State of North Dakota Underground Injection Control Program; Class VI Primacy Approval, 17758-17761 [2018-08425]
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17758
Federal Register / Vol. 83, No. 79 / Tuesday, April 24, 2018 / Rules and Regulations
Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP
approvals are exempted under
Executive Order 12866. This action is
also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This action merely approves
state law as meeting Federal
requirements and imposes no additional
requirements beyond those imposed by
state law. Accordingly, the
Administrator certifies that this
rulemaking will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this rulemaking would
approve pre-existing requirements
under state law and does not impose
any additional enforceable duty beyond
that required by state law, it does not
contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
This action also does not have
Federalism implications because it does
not have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). Thus Executive Order
13132 does not apply to this action.
This action merely approves a state rule
implementing a Federal standard, and
does not alter the relationship or the
distribution of power and
responsibilities established in the CAA.
This rulemaking also is not subject to
Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997) because it approves a
state rule implementing a Federal
standard.
In reviewing SIP submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
State to use voluntary consensus
standards (VCS), EPA has no authority
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to disapprove a state submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA when it reviews a state submission,
to use VCS in place of a state
submission that otherwise satisfies the
provisions of the CAA. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. This action does
not impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). Burden is defined
at 5 CFR 1320.3(b).
List of Subjects in 40 CFR Part 62
Environmental protection,
Administrative practice and procedure,
Air pollution control, Hospital, medical,
and infectious incineration units,
Intergovernmental relations, Reporting
and recordkeeping requirements.
Dated: April 16, 2018.
Karen A. Flournoy,
Acting Regional Administrator, Region 7.
For the reasons stated in the
preamble, EPA amends 40 CFR part 62
as set forth below:
PART 62—APPROVAL AND
PROMULGATION OF STATE PLANS
FOR DESIGNATED FACILITIES AND
POLLUTANTS
1. The authority citation for part 62
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart AA—Missouri
2. Amend § 62.6358 by adding
paragraph (e) to read as follows:
■
§ 62.6358
Identification of plan.
*
*
*
*
*
(e) Amended plan. Submitted by the
Missouri Department of Natural
Resources on July 3, 2014 and August 8,
2011. The effective date of the amended
plan is May 24, 2018.
[FR Doc. 2018–08536 Filed 4–23–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 147
[EPA–HQ–OW–2013–0280; FRL–9976–92–
OW]
State of North Dakota Underground
Injection Control Program; Class VI
Primacy Approval
Environmental Protection
Agency (EPA).
AGENCY:
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ACTION:
Final rule.
The Environmental Protection
Agency (EPA) is hereby approving an
application from the state of North
Dakota under the Safe Drinking Water
Act (SDWA) to implement an
underground injection control (UIC)
program for Class VI injection wells
located within the state, except within
Indian lands.
DATES: This regulation is effective April
24, 2018. The incorporation by reference
of certain publications listed in the rule
is approved by the Director of the
Federal Register as of April 24, 2018.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OW–2013–0280. All
documents in the docket are listed on
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available electronically
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lisa
McWhirter, Drinking Water Protection
Division, Office of Ground Water and
Drinking Water (4606M), U.S.
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC
20460; telephone number: (202) 564–
2317; fax number: (202) 564–3754;
email address: mcwhirter.lisa@epa.gov
or Craig Boomgaard, Underground
Injection Control Unit, U.S.
Environmental Protection Agency,
Region 8, 1595 Wynkoop Street, MSC
8WP–SUI, Denver, Colorado 80202;
telephone number: (303) 312–6794; fax
number: (303) 312–7084; email address:
boomgaard.craig@epa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Introduction
The state of North Dakota received
primary enforcement responsibility
(primacy) for Class I, III, IV and V
injection wells under SDWA section
1422 on September 21, 1984, and Class
II injection wells under SDWA section
1425 on May 11, 1984. The state of
North Dakota has applied to the EPA
under SDWA section 1422, 42 U.S.C.
300h–1, for primacy for Class VI
injection wells, except within Indian
lands. This action is based on a legal
and technical review of the state of
North Dakota’s application as directed
in the Code of Federal Regulations
(CFR) at 40 CFR part 145. As a result of
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this review, the EPA is approving the
state of North Dakota’s application
because it meets all applicable
requirements for approval under SDWA
section 1422, and the state is capable of
administering a Class VI UIC program in
a manner consistent with the terms and
purposes of SDWA and all applicable
regulations.
II. Legal Authorities
These regulations are being
promulgated under authority of SDWA
sections 1422 and 1450, 42 U.S.C. 300h–
1 and 300j–9.
III. Requirements for State UIC
Programs
SDWA section 1421 requires the
Administrator of the EPA to promulgate
minimum requirements for effective
state UIC programs to prevent
underground injection activities that
endanger underground sources of
drinking water (USDWs). SDWA section
1422 establishes requirements for states
seeking EPA approval of state UIC
programs.
For states that seek approval for UIC
programs under SDWA section 1422,
the EPA has promulgated a regulation
setting forth the applicable procedures
and substantive requirements, codified
in 40 CFR part 145. It includes
requirements for state permitting
programs (by reference to certain
provisions of 40 CFR parts 124 and 144),
compliance evaluation programs,
enforcement authority, and information
sharing.
IV. North Dakota’s Application
jstallworth on DSKBBY8HB2PROD with RULES
A. Background
On June 21, 2013, the state of North
Dakota submitted a program revision
application to add Class VI injection
wells to its SDWA section 1422 UIC
program. The EPA reviewed the
application and published a Federal
Register notice of North Dakota’s
Underground Injection Control Program
Revision Application on August 9, 2013
(78 FR 48639), which sought public
comments and provided an opportunity
to request a public hearing. Public
notice of North Dakota’s application was
also published in the Bismarck Tribune
on August 9, 2013.
B. Public Participation Activities
Conducted by the State of North Dakota
The state of North Dakota held two
public hearings with public comment
periods on the state’s intent to adopt its
Class VI UIC regulations. The first
public hearing was held on April 24,
2012, and the public comment period
closed on June 8, 2012. The second
public hearing was held on October 22,
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2012, and the public comment period
closed on November 1, 2012. Both
public hearings were held in Bismarck,
North Dakota, and no public comments
were received during the two public
comment periods.
C. Public Participation Activities
Conducted by the EPA
On August 9, 2013, a notice
announcing North Dakota’s
Underground Injection Control Program
Revision was published in the Federal
Register (78 FR 48639) and in the
Bismarck Tribune. This notice provided
that a public hearing would be held if
requested. The agency did not receive
any requests for a public hearing and
received five written comments. Two
comments were outside the scope of the
state’s application and three comments
were focused on the Memorandum of
Agreement between Region 8 and the
North Dakota Industrial Commission.
The EPA worked with the Commission
to address these comments and revise
the Memorandum of Agreement.
V. Public Comments Received on the
Proposed Rule and EPA’s Response to
Comments
On May 19, 2017, EPA issued a
proposed rulemaking (82 FR 22949) and
requested public comment. The public
comment period was open for 60 days
and ended on July 18, 2017. The EPA
received comments from 15 individual
commenters. Of these 15 commenters,
11 submitted comments in support of
the rule; 1 commenter submitted a
comment outside the scope of the rule;
and 3 commenters submitted 13
comments asserting that certain
provisions in North Dakota’s regulations
do not meet the federal requirements.
After close consideration of these 13
comments, the EPA resolved 11 in its
response and determined 2 to be outside
the scope of the rule. The comments
EPA received and EPA’s responses are
available in EPA’s Docket No. EPA–HQ–
OW–2013–0280.
VI. EPA’s Approval
In this action, the EPA is approving
the state of North Dakota’s Class VI UIC
program; hereby, the state will assume
primary enforcement responsibility
(primacy) for regulating Class VI
injection wells in the state, except
within Indian lands. Support of this
action is part of the public record in
EPA’s Docket No. EPA–HQ–OW–2013–
0280. This action amends 40 CFR part
147 and incorporates by reference the
EPA-approved state statutes and
regulations. The EPA will continue to
administer the UIC program for all well
classes within Indian lands.
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17759
The provisions of the state of North
Dakota’s Code that contain standards,
requirements, and procedures
applicable to owners or operators of
Class VI UIC wells are incorporated by
reference into 40 CFR 147.1751.
Provisions of the state of North Dakota’s
Code that contain standards,
requirements, and procedures
applicable to owners or operators of
Class I, III, IV and V injection wells have
already been incorporated by reference
into 40 CFR 147.1751. Any provisions
incorporated by reference, as well as all
permit conditions or permit denials
issued pursuant to such provisions, will
be enforceable by the EPA pursuant to
SDWA section 1423 and 40 CFR
147.1(e).
In order to better serve the public, the
EPA is reformatting the codification of
the EPA-approved North Dakota SDWA
section 1422 Underground Injection
Control Program Statutes and
Regulations for Well Classes I, III, IV, V
and VI. Instead of codifying the North
Dakota Statutes and Regulations as
separate paragraphs, the EPA is now
incorporating by reference a binder that
contains the EPA-approved North
Dakota Statutes and Regulations for
Well Classes I, III, IV, V and VI. This
binder is incorporated by reference into
§ 147.1751 and is available at https://
www.regulations.gov in the docket for
this rule. A complete list of the contents
of the binder ‘‘EPA-approved North
Dakota SDWA § 1422 Underground
Injection Control Program Statutes and
Regulations for Well Classes I, III, IV, V
and VI’’ is codified as Table 1 to
paragraph (a) in that section.
The EPA will continue to oversee the
state of North Dakota’s administration of
the SDWA Class VI program. Part of the
EPA’s oversight responsibility will
require quarterly reports of noncompliance and annual UIC
performance reports pursuant to 40 CFR
144.8. The Memorandum of Agreement
between the EPA and the state of North
Dakota, signed by the Regional
Administrator on October 28, 2013,
provides the EPA with the opportunity
to review and comment on all permits.
VII. Effective Date
This final rule is effective
immediately upon publication. Section
553(d) of the Administrative Procedure
Act (‘‘APA’’), 5 U.S.C. 553(d), provides
that final rules shall not become
effective until 30 days after publication
in the Federal Register, ‘‘except . . . as
otherwise provided by the agency for
good cause,’’ among other exceptions.
The purpose of this provision is to ‘‘give
affected parties a reasonable time to
adjust their behavior before the final
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rule takes effect.’’ Omnipoint Corp. v.
FCC, 78 F.3d 620, 630 (D.C. Cir. 1996);
see also United States v. Gavrilovic, 551
F.2d 1099, 1104 (8th Cir. 1977) (quoting
legislative history). Thus, in
determining whether good cause exists
to waive the 30-day delay, an agency
should ‘‘balance the necessity for
immediate implementation against
principles of fundamental fairness
which require that all affected persons
be afforded a reasonable amount of time
to prepare for the effective date of its
ruling.’’ Gavrilovic, 551 F.2d at 1105.
EPA has determined that there is good
cause for making this final rule effective
immediately because this action will
simply provide that the state of North
Dakota has primacy under SDWA for
the Class VI UIC program, pursuant to
which the state of North Dakota will be
implementing and enforcing a state
regulatory program that is as stringent as
the existing federal program. At this
time, there are no federally permitted
Class VI wells in North Dakota. As a
result, there are no current permittees
that need time to prepare for this rule
and any prospective permittees will
benefit from the regulatory certainty that
an immediate effective date will
provide. This final rule will not require
affected persons to take action or change
behavior to come into compliance
within the next 30 days. Furthermore,
several prospective applicants are
waiting for the state of North Dakota to
receive primacy before submitting their
permit applications. For these reasons,
the EPA finds that good cause exists
under section 553(d)(3) to make this
rule effective immediately upon
publication.
VIII. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
jstallworth on DSKBBY8HB2PROD with RULES
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is not an Executive Order
13771 regulatory action because this
action is not significant under Executive
Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose any new
information collection burden under the
PRA. OMB has previously approved the
information collection activities
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contained in the existing regulations
and has assigned OMB control number
2040–0042. Reporting or recordkeeping
requirements will be based on the state
of North Dakota UIC Regulations, and
the state of North Dakota is not subject
to the PRA.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. In making this
determination, the impact of concern is
any significant adverse economic
impact on small entities. An agency may
certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, has
no net burden or otherwise has a
positive economic effect on the small
entities subject to the rule. This rule
does not impose any requirements on
small entities as this rule approves a
state program. We have therefore
concluded that this action will have no
net regulatory burden for all directly
regulated small entities.
E. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local or
tribal governments or the private sector.
EPA’s approval of the state of North
Dakota’s program will not constitute a
federal mandate because there is no
requirement that a state establish UIC
regulatory programs and because the
program is a state, rather than a federal
program.
F. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. This action contains no
federal mandates for tribal governments
and does not impose any enforceable
duties on tribal governments. Thus,
Executive Order 13175 does not apply
to this action.
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H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
The EPA interprets Executive Order
13045 as applying only to those
regulatory actions that concern
environmental health or safety risks that
the EPA has reason to believe may
disproportionately affect children, per
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive Order. This action is not
subject to Executive Order 13045
because it approves a state program.
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
J. National Technology Transfer and
Advancement Act and 1 CFR Part 51
This rulemaking does not involve
technical standards. The binder, ‘‘EPAApproved North Dakota SDWA § 1422
Underground Injection Control Program
Statutes and Regulations for Well
Classes I, III, IV, V and VI,’’ dated
December 2013, is described in greater
detail in Section VI of this preamble.
The material is reasonably available
through the rulemaking docket on
www.regulations.gov and from the EPA.
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA has determined that this
action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994)
because it does not establish an
environmental health or safety standard.
This action will simply provide that the
state of North Dakota has primacy under
SDWA for the Class VI UIC program,
pursuant to which the state of North
Dakota will be implementing and
enforcing a state regulatory program that
is as stringent as the existing federal
program.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 147
Environmental protection,
Incorporation by reference, Indian—
lands, Intergovernmental relations,
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Reporting and recordkeeping
requirements, Water supply.
Dated: April 10, 2018.
E. Scott Pruitt,
Administrator.
For the reasons set out in the
preamble, the Environmental Protection
Agency amends 40 CFR part 147 as
follows:
PART 147—STATE, TRIBAL, AND EPAADMINISTERED UNDERGROUND
INJECTION CONTROL PROGRAMS
1. The authority citation for part 147
continues to read as follows:
■
Authority: 42 U.S.C. 300h–4.
2. In § 147.1751:
a. Revise the section heading, the
introductory text, paragraph (a), and
paragraph (b) introductory text.
■ b. Add paragraphs (e) through (h).
The revisions and additions read as
follows:
■
■
§ 147.1751 State-administered program—
Class I, III, IV, V and VI wells.
The UIC program for Class I, III, IV
and V wells in the state of North Dakota,
except those located on Indian lands, is
the program administered by the North
Dakota Department of Health, approved
by the EPA pursuant to SDWA section
1422. Notification of this approval was
published in the Federal Register on
September 21, 1984; the effective date of
this program is October 5, 1984. The
UIC Program for Class VI wells in the
state of North Dakota, except those
located on Indian lands, is the program
administered by the North Dakota
Industrial Commission, approved by the
EPA pursuant to SDWA section 1422.
Notification of this approval was
published in the Federal Register on
April 24, 2018; the effective date of this
program is April 24, 2018. This program
consists of the following elements, as
submitted to the EPA in the state’s
program revision application.
(a) The requirements set forth in the
state statutes and regulations cited in
the binder entitled ‘‘EPA-Approved
North Dakota SDWA § 1422
Underground Injection Control Program
Statutes and Regulations for Well
Classes I, III, IV, V and VI,’’ dated
December 2013, and listed in Table 1 to
17761
paragraph (a) of this section, are
incorporated by reference and made a
part of the applicable UIC program
under SDWA for the state of North
Dakota. The Director of the Federal
Register approves this incorporation by
reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies of the
North Dakota regulations that are
incorporated by reference in paragraph
(a) of this section may be inspected at
the U.S. Environmental Protection
Agency, Region 8, Library 2nd Floor,
1595 Wynkoop Street, Denver, Colorado
80202; Water Docket, EPA Docket
Center (EPA/DC) EPA West, Room 3334,
1301 Constitution Ave. NW,
Washington, DC 20460; and the
National Archives and Records
Administration (NARA). If you wish to
obtain materials from the EPA Regional
Office, please call (303) 312–1226; for
materials from a docket in the EPA
Headquarters Library, please call the
Water Docket at (202) 566–2426. For
information on the availability of this
material at NARA, call (202) 741–6030,
or go to https://www.archives.gov/
federal-register/cfr/ibr-locations.html.
TABLE 1 TO PARAGRAPH (A) EPA-APPROVED NORTH DAKOTA SDWA § 1422 UNDERGROUND INJECTION CONTROL
PROGRAM STATUTES AND REGULATIONS FOR WELL CLASSES I, III, IV, V AND VI
State
effective
date
State citation
Title/subject
North Dakota Century Code Sections 38–
12–01—38–12–03.
North Dakota Century Code Sections 61–
28–02 and 61–28–06.
North Dakota Administrative Code Sections 33–25–01–01—33–25–01–18.
North Dakota Administrative Code Sections 43–02–02–01–43–02–02–50.
North Dakota Administrative Code Sections 43–02–02.1–01—43–02–02.2–19.
North Dakota Century Code Sections 38–
22–01—38–22–23.
North Dakota Administrative Code Sections 38–08–16—38–08–17.
North Dakota Administrative Code Sections 43–05–01–01—43–05–01–20.
Regulation, Development and Production of Subsurface Minerals.
Control, Prevention and Abatement of
Pollution of Surface Waters.
Underground Injection Control Program
EPA approval date 1
1980
September 21, 1984, 49 FR 37066.
1989
March 6, 1991, 56 FR 9418.
1983
September 21, 1984, 49 FR 37066.
Subsurface Mineral Exploration and Development.
Underground Injection Control Program
1986
March 6, 1991, 56 FR 9418.
1984
September 21, 1984, 49 FR 37066.
Carbon Dioxide Underground Storage ...
2009
Control of Oil and Gas Resources .........
2013
Geologic Storage of Carbon Dioxide ......
2013
April 24, 2018, [Insert Federal Register
citation].
April 24, 2018, [Insert Federal Register
citation].
April 24, 2018, [Insert Federal Register
citation].
jstallworth on DSKBBY8HB2PROD with RULES
1 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision.
(b) The following statutes and
regulations, although not incorporated
by reference, also are part of the
approved State-administered program:
*
*
*
*
*
(e) The Memorandum of Agreement
between EPA Region VIII and the North
Dakota Industrial Commission, signed
by the EPA Regional Administrator on
October 28, 2013.
(f) The Memorandum of
Understanding between the North
Dakota Industrial Commission,
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Department of Mineral Resources, Oil
and Gas Division and the North Dakota
Department of Health, Water Quality
Division, Related to the Underground
Injection Control Program signed on
June 19, 2013.
(g) The statement of legal authority,
‘‘Class VI Underground Injection
Control Program, Attorney General’s
Statement,’’ signed by the Attorney
General of North Dakota on January 22,
2013.
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(h) The Class VI Program Description
and any other materials submitted as
part of the program revision or as
supplements thereto.
[FR Doc. 2018–08425 Filed 4–23–18; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 83, Number 79 (Tuesday, April 24, 2018)]
[Rules and Regulations]
[Pages 17758-17761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08425]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[EPA-HQ-OW-2013-0280; FRL-9976-92-OW]
State of North Dakota Underground Injection Control Program;
Class VI Primacy Approval
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is hereby approving
an application from the state of North Dakota under the Safe Drinking
Water Act (SDWA) to implement an underground injection control (UIC)
program for Class VI injection wells located within the state, except
within Indian lands.
DATES: This regulation is effective April 24, 2018. The incorporation
by reference of certain publications listed in the rule is approved by
the Director of the Federal Register as of April 24, 2018.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2013-0280. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lisa McWhirter, Drinking Water
Protection Division, Office of Ground Water and Drinking Water (4606M),
U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460; telephone number: (202) 564-2317; fax number:
(202) 564-3754; email address: [email protected] or Craig
Boomgaard, Underground Injection Control Unit, U.S. Environmental
Protection Agency, Region 8, 1595 Wynkoop Street, MSC 8WP-SUI, Denver,
Colorado 80202; telephone number: (303) 312-6794; fax number: (303)
312-7084; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
The state of North Dakota received primary enforcement
responsibility (primacy) for Class I, III, IV and V injection wells
under SDWA section 1422 on September 21, 1984, and Class II injection
wells under SDWA section 1425 on May 11, 1984. The state of North
Dakota has applied to the EPA under SDWA section 1422, 42 U.S.C. 300h-
1, for primacy for Class VI injection wells, except within Indian
lands. This action is based on a legal and technical review of the
state of North Dakota's application as directed in the Code of Federal
Regulations (CFR) at 40 CFR part 145. As a result of
[[Page 17759]]
this review, the EPA is approving the state of North Dakota's
application because it meets all applicable requirements for approval
under SDWA section 1422, and the state is capable of administering a
Class VI UIC program in a manner consistent with the terms and purposes
of SDWA and all applicable regulations.
II. Legal Authorities
These regulations are being promulgated under authority of SDWA
sections 1422 and 1450, 42 U.S.C. 300h-1 and 300j-9.
III. Requirements for State UIC Programs
SDWA section 1421 requires the Administrator of the EPA to
promulgate minimum requirements for effective state UIC programs to
prevent underground injection activities that endanger underground
sources of drinking water (USDWs). SDWA section 1422 establishes
requirements for states seeking EPA approval of state UIC programs.
For states that seek approval for UIC programs under SDWA section
1422, the EPA has promulgated a regulation setting forth the applicable
procedures and substantive requirements, codified in 40 CFR part 145.
It includes requirements for state permitting programs (by reference to
certain provisions of 40 CFR parts 124 and 144), compliance evaluation
programs, enforcement authority, and information sharing.
IV. North Dakota's Application
A. Background
On June 21, 2013, the state of North Dakota submitted a program
revision application to add Class VI injection wells to its SDWA
section 1422 UIC program. The EPA reviewed the application and
published a Federal Register notice of North Dakota's Underground
Injection Control Program Revision Application on August 9, 2013 (78 FR
48639), which sought public comments and provided an opportunity to
request a public hearing. Public notice of North Dakota's application
was also published in the Bismarck Tribune on August 9, 2013.
B. Public Participation Activities Conducted by the State of North
Dakota
The state of North Dakota held two public hearings with public
comment periods on the state's intent to adopt its Class VI UIC
regulations. The first public hearing was held on April 24, 2012, and
the public comment period closed on June 8, 2012. The second public
hearing was held on October 22, 2012, and the public comment period
closed on November 1, 2012. Both public hearings were held in Bismarck,
North Dakota, and no public comments were received during the two
public comment periods.
C. Public Participation Activities Conducted by the EPA
On August 9, 2013, a notice announcing North Dakota's Underground
Injection Control Program Revision was published in the Federal
Register (78 FR 48639) and in the Bismarck Tribune. This notice
provided that a public hearing would be held if requested. The agency
did not receive any requests for a public hearing and received five
written comments. Two comments were outside the scope of the state's
application and three comments were focused on the Memorandum of
Agreement between Region 8 and the North Dakota Industrial Commission.
The EPA worked with the Commission to address these comments and revise
the Memorandum of Agreement.
V. Public Comments Received on the Proposed Rule and EPA's Response to
Comments
On May 19, 2017, EPA issued a proposed rulemaking (82 FR 22949) and
requested public comment. The public comment period was open for 60
days and ended on July 18, 2017. The EPA received comments from 15
individual commenters. Of these 15 commenters, 11 submitted comments in
support of the rule; 1 commenter submitted a comment outside the scope
of the rule; and 3 commenters submitted 13 comments asserting that
certain provisions in North Dakota's regulations do not meet the
federal requirements. After close consideration of these 13 comments,
the EPA resolved 11 in its response and determined 2 to be outside the
scope of the rule. The comments EPA received and EPA's responses are
available in EPA's Docket No. EPA-HQ-OW-2013-0280.
VI. EPA's Approval
In this action, the EPA is approving the state of North Dakota's
Class VI UIC program; hereby, the state will assume primary enforcement
responsibility (primacy) for regulating Class VI injection wells in the
state, except within Indian lands. Support of this action is part of
the public record in EPA's Docket No. EPA-HQ-OW-2013-0280. This action
amends 40 CFR part 147 and incorporates by reference the EPA-approved
state statutes and regulations. The EPA will continue to administer the
UIC program for all well classes within Indian lands.
The provisions of the state of North Dakota's Code that contain
standards, requirements, and procedures applicable to owners or
operators of Class VI UIC wells are incorporated by reference into 40
CFR 147.1751. Provisions of the state of North Dakota's Code that
contain standards, requirements, and procedures applicable to owners or
operators of Class I, III, IV and V injection wells have already been
incorporated by reference into 40 CFR 147.1751. Any provisions
incorporated by reference, as well as all permit conditions or permit
denials issued pursuant to such provisions, will be enforceable by the
EPA pursuant to SDWA section 1423 and 40 CFR 147.1(e).
In order to better serve the public, the EPA is reformatting the
codification of the EPA-approved North Dakota SDWA section 1422
Underground Injection Control Program Statutes and Regulations for Well
Classes I, III, IV, V and VI. Instead of codifying the North Dakota
Statutes and Regulations as separate paragraphs, the EPA is now
incorporating by reference a binder that contains the EPA-approved
North Dakota Statutes and Regulations for Well Classes I, III, IV, V
and VI. This binder is incorporated by reference into Sec. 147.1751
and is available at https://www.regulations.gov in the docket for this
rule. A complete list of the contents of the binder ``EPA-approved
North Dakota SDWA Sec. 1422 Underground Injection Control Program
Statutes and Regulations for Well Classes I, III, IV, V and VI'' is
codified as Table 1 to paragraph (a) in that section.
The EPA will continue to oversee the state of North Dakota's
administration of the SDWA Class VI program. Part of the EPA's
oversight responsibility will require quarterly reports of non-
compliance and annual UIC performance reports pursuant to 40 CFR 144.8.
The Memorandum of Agreement between the EPA and the state of North
Dakota, signed by the Regional Administrator on October 28, 2013,
provides the EPA with the opportunity to review and comment on all
permits.
VII. Effective Date
This final rule is effective immediately upon publication. Section
553(d) of the Administrative Procedure Act (``APA''), 5 U.S.C. 553(d),
provides that final rules shall not become effective until 30 days
after publication in the Federal Register, ``except . . . as otherwise
provided by the agency for good cause,'' among other exceptions. The
purpose of this provision is to ``give affected parties a reasonable
time to adjust their behavior before the final
[[Page 17760]]
rule takes effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C.
Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104
(8th Cir. 1977) (quoting legislative history). Thus, in determining
whether good cause exists to waive the 30-day delay, an agency should
``balance the necessity for immediate implementation against principles
of fundamental fairness which require that all affected persons be
afforded a reasonable amount of time to prepare for the effective date
of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA has determined that
there is good cause for making this final rule effective immediately
because this action will simply provide that the state of North Dakota
has primacy under SDWA for the Class VI UIC program, pursuant to which
the state of North Dakota will be implementing and enforcing a state
regulatory program that is as stringent as the existing federal
program. At this time, there are no federally permitted Class VI wells
in North Dakota. As a result, there are no current permittees that need
time to prepare for this rule and any prospective permittees will
benefit from the regulatory certainty that an immediate effective date
will provide. This final rule will not require affected persons to take
action or change behavior to come into compliance within the next 30
days. Furthermore, several prospective applicants are waiting for the
state of North Dakota to receive primacy before submitting their permit
applications. For these reasons, the EPA finds that good cause exists
under section 553(d)(3) to make this rule effective immediately upon
publication.
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2040-0042. Reporting or recordkeeping requirements will
be based on the state of North Dakota UIC Regulations, and the state of
North Dakota is not subject to the PRA.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This rule does not impose any
requirements on small entities as this rule approves a state program.
We have therefore concluded that this action will have no net
regulatory burden for all directly regulated small entities.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector. EPA's approval of
the state of North Dakota's program will not constitute a federal
mandate because there is no requirement that a state establish UIC
regulatory programs and because the program is a state, rather than a
federal program.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action contains no federal mandates for
tribal governments and does not impose any enforceable duties on tribal
governments. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it approves a state program.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act and 1 CFR Part 51
This rulemaking does not involve technical standards. The binder,
``EPA-Approved North Dakota SDWA Sec. 1422 Underground Injection
Control Program Statutes and Regulations for Well Classes I, III, IV, V
and VI,'' dated December 2013, is described in greater detail in
Section VI of this preamble. The material is reasonably available
through the rulemaking docket on www.regulations.gov and from the EPA.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA has determined that this action is not subject to Executive
Order 12898 (59 FR 7629, February 16, 1994) because it does not
establish an environmental health or safety standard. This action will
simply provide that the state of North Dakota has primacy under SDWA
for the Class VI UIC program, pursuant to which the state of North
Dakota will be implementing and enforcing a state regulatory program
that is as stringent as the existing federal program.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 147
Environmental protection, Incorporation by reference, Indian--
lands, Intergovernmental relations,
[[Page 17761]]
Reporting and recordkeeping requirements, Water supply.
Dated: April 10, 2018.
E. Scott Pruitt,
Administrator.
For the reasons set out in the preamble, the Environmental
Protection Agency amends 40 CFR part 147 as follows:
PART 147--STATE, TRIBAL, AND EPA-ADMINISTERED UNDERGROUND INJECTION
CONTROL PROGRAMS
0
1. The authority citation for part 147 continues to read as follows:
Authority: 42 U.S.C. 300h-4.
0
2. In Sec. 147.1751:
0
a. Revise the section heading, the introductory text, paragraph (a),
and paragraph (b) introductory text.
0
b. Add paragraphs (e) through (h).
The revisions and additions read as follows:
Sec. 147.1751 State-administered program--Class I, III, IV, V and VI
wells.
The UIC program for Class I, III, IV and V wells in the state of
North Dakota, except those located on Indian lands, is the program
administered by the North Dakota Department of Health, approved by the
EPA pursuant to SDWA section 1422. Notification of this approval was
published in the Federal Register on September 21, 1984; the effective
date of this program is October 5, 1984. The UIC Program for Class VI
wells in the state of North Dakota, except those located on Indian
lands, is the program administered by the North Dakota Industrial
Commission, approved by the EPA pursuant to SDWA section 1422.
Notification of this approval was published in the Federal Register on
April 24, 2018; the effective date of this program is April 24, 2018.
This program consists of the following elements, as submitted to the
EPA in the state's program revision application.
(a) The requirements set forth in the state statutes and
regulations cited in the binder entitled ``EPA-Approved North Dakota
SDWA Sec. 1422 Underground Injection Control Program Statutes and
Regulations for Well Classes I, III, IV, V and VI,'' dated December
2013, and listed in Table 1 to paragraph (a) of this section, are
incorporated by reference and made a part of the applicable UIC program
under SDWA for the state of North Dakota. The Director of the Federal
Register approves this incorporation by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of the North Dakota regulations
that are incorporated by reference in paragraph (a) of this section may
be inspected at the U.S. Environmental Protection Agency, Region 8,
Library 2nd Floor, 1595 Wynkoop Street, Denver, Colorado 80202; Water
Docket, EPA Docket Center (EPA/DC) EPA West, Room 3334, 1301
Constitution Ave. NW, Washington, DC 20460; and the National Archives
and Records Administration (NARA). If you wish to obtain materials from
the EPA Regional Office, please call (303) 312-1226; for materials from
a docket in the EPA Headquarters Library, please call the Water Docket
at (202) 566-2426. For information on the availability of this material
at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.
Table 1 to Paragraph (a) EPA-Approved North Dakota SDWA Sec. 1422 Underground Injection Control Program
Statutes and Regulations for Well Classes I, III, IV, V and VI
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective date EPA approval date \1\
----------------------------------------------------------------------------------------------------------------
North Dakota Century Code Sections Regulation, Development and 1980 September 21, 1984, 49 FR
38-12-01--38-12-03. Production of Subsurface 37066.
Minerals.
North Dakota Century Code Sections Control, Prevention and 1989 March 6, 1991, 56 FR 9418.
61-28-02 and 61-28-06. Abatement of Pollution of
Surface Waters.
North Dakota Administrative Code Underground Injection 1983 September 21, 1984, 49 FR
Sections 33-25-01-01--33-25-01-18. Control Program. 37066.
North Dakota Administrative Code Subsurface Mineral 1986 March 6, 1991, 56 FR 9418.
Sections 43-02-02-01-43-02-02-50. Exploration and Development.
North Dakota Administrative Code Underground Injection 1984 September 21, 1984, 49 FR
Sections 43-02-02.1-01--43-02-02.2- Control Program. 37066.
19.
North Dakota Century Code Sections Carbon Dioxide Underground 2009 April 24, 2018, [Insert
38-22-01--38-22-23. Storage. Federal Register citation].
North Dakota Administrative Code Control of Oil and Gas 2013 April 24, 2018, [Insert
Sections 38-08-16--38-08-17. Resources. Federal Register citation].
North Dakota Administrative Code Geologic Storage of Carbon 2013 April 24, 2018, [Insert
Sections 43-05-01-01--43-05-01-20. Dioxide. Federal Register citation].
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
Federal Register notice cited in this column for the particular provision.
(b) The following statutes and regulations, although not
incorporated by reference, also are part of the approved State-
administered program:
* * * * *
(e) The Memorandum of Agreement between EPA Region VIII and the
North Dakota Industrial Commission, signed by the EPA Regional
Administrator on October 28, 2013.
(f) The Memorandum of Understanding between the North Dakota
Industrial Commission, Department of Mineral Resources, Oil and Gas
Division and the North Dakota Department of Health, Water Quality
Division, Related to the Underground Injection Control Program signed
on June 19, 2013.
(g) The statement of legal authority, ``Class VI Underground
Injection Control Program, Attorney General's Statement,'' signed by
the Attorney General of North Dakota on January 22, 2013.
(h) The Class VI Program Description and any other materials
submitted as part of the program revision or as supplements thereto.
[FR Doc. 2018-08425 Filed 4-23-18; 8:45 am]
BILLING CODE 6560-50-P
