of tribal civil jurisdiction. Id. at 527 and n.1, citing with approval to DeCoteau v. District Court, 420 U.S. 425, 427 n. 2 (1975). As discussed further in this section, the case law codified by the statute, as described in Venetie, includes Supreme Court decisions establishing that Indian country includes both areas that are within reservations and areas that are not, and that the term reservation includes both formal reservations and PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 65559 informal reservations (i.e., lands held by the government in trust for Tribes that have not been formally designated as reservations). The Venetie Court also recognized that the term ‘‘Indian country’’ delineates the areas over which primary jurisdiction rests with the Federal government and the Tribes rather than the States. Id. at 527 n. 1. EPA has previously construed the language in SDWA section 1451 as covering the full extent of Indian country. In particular, EPA granted the Navajo Nation primacy under the SDWA Public Water Systems Supervision (PWSS) program for lands within the formal Reservation boundary as well as tribal trust lands (which EPA treated as informal reservation lands) and for allotments in the Eastern Agency, noting that, ‘‘[t]he statutory language in section 1451 of the SDWA establishes a relatively broad standard for tribal jurisdiction.’’ EPA DETERMINATION OF THE NAVAJO NATION’S ELIGIBILITY UNDER SECTION 1451 OF THE SDWA 8 (October 23, 2000) (‘‘EPA PWSS DETERMINATION’’). In EPA’s approval of the Navajo Nation’s SDWA PWSS primacy program, EPA found that Indian country was the relevant standard: ‘‘EPA agrees that ‘Indian country’ is the appropriate standard for determining the territorial extent of jurisdiction of the Navajo Nation for the purposes of section 1451 of the SDWA.’’ EPA PWSS DETERMINATION at 10. EPA found in the SDWA PWSS approval that the Navajo Nation had demonstrated its authority under the SDWA over lands within the formal Reservation boundary and tribal trust lands and allotments in the Eastern Agency. EPA’s interpretation of section 1451 in the primacy determination for the Navajo Nation SDWA PWSS program has not been challenged by Commenter B or any other party, but EPA’s position that tribal authority in Indian country may extend beyond a formal reservation has been challenged and upheld in other contexts, including Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1292–94 (D.C. Cir. 2000) (upholding EPA’s regulations that interpret the Clean Air Act’s TAS provisions as authorizing tribal programs for reservations (including informal reservations, i.e., tribal trust lands not formally designated as a reservation) and for other Indian country areas (including dependent Indian communities and allotments) within the Tribe’s jurisdiction). E:\FR\FM\04NOR1.SGM 04NOR1 65560 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations 2. The Navajo Nation Asserts That It Has Inherent Authority and Jurisdiction Over Indian Country as Defined in 18 U.S.C. 1151 and 7 N.N.C. 254 Commenter B argues that 18 U.S.C. 1151 is neither a Congressional delegation of authority nor a source of inherent sovereign authority for the Navajo Nation. EPA recognizes that 18 U.S.C. 1151 does not provide the source of a Tribe’s inherent sovereign authority, but rather generally defines the limit of the area over which a Tribe may demonstrate authority. As explained in EPA’s Decision Document for this action, and supported by the Findings of Fact, Appendix A, EPA finds that the Navajo Nation has demonstrated its authority under the SDWA over the areas covered by its application, including tribal trust lands and trust allotments in the Eastern Agency. dwashington3 on PRODPC61 with RULES 3. The Montana Doctrine Indicates That ‘‘Navajo Tribal Sovereignty’’ and ‘‘Inherent Sovereignty’’ Over the Activities of Non-Indians Does Not Extend Beyond the Boundaries of the Navajo Reservation Regardless of How the Land Is Titled Commenter B’s third comment overlaps with his first comment in stating that ‘‘to the extent that the Navajo Nation may have inherent sovereign authority over the activities of non-Indians, that authority applies only to lands within the Navajo reservation if Montana exceptions (described more fully below in section VI) apply, as determined on a case-by-case basis, and does not extend to lands or activities outside the exterior boundaries of the Navajo reservation.’’ Commenter B cites several cases, but none of the cases cited support Commenter B’s assertion that the Navajo Tribe may not exercise inherent authority over tribal ‘‘lands or activities outside the exterior boundaries’’ of a formal reservation; rather, the cited cases present the more common factual scenario involving fee lands within a formal reservation boundary. The Tenth Circuit has previously considered the argument that the Montana test cannot apply outside a reservation boundary, and more specifically that it cannot apply in the Eastern Agency. See Texaco, Inc. v. Zah, 5 F.3d 1374 (10th Cir. 1993). In Zah, the appellants contended that the tribal courts lacked jurisdiction because the Navajo Nation’s authority over nonIndians terminated at the reservation boundary, citing specifically to United States v. Montana, (1981) and Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 141 (1982). The Tenth Circuit in Zah rejected this argument, however, finding, ‘‘[s]uch cases * * * do not expressly stand for the proposition that a tribal court has no jurisdiction over non-Indian activity occurring outside the reservation, but within Indian Country.’’ Zah at 1377. Contrary to Commenter B’s comments, neither the Tenth Circuit nor the Supreme Court have held that Tribes cannot exercise inherent authority in Indian country outside of reservation boundaries.1 Indeed such a holding would effectively eliminate any significance to the broader scope of the term ‘‘Indian country.’’ Moreover, as already noted, the Supreme Court has expressly recognized that Indian country is the area of primary Federal and tribal, rather than State, jurisdiction, and that Indian country, and thus tribal jurisdiction, can exist outside reservations, consistent with both the text of the Indian country statute and the Federal common law that the statute codified. Venetie, 522 U.S. at 527–529. Moreover, the Supreme Court has found that lands owned by the Federal government in trust for Indian Tribes are Indian country, and that formal designation as a reservation is not a necessary requirement for status as Indian country. See, e.g., Oklahoma Tax Comm’n v. Potawatomi Tribe, 498 U.S. 505, 511 (1991), (‘‘formally designated ‘reservation’ ’’ status not dispositive; trust lands can be Indian country); Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993) (‘‘formal reservation’’ is not a necessary precondition for Indian country status under 18 U.S.C. 1151(a); rejecting argument that a State has taxing jurisdiction over tribal members unless they live ‘‘on a reservation’’) (emphasis in original). The Court has also held, directly contrary to the commenter’s assertion, that Indian allotments that are not located on a reservation can be Indian country and thus subject to tribal jurisdiction. Venetie, 522 U.S. at 529, citing U.S. v. Pelican, 232 U.S. 442, 449 (1914). As discussed earlier in this response to comments, EPA has also stated in regulations and in previous determinations that tribal authority to implement the SDWA can extend to the limits of Indian country. Although the most recent Supreme Court case addressing tribal authority 1 The most recent Tenth Circuit decision, MacArthur v. San Juan County, 497 F.3d 1057 (10th Cir. 2007) cert. denied, 128 S.Ct. 1229 (2008), involved tribal authority over employment-related claims against a non-tribal facility located on stateowned fee land within the Navajo reservation rather than a non-reservation area of Navajo Indian country. PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 over nonmember activities was decided after Commenter B submitted its comments on this action, the Court in that case confirms that Montana continues to be the relevant test with respect to tribal authority over nonmember activities, and that in certain circumstances, ‘‘tribes may exercise authority over the conduct of nonmembers[.]’’ Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554 U.S. lll, 128 S.Ct. 2709, 2726 (2008). In its decision, the Court did not distinguish between whether lands are within or outside the boundaries of a formal reservation, as the primary issue was whether the sale of nonmemberowned fee land constituted a nonmember activity subject to regulation by the Tribe. Id. at 2723. 4. Even if There Is Inherent Authority Over the Activities of Non-Indians on Tribal Trust Lands Outside the Exterior Boundaries of the Reservation, the Navajo Nation Does Not Have Inherent Authority Over the Activities of NonIndians on ‘‘Split Estate’’ and Allotted Lands Outside the Boundaries of the Reservation Commenter B’s fourth comment argues in the alternative that if the Navajo Nation has authority over the activities of nonmembers on tribal trust lands in the Eastern Agency, the Navajo Nation does not have authority over the activities of nonmembers on ‘‘split estate’’ and allotments in the Eastern Agency area. As discussed more extensively earlier in this response to comments and in the Decision Document, EPA has previously found that Tribes may exercise authority under the SDWA over areas within their jurisdiction, including tribal trust lands and allotments in the Eastern Agency. As EPA has noted in the Decision Document and earlier in this discussion, no Congressional intent to limit tribal authority to reservation lands can be read into the SDWA. With respect to split estate lands described in the Decision Document, the U.S. Court of Appeals for the Tenth Circuit has previously determined that split estate lands in the Eastern Agency are Indian country, as discussed in greater length in the Decision Document. HRI Inc. v. EPA, 198 F. 3d 1224, 1254 (‘‘The split nature of surface and mineral estates does not alter the jurisdictional status of these lands for SDWA purposes.’’). In finding that lands outside the formal Navajo Reservation were Indian country, the Court in HRI cited to a previous Tenth Circuit case finding that allotments outside the boundaries of a formal reservation qualify as Indian country under tribal civil jurisdiction. E:\FR\FM\04NOR1.SGM 04NOR1 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations HRI at 1250. (‘‘See Mustang Prod. Co. v. Harrison, 94 F.3d 1382, 1384 (10th Cir. 1996) (holding that ‘disestablishment of the reservation is not dispositive of the question of tribal jurisdiction. In order to determine whether the Tribes have jurisdiction we must instead look to whether the land in question is Indian country’ ’’ (internal citations omitted)). Commenter B also argues that the Navajo Nation waived the right to occupy lands outside the Reservation, as defined in the 1868 Treaty, and therefore waived its basis for inherent authority in any area outside the exterior boundaries of the formal Reservation. The Navajo Nation has provided a detailed response to this comment, and has described how in fact the formal Navajo Reservation was expanded 11 times by Executive Orders and Acts of Congress subsequent to the 1868 Treaty. Clearly, the Federal government has affirmatively set aside all the lands that are held in trust for the Navajo Nation or its members, and there is no indication that the Navajo Nation ever intended to waive authority over the lands in the Eastern Navajo Agency. Moreover, apart from the power to exclude, ‘‘tribes retain authority to govern ‘both their members and their territory.’ ’’ Plains Commerce, 128 S.Ct. at 2718, quoting U.S. v. Mazurie, 419 U.S. 544 (1975). dwashington3 on PRODPC61 with RULES 5. Jurisdiction Based on the Montana Exceptions Must Be Determined on a Case-by-Case Basis Finally, Commenter B’s fifth comment states that jurisdiction based on the Montana test must be determined on a case-by-case basis. EPA does evaluate tribal TAS applications on a case-bycase basis, examining the facts presented in each application, as EPA did in this case. The Decision Document, including the Findings of Fact, shows clearly that EPA has conducted a thorough analysis of the Navajo Nation’s authority to regulate nonmember activities and found that, for purposes of primacy of the SDWA Class II underground injection control program, the Navajo Nation has demonstrated that it has the necessary inherent authority over such activities in the areas covered by its application, including individual and tribal trust lands outside the boundaries of the formal Reservation. VI. Generalized Findings As described earlier, EPA’s decision to approve the Navajo Nation to implement a Class II UIC program includes findings that the Tribe meets all requirements of section 1451 of the SDWA, including that the Tribe has VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 demonstrated adequate jurisdictional authority over all Class II injection activities in the areas covered by the Tribe’s Primacy Application, including those conducted by nonmembers. With regard to authority over nonmember activities on nonmember-owned fee lands, EPA finds that the Tribe has demonstrated such authority under the test established by the United States Supreme Court in Montana v. United States, 450 U.S. 544 (1981) (Montana test). Under the Montana test, the Supreme Court held that absent a Federal grant of authority, Tribes generally lack inherent jurisdiction over the activities of nonmembers on nonmember-owned fee lands. However, the Court also found that Indian Tribes retain inherent sovereign power to exercise civil jurisdiction over nonmember activities on nonmemberowned fee lands within the reservation where: (1) Nonmembers enter into ‘‘consensual relationships with the Tribe or its members, through commercial dealing, contracts, leases, or other arrangements’’ or (2) ‘‘* * * [nonmember] conduct threatens or has some direct effect on the political integrity, the economic security or the health or welfare of the Tribe.’’ Id. at 565–66. In analyzing Tribal assertions of inherent authority over nonmember activities on Indian reservations, the Supreme Court has reiterated that the Montana test remains the relevant standard. See e.g., Strate v. A–1 Contractors, 520 U.S. 438, 445 (1997) (describing Montana as ‘‘the pathmarking case concerning Tribal civil authority over nonmembers’’); Nevada v. Hicks, 533 U.S. 353, 358 (2001) (‘‘Indian Tribes’ regulatory authority over nonmembers is governed by the principles set forth in [Montana]’’); Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 128 S.Ct. 2709. As part of the public record available for review, EPA’s Decision Document, and Appendix A thereto, set forth the Agency’s specific factual findings relating to the Tribe’s demonstration of inherent authority over the UIC Class II activities of nonmembers under the Montana test and, in particular, the potential for direct effects of nonmember UIC activities on the Tribe’s health, welfare, political integrity, and economic security that are serious and substantial. In addition, EPA is publishing the general findings set forth below regarding the effects of underground injection activities. These general findings provide a backdrop for EPA’s analysis of the Tribe’s assertion of authority under the Montana test and PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 65561 supplement the Agency’s factual findings specific to the Tribe and to the areas covered by the Tribe’s Primacy Application. A. General Finding on Human Health and Welfare, and Economic and Political Impacts In enacting part C of the SDWA, Congress generally recognized that if left unregulated or improperly managed, underground injection can endanger drinking water sources and thus has the potential to cause serious and substantial, harmful impacts on human health and welfare, and economic and political interests. As stated in the legislative history of the SDWA: [U]nderground injection of contaminants is clearly an increasing problem. Municipalities are increasingly engaging in underground injection of sewage, sludge, and other wastes. Industries are injecting chemicals, byproducts, and wastes. Energy production companies are using injection techniques to increase production and to dispose of unwanted brines brought to the surface during production. Even government agencies, including the military, are getting rid of difficult to manage waste problems by underground disposal methods. Part C is intended to deal with all of the foregoing situations insofar as they may endanger USDWs.2 In response to the problem of the substantial risks inherent in underground injection activities, Congress enacted section 1421 of the SDWA ‘‘to assure that drinking water sources, actual and potential, are not rendered unfit for such use by underground injection of contaminants.’’ 3 In enacting the SDWA, Congress also generally found that waste disposal practices, including mismanaged underground injection activities, could have serious and substantial, harmful impacts on human health and welfare, and economic and political interests. For example, Congress found that: Federal air and water pollution control legislation have increased the pressure to dispose of waste materials on or below land, frequently in ways, such as subsurface injection, which endanger drinking water quality. Moreover, the national economy may be expected to be harmed by unhealthy drinking water and the illnesses which may result therefrom.4 Congress specifically noted several economic and political consequences that can result from the degradation of good quality drinking water supplies, 2 See H.R. Report No. 93–1185, 93rd Congress, 2nd Session (1974), reprinted in ‘‘A Legislative History of the Safe Drinking Water Act,’’ February, 1982, by the Government Printing Office, Serial No. 97–9, page 561. 3 Id., page 560. 4 Id., page 540. E:\FR\FM\04NOR1.SGM 04NOR1 dwashington3 on PRODPC61 with RULES 65562 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations including: (1) Inhibition of interstate tourism and travel; (2) loss of economic productivity because of absence from employment due to illness; (3) limited ability of a town or region to attract workers; and (4) impaired economic growth of a town or region, and, ultimately, the nation.5 As the Agency charged by Congress with implementing part C of the SDWA and assuring implementation of effective UIC programs throughout the United States, EPA agrees with these Congressional findings. EPA finds that underground injection activities, if not effectively regulated, can have serious and substantial, harmful impacts on human health and welfare, and economic and political interests. In making this finding, EPA recognizes that: (1) The underground injection activities, currently regulated as five distinct classes of injection wells as defined in the UIC regulations, typically emplace a variety of potentially harmful organic and inorganic contaminants (e.g., brines and hazardous wastes) into the ground; (2) these injected contaminants have the potential to enter USDWs through a variety of migratory pathways if injection wells are not properly managed; and (3) once present in USDWs, these injected contaminants can have harmful impacts on human health and welfare, and economic and political interests, that are both serious and substantial. In 1980, EPA issued a document entitled, ‘‘Underground Injection Control Regulations: Statement of Basis and Purpose,’’ which provides the rationale for the Agency in proposing specific regulatory controls for a variety of underground injection activities. These controls, or technical requirements (e.g., testing to ensure the mechanical integrity of an injection well), were promulgated to prevent release of pollutants through the six primary ‘‘pathways of contamination,’’ or well-established and recognized ‘‘ways in which fluids can escape the well or injection horizon and enter USDWs.’’ 6 EPA has found that USDW contamination from one or more of these pathways can occur from underground injection activity of all classes (I–V) of injection wells. The six pathways are: 1. Migration of fluids through a leak in the casing of an injection well and directly into a USDW; 2. Vertical migration of fluids through improperly abandoned and improperly 5 Id., page 540. B. General Finding on the Protection of Safe Drinking Water Sources as Necessary To Protect Self-Government Consistent with the finding that improperly managed underground injection activities can have direct harmful effects on human health and welfare, and economic and political interests that are serious and substantial, EPA has determined that proper management of such activities 7 Id., 6 ‘‘Underground Injection Control Regulations: Statement of Basis and Purpose,’’ EPA (May 1980) page 7. VerDate Aug<31>2005 completed wells in the vicinity of injection well operations; 3. Direct injection of fluids into or above a USDW; 4. Upward migration of fluids through the annulus, which is the space located between the injection well’s casing and the well bore. This can occur if there is sufficient injection pressure to push such fluid into an overlying USDW; 5. Migration of fluids from an injection zone through the confining strata over or underlying a USDW. This can occur if there is sufficient injection pressure to push fluid through a stratum, which is either fractured or permeable, and into the adjacent USDW; and 6. Lateral migration of fluids from within an injection zone into a portion of that stratum considered to be a USDW. In this scenario, there may be no impermeable layer or other barrier to prevent migration of such fluids.7 Moreover, consistent with EPA’s findings, the U.S. Department of the Interior has recognized the ability of injection wells to contaminate surface waters that are hydrogeologically connected to contaminated ground water.8 Such contamination of surface waters could further cause negative impacts on human health and welfare, and economic and political interests. In sum, EPA finds that, given the common presence of contaminants in injected fluids, serious and substantial contamination of ground water and surface water resources can result from improperly regulated underground injection activities. Moreover, such contamination has the potential to cause correspondingly serious and substantial harm to human health and welfare, and economic and political interests. EPA also has determined that Congress reached a similar finding when it enacted part C of the SDWA, directing EPA to establish UIC programs to mitigate and prevent such harm through the proper regulation of underground injection activities. 15:01 Nov 03, 2008 Jkt 217001 pp. 7–17. Federal Water Quality Administration’s Order COM 5040.10 (1970), as referred to in H.R. Report No. 93–1185, 561. 8 See PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 serves the purpose of protecting these human health and welfare, and economic and political interests. Protection of these interests is a core governmental function, the exercise of which is integral to, and is a necessary aspect of, self-government. See 56 FR 64876, 64879 (December 12, 1991); Montana v. EPA, 137 F.3d 1135, 1140– 41 (9th Cir. 1998). EPA has determined that Congress reached this conclusion in enacting the SDWA, and that Congress considered the water quality protection functions authorized by the SDWA to be a necessary act of self-government, serving to protect essential and vital public interests by ensuring that the public’s essential drinking water sources are safe from contamination, including contamination caused by underground injection activities. The above findings regarding the effects on human health and welfare, and economic and political interests are generally true for human beings and their communities, wherever they may be located. EPA has determined that the above findings are generally true for any Federal, State and/or Tribal government having responsibility for protecting human health and welfare. With specific relevance to Tribes, EPA has long noted the relationship between proper environmental management within Indian country and Tribal selfgovernment and self-sufficiency. Moreover, in the 1984 EPA Policy for the Administration of Environmental Programs on Indian Reservations, EPA determined that as part of the ‘‘principle of Indian self-government,’’ Tribal governments are the ‘‘appropriate nonFederal parties for making decisions and carrying out program responsibilities affecting Indian reservations, their environments, and the health and welfare of the reservation populace,’’ consistent with Agency standards and regulations. (EPA Policy for the Administration of Environmental Programs on Indian Reservations, Paragraph 2, November 8, 1984). EPA interprets section 1451 of the SDWA, in providing for the approval of Tribal programs under the Act, as authorizing eligible Tribes to assume a primary role in protecting drinking water sources. These general findings provide a backdrop for EPA’s legal analysis of the Navajo Tribe’s Application and, in effect, supplement EPA’s factual findings specific to the Navajo Tribe and the areas covered by the Tribe’s Application contained in the Decision Document and Appendix A thereto, and the Tribe’s similar conclusions, contained in its Application, pertaining specifically to E:\FR\FM\04NOR1.SGM 04NOR1 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations requirements substantially similar to the existing requirements of the EPA’s program under 40 CFR 147.3000, and will not incur significant new costs as a result of this final rule. the Navajo Tribe and areas covered by its Primacy Application. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act This action does not impose any new information collection burden. Reporting or recordkeeping requirements will be based on the Navajo Nation UIC Regulations, and the Navajo Nation is not subject to the Paperwork Reduction Act. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR parts 144–148) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB control number 2040– 0042. The OMB control numbers for EPA’s regulations in 40 CFR are listed in part 9. dwashington3 on PRODPC61 with RULES C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, a ‘‘small entity’’ is defined as: (1) A small business that is defined in the Small Business Administration’s regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities operating existing Class II wells would be subject to VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531–1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. EPA’s approval of the Navajo Nation’s program will not constitute a ‘‘Federal mandate’’ because there is no requirement that the Tribe establish UIC regulatory programs and because the program is a Tribal, rather than a Federal program. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. In developing this rule, EPA consulted with small governments under a plan developed consistent with section 203 of UMRA concerning the regulatory requirements in the rule that might significantly or uniquely affect small governments. The only small government that might be significantly or uniquely affected by this rule is the Navajo Nation Tribal government. Accordingly, EPA has made the Tribe fully aware of the Federal requirements for approval to administer its own Class II UIC program; enabled the Tribe to have meaningful and timely input in the development of this rule; and informed, educated, and advised the Tribe on compliance with these requirements. However, the Tribal government is implementing and complying with these regulatory requirements because it has: (1) Voluntarily requested EPA approval to administer its Class II UIC program; and (2) voluntarily assumed the Tribal share of the costs for doing so. E. Executive Order 13132—Federalism Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 65563 ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.’’ ‘‘Policies that have Federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on 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.’’ This rule 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, as specified in Executive Order 13132. This rule would simply provide that the Tribe has primary enforcement responsibility under the SDWA for the Class II UIC program, pursuant to which the Tribe would be implementing and enforcing a tribal regulatory program that is generally equivalent to the existing Federal program, as explained in more detail in section IV and in the Decision Document. The EPA will continue to administer the Federal Class I, III, IV, and V UIC programs on Navajo Indian lands. Authorizing the Navajo Nation as the primacy agency for the Class II UIC program in the areas covered by the Tribe’s Primacy Application will not substantially alter the distribution of power and responsibilities among levels of government or significantly change EPA’s relationship with the relevant States. The substitution of a Navajo Nation Class II program for an EPAadministered Class II program in the areas covered by the Tribe’s Primacy Application will impose no additional costs on the States of Arizona, Utah or New Mexico. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments Subject to Executive Order 13175 (65 FR 67249, November 6, 2000) EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement. EPA has concluded that this rule will have tribal implications. However, it will neither impose substantial direct E:\FR\FM\04NOR1.SGM 04NOR1 65564 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations compliance costs on the tribal government, nor preempt tribal law. The Navajo Nation has voluntarily requested authorization for primary enforcement responsibility for the Class II UIC program and has voluntarily assumed the Tribal share of the costs for doing so. Additionally, EPA is approving the Navajo Nation’s application for Class II UIC primacy and thus replacing the existing Federal Class II UIC program in the areas covered by the Tribe’s Primacy Application with a Tribal program administered pursuant to the laws of the Navajo Nation. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule. Consistent with EPA policy, EPA nonetheless consulted with Tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. Since awarding the first developmental grant to the Navajo Nation in fiscal year 1995 for developing capacity to assume the Class II UIC program, EPA has consulted and worked closely with the Tribe in the administration of these funds and in the development of the Tribe’s regulatory program. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it approves a tribal primary enforcement (primacy) program. This rule simply provides that the Tribe has primary enforcement responsibility under the SDWA for the Class II UIC program, pursuant to which the Tribe would be implementing and enforcing a tribal regulatory program that is generally equivalent to the existing Federal program, as explained in more detail in the Decision Document. dwashington3 on PRODPC61 with RULES H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (‘‘NTTAA’’), Public Law No. 104–113, 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order (EO) 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision 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 and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not decrease the level of protection provided to human health or the environment or lessen current environmental standards. This rule will simply provide that the Tribe has primary enforcement responsibility under the SDWA for the Class II UIC program, pursuant to which the Tribe will be implementing and enforcing a tribal regulatory program that is generally equivalent to the existing Federal program, as explained in more detail in the Decision Document. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A ‘‘major rule’’ cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This rule will be effective December 4, 2008. List of Subjects in 40 CFR Part 147 Environmental protection, Indian lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water supply, Incorporation by reference. Dated: October 21, 2008. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, chapter 1 of title 40 of the Code of Federal Regulations is amended as follows: ■ PART 147—STATE, TRIBAL, AND EPAADMINISTERED UNDERGROUND INJECTION CONTROL PROGRAMS Subpart D—[Amended] 1. The authority citation for part 147 continues to read as follows: ■ Authority: 42 U.S.C. 300h et seq.; and 42 U.S.C. 6901 et seq. 2. Section 147.151 is amended by revising the first two sentences of paragraph (a) and the last sentence of paragraph (b) to read as follows: ■ § 147.151 EPA-administered program. (a) Contents. The UIC program that applies to all injection activities in Arizona, including those on Indian lands, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program (as defined in § 147.3400), is administered by EPA. The UIC program for Navajo Indian lands, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program, consists of the requirements contained in subpart HHH of this part. * * * (b) * * * The effective date for the UIC program on the lands of the Navajo, except for Class II wells on Navajo Indian lands for which EPA has granted E:\FR\FM\04NOR1.SGM 04NOR1 Federal Register / Vol. 73, No. 214 / Tuesday, November 4, 2008 / Rules and Regulations the Navajo Nation primacy for the SDWA Class II UIC program (as defined in § 147.3400), is November 25, 1988. Subpart GG—[Amended] 3. Section 147.1603 is amended by revising the first sentence of paragraph (a) and paragraph (b) to read as follows: ■ § 147.1603 EPA-administered program— Indian Lands. (a) Contents. The UIC program for all classes of wells on Indian lands in New Mexico, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program (as defined in § 147.3400), is administered by EPA. * * * (b) Effective date. The effective date for the UIC program on Indian lands in New Mexico, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program (as defined in § 147.3400), is November 25, 1988. Subpart TT—[Amended] 4. Section 147.2253 is amended by revising the first two sentences of paragraph (a) and paragraph (b) to read as follows: ■ § 147.2253 EPA-administered program. (a) Contents. The UIC program for all classes of wells on Indian lands in the State of Utah, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program (as defined in § 147.3400), is administered by EPA. The program for wells on Navajo Indian lands, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program, and for Ute Mountain Ute consists of the requirements set forth at subpart HHH of this part. * * * (b) Effective date. The effective date for this program for all other Indian lands in Utah, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program (as defined in § 147.3400), is November 25, 1988. Subpart HHH—[Amended] 5. Section 147.3000 is amended by revising the first sentence of paragraph (a) and paragraph (b) to read as follows: dwashington3 on PRODPC61 with RULES ■ § 147.3000 EPA-administered program. (a) Contents. The UIC program for Navajo Indian lands, except for Class II wells on Navajo Indian lands for which VerDate Aug<31>2005 15:01 Nov 03, 2008 Jkt 217001 EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program (as defined in § 147.3400), the Ute Mountain Ute (Class II wells only on Ute Mountain Ute lands in Colorado and all wells on Ute Mountain Ute lands in Utah and New Mexico), and all wells on other Indian lands in New Mexico is administered by EPA. * * * (b) Effective date. The effective date for the UIC program on these lands, except for Class II wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program (as defined in § 147.3400), is November 25, 1988. ■ 6. Subpart KKK is added and reserved to read as follows: Subpart KKK—[Reserved] 7. Subpart LLL consisting of § 147.3400 is added to read as follows: ■ Subpart LLL—Navajo Indian Lands § 147.3400 wells. Navajo Indian Lands—Class II The UIC program for Class II injection wells located: Within the exterior boundaries of the formal Navajo Reservation, including the three satellite reservations (Alamo, Canoncito and Ramah), but excluding the former Bennett Freeze Area, the Four Corners Power Plant and the Navajo Generating Station; and on Navajo Nation tribal trust lands and trust allotments outside those exterior boundaries (collectively referred to as ‘‘Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program’’), is the program administered by the Navajo Nation approved by EPA pursuant to section 1425 of the SDWA. Notice of this approval was published in the Federal Register on November 4, 2008; the effective date of this program is December 4, 2008. This program consists of the following elements as submitted to EPA in the Navajo Nation’s program application: (a) Incorporation by Reference. The requirements set forth in the Navajo Nation Statutes, Regulations and Resolution notebook, dated October 2008, are hereby incorporated by reference and made part of the applicable UIC program under the SDWA for Class II injection wells on Navajo Indian lands for which EPA has granted the Navajo Nation primacy for the SDWA Class II UIC program (as defined in this section). 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. Copies may PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 65565 be obtained or inspected at the Navajo Nation Environmental Protection Agency UIC Office, Old NAPA Auto Parts Building (Tribal Bldg. #S009–080), Highway 64, Shiprock, New Mexico 87420 (505–368–1040), at the Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, California 94105–3920 (415– 972–3533), or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741– 6030, or go to: https://www.archives.gov/ federal_register/ code_of_federal_regulations/ ibr_locations.html. (b) Memorandum of Agreement (MOA). The MOA between EPA Region 9 and the Navajo Nation, signed by the EPA Regional Administrator on August 21, 2001. The Criminal Enforcement MOA between EPA Region 9 and the Navajo Nation, signed by EPA on October 30, 2006. (c) Statement of Legal Authority. (1) ‘‘Statement of the Attorney General of the Navajo Nation Pursuant to 40 CFR 145.24’’, August 27, 2001. (2) ‘‘Statement of the Attorney General of the Navajo Nation Regarding the Regulatory Authority and Jurisdiction of the Navajo Nation with Respect To Its Underground Injection Control Program’’, July 3, 2002. (3) ‘‘Supplemental Statement of the Navajo Nation Attorney General Regarding the Regulatory Authority and Jurisdiction of the Navajo Nation to Operate an Underground Injection Control Program under the Safe Drinking Water Act’’, October 11, 2006. (d) Program Description. The Program Description submitted as part of the Navajo Nation’s application, and any other materials submitted as part of this application or as a supplement thereto. [FR Doc. E8–26023 Filed 11–3–08; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 385 and 395 [Docket No. FMCSA–2004–19608] RIN 2126–AB14 Hours of Service of Drivers; Availability of Supplemental Document Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of availability of supplemental document. AGENCY: E:\FR\FM\04NOR1.SGM 04NOR1

Agencies

[Federal Register Volume 73, Number 214 (Tuesday, November 4, 2008)]
[Rules and Regulations]
[Pages 65556-65565]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-26023]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-R09-OW-2007-0248; FRL-8734-5]


Navajo Nation; Underground Injection Control (UIC) Program; 
Primacy Approval

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving an 
application from the Navajo Nation (``Tribe'') under Section 1425 of 
the Safe Drinking Water Act (SDWA) for primary enforcement 
responsibility (or ``primacy'') for the underground injection control 
(UIC) program for Class II (oil and gas-related) injection wells 
located within the exterior boundaries of the formal Navajo 
Reservation, including the three satellite reservations (Alamo, 
Canoncito and Ramah), but excluding the former Bennett Freeze Area, the 
Four Corners Power Plant and the Navajo Generating Station; and on 
Navajo Nation tribal trust lands and trust allotments outside the 
exterior boundaries of the formal Navajo Reservation. (These areas are 
collectively referred to hereinafter as ``areas covered by the Tribe's 
Primacy Application.'')

DATES: This approval is effective December 4, 2008. The incorporation 
by

[[Page 65557]]

reference of certain publications listed in the regulations is approved 
by the Director of the Federal Register as of December 4, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R09-OW-2007-0248. All documents in the docket, including the 
Decision Document, the Navajo Nation's Primacy Application and EPA's 
supporting documentation, are listed on the https://www.regulations.gov 
Web site. Although listed in the docket index, some information is not 
publicly available, e.g., CBI or other information the disclosure of 
which is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Ground Water Office (WTR-9), 75 Hawthorne Street, 
San Francisco, CA 94105-3920. This Docket Facility is open Monday 
through Friday, between 8 a.m. and 4 p.m., Pacific time excluding legal 
holidays.

FOR FURTHER INFORMATION CONTACT: Kate Rao, U.S. Environmental 
Protection Agency, Ground Water Office (WTR-9), 75 Hawthorne Street, 
San Francisco, CA 94105-3920. Telephone number: 415-972-3533. E-mail: 
rao.kate@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities

------------------------------------------------------------------------
                                                         North American
                                     Examples of            Industry
           Category             potentially regulated    Classification
                                       entities              System
------------------------------------------------------------------------
State, Local, and Tribal        State, local, and                 924110
 Governments.                    tribal governments
                                 that own and operate
                                 Class II injection
                                 wells in the areas
                                 covered by the
                                 Tribe's Primacy
                                 Application.
Industry......................  Private owners and                221310
                                 operators of Class
                                 II injection wells
                                 in the areas covered
                                 by the Tribe's
                                 Primacy Application.
Municipalities................  Municipal owners and              924110
                                 operators of Class
                                 II injection wells
                                 in the areas covered
                                 by the Tribe's
                                 Primacy Application.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could be potentially regulated by this action. Other types of entities 
not listed in the table could also be regulated. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

II. Background

A. The Navajo Nation's Class II UIC Primacy Application

    On October 18, 2001, the Navajo Nation submitted an initial 
application for primacy for its UIC program for Class II wells. On 
January 30, 2002, the EPA notified the Navajo Nation that its 
application required revision, clarification and additional 
documentation. The Tribe provided various supplemental application 
materials to EPA. The Tribe amended its underground injection control 
regulations, and, in 2006, submitted the final outstanding components 
of its Primacy Application to EPA. Subsequently, in 2007, as an 
addendum to its Primacy Application, the Tribe submitted several Navajo 
Nation Class II UIC permits that it had issued pursuant to its 
authority under tribal laws and regulations. The materials described 
above are collectively referred to hereinafter as the Tribe's ``Primacy 
Application,'' and are described in detail in EPA's Decision Document: 
The Navajo Nation--Approval of Tribal Application for Primacy, Class II 
Underground Injection Control Program, Safe Drinking Water Act.

B. Proposed Rule

    On April 24, 2008, EPA issued a proposed rule in which the Agency 
announced its proposal to approve the Tribe's primacy for the Class II 
UIC program in the areas covered by the Tribe's Primacy Application 
under section 1425 of the SDWA, 42 U.S.C. 300h-4. EPA requested public 
review of the proposed rule; the Navajo Nation's Primacy Application; a 
proposed Decision Document, which included findings that the Navajo 
Nation meets all eligibility requirements of section 1451 of the SDWA 
and its implementing regulations at 40 CFR part 145, Subpart E, as well 
as all applicable requirements for approval under SDWA section 1425, 
and EPA's supporting documentation (see 73 FR 22111-22120, April 24, 
2008). EPA received two comments on the proposal: one supporting the 
action, and the other challenging EPA's proposed approval of the 
Tribe's Application based on concerns about the Tribe's jurisdictional 
authority in certain areas covered by the Tribe's Primacy Application. 
EPA's response to the submitted comments is provided in section V. 
Response to Comments.

III. Legal Authorities

    These regulations are being promulgated under authority of sections 
1422, 1425, 1450 and 1451 of the SDWA, 42 U.S.C. 300h-1, 300h-4, 300j-9 
and 300j-11.

A. Requirements for State UIC Programs

    Section 1421 of the SDWA requires the Administrator of EPA to 
promulgate minimum requirements for effective State UIC programs to 
prevent underground injection activities that endanger underground 
sources of drinking water (USDWs). Sections 1422 and 1425 of the SDWA 
establish requirements for States seeking EPA approval of State UIC 
programs.
    For States that seek primacy for UIC programs under section 1422 of 
the SDWA, EPA has promulgated regulations setting forth the applicable 
procedures and substantive requirements. These regulations are codified 
in the Code of Federal Regulations (40 CFR part 145). They include 
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.
    Section 1425 of the SDWA describes alternative requirements for 
States to obtain primacy for UIC programs that relate solely to Class 
II wells. Section 1425 allows a State, in lieu of the showing required 
under SDWA section 1422(b)(1)(A), to demonstrate that its proposed 
Class II UIC program meets the minimum requirements of SDWA sections 
1421(b)(1)(A)-(D), and represents an ``effective program (including 
adequate recordkeeping and reporting) to prevent underground injection 
which endangers drinking water sources.'' EPA published interim 
guidance entitled ``Guidance for State Submissions Under Section 1425 
of the Safe Drinking Water Act, Ground Water

[[Page 65558]]

Program Guidance 19'' (Guidance 19) in the Federal Register 
(46 FR 27333-27339, May 19, 1981) which sets forth the criteria EPA 
generally considers in evaluating applications under SDWA section 1425.

B. Tribal UIC Programs--Tribal Eligibility Requirements

    Section 1451 of the SDWA and 40 CFR 145.52 authorize the 
Administrator of EPA to treat an Indian Tribe in the same manner as a 
State for purposes of delegating primary enforcement responsibility for 
the UIC program if the Tribe demonstrates that: (1) It is recognized by 
the Secretary of the Interior; (2) it has a governing body carrying out 
substantial governmental duties and powers over a defined area; (3) the 
functions to be exercised by the Tribe are within an area of the tribal 
government's jurisdiction; and (4) the Tribe is reasonably expected to 
be capable, in the EPA Administrator's judgment, of implementing a 
program consistent with the terms and purposes of the SDWA and 
applicable regulations.
    Tribes may apply for primacy under either or both sections 1422 and 
1425 of the SDWA; and the references in 40 CFR part 145 and the EPA's 
May 19, 1981, interim guidance to ``State'' programs are also construed 
to include eligible ``tribal'' programs. (See also 40 CFR 145.1(h), 
which provides that all requirements of parts 124, 144, 145, and 146 
that apply to States with UIC primacy also apply to Indian Tribes 
except where specifically noted.)

IV. Explanation of This Action

    EPA is approving the Navajo Nation's application for primacy for 
the SDWA Class II UIC program in the areas covered by the Tribe's 
Primacy Application. EPA's final rulemaking decision is based on a 
careful and extensive legal and technical review of the Tribe's Primacy 
Application, the two public comments received, the Navajo Nation's 
response to those comments, and other relevant information.
    EPA's Decision Document in support of EPA's approval is part of the 
public record and is available for public review. The Decision Document 
includes findings that the Navajo Nation meets all requirements of 
section 1451 of the SDWA, including that the Tribe has demonstrated 
adequate jurisdictional authority over all Class II injection 
activities in the areas covered by the Tribe's Primacy Application, 
including those conducted by nonmembers, and that the Tribe's program 
meets all applicable requirements for approval under section 1425 of 
the SDWA.
    As a result of this final action, the Navajo Nation will assume 
primary enforcement authority for regulating all Class II injection 
activities in the areas covered by the Tribe's Primacy Application. 
Because Indian Tribes are precluded under Federal Indian law from 
pursuing certain criminal enforcement matters under 25 U.S.C. 1302, EPA 
has entered into a Criminal Enforcement Memorandum of Agreement with 
the Navajo Nation (signed by EPA on October 30, 2006), per 40 CFR 
145.13(e), whereby the Tribe will notify EPA of potential criminal 
violations of its SDWA Class II UIC program. EPA will continue to 
administer its SDWA UIC program for any Class I, III, IV, and V wells 
on Navajo Indian lands (defined as Indian country in EPA UIC 
regulations; see definition of ``Indian lands'' at 40 CFR 144.3). EPA 
will oversee the Navajo Nation's administration of the SDWA Class II 
UIC program in the areas covered by the Tribe's Primacy Application. 
Part of EPA's oversight responsibility will include requiring quarterly 
reports of non-compliance and annual UIC program performance reports 
pursuant to 40 CFR 144.8. The UIC Memorandum of Agreement between EPA 
and the Navajo Nation (signed by EPA on August 21, 2001) provides EPA 
with the opportunity to review and comment on all permits and, where 
applicable, object.
    EPA is amending 40 CFR part 147 to revise the references to the 
EPA-administered program for Class II injection wells in the areas 
covered by the Tribe's Primacy Application to refer to the Navajo 
Nation's Class II UIC program. The provisions of the Navajo Nation 
Underground Injection Control (NNUIC) Regulations that contain 
standards, requirements, and procedures applicable to owners or 
operators of Class II wells in the areas covered by the Tribe's Primacy 
Application are being incorporated by reference into 40 CFR part 147. 
Any provisions incorporated by reference, as well as all Tribal permit 
conditions or permit denials issued pursuant to such provisions, are 
enforceable by EPA pursuant to section 1423 of the SDWA and 40 CFR 
147.1(e).

Class II UIC Permitting Matrix

    EPA evaluated the existing Federal and Tribal UIC Class II 
permitting matrix in the areas covered by the Tribe's Primacy 
Application, which can be summarized into four categories: 1) Wells 
with both Navajo Nation- and EPA-issued permits; 2) wells with EPA-
issued permits only; 3) wells with Navajo Nation-issued permits only 
(Federally authorized by rule); and 4) wells without permits 
(authorized by rule). Below is a summary of the impact of this final 
rulemaking action on each category of wells.
    Wells with both Navajo Nation- and EPA-issued permits: The Navajo 
Nation-issued UIC permits will remain in effect as the Federally 
enforceable UIC permits under the SDWA and the EPA-issued permits for 
wells in this category will expire.
    EPA-issued permits only: The Navajo Nation will administer the EPA-
issued Class II UIC permits until Navajo Nation UIC permits are issued.
    Navajo Nation-issued permits only: The Navajo-Nation-issued Class 
II UIC permits will remain in effect as Federally enforceable UIC 
permits under the SDWA.
    Wells not currently permitted by EPA or the Tribe: The Navajo 
Nation, in its UIC Regulations, has adopted by reference the Federal 
authorization by rule regulations that will apply until the Tribe 
issues UIC permits for these wells.
    Copies of the 18 Navajo Nation-issued permits are part of the 
public record and available for review in EPA's Docket No. EPA-R09-OW-
2007-0248.

Proposed Rule Revisions Not Included

    In its proposed rule for this action, EPA proposed minor revisions 
to specific introductory language at 40 CFR part 147 and updates to 40 
CFR 147.1, which were not specific to the Navajo Nation's Primacy 
Application. The same regulatory revisions were previously proposed by 
EPA Region 8 (see 73 FR 5471, January 30, 2008; Fort Peck Assiniboine 
and Sioux Tribes in Montana; Underground Injection Control (UIC) 
Program; Proposed Primacy Approval and Minor Revisions) and 
subsequently promulgated (see Fort Peck final rule which published in 
the Federal Register on October 27, 2008 at 73 FR 63639: Fort Peck 
Assiniboine and Sioux Tribes in Montana; Underground Injection Control 
(UIC) Program; Primacy Approval and Minor Revisions). Thus, today's 
rule does not include this regulatory language because it has already 
been incorporated into 40 CFR part 147 and 40 CFR 147.1.

Cross Media Electronic Reporting Rule

    The analysis of the Navajo Nation's program with respect to 40 CFR 
145.11 in EPA's proposed Decision Document for this action did not 
include a discussion of the Tribal program's consistency with 40 CFR 
145.11(a)(33). 40 CFR 145.11(a)(33) requires that State programs under 
that part that ``wish to

[[Page 65559]]

receive electronic documents'' have legal authority to implement 40 CFR 
part 3, the Cross Media Electronic Reporting Rule (CROMERR) (see 70 FR 
59879, October 13, 2005). CROMERR includes requirements applicable to 
States, Tribes, and local governments administering or seeking to 
administer authorized programs under Title 40 of the CFR where such 
programs receive electronic documents in lieu of paper to satisfy 
requirements under such programs. EPA has consulted with the Navajo 
Nation and determined that the Navajo Nation UIC Program does not 
accept electronic copies of official documents or records, and 
therefore has concluded that the Tribe's program is consistent with 40 
CFR 145.11(a)(33).

V. Response to Comments

Summary

    EPA received two letters providing comments on the proposed 
rulemaking. One comment was from a private individual (``Commenter 
A''), who expressed support for the Tribe's application and EPA's 
proposed decision to approve it. The second comment was submitted by a 
private law firm on behalf of an industry client that is a member of 
the regulated community (``Commenter B''). It opposed on several legal 
grounds EPA's proposed decision, particularly regarding areas outside 
of the exterior boundaries of the formal Navajo Reservation, although 
it did not specifically contest the proposed decision for areas within 
the boundaries of the Reservation. As provided for by EPA policy, EPA 
provided the Navajo Nation with an opportunity to respond to these 
comments, and the response submitted by the Navajo Nation supplements 
the record for this action.

Comments Received

    A. Commenter A: An individual, who previously lived on the Navajo 
Nation, commented that he approved of EPA's proposed primacy 
determination.
    EPA appreciates the comment in support of the Tribe's application 
and EPA's proposed decision to approve the application.
    B. Commenter B:
1. The United States Supreme Court Has Applied Federal Common Law 
Principles of Indian Sovereignty Over the Activities of Non-Indians in 
the Context of and Only to Conduct on Reservation Land
    Commenter B first objects to EPA's proposed approval because he 
argues that Federal common law and Supreme Court precedent limit tribal 
authority over nonmember activities to conduct on reservation land and, 
therefore, EPA's approval may not extend to nonmember activities 
outside the formal Reservation. EPA disagrees. Section 1451 of the SDWA 
authorizes EPA to treat a Tribe in a manner similar to a State (TAS) to 
carry out functions authorized by the SDWA ``within the area of the 
Tribal Government's jurisdiction.'' 42 U.S.C. 300j-11(b)(1)(B). There 
is no language in the SDWA limiting the role of Tribes under the SDWA 
to lands within the boundaries of Indian reservations, and no evidence 
of Congressional intent to impose such limits. As noted by the Navajo 
Nation in its response, the SDWA is different from the Clean Water Act, 
which contains a TAS provision that limits the role of Tribes to 
reservation areas. See 33 U.S.C. 1377(e)(2) (specifying that the 
functions exercised by the Tribe must pertain to water resources within 
the borders of an Indian reservation). Cf. 42 U.S.C. 7601(d)(2)(B) 
(authorizing TAS for Tribes under the Clean Air Act for 
``reservation[s] or other areas within the Tribe's jurisdiction,'' 
which includes non-reservation areas of Indian country).
    The relevant legal term with respect to who has jurisdiction in a 
particular area is ``Indian country,'' as defined at 18 U.S.C. 1151. 
Indian Country, U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967, 973 (10th 
Cir. 1987) (``[T]he Indian country classification is the benchmark for 
approaching the allocation of Federal, tribal, and State authority with 
respect to Indians and Indian lands.''). The ``Indian country'' statute 
makes it clear that Indian country extends beyond reservations and 
encompasses three types of land: All lands within reservation 
boundaries, all dependent Indian communities, and ``all Indian 
allotments, the Indian title to which have not been extinguished.'' 
Alaska v. Native Village of Venetie, 522 U.S. 520, 526-527, (1998), 
quoting 18 U.S.C. 1151 (a)-(c). In Venetie, the Supreme Court confirmed 
that the ``Indian country'' statute is a codification of Federal case 
law, and that, while the statute is found in the criminal code, it also 
generally applies to questions of tribal civil jurisdiction. Id. at 527 
and n.1, citing with approval to DeCoteau v. District Court, 420 U.S. 
425, 427 n. 2 (1975). As discussed further in this section, the case 
law codified by the statute, as described in Venetie, includes Supreme 
Court decisions establishing that Indian country includes both areas 
that are within reservations and areas that are not, and that the term 
reservation includes both formal reservations and informal reservations 
(i.e., lands held by the government in trust for Tribes that have not 
been formally designated as reservations). The Venetie Court also 
recognized that the term ``Indian country'' delineates the areas over 
which primary jurisdiction rests with the Federal government and the 
Tribes rather than the States. Id. at 527 n. 1.
    EPA has previously construed the language in SDWA section 1451 as 
covering the full extent of Indian country. In particular, EPA granted 
the Navajo Nation primacy under the SDWA Public Water Systems 
Supervision (PWSS) program for lands within the formal Reservation 
boundary as well as tribal trust lands (which EPA treated as informal 
reservation lands) and for allotments in the Eastern Agency, noting 
that, ``[t]he statutory language in section 1451 of the SDWA 
establishes a relatively broad standard for tribal jurisdiction.'' EPA 
DETERMINATION OF THE NAVAJO NATION'S ELIGIBILITY UNDER SECTION 1451 OF 
THE SDWA 8 (October 23, 2000) (``EPA PWSS DETERMINATION''). In EPA's 
approval of the Navajo Nation's SDWA PWSS primacy program, EPA found 
that Indian country was the relevant standard: ``EPA agrees that 
`Indian country' is the appropriate standard for determining the 
territorial extent of jurisdiction of the Navajo Nation for the 
purposes of section 1451 of the SDWA.'' EPA PWSS DETERMINATION at 10. 
EPA found in the SDWA PWSS approval that the Navajo Nation had 
demonstrated its authority under the SDWA over lands within the formal 
Reservation boundary and tribal trust lands and allotments in the 
Eastern Agency.
    EPA's interpretation of section 1451 in the primacy determination 
for the Navajo Nation SDWA PWSS program has not been challenged by 
Commenter B or any other party, but EPA's position that tribal 
authority in Indian country may extend beyond a formal reservation has 
been challenged and upheld in other contexts, including Arizona Public 
Service Co. v. EPA, 211 F.3d 1280, 1292-94 (D.C. Cir. 2000) (upholding 
EPA's regulations that interpret the Clean Air Act's TAS provisions as 
authorizing tribal programs for reservations (including informal 
reservations, i.e., tribal trust lands not formally designated as a 
reservation) and for other Indian country areas (including dependent 
Indian communities and allotments) within the Tribe's jurisdiction).

[[Page 65560]]

2. The Navajo Nation Asserts That It Has Inherent Authority and 
Jurisdiction Over Indian Country as Defined in 18 U.S.C. 1151 and 7 
N.N.C. 254
    Commenter B argues that 18 U.S.C. 1151 is neither a Congressional 
delegation of authority nor a source of inherent sovereign authority 
for the Navajo Nation. EPA recognizes that 18 U.S.C. 1151 does not 
provide the source of a Tribe's inherent sovereign authority, but 
rather generally defines the limit of the area over which a Tribe may 
demonstrate authority. As explained in EPA's Decision Document for this 
action, and supported by the Findings of Fact, Appendix A, EPA finds 
that the Navajo Nation has demonstrated its authority under the SDWA 
over the areas covered by its application, including tribal trust lands 
and trust allotments in the Eastern Agency.
3. The Montana Doctrine Indicates That ``Navajo Tribal Sovereignty'' 
and ``Inherent Sovereignty'' Over the Activities of Non-Indians Does 
Not Extend Beyond the Boundaries of the Navajo Reservation Regardless 
of How the Land Is Titled
    Commenter B's third comment overlaps with his first comment in 
stating that ``to the extent that the Navajo Nation may have inherent 
sovereign authority over the activities of non-Indians, that authority 
applies only to lands within the Navajo reservation if Montana 
exceptions (described more fully below in section VI) apply, as 
determined on a case-by-case basis, and does not extend to lands or 
activities outside the exterior boundaries of the Navajo reservation.'' 
Commenter B cites several cases, but none of the cases cited support 
Commenter B's assertion that the Navajo Tribe may not exercise inherent 
authority over tribal ``lands or activities outside the exterior 
boundaries'' of a formal reservation; rather, the cited cases present 
the more common factual scenario involving fee lands within a formal 
reservation boundary.
    The Tenth Circuit has previously considered the argument that the 
Montana test cannot apply outside a reservation boundary, and more 
specifically that it cannot apply in the Eastern Agency. See Texaco, 
Inc. v. Zah, 5 F.3d 1374 (10th Cir. 1993). In Zah, the appellants 
contended that the tribal courts lacked jurisdiction because the Navajo 
Nation's authority over non-Indians terminated at the reservation 
boundary, citing specifically to United States v. Montana, (1981) and 
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141 (1982). The Tenth 
Circuit in Zah rejected this argument, however, finding, ``[s]uch cases 
* * * do not expressly stand for the proposition that a tribal court 
has no jurisdiction over non-Indian activity occurring outside the 
reservation, but within Indian Country.'' Zah at 1377.
    Contrary to Commenter B's comments, neither the Tenth Circuit nor 
the Supreme Court have held that Tribes cannot exercise inherent 
authority in Indian country outside of reservation boundaries.\1\ 
Indeed such a holding would effectively eliminate any significance to 
the broader scope of the term ``Indian country.'' Moreover, as already 
noted, the Supreme Court has expressly recognized that Indian country 
is the area of primary Federal and tribal, rather than State, 
jurisdiction, and that Indian country, and thus tribal jurisdiction, 
can exist outside reservations, consistent with both the text of the 
Indian country statute and the Federal common law that the statute 
codified. Venetie, 522 U.S. at 527-529. Moreover, the Supreme Court has 
found that lands owned by the Federal government in trust for Indian 
Tribes are Indian country, and that formal designation as a reservation 
is not a necessary requirement for status as Indian country. See, e.g., 
Oklahoma Tax Comm'n v. Potawatomi Tribe, 498 U.S. 505, 511 (1991), 
(``formally designated `reservation' '' status not dispositive; trust 
lands can be Indian country); Oklahoma Tax Comm'n v. Sac & Fox Nation, 
508 U.S. 114, 123 (1993) (``formal reservation'' is not a necessary 
precondition for Indian country status under 18 U.S.C. 1151(a); 
rejecting argument that a State has taxing jurisdiction over tribal 
members unless they live ``on a reservation'') (emphasis in original). 
The Court has also held, directly contrary to the commenter's 
assertion, that Indian allotments that are not located on a reservation 
can be Indian country and thus subject to tribal jurisdiction. Venetie, 
522 U.S. at 529, citing U.S. v. Pelican, 232 U.S. 442, 449 (1914). As 
discussed earlier in this response to comments, EPA has also stated in 
regulations and in previous determinations that tribal authority to 
implement the SDWA can extend to the limits of Indian country.
---------------------------------------------------------------------------

    \1\ The most recent Tenth Circuit decision, MacArthur v. San 
Juan County, 497 F.3d 1057 (10th Cir. 2007) cert. denied, 128 S.Ct. 
1229 (2008), involved tribal authority over employment-related 
claims against a non-tribal facility located on state-owned fee land 
within the Navajo reservation rather than a non-reservation area of 
Navajo Indian country.
---------------------------------------------------------------------------

    Although the most recent Supreme Court case addressing tribal 
authority over nonmember activities was decided after Commenter B 
submitted its comments on this action, the Court in that case confirms 
that Montana continues to be the relevant test with respect to tribal 
authority over nonmember activities, and that in certain circumstances, 
``tribes may exercise authority over the conduct of nonmembers[.]'' 
Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554 U.S. 
------, 128 S.Ct. 2709, 2726 (2008). In its decision, the Court did not 
distinguish between whether lands are within or outside the boundaries 
of a formal reservation, as the primary issue was whether the sale of 
nonmember-owned fee land constituted a nonmember activity subject to 
regulation by the Tribe. Id. at 2723.
4. Even if There Is Inherent Authority Over the Activities of Non-
Indians on Tribal Trust Lands Outside the Exterior Boundaries of the 
Reservation, the Navajo Nation Does Not Have Inherent Authority Over 
the Activities of Non-Indians on ``Split Estate'' and Allotted Lands 
Outside the Boundaries of the Reservation
    Commenter B's fourth comment argues in the alternative that if the 
Navajo Nation has authority over the activities of nonmembers on tribal 
trust lands in the Eastern Agency, the Navajo Nation does not have 
authority over the activities of nonmembers on ``split estate'' and 
allotments in the Eastern Agency area. As discussed more extensively 
earlier in this response to comments and in the Decision Document, EPA 
has previously found that Tribes may exercise authority under the SDWA 
over areas within their jurisdiction, including tribal trust lands and 
allotments in the Eastern Agency. As EPA has noted in the Decision 
Document and earlier in this discussion, no Congressional intent to 
limit tribal authority to reservation lands can be read into the SDWA. 
With respect to split estate lands described in the Decision Document, 
the U.S. Court of Appeals for the Tenth Circuit has previously 
determined that split estate lands in the Eastern Agency are Indian 
country, as discussed in greater length in the Decision Document. HRI 
Inc. v. EPA, 198 F. 3d 1224, 1254 (``The split nature of surface and 
mineral estates does not alter the jurisdictional status of these lands 
for SDWA purposes.''). In finding that lands outside the formal Navajo 
Reservation were Indian country, the Court in HRI cited to a previous 
Tenth Circuit case finding that allotments outside the boundaries of a 
formal reservation qualify as Indian country under tribal civil 
jurisdiction.

[[Page 65561]]

HRI at 1250. (``See Mustang Prod. Co. v. Harrison, 94 F.3d 1382, 1384 
(10th Cir. 1996) (holding that `disestablishment of the reservation is 
not dispositive of the question of tribal jurisdiction. In order to 
determine whether the Tribes have jurisdiction we must instead look to 
whether the land in question is Indian country' '' (internal citations 
omitted)). Commenter B also argues that the Navajo Nation waived the 
right to occupy lands outside the Reservation, as defined in the 1868 
Treaty, and therefore waived its basis for inherent authority in any 
area outside the exterior boundaries of the formal Reservation. The 
Navajo Nation has provided a detailed response to this comment, and has 
described how in fact the formal Navajo Reservation was expanded 11 
times by Executive Orders and Acts of Congress subsequent to the 1868 
Treaty. Clearly, the Federal government has affirmatively set aside all 
the lands that are held in trust for the Navajo Nation or its members, 
and there is no indication that the Navajo Nation ever intended to 
waive authority over the lands in the Eastern Navajo Agency. Moreover, 
apart from the power to exclude, ``tribes retain authority to govern 
`both their members and their territory.' '' Plains Commerce, 128 S.Ct. 
at 2718, quoting U.S. v. Mazurie, 419 U.S. 544 (1975).
5. Jurisdiction Based on the Montana Exceptions Must Be Determined on a 
Case-by-Case Basis
    Finally, Commenter B's fifth comment states that jurisdiction based 
on the Montana test must be determined on a case-by-case basis. EPA 
does evaluate tribal TAS applications on a case-by-case basis, 
examining the facts presented in each application, as EPA did in this 
case. The Decision Document, including the Findings of Fact, shows 
clearly that EPA has conducted a thorough analysis of the Navajo 
Nation's authority to regulate nonmember activities and found that, for 
purposes of primacy of the SDWA Class II underground injection control 
program, the Navajo Nation has demonstrated that it has the necessary 
inherent authority over such activities in the areas covered by its 
application, including individual and tribal trust lands outside the 
boundaries of the formal Reservation.

VI. Generalized Findings

    As described earlier, EPA's decision to approve the Navajo Nation 
to implement a Class II UIC program includes findings that the Tribe 
meets all requirements of section 1451 of the SDWA, including that the 
Tribe has demonstrated adequate jurisdictional authority over all Class 
II injection activities in the areas covered by the Tribe's Primacy 
Application, including those conducted by nonmembers. With regard to 
authority over nonmember activities on nonmember-owned fee lands, EPA 
finds that the Tribe has demonstrated such authority under the test 
established by the United States Supreme Court in Montana v. United 
States, 450 U.S. 544 (1981) (Montana test). Under the Montana test, the 
Supreme Court held that absent a Federal grant of authority, Tribes 
generally lack inherent jurisdiction over the activities of nonmembers 
on nonmember-owned fee lands. However, the Court also found that Indian 
Tribes retain inherent sovereign power to exercise civil jurisdiction 
over nonmember activities on nonmember-owned fee lands within the 
reservation where: (1) Nonmembers enter into ``consensual relationships 
with the Tribe or its members, through commercial dealing, contracts, 
leases, or other arrangements'' or (2) ``* * * [nonmember] conduct 
threatens or has some direct effect on the political integrity, the 
economic security or the health or welfare of the Tribe.'' Id. at 565-
66. In analyzing Tribal assertions of inherent authority over nonmember 
activities on Indian reservations, the Supreme Court has reiterated 
that the Montana test remains the relevant standard. See e.g., Strate 
v. A-1 Contractors, 520 U.S. 438, 445 (1997) (describing Montana as 
``the pathmarking case concerning Tribal civil authority over 
nonmembers''); Nevada v. Hicks, 533 U.S. 353, 358 (2001) (``Indian 
Tribes' regulatory authority over nonmembers is governed by the 
principles set forth in [Montana]''); Plains Commerce Bank v. Long 
Family Land & Cattle Co., Inc., 128 S.Ct. 2709.
    As part of the public record available for review, EPA's Decision 
Document, and Appendix A thereto, set forth the Agency's specific 
factual findings relating to the Tribe's demonstration of inherent 
authority over the UIC Class II activities of nonmembers under the 
Montana test and, in particular, the potential for direct effects of 
nonmember UIC activities on the Tribe's health, welfare, political 
integrity, and economic security that are serious and substantial. In 
addition, EPA is publishing the general findings set forth below 
regarding the effects of underground injection activities. These 
general findings provide a backdrop for EPA's analysis of the Tribe's 
assertion of authority under the Montana test and supplement the 
Agency's factual findings specific to the Tribe and to the areas 
covered by the Tribe's Primacy Application.

A. General Finding on Human Health and Welfare, and Economic and 
Political Impacts

    In enacting part C of the SDWA, Congress generally recognized that 
if left unregulated or improperly managed, underground injection can 
endanger drinking water sources and thus has the potential to cause 
serious and substantial, harmful impacts on human health and welfare, 
and economic and political interests. As stated in the legislative 
history of the SDWA:

    [U]nderground injection of contaminants is clearly an increasing 
problem. Municipalities are increasingly engaging in underground 
injection of sewage, sludge, and other wastes. Industries are 
injecting chemicals, byproducts, and wastes. Energy production 
companies are using injection techniques to increase production and 
to dispose of unwanted brines brought to the surface during 
production. Even government agencies, including the military, are 
getting rid of difficult to manage waste problems by underground 
disposal methods. Part C is intended to deal with all of the 
foregoing situations insofar as they may endanger USDWs.\2\

    \2\ See H.R. Report No. 93-1185, 93rd Congress, 2nd Session 
(1974), reprinted in ``A Legislative History of the Safe Drinking 
Water Act,'' February, 1982, by the Government Printing Office, 
Serial No. 97-9, page 561.
---------------------------------------------------------------------------

    In response to the problem of the substantial risks inherent in 
underground injection activities, Congress enacted section 1421 of the 
SDWA ``to assure that drinking water sources, actual and potential, are 
not rendered unfit for such use by underground injection of 
contaminants.'' \3\
---------------------------------------------------------------------------

    \3\ Id., page 560.
---------------------------------------------------------------------------

    In enacting the SDWA, Congress also generally found that waste 
disposal practices, including mismanaged underground injection 
activities, could have serious and substantial, harmful impacts on 
human health and welfare, and economic and political interests. For 
example, Congress found that:

    Federal air and water pollution control legislation have 
increased the pressure to dispose of waste materials on or below 
land, frequently in ways, such as subsurface injection, which 
endanger drinking water quality. Moreover, the national economy may 
be expected to be harmed by unhealthy drinking water and the 
illnesses which may result therefrom.\4\
---------------------------------------------------------------------------

    \4\ Id., page 540.
---------------------------------------------------------------------------

    Congress specifically noted several economic and political 
consequences that can result from the degradation of good quality 
drinking water supplies,

[[Page 65562]]

including: (1) Inhibition of interstate tourism and travel; (2) loss of 
economic productivity because of absence from employment due to 
illness; (3) limited ability of a town or region to attract workers; 
and (4) impaired economic growth of a town or region, and, ultimately, 
the nation.\5\
---------------------------------------------------------------------------

    \5\ Id., page 540.
---------------------------------------------------------------------------

    As the Agency charged by Congress with implementing part C of the 
SDWA and assuring implementation of effective UIC programs throughout 
the United States, EPA agrees with these Congressional findings. EPA 
finds that underground injection activities, if not effectively 
regulated, can have serious and substantial, harmful impacts on human 
health and welfare, and economic and political interests. In making 
this finding, EPA recognizes that: (1) The underground injection 
activities, currently regulated as five distinct classes of injection 
wells as defined in the UIC regulations, typically emplace a variety of 
potentially harmful organic and inorganic contaminants (e.g., brines 
and hazardous wastes) into the ground; (2) these injected contaminants 
have the potential to enter USDWs through a variety of migratory 
pathways if injection wells are not properly managed; and (3) once 
present in USDWs, these injected contaminants can have harmful impacts 
on human health and welfare, and economic and political interests, that 
are both serious and substantial.
    In 1980, EPA issued a document entitled, ``Underground Injection 
Control Regulations: Statement of Basis and Purpose,'' which provides 
the rationale for the Agency in proposing specific regulatory controls 
for a variety of underground injection activities. These controls, or 
technical requirements (e.g., testing to ensure the mechanical 
integrity of an injection well), were promulgated to prevent release of 
pollutants through the six primary ``pathways of contamination,'' or 
well-established and recognized ``ways in which fluids can escape the 
well or injection horizon and enter USDWs.'' \6\ EPA has found that 
USDW contamination from one or more of these pathways can occur from 
underground injection activity of all classes (I-V) of injection wells.
---------------------------------------------------------------------------

    \6\ ``Underground Injection Control Regulations: Statement of 
Basis and Purpose,'' EPA (May 1980) page 7.
---------------------------------------------------------------------------

    The six pathways are:
    1. Migration of fluids through a leak in the casing of an injection 
well and directly into a USDW;
    2. Vertical migration of fluids through improperly abandoned and 
improperly completed wells in the vicinity of injection well 
operations;
    3. Direct injection of fluids into or above a USDW;
    4. Upward migration of fluids through the annulus, which is the 
space located between the injection well's casing and the well bore. 
This can occur if there is sufficient injection pressure to push such 
fluid into an overlying USDW;
    5. Migration of fluids from an injection zone through the confining 
strata over or underlying a USDW. This can occur if there is sufficient 
injection pressure to push fluid through a stratum, which is either 
fractured or permeable, and into the adjacent USDW; and
    6. Lateral migration of fluids from within an injection zone into a 
portion of that stratum considered to be a USDW. In this scenario, 
there may be no impermeable layer or other barrier to prevent migration 
of such fluids.\7\
---------------------------------------------------------------------------

    \7\ Id., pp. 7-17.
---------------------------------------------------------------------------

    Moreover, consistent with EPA's findings, the U.S. Department of 
the Interior has recognized the ability of injection wells to 
contaminate surface waters that are hydrogeologically connected to 
contaminated ground water.\8\ Such contamination of surface waters 
could further cause negative impacts on human health and welfare, and 
economic and political interests.
---------------------------------------------------------------------------

    \8\ See Federal Water Quality Administration's Order COM 5040.10 
(1970), as referred to in H.R. Report No. 93-1185, 561.
---------------------------------------------------------------------------

    In sum, EPA finds that, given the common presence of contaminants 
in injected fluids, serious and substantial contamination of ground 
water and surface water resources can result from improperly regulated 
underground injection activities. Moreover, such contamination has the 
potential to cause correspondingly serious and substantial harm to 
human health and welfare, and economic and political interests. EPA 
also has determined that Congress reached a similar finding when it 
enacted part C of the SDWA, directing EPA to establish UIC programs to 
mitigate and prevent such harm through the proper regulation of 
underground injection activities.

B. General Finding on the Protection of Safe Drinking Water Sources as 
Necessary To Protect Self-Government

    Consistent with the finding that improperly managed underground 
injection activities can have direct harmful effects on human health 
and welfare, and economic and political interests that are serious and 
substantial, EPA has determined that proper management of such 
activities serves the purpose of protecting these human health and 
welfare, and economic and political interests. Protection of these 
interests is a core governmental function, the exercise of which is 
integral to, and is a necessary aspect of, self-government. See 56 FR 
64876, 64879 (December 12, 1991); Montana v. EPA, 137 F.3d 1135, 1140-
41 (9th Cir. 1998). EPA has determined that Congress reached this 
conclusion in enacting the SDWA, and that Congress considered the water 
quality protection functions authorized by the SDWA to be a necessary 
act of self-government, serving to protect essential and vital public 
interests by ensuring that the public's essential drinking water 
sources are safe from contamination, including contamination caused by 
underground injection activities.
    The above findings regarding the effects on human health and 
welfare, and economic and political interests are generally true for 
human beings and their communities, wherever they may be located. EPA 
has determined that the above findings are generally true for any 
Federal, State and/or Tribal government having responsibility for 
protecting human health and welfare. With specific relevance to Tribes, 
EPA has long noted the relationship between proper environmental 
management within Indian country and Tribal self-government and self-
sufficiency. Moreover, in the 1984 EPA Policy for the Administration of 
Environmental Programs on Indian Reservations, EPA determined that as 
part of the ``principle of Indian self-government,'' Tribal governments 
are the ``appropriate non-Federal parties for making decisions and 
carrying out program responsibilities affecting Indian reservations, 
their environments, and the health and welfare of the reservation 
populace,'' consistent with Agency standards and regulations. (EPA 
Policy for the Administration of Environmental Programs on Indian 
Reservations, Paragraph 2, November 8, 1984).
    EPA interprets section 1451 of the SDWA, in providing for the 
approval of Tribal programs under the Act, as authorizing eligible 
Tribes to assume a primary role in protecting drinking water sources. 
These general findings provide a backdrop for EPA's legal analysis of 
the Navajo Tribe's Application and, in effect, supplement EPA's factual 
findings specific to the Navajo Tribe and the areas covered by the 
Tribe's Application contained in the Decision Document and Appendix A 
thereto, and the Tribe's similar conclusions, contained in its 
Application, pertaining specifically to

[[Page 65563]]

the Navajo Tribe and areas covered by its Primacy Application.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Reporting or recordkeeping requirements will be based on the Navajo 
Nation UIC Regulations, and the Navajo Nation is not subject to the 
Paperwork Reduction Act. However, the Office of Management and Budget 
(OMB) has previously approved the information collection requirements 
contained in the existing regulations (40 CFR parts 144-148) under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and 
has assigned OMB control number 2040-0042. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, a ``small entity'' is defined as: (1) A small business that 
is defined in the Small Business Administration's regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities operating existing Class II wells would be subject to 
requirements substantially similar to the existing requirements of the 
EPA's program under 40 CFR 147.3000, and will not incur significant new 
costs as a result of this final rule.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and tribal governments and the private sector. Federal 
agencies must also develop a plan to provide notice to small 
governments that might be significantly or uniquely affected by any 
regulatory requirements. The plan must enable officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates and must inform, educate, and advise small 
governments on compliance with the regulatory requirements. The rule 
imposes no enforceable duty on any State, local or tribal governments 
or the private sector. EPA's approval of the Navajo Nation's program 
will not constitute a ``Federal mandate'' because there is no 
requirement that the Tribe establish UIC regulatory programs and 
because the program is a Tribal, rather than a Federal program. Thus, 
this rule is not subject to the requirements of sections 202 and 205 of 
the UMRA. In developing this rule, EPA consulted with small governments 
under a plan developed consistent with section 203 of UMRA concerning 
the regulatory requirements in the rule that might significantly or 
uniquely affect small governments. The only small government that might 
be significantly or uniquely affected by this rule is the Navajo Nation 
Tribal government. Accordingly, EPA has made the Tribe fully aware of 
the Federal requirements for approval to administer its own Class II 
UIC program; enabled the Tribe to have meaningful and timely input in 
the development of this rule; and informed, educated, and advised the 
Tribe on compliance with these requirements. However, the Tribal 
government is implementing and complying with these regulatory 
requirements because it has: (1) Voluntarily requested EPA approval to 
administer its Class II UIC program; and (2) voluntarily assumed the 
Tribal share of the costs for doing so.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on 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.''
    This rule 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, as 
specified in Executive Order 13132. This rule would simply provide that 
the Tribe has primary enforcement responsibility under the SDWA for the 
Class II UIC program, pursuant to which the Tribe would be implementing 
and enforcing a tribal regulatory program that is generally equivalent 
to the existing Federal program, as explained in more detail in section 
IV and in the Decision Document. The EPA will continue to administer 
the Federal Class I, III, IV, and V UIC programs on Navajo Indian 
lands. Authorizing the Navajo Nation as the primacy agency for the 
Class II UIC program in the areas covered by the Tribe's Primacy 
Application will not substantially alter the distribution of power and 
responsibilities among levels of government or significantly change 
EPA's relationship with the relevant States. The substitution of a 
Navajo Nation Class II program for an EPA-administered Class II program 
in the areas covered by the Tribe's Primacy Application will impose no 
additional costs on the States of Arizona, Utah or New Mexico. Thus, 
Executive Order 13132 does not apply to this rule.

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    Subject to Executive Order 13175 (65 FR 67249, November 6, 2000) 
EPA may not issue a regulation that has tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by tribal governments, or 
EPA consults with tribal officials early in the process of developing 
the proposed regulation and develops a tribal summary impact statement.
    EPA has concluded that this rule will have tribal implications. 
However, it will neither impose substantial direct

[[Page 65564]]

compliance costs on the tribal government, nor preempt tribal law. The 
Navajo Nation has voluntarily requested authorization for primary 
enforcement responsibility for the Class II UIC program and has 
voluntarily assumed the Tribal share of the costs for doing so. 
Additionally, EPA is approving the Navajo Nation's application for 
Class II UIC primacy and thus replacing the existing Federal Class II 
UIC program in the areas covered by the Tribe's Primacy Application 
with a Tribal program administered pursuant to the laws of the Navajo 
Nation. Thus, the requirements of sections 5(b) and 5(c) of the 
Executive Order do not apply to this rule.
    Consistent with EPA policy, EPA nonetheless consulted with Tribal 
officials early in the process of developing this regulation to permit 
them to have meaningful and timely input into its development. Since 
awarding the first developmental grant to the Navajo Nation in fiscal 
year 1995 for developing capacity to assume the Class II UIC program, 
EPA has consulted and worked closely with the Tribe in the 
administration of these funds and in the development of the Tribe's 
regulatory program.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it approves a tribal primary enforcement (primacy) 
program. This rule simply provides that the Tribe has primary 
enforcement responsibility under the SDWA for the Class II UIC program, 
pursuant to which the Tribe would be implementing and enforcing a 
tribal regulatory program that is generally equivalent to the existing 
Federal program, as explained in more detail in the Decision Document.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629, February 16, 1994) 
establishes Federal executive policy on environmental justice. Its main 
provision 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 and low-income populations in the United States.
    EPA has determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because it does not decrease the level of 
protection provided to human health or the environment or lessen 
current environmental standards. This rule will simply provide that the 
Tribe has primary enforcement responsibility under the SDWA for the 
Class II UIC program, pursuant to which the Tribe will be implementing 
and enforcing a tribal regulatory program that is generally equivalent 
to the existing Federal program, as explained in more detail in the 
Decision Document.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A ``major rule'' 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 4, 2008.

List of Subjects in 40 CFR Part 147

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

    Dated: October 21, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, chapter 1 of title 40 of the 
Code of Federal Regulations is amended as follows:

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

Subpart D--[Amended]

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

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


0
2. Section 147.151 is amended by revising the first two sentences of 
paragraph (a) and the last sentence of paragraph (b) to read as 
follows:


Sec.  147.151  EPA-administered program.

    (a) Contents. The UIC program that applies to all injection 
activities in Arizona, including those on Indian lands, except for 
Class II wells on Navajo Indian lands for which EPA has granted the 
Navajo Nation primacy for the SDWA Class II UIC program (as defined in 
Sec.  147.3400), is administered by EPA. The UIC program for Navajo 
Indian lands, except for Class II wells on Navajo Indian lands for 
which EPA has granted the Navajo Nation primacy for the SDWA Class II 
UIC program, consists of the requirements contained in subpart HHH of 
this part. * * *
    (b) * * * The effective date for the UIC program on the lands of 
the Navajo, except for Class II wells on Navajo Indian lands for which 
EPA has granted

[[Page 65565]]

the Navajo Nation primacy for the SDWA Class II UIC program (as defined 
in Sec.  147.3400), is November 25, 1988.

Subpart GG--[Amended]

0
3. Section 147.1603 is amended by revising the first sentence of 
paragraph (a) and paragraph (b) to read as follows:


Sec.  147.1603  EPA-administered program--Indian Lands.

    (a) Contents. The UIC program for all classes of wells on Indian 
lands in New Mexico, except for Class II wells on Navajo Indian lands 
for which EPA has granted the Navajo Nation primacy for the SDWA Class 
II UIC program (as defined in Sec.  147.3400), is administered by EPA. 
* * *
    (b) Effective date. The effective date for the UIC program on 
Indian lands in New Mexico, except for Class II wells on Navajo Indian 
lands for which EPA has granted the Navajo Nation primacy for the SDWA 
Class II UIC program (as defined in Sec.  147.3400), is November 25, 
1988.

Subpart TT--[Amended]

0
4. Section 147.2253 is amended by revising the first two sentences of 
paragraph (a) and paragraph (b) to read as follows:


Sec.  147.2253  EPA-administered program.

    (a) Contents. The UIC program for all classes of wells on Indian 
lands in the State of Utah, except for Class II wells on Navajo Indian 
lands for which EPA has granted the Navajo Nation primacy for the SDWA 
Class II UIC program (as defined in Sec.  147.3400), is administered by 
EPA. The program for wells on Navajo Indian lands, except for Class II 
wells on Navajo Indian lands for which EPA has granted the Navajo 
Nation primacy for the SDWA Class II UIC program, and for Ute Mountain 
Ute consists of the requirements set forth at subpart HHH of this part. 
* * *
    (b) Effective date. The effective date for this program for all 
other Indian lands in Utah, except for Class II wells on Navajo Indian 
lands for which EPA has granted the Navajo Nation primacy for the SDWA 
Class II UIC program (as defined in Sec.  147.3400), is November 25, 
1988.

Subpart HHH--[Amended]

0
5. Section 147.3000 is amended by revising the first sentence of 
paragraph (a) and paragraph (b) to read as follows:


Sec.  147.3000  EPA-administered program.

    (a) Contents. The UIC program for Navajo Indian lands, except for 
Class II wells on Navajo Indian lands for which EPA has granted the 
Navajo Nation primacy for the SDWA Class II UIC program (as defined in 
Sec.  147.3400), the Ute Mountain Ute (Class II wells only on Ute 
Mountain Ute lands in Colorado and all wells on Ute Mountain Ute lands 
in Utah and New Mexico), and all wells on other Indian lands in New 
Mexico is administered by EPA. * * *
    (b) Effective date. The effective date for the UIC program on these 
lands, except for Class II wells on Navajo Indian lands for which EPA 
has granted the Navajo Nation primacy for the SDWA Class II UIC program 
(as defined in Sec.  147.3400), is November 25, 1988.

0
6. Subpart KKK is added and reserved to read as follows:

Subpart KKK--[Reserved]

0
7. Subpart LLL consisting of Sec.  147.3400 is added to read as 
follows:

Subpart LLL--Navajo Indian Lands


Sec.  147.3400  Navajo Indian Lands--Class II wells.

    The UIC program for Class II injection wells located: Within the 
exterior boundaries of the formal Navajo Reservation, including the 
three satellite reservations (Alamo, Canoncito and Ramah), but 
excluding the former Bennett Freeze Area, the Four Corners Power Plant 
and the Navajo Generating Station; and on Navajo Nation tribal