State of New Mexico Underground Injection Control Program; Primacy Revisions, 64437-64440 [2020-21487]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 198 (Tuesday, October 13, 2020)]
[Proposed Rules]
[Pages 64437-64440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21487]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-HQ-OW-2020-0154; FRL-10015-00-OW]


State of New Mexico Underground Injection Control Program; 
Primacy Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve 
an application from the State of New Mexico under the Safe Drinking 
Water Act (SDWA) to revise the state's existing Underground Injection 
Control (UIC) program for Class I injection wells located within the 
state, except those in Indian country. New Mexico has revised the 
state's UIC Class I program regulations to remove the current ban on 
Class I injection wells and establish new permit conditions, oversight, 
and enforcement to safely manage Class I hazardous waste disposal 
wells.

DATES: Comments must be received on or before November 27, 2020.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2020-0154, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal 
Holidays).
    Instructions: All submissions received must include the Docket ID 
No. EPA-HQ-OW-2020-0154 for this rulemaking. Comments received may be 
posted without change to https://www.regulations.gov/, including any 
personal information provided. For detailed instructions on sending 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document. Out of an abundance of caution for members of 
the public and our staff, the EPA Docket Center and Reading Room are 
closed to the public, with limited exceptions, to reduce the risk of 
transmitting COVID-19. Our Docket Center staff will continue to provide 
remote customer service via email, phone, and webform. We encourage the 
public to submit comments via https://www.regulations.gov/ or email, as 
there may be a delay in processing mail and faxes. Hand deliveries and 
couriers may be received by scheduled appointment only. For further 
information on EPA Docket Center services and the current status, 
please visit us online at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Kyle Carey, Drinking Water Protection 
Division, Office of Ground Water and Drinking Water (4606M), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone number: (202) 564-2322; fax number: (202) 564-3754; 
email address: [email protected], or Evelyn Rosborough, Region VI 
Library (6WD), U.S. Environmental Protection Agency, 1201 Elm Street, 
Suite 500, Dallas, Texas 75270; telephone number: (214) 665-7515; fax: 
(214) 665-6490; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2020-
0154, at https://www.regulations.gov or other methods identified in the 
ADDRESSES section of this document. Once submitted, comments cannot be 
edited or removed from the docket. EPA may publish any comment received 
to its public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Contact EPA if 
you want to submit CBI; see FOR INFORMATION CONTACT section of this 
document. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.
    The EPA is temporarily suspending its Docket Center and Reading 
Room for public visitors, with limited exceptions, to reduce the risk 
of transmitting COVID-19. Our Docket Center staff will continue to 
provide remote customer service via email, phone, and webform. We 
encourage the public to submit comments via https://www.regulations.gov/ as there may be a delay in processing mail and 
faxes. Hand deliveries or couriers will be received by scheduled 
appointment only. For further information and updates on EPA Docket 
Center services, please visit us online at https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

B. Participation in the Public Hearing

    Please note that EPA may deviate from its typical approach because 
the President has declared a national emergency. Because of current CDC 
recommendations, as well as state and local orders for social 
distancing to limit the spread of COVID-19, EPA may not be able to hold 
in-person public meetings at this time.
    Confirmation or cancellation of the public hearing will be 
announced on November 27, 2020 and on EPA Region VI's website at: 
https://www.epa.gov/uic/new-mexico-proposed-uic-program-revision-class-i-injection-wells. For information regarding the public hearing, 
including a request to hold a hearing, or to speak at the hearing, 
please contact Evelyn Rosborough, Region VI Library (6WD), U.S. 
Environmental Protection Agency, 1201 Elm Street, Suite 500, Dallas, 
Texas 75270; or telephone: (214) 665-7515; fax: (214) 665-6490; email: 
[email protected].
    If requested, the public hearing may be held at the Wendell Chino 
Building (Porter Hall, 1st floor), 1220 South St. Francis Drive, Santa 
Fe, New Mexico 87505 or at the New Mexico State Capitol, 490 Old Santa 
Fe Trail, Santa Fe, NM 87501. EPA may change the format and the timing 
of the public hearing (i.e., a virtual hearing held during regular 
business hours) if appropriate to protect public health in the face of 
COVID-19-risks. EPA will publish notice of any such change at least 
seven days prior to the hearing date exclusively at: https://www.epa.gov/uic/new-mexico-proposed-uic-program-revision-class-i-injection-wells.

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C. Public Outreach

    On October 13, 2020, a public notice announcing this proposed 
approval, request for public comment, and notice of a public hearing to 
be held on November 27, 2020, will be published in the Albuquerque 
Journal, the Roswell Daily Record, the Gallup Independent, and posted 
to EPA Region VI's website at: https://www.epa.gov/uic/new-mexico-proposed-uic-program-revision-class-i-injection-wells. In addition, EPA 
will email a link to the document published in the Federal Register to 
a statewide list of interested stakeholders.

II. Introduction

    EPA approved the State of New Mexico's UIC program as meeting the 
requirements for primary enforcement responsibility (primacy) for Class 
I, III, IV, and V injection wells, under Section 1422 of the SDWA, on 
July 11, 1983. The State of New Mexico has revised their UIC Class I 
program regulations to remove the current ban on Class I hazardous 
waste wells and establish new permit conditions, oversight, and 
enforcement to safely manage Class I wells, except those in Indian 
country. EPA considers this to be a substantial program revision and 
therefore subject to the procedures specified in the Code of Federal 
Regulations (CFR) at 40 CFR 145.32(b)(2). EPA is proposing to approve 
New Mexico's revision to its Class I program. If approved, EPA would 
make conforming changes to 40 CFR 147.1601 to reflect New Mexico's 
revised Class I program.
    EPA will continue to oversee the State of New Mexico's 
administration of UIC Class I, III, IV, and V programs as authorized 
under the SDWA. Part of EPA's oversight responsibility includes the 
review of required state quarterly reports of non-compliance and annual 
UIC performance reports pursuant to 40 CFR 144.8.

III. Legal Authorities

    These proposed regulations are being promulgated under the 
authority of Sections 1422 and 1450 of the SDWA, 42 U.S.C. 300h-1 and 
300j-9.

A. Revision of State UIC Programs

    As required by Section 1421 of the SDWA, EPA promulgated minimum 
requirements at 40 CFR part 145 for effective state UIC programs to 
prevent underground injection activities that endanger underground 
sources of drinking water (USDWs). Under Section 1422 of the SDWA, once 
EPA approves a state UIC program, the state has primary enforcement 
responsibility for underground water sources. A state may revise its 
UIC program as provided under 40 CFR 145.32(a) and by following the 
procedures described under 40 CFR 145.32(b), which require the state to 
submit a modified program description, an Attorney General's statement, 
a Memorandum of Agreement, or other such documentation as EPA 
determines to be necessary under the circumstances (40 CFR 
145.32(b)(1)).

B. Program Revision Effective Date

    A program revision becomes effective upon approval of the 
Administrator (40 CFR 145.32(b)(4)). All revisions to the state UIC 
program would be federally enforceable as of the effective date of 
EPA's approval of the respective revision and 40 CFR part 147 
codification. Consistent with EPA Guidance 16,\1\ EPA considers state-
initiated program revisions to permit a formerly banned activity under 
the State of New Mexico Class I UIC program to be a substantial program 
revision. Under EPA regulations, this means there is an opportunity for 
public comment and to request a public hearing (40 CFR 145.32(b)(2)).
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    \1\ https://www.epa.gov/sites/production/files/2020-02/documents/attorneygeneralsstatement-31july1981.pdf.
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C. Indian Country

    EPA's approval of the State of New Mexico's program revision to 
remove the prohibition on hazardous waste injection disposal under the 
SDWA UIC Class I program does not extend to Indian lands. Pursuant to 
EPA's UIC regulations at 40 CFR 144.3, Indian lands ``means `Indian 
country' as defined in 18 U.S.C. 1151.'' EPA, or eligible Indian 
tribes, as appropriate, will retain responsibilities under the SDWA UIC 
program for Class I, III, IV, and V injection wells in Indian country 
in the State of New Mexico.

IV. State of New Mexico's Application

A. Notice of Completion

    On May 2, 2019, EPA determined that the Agency had received a 
complete UIC program revision application from the State of New Mexico, 
in which the state requested approval of its revised UIC regulations 
for Class I injection wells. The full application and supplemental 
materials are available electronically at https://www.regulations.gov 
in EPA's Docket No. EPA-HQ-OW-2020-0154; and a copy of the application 
can be accessed for inspection and copying at: The U.S. Environmental 
Protection Agency Region VI Office, 1201 Elm Street, Suite 500, Dallas, 
Texas 75270, by contacting Evelyn Rosborough, telephone number: (214) 
665-7515; fax: (214) 665-6490; email address: 
[email protected]. Public comments are requested, and a public 
hearing will be held if requests are received within 45 days of 
publication of this document (see the ``Public Participation'' heading 
in the SUPPLEMENTARY INFORMATION section of this document for further 
information on how to request a public hearing).
    The UIC program revision application package from the State of New 
Mexico includes revisions of: (1) The description of the state's UIC 
program (40 CFR 145.23); (2) all applicable state statutes, 
regulations, and forms (40 CFR 145.22(a)(5)); (3) the Attorney 
General's statement that the state has adequate legal authority to 
carry out the program described and to meet the requirements of 40 CFR 
part 145; and (4) the Memorandum of Agreement between the State of New 
Mexico and EPA's Region VI Administrator (40 CFR 145.25).

B. Public Participation Activities Conducted by the State of New Mexico

    On May 15, 2015, the New Mexico Water Quality Control Commission 
(WQCC or Commission) published a public notice of the Commission's 
intent to adopt amendments to the WQCC rules governing underground 
injection control to authorize the State of New Mexico to allow the 
approval of Class I hazardous waste injection wells, but only for 
petroleum refineries disposing the waste generated at the refinery. The 
public notice was published in 15 newspapers across the State of New 
Mexico. Written comments on the proposed rulemaking changes were 
accepted between May 15, 2015, and July 14, 2015. The public hearing 
was held on July 14, 2015, before both a WQCC hearing officer and the 
full Commission. Prior to the hearing, five technical witnesses from 
the Navajo Nation and one from New Mexico Oil Conservation Division 
pre-filed written testimony. At the hearing, in addition to the 
technical witnesses, several members of the public, including local 
elected officials, provided written or oral testimony in favor of the 
proposed rule changes. There was no testimony, written or oral, in 
opposition to the proposal.

V. Incorporation by Reference

    In this action, EPA is proposing to approve the revisions to the 
State of New Mexico's UIC program to permit Class I hazardous waste 
injection wells in the state, except those in Indian lands. New 
Mexico's statutes and supporting documentation are publicly available 
in EPA's Docket at EPA-HQ-

[[Page 64439]]

OW-2020-0154. This action proposes to amend 40 CFR part 147 and 
incorporate by reference EPA-approved state statutes and regulations. 
EPA will continue to administer the UIC program for all well classes 
within Indian lands.
    If EPA approves and finalizes this action by rule, the provisions 
of New Mexico's statutes and regulations that contain standards, 
requirements, and procedures applicable to owners or operators of UIC 
Class I hazardous waste wells will be incorporated by reference into 40 
CFR 147.1601 as described in the regulatory text. Provisions of the New 
Mexico's statutes and regulations that contain standards, requirements, 
and procedures applicable to owners or operators of Class I, III, IV, 
and V injection were incorporated by reference into 40 CFR 147.1601 
through prior EPA rules but are being reapproved for this new format. 
Any provisions incorporated by reference, as well as all permit 
conditions or permit denials issued pursuant to such provisions, will 
be enforceable by EPA pursuant to the SDWA section 1423 and 40 CFR 
147.1(e).
    In order to better serve the public, EPA is reformatting the 
codification of EPA-approved New Mexico SDWA section 1422 UIC program 
statutes and regulations for well Classes I, III, IV, and V. Instead of 
codifying the New Mexico statutes and regulations as separate 
paragraphs, EPA will be incorporating by reference a compilation that 
contains ``EPA Approved New Mexico SDWA Sec.  1422 Underground 
Injection Control Program Statutes and Regulations for Well Classes I, 
III, IV, and V,'' dated July 8, 2020. This compilation is incorporated 
by reference into 40 CFR 147.1601 and is available at https://www.regulations.gov in the docket for this rule. For information about 
the availability of this material at the EPA, see the FOR FURTHER 
INFORMATION CONTACT section of this document.
    A complete list of the New Mexico statutes and regulations 
contained in the compilation, titled ``EPA Approved New Mexico SDWA 
Sec.  1422 Underground Injection Control Program Statutes and 
Regulations for Well Classes I, III, IV, and V,'' dated July 8, 2020, 
will also be codified in Table 1 to paragraph (a) at 40 CFR 147.1601.

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and 
Budget (OMB) because it proposes to approve the State of New Mexico's 
UIC Program and state UIC programs are exempt from review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because actions such as state UIC Program revisions are exempted 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 record-keeping requirements will 
be based on the State of New Mexico UIC Regulations, and the State of 
New Mexico is not subject to the PRA.

D. Regulatory Flexibility Act (RFA)

    The agency certifies 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 proposed rulemaking 
would not impose any requirements on small entities as this rule (when 
finalized) would approve and codify the State of New Mexico's UIC 
program revisions. We have therefore concluded that this action will 
have no net regulatory burden for all directly regulated small 
entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
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 New Mexico's program revisions will not constitute a 
federal mandate because there is no requirement that a state 
establishes 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 & Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in Section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it proposes to approve existing the State of New Mexico's 
UIC program requirements.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    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 would 
approve the State of New

[[Page 64440]]

Mexico's revisions to its UIC Class I program.

List of Subjects in 40 CFR Part 147

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

Andrew Wheeler,
Administrator.

    For the reasons set out in the preamble, the Environmental 
Protection Agency is proposing to amend 40 CFR part 147 as follows:

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

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

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

0
2. Amend Sec.  147.1601 by:
0
a. Revising the introductory text and paragraphs (a) and (b);
0
b. Adding a paragraph heading to paragraph (c) and adding paragraph 
(c)(3); and
0
c. Revising paragraph (d).
    The revisions and additions read as follows:


Sec.  147.1601  State-administered program--Class I, III, IV, and V 
wells.

    The UIC Program for Class I, III, IV, and V wells in the State of 
New Mexico except for those located on Indian lands, as defined under 
40 CFR 144.3, is the program administered by the New Mexico Water 
Quality Control Commission, the New Mexico Environment Department 
(formerly the New Mexico Environmental Improvement Division), and the 
Oil Conservation Division of the New Mexico Energy, Minerals and 
Natural Resources Department and approved by EPA pursuant to section 
1422 of the Safe Drinking Water Act (SDWA). The effective date of this 
program is August 10, 1983. A subsequent program revision application 
for Class I hazardous waste wells was approved by EPA pursuant to 
section 1422 of the SDWA; the effective date of this program [will be 
contingent on publication of the final rule]. The State-administered 
UIC programs for Classes I, III, IV, and V consist of the following 
elements, as submitted to EPA in the State's program applications.
    (a) Incorporation by reference. The requirements set forth in the 
State statutes and regulations approved by EPA for inclusion in ``EPA-
Approved New Mexico SDWA Sec.  1422 Underground Injection Control 
Program Statutes and Regulations for Well Classes I, III, IV, and V,'' 
dated July 8, 2020, and listed in the Table 1 to this paragraph (a) of 
this section are hereby incorporated by reference and made a part of 
the applicable UIC program under the SDWA for the State of New Mexico. 
The Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
of the State of New Mexico's regulations that are incorporated by 
reference may be inspected at the U.S. Environmental Protection Agency, 
Water Docket, EPA Docket Center (EPA/DC), EPA WJC West, Room 3334, 1301 
Constitution Ave. NW, Washington, DC 20004, or the Region VI, Library, 
U.S. Environmental Protection Agency, 1201 Elm Street, Suite 500, 
Dallas, Texas 75270. If you wish to obtain materials from the EPA 
Headquarters Library, please call the Water Docket at (202) 566-2426 or 
from the EPA Regional Office, please call (214) 665-8326. You may also 
inspect the materials at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email [email protected] or go to https://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Table 1 to Paragraph (a)--EPA-Approved State of New Mexico SDWA Sec.   1422 Underground Injection Control
                       Program Statutes and Regulations for Well Classes I, III, IV, and V
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           State citation                   Title/subject          State effective date      EPA approval date
----------------------------------------------------------------------------------------------------------------
WQCC 82-1Sections 1-100 through 5-   New Mexico Water Quality     September 20, 1982....  July 11, 1983.
 300.                                 Control Commission
                                      Regulations.
New Mexico Administrative Code,      Ground and Surface Water     December 21, 2018.....  [Date of publication
 Title 20, Chapter 6, Part 2.         Protection.                                          and FR citation of
                                                                                           the final rule].
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    (b) Other laws. The following statutes and regulations, although 
not incorporated by reference, are also part of the approved State-
administered UIC program:
    (1) Water Quality Act, New Mexico Statutes Annotated Sections 74-6-
1 through 74-6-13 (1978 and Supp. 1982);
    (2) Geothermal Resources Conservation Act, New Mexico Statutes 
Annotated Sections 71-5-1 through 71-5-24 (1978 and Supp. 1982); and
    (3) Surface Mining Act, New Mexico Statutes Annotated Sections 69-
25A-1 through 69-25A-35 (1978 and Supp. 1980).
    (c) Memorandum of Agreement.
* * * * *
    (3) Amendment No. 1, Underground Injection Program Substitute 
Memorandum of Agreement Between the State of New Mexico and United 
States Environmental Protection Agency Region VI, signed by the EPA 
Regional Administrator on May 2, 2019.
    (d) Statement of legal authority.
    (1) ``Attorney General's Statement,'' signed by the Assistant 
Attorney General for the Environmental Improvement Division, the 
Assistant Attorney General for Oil Conservation Division, and the 
Deputy Attorney General, Civil Division, Counsel for the Mining and 
Minerals Division, undated, submitted December 8, 1982;
    (2) Attorney General's Statement for Program Revision of New Mexico 
UIC Program, signed by Bill Brancard, Special Assistant Attorney 
General, State of New Mexico Energy, Minerals and Natural Resources 
Department, submitted December 12, 2018.
* * * * *
[FR Doc. 2020-21487 Filed 10-9-20; 8:45 am]
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