Class V WellsRegulatory Determination and Minor Revisions to the Underground Injection Control Regulations; Technical Correction to the Regulations for Class I Wells
Federal RegisterAug 28, 1995
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[[Page 44652]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 144 and 146
[FRL-5280-5]
RIN 2040-AB83
Class V Wells--Regulatory Determination and Minor Revisions to
the Underground Injection Control Regulations; Technical Correction to
the Regulations for Class I Wells
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: Today's proposal presents the findings of the Environmental
Protection Agency (EPA) with regard to the need for additional
Underground Injection Control (UIC) regulations for Class V wells.
Typically, Class V wells are shallow wells which inject a variety of
fluids directly below the land surface. They include shallow non-
hazardous industrial waste injection wells, septic systems, storm water
drainage wells, and assorted other wells that have been found in some
instances to emplace potentially harmful levels of contaminants into
and above underground sources of drinking water. All Class V wells are
currently authorized by rule provided they do not endanger underground
sources of drinking water (USDWs) and meet certain minimum
requirements.
Because EPA has found that some of these wells pose environmental
hazards, EPA is developing a comprehensive strategy to manage these
hazards. As part of this strategy, EPA will continue to authorize Class
V wells by rule but will aggressively use the authority provided by the
current regulations to achieve the closure of Class V wells which may
endanger USDWs and the proper management of other Class V wells.
EPA is also proposing some minor changes to the UIC regulations
that would make it easier for the regulated community to understand who
is subject to the current Class V UIC requirements and what these
requirements mean to the owners of a specific type of well.
DATES: EPA will accept public comment, in writing, on the proposed
regulations until October 27, 1995.
A public hearing has been tentatively scheduled for October 18,
1995, from 1 pm to 4 pm EST. Requests for a public hearing must be
received by September 27, 1995. When requesting a public hearing,
please state the nature of the issues proposed to be raised. EPA
expressly reserves the right to cancel this hearing unless a
significant degree of public interest is evidenced by the above date.
ADDRESSES: Address written comments to UIC Amendments, Water Docket
(mail code 4101), USEPA, 401 M Street, SW, Washington, DC 20460. Please
submit all references cited in your comments. Facsimiles (faxes) cannot
be accepted. EPA would appreciate 1 original and 3 copies of your
comments (including any references). Commenters who would like EPA to
acknowledge receipt of their comments should include a self-addressed,
stamped envelope.
The hearing will be held in the EPA Auditorium of the EPA Training
Center, Waterside Mall, 401 M Street, SW, Washington DC.
The proposed rule and supporting documents, including public
comments, are available for review in the Water Docket at the above
address. For information on how to access Docket materials, please call
(202) 260-3027 between 9 a.m. and 3:30 p.m.
Requests for a public hearing should be addressed to Lee
Whitehurst, EPA, Office of Ground Water and Drinking Water (mail code
4602), 401 M Street, SW, Washington DC.
FOR FURTHER INFORMATION CONTACT: Lee Whitehurst, Underground Injection
Control Branch, Office of Ground Water and Drinking Water (mailcode
4602), EPA, 401 M Street, SW, Washington DC, 20460. Phone: 202-260-
5532.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Background
A. Statutory and Regulatory Framework
1. Categories of Class V Wells
2. Requirements Applicable to Class V Wells
B. Report to Congress on Class V Wells
C. Consent Decree with the Sierra Club
II. Proposed Agency Determination on the Adequacy of Current
Regulations
A. Implementation of Current Requirements
B. State Ground Water Protection Programs
C. Assessment of the Need for Additional Class V Regulations
1. Beneficial Use Wells
2. Fluid Return Wells
3. Sewage Treatment Effluent Wells
4. Cesspools
5. Septic Systems
6. Experimental Technology Wells
7. Drainage Wells
8. Mine Backfill Wells
9. In Situ and Solution Mining Wells
10. Industrial Waste Discharge Wells
III. EPA's Strategy for the Management of Class V Wells
A. Technical Assistance
1. Program Management Implementation Guidance
2. Technical Guidances
a. Industrial Waste Discharge Well Closure Guidance
b. Septic System Guidance
c. Agricultural Drainage Well Guidance
d. Storm Water Drainage Well Guidance
B. Outreach and Education
C. Compliance Assurance Initiative
IV. Proposed Minor Amendments to the UIC Regulations in 40 CFR Part
144
A. Proposed Amendments to Subpart A--General Provisions
1. Sec. 144.1(g)--Specific Inclusions and Exclusions
2. Sec. 144.3--Definitions
3. Sec. 144.6--Classification of Wells
B. Proposed Amendments to Subpart C--Authorization of
Underground Injection by Rule
1. Sec. 144.23--Class IV Wells
2. Sec. 144.24--Class V Wells
3. Sec. 144.26--Inventory requirements
V. Proposed Minor Amendments to UIC Regulations in 40 CFR Part 146
A. Proposed Amendments to Subpart A--General Provisions
1. Sec. 146.3--Definitions
2. Sec. 146.5--Classification of Injection Wells
3. Sec. 146.10--Plugging and Abandoning Class I, II, III, IV and
V Wells
VI. Solicitation of Comments
A. General Solicitation
B. Specific Comment Solicitations
VII. Regulatory Impact
A. Executive Order 12866
B. Paperwork Reduction Act
C. Impact on Small Businesses
D. Unfunded Mandates
E. Effect on States with Primacy
I. Background
A. Statutory and Regulatory Framework
Class V wells are regulated under the authority of Part C of the
Safe Drinking Water Act (SDWA or the Act) (42 U.S.C. 300h et seq.). The
SDWA is designed to protect the quality of drinking water in the United
States, and Part C specifically mandates the regulation of underground
injection of fluids through wells. The Agency has promulgated a series
of underground injection control (UIC) regulations under this
authority.
Section 1421 of the Act requires EPA to propose and promulgate
regulations specifying minimum requirements for State programs to
prevent underground injection that endangers drinking water sources.
EPA promulgated administrative and permitting regulations, now codified
in 40 CFR parts 144 and 146, on May 19, 1980 (45 FR 33290), and
technical requirements in 40 CFR part 146 on June 24, 1980 (45 FR
42472). The regulations were subsequently amended on August 27, 1981
(46 FR 43156), February 3, 1982 (47 FR 4992), January 21, 1983 (48 FR
2938), April 1, 1983 (48 FR 14146), July 26, 1988 (53 FR 28118),
December 3, 1993 (58 FR 63890) and June 29, 1995 (60 FR 33926).
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Section 1422 of the Act provides that States may apply to EPA for
primary responsibility to administer the UIC program (those States
receiving such authority are referred to as ``Primacy States''). Where
States do not seek this responsibility or fail to demonstrate that they
meet EPA's minimum requirements, EPA is required to prescribe, by
regulation, a UIC program for such States. These direct implementation
(DI) programs were promulgated in two phases, on May 11, 1984 (49 FR
20138) and November 15, 1984 (49 FR 45308).
1. Categories of Class V Wells
The UIC regulations define and establish five classes of injection
wells. Class I wells are used to inject hazardous and non-hazardous
waste beneath the lowermost formation containing a USDW within one-
quarter mile of the well bore. Class II wells are used to inject fluids
associated with oil and natural gas recovery and storage of liquid
hydrocarbons. Class III wells are used in connection with the solution
mining of minerals. Class IV wells are used to inject hazardous or
radioactive wastes into or above a formation that is within one-quarter
mile of a USDW. (Class IV wells are generally prohibited by 40 CFR
144.13.) Class V wells are defined in the regulations as any well not
included in Classes I through IV.
Class V injection wells are generally shallow waste disposal wells,
stormwater and agricultural drainage systems, or other devices that are
used to release fluids either directly into USDWs or into the shallow
subsurface that overlies USDWs. In some instances, the fluids released
by these wells contain elevated concentrations of contaminants that may
endanger drinking water supplies. EPA estimates that more than one
million Class V wells currently exist in the United States. These wells
are located in virtually every State, especially in unsewered areas
where the population is likely to depend on ground water. Frequently,
Class V wells are designed as no more than shallow holes or septic tank
and leachfield combinations intended for sanitary waste disposal. Such
systems are often used for the disposal of industrial wastes or other
fluids that may have not been treated, potentially releasing elevated
levels of contaminants directly into the same ground water that may be
used as a drinking water supply by surrounding residences and
communities. Such wells are commonly located at automobile service
stations, print shops, dry cleaners, shopping centers, equipment
manufacturers, and other commercial and industrial establishments.
Today, EPA is proposing to retain the current definition of Class V
wells. However, the regulations also contain a non-inclusive list of 16
types of Class V wells (Sec. 146.5). This list was further divided into
32 categories in the Report to Congress on Class V Wells, which EPA
published in 1987 in response to a mandate of the SDWA amendments of
1986. The Report to Congress drew the distinctions between the well
types based on the design of the well, in some instances, and on the
types of fluids injected, in others. In reviewing the Report to
Congress, the Agency has determined that some of these distinctions are
of little consequence as far as the risk posed by the wells and the
appropriate management scheme. Therefore, for today's proposal the
Agency has grouped Class V wells in ten more appropriate categories
which combine together wells that are mostly similar both in terms of
the nature of fluids that they inject and their potential to endanger
USDWs.
The 10 general categories of Class V wells are:
``Beneficial Use Wells'' which include a variety of well
types used either to improve the quality or flow of aquifers or to
provide some other benefit, such as preventing salt water intrusion or
controlling subsidence.
``Fluid Return Wells'' which are used to inject spent
fluids associated with the production of geothermal energy for space
heating or electric power, the operation of a heat pump, the extraction
of minerals, or aquaculture.
``Sewage Treatment Effluent Wells'' which are used to
inject effluent from publicly or privately owned treatment facilities.
``Cesspools'' which are wells that receive untreated
sanitary waste. They may have open bottoms, and are typically located
in areas not served by sanitary sewers. Under today's proposal, only
those cesspools having the capacity to serve 20 persons or more a day
would be considered Class V injection wells subject to the UIC
regulations 1.
\1\ Note: The current regulations exclude individual single
family and non-residential cesspools and septic systems having the
capacity to serve fewer than 20 persons per day. For reasons
explained in this preamble, the distinction between residential and
non-residential sanitary waste disposal systems is unnecessary and
could be eliminated by applying the 20 person cut-off to all
systems.
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``Septic Systems'' which are wells comprised of septic
tanks and fluid distribution systems (e.g., leachfields) used to
dispose of sanitary waste only. Only those septic systems having the
capacity to serve 20 or more persons per day would be considered Class
V injection wells subject to the UIC regulations \1\.
``Experimental Technology Wells'' which include any
injection well used as part of an unproven subsurface injection
technology.
``Drainage Wells'' which consist of a variety of wells
used to drain surface and subsurface fluids including storm water and
agricultural runoff.
``Mine Backfill Wells'' which are used to place slurries
of sand, gravel, cement, mill tailings/refuse, or fly ash into
underground mines. Mine backfill wells serve a variety of purposes
ranging from subsidence prevention to control of underground fires.
``In-situ and Solution Mining Wells'' which are used to
liberate fossil fuels from the geologic formation which contains them
or to bring minerals from underground deposits to the surface. They do
not include wells specifically listed as Class III wells under
Sec. 146.5.
``Industrial Waste Discharge Wells'' which are used to
inject wastewaters generated by industrial, commercial, and service
establishments.
Table 1 shows how these categories relate to the listing of wells
in Sec. 146.5(e) of the current regulations and the Class V well types
addressed in EPA's 1987 Report to Congress.
Table 1--Categories of Class V Injection Wells
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Category in today's Corresponding injection wells in
proposal Injection wells in category Current Sec. 146.5 report to congress
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Beneficial Use............ Aquifer Recharge.......................................... (e)(6).................. 5R21 (Aquifer Recharge).
Salt Water Intrusion Barrier.............................. (e)(7).................. 5B22 (Saline Water Intrusion Barrier).
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Subsidence Control........................................ (e)(10)................. 5S23 (Subsidence Control).
Aquifer Storage and Recovery.............................. Not Listed.............. 5X26 (Aquifer Remediation Related).
Subsurface Enfironmental Remediation...................... (e)(6)..................
Fluid Return.............. Wells used to inject spent brines after the extraction of (e)(14)................. 5A6 (Direct Heat Return).
minerals. 5A8 (Ground-water Aquaculture Return
Flow).
Wells used to inject heat pump return fluids.............. (e)(1).................. 5A5 (Electric Power Return).
5X16 (Spent-Brine Return Flow).
Wells used to inject fluids that have undergone chemical (e)(12)................. 5A7 (Heat Pump/Air Conditioning Return
alteration during the production of geothermal energy for Flow).
heating, aquaculture, or production of electric power.
Sewage Treatment Effluent. Wells used to inject effluent from POTWs, or privately Not Listed.............. 5W12 (Domestic Wastewater Treatment
owned treatment works receiving solely sanitary sewage. Plant Effluent Disposal).
Cesspools................. Cesspools having the capacity to serve 20 persons or more (e)(2).................. 5W9 (Untreated Sewage Waste
per day and used solely for the subsurface emplacement of (Disposal).
sanitary waste. 5W10 (Cesspools).
Septic Systems............ Septic tank and fluid distribution system having the (e)(9).................. 5W11 (Septic Systems--Undifferentiated
capacity to serve 20 persons or more per day and used Disposal).
solely for the subsurface emplacement of sanitary waste. 5W32 (Septic Systems-Drainfield
Disposal).
5W31 (Septic Systems--Well Disposal).
Experimental Technology... Wells used as part of unproven subsurface injection (e)(15)................. 5X25 (Experimental Technology).
technologies other than waste disposal.
Drainage.................. Wells used to drain surface and subsurface fluids, (e)(4).................. 5D2 (Stormwater Drainage).
including agricultural drainage and storm water runoff, 5F1 (Agricultural Drainage).
other than runoff from loading dock areas, storage areas, 5D3 (Improved Sinkholes).
and process areas. 5G30 (Special Drainage).
Mine Backfill............. Wells used to inject a mixture of water, air, and sand, (e)(8).................. 5X13 (Mining, Sand, or Other
mill tailings, or other solids into mined out portions of Backfill).
subsurface mines.
In Situ and Solution Wells used to inject fluids for the purpose of producing (e)(13)................. 5X14 (Solution Mining).
Mining. minerals or energy, which are not Class II or III wells. (e)(16)................. 5X15 (In situ Fossil Fuel Recovery).
Industrial Waste Discharge Wells used to inject wastewaters generated by industrial, (e)(5).................. 5X27 (Other).
commercial, and service establishments and which are not 5D4 (Industrial Drainage).
included in the proposed Sec. 146.5 e(1) through e(9). 5W20 (Industrial Process Water and
Waste Disposal).
5X28 (Automobile Service Station
Disposal).
5X17 (Air Scrubber Waste Disposal).
5X18 (Water Softener Regeneration
Brine Disposal).
5X19 (Abandoned Drinking Water Wells,
if used for the subsurface
emplacement of industrial or
commercial wastes not injected in
above categories of Class V wells).
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2. Requirements Applicable to Class V Wells
Class V wells are currently authorized by rule (Sec. 144.24 (a)).
Well authorization under this section expires upon the effective date
of a permit issued pursuant to Secs. 144.25, 144.31, 144.33 or 144.34,
or upon proper closure of the well. The current regulations subject
Class V wells to the general statutory and regulatory prohibitions
against endangerment of USDWs, as well as some specific requirements.
Under Sec. 144.12(a), owners or operators of all UIC wells, including
Class V injection wells, are prohibited from engaging in any injection
activity that allows the movement of fluid containing any contaminant
into USDWs, if the presence of that contaminant may cause a violation
of any primary drinking water regulation under 40 CFR part 142 or may
otherwise adversely affect human health. Sections 144.12(c) and (d)
prescribe mandatory and discretionary actions to be taken by the
Director if a well may not be in compliance with Sec. 144.12(a).
Specifically, the Director must choose between requiring the injector
to apply for an individual permit, ordering such action as closure of
the well to prevent endangerment, or taking an enforcement action. As
described in section II.A below, EPA and the States have effectively
used these authorities to control priority Class V wells.
Owners or operators of Class V injection wells must also submit
basic
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inventory and assessment information under Sec. 144.26. In addition,
Class V wells are subject to the general program requirements of
Sec. 144.25 under which the Director may require a permit, if
necessary, to protect USDWs. Moreover, under Sec. 144.27, EPA may
require owners or operators of any Class V well, in EPA administered
programs, to submit additional information deemed necessary to protect
USDWs. Owners or operators who fail to submit the information required
under Secs. 144.26 and 144.27 are prohibited from using their injection
wells.
B. Report To Congress on Class V Wells
In accordance with the 1986 Amendments to the SDWA (42 U.S.C. 300h-
5(b)), EPA summarized information on 32 categories of Class V wells in
a Report to Congress entitled Class V Injection Wells--Current
Inventory; Effects on Ground Water; and Technical Recommendations,
September 1987 (EPA Document Number 570/9-87-006). This report presents
a national overview of Class V injection practices and State
recommendations for Class V design, construction, installation, and
siting requirements. These State recommendations, however, did not give
EPA a clear mandate on how to handle Class V wells. For any given type
of well, the recommendations can vary broadly and are rarely made by
more than two or three States. For example, the recommendations for
septic systems range from further studies (3 States) to State-wide
ground water monitoring (1 State). For industrial waste water wells,
some States recommend immediate action and closure while others
recommend monitoring and ground water evaluation studies.
C. Consent Decree with the Sierra Club
On December 30, 1993, the Sierra Club filed a complaint against EPA
in the United States District Court for the District of Columbia
alleging that EPA failed to comply with section 1421 of the SDWA
regarding publication of proposed and final regulations for Class V
injection wells. In particular, the complaint alleges that EPA's
current regulations regarding Class V wells do not meet the SDWA's
statutory requirements to ``prevent underground injection which
endangers drinking water sources.'' (Complaint, para.15)
EPA entered into a consent decree with the Sierra Club which
provides that no later than August 15, 1995, the Administrator shall
sign a notice to be published in the Federal Register proposing
regulatory action that fully discharges the Administrator's rulemaking
obligations under section 1421 of the SDWA, 42 U.S.C. 300h, with
respect to Class V injection wells. Under the consent decree in this
notice, EPA must (1) propose additional regulations with respect to all
Class V injection wells, (2) propose a decision that no further
rulemaking for these wells is necessary, or (3) propose additional
regulations for some Class V injection wells and a decision that no
further rulemaking is necessary for the remaining wells (Consent
Decree, para.2). The consent decree further provides that, no later
than November 15, 1996, the Administrator shall sign a final rulemaking
notice to be published in the Federal Register fully discharging the
Administrator's rulemaking obligations under section 1421 with respect
to Class V injection wells (Consent Decree, para.3). This proposal is
intended to fulfill EPA's initial obligation under the consent decree.
II. Proposed Agency Determination on the Adequacy of Current
Regulations
When EPA promulgated the UIC regulations in 1980, little was known
about the Class V injection well universe, and EPA anticipated that
requirements similar to the very specific requirements applicable to
Class I, II, and III would eventually be promulgated. Therefore, in
Sec. 144.24 the Agency authorized Class V injection wells by rule
``until further requirements under future regulations become
applicable.''
Several factors had to be considered in deciding whether such
``further requirements'' are in fact necessary. Important among these
factors is the way in which EPA and the States have been able to use
current authorities to control Class V wells and the concurrent
development of State ground water protection programs.
A. Implementation of Current Requirements
Since the mid 1980's, EPA and State UIC programs have been actively
implementing existing requirements for Class V wells, including the
endangerment prohibition in Sec. 144.12, in order to protect USDWs. For
example, State UIC programs and EPA directly implemented programs have
used current authorities to require owners or operators of Class V
wells deemed to have the potential to endanger USDWs to obtain permits
so that the wells could be subject to additional requirements. During
fiscal years 1991 through 1994, EPA and States issued more than 4,000
permits for existing and new Class V wells.
Additionally, both States and EPA have been actively identifying
Class V injection well violations and undertaking enforcement actions
to ensure compliance with the endangerment prohibition. For example,
during fiscal years 1991 through 1994, EPA and the States conducted
more than 20,000 inspections of Class V wells. These inspections led to
the discovery of more than 8,000 Class V injection well violations. EPA
and States responded to these violations with more than 4,500
enforcement actions against owners and operators of endangering Class V
injection wells. In some of these enforcement actions, EPA has taken
the position that industrial waste disposal wells used to inject fluids
exceeding the MCL were in violation of Sec. 144.12. In one such action,
EPA issued a general Administrative Order on Consent to 10 major
petroleum marketing companies. As a result of the order, penalties
totaling more than $830,000 were collected and over 1,300 endangering
Class V wells were closed.
States and EPA have also required other endangering Class V wells
to close in order to protect USDWs. For example, during fiscal years
1991 through 1994, EPA and States reported that more than 2,500
endangering Class V wells were closed.
B. State Ground Water Protection Programs
In addition to their efforts in implementing the UIC program,
States have been actively developing more comprehensive ground water
protection programs. These State ground water protection efforts are
placing greater emphasis on prevention of contamination and not just
remediating or controlling specific sources of contamination. Such
efforts help to control the threats associated with several categories
of Class V wells.
Two notable examples of general ground water protection programs
being implemented by the States include Comprehensive State Ground
Water Protection Programs (CSGWPPs) and the Wellhead Protection Program
(WHPP). Under a new EPA-State initiative, many States are developing
CSGWPPs which provide States the flexibility to set priorities and
focus resources on protecting USDWs from potential sources of
contamination, including Class V wells. Eleven States and two tribes
are currently very active in developing CSGWPP programs, while most
States have taken the initial steps toward their development.
Under SDWA section 1428, each State must prepare and submit a WHPP
to protect ground water that supplies wells
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and well fields that support public drinking water systems. The
programs are implemented primarily at the State level, with
municipalities implementing programs that reflect State requirements or
incentives. Under a WHPP, a State or locality delineates the wellhead
protection area; identifies sources of contamination in the wellhead
protection area; and develops management approaches. WHPP are a means
to identify Class V wells within wellhead protection areas and can
serve as a mechanism to institute pollution prevention measures, best
management practices, or well closures. The Program also can be used to
set priorities among permits and enforcement actions, and provide
guidance and outreach materials to owners or operators of potential
contamination sources. As of late 1992, approximately 20 States and
territories had received EPA approval of their WHPP. By mid-1995,
approximately three-quarters of the States and territories--40 in all--
had approved Programs.
The State of Massachusetts is an example of how current UIC
authorities in the context of their ground water protection efforts can
be used to address Class V wells. The Division of Water Supply within
the Massachusetts Department of Environmental Protection (MDEP) has
operated the UIC program in the State since 1989 with a limited UIC
staff. In order to address the risks of Class V injection wells,
Massachusetts has undertaken both outreach efforts to industry and
coordination with municipal officials regarding key elements of its
ground water protection strategy. These efforts have been further
supported with an inspection and enforcement program targeting high
priority violators.
For example, in 1991, MDEP worked with building code officials and
law makers to revise the State's Plumbing Code. The code now prohibits
auto service stations, vehicle maintenance facilities and other
facilities which generate liquid hazardous waste from maintaining floor
drains which discharge to the ground. These regulated facilities must
now either connect their floor drain to a holding tank or a municipal
sewer, or seal their floor drain--a major step in the protection of
ground water drinking supplies.
In addition, MDEP is using its wellhead protection regulations to
impose certain zoning and non-zoning land use controls to protect new
municipal water wells. In particular, the regulations state that a town
seeking approval to construct a new well must prohibit the connection
of floor drains to subsurface disposal systems in industrial and
commercial process areas or hazardous material/waste storage areas
within well head protection areas.
Other States have shown a great deal in interest in the development
of EPA's proposed Class V management strategy and have expressed a
commitment to work with EPA in achieving appropriate control of Class V
wells using State solutions. This commitment will be finalized in EPA/
State management agreements and through Regional/State enforcement
agreements.
C. Assessment of the Need for Additional Class V Regulations
In light of the considerations described above, the Agency has
analyzed the need for additional federal regulations for each well
category described in section I.A.1 of this preamble.
The Agency used two criteria in evaluating the different categories
of Class V wells to determine whether any category warranted additional
regulation: The potential to endanger USDWs and the anticipated
effectiveness of additional federal regulation under the UIC program in
preventing endangerment to USDWs.
For wells with a low or no potential to contaminate USDWs based on
the quality of injected fluids, the Agency considers that existing
regulations provide sufficient authorities to handle the few cases
where mismanagement of one of these wells could create an endangerment
situation.
To assess the need for additional regulation under the UIC program
for the other wells, EPA was guided by the following principles.
(1) Additional Federal UIC regulations are not necessary where
adequate State or local regulations are already in place.
(2) Additional Federal UIC regulations are not necessary where the
Class V wells are not the principal source of endangerment from a
widespread environmental problem.
(3) Additional Federal UIC regulations are not necessary where
endangerments are localized problems, e.g., wells which are found only
in one or two counties in one or two States. For these wells EPA will
work with the States if necessary to bring about better controls.
(4) Additional Federal UIC regulations are not necessary where
other federal programs address the endangerment caused by certain Class
V wells.
Applying these principles, the Agency decided to address the risk
posed by the 10 Class V well categories listed in the proposed
regulation as follows:
1. Beneficial Use Wells
``Beneficial use'' wells include a variety of well types used
either to improve the quality or flow of aquifers or to provide some
other benefit, such as salt water intrusion prevention or subsidence
control. The Agency recognizes that, as a group, beneficial use wells
are diverse and have a varying potential to endanger USDWs. The 1987
Report to Congress concluded that the USDW contamination potential of
these wells ranges from low to high, depending on the particular type
of well.
Salt water intrusion barrier wells have a low potential to
contaminate USDWs because they generally inject fluids of equivalent or
better quality than the fluids that naturally exist in the injection
zone. Based on typical injectate characteristics and the possibilities
for dilution, injection from these wells does not occur in sufficient
volumes to increase contaminant concentrations in ground water (Report
to Congress, p. 4-334).
Subsidence control wells, used to control the sudden sinking of the
earth's surface resulting from excessive ground water withdrawal, also
have a low potential to endanger USDWs. These wells typically inject
fluids of high quality, and typical well construction, operation, and
maintenance would not allow fluid injection or migration into
unintended zones (Report to Congress, p. 4-342).
The USDW contamination potential of most aquifer recharge wells
also is low, because injection fluids are usually of equal or better
quality than receiving fluids and because typical well construction,
operation, and maintenance would not allow contamination of unintended
zones (Report to Congress, p. 4-324). However, some aquifer recharge
wells may pose a moderate to high threat of USDW contamination, because
the quality of the fluid injected may be poor in some cases and because
some aquifer recharge wells inventoried by EPA do not appear to be
properly designed, constructed, and operated. For example, in Texas,
many recharge wells are operated by farmers as dual purpose irrigation
supply/injection wells to drain the land and recharge underlying
aquifers; water injected into these wells may contain nitrates,
phosphorus, pesticides, herbicides, pathogens, metals, and total
dissolved solids. The Agency believes that, in general, recharge wells
have impacts similar to those of agricultural drainage wells and the
reasons for not proposing additional regulations for these types of
wells are
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similar to those described under ``Drainage Wells'' below. In Florida,
``connector'' wells, specifically designed to allow communication
between the surficial perched aquifer and the deeper supply aquifer,
often emplace fluids that greatly exceed primary drinking water
standards for gross alpha radiation (in 10-20 percent of these wells).
However, this is an example of a practice which is so localized that
EPA believes that a more effective approach than Federal regulations is
to work with and support Florida's efforts to address these wells, and
to take appropriate Federal enforcement actions where necessary.
Another type of beneficial use well that could have a high
potential to contaminate USDWs if not properly controlled is subsurface
environmental remediation wells. These wells are designed to improve an
aquifer's quality by extracting and treating contaminated ground water
and then injecting the treated effluent. While the treated injectate
should be of higher quality than the receiving aquifer, the injection
must be controlled closely to make sure that high concentrations of
contaminants are not released and that it does not exacerbate the
ground water contamination that is being cleaned up. These remediation
wells operate as part of facility specific clean-up plans, which are
approved and overseen by federal and State officials. EPA believes,
therefore, that additional federal regulations under the UIC program
are not needed to control potential problems associated with these
wells because such regulations would simply duplicate existing
controls. EPA believes that remediation actions are already adequately
controlled as part of RCRA, CERCLA, or State remediation programs.
2. Fluid Return Wells
``Fluid return'' wells are used to inject spent fluids associated
with the production of geothermal energy for space heating or electric
power, the operation of a heat pump, the extraction of minerals, or
aquaculture. The 1987 Report to Congress on Class V wells ranked the
contamination potential of fluid return wells as moderate to low.
Both direct heat return wells and electric power wells were
assessed by the Report to Congress as having a moderate contamination
potential (Report to Congress, p. 4-106). Reasons given for this
ranking include the fact that injected geothermal fluids typically have
at least one constituent exceeding water quality standards (e.g.,
arsenic, chromium, and mercury), and injection occurs in great enough
volumes to potentially affect ground water quality. The excessive
temperatures of the injected fluids also may pose a concern. However,
these wells are believed to pose an overall moderate contamination
potential because typical well construction, operation, and maintenance
is not expected to allow fluid injection into unintended ground water
zones. The wells are typically constructed so that the injection zone
is a geothermal reservoir, below all USDWs.
The vast majority of the geothermal fluid return wells are located
in California and Nevada. Both States already require permits for the
drilling and operation of these wells. In California, the Division of
Oil and Gas and Geothermal Energy Resources oversees this permitting,
and among other conditions, requires monthly reports on injection
volumes and rates. In Nevada, geothermal wells are regulated by the
Division of Environmental Protection, and existing permit requirements
cover construction, operation, and closure of these wells.
Overall, the Agency believes that the State permit programs
currently in place are sufficiently stringent to protect USDWs from
contamination from geothermal fluid return wells, and are sufficient to
prevent exceedences of the National Primary Drinking Water Standards.
Furthermore, EPA believes that because many of these well types are
concentrated in just a few western States, creating a rigorous national
regulatory system would provide little additional benefits. If any
wells pose specific problems that are not being adequately addressed by
the States, EPA can use the prohibition of fluid movement standard in
40 CFR 144.12 or can require them to be permitted under 40 CFR 144.25
to prevent the endangerment of USDWs.
According to the Report to Congress, heat pump/air conditioning
return flow wells pose a low potential to contaminate USDWs, even
though they typically inject into or above USDWs (Report to Congress,
p. 4-117). Because these wells generally dispose of return supply
water, which has only been thermally altered, injectates are usually
the same quality as fluids within any USDW in connection with the
injection zone. Because of the lack of associated serious threats and
the fact that 16 States already have established permit programs for
these wells, EPA believes additional federal standards are unnecessary
at this time. If EPA finds a particular well is endangering USDWs,
existing authorities under 40 CFR 144.12 or 144.25 will be used to
remedy the problem.
The Report to Congress concluded that wells used to inject spent
brine after the extraction of minerals (halogens or salts) have a low
potential to contaminate USDWs (Report to Congress, p. 4-236) and are
found in only seven States. Typically, these wells are adequately
constructed with multiple layers of protection which isolate the
injected fluids from overlying USDWs and inject into deep confined
formations. Therefore, even though the concentrations of some
contaminants in the injectate may exceed drinking water standards,
there is little potential for the contaminants to migrate into USDWs.
Based on these factors, EPA believes that additional federal UIC
regulations for these wells are unnecessary because these wells are
most appropriately managed through existing State and local authorities
who are best equipped to tailor individualized design and operational
requirements to the hydrogeologic conditions found in each of these
seven States in order to protect USDWs.
Aquaculture return flow wells, which are used for disposal of
liquid and semi-solid wastes associated with aquaculture, have a
moderate potential to contaminate USDWs according to the Report to
Congress (Report to Congress, p. 4-136). All injection from these wells
occurs adjacent to the ocean. Operational monitoring of these wells is
minimal. However, it is known that the injectate typically contains
nitrates, nitrites, ammonia, BOD, and orthophosphate, often in
concentrations exceeding drinking water standards. Injectate volumes
are also extremely large (exceeding 10,000 acre-feet). Therefore,
aquaculture return flow wells have the potential to influence ground
water quality in the vicinity of the point of injection. The potential
for serious degradation of ground water quality is mitigated, however,
because the basal ground water flow in coastal Hawaii is usually
seaward and the flow of contaminants will likely be away from fresher
water inland (i.e., suitable drinking water). In addition, all
aquaculture return flow wells are presently regulated under a permit
program administered by the Hawaii Department of Health that is
adequate to prevent the endangerment of USDWs. For these reasons, EPA
believes that additional federal UIC regulation for this type of Class
V well is unnecessary at this time.
3. Sewage Treatment Effluent Wells
Data in the Report to Congress suggest that sewage treatment
effluent wells have a moderate potential (ranging from high to low) to
contaminate USDWs
[[Page 44658]]
(Report to Congress, p. 4-185). Some sewage treatment effluent wells
are used to inject clarified effluent that has undergone secondary or
tertiary treatment. For example, a few shallow wells in Florida and
Hawaii inject effluent that has undergone tertiary treatment, and there
are 10 wells at a U.S. Forest Service ski lodge on Mount Hood, Oregon,
that inject effluent that has undergone secondary treatment. The Agency
believes the risk of these injection practices is low because the
injectate is of high quality.
In some States, sewage treatment effluent that has undergone only
primary treatment creates a higher potential to contaminate USDWs.
Because the majority of these sewage treatment effluent wells of
concern are being addressed at the State level (Florida and Hawaii have
80 percent of them), EPA does not believe that additional federal UIC
regulations are warranted at this time. Any problems with these wells
in Florida and Hawaii do not stem from inadequate regulations, but
rather can be overcome through effective enforcement and more active
implementation of existing regulations and authorities as is presently
ongoing in Hawaii.
As a result, the Agency proposes to control any wells not being
adequately addressed by specific State programs through the application
of the no fluid movement standard in 40 CFR 144.12 and, if necessary,
calling individual wells in for a permit under 40 CFR 144.25.
4. Cesspools
Cesspools are Class V wells which receive untreated sanitary waste
and allow the waste to percolate directly into the subsurface. EPA
believes cesspools have a high potential to contaminate USDWs.
According to the Report to Congress, sanitary waste released in
cesspools frequently exceeds the MCLs for nitrates, total suspended
solids, and coliform bacteria (Report to Congress, p. 4-151). Other
constituents of concern can include phosphates, chlorides, grease,
viruses, and chemicals used to clean cesspools such as trichloroethane
and methylene chloride. Numerous States, including Arizona, California,
Hawaii, Illinois, Indiana, New York, Ohio, and Oregon, have reported
degradation of USDWs from such cesspools. As opposed to properly
managed septic systems, cesspools provide no treatment except for some
settling of the solids.
Based on these concerns, new cesspools are currently banned in all
States, with the exception of Hawaii, and therefore there is no need
for a federal ban. Where State bans presently exist, States are phasing
out existing cesspools over a time period negotiated by State and local
governments and acceptable to EPA. However, since cesspools are very
likely to be in violation of the non-endangerment requirements of
Sec. 144.12, EPA will continue to use its enforcement authorities to
supplement State bans in direct implementation States.
5. Septic Systems
Under the UIC program, EPA regulates septic systems which have the
'capacity to serve 20 people or more but does not regulate smaller,
single family systems. EPA believes that when properly spaced, sited,
designed, constructed, and maintained all septic systems, regardless of
their capacity, should not endanger USDW. However, the Report to
Congress deemed septic systems as ``high risk''. There are two
important reasons why the Report to Congress seems to disagree with the
Agency's view on the risks posed by septic systems. First, the Report
to Congress considered not only septic systems which receive solely
sanitary waste, but also systems which receive industrial and
commercial wastes in addition to, or instead of, sanitary waste. EPA
does not consider septic systems which receive industrial or commercial
waste to be properly classified as ``septic systems''. Rather, EPA
proposes to classify these high risk wells as ``industrial waste
discharge wells'' and will manage such wells as discussed in the
appropriate section below.
Second, the conclusions in the Report to Congress regarding the
risks posed by septic systems were based, in part, on single-family
septic systems because local records frequently were not sufficiently
detailed to distinguish single-family systems from larger units. EPA is
aware that improperly spaced and sited single-family septic systems can
endanger USDWs, however, such systems are not included under the
purview of the UIC program.2 Once these single-family systems, and
misused systems used for the disposal of industrial or commercial waste
(which are defined as ``industrial waste discharge wells'' under
today's proposal), are excluded from the definition of ``septic
system(s)'', EPA does not believe that the remaining systems pose a
significant national problem.
\2\ See 40 CFR 144.2(g)(2)(ii) and House of Representatives
Report No. 93-1185.
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Therefore, EPA does not believe that additional federal UIC
regulations are necessary to control the threat posed by septic
systems. All 50 States allow septic systems and recognize septic
systems as a critical element of sanitary waste disposal. Most States
already have standards governing the siting, spacing, construction and
operation of septic systems. These standards have generally been
tailored to reflect local hydrogeologic conditions. In addition, as
discussed in the Report to Congress, the major cause of ground water
contamination from septic systems is improper spacing; that is, the
construction of too many systems too close together. This problem often
occurs in areas of rapid growth and development, where public sewers do
not exist. In these instances, EPA believes that land-use planning
measures, which are available principally at the local level, are the
only efficient approach to protecting the environment.
The Agency did consider the option of proposing specific conditions
of authorization by rule for large capacity septic systems. However, to
effectively protect USDWs from the risks posed by septic systems,
proper siting and design standards must be tailored to local
hydrogeologic conditions. EPA believes that the States and local
authorities are in the best position to tailor these standards.
Therefore, in order to avoid interfering with existing State and local
programs, conditions of rule authorization for septic systems at the
national level would have to be so general that they may not result in
any added protection to USDWs while creating an additional
administrative burden on States. For these reasons, EPA is not
proposing additional regulations for septic systems and will instead
rely on its Class V Management Strategy to minimize the threat posed by
these wells.
6. Experimental Technology Wells
The Report to Congress ranked the USDW contamination potential of
experimental technology wells as moderate to low (Report to Congress,
p. 4-355). The Report identified 225 experimental technology wells in
17 States, over half of which were inactive underground coal
gasification, in-situ oil shale retorting, and improperly classified
in-situ uranium solution mining wells in Wyoming. At present, EPA is
unaware of any operating experimental technology wells and cannot
realistically determine what construction and operational processes
might be involved in future subsurface experiments.
Therefore, EPA has decided not to propose additional stringent
[[Page 44659]]
requirements for Class V experimental technology wells. EPA believes
that continuing to rule authorize experimental technology wells will
provide adequate protection of USDWs. Under the current 40 CFR
144.26(e)(3), the owner or operator of any new experimental technology
well, in States with EPA administered programs, must submit detailed
inventory information prior to starting injection. This submittal would
alert the EPA UIC program about the proposed injection activities and
give the Director the opportunity to request additional information
under 40 CFR 144.27 and/or require a permit under 40 CFR 144.25 if
necessary to protect USDWs.
7. Drainage Wells
Drainage wells consist of a variety of wells used to drain surface
and subsurface fluids. According to the 1987 Report to Congress, these
wells range from low to high in contamination potential, depending on
the particular type of drainage and well.
The most common types of drainage wells include agricultural
drainage wells that receive irrigation tailwaters or stormwater;
certain stormwater runoff wells that do not receive uncontrolled,
contaminated runoff (i.e., chemical spills or stormwater runoff that
has not been adequately segregated from chemical spills); ``special''
drainage wells; and improved sinkholes.
Data collected for the Report to Congress indicate that
agricultural drainage wells have a high potential to contaminate USDWs
because they may inject high concentrations of several contaminants,
including sediment, nutrients, ions (including chloride and sulfate),
pesticides and other organic compounds, metals (including arsenic,
chromium, lead, copper, selenium, and mercury), and pathogens (Report
to Congress, p. 4-27).
Although the Agency acknowledges these potential problems
associated with agricultural drainage wells, EPA does not believe that
additional Federal UIC regulations are necessary or appropriate for
these wells. As with septic systems, EPA believes that additional
Federal UIC regulations for agricultural drainage wells would be
unlikely to prove effective in providing additional protection for
USDWs. Agricultural drainage wells are a very small part of the overall
impact of farming on ground water. Most ground water contamination
problems attributed to these wells are more often the result of common
agricultural practices such as fertilizer and pesticide application and
land use practices, which are outside the scope of the UIC program.
Therefore, the Agency believes that these wells are most appropriately
managed at the State and local level where the overall risks associated
with general agriculture practices can be addressed in a holistic
fashion.
Therefore, under today's proposal, the Agency would continue to
rule authorize agricultural drainage wells, while seeking to resolve
the issues associated with nitrate and pesticide contamination in a
broader manner. While agricultural drainage wells are numerous, they
appear to be concentrated in Florida, Idaho, and Iowa. Problems in
these localized areas can be addressed by specific State and local
programs, such as the CSGWPPs and the Pesticide State Management Plans.
EPA also has convened a panel of experts to evaluate and develop BMP
guidelines to help ensure that agricultural drainage wells do not
endanger USDWs.3 As envisioned by EPA and other members of this
panel (including the U.S. Department of Agriculture, State agencies,
and universities), EPA can best achieve the goal of protecting USDWs
from contamination associated with agricultural drainage wells by
informing State agencies as to the available BMPs and then allowing
regional governmental or regulatory entities to select the techniques
best suited to local conditions. In the meantime, EPA would work with
existing State and local programs to provide compliance assistance to
the owners and operators of these wells. If necessary to protect USDWs,
EPA could supplement these efforts by enforcing 40 CFR 144.12 and
requiring owners or operators of individual wells to submit information
and, if necessary, obtain permits under 40 CFR 144.25.
\3\ See ``Expert Panel on Water Quality Impacts of Agricultural
Drainage Practices, September 24-25, 1991 Meeting Summary,''
Underground Injection Control Branch, U.S. Environmental Protection
Agency, September 28, 1992.
---------------------------------------------------------------------------
EPA believes that not proposing additional federal UIC regulations
for agricultural drainage wells is further supported by the ongoing
development and implementation of other programs designed to address
agricultural contamination problems. For example, agriculture-related
activities to reduce pollution receive the bulk of EPA's grant funding
in the Nonpoint Source program. State funded activities to reduce
agricultural contamination (e.g., nitrates) of water resources include
support for technical assistance, educational programs, enforcement
mechanisms, and assistance for BMP demonstration projects. Similarly,
region-specific programs, such as the Chesapeake Bay Program, may
reduce the need for UIC regulation of agricultural drainage wells. In
1992 alone, the Chesapeake Bay Program spent 54.2 million dollars on
the installation of agricultural BMPs to reduce agricultural runoff
contaminating the Bay. This funding has provided for planning,
designing, and installing nutrient and erosion controls, as well as
integrated pest management projects intended to reduce the quantities
of pesticides applied to crop lands. These efforts help reduce the
amount of fertilizers, manure, and pesticides potentially migrating
through agricultural drainage wells into USDWs (Managing Nonpoint
Source Pollution, USEPA Office of Water, EPA-506/9-90, January 1992).
Section VII of this preamble provides further discussion of the
relationship between today's proposal and other EPA programs.
Stormwater drainage wells were ranked by the Report to Congress as
having a moderate potential to contaminate USDWs (Report to Congress,
p. 4-41). This assessment considered the fact that urban storm water
runoff can acquire contaminant loads from streets, roofs, landscaped
areas, industrial areas and construction sites consisting of
herbicides, pesticides, fertilizers, deicing salts, gasoline, grease,
oil, tar and paving residues, rubber particulates, and many other
constituents. In the Nationwide Urban Runoff Program (NURP), heavy
metals were found to be the most prevalent priority pollutants in urban
runoff. Most constituents released into stormwater drainage wells,
however, usually are not present in concentrations that exceed drinking
water standards, according to the Report to Congress. Moreover,
contamination studies to date have not shown that area-wide degradation
of ground water quality has resulted from these drainage wells.
EPA believes that the most significant threats posed by storm water
drainage wells occur when the wells are located near loading docks,
storage, and process areas where chemical spills may occur. EPA
maintains that if storm water drainage wells are separated from these
areas by a physical barrier (e.g., berm, dike, ditch, etc.), then these
wells do not appear to pose a high potential to contaminate USDWs and
do not warrant additional UIC regulation. If however, no physical
barriers are in place that can adequately contain a spill, EPA proposes
to classify such wells as Class V industrial waste discharge wells, and
subject them to the same management approach as other industrial wells
discussed below.
[[Page 44660]]
A variety of flow diversion structures and/or spill containment
measures can be used to adequately segregate process areas, loading
docks, and storage tank areas from stormwater drainage wells. Flow
diversion structures divert stormwater flow away from or around
drainage wells and/or potential spill areas. These can include gutters,
sewers, channels, diversion dikes, or other structures. Effective
diversion structures are typically constructed with a positive grade,
although the grades are not so steep as to cause erosion from water
movement. The conveyance is sized to handle the amount of water it will
receive and is routinely inspected and cleared of debris.
Spill containment structures include dikes, curbs, catch basins,
and other structures capable of containing spills, leaks, or other
releases. Effective containment structures are sized to handle both
rainfall and possible releases and spills, and are regularly inspected
and maintained to insure the integrity of the system. Further
information about these and other systems that are believed to provide
adequate segregation from process areas, loading docks, and storage
tank areas, for the purpose of qualifying as a stormwater drainage well
under today's proposal, may be obtained in Storm Water Management for
Industrial Activities; Developing Pollution Prevention Plans and Best
Management Practices (EPA 832-R-92-006; September 1992).
Special drainage wells, which include swimming pool water drainage
wells and landslide control drainage wells, were characterized as
having a moderate to low contamination potential in the Report to
Congress (Report to Congress, p. 4-68). All except one of the 1,385
swimming pool drainage wells inventoried by EPA for the Report are
located in Florida, although the Agency is aware that such wells also
exist in other States. Swimming pool drainage fluid may include calcium
hypochlorite, chlorine, bromine, iodine, fungicides, and other
contaminants. Some of the free chlorine in the fluid may degrade into
trichloromethane. Although the drainage fluid sometimes has
concentrations of constituents in excess of the MCLs, the injectate may
be of equal or better quality than the fluids within any USDW in
connection with the injection zone. Moreover, according to the Report
to Congress, injection from these wells is unlikely to migrate into
unintended zones (considering typical well construction, operation, and
maintenance) or degrade the quality of receiving aquifers. Accordingly,
EPA believes that enforcement of 40 CFR 144.12, requirements to submit
information, and requirements to obtain a permit in certain situations
when found to be necessary, under 40 CFR 144.25, would be a more
appropriate regulatory approach than stringent permit requirements
under the federal UIC program. Moreover, the Florida Department of
Environmental Regulation already requires permits for the construction,
plugging, and abandonment of swimming pool drainage wells and
implements substantive requirements to protect USDWs.
All of the landslide control drainage wells inventoried by the
Agency for the Report to Congress are located in Montana. These wells
inject ground water from the shallow subsurface to deeper zones and are
likely to have a low contamination potential due to their use of water
from relatively uncontaminated shallow aquifers (Report to Congress, p.
4-68). The primary threat from these wells would arise from accidental
releases of chemicals at the surface that could immediately transfer a
large amount of contaminants to an aquifer. However, because these
wells are already permitted by the State of Montana, and the
probability of a chemical spill in the immediate vicinity of landslide
control well appears small, EPA believes that additional federal
regulation is not warranted.
A final type of drainage well includes improved sinkholes, or
natural surface depressions that have been altered in order to direct
fluids into the hole opening. These wells are constructed in karst
topographic areas and are used to dispose of stormwater runoff in low
areas along highways. Based on the analysis in the Report to Congress,
improved sinkholes pose a high to moderate potential to contaminate
USDWs (Report to Congress, p. 4-53). Major factors that contributed to
this ranking included: (1) These wells typically inject into or above
USDWs, (2) injectates often have constituent concentrations exceeding
drinking water standards, and (3) runoff fluids, which may include
lead, petroleum products, pesticides, fertilizers, wastes from wild and
domestic animals and birds, are injected through and into channeled and
fractured limestone or dolomite, limiting filtration or other
attenuative processes.
To address these risks, EPA will classify improved sinkholes on the
basis of how they are used as opposed to how they are designed. For
example, when used to inject raw sewage these wells would be cesspools,
and thus should be banned by current State regulation. EPA will be
working with State UIC authorities to make sure that such uses of Class
V wells are, in fact, prohibited. Similarly, use of these wells to
inject industrial waste or stormwater runoff from process areas,
loading docks, or storage areas would cause them to be classified as
industrial wells. Therefore, today's proposal would in effect limit the
classification of improved sinkholes as drainage wells to those used
for stormwater emplacement (other than from process areas, loading
docks, or storage areas), and the potential for these wells to
contaminate USDWs would be similar to that of other stormwater drainage
wells. On this basis, the Agency is proposing to continue to rule
authorize these wells and continue to utilize existing regulatory
authority (e.g., 40 CFR 144.12, 144.25, etc.) to protect USDWs.
8. Mine Backfill Wells
Mine backfill wells are used to place hydraulic (water) or
pneumatic (air) slurries of sand, gravel, cement, mill tailings/refuse,
or fly ash into underground mines. Mine backfill wells serve a variety
of purposes ranging from subsidence prevention to control of
underground fires. Data collected for the Report to Congress indicate
that, in general, mine backfill wells have a moderate potential to
contaminate USDWs (Report to Congress, p. 4-199). This assessment
considered the fact that injectates consist of slurries that have the
potential to react with acid mine water to mobilize potential ground
water contaminants. Mill tailings and fly ash in the slurries also may
cause detrimental interactions. Although the injectate may contain some
contaminants, aquifers interconnected with these wells are generally of
moderate to poor quality already, and the introduction of the injectate
may not be considered degradation. Short-term use wells (mine fire
control), in particular, pose little threat to USDWs. Moreover, most
mine backfill/mine fire control wells are currently regulated under
State water quality or mining programs.
An independent assessment of Class V well injection of coal mining
waste into underground mines in West Virginia 4 provides
additional evidence that mine backfill wells do not pose a threat to
ground water. Prior to the start of this research in 1985, the West
[[Page 44661]]
Virginia Department of Natural Resources and EPA determined that the
injection of coal slurry and mine drainage precipitate sludge into
underground coal mines was the most common Class V well injection
activity in the State. Slurry or sludge injection to underground mines
was found to be practiced by 46 companies having 65 injection projects
at 60 mines across the State. Overall, slurry injection to underground
coal mines was found usually to improve the quality of water that
accumulates in the mines, commonly increasing pH and alkalinity levels
as well as causing minor changes in trace element concentrations.
Slurry injection, however, did result in increased sulfate levels in
mine water. Sludge injection to underground mines was found to affect
mine water quality in variable ways. In general, sludge injection
appeared to improve water quality in highly alkaline mine waters but
cause some degradation in acidic mine waters.
\4\ ``An Assessment of Class V Well Injection of Coal Mining
Waste into Underground Mines in West Virginia,'' prepared by Diane
M. Smith, Keystone Environmental Resources, Inc. (Monroeville, PA)
and Henry W. Rauch, West Virginia University, Department of Geology
and Geography (Morgantown, WV).
Based on this information, additional federal regulation of these
wells under the UIC program does not appear warranted to protect USDWs.
The Agency recognizes that some mine backfill wells may adversely
affect ground water quality, especially when slurries or sludges are
injected into mines that accumulate acid mine water. However, the
generally poor quality of ground water that naturally exists in and
around mines and the controls that are already in place under State
water or mining programs indicate that mine backfill wells can
generally continue to be rule authorized under the federal UIC program
without endangering USDWs. EPA will continue to control these wells by
enforcing 40 CFR 144.12, requiring owners or operators of particularly
troublesome wells to obtain a permit pursuant to 40 CFR 144.25, and, in
EPA administered programs, requiring the submittal of information under
40 CFR 144.27 on a case-by-case basis as needed to protect USDWs.
9. In Situ and Solution Mining Wells
In situ fossil fuel recovery wells are used to inject water, air,
oxygen, solvents, combustibles, or explosives into underground coal or
oil shale beds with the purpose of liberating fossil fuels. According
to the Report to Congress, these wells pose a moderate potential to
contaminate USDWs (Report to Congress, p. 4-229). The main concern for
this well type is the potential impact of explosives and combustion
products on ground water quality, which may include polynuclear
aromatics, cyanides, nitrites, and phenols. No additional UIC
regulations for these wells are needed at this time, however, because
there currently are no such wells known to be operating in the United
States.
Owners or operators of solution mining wells use injection and
recovery techniques to bring minerals from underground deposits to the
surface. Based on the data in the Report to Congress, EPA believes that
these wells have a low potential to contaminate USDWs (Report to
Congress, p. 4-209). This assessment considers the fact that most
solution mining wells inject below USDWs (though not below the
lowermost USDW) with very little potential for migration of fluids into
USDWs. Though injectates may be corrosive acids with pHs exceeding
drinking water standards and injectate volumes tend to be large, losses
of fluid from the workings should be minimal. Since the construction
and operational aspects of solution mining are simple, the potential
for a malfunction leading to migration is minimal. Moreover, most of
these wells are located in semi-remote areas far away from population
centers. Most solution mining occurs in the desert Southwest whose
alluvial aquifers generally have low water quality and USDWs are
sparse. New Mexico, Wyoming and Arizona, three States in which the
majority of these wells are located, have already established permit
programs for solution mining wells. For all of these reasons, EPA does
not believe that additional federal regulation of these wells is
necessary to protect USDWs.
10. Industrial Waste Discharge Wells
The most difficult decision for EPA concerning this proposal lay
with the appropriate management strategy for the remaining Class V
wells--the industrial waste discharge wells. These Class V wells, which
are used to inject industrial and commercial wastes, present the
greatest danger to USDWs.
In the process of developing this proposal, EPA carefully
considered an option of proposing additional regulatory requirements
for these wells. Specifically, EPA considered using a traditional
approach of requiring owners and operators of Class V industrial waste
discharge wells to apply for a permit or close the wells in accordance
with closure requirements specified in the regulation. EPA, however,
believes that its approach to managing Class V industrial waste
discharge wells has to be different because of the special problems
posed by these wells. This difference is characterized by three
factors: The diversity in the types of fluids being injected, the large
number of facilities to be regulated, and the nature of the regulated
community.
The diversity in the types of fluids being injected makes it
difficult to establish one set of national minimum requirements. On one
hand, EPA knows of numerous cases where industrial wells have caused
significant ground water contamination. One survey, by EPA, in 1991
identified 100 Class V injection well contamination cases. (Drinking
Water Contamination by Shallow Injection Wells, U.S. EPA Office of
Water, March 1991.) Remediation costs, for the 10 cases for which cost
information was available, ranged from tens of thousands to millions of
dollars per site. Class V wells have been partially or fully
responsible for the contamination of public water supplies in every EPA
Region in the country. In EPA Region 10 alone (The States of Idaho,
Oregon, Washington and Alaska), at least eight Superfund sites can be
either completely or partially attributed to the disposal of industrial
or commercial wastes in Class V industrial wells. At one Superfund site
in Idaho, over $10 million has been spent on remedial investigation and
feasibility studies to clean up contamination associated with past
injection practices. At another site in Vancouver, Washington, the
disposal of dry cleaning solvents in a septic system resulted in the
contamination of a municipal water supply well, forcing the city to
switch the approximately 30,000 people serviced by this well to another
source of drinking water.
On the other hand, the Agency recognizes that many industrial
sources inject wastes that have low concentrations of contaminants and,
therefore, are not likely to endanger USDWs. With proper maintenance
and management practices, these industrial injection wells may be able
to inject fluids without endangering USDWs.
For example, some carwashes dispose of the wash water into a septic
tank or dry well. If no motor or undercarriage washing is being
performed, in general, such fluids will have low concentrations of
contaminants. Laundromat washwater disposed of into a septic system or
dry well, where no on site dry cleaning is performed and where no
solvents are used for laundering, usually should not differ
significantly from household wastewater and should not endanger USDWs.
Equipment washdown water from such industries as poultry and meat
processors, seafood processors, and pickling operations are, in
general, similar in quality to the sanitary waste from restaurant
kitchens, which the
[[Page 44662]]
Agency is proposing to define as sanitary waste that can be disposed of
in septic systems. As long as the wells accept only equipment washdown
water and not process wastes from food processing operations, EPA
believes that, in most cases, the injectate would not likely endanger
USDWs.
Second, the Agency believes that the sheer size of the regulated
community and the lack of facility specific data makes it difficult to
consider a traditional approach. In order to examine options for this
proposal, the Agency attempted to characterize the segment of the
industrial waste discharge well population with a significant potential
(based on the characteristics, volume and type of injected fluids) to
endanger USDWs (see background document entitled ``Class V Industrial
Well Inventory Analysis''). EPA did not include in this analysis the
industrial waste discharge wells which it believes are posing a lesser
threat to USDWs such as:
(1) Wells used to inject fluids from car washes where no motor or
undercarriage washing is performed;
(2) Wells used to inject wastewaters from laundromats where no dry
cleaning is performed;
(3) Wells used by food processors for disposal of washdown water
from poultry, meat and seafood processing, and pickling operations.
Based on its analysis, the Agency estimates that of the more than
one million Class V wells, there are over 117,000 industrial waste
disposal wells. These wells are used for the disposal of industrial and
commercial wastewaters at automotive-related facilities, print shops,
dry cleaners, electronic equipment manufacturers, and photo processing
labs.
A third factor is the nature of the regulated community. A large
proportion of industrial waste discharge wells are owned by small
businesses. For example, 72 percent of all retail motor fuel outlets
are owned by small businesses. In reaching today's proposed decision,
EPA attempted to minimize the administrative burden on small business
without compromising the protection of USDWs. EPA believes that the
Class V wells are better managed by State and local officials because
many are owned and operated as small local businesses such as ``mom and
pop'' gasoline service stations and convenience stores, or corner dry
cleaners. These small entrepreneurs could be significantly affected by
any additional administrative burden, such as the obligation to apply
for a permit. Also, because of the nature of the regulated community,
the success of the Class V program for industrial waste discharge wells
depends on a high level of voluntary compliance and an effective
program implementation at a State or local level of government. Many
Class V industrial waste discharge wells are, in fact, misused septic
systems. Because local health departments are located in or near
communities with these Class V wells, the Agency believes that control
of these is best effected at the local level. Implementation of many
aspects of the Class V strategy could be conducted by these local
entities and results better measured by local officials.
Therefore, because of the large diversity and size of the
industrial waste discharge well universe, and the unique nature of the
regulated community, EPA believes that additional federal UIC
regulations to protect USDWs are inappropriate. EPA believes that the
risks posed by these wells are best addressed, using existing
authorities, as described below.
III. EPA's Strategy for the Management of Class V Wells
Instead of proposing additional Class V regulations, EPA will work
with the States to implement a comprehensive Class V management
strategy. The goal of the strategy will be to speed up the closure of
potentially endangering Class V wells using current authorities and to
promote the use of best management practices to ensure that other Class
V wells of concern do not endanger USDWs.
To achieve these goals, EPA will rely on the existing performance-
based standard in Sec. 144.12, its other regulatory authorities in
subpart C of the UIC rules, and a carefully tailored combination of
guidance, education, and outreach. EPA believes that this approach will
be more effective than promulgating additional design-based Class V
requirements.
Since the Class V rule was developed in the Fall of 1994, EPA has
undertaken a number of steps to assure effective consultations with and
the active involvement of States. EPA has also employed a number of
other approaches to solicit input from States on the scope and
appropriateness of the proposed rule. An overall Class V strategy was
developed early in 1995, which outlined how the Class V rule, coupled
with guidances on implementation and a variety of technical issues,
would work to assure that high priority Class V wells are addressed
properly and their potential threat to USDWs is reduced or eliminated.
A draft of the Strategy for the Comprehensive Management of Class V
Wells was presented to State UIC program directors at the semi-annual
meeting of the Ground Water Protection Council held in Washington, DC,
on March 13, 1995.
In a parallel fashion, EPA's efforts to develop a Class V
Management Implementation Strategy Guidance to help States put in place
comprehensive Class V programs was also used to advise states on the
proposed rule. EPA held two consultations with State Class V managers
on this guidance in which the particulars of the rule and the schedule
for issuance were discussed. The first meeting was held in Memphis,
Tennessee, June 20-21, 1995, and attended by 12 States and one Tribal
government representative. The second meeting was held in Salt Lake
City, Utah, July 11-12, 1995 and attended by 18 States. EPA's proposed
approach was generally well received and its inherent flexibilities
were viewed favorably by the States. The roster of attendees at these
sessions, added to the list of State Class V program managers who could
not attend, will serve as the primary target audience for EPA's
distribution of this Federal Register notice.
A. Technical Assistance
1. Program Management Implementation Guidance
EPA plans to issue a Class V Management Implementation Strategy
Guidance to help States and Regions put in place comprehensive Class V
programs using current authorities. EPA is in the process of drafting
this guidance with input from the States. As mentioned above, EPA has
already held two meetings to consult with the States on the development
of this guidance.
EPA's goal in this guidance is to help the States put in place
programs that will result in:
--Closure of endangering Class V wells such as industrial waste
disposal wells and cesspools, particularly in ground-water priority
areas (wellhead protection areas, etc.).
--Adequate controls being imposed on other Class V wells with a high
potential to contaminate USDWs, if improperly managed.
This guidance will focus on the following areas:
(1) The need to set priorities and focus the State UIC resources on
the highest risk Class V wells. To this end, the guidance will offer
ideas for prioritization schemes based on the types of fluids being
injected and geographic targeting.
The Class V management guidance will specifically target the
following types of Class V industrial wells for inspection and follow-
up enforcement action:
[[Page 44663]]
(a) Disposal wells used by automotive related facilities such as:
--Gas stations
--Automobile repair shops
--Automobile parts supply companies
--Motor vehicle dealers
(b) Disposal wells used by ``light'' industrial facilities such as:
--Dry cleaners
--Photographic processors
--Electroplaters
--Metal fabricators
--Printers
(2) The need to work cooperatively with other States and local
authorities to implement the program. The types of facilities regulated
under the Class V program are also likely to come under the purview of
other regulatory programs particularly at the local level (county
sanitarians, fire marshals, zoning boards). The guidance will describe
how States can reach out to and educate these entities to enlist their
help in implementing the program.
(3) The need to develop partnerships with volunteer organizations
and environmental groups to help with outreach to the regulated
community.
2. Technical Guidances
To support the Implementation Guidance, EPA is also proposing to
issue technical guidances, some directed at the regulated community and
some directed at the States.
a. Industrial waste discharge well closure guidance. Since EPA
believes that the foremost goal of the Class V management strategy is
the closure of endangering Class V wells, EPA will issue a closure
guidance. A draft of this guidance should be available for review in
late 1995. The guidance will be directed to owners and operators of
Class V industrial wells and will be modeled after the closure
standards used in EPA's administrative consent order with some major
petroleum marketers.
b. Septic system guidance. To support existing State ground water
protection programs in their efforts to protect USDWs, EPA will issue a
technical assistance guidance which will include recommendations on the
installation, operation, and maintenance of large capacity septic
systems, such as:
Proper installation of leachfields or other appropriate
fluid distribution systems in a variety of geographic settings.
Guidelines for system use and maintenance to avoid design
capacity exceedences and system failure.
Inspection techniques for early detection of systems
malfunction or failure.
Hydrogeologic factors to consider in system location to
ensure the protection of USDWs.
c. Agricultural drainage well guidance. The Agency will issue a
technical assistance guidance to help owners/operators of agricultural
drainage wells minimize the impact of their facilities on USDWs. The
guidance could include such recommendations as:
Pesticides or fertilizers should not be mixed or stored in
the immediate vicinity of a drainage well in a manner that allows
spills, runoff, or leachate to enter the well directly.
To the extent possible, the timing and methods for
applying fertilizers should be selected to provide nutrients at rates
necessary to achieve realistic crop yields, prevent endangerment of
USDWs, and avoid applications to frozen soil and during periods of
leaching or runoff.
To the extent possible, owners or operators should use
integrated pest management strategies that apply pesticides only when
an economic benefit to the producer will be achieved (i.e.,
applications based on economic thresholds), and apply pesticides
efficiently and at times when runoff and leaching losses are unlikely.
Agricultural drainage wells should be located away from
unsuitable areas, such as locations with excessively drained or highly
erodible soils, and areas overlaying fractured bedrock or solution
cavities that drain directly into USDWs. Appropriate separation
distances should be based on a variety of factors including soil type,
hydrogeologic conditions, nutrient and pesticide types and application
rates.
Nutrient and pesticide application equipment should be
properly calibrated and operated.
d. Storm water drainage well guidance. As a part of the strategy
for the comprehensive management of Class V wells, the Agency will
issue a technical assistance guidance on the effective methods of
managing storm water injection wells to assure the protection of USDWs.
The guidance will provide information about systems that are believed
to provide adequate segregation from industrial process or storage
areas as well as techniques for minimizing the environmental impacts of
injected storm water.
B. Outreach and Education
EPA will work with States, Regions, local government, trade
associations and other industry stakeholders to develop and implement a
comprehensive communication, education, and outreach program designed
to encourage closure of Class V wells which may endanger USDWs and
proper management of other non-industrial wells. EPA's first concern is
an outreach and education effort directed toward the owners and
operators of Class V industrial waste discharge wells.
The materials will be designed to inform the general public and
local government authorities as well as operators of Class V wells,
about the potential environmental and public health threats posed by
these wells. These materials will provide information to operators of
Class V facilities about the risks associated with these wells, what
can be done to minimize the environmental threats of shallow injection
wells, the benefits of closing Class V wells that may endanger USDWs,
and where to get appropriate technical assistance.
The outreach effort will be two pronged.
(1) The Agency will develop materials to help States work with
local government officials and make them aware of the risks posed by
Class V wells to the public water supplies on which their constituents
depend. The goal of this effort is to enlist local government help in
dealing with Class V wells through the use of local ordinances, zoning
and other local solutions.
(2) The Agency will work with specific trade associations through
this effort to inform operators of industrial waste discharge wells of
the risks posed by these wells and the benefits of closing wells that
may endanger USDWs. The Agency will also strive to ensure that
facilities which close their Class V wells have the necessary
information to manage their wastes in an environmentally safe manner.
The Agency will use this effort to promote pollution prevention so that
wastes generated by the facilities are cost effectively minimized. The
Office of Ground Water and Drinking Water has already produced a set of
best management practices targeting certain industrial facilities.
These BMPs can be used as a starting point for this effort.
C. Compliance Assurance Initiative
Considering the size of the regulated community, EPA believes that
voluntary compliance is essential to the success of its Class V
strategy. In cooperation with States, EPA will develop a compliance
initiative targeting high risk Class V wells. The initiative will seek
voluntary compliance with section 144.12 and other applicable
regulation through outreach, education, and technical assistance. EPA
is in the process of developing a policy to create special
[[Page 44664]]
incentives for small businesses who take the initiative to identify and
correct environmental violations by requesting compliance assistance
from the Director.
IV. Proposed Minor Amendments to the UIC Regulations in 40 CFR Part 144
Although EPA does not believe that a need currently exists for
major changes to its Class V rules, EPA believes that in order to
implement its proposed Class V strategy effectively, some minor
amendments to the current regulations are necessary. Most of these
amendments are intended to clarify the regulatory terminology used for
Class V wells and do not impose new requirements on owners or operators
of Class V wells. EPA does not solicit, nor will EPA respond to
comments related to any unamended language included in the proposed
revised sections solely for the purpose of supplying context for the
reader.
This section of the preamble describes the proposed amendments to
part 144 and the rationale for these changes.
A. Proposed Amendments to Subpart A--General Provisions
1. Section 144.1(g)--Specific Inclusions and Exclusions
EPA believes that a particularly useful technical amendment to the
regulations would be the clarification of the definition of septic
systems and a better explanation of which systems are and are not
included under the purview of the UIC program.
The current regulations are somewhat confusing on the issue of
septic systems. For example, while the specific inclusions in
Sec. 144.1(g)(1)(iii) include septic tanks or cesspools used to dispose
of fluids containing hazardous waste, the list of Class V wells in
Sec. 146.5(e)(9) refers to ``septic system wells'' used to dispose of
effluent from septic tanks. This has led some operators and States to
believe that if the effluent from the septic tank is disposed of
through a leachfield the device is no longer a Class V well. Therefore,
to clarify the issue, the term ``well'' in sections 144 and 146 would
be clarified to specifically include subsurface fluid distribution
systems.
The current regulation also make a distinction in the definition
and the exclusion sections between septic systems used by single-family
homes and non-residential septic systems that receive solely sanitary
waste and have the capacity to serve fewer than 20 people. EPA now
believes that there is no difference between a single-family residence
septic system and a non-residential system serving only a small number
of people, as long as the non-residential system receives only sanitary
waste. Such a non-residential system could include, for example, crew
quarters or guard stations located at industrial facilities.
In this proposal, EPA would define cesspools and septic systems as
wells receiving solely sanitary waste to distinguish them from
similarly configured devices receiving industrial waste waters which
would be considered industrial waste disposal wells. The proposal would
also provide a definition for sanitary waste. Because it makes sense to
provide the same type of relief to small residential and non-
residential users of cesspools and septic systems, and for the sake of
simplification, EPA is proposing to exclude from regulation all
cesspools and septic systems serving fewer than 20 people and to revise
Sec. 144.1 accordingly. However, any Class V well, including a well
that is configured like a small capacity septic system or cesspool,
which receives something other than solely sanitary waste, is not
considered a septic system or cesspool and is therefore not excluded
from UIC regulation.
Under today's proposal, EPA would continue to exclude septic
systems and cesspools, with the capacity to serve fewer that 20 people,
from UIC regulation. However, in developing this proposal, EPA
considered replacing the existing septic system/cesspool exclusion in
favor of an exclusion that would be based on septic tank size (e.g.,
tanks under 2000 gallons would not be subject to UIC regulations), flow
rate (e.g. systems receiving less than 5,000 gallons/day would not be
subject to the UIC regulations), or dwelling size. EPA is requesting
comment on the merits of the proposed exclusion and any other
alternative exclusion, including those considered but not proposed by
EPA, that would appropriately define which septic systems and cesspools
are subject to UIC regulation.
2. Section 144.3--Definitions
The proposed regulation would add new definitions for the terms
``cesspool,'' ``drywell,'' ``improved sinkhole,'' ``sanitary waste,''
``septic system,'' and ``subsurface fluid distribution system.'' The
rule also would revise the existing definitions for ``well,'' and
``well injection.''
The definition of ``cesspool'' and ``septic system'' would conform
with the new Class V categories explained in section I.A. of the
preamble.
An ``improved sinkhole'' would be defined as a type of injection
well regulated under the UIC program. Today's proposed definition would
codify EPA's interpretation that the intentional use of naturally
occurring karst or limestone depressions, for the purpose of disposing
waste waters, fits within the statutory definition of underground
injection.
``Sanitary waste'' would be defined as both ``domestic sewage and
household waste, including any material (e.g., wastewater from clothes-
washing machines, toilets, showers, and dishwashers) derived from
single and multiple residences, hotels and motels, restaurants,
bunkhouses, ranger stations, crew quarters, campgrounds, picnic
grounds, and day-use recreation areas.'' The definition of sanitary
waste in today's proposal is an adaptation of the household waste
exclusion established in the RCRA regulations (40 CFR 261.4(b)(1)).
The definition of ``well'' would be revised to clarify that a
``well'' includes improved sinkholes and subsurface fluid distribution
systems.
The definition of ``well injection''' would be revised to eliminate
a redundancy and simply state that well injection means the subsurface
emplacement of fluids through a well.
3. Section 144.6--Classification of Wells
The proposed regulation would revise Sec. 144.6(a) by adding a
paragraph (3) to include in Class I radioactive waste disposal wells
injecting below all USDWs. Such wells, in fact, are similar to Class I
wells in terms of their design, the nature of the fluids that they
inject, and their potential to endanger USDWs. In particular, like
Class I wells, such radioactive waste injection wells inject below all
USDWs and warrant the same level of control.
The Agency believes that all of these wells are located in Texas,
which already regulates them as Class I wells. Existing Class V
radioactive waste disposal wells, therefore, would not be subject to
any additional regulatory requirements. However, the Agency believes
that Class I requirements related to permitting, construction,
operating, monitoring, reporting, mechanical integrity testing, area of
review, and plugging and abandonment are needed to prevent any new
radioactive waste disposal wells from endangering USDWs. The Agency,
thus, proposes to reclassify wells that inject radioactive waste below
the lowermost USDW as Class I wells and subject them to the full set of
existing Class I requirements. This approach is administratively much
simpler and more straightforward than keeping the wells in the Class V
universe and
[[Page 44665]]
developing identical requirements under the Class V program.
Section 144.6 (e) would also be revised to include an expanded
definition of Class V wells. EPA is proposing to maintain the general
existing regulatory definition, i.e. that Class V wells are injection
wells not included in Classes I, II, III, or IV. The proposed rule,
however, would add significant detail to this definition by including a
list of 10 specific categories of wells that are considered Class V
wells.
B. Proposed Amendments to Subpart C--Authorization of Underground
Injection by Rule
1. Section 144.23--Class IV Wells
A new Sec. 144.23(c) would be added to clearly rule authorize Class
IV wells used to inject treated water into the formation from which it
came if such injection is approved by EPA or a State as part of a RCRA
or CERCLA remediation program. Therefore, these wells would not need a
UIC permit to operate. However, the Agency encourages effective
communication between State and Federal RCRA, CERCLA, and UIC programs
regarding the management of injection wells which are part of an
approved ground water remediation project.
2. Section 144.24--Class V Wells
Section 144.24(a) would be amended by revising paragraph (a) to
authorize all Class V wells by rule for the life of the well instead of
until further requirements become applicable.
This section currently provides at Sec. 144.24(b)(3) that
authorization by rule terminates upon proper closure of the well. EPA
is mindful of the desire of owners and operators to make sure that they
are ``out of the system'' and are no longer subject to the requirements
of authorization by rule. One option to accomplish this goal would be
to provide the operator with the opportunity to submit a certification
that the well has been closed in accordance with the closure guidance
which EPA intends to publish along with the promulgation of this rule.
This would provide EPA with assurances that the well was properly
closed and would establish a date certain upon which authorization by
rule would terminate. EPA is, however, concerned with the
administrative burden this option might entail. Therefore, EPA is
requesting comment on the feasibility and advisability of such an
option. EPA would also like commentors to provide alternatives to this
option.
3. Section 144.26--Inventory Requirements
Section 144.26(b)(1)(iii) would be revised to track the new
categories of Class V wells and drop radioactive waste disposal wells
from the list.
V. Proposed Minor Amendments to the UIC Regulations in 40 CFR Part 146
This section of the preamble describes the proposed amendments to
part 146 and the rationale for these changes.
A. Proposed Amendments to Subpart A--General Provisions
1. Section 146.3--Definitions
To parallel the proposed amendments at Sec. 144.3, the proposed
regulation would add new definitions for the terms ``cesspool,''
``drywell,'' ``improved sinkhole,'' ``sanitary waste,'' ``septic
system,'' and ``subsurface fluid distribution system.'' The rule also
would revise the existing definitions for ``well,'' and ``well
injection.''
2. Section 146.5--Classification of Injection Wells
Section 146.5 would be amended to make it consistent with
Sec. 144.6.
3. Section 146.10--Plugging and Abandoning Class I, II, III, IV and V
Wells
The current regulations provide that authorization by rule
terminates upon proper closure of Class V wells but do not give any
direction of what constitutes proper closure. This section proposes to
amend the requirements for plugging and abandonment (i.e., closure)
found in 40 CFR 146.10 for Class I, II, and III injection wells by
adding a reference to the Class IV closure requirements at
Sec. 144.23(b) and reiterating the Class V abandonment requirements at
Sec. 144.12(a).
New Sec. 146.10(c) would (1) require the owner or operator of any
Class V well to close the well in a manner that prevents the movement
of fluids containing any contaminant into USDWs if the presence of this
contaminant may cause a violation of any primary drinking water
regulation under 40 CFR part 142 or may otherwise adversely affect the
health of persons and (2) requires that all material removed from or
adjacent to the well during closure (such as sludge, gravel, sand, and
possibly soil) be managed in accordance with all applicable Federal,
State, and local regulations and requirements (including RCRA
requirements). The existing requirements for Classes I, II, and III
would not be changed, although they would be renumbered to accommodate
the addition of the proposed new Class V requirements. As a result, EPA
is not accepting public comment on the requirements for Classes I
through III as they appear in today's proposal.
VI. Solicitation of Comments
A. General Solicitation
EPA invites and encourages public participation in this rulemaking.
The Agency welcomes any comments on the Strategy for the Management of
Class V wells announced in this preamble and on the regulatory changes
proposed herein. The Agency will review and evaluate each and every
comment received. The Agency asks that comments address any perceived
deficiencies in the record of this proposal and that suggested
revisions or corrections be supported by appropriate data.
B. Specific Comment Solicitations
For the reasons discussed above, EPA believes its proposed Class V
Strategy is the best approach for effectively implementing the
requirement of the Safe Drinking Water Act to prevent underground
injection from Class V wells which endangers USDWs. The Agency
recognizes, however, that the proposed approach is not necessarily the
only possible means of accomplishing that goal. Accordingly, we solicit
comment on the advisability of adopting other approaches, including
ones that might incorporate more and different regulatory requirements.
Specifically, we invite comment on the advisability of including the
following regulatory amendments:
1. A requirement for notification to EPA or the State before the
closure of Class V industrial waste discharge wells or other specific
categories of Class V wells.
2. A requirement for notification to EPA or the State before the
construction of Class V industrial waste discharge wells or other
specific categories of Class V wells.
3. A provision in the regulations expressly creating general permit
authority for all or specific categories of Class V wells.
4. Provisions in the regulations expressly requiring owners and
operators of Class V industrial waste discharge wells, or other
specific categories of Class V wells, to apply for and comply with
specific permitting conditions or to close in accordance with specific
regulatory requirements.
[[Page 44666]]
VII. Regulatory Impact
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, Local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the right and obligation of recipients
thereof: or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive order 12866, it has been
determined that this rule is a ``significant regulatory action''
because it meets test (4) listed above. OMB has reviewed this proposal
and agrees with this conclusion.
B. Paperwork Reduction Act
This rule places no additional information collection or record-
keeping burden on respondents. Therefore, an information collection
request has not been prepared and submitted to the Office of Management
and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq.
C. Impact on Small Businesses
Under the Regulatory Flexibility Act, an agency is required to
prepare an initial regulatory flexibility analysis whenever it is
required to publish general notice of any rule, unless the head of the
Agency certifies that the rule, if promulgated, will not have
significant economic impact on a substantial number of small entities.
These regulations require no additional reporting by owners or
operators and impose no new substantive requirements or standards. The
reclassification of radioactive waste disposal wells has no impact on
any existing wells and these wells are typically owned and operated by
large mining companies. Therefore, the Administrator certifies that
this regulation will not have a significant impact on a substantial
number of small entities.
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a written statement
to accompany rules where the estimated costs to State, local, or tribal
governments, or to the private sector, will be $100 million or more in
any one year. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objective
of such a rule and that is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly and uniquely affected
by the rule.
EPA estimates that the costs to State, local, or tribal
governments, or the private sector, from this proposed rule will be far
less than $100 million. This proposed rule should have no impact on
owners or operators of Class V wells because the proposed rule imposes
no new mandatory requirements. EPA has determined that an unfunded
mandates statement, therefore, is unnecessary. Moreover, the rule
proposed today does not establish any regulatory requirements that
might significantly or uniquely affect small governments.
E. Effect on States with Primacy
According to the regulations at 40 CFR 145.32 for non-substantial
program revisions, primacy States must assert in a letter from the
State's Director or his authorized representative to the Regional
Administrator that the State has incorporated the revisions and
regulatory language into its current program or that it already meets
the requirements. The State must submit this document within 270 days
of the effective date of the final rule. The Agency expects that, since
the proposed amendments do not impose new mandatory requirements, all
States will be able to satisfy the requirements of 40 CFR 145.32 in a
letter to the Regional Administrator.
Primacy States are put on notice that program revisions may be
necessary pursuant to 40 CFR 145.32 following final promulgation of
these proposed amendments. EPA anticipates that such revisions will be
non-substantial in nature and that, when submitted, EPA will review
them accordingly. EPA is aware that jurisdiction over Class V wells is
often split among several agencies in a State. Some States have
expressed concern that EPA might require changes in State Agencies'
scope of responsibility. This is not the case. EPA's interest in
reviewing State submittals will be to ensure that all types of wells
covered by the Federal program are subject to the non-endangerment
standards of the Federal UIC program and to adequate enforcement
authorities whether or not the State chooses to call them Class V wells
and regardless of which entity in the State has jurisdiction over the
wells.
List of Subjects in 40 CFR Parts 144 and 146
Environmental protection, Ground water pollution control, Shallow
disposal wells.
Dated: August 15, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 144--UNDERGROUND INJECTION CONTROL PROGRAM
1. The authority citation for part 144 continues to read as
follows:
Authority: Safe Drinking Water Act, 42 U.S.C. 300f et seq.;
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.
2. Section 144.1 is amended by revising paragraphs (g)(1)
introductory text, (g)(1)(iii), (g)(1)(iv) and (g)(2)(ii), removing
paragraph (g)(2)(iii), redesignating paragraphs (g)(2) (iv) and (v) as
(g)(2) (iii) and (iv), and revising newly designated paragraph
(g)(2)(iv) to read as follows:
Sec. 144.1 Purpose and scope of part 144.
* * * * *
(g) * * *
(1) Specific inclusions. The following wells are included among
those types of injection activities which are covered by the UIC
regulations. (This list is not intended to be exclusive but is for
clarification only.)
* * * * *
(iii) Any septic system, cesspool, or other well, used by
generators of hazardous waste, or by owners or operators of hazardous
waste management facilities to dispose of fluids containing hazardous
waste.
(iv) Any septic system, cesspool, or other well, used solely for
the subsurface emplacement of sanitary waste, having the capacity to
serve twenty persons or more per day.
(2) * * *
(ii) Any septic system, cesspool, or other well used solely for the
subsurface emplacement of sanitary waste, having
[[Page 44667]]
the capacity to serve fewer than 20 persons a day.
* * * * *
(iv) Any dug hole which is not used for the subsurface emplacement
of fluids.
* * * * *
3. Section 144.3 is amended by adding new definitions in
alphabetical order for ``cesspool,'' ``drywell,'' ``improved
sinkhole,'' ``sanitary waste,'' ``septic system,''' and ``subsurface
fluid distribution system,''' and by revising the definitions of
``well,''' and ``well injection''' to read as follows:
Sec. 144.3 Definitions.
* * * * *
Cesspool means a ``drywell'' that receives solely untreated
sanitary waste, and which sometimes has an open bottom and/or
perforated sides.
* * * * *
Drywell means a well, other than an improved sinkhole or subsurface
fluid distribution system, completed above the water table so that its
bottom and sides are typically dry except when receiving fluids.
* * * * *
Improved sinkhole means a naturally occurring karst depression
which has been modified by man for the purpose of directing and
emplacing fluids into the subsurface.
* * * * *
Sanitary waste means domestic sewage and household waste, including
any material (e.g., wastewater from clothes-washing machines, toilets,
showers, and dishwashers) derived from single and multiple residences,
hotels and motels, restaurants, bunkhouses, ranger stations, crew
quarters, campgrounds, picnic grounds, and day-use recreation areas.
* * * * *
Septic system means a ``well'' that is used solely to emplace
sanitary waste below the surface and is comprised of a septic tank and
subsurface fluid distribution system.
* * * * *
Subsurface fluid distribution system means an assemblage of
perforated pipes or drain tiles used to distribute fluids below the
surface of the ground.
* * * * *
Well means: (1) A bored, drilled, or driven shaft; (2) A dug hole
whose depth is greater than the largest surface dimension; (3) An
improved sinkhole; or (4) A subsurface fluid distribution system.
Well injection means the subsurface emplacement of fluids through a
well.
* * * * *
4. Section 144.6 is amended by adding a new paragraph (a)(3) and
revising paragraph (e) to read as follows:
Sec. 144.6 Classification of wells.
(a) * * *
(3) Radioactive waste disposal wells which inject fluids below the
lowermost formation containing, within one quarter mile of the well
bore, an underground source of drinking water.
* * * * *
(e) Class V. Injection wells not included in Class I, II, III, or
IV. Class V includes, but is not limited to, the following well types:
(1) Beneficial use wells. Wells used for aquifer recharge, salt
water intrusion barriers, subsidence control, aquifer storage and
recovery, or subsurface environmental remediation;
(2) Fluid return wells. Wells used to inject:
(i) Spent brines after extraction of minerals;
(ii) Heat pump return fluids; and
(iii) Fluids that have undergone chemical alteration during the
production of geothermal energy for heating, aquaculture, or production
of electric power into the same formation from which the fluids have
been withdrawn;
(3) Sewage treatment effluent wells. Wells used to inject effluent
from publicly or privately owned treatment works, into formations that
are not below the lowermost USDW;
(4) Cesspools as defined in Sec. 144.3.
(5) Septic systems as defined in Sec. 144.3.
(6) Experimental technology wells. Any injection well that is part
of an unproven subsurface injection technology;
(7) Drainage wells. Wells used to drain surface and subsurface
fluids into a subsurface formation, including agricultural drainage and
storm water runoff, other than runoff from load dock, storage, and
processing areas; Wells injecting runoff from loading dock, storage and
processing areas are included under paragraph (e)(10) of this section.
(8) Mine backfill wells. Wells used to inject a slurry of water or
air with sand, mill tailings or other solids into mined out portions of
subsurface mines;
(9) In-situ and solution mining wells. Wells used to inject fluids
for the purpose of producing minerals or fossil fuels, which are not
Class II or III wells;
(10) Industrial waste discharge wells. Wells used to inject
wastewaters generated by industrial, commercial, and service
establishments which are not included in paragraphs (e)(1) through
(e)(9) of this section.
5. Section 144.23 is amended adding a new paragraph (c) to read as
follows:
Sec. 144.23 Class IV wells.
* * * * *
(c) Notwithstanding the requirements of paragraphs (a) and (b) of
this section, injection wells used to inject contaminated ground water
that has been treated and is being injected into the same formation
from which it was drawn are authorized by rule for the life of the well
if such subsurface emplacement of fluids is approved by EPA, or a
State, pursuant to provisions for cleanup of releases under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), 42 U.S.C. 9601-9675, or pursuant to requirements and
provisions under the Resource Conservation and Recovery Act (RCRA), 42
U.S.C. 6901-6992k.
6. Section 144.24 is amended by revising paragraph (a) to read as
follows:
Sec. 144.24 Class V wells.
(a) Class V wells are authorized by rule for the life of the well
if the owner or operator uses the well for the subsurface emplacement
of fluids after the date on which a UIC program authorized under the
SDWA becomes effective for the first time, and inventories the well
pursuant to the requirements of Sec. 144.26.
* * * * *
7. Section 144.26 is amended by revising paragraphs (b)(1)(iii)(A)
through (F) and by removing paragraph (b)(1)(iii)(G) to read as
follows:
Sec. 144.26 Inventory requirements.
* * * * *
(b) * * *
(1) * * *
(iii) * * *
(A) Mine backfill wells;
(B) Fluid return wells;
(C) Experimental technology wells;
(D) Sewage treatment effluent wells;
(E) Industrial waste discharge wells; and
(F) Any other Class V wells at the discretion of the Regional
Administrator.
* * * * *
PART 146--UNDERGROUND INJECTION CONTROL PROGRAM: CRITERIA AND
STANDARDS
8. The authority citation for part 146 continues to read as
follows:
Authority: Safe Drinking Water Act, 42 U.S.C. 300f et seq.;
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.
* * * * *
9. Section 146.3 is amended by adding the following new definitions
in
[[Page 44668]]
alphabetical order: ``cesspool,'' ``drywell,'' ``improved sinkhole,''
``sanitary waste,'' ``septic system,'' and ``subsurface fluid
distribution system,'' and by revising the definitions of ``well,'' and
``well injection'' to read as follows:
Sec. 146.3 Definitions.
* * * * *
Cesspool means a ``drywell'' that receives solely untreated
sanitary waste, and which sometimes has an open bottom and/or
perforated sides.
* * * * *
Drywell means a well, other than an improved sinkhole or subsurface
fluid distribution system, completed above the water table so that its
bottom and sides are typically dry except when receiving fluids.
* * * * *
Improved sinkhole means a naturally occurring karst depression
which has been modified by man for the purpose of directing and
emplacing fluids into the subsurface.
* * * * *
Sanitary waste means domestic sewage and household waste, including
any material (e.g., wastewater from clothes-washing machines, toilets,
showers, and dishwashers) derived from single and multiple residences,
hotels and motels, restaurants, bunkhouses, ranger stations, crew
quarters, campgrounds, picnic grounds, and day-use recreation areas.
* * * * *
Septic system means a ``well'' that is used solely to emplace
sanitary waste below the surface and is comprised of a septic tank and
subsurface fluid distribution system.
* * * * *
Subsurface fluid distribution system means an assemblage of
perforated pipes or drain tiles used to distribute fluids below the
surface of the ground.
* * * * *
Well means: (1) A bored, drilled, or driven shaft;
(2) A dug hole whose depth is greater than the largest surface
dimension;
(3) An improved sinkhole; or
(4) A subsurface fluid distribution system.
Well injection means the subsurface emplacement of fluids through a
well.
* * * * *
10. Section 146.5 is amended by adding a new paragraph (a)(3) and
revising paragraphs (e) to read as follows:
Sec. 146.5 Classification of injection wells.
* * * * *
(a) * * *
(3) Radioactive waste disposal wells which inject fluids below the
lowermost formation containing, within one quarter mile of the well
bore, an underground source of drinking water.
* * * * *
(e) Class V. Injection wells not included in Class I, II, III, or
IV. Class V includes, but is not limited to, the following well types:
(1) Beneficial use wells. Wells used for aquifer recharge, salt
water intrusion barriers, subsidence control, aquifer storage and
recovery, or subsurface environmental remediation;
(2) Fluid return wells. Wells used to inject: Spent brines after
extraction of minerals; heat pump return fluids; and fluids that have
undergone chemical alteration during the production of geothermal
energy for heating, aquaculture, or production of electric power, into
the same formation from which the fluids have been withdrawn;
(3) Sewage treatment effluent wells. Wells used to inject effluent
from publicly or privately owned treatment works, into formations that
are not below the lowermost USDW;
(4) Cesspools as defined in Sec. 144.3.
(5) Septic systems as defined in Sec. 144.3.
(6) Experimental technology wells. Any injection well that is part
of an unproven subsurface injection technology;
(7) Drainage wells. Wells used to drain surface and subsurface
fluids into a subsurface formation, including agricultural drainage and
storm water runoff, other than runoff from loading dock, storage, and
processing areas; Wells injecting runoff from loading dock, storage and
processing areas are included under Sec. 144.6(e)(10).
(8) Mine backfill wells. Wells used to inject a slurry of water or
air with sand, mill tailings or other solids into mined out portions of
subsurface mines;
(9) In-situ and solution mining wells. Wells used to inject fluids
for the purpose of producing minerals or fossil fuels, which are not
Class II or III wells;
(10) Industrial waste discharge wells. Wells used to inject
wastewaters generated by industrial, commercial, and service
establishments which are not included in paragraphs (e)(1) through
(e)(9) of this section.
* * * * *
11. Section 146.10 is revised to read as follows:
Sec. 146.10 Plugging and abandoning Class I, II, III, IV, and V wells.
(a) Requirements for Class I, II and III wells. (1) Prior to
abandoning Class I, II and III wells, the well shall be plugged with
cement in a manner which will not allow the movement of fluids either
into or between underground sources of drinking water. The Director may
allow Class III wells to use other plugging materials if the Director
is satisfied that such materials will prevent movement of fluids into
or between underground sources of drinking water.
(2) Placement of the cement plugs shall be accomplished by one of
the following:
(i) The Balance method;
(ii) The Dump Bailer method;
(iii) The Two-Plug method; or
(iv) An alternative method approved by the Director, which will
reliably provide a comparable level of protection to underground
sources of drinking water.
(3) The well to be abandoned shall be in a state of static
equilibrium with the mud weight equalized top to bottom, either by
circulating the mud in the well at least once or by a comparable method
prescribed by the Director, prior to the placement of the cement
plug(s).
(4) The plugging and abandonment plan required in Secs. 144.51(o)
and 144.52(a)(6) shall, in the case of a Class III project which
underlies or is in an aquifer which has been exempted under
Sec. 146.04, also demonstrate adequate protection of USDWs. The
Director shall prescribe aquifer cleanup and monitoring where he deems
it necessary and feasible to insure adequate protection of USDWs.
(b) Requirements for Class IV wells. In EPA administered programs,
prior to abandoning a Class IV well, the owner or operator shall close
the well in accordance with Sec. 144.23(b).
(c) Requirements for Class V wells. (1) Prior to abandoning a Class
V well, the owner or operator shall close the well in a manner that
prevents the movement of fluid containing any contaminant into an
underground source of drinking water, if the presence of that
contaminant may cause a violation of any primary drinking water
regulation under 40 CFR part 142 or may otherwise adversely affect the
health of persons.
(2) The owner or operator shall dispose of or otherwise manage any
soil, gravel, sludge, liquids, or other materials removed from or
adjacent to the well in accordance with all applicable Federal, State,
and local regulations and requirements.
[FR Doc. 95-20765 Filed 8-25-95; 8:45 am]
BILLING CODE 6560-50-P
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.