Revisions to the Underground Injection Control Regulations for Class V Injection Wells

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 144, 145 and 146

[FRL-6129-4]

RIN 2040-AB83

Revisions to the Underground Injection Control Regulations for

Class V Injection Wells

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) today is proposing

changes to the Class V Underground Injection Control (UIC) regulations

that would add new requirements for three categories of Class V wells

that pose a high risk when located in ground water-based source water

protection areas being delineated by states under the 1996 Amendments

to the Safe Drinking Water Act (SDWA). Class V motor vehicle waste

disposal wells in such areas would either be banned or would have to

get a permit that requires fluids released in those wells to meet the

drinking water maximum contaminant levels (MCLs) at the point of

injection. Class V industrial waste disposal wells in ground water-

based source water protection areas also would be required to meet the

MCLs at the point of injection, and large-capacity cesspools in such

areas would be banned. EPA is proposing these new requirements to

address three categories of wells that it has identified as posing a

high risk of ground water contamination based on available information.

These are motor vehicle waste disposal wells, industrial waste disposal

wells, and cesspools in ground water-based source water protection

areas. Targeting the requirements to those wells will achieve

substantial protection of underground sources of drinking water.

EPA also is proposing to consolidate the Class V UIC regulations in

a ``plain-English'' format to make it easier for Class V well owners

and operators to understand when and how the regulations apply to them.

To that end, EPA recommends that you review the proposed regulatory

language first, and then refer to the preamble for background and

additional rationale not included in the rule.

DATES: EPA must receive public comment, in writing, on the proposed

regulations by September 28, 1998. Comments will only be accepted on

certain new sections of the proposed rule (see Table 1 of the

Preamble).

ADDRESSES: Send written comments to the UIC Class V, W-98-05 Comment

Clerk, Water Docket (MC-4101); U.S. Environmental Protection Agency;

401 M Street, SW, Washington, DC 20460. Comments may be hand-delivered

to the Water Docket, U.S. Environmental Protection Agency; 401 M

Street, SW., East Tower Basement, Washington, DC 20460. Comments may be

submitted electronically to [email protected].

Please submit all references cited in your comments. Facsimiles

(faxes) cannot be accepted. EPA would appreciate one original and three

copies of your comments and enclosures (including any references).

Commenters who would like EPA to acknowledge receipt of their comments

should include a self-addressed, stamped envelope.

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. Eastern Time, Monday

through Friday.

FOR FURTHER INFORMATION CONTACT: For general information, contact the

Safe Drinking Water Hotline, phone 800-426-4791. The Safe Drinking

Water Hotline is open Monday through Friday, excluding federal

holidays, from 9:00 a.m. to 5:30 p.m. Eastern Time. For technical

inquiries, contact Robyn Delehanty, Underground Injection Control

Program, Office of Ground Water and Drinking Water (mailcode 4606),

EPA, 401 M Street, SW, Washington, DC 20460. Phone: 202-260-1993. E-

mail: [email protected].

SUPPLEMENTARY INFORMATION:

Regulated Entities: Although certain proposed clarifications to the

UIC regulations would apply to owners or operators of any type of Class

V well, the only entities to be regulated by this proposal when final

are owners or operators of Class V motor vehicle waste disposal wells,

industrial wells, and large-capacity cesspools. Potentially regulated

categories and entities include:

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Examples of regulated entities (if

Category they have a class V well)

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Industry and Commerce............. Gasoline service stations, new and

used car dealers, any facility that

does any vehicle repair work (e.g.,

body shops, transmission repair

shops, and muffler repair shops),

chemical manufacturers, dry

cleaners, electric component

manufacturers, small machine

manufacturers, die and tool

manufacturers, commercial printers,

asphalt manufacturers, and

carwashes where engine or

undercarriage washing is performed

and any other commercial or

industrial facility with a Class V

disposal or drainage well (other

than stormwater drainage wells).

State and Local Government........ Road facilities, fire stations, and

solid waste management facilities.

Federal Government................ Any Federal agency that owns or

operates one of the above entities.

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This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by this

action. This table lists the types of entities that EPA is now aware

could potentially be regulated by this action. Other types of entities

not listed in the table could also be regulated. To determine whether

your injection well is regulated by this action, you should carefully

examine the applicability criteria in Secs. 144.81 and 144.85 of the

proposed rule. If you have questions regarding the applicability of

this action to a particular entity, consult the person listed in the

preceding FOR FURTHER INFORMATION CONTACT section.

Preamble Outline

I. Format and Scope of Proposed Rule

II. Background

A. Statutory and Regulatory Framework

B. Requirements Applicable to Class V Wells

C. History of this Rulemaking

1. 1987 Report to Congress on Class V Wells

2. 1994 Consent Decree With the Sierra Club

3. 1995 Proposed Rule

4. 1996 Amendments to the Safe Drinking Water Act

5. 1997 Consent Decree With the Sierra Club

6. 1998 Stakeholder Meetings and Small Entity Outreach

III. EPA Strategy for Class V Well Management

A. Initial Rule for High-Risk Well Types in Source Water

Protection Areas

[[Page 40587]]

B. Further Study of Additional Class V Well Types

IV. Integration of the Class V Rule With the Source Water Assessment

Program

A. Overview of the Source Water Assessment Program

B. Class V Rule Focus on Source Water Protection Areas

1. Proposal

2. Alternatives

C. Other Connections Between the Class V Rule and Source Water

Assessment Program

V. Proposed Class V Well Requirements

A. Categories of Class V Wells

B. Requirements for Motor Vehicle Waste Disposal Wells

1. Proposal to Ban New and Existing Wells

2. Proposal to Ban New Wells and Require Existing Wells to

Either Close or Get a Permit

3. Alternative

C. Requirements for Class V Industrial Wells

1. Proposal

2. Alternatives

D. Ban of Large-Capacity Cesspools

E. Exclusion Criteria for Septic Systems and Cesspools

F. Other Amendments

1. Sections 144.3 and 146.3--Definitions

2. Sections 144.6 and 146.5--Classification of Wells

3. Existing Regulations Being Reiterated or Replaced in 40 CFR

Part 144, Subpart G

4. Part 145--State UIC Program Requirements

VI. Regulatory Impact

A. Executive Order 12866

B. Children's Health Protection and Executive Order 13045

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Enhancing the Intergovernmental Partnership

F. Unfunded Mandates

G. National Technology Transfer and Advancement Act

H. Environmental Justice

I. Effect on States With Primacy

I. Format and Scope of Proposed Rule

Today's notice proposes to consolidate Class V UIC regulations in a

new Subpart G to 40 CFR Part 144. This subpart is written in a simple-

to-understand, plain-English format. Before reading the rest of this

preamble, Class V well owners and operators should review the proposed

new regulation that presents the enforceable legal requirements they

need to know about. This preamble does not repeat any of the

requirements contained in the proposed rule, but rather provides

background and additional rationale not included in the regulation and

solicits comments on alternative requirements.

Because the new Subpart G consolidates the Class V UIC regulations

in one place, it includes portions of the existing regulations together

with proposed new requirements. The existing regulations that are being

reiterated in, or, in some cases, moved to Subpart G for the sake of

clarity are not open for public comment. Instead, EPA is accepting

public comment only on the proposed new requirements, which include (1)

some of the minor revisions originally proposed in the August 28, 1995

notice, which are repeated today to provide a complete and coherent

picture of all Class V changes being contemplated, and (2) additional

requirements being proposed for the first time today. Table 1 below

identifies those sections of the proposed regulation on which EPA is,

and is not, accepting comment.

Today's proposal does not solicit comments on other minor

amendments proposed on August 28, 1995 that have nothing to do with

Class V wells. These are amendments to Sec. 144.23 to clearly rule

authorize Class IV wells used to inject treated water into the same

formation from which it came if such injection is approved by EPA or a

state as part of a remediation program, and to Sec. 146.10 to include

plugging and abandonment requirements for Class IV wells. At the same

time EPA takes final action on today's proposal, EPA will issue a final

ruling on these other amendments based on public comments received on

the 1995 proposal.

Table 1.--Sections of Proposed Regulation Open for Public Comment

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Open for public comment Not open for public

--------------------------------------------------- comment Existing

Minor amendments requirements

New requirements in today's proposed on August included in plain

proposal 28, 1995 English format

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Sec. 144.1(f) reference to Sec. 144.1(g) Sec. 144.80

Subpart G, Part 144 specific inclusions description of the

and exclusions five classes of

injection wells

(reiterates

existing Sec.

144.6).

Secs. 144.3 and 146.3 Secs. 144.3 and Sec. 144.82 (a)

definition for sanitary 146.3 definitions through (e)

waste. for cesspool, prohibition of

drywell, improved fluid movement

sinkhole, septic (reiterates

system, subsurface existing Sec.

fluid distribution 144.12).

system, well, and

well injection.

Secs. 144.6(e) and 146.5(e) Sec. 144.6(a)(3) Sec. 144.83

description of Class V and 146.5(a)(3) inventory

injection wells. classification of requirements for

radioactive waste Class V wells

disposal wells. (moved from Sec.

144.26(b)(1)(iii)

and (e)), except

the proposed new

inventory

requirement for

well conversions in

Sec. 144.83(a)(2)(

iii), which is open

for public comment.

Secs. 144.81 definition of

12 types of Class V

injection wells.

Secs. 144.83(a)(2)(iii)

requirement to submit new

inventory information if a

well in a DI Program is

converted to an industrial

well.

Secs. 144.84(b)(2) and Sec. 144.84

(b)(3) description of description of when

circumstances in which Class V injection

permits or other action is is authorized by

required. rule (moved from

existing Sec.

144.24), except the

circumstances in

Sec. 144.84(b)(2)

and (b)(3) in which

permits or other

action is required

for Class V

cesspools, motor

vehicle waste

disposal wells, and

industrial wells,

which is open for

public comment.

Sec. 144.85 description of

when additional

requirements apply to Class

V cesspools, motor vehicle

waste disposal wells, and

industrial waste disposal

wells.

[[Page 40588]]

Sec. 144.86 additional

requirements for certain

Class V cesspools, motor

vehicle waste disposal

wells, and industrial waste

disposal wells.

Sec. 144.87(a)(2) Sec. 144.87(a)(1)

discussion of available closure

alternatives for disposing requirements for

of waste fluids. Class V cesspools,

motor vehicle waste

disposal wells, and

industrial waste

disposal wells

subject to Sec.

144.86.

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II. 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), June 10, 1994 (59 FR 29958), December

14, 1994 (59 FR 64339), and June 29, 1995 (60 FR 33926).

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). For the remainder of this

preamble, references to the UIC Program ``Director'' mean either the

Director of the EPA program (where the program is implemented directly

by EPA) or the Director of the Primacy State program (where the state

is responsible for implementing the program). Also, currently all Class

V UIC Programs in Indian Country are directly implemented by EPA.

Therefore, for the remainder of this preamble, references to DI

Programs include Class V programs in Indian Country.

B. Requirements Applicable to Class V Wells

The UIC regulations establish five classes of injection wells.

Class I wells are used to inject hazardous and non-hazardous waste

beneath the lowermost formation containing an underground source of

drinking water (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 Sec. 144.13.) Class V wells are

defined in the regulations as any well not included in Classes I

through IV.

Class V wells are currently authorized by rule (Sec. 144.24(a)).

Well authorization 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 injection 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. Section 144.12 (c) and (d) prescribe

mandatory and discretionary actions to be taken by the Director if a

well is not 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.

Owners or operators of Class V injection wells must also submit

basic 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.

C. History of This Rulemaking

While implementing the above requirements, EPA has inventoried and

assessed Class V wells and has pursued new rulemaking activities and

non-regulatory approaches to Class V well management. Major milestones

during this process leading to today's proposal are summarized below.

1. 1987 Report to Congress on Class V Wells

In accordance with the 1986 Amendments to the SDWA, 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

[[Page 40589]]

and state recommendations for Class V design, construction,

installation, and siting requirements. These state recommendations,

however, did not give EPA a clear mandate on what, if any, additional

measures were needed to control Class V wells on the national level.

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 statewide 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.

2. 1994 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 alleged 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, Paragraph 15)

On August 31, 1994, EPA entered into a consent decree with the

Sierra Club which required that no later than August 15, 1995, the

Administrator sign a notice to be published in the Federal Register

proposing regulatory action that fully discharges the Administrator's

rulemaking obligation under section 1421 of the SDWA, 42 U.S.C. 300h,

with respect to Class V injection wells. In this notice, EPA had to (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, Paragraph 2). The

consent decree further required that, no later than November 15, 1996,

the Administrator 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, Paragraph 3).

3. 1995 Proposed Rule

On August 15, 1995, the Administrator signed a notice of proposed

rulemaking intended to fulfill EPA's obligation under the 1994 consent

decree with the Sierra Club (60 FR 44652, August 28, 1995). In this

notice, EPA proposed not to adopt additional federal regulations for

any types of Class V injection wells. Instead, the Agency proposed to

address the risks posed by certain wells using existing authorities and

a Class V management strategy designed to (1) speed up the closure of

potentially endangering wells; and (2) promote the use of best

management practices to ensure that other Class V wells of concern do

not endanger USDWs. Several factors led EPA to propose this approach,

including: (1) the wide diversity in the types of fluids being

injected, ranging from high risk to not likely to endanger; (2) the

large number of facilities to be regulated; and (3) the nature of the

regulated community, which consists of a large proportion of small

businesses.

EPA received many comments that supported the Agency's proposal to

not impose more regulations for Class V wells. Commenters who supported

the rule included some states and industries that use Class V injection

wells. In general, these commenters supported the rule because it

provided maximum flexibility to states to use existing authorities to

address high-risk site specific factors. However, EPA also received a

number of comments that raised concerns about the proposal, primarily

from states and an environmental group. In particular, several

commenters questioned whether a UIC program without additional

requirements for what they believed to be relatively high-risk well

types, including Class V industrial waste disposal wells and cesspools,

could prevent endangerment to drinking water sources as required by the

SDWA. These commenters claimed that at least some types of wells pose a

known threat to USDWs and that lack of data or ability to address the

entire threat posed by Class V wells does not justify failing to act to

address at least part of the threat.

EPA now believes that the 1995 proposal was inadequate to protect

USDWs for two main reasons. First, the 1995 approach proposed to

address all Class V wells regardless of the level of risks they pose to

USDWs, with one regulatory approach. Specifically the proposed approach

did not provide a clear set of regulatory requirements for different

categories of wells based on their level of risk. As a result, the

proposed rule did not adequately address high-risk wells that threaten

public drinking water supplies. EPA now believes that specific

regulatory requirements are necessary to control the risks posed by

industrial waste disposal wells, motor vehicle waste disposal wells,

and large-capacity cesspools in delineated source water protection

areas, as described below. This belief was echoed in some of the public

comments received on the proposed rule and in recent stakeholder

meetings. Second, EPA believes that the 1995 proposed rule did not

provide for adequate public health protection nationwide. Specifically,

it did not establish a clear baseline program for states to follow and,

therefore, even though the authority exists, states could allow

inadequate controls in those situations where there is inadequate

information and/or inadequate resources to address Class V wells. On

the other hand, it has been suggested that the additional information

expected to be generated through the source water assessment program,

including an inventory of sources of contamination and an assessment of

the vulnerability of public water systems to such contamination could

strengthen the 1995 approach. If commenters wish to submit comments on

this issue they are welcome to do so.

4. 1996 Amendments to the Safe Drinking Water Act

The 1996 Amendments to the SDWA establish a new and flexible

approach to drinking water protection. In particular the Amendments

make source water protection a national priority. They create

requirements and incentives for Primacy states to assess their own

source waters, including the susceptibility of public water systems to

contamination, and to encourage states to establish source water

protection programs that fit their particular needs and conditions.

As discussed in more detail in section IV of today's preamble, EPA

believes it is necessary to re-propose Class V UIC regulations that are

integrated with these new programs for source water protection. For

example, today's proposal focuses on source water protection areas,

consistent with the national priority established by the 1996 SDWA

Amendments. Today's proposal also would provide incentives for states

to complete source water assessments in a timely manner, reinforcing

other actions the Agency is taking to achieve the goal of enhanced

protection of source waters.

5. 1997 Consent Decree With the Sierra Club

The Sierra Club Legal Defense Fund submitted comments on the 1995

proposed Class V rule alleging that the proposal failed to carry out

statutory

[[Page 40590]]

requirements. As noted above, based on these and other comments, EPA

decided to reconsider its proposed approach. Because this

reconsideration would extend the time necessary to complete the

rulemaking for Class V wells, EPA and the Sierra Club entered into a

modified consent decree on January 28, 1997 that extends the dates for

rulemaking that had been in the 1994 decree. The modified decree

requires three actions. First, by no later than July 18, 1998 (EPA used

one of its 30 day extensions to the original June 18, 1998 deadline),

the EPA Administrator must sign a notice to be published in the Federal

Register proposing regulatory action that fully discharges the

Administrator's rulemaking obligation under section 1421 of the SDWA

with respect to those types of Class V injection wells presently

determined to be high risk by the Administrator (based on the

additional study described below, other types of Class V wells may be

found to pose a high risk and warrant additional regulation later).

This notice must either (1) propose regulations fully implementing

section 1421 of the SDWA with respect to the types of Class V wells

currently known to pose a high risk, (2) propose a decision that no

further rulemaking is necessary in order to fully discharge the

Administrator's rulemaking obligation with respect to such high-risk

wells, or (3) propose regulations fully implementing section 1421 with

respect to some of these high-risk Class V wells, and propose a

decision that no further rulemaking is necessary in order to fully

discharge the Administrator's rulemaking obligations with respect to

the remaining high-risk Class V injection wells. According to the

consent decree, the Administrator must sign a final rulemaking for

high-risk Class V wells by no later than August 31, 1999. (Consent

Decree, Paragraphs 2a and 2b). Today's proposal has been developed in

response to this first required action and supersedes the 1995 proposal

with respect to these high-risk wells.

Second, by no later than September 30, 1999, EPA must complete a

study of all Class V wells not included in the rulemaking on high-risk

Class V injection wells (Consent Decree, Paragraph 2c). Based on this

study, EPA may find that some of these other types of Class V wells

also pose a high risk.

Third, by no later than April 30, 2001, the EPA Administrator must

sign a notice to be published in the Federal Register proposing to

discharge the Administrator's rulemaking obligations under section 1421

of the SDWA with respect to all Class V injection wells not included in

the rulemaking for currently identified high-risk Class V injection

wells. That proposal will supersede the 1995 proposal with respect to

all remaining Class V wells. The Administrator must sign a final

rulemaking for these remaining Class V wells by no later than May 31,

2002.

6. 1998 Stakeholder Meetings and Small Entity Outreach

To help shape today's proposal, EPA convened three stakeholder

meetings to inform potentially affected entities of the requirements

under consideration and to solicit feedback. One meeting was in

Washington, DC, on January 20, 1998, one was in Chicago, IL on January

27, 1998, and one was in San Francisco, CA on February 19, 1998.

As required by the Small Business Regulatory Enforcement Fairness

Act of 1996 (SBREFA), EPA also has conducted outreach directly to

representatives of small entities that would be affected by the

proposed rule. In consultation with the Small Business Administration

(SBA), EPA identified 17 representatives of small entities that were

most likely to be affected by the proposal. In December, 1997, EPA

prepared an outreach brochure titled ``Possible Changes to Class V UIC

Requirements: Information for Owners and Operators of Class V Injection

Wells'' (available for review in the public docket supporting today's

notice). This brochure was distributed to the small entity

representatives and EPA convened a two-hour conference call with these

representatives on January 15, 1998. Also in January, 1998, EPA

presented the new Class V requirements being considered to the SBA

Environmental Roundtable.

Efforts to identify and incorporate small entity concerns into this

rulemaking culminated with the convening of a Small Business Advocacy

Review Panel, as required by SBREFA. This Panel was headed by EPA's

Small Business Advocacy Chairperson with the Office of Policy, Planning

and Evaluation, and consisted of the Director of the Office of Ground

Water and Drinking Water within EPA's Office of Water, the

Administrator of the Office of Information and Regulatory Affairs

within the Office of Management and Budget, and the Chief Counsel for

Advocacy of the SBA. For a 60-day period starting in February 1998, the

Panel reviewed technical background information related to this

rulemaking, reviewed comments provided by small entity representatives,

and met on several occasions with EPA and the small entity

representatives to identify issues and explore alternative approaches

for accomplishing environmental protection goals while minimizing

impacts to small business. This process, along with the Panel's

findings and recommendations, are presented in the April 1998 ``Report

of the Small Business Advocacy Review Panel on the Revisions to the

Underground Injection Control Regulations for Class V Injection

Wells,'' available for review in the public docket supporting today's

proposal.

Today's notice incorporates all of the recommendations on which the

Panel reached consensus. In particular, the Panel recommended that the

proposal offer alternatives to the proposed ban of Class V motor

vehicle waste disposal wells. Therefore, in addition to the proposed

ban, today's notice presents a co-proposal in both the preamble and

proposed regulatory language, as well as another alternative that is

discussed in the preamble only (see section V.B of the preamble and

Sec. 144.84(b) and Sec. 144.86 of the proposed regulation). The Panel

also recommended that UIC Program Directors be allowed to extend the

time to comply with the new requirements from 90 days to up to a year

in certain situations. This recommendation has been adopted in today's

notice (see sections V.B and V.C of the preamble and Sec. 144.85(a) and

(I) and Sec. 144.86 of the proposed regulation). Other changes made in

response to Panel recommendations include the following: the proposed

definitions of industrial wells and drainage wells have been revised to

make sure wells intended for stormwater management are (subject to

certain conditions) regulated as drainage wells not industrial wells

(see section V.A of the preamble and Sec. 144.81(b) and (e) of the

proposed regulation); additional data and rationale have been added to

the preamble to support EPA's belief that motor vehicle waste disposal

wells in source water protection areas pose a high risk (see section

V.B.1); the preamble discussion of regulatory impacts has been expanded

to describe and solicit comments on the approach used to estimate the

type and number of small entities potentially subject to the rule (see

section VI.D); the proposed definitions of ``industrial'' and ``other

industrial'' wells have been revised to clarify that wells injecting

wastewater from carwashes qualify as industrial wells subject to the

rule only if specifically set up for engine or undercarriage washing

(see section V.A of the preamble and Sec. 144.81(b) and (l) of the

proposed regulation); the preamble has been revised to introduce a

report submitted by the National Funeral Directors Association on

funeral

[[Page 40591]]

home septic systems and to request comments on the merits of moving

such systems into the other industrial well category (see section V.A);

the preamble has been expanded to clarify that Class V wells at motor

vehicle service facilities may not be subject to the rule if motor

vehicle waste fluids are prevented from entering the well (see section

V.B.1); the preamble has been expanded to elaborate on the rationale

for and ask for comment on the proposed statewide coverage of the new

requirements in states that fail to complete their source water

assessments by May 2003 (see section IV.B.1 and 2); the preamble and

the supporting economic analysis have been revised to acknowledge and

account for the cleanup requirements that may be triggered by the

proposal to close certain Class V wells and to account for the likely

overlap between areas where Class V wells are located and source water

protection areas (see section V.B.1); the proposed regulatory language

has been expanded to identify ways well owners or operators can learn

if they are in a source water protection area (see Sec. 144.85(g)); and

the preamble has been expanded to explain the rationale for and ask for

comment on proposing monitoring requirements for motor vehicle waste

disposal wells but not industrial wells (see section V.B.3).

The Panel did not reach consensus on two issues. One issue

concerned the basis for regulation, with some Panel members questioning

whether EPA had an adequate basis to conclude that the non-regulatory

approach proposed in 1995 was inadequate. In response to this issue,

today's preamble includes additional discussion explaining why EPA now

believes the 1995 proposal is inadequate and why the proposed new

regulations are necessary (see section II.C.3).

The other issue concerned the proposed requirement for industrial

well injectate to meet MCLs at the point of injection, with some Panel

members suggesting the EPA consider the possibility of allowing the

injectate to meet some higher multiple of the MCL (e.g., 10 or 100

times the MCL) for certain contaminants under certain conditions, in

recognition of the fact that some contaminants are significantly

attenuated by percolation through soil prior to reaching the water

table, and most are diluted within the aquifer prior to reaching a

public water system. There are several research reports in the docket

which discuss the question of attenuation of volatile organic compounds

and metals in the soil, under various conditions. In addition, many

existing wells are designed in accordance with state and local

requirements to treat wastes before releasing them into the soil. These

Panel members suggested that for such contaminants (e.g., metals, which

generally do not travel far from the point of injection unless injected

directly into the water table) EPA should try to identify conditions

(e.g., soil type, water table depth, distance to nearest drinking water

well) that would allow injection of the contaminants without

endangering drinking water sources. In making this suggestion they

noted that to be workable, such conditions would have to be easily

verifiable. They also suggested that EPA consider expanding the

flexibility available under the permitting option for motor vehicle

wells to allow UIC Program Directors to permit discharges that exceed

an MCL at the point of injection if this would not endanger USDWs,

based on site specific circumstances.

EPA believes that its proposed approach to regulate cesspools,

automotive service station wells and industrial wells is consistent

with its long-standing interpretation of the statutory requirements to

assure the protection of underground sources of drinking water. EPA

also believes that developing a set of conditions within which a Class

V well owner or operator could inject waste that exceeds drinking water

standards without endangering drinking water sources would not be a

viable option for most small entities because of the difficulty and

expense involved in collecting the site-specific hydrologic, geologic,

and soil information necessary to determine if waste, above the MCL,

could be injected without endangering the underlying USDW.

Additionally, EPA questions whether it would be possible to develop

such conditions because of the difficulty of anticipating certain

events (such as high volume spills, illicit discharges, the siting of

new drinking water supplies wells, and improper system maintenance)

that could endanger underlying USDWs.

However, EPA is requesting comment on its position. Some commenters

have suggested that there are situations where a facility could inject

waste that exceeds some MCLs in source water protection areas without

endangering drinking water supplies. EPA believes these situations are

extremely rare and that, if allowed to inject above the MCL, the vast

majority of facilities would pose an endangerment to current and future

water supplies. EPA's proposed regulatory approach to require

facilities to meet MCLs is designed to be protective of public health.

Commenters are welcome to submit their views on whether or not they

agree with EPA's position. If commenters disagree with EPA's position

they should discuss specific contaminants and conditions for which an

alternative regulatory approach would be appropriate and provide data

supporting their position.

III. EPA Strategy for Class V Well Management

Today EPA is proposing an expanded Class V well management strategy

to resolve major issues raised in public comments on the 1995 proposal,

to embrace priorities and help achieve goals defined under the 1996

Amendments to the SDWA, and to fulfill the first phase of the Agency's

requirements under the 1997 consent decree with the Sierra Club.

As discussed in section II.B above, Class V wells are currently

authorized by rule as long as (1) they do not endanger USDWs, and (2)

the well owners or operators submit basic inventory and assessment

information. If a Class V well may endanger USDWs, UIC Program

Directors can require the injector to apply for a permit, order

preventive actions (including closure of the well) to prevent the

violation, require remediation to assure USDWs are protected, or take

enforcement action. These, and other existing, federal requirements and

authorities will continue as basic elements of EPA's Class V strategy,

applicable to all Class V wells in all areas.

Consistent with the 1997 decree, EPA is taking a step-wise approach

to supplement the existing program and ensure Class V injection wells

do not endanger USDWs. This approach consists of (1) an initial rule

creating additional requirements for high-risk Class V well types in

ground water-based source water protection areas; and (2) further study

of other types of Class V wells not covered in the initial rule to

provide the factual basis for further regulatory action, as necessary.

A. Initial Rule for High-Risk Well Types in Source Water Protection

Areas

As the first step of its Class V strategy, EPA is today proposing

to add requirements for three categories of Class V injection wells

determined to be the highest risk by the Administrator. The three

categories are: (1) motor vehicle waste disposal wells, (2) industrial

wells, and (3) large-capacity cesspools, when any of these wells are

located in source water protection areas delineated for community water

systems and non-transient non-community water systems that use ground

water as a

[[Page 40592]]

source.1 Source water protection areas, to be defined by

states in accordance with the 1996 Amendments to the SDWA, will

identify places critical for the protection of most public drinking

water supplies.

---------------------------------------------------------------------------

\1\ As defined in the drinking water regulations at 40 CFR

141.2, a ``community water system'' is a public water system that

serves at least 15 service connections used by year-round residents

or regularly serves at least 25 year-round residents. A ``non-

transient non-community water system'' is a public water system that

is not a community water system and that regularly serves at least

25 of the same people over six months a year. Non-transient non-

community water systems may include systems that provide water to

day care centers, government/military installations, manufacturers,

hospitals or nursing homes, office buildings, schools, and other

facilities. A ``transient non-community water system'' provides a

less regular source of water, such as to people visiting rest areas

and campgrounds.

---------------------------------------------------------------------------

In such delineated areas, today's proposal would ban new Class V

motor vehicle waste disposal wells, as well as new cesspools having the

capacity to serve 20 persons or more per day. Existing Class V motor

vehicle waste disposal wells in delineated areas would either be banned

or required to get a permit specifying that released fluids must meet

primary drinking water maximum contaminant levels (MCLs) at the point

of injection. Existing large-capacity cesspools in delineated areas

would have to be phased out within five years. Owners or operators of

Class V industrial wells in delineated areas would either have to close

their wells or make sure the fluids they inject meet the MCLs at the

point of injection.

As discussed later in this preamble, the conclusion that these

Class V wells pose a high risk when located in ground water-based

source water protection areas is based on substantial information and

the combined professional judgment of EPA and state geologists and

engineers that are responsible for implementing the Class V UIC

program. EPA requests comment on this position. Specifically, do

commenters believe that it is appropriate to designate motor vehicle

and industrial wells in delineated areas as high risk and regulate them

under this proposal or, alternatively, do commenters believe that there

is a better (i.e., more or less inclusive) categorization that EPA

could use to identify high risk wells? Commenters are encouraged to

provide data supporting their position.

Available information presented in the Report to Congress and

summarized in the 1995 proposal also suggests that there may be other

categories of Class V wells that pose a high risk. Individual wells in

any of the Class V categories also may endanger USDWs, depending on

fluids released into the wells and site-specific conditions. However,

available data regarding the risks posed by other Class V wells are

insufficient for EPA to conclude that additional federal regulation is

necessary at this time. Therefore, as the second step of the Class V

strategy, EPA will continue to study all of the categories of Class V

wells not addressed in today's proposal to determine the need for

additional regulations. In the meantime, EPA will continue to rule

authorize the other categories of Class V wells and actively control

them by implementing and enforcing the existing regulations. This will

include enforcing the Sec. 144.12 prohibition against the endangerment

of USDWs, calling individual problem wells in for a permit under

Sec. 144.25 authority, and requiring the submittal of additional

information deemed necessary to protect USDWs in accordance with

Sec. 144.27.

At the same time, EPA expects and strongly encourages states to use

existing UIC authorities to ensure all Class V wells are not

endangering USDWs. These efforts should not be limited to wells in

source water protection areas, which have received national priority

under this regulation. There may be other sensitive areas, outside of

delineated source water protection areas, that warrant more stringent

control on a state or local level. Nothing in this rule precludes a

state or local government from promulgating more stringent requirements

above and beyond existing UIC authorities.

B. Further Study of Additional Class V Well Types

The second step in the strategy will involve continuing study to

assess the size and impact of the Class V well universe not addressed

by today's proposal. Other types of Class V wells are not covered by

today's proposal because more information is needed to determine

whether additional federal regulation for these other well types is

necessary, and if so, what that additional regulation should entail.

Therefore, EPA will undertake further study to assess risks, fill

existing information gaps, and provide a factual basis for any further

regulatory action.

IV. Integration of the Class V Rule With the Source Water

Assessment Program

Today's proposal has been developed to productively use and promote

linkages between the Class V UIC program and EPA's developing source

water assessment program. Both programs are authorized by the SDWA. The

UIC Program is designed to protect all current and potential USDWs from

pollution by injection wells. The source water assessment program is

structured to identify all potential sources of contamination within

areas that now provide short-term recharge to public water supply wells

and surface water intakes.

A. Overview of the Source Water Assessment Program

Section 1453 of the SDWA Amendments of 1996 (Pub. L. 104-182)

establishes a new requirement for source water assessments. EPA

published guidance describing how the states should carry out a source

water assessment program within the state's boundaries. The final

guidance, entitled State Source Water Assessment and Protection

Programs Guidance (EPA 816-R-97-009), was released in August 1997 and

is available in the docket for today's proposal.

Source water assessment programs comprise essentially the first

three steps of a full prevention program. First, a program must

delineate the boundaries of the assessment areas in the state from

which one or more public drinking water systems receive supplies of

drinking water. In delineating these areas, states must use ``all

reasonably available hydrogeologic information on the sources of the

supply of drinking water in the state and the water flow, recharge, and

discharge and any other reliable information as the state deems

necessary to adequately determine such areas.'' Second, the state must

identify contaminants of concern, and for those contaminants, the state

must inventory significant potential sources of contamination in

delineated source water protection areas. Third, the state must

``determine the susceptibility of the public water systems in the

delineated area to such contaminants.''

States must submit their proposed source water assessment programs

to EPA no later than 18 months after publication of the Source Water

Assessment and Protection Programs Guidance, which would be February

1999. EPA then has nine months, until November 1999, to approve or

disapprove the submitted state program. Once approved, a state should

complete its source water assessments by no later than November 2001,

or if EPA grants an extension, by May 2003. For purposes of this

proposed rule, a state program is considered complete when the state

program has been approved by EPA and all its local assessments for

community and non-transient non-community water systems have been

completed. This means that all local assessments within a state have

[[Page 40593]]

performed the three required steps of delineation, source

identification, and susceptibility analysis. This proposed rule does

not regulate wells within the source water protection areas for

transient non-community water systems. Therefore, for purposes of this

proposed rule, assessments for these systems do not have to be

performed for the state program to be considered complete.

Other features of the program include the new section 1452 grant

program, which established the Drinking Water State Revolving Fund.

Grants under section 1452 may be used to assist the states in financing

the source water assessment program and most states have elected to use

the grants for this purpose. In addition, connections between the

source water assessment program and relief from the contaminant

monitoring requirements of the SDWA provide an incentive for states to

complete implementation of the source water assessment program within a

relatively short (two-year) timetable. For a state to tailor

alternative monitoring requirements for public water systems under a

new permanent monitoring relief provision contained in the 1996

Amendments, a state must have an EPA-approved source water assessment

program. Moreover, any public water system seeking alternative

monitoring requirements under a state's permanent monitoring relief

authority must have a complete source water assessment.

Section 1453 expresses Congress' intent that states use data

generated under other programs. To avoid duplication and encourage

efficiency, the source water protection area delineation and source

identifications are specifically encouraged to make use of any of the

following: vulnerability assessments, sanitary surveys, and monitoring

programs; delineations or assessments of ground water sources under a

state wellhead protection program; delineations or assessments of

surface or ground water sources under a state pesticide management

plan; delineations or assessments of surface water sources under a

state watershed initiative or to satisfy the watershed criterion for

determining if filtering is required under the Surface Water Treatment

Rule; and delineations or assessments of surface or ground water

sources under programs or plans pursuant to the Federal Water Pollution

Control Act.

B. Class V Rule Focus on Source Water Protection Areas

1. Proposal

Today's proposal focuses on source water protection areas as a key

element for the protection of USDWs. Areas delineated under a state

source water assessment program represent, at a minimum, areas

designated to receive top priority for the protection of public

drinking water supplies. Consistent with this prioritization, this rule

would target the high-risk Class V wells in delineated source water

protection areas for public water systems that use ground water as a

source.

Figure 1 shows how the proposed Class V rule would be linked with

the source water assessment program in terms of major milestones and

areas covered. According to the 1997 consent decree with the Sierra

Club (as modified), the new Class V requirements would be finalized by

August 1999. The requirements would then become effective in DI

Programs within 60 days, or by October 1999. Primacy States would have

270 days, or until May 2000, to submit for EPA's approval any program

revisions needed to implement the new requirements. Assuming it takes

three months for EPA to approve these revisions, the new requirements

would become effective in Primacy States by August 2000. If the source

water assessment program in a state is complete by the effective date

of the rule (either October 1999 for DI Programs or around August 2000

for Primacy States), the new requirements would apply only to

delineated source water protection areas. If some but not all local

assessments in a state have been completed by that time, meaning that

the state program is not complete, then the new requirements would

apply to delineated areas where local assessments are complete. If all

local assessments are not done by May 2003, which is the time by which

state programs should be complete according to the State Source Water

Assessment and Protection Programs Guidance, the new Class V

requirements would apply statewide because there would be no way of

knowing which wells in the state pose the highest risk. A possible

exception would be if a state completed local source water assessments

in one geographic area, the state would know which wells within that

specific geographic area pose the highest risk.

The requirements would apply statewide permanently, even if a state

completed its source water assessment program at some later time after

May 2003. EPA realizes that some commenters may think that it is

unreasonable, unfair, or unnecessary to permanently apply the new

requirements statewide if a state's source water assessment program is

not complete by May 2003, but is completed some time later. However,

EPA believes this is the best approach for two reasons. First, this

approach would provide a strong incentive for states to establish and

complete a source water assessment program in a timely manner,

consistent with the goal under the 1996 SDWA Amendments. Second,

applying the requirements statewide starting in May 2003 and then

changing to apply the requirements only to delineated areas when

programs are completed some time afterward would be very confusing and

difficult to implement, both for well owners or operators and for UIC

regulatory agencies. EPA believes this confusion and difficulty would

ultimately result in the new requirements not being implemented

effectively to ensure the protection of USDWs. The next section of this

preamble on alternatives provides further discussion of a permanent

statewide ban and possible alternative approaches. It should be noted,

however, that with the exception of Wyoming and Indian Country as

discussed below, EPA fully expects states to meet the deadline because

the ground water component of source water assessment programs is

likely to be based on the Wellhead Protection Programs already

established in most states. Therefore, the point is expected to be moot

in most places.

BILLING CODE 6560-50-P

[[Page 40594]]

[GRAPHIC] [TIFF OMITTED] TP29JY98.000

BILLING CODE 6560-59-C

[[Page 40595]]

The situation is more complicated in Wyoming and Indian Country

because the State of Wyoming and Tribes do not have primacy for the

public water system program and, as such, are not required to conduct

source water assessments. Therefore, the proposed Class V UIC

requirements would apply throughout Wyoming and Indian Country unless

the EPA Regional Offices worked with the State and Tribes to delineate

source water protection areas and implement other source water

assessment activities. Alternatively, EPA's Source Water Guidance

recommends that each Tribe implement a source water assessment program

``to the extent appropriate resources are available to do so.'' Tribes

may either establish and implement their own program and submit it to

EPA for approval, or they may participate in a state program as an

alternative to, or in conjunction with, their own program. It is

uncertain, however, which Tribes are likely to participate in source

water assessment activities and to what extent.

States must delineate source water protection areas for: (1) Public

water systems based solely on ground water; (2) public water systems

based solely on surface water; and (3) public water systems using both

ground and surface water, or systems using ground water that is

influenced by surface water. In addition, states must delineate source

water protection areas for: (1) Community water systems; (2) non-

transient non-community water systems; and (3) transient non-community

water systems. The requirements in today's proposal would apply to

Class V cesspools, motor vehicle waste disposal wells, and industrial

wells in source water protection areas delineated for community water

systems and non-transient non-community water systems that use ground

water as a source. For the purpose of today's proposal, this would

include such systems that have at least one ground-water source that

contributes to their annual water supply.

This focus on ground water, rather than surface water, is

consistent with the scope of the UIC program to protect underground

sources of drinking water. Moreover, based on EPA's most recent

Community Water System Survey (EPA 815-R-97-001a, January 1997, page

6), almost 80 percent of community water systems use primarily ground

water. Less than 10 percent of systems surveyed primarily use surface

water sources.

EPA believes the focus on community water systems and non-transient

non-community systems is justified based on the risks involved and the

purpose of this rule. According to the most recent survey, community

systems and non-transient non-community systems supply drinking water

to 93 percent and 2 percent of the U.S. population, respectively

(Community Water System Survey, EPA 815-R-97-001a, January 1997, page

5). In addition, the people relying on transient non-community water

systems, such as at rest areas or campgrounds, do not drink water from

the same system on a regular basis. Any exposure to contamination in a

given system, therefore, tends to be one time or infrequent, as opposed

to the chronic exposure and potentially significant risk associated

with the consumption of contaminated water from community systems and

non-transient non-community systems. Since most of the contaminants

found in wells covered by today's proposal pose chronic, not acute

risks, it would take repeated exposure to these contaminants for

adverse health effects to be realized. Repeat exposure does not occur

in transient systems. The purpose of today's rule is to address

designated high-risk wells for which additional information is

unnecessary. Given the limited exposure at transient systems, EPA does

not believe that wells within delineated areas for such systems are

categorically ``high risk'' and thus they are not part of today's rule.

The Agency recognizes, however, that there may be instances in

which pathogens in untreated sanitary waste released into Class V

cesspools could contaminate the water supply source for a transient

system and pose an ``acute'' risk if consumed (meaning there could be a

serious health risk given the nature and high level of contamination,

despite the fact that the water is not regularly consumed). This would

be a concern only if a Class V cesspool were in a location and

hydrogeologic setting that would permit pathogens to migrate to a

ground water supply well that serves a transient system, and then, only

if there were no (or inadequate) disinfection of the water prior to it

being consumed. EPA believes these circumstances are in fact limited

because of the small number of large capacity cesspools that still

exist. Nevertheless, to further limit the acute risk associated with

large-capacity cesspools, EPA could expand today's proposed cesspool

requirements to source water protection areas delineated for transient

non-community systems that use ground water as a source, in addition to

such areas for community water systems and non-transient non-community

water systems. EPA requests comment on the merits and potential impacts

of including transient systems within the scope of the proposed

requirements for cesspools. Based on such comment, EPA may adopt that

approach in the final rule.

EPA underscores that this initial rule targets certain source water

protection areas for the purpose of prioritizing national policy. The

rule does not establish differential levels of protection for different

areas, but rather proposes specific measures EPA believes are necessary

to ensure that high risk Class V wells do not endanger USDWs in the

highest priority areas. The prohibition against endangerment of USDWs,

found in Sec. 144.12 of the existing UIC regulations, would continue to

apply to all Class V wells and all areas, whether or not a state has a

completed source water assessment program. Section 144.12(a) in

particular provides that no injection-related activity may be conducted

``in a manner that allows the movement of fluid containing any

contaminant into underground sources 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.'' Similarly, Sec. 144.12(c) and (d) authorize a

variety of actions if a Class V well may cause a violation of primary

drinking water regulations or otherwise adversely affect the health of

persons.

In addition to Sec. 144.12, other existing UIC authorities would

continue to be available to control Class V wells on a case-by-case

basis, as needed to protect USDWs in any area. These can include

requiring a permit under Secs. 144.25 and/or requiring submission of

additional inventory information under Sec. 144.26. In states with EPA-

administered programs, the inventory requirements under Sec. 144.26 can

be supplemented by additional information requirements, including

ground water monitoring, analysis of injected fluids, or submission of

geologic information under Sec. 144.27.

EPA expects and strongly encourages states to use these existing

authorities to take whatever measures are needed to ensure Class V

wells are not endangering USDWs in any other sensitive areas beyond

delineated source water protection areas. Examples of other sensitive

areas include areas overlying sole-source aquifers, highly productive

aquifers supplying private wells, continuous and highly productive

aquifers at points distant from public water supply wells, areas where

water supply aquifers are recharged, karst aquifers that discharge to

surface reservoirs serving as public water supplies, susceptible or

sensitive hydrogeologic settings (e.g., glacial

[[Page 40596]]

outwash deposits, eolian sands, and fractured volcanic rock), and areas

of special concern selected based on a combination of factors, such as

hydrogeologic sensitivity, prevailing land-use practices, and

documented ground water contamination. If believed to be necessary,

states should apply the same requirements proposed in this rule to

these and other areas and/or to other Class V wells. Nothing in this

rule precludes a state or local government from promulgating more

stringent requirements above and beyond the existing UIC authorities.

2. Alternatives

The Agency requests public comments on whether the new Class V

regulations should apply to areas beyond delineated source water

protection areas, or even apply statewide, in order to ensure

protection of USDWs in other locations. Although the Agency recognizes

the merits of this approach, it is not preferred because it would

uniformly impose stringent new requirements for motor vehicle waste

disposal wells, large-capacity cesspools, and industrial wells in all

areas even though such requirements may not be needed to protect USDWs

in all cases. EPA notes that states are already required to take

appropriate actions to prevent endangerment of USDWs from Class V UIC

wells in any part of the state where such endangerment may occur. In

fact, the Agency strongly encourages states to take appropriate action

using existing authorities to control Class V wells in other areas.

Finally, the proposed requirements would apply statewide if a state

does not have a complete source water assessment program by May 2003.

This would ensure adequate protection in all areas when a state has not

studied and defined areas that warrant the greatest protection.

EPA also requests comments on the merits of broadening the scope of

the additional requirements to other kinds of delineated source water

protection areas. This could include areas delineated around public

water systems using surface water recharged by ground water, or

transient non-community water systems that depend on at least one

ground-water source. As discussed above, EPA does not believe these

options are needed in this first phase of the Class V UIC rulemaking.

EPA also requests that commenters provide suggestions and ideas for

alternatives to permanently applying the new requirements statewide if

a state's source water assessment program is not complete by May 2003.

Several commenters during the SBREFA process believed this proposed

approach would unfairly impose a burden on some injection well owners

or operators, who are not endangering drinking water supplies, because

of a state's failure to comply with applicable deadlines. In order for

any alternative to be viable, it would have to be effective in

accomplishing the overall objective of protecting USDWs. Certain

advantages of the proposed approach include: the fact that it ensures

protection in the event new public water supply systems are created

outside areas currently delineated, and it provides a strong incentive

for timely completion of source water assessment programs.

Nevertheless, EPA recognizes there may be other approaches. One

alternative could be to give UIC Program Directors the flexibility to

extend the statewide ban date beyond May 2003 if states submit, before

that time, a plan demonstrating that their source water assessment

program is ``substantially'' (e.g., 80 to 90 percent) complete and

showing how they are making steady progress toward completion. This

approach, however, would not necessarily buy time for Wyoming or

Tribes, which do not have primacy responsibility for conducting source

water assessment programs and may not delineate their source water

protection areas. EPA requests comments on the merits of this

alternative and any other equally protective alternatives.

C. Other Connections Between the Class V Rule and Source Water

Assessment Program

The proposed Class V rule and state source water assessment

programs will have at least two other potentially beneficial mutual

connections. First, as states carry out the source identification and

susceptibility analysis required as the second and third steps of the

source water assessment program, Class V well inventories and

hydrogeological information developed under authorities such as

Sec. 144.27 will provide substantial inputs into the source water

assessment programs of some states. The Class V program will provide an

important means of both identifying and controlling risks in the

delineated source water protection areas.

Second, grants under section 1452, which established the Drinking

Water State Revolving Fund mentioned above, may also be used to finance

a range of state activities related to public supplies of drinking

water. A state may use up to 10 percent of its allotment for grants

under Sec. 1452 (with a 1:1 dollar state match) to support its state

drinking water program, and to develop and implement a source water

protection program, a capacity development program, and an operator

certification program. These funds can be used for state activities

under the UIC program to manage Class V wells, which may be in wellhead

protection areas of public water supplies. In addition, up to 15

percent of the capitalization grant is available for local assistance

and certain other eligible activities described in the SDWA, including

delineation and assessment of source water protection areas (provided

that each activity separately receives no more than 10 percent of the

grant amount). The total amount appropriated for the Drinking Water

State Revolving Fund Program for fiscal years 1997 and 1998 is $2.0

billion.

V. Proposed Class V Well Requirements

A. Categories of Class V Wells

Class V injection wells are generally shallow waste disposal wells,

stormwater and agricultural drainage systems, or other devices 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. While

such designs may be adequate for the treatment of sanitary waste, they

may not be appropriate for the disposal of industrial waste or other

fluids, although they are sometimes used for this purpose. Some types

of Class V wells may include other types of treatment systems, such as

oil water separation tanks, which are designed to treat certain types

of industrial waste.

Today, EPA is proposing to retain the current definition of Class V

wells. However, the current 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 1987 Report to Congress on Class V

wells. The Report to Congress drew distinctions between 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

[[Page 40597]]

the appropriate management scheme. Therefore, for today's proposal, the

Agency has grouped Class V wells in 12 more appropriate categories that

combine together wells that are mostly similar both in terms of the

nature of fluids they inject and their potential to endanger USDWs.

The 12 general categories of Class V wells are defined in

Sec. 144.81 of today's proposed regulation. Table 2 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.

There are two major differences between the categories proposed

today and the ones proposed in 1995: motor vehicle waste disposal wells

and ``other industrial'' wells have been removed from the industrial

well category proposed before and separated into their own categories.

This makes it easier to tailor Class V regulations to the different

types of wells based on their relative risk potential. In particular,

motor vehicle waste disposal wells would be defined more precisely for

the purpose of targeting additional requirements for this category of

wells. In addition, carving out the other industrial wells creates a

smaller and less diverse category of Class V industrial wells than

defined in the August 28, 1995 proposal. The wells remaining in the

industrial category in today's proposal--including wells at carwashes

where engine or undercarriage washing is performed, industrial process

water and waste disposal wells, and industrial drainage wells--are more

likely to pose a high risk and are more amenable to control through one

national minimum requirement than the broader category proposed before.

Insufficient information is presently available to conclude that the

other industrial wells should be banned, as EPA is proposing for motor

vehicle waste disposal wells, or should be required to meet a standard

on injectate quality, as EPA is proposing for Class V industrial wells.

Instead, EPA proposes to enforce the general non-endangerment

provisions in Sec. 144.12 for other industrial wells and, if necessary

to protect USDWs, require owners or operators to submit specific

information under Sec. 144.27 or obtain a permit under Sec. 144.25.

Under the second step of EPA's Class V strategy discussed above, EPA

also will study the other industrial wells further and address them in

another regulatory action, if necessary based on the findings of that

study.

Table 2.--Categories of Class V Injection Wells

----------------------------------------------------------------------------------------------------------------

Corresponding injection

Category in today's proposal Injection wells in Current Sec. 146.5 wells in 1987 report to

category Congress

----------------------------------------------------------------------------------------------------------------

Beneficial Use (Sec. 144.81(f)). Aquifer recharge......... (e)(6).................. 5R21 (Aquifer Recharge).

Salt water intrusion (e)(7).................. 5B22 (Saline Water

barrier. Intrusion Barrier).

Subsidence control....... (e)(10)................. 5S23 (Subsidence

Control).

Aquifer storage and Not listed.............. Not addressed as

recovery. separate category.

Subsurface environmental (e)(6).................. 5X26 (Aquifer

remediation. Remediation Related).

Fluid Return (Sec. 144.81(g))... Wells used to inject (e)(14)................. 5X16 (Spent-brine Return

spent brines after the Flow).

extraction of minerals

from produced fluids.

Wells used to inject heat (e)(1).................. 5A7 (Heat Pump/Air

pump return fluids. Conditioning Return

Flow), 5A6 (Direct Heat

Return).

Wells used to inject (e)(12)................. 5A5 (Electric Power

fluids that have Return), 5A8 (Ground

undergone chemical Water Aquaculture

alteration during the Return Flow).

production of geothermal

energy for heating,

aquaculture, or

production of electric

power.

Sewage Treatment Effluent (Sec. Wells used to inject Not listed.............. 5W12 (Domestic

144.81(h)). treated effluent from Wastewater Treatment

POTWs, or privately Plant Effluent

owned treatment works Disposal).

receiving solely

sanitary waste.

Cesspools (Sec. 144.81(c))...... Cesspools having the (e)(2).................. 5W9 (Untreated Sewage

capacity to serve 20 Waste Disposal), 5W10

persons or more per day (Cesspools).

and used solely for the

subsurface emplacement

of sanitary waste.

Septic Systems (Sec. 144.81(d)). Septic tank and fluid (e)(9).................. 5W11 (Septic Systems--

distribution system Undifferentiated

having the capacity to Disposal), 5W32 (Septic

serve 20 persons or more Systems--Drainfield

per day and used solely Disposal), 5W31 (Septic

for the subsurface Systems--Well

emplacement of sanitary Disposal).

waste.

Experimental Technology (Sec. Wells used as part of (e)(15)................. 5X25 (Experimental

144.81(I)). unproven subsurface Technology).

injection technologies

other than waste

disposal.

Drainage (Sec. 144.81(e))....... Wells used to drain (e)(4).................. 5D2 (Stormwater

surface and subsurface Drainage), 5F1

fluids, including (Agricultural

agricultural drainage Drainage), 5D3

and stormwater runoff (Improved Sinkholes),

that may have the 5G30 (Special

potential to receive Drainage), 5X29

insignificant amounts of (Abandoned Drinking

waste due to small Water Wells, if used

volume leaks, drips, or for the subsurface

spills. emplacement of

stormwater).

Mine Backfill and Drainage (Sec. Wells used to inject (e)(8).................. 5X13 (Mining, Sand, or

144.81(j)). materials into mined out Other Backfill).

portions of subsurface

mines, whether what is

injected is a

radioactive waste or

not, including (1)

slurries of sand,

gravel, cement, mill

tailings/refuse, fly

ash, or other solids,

and (2) mine drainage.

In Situ and Solution Mining (Sec. Wells used to inject (e)(13), (e)(16)........ 5X14 (Solution Mining),

144.81(k)). fluids for the purpose 5X15 (In situ Fossil

of producing minerals or Fuel Recovery).

energy, which are not

Class II or III wells.

[[Page 40598]]

Motor Vehicle Waste Disposal Wells used to inject (e)(5).................. 5X28 (Automobile Service

(Sec. 144.81(a)). fluids from motor Station Disposal).

vehicle repair or

maintenance activities,

such as an auto body

repair shop, automotive

repair shop, car

dealership, specialty

repair shop (e.g.,

transmission and muffler

repair shop), or any

facility that does any

vehicular repair work.

Other Industrial (Sec. Wells used to inject (e)(5).................. Not addressed as

144.81(l)). fluids from carwashes separate category.

where no engine or

undercarriage washing is

performed.

Wells used to inject (e)(3).................. 5A19 (Cooling water

noncontact cooling water return flow).

that contains no

additives and has not

been chemically altered.

Wells used to inject (e)(5).................. Not addressed as

fluids from laundromats separate category.

where no onsite dry

cleaning is performed or

where no organic

solvents are used for

laundering.

Wells used to inject (e)(5).................. Not addressed as

wastewater from food separate category.

processing operations.

Industrial (Sec. 144.81(b))..... Wells used to inject non- (e)(5).................. 5W20 (Industrial Process

hazardous wastewaters Water and Waste

generated by industrial, Disposal), 5D4

commercial, and service (Industrial Drainage),

establishments and that 5X17 (Air Scrubber

are not included in one Waste Disposal), 5X18

of the above categories; (Water Softener

these include wells used Regeneration Brine

to inject fluids from Disposal), 5X29

carwashes where engine (Abandoned Drinking

or undercarriage washing Water Wells, if used

is performed. for the subsurface

emplacement of

industrial or

commercial wastes not

injected in one of the

above categories of

wells), 5X27 (Other).

----------------------------------------------------------------------------------------------------------------

The fourth type of other industrial well listed in Table 2--wells

used to inject wastewater from food processing operations--will receive

special attention in the ongoing study of Class V wells. As a group,

EPA believes most of these wells pose a lower risk than the industrial

wells that would be regulated under today's proposal, because the

injectate is primarily food rinsewater or equipment washdown water

containing small quantities of food particles and relatively low

concentrations of contaminants. The Agency recognizes, however, that

there may be other wells in this group that pose a higher risk, such as

wells that inject brine from pickling operations, nutrient-rich

wastewater from potato processing plants, and so forth. EPA presently

has very little information on these wells. Therefore, they will be

examined more closely in the study to determine whether additional

federal regulation is needed, and if so, what that additional

regulation should entail. In the meantime, if UIC Program Directors

have information that any individual wells that fall in this category

do pose a threat, they can use the existing UIC authorities discussed

above to ensure protection of USDWs.

During the development of this proposal, the National Funeral

Directors Association (NFDA) recommended that the other industrial well

category be broadened to include Class V septic systems operated by

funeral homes. This would move these wells out of the industrial well

category, where they fit in today's proposal, and thus remove them from

the proposed requirement to meet MCLs at the point of injection. In

support of this recommendation, NFDA submitted to EPA a report titled

Septic System Treatment of Funeral Home Wastewater, March 18, 1998

(copy available for review in the docket). According to NFDA, this

report shows that only three preservative compounds with potential

human health concerns--formaldehyde, methanol, and phenol--are likely

to be found in funeral home wastewater in concentrations that exceed

health-based levels (MCLs are not available for these chemicals). The

report concludes that these compounds are generally adequately treated

in septic systems such that concentrations exceeding the health-based

levels do not exit the system. NFDA stated that it is unaware of any

incidence of contamination of USDWs by funeral home septic systems.

Today's proposal does not include septic systems operated by

funeral homes in the other industrial well category, because EPA needs

additional time to evaluate the data submitted by NFDA and determine

whether such a classification of funeral home wells is warranted. EPA

requests comment and additional data on the proper classification of

funeral home septic systems. Specifically, EPA requests comment on the

information contained in the NFDA report as well as comment and

information on any important topics that are not addressed in the NFDA

report but have a bearing on this decision. Based on public comment and

data, EPA may classify these wells as other industrial wells which are

outside the scope of this rulemaking.

Additional discussion is needed to clarify how stormwater drainage

wells are categorized in today's proposal. As shown in Table 2, wells

used to drain stormwater runoff would be classified as drainage wells

(not subject to new requirements under today's proposal), while

industrial drainage wells would be classified as industrial wells

(subject to the proposed new requirement to meet MCLs at the point of

injection). The industrial drainage well category, however, does not

include Class V wells intended for stormwater management that may have

the potential to receive insignificant amounts of waste due to

unintentional small volume leaks, drips, or spills and that cannot

reasonably be separated from potential sources of contamination. Such

wells, even if they were located at a commercial or industrial site,

would be classified as stormwater drainage wells and excluded from the

new regulation. In this context, ``cannot reasonably be separated''

means a well that cannot be moved farther away or uphill from a

potential source

[[Page 40599]]

of contamination (e.g., due to property boundaries, site layout, or

other physical constraints) and cannot be separated from a source by

berms, dikes, or drainage ditches and still perform the function of

draining stormwater runoff from a site. For example, a well at a gas

station would be considered a stormwater drainage well, not an

industrial well, if it is located reasonably far away from the gas

pumps in a downhill direction and only drains stormwater runoff

occasionally contaminated with insignificant amounts of gas due to

unintentional small volume leaks, drips, or spills at the pumps.

However, a well at a gas station or other commercial or industrial site

that is in position to directly receive bulk spills of materials or

wastes, or to receive highly contaminated runoff due to large leaks or

spills, would be classified as an industrial drainage well, even if the

well is intended for stormwater management.

EPA requests comment on this proposed treatment of stormwater

drainage wells. The Agency is attempting to reasonably distinguish

between a well at a commercial or industrial site that routinely

receives highly contaminated drainage or is susceptible to significant

spills of chemicals or wastes, and a well at a commercial or industrial

site that is intended for stormwater management but also may receive

the unintentional insignificant leaks, drips, or spills that are

commonly contained in street runoff. If these two kinds of wells can be

distinguished, the wells that are more like industrial wells could be

regulated like industrial wells and the wells that are more like

stormwater management wells could be regulated like drainage wells. EPA

realizes, however, that it may not be practical to make this

distinction, potentially allowing some endangering drainage wells at

commercial or industrial sites to escape the additional regulations

proposed today. EPA also realizes that the proposed categorization may

be at odds with the programs currently being implemented by existing

UIC authorities. Therefore, the Agency requests that commenters

specifically address the merits and potential impact of the proposed

categorization. Based on these comments, EPA may classify all drainage

wells at commercial or industrial sites as industrial wells in the

final rule.

Finally, wells used to inject fluids from carwashes are in one of

two categories depending on whether the carwashes perform engine or

undercarriage washing. Only those wells at car washes that are

specifically set up to perform engine or undercarriage washing are

considered to be Class V industrial wells under the proposed rule.

Wells at coin-operated, manual carwashes where people use hand-held

hoses to wash only the exteriors of vehicles would be classified as

other industrial wells, as would those at any other vehicle washing

facility not set up to perform engine or undercarriage washing. The

cleaning solutions used at these carwashes generally consist of soap

solutions, rinsewater, and wax, and do not contain degreasing agents or

solvents such as methylene chloride or trichloroethylene. As a result,

the spent washwater disposed in a carwash well that qualifies as

another industrial well primarily contains detergents, road salts,

sediments, and incidental contaminants that may be washed from a

vehicle's exterior, comparable to typical stormwater runoff.

B. Requirements for Motor Vehicle Waste Disposal Wells

As discussed below, EPA is co-proposing two approaches for

regulating Class V motor vehicle waste disposal wells in ground water-

based source water protection areas: (1) A ban of new and existing

wells in such areas; and (2) a ban of new wells and a provision giving

owners or operators of existing wells an opportunity to apply for a

waiver from the ban by seeking a permit that requires fluids to meet

MCLs at the point of injection. EPA also is soliciting comment on a

specific alternative to these proposed approaches. As recommended by

some members of the Small Business Advocacy Review (SBAR) Panel, the

preamble also seeks comment on the issue of allowing waste to be

injected, in certain situations, that exceeds some MCLs at the point of

injection. EPA does not support this concept because it believes that

injecting waste above the MCLs within source water protection areas

would pose a threat to the public that is drinking this water.

1. Proposal to Ban New and Existing Wells

As one option, EPA proposes to ban motor vehicle waste disposal

wells in source water protection areas delineated for ground water

supplying community water systems and non-transient non-community water

systems. Starting on the effective date of the rule, owners or

operators of such existing wells would be required to cease injection

operations and close their well within 90 days of the completion of the

local source water assessment program responsible for their area. The

UIC Program Director would be allowed to extend this deadline for up to

one year in situations where the most efficient compliance option is

connection to a sanitary sewer or installation of new treatment

technology. UIC Program Directors also would have additional

flexibility to extend the deadline for a reasonable amount of time

beyond a year through compliance agreements with owners or operators of

existing wells. Additionally, UIC Program Directors could use

compliance agreements to extend the 90-day deadline in cases where an

owner/operator is waiting for the permitting authority to act on an

application for a waste disposal permit. New motor vehicle waste

disposal wells, and new conversions to such wells, in those delineated

areas would be prohibited starting on the effective date of the rule.

For the purpose of the Class V regulations, an ``existing'' well would

be one that is operational or under construction when the rule becomes

effective. A new well or new conversion would be anything starting

construction after the rule's effective date. If a state does not have

a complete source water assessment program by May 2003, the ban would

apply throughout the state.

As discussed above, EPA proposes to focus this initial rule on

certain source water protection areas for the purpose of defining a

category of high risk wells and prioritizing national policy. The rule

would establish specific measures to ensure that this category of Class

V wells do not endanger USDWs in the highest-priority areas. All

existing Class V authorities, including the prohibition against

endangering USDWs in Sec. 144.12 and the authority to call problem

wells in for a permit under Sec. 144.25, would continue to apply in all

areas. EPA expects and strongly encourages states to use these existing

authorities to take whatever measures are needed to ensure all Class V

wells are not endangering USDWs in any other sensitive areas beyond

delineated source water protection areas. Examples of other sensitive

areas that may warrant priority attention are provided in section

IV.B.1 above. Nothing in this proposed rule precludes a state or local

government from promulgating more stringent requirements above and

beyond those contained in the rule.

The proposal to ban motor vehicle waste disposal wells located in

source water protection areas is based on the high potential for these

wells to endanger USDWs. Available information and damage cases,

combined with years of experience implementing the Class V UIC program,

[[Page 40600]]

show that these wells stand out as particularly troublesome.

There are approximately 183,000 automotive-related disposal wells.

These wells are located in every state in the country--mainly in

populated areas--at a variety of facilities, such as automobile service

stations, car dealerships, automotive repair shops, and specialty

repair shops (e.g., transmission shops, muffler shops, body shops).

They tend to be shallow, with injection occurring into or above USDWs.

They also tend to be uncased, which could allow contaminated fluids to

move more easily into USDWs. Given all of these factors, the quality of

fluids they inject becomes very important in determining whether these

wells are a threat to USDWs.

Although the development and use of best management practices

(BMPs) by the automotive industry have improved recycling and waste

disposal practices over the past decade, EPA is concerned that there

are motor vehicle-related facilities which inject fluids with little or

no treatment. These fluids, which may be injected intentionally for

waste disposal or accidentally as a result of spills or leaks, include

spilled gasoline and oil, waste oil, grease, engine cleaning solvents,

brake and transmission fluids, and antifreeze. Such fluids contain

potentially harmful contaminants, often in high concentrations. For

example, fluids containing waste oils or gasoline generally include

benzene, toluene, xylenes, and other volatile contaminants. Waste oils

and antifreeze also contain some priority pollutant heavy metals, such

as barium, cadmium, chromium, and lead. Other contaminants that may be

injected include methylene chloride, a compound found in many

degreasers, and ethylene glycol, a component of antifreeze. All of

these contaminants can be toxic above certain levels. Some, such as

benzene and toluene, have the potential to cause cancer.

Data collected for the 1987 Report to Congress and from later EPA

Regional investigations indicate that fluids being injected may exceed

health-based limits for contaminant levels in water by 10 to 100 times

(see p. 5-19 of the August 1989 Class V Task Force Report available in

the docket). These data were confirmed for a number of motor vehicle

service stations during the implementation of a 1991 National

Administrative Order addressing failures to submit inventory

information required under 40 CFR 144.26 and 146.52(a). Analyses of

fluids disposed at a group of facilities subject to this order found a

total of 13 contaminants present in concentrations above the drinking

water MCL, although not all contaminants exceeded the MCL in every

sample at every facility (see Data from the National Administrative

Order on Motor Vehicle Waste Disposal Wells, March 16, 1998, available

in the docket). For example, benzene concentrations exceeded the

drinking water MCL at 19 of the 20 facilities tested and in 32 of 35

samples analyzed. The highest measured benzene concentration was 40

times the MCL. Similarly, arsenic exceeded the MCL at 11 of 17

facilities and in 18 of 30 samples, with the highest arsenic

concentration being 31 times the MCL.

The injection of used petroleum products may leave behind an oily

residue within the wells. A 1995 report on natural bioattenuation of

hazardous organic compounds in the subsurface states: ``Most organic

contaminants, however, enter the subsurface as an oily liquid, such as

a fuel spill or release of chlorinated solvent. Groundwater moving

through the material dissolves a small portion of the contaminant,

which becomes a plume of groundwater contamination. Because the

contaminant mass in the oily material is much greater than that

dissolved in the groundwater, the spill can continue to maintain the

plume more or less indefinitely. As the plume moves away from its

source natural biological processes may attenuate the contamination in

the groundwater.'' \2\

---------------------------------------------------------------------------

\2\ Anderson, William, Innovative Site Technology,

Bioremediation, Chapter 3.4, page 1, 1995

---------------------------------------------------------------------------

Examples of instances where motor vehicle-related waste disposal

wells have endangered USDWs are numerous. They include a case in

Missoula, Montana, a sole-source aquifer area, where investigations

starting in June of 1988 discovered that tetrachloroethylene (PCE) from

operating drainage wells at auto service stations had contaminated

community wells serving approximately 45,000 people.3,

4 Three community wells were closed and another 15 have

elevated levels of PCE. In Gilford, New Hampshire, a March 1988

assessment of a site with a garage, a tire center, auto body shop, and

a U.S. Army Reserves maintenance shop discovered that operating floor

drains had contaminated the ground water, the soil, and an on-site

water supply with PCE.5 In Exton, Pennsylvania,

trichloroethylene (TCE), PCE, and 1,1,1-trichloroethane from a stone

bed drain field connected to floor drains of an auto repair/body shop

operating until 1984, contaminated ground water that supplies drinking

water to about 76,700 people.6 In Liberal, Kansas, solvents

disposed in a septic system by an engine repair shop resulted in

volatile organic compound (VOC) contamination of several water supply

wells in 1982; concentrations of VOCs in the septic system were as high

as 32,000 ug/l.7 All of these incidents occurred before

1989. Some small entity commenters have suggested that motor vehicle

facilities routinely use management practices, such as recycling of

used antifreeze and motor oil, that would significantly reduce the risk

of such contamination. EPA, however, conducts periodic inspections that

indicate that many facilities do not routinely implement best

management practices. EPA requests information on more recent instances

of contamination of USDWs by Class V motor vehicle wells, as well as

any data commenters may have on the use of BMPs. EPA also requests

information on situations where USDWs or drinking water wells were

discovered to contain constituents found in motor vehicle waste.

---------------------------------------------------------------------------

\3\ Background Paper prepared by Alan English, Missoula City-

County Health Department for U.S. EPA Underground Injection Control

Program, February 1992.

\4\ ``An Investigation of the Volatile Organic Content of

Sludges, Soils and Liquids Entering the Missoula Aquifer from

Selected Sources,'' prepared by the Missoula City-County Health

Department, Environmental Health Division, Contributors: Tom Barger

and Alan English, July 27, 1990.

\5\ Background information titled ``5X28 Service Station,

Gilford, NH'' available in the docket. This background information

was obtained from U.S. EPA Region 1 staff in May 1990.

\6\ Superfund Site Fact Sheet, A.I.W. Frank/Mid-County Mustang

Site, Pennsylvania, EPA ID# PAD004351003, Last Update: March 1998.

http://www.epa.gov/reg3hwmd/super/aiwfrank/pad.htm.

\7\ Site Description Printout for the Panhandle Eastern Pipeline

Site, from Teresa Hattan, Kansas Department of Health and

Environment, July 15, 1998.

---------------------------------------------------------------------------

Many of these documented problems have been associated with the

improper disposal of fluids that qualify as a hazardous waste under the

Resource Conservation and Recovery Act (RCRA). In other words, some

motor vehicle waste disposal wells are in fact Class IV wells, which

are already generally banned by 40 CFR 144.13. Data obtained from the

1991 National Administrative Order suggest that 13 percent of the motor

vehicle waste disposal wells inject fluids that exhibit the toxicity

characteristic for RCRA hazardous waste. Considering the potential for

these wells to also receive listed hazardous wastes,8 such

as certain spent

[[Page 40601]]

solvents that may be spilled while motor vehicle parts are being

cleaned, the fraction of wells inadvertently injecting hazardous waste

may actually be greater. One study by the New Jersey Department of

Environmental Protection, for example, determined that six out of ten

automotive waste disposal wells examined (60 percent) were actually

Class IV injection wells (see p. 7 of Distribution of Organic

Contaminants in Automotive Waste Disposal Drywell Systems available in

the public docket). Some small entity representatives and advocates

involved in the development of this proposal have commented that cases

of contamination caused by the shallow injection of hazardous waste at

motor vehicle facilities simply underscore the reason for banning Class

IV wells and point to the need for greater enforcement of this existing

ban, not the need for greater regulation of properly operating Class V

motor vehicle waste disposal wells. EPA, however, believes such cases

are a symptom of a Class V regulatory problem that needs to be fixed.

In particular, the lack of specific regulatory requirements that

mandate control measures to prevent endangerment may provide an

incentive to some well owners or operators to inject hazardous fluids

in Class V wells, either unknowingly or on purpose, to avoid more

stringent regulations governing other waste disposal practices. This is

a real concern for motor vehicle waste disposal wells, such as floor

drains in service bays, which are susceptible to spills of fluids that

commonly qualify as hazardous waste. In these situations, UIC

inspectors usually cannot tell if a motor vehicle waste disposal well

is a Class V or a Class IV well.

---------------------------------------------------------------------------

\8\ A waste can qualify as a RCRA hazardous waste either by

exhibiting one of the four characteristics of hazardous waste

(ignitability, corrosivity, reactivity, or toxicity) or by being

named on one of four lists developed by EPA. The cited 13 percent of

facilities injecting waste that exhibits the toxicity characteristic

does not account for the additional facilities that may be injecting

a listed hazardous waste.

---------------------------------------------------------------------------

Some states, localities, and industry sources have already

identified these wells as potentially posing a threat to USDWs and have

taken steps to address this threat. For example, Connecticut published

a guidebook for local officials with regulatory responsibility for

Class V wells (Best Management Practices for the Protection of Ground

Water, November 4, 1992) recommending that all discharges from existing

wells at automotive repair and service facilities to other than a

sanitary sewer be prohibited, and that discharges at new or expanded

facilities in wellhead protection areas also be prohibited. The state

also recommends that any authorized wells should be permitted and their

compliance with published best management practices should be

certified. Massachusetts does not allow anyone to put fluids in a

service station floor drain without a ground water discharge permit.

New Hampshire disallows discharges into floor drains at automotive

facilities. The City of Missoula, Montana requires a permit for the use

of drainage wells at motor vehicle fueling facilities and requires a

separate stormwater collection system with control devices to prevent

infiltration of fuel-contaminated water into such wells. Other states

also have permitting requirements for motor vehicle and industrial

Class V wells in various circumstances. Finally, the American Petroleum

Institute has developed industry guidance recommending that oil

companies and service stations eliminate the use of Class V wells to

dispose of motor vehicle-related waste (Handling Water Discharges from

Automotive Service Facilities Located at Petroleum Marketing

Operations, API Recommended Practice 1633, January 1992). Because one

of EPA's proposed options would allow continued permitting of Class V

motor vehicle wells in SWPAs, EPA is very interested in state

experience with such permitting programs. Do states issue general

permits, applying to classes of facilities, and under what conditions?

What are the requirements for state issued permits regarding BMPs,

monitoring, and allowable contaminant concentration levels? How much

discretion do state permit writers have in implementing these

requirements? Have there been specific problems with state permitting

programs? How effective have they been at preventing Class V wells from

endangering USDWs? Would there be special difficulties for states with

existing permitting programs if EPA were to require them to close

previously permitted wells in SWPAs?

Based on the above information and experience, EPA believes that

banning motor vehicle waste disposal wells in source water protection

areas would achieve substantial protection.

EPA has designed the ban on motor vehicle waste disposal wells to

be self-implementing by owners or operators, with minimal new reporting

requirements and no new inspection or other administrative

requirements. Owners or operators would have substantial flexibility to

choose how they want to close their wells. Some may choose to connect

their floor drains to a municipal sewer system or holding tank, whose

contents can be periodically cleaned out and disposed of properly.

Others may permanently seal their floor drains or disconnect them from

existing wells. In these latter situations, owners or operators would

have to use alternative methods for managing motor vehicle-related

fluids, such as: (1) Recycling and reusing wastewater as much as

possible; (2) collecting and recycling petroleum-based fluids and

coolants drained from vehicles; (3) washing parts in a self-contained,

recirculating solvent sink, with spent solvent being recovered and

replaced by the supplier; (4) using absorbents to clean up minor leaks

and spills, and placing the used materials in approved waste containers

and disposing of them properly; and (5) using a wet vacuum or mop to

pick up accumulated rain or snow melt, and disposing of it through a

publicly owned treatment works. EPA recognizes that facilities may need

to comply with other regulatory requirements (e.g., obtain permits) in

order to make use of one of these options. EPA believes, based on

firsthand experience with owners and operators, that most facilities

can easily implement these alternatives within a short period of time.

If all motor vehicle waste fluids generated at a service facility

are segregated so that none are injected, the facility's Class V well

may not be prohibited and could be used to dispose of other waste

streams, such as stormwater, ice melt, and carwash waste water. EPA

advises that Directors use careful judgment in making such an

allowance, however, limiting it to cases in which unintentional or

illicit discharge of motor vehicle waste fluids into the well is

unlikely based on the facilities compliance history and availability of

adequate records showing proper waste management and disposal. In these

instances, the well is converted from a motor vehicle waste disposal

well to another type of Class V well defined by the nature of fluids it

receives. For example, a service station could perform all vehicle

maintenance in areas that do not drain to the Class V well. If the

service bay connected to the Class V well is then used only for

draining ice melt or stormwater from tires or vehicle exteriors, the

well would qualify as a Class V stormwater drainage well. If the

service bay connected to the Class V well is used for the exterior

washing of vehicles (and no engine or undercarriage washing is

performed), the well would qualify as an other industrial well. As

another example, owners or operators could install a semi-permanent

plug (also known as a plumber's plug) in the sump outlet leading to the

injection well.

[[Page 40602]]

Automotive waste and spills could then be collected in the sump and

periodically disposed offsite. When necessary, the plug could be

removed and the well used for non-automotive waste only. In order for

this approach to be acceptable, the plug would truly have to be semi-

permanent. It cannot be something that is easily removed, which would

create the potential for the well to remain open and subject to abuse.

Because EPA remains concerned about potential abuses, EPA requests

comment on the use of semi-permanent plugs for well closure,

particularly on their limitations and on circumstances where their use

is or is not inappropriate.

Regardless of the closure method selected, owners or operators

would be required to close their well in a manner that complies with

the prohibition of fluid movement standard in Sec. 144.12 as well as

any additional or more specific closure standards that may be

established by the UIC Program Director. This closure requirement would

be like the one that exists in Sec. 144.23(b)(1) for Class IV wells.

The proposed rule would not specify any new soil or ground water

sampling or site remediation requirements. However, EPA understands

that closure of the well may trigger site characterization and

remediation requirements under EPA Regional and Primacy State UIC

Program implementation of 40 CFR 144.12, other state environmental

programs, insurance policies, business contracts, local ordinances, and

so forth. The economic analysis supporting today's proposal, therefore,

reflects the costs of complying with these other existing requirements,

where they are likely to apply (EA section 2.3.5). Any such remediation

should be, to the extent possible, carried out consistently with any

ongoing remediation of underground storage tank contamination at

affected facilities. In addition, any wastes generated during well

closure or under alternative waste management scenarios after the wells

are closed, such as spent cleaning solutions and absorbents, will have

to be managed in accordance with applicable solid and hazardous waste

regulations. EPA estimates capital costs ranging from $2,500 to $10,000

and annual O&M costs ranging from $700 to $26,000 per facility,

depending on the particular waste stream and off-site management option

selected. EPA estimates that these costs for most facilities will be at

the low end of the ranges. Only a few of the affected well types will

experience costs at the high end of the ranges. EPA requests comment on

its well closure and alternate waste management cost estimates.

For EPA-administered (DI) Programs only, owners or operators of

wells being closed would be required to notify the UIC Program Director

of the intent to close their well at least 30 days prior to closure

(owners or operators of wells in Primacy States would have to meet any

state-established reporting requirements). This is the same requirement

that currently exists in Sec. 144.23(b)(3) for Class IV wells. Based on

the Agency's experience and knowledge of how the federal UIC program

runs, EPA believes such pre-closure notification is needed as a

mechanism for DI Programs to track high-priority closures. The Agency,

however, does not know if all state programs need this same

requirement. States may already have, or could develop, another or a

better mechanism that they prefer. Therefore, rather than impose pre-

closure notification as a minimum federal requirement that all Primacy

States must adopt, EPA proposes to keep this aspect of the new

requirements flexible. If some states want it, they can choose to adopt

the same or a similar requirement under their own authority when they

amend their program. Alternatively, EPA requests comments on whether

such pre-closure notification should be required in every state. If

such an approach is clearly necessary based on these comments, EPA

could broaden the requirement to Primacy States in the final rule.

2. Proposal to Ban New Wells and Require Existing Wells to Either Close

or Get a Permit

As another option, EPA proposes the same ban on new and existing

motor vehicle waste disposal wells as discussed above, but would give

states the option of allowing owners or operators of existing wells to

seek a permit to continue using their wells. In states adopting this

option, and in areas where EPA is the primacy agent, owners or

operators of existing wells would have to either close their wells or

submit a permit application within 90 days of the completion of the

local source water assessment program responsible for their area. While

the permit application is under review, existing wells could continue

to operate subject to the condition that fluids released in the wells

meet the primary drinking water MCLs at the point of injection, or, if

an MCL is not available for specific pollutants, other appropriate

health-based standards approved by the UIC Program

Director.9 As with the first option, the UIC Program

Director would be allowed to extend the closure deadline (but not the

application submittal deadline) for up to one year in situations where

the most efficient compliance option is connection to a sanitary sewer

or installation of new treatment technology. UIC Program Directors also

would have additional flexibility to extend the closure deadline for a

reasonable amount of time beyond a year through compliance agreements.

---------------------------------------------------------------------------

\9\ Requiring MCLs to be met at the point of injection is a way

to ensure that the non-endangerment provision in Sec. 144.12(a) is

met. The legislative history of the Safe Drinking Water Act

(Committee Print, February, 1982, at 564) shows that Congress

clearly intended for this endangerment standard to be ``liberally

construed so as to effectuate the preventive and public health

protective purposes of the bill.'' More specifically, in defining

endangerment, the legislative history states that ``actual

contamination of drinking water is not a prerequisite either for the

establishment of regulations or permit requirements or for the

enforcement thereof.''

---------------------------------------------------------------------------

In primacy states that adopted this option, it would require more

state effort than the first proposal. UIC Program Directors would have

to review the permit application and site-specific conditions for each

facility wishing to keep its motor vehicle waste disposal well open.

Based on this review, Directors would have to either deny the

application or develop and enforce permit requirements to make sure the

well does not endanger USDWs.

The specific permit requirements could vary from one well to the

next, but would have to include the following three conditions at a

minimum. First, owners or operators would have to make sure fluids

released in their wells meet the primary drinking water MCLs at the

point of injection or other appropriate health-based standards approved

by the UIC Program Director, if an MCL is not available for specific

pollutants (comments are being solicited on whether this requirement

could be relaxed and that EPA does not believe that relaxing this

requirement would provide adequate public health protection, see

section II.C.6). Second, owners or operators would have to follow

accepted BMPs for motor vehicle-related facilities. The BMPs

recommended in the State of Connecticut's Best Management Practices for

the Protection of Ground Water and API's Handling Water Discharges from

Automotive Service Facilities Located at Petroleum Marketing

Operations, both available in the docket, serve as good models. Third,

owners or operators would have to monitor the quality of their

injectate and sludge (if present in dry wells or tanks holding

injectate) both initially and on a continuing basis in order to

demonstrate compliance with the MCLs. The rule, however, would not

specify new injectate monitoring requirements that must be followed,

leaving those instead to the discretion of the Director.

[[Page 40603]]

When all of these requirements are put together, EPA believes the

permit would specify a monitoring and action plan similar to the

following, but recognizes that states will design monitoring

requirements appropriate to the situation. As a first step, owners or

operators might be required to characterize the quality of their

injectate and any sludge. If liquid from the sludge has chemical

concentrations below the MCLs, owners or operators might be required to

analyze the injectate quarterly for the first three years and then

annually if it is consistently below the MCLs. They also might be

required to analyze their sludge annually. If the injectate is below

the MCLs but liquid from the sludge is above the MCLs, then owners or

operators might have to follow the same monitoring requirements as

above plus pump and properly dispose of their sludge. Finally, if the

injectate is above the MCL and the liquid from the sludge is above the

MCL, then the permit might require: (1) Implementation of specific BMPs

or treatment measures; (2) pumping and proper disposal of their sludge;

(3) quarterly sampling of injectate for the first three years and then

annually if consistently below the MCLs; (4) annual sampling of the

sludge; and (5) other requirements established by the Director to

protect USDWs. EPA requests comments on this possible set of permit

requirements, and any others that could be used to protect USDWs from

motor vehicle waste disposal wells. EPA is particularly interested in

receiving comment on the appropriate frequency of the injectate

monitoring outlined above given the high variability and unpredictable

nature of the fluids that may be spilled or released into motor vehicle

waste disposal wells.

This option recognizes that there may be instances in which owners

or operators of existing motor vehicle waste disposal wells in source

water protection areas want to keep using their wells and can do so

safely given their site-specific circumstances. These circumstances

include the use of BMPs and/or treatment technologies that effectively

keep potentially endangering fluids from entering the well, combined

with regular injectate monitoring, to make sure fluids meet MCLs at the

point of injection. Some small entity representatives and advocates

involved with the development of this proposal indicated that many

service stations and repair shops have already adopted BMPs, such as

the recycling of used motor oil and antifreeze, spill prevention and

control, and the use of environmentally friendly cleaning products,

which have significantly reduced both the volume and toxicity of their

injectate. These stakeholders asserted that the use of such practices

is now widespread in the automotive service industry, making it

unnecessary to categorically ban every well. Under this option,

therefore, certain motor vehicle waste disposal wells in delineated

source water protection areas could remain open, if approved by the UIC

Program Director based on a review of site-specific circumstances and

if controlled through a permit that requires MCLs to be met at the

point of injection and any other conditions believed necessary to

protect USDWs.

3. Alternative

EPA is requesting comment on an alternative to the two proposals

outlined above. Under this alternative, EPA could require owners or

operators who want to continue using motor vehicle waste disposal wells

in delineated source water protection areas to make sure fluids meet

MCLs at the point of injection. This would differ from the first

proposal by not having an outright ban and it would differ from the

second proposal discussed above by eliminating the site-specific permit

requirement for owners or operators whose injectate and sludge meet the

MCLs. Instead, the requirement to meet MCLs at the point of injection

would be specified in the regulation as a condition for continued rule

authorization. The regulation also would specify monitoring

requirements and actions to take based on the monitoring results.

Owners or operators of existing wells who do not want to or cannot meet

these conditions would have to close their wells according to the same

schedule discussed above. New wells in source water protection areas

would be prohibited starting on the effective date of the rule.

The specific monitoring requirements that EPA proposes, and

requests comment on, are the same as the potential permit requirements

described for the second proposal above. That is, owners or operators

would be required to initially characterize their injectate and sludge

quality. If liquid from the sludge has chemical concentrations below

the MCLs, owners or operators would be required to (1) analyze the

injectate quarterly for the first three years and then annually if it

is consistently below the MCLs, and (2) analyze the sludge annually. If

the injectate is below the MCLs but liquid from the sludge is above the

MCLs, then owners or operators would have to follow the same monitoring

requirements and pump and properly dispose of their sludge. If the

injectate is above the MCL and the liquid from the sludge is above the

MCL, owners or operators would have to either close their wells or make

process or operational changes to ensure compliance with the MCLs.

This approach for regulating existing motor vehicle waste disposal

wells would be almost identical to the proposed approach for regulating

Class V industrial wells, discussed below. The only difference would be

more extensive monitoring at motor vehicle waste disposal wells. EPA

believes this difference is justified given the nature of the fluids

routinely handled at motor vehicle-related facilities (e.g., waste oils

and solvents that have high concentrations of toxic constituents) and

the relatively high potential for spills of these fluids to occur and

enter floor drains. Under these conditions, the quality of the

injectate can be highly variable and unpredictable, and regular

monitoring is needed to confirm that a problem does not exist or to

detect a problem early so that it can be quickly mitigated. EPA

believes the situation is different for most Class V industrial wells,

where the injectate is a process wastestream that is more constant in

terms of quality and quantity than the spills that are the primary

concern at motor vehicle-related facilities. Therefore, although some

industrial wells are also susceptible to spills or process upsets as

discussed in the next section below, frequent and regular monitoring at

industrial facilities is less important in controlling injectate

quality and protecting USDWs. EPA requests comment on this position as

well as suggestions for the specific monitoring requirements that would

be appropriate for motor vehicle waste disposal wells.

C. Requirements for Class V Industrial Wells

1. Proposal

Owners or operators of existing Class V industrial wells in source

water protection areas--delineated for community water systems and non-

transient non-community water systems that use ground water as a

source--would as a condition of rule authorization be required to

either (1) make sure fluids disposed in their wells meet MCLs at the

point of injection, or (2) close their wells. New wells in such areas,

including new conversions to Class V industrial wells, would be

prohibited unless they were able to meet the same standard on injectate

quality. For the purpose of this regulation, an ``existing'' well would

be one that is operational or under construction when

[[Page 40604]]

the rule becomes effective. A well or well conversion would qualify as

``new'' if construction started after the rule's effective date.

Because primary MCLs may not exist for some pollutants released in

industrial wells, UIC Program Directors would have discretion to

require the injectate to meet other appropriate health-based limits, as

needed to protect USDWs for these other contaminants. Industrial well

closures would be subject to the same basic closure requirements as

proposed for motor vehicle waste disposal wells, including the

requirement that owners or operators in DI Programs submit pre-closure

notification at least 30 days prior to abandonment.

The timing for these new requirements would be the same as that

proposed for motor vehicle waste disposal wells. Starting on the

effective date of the rule, existing wells would have to meet the MCLs

or close within 90 days of the completion of the source water

assessment program for their local area. The UIC Program Director would

be allowed to extend this deadline for up to one year in situations

where the most efficient compliance option is connection to a sanitary

sewer or installation of new treatment technology. UIC Program

Directors also would have additional flexibility to extend the deadline

for a reasonable amount of time beyond a year through compliance

agreements with owners or operators of existing wells. The requirements

for new and converted industrial wells in delineated areas would start

applying immediately on the effective date of the rule.

Available information suggests that additional federal regulation

is needed to address the risk posed by Class V industrial wells located

in delineated areas. Industrial process water and waste disposal (5W20)

wells, one major well type that fits in the industrial well category

defined above, pose a significant threat to USDWs especially if they

inject highly contaminated and/or large volumes of waste. According to

the 1987 Report to Congress, such wells could potentially receive any

fluid disposed by the various industries that use Class V wells (e.g.,

commercial printing, die and tool manufacturing, machinery and

equipment manufacturing, chemical production, and drycleaning). For

example, the Report estimated that in Nassau and Suffolk Counties in

New York, an average of 20 million gallons per day--or, 36 thousand

pounds per day of total dissolved solids--was injected into the

subsurface by such facilities. This occurred in the early 1980's

(Report to Congress, p. 4-278).

Industrial drainage (5D4) wells, also within the Class V industrial

well category, also pose a significant threat of contamination to USDWs

especially if they inject poor quality fluids, are susceptible to

accidental industrial spills, and are available for abuse through

illicit discharges. For example, studies from Nationwide Urban Runoff

Program projects in Fresno, CA and Spokane, WA in 1984 and 1986,

respectively, have shown that industrial areas had the lowest quality

stormwater runoff of all land-use types evaluated (Report to Congress,

p. 4-37). A particular example illustrating this high hazard potential

occurred in Hutchinson, Kansas (in 1986) where a diesel/tar mixture

from a newly tarred roof washed into what would now be classified as an

industrial drainage well during a rainstorm, and a nearby city water

well was shut down as a result of the injected hydrocarbon mixture

(Report to Congress, p. 4-38).

Requiring Class V industrial wells in source water protection areas

to meet primary MCLs, or other appropriate health-based limits selected

by the UIC Program Director, at the point of injection will greatly

reduce the threat of these wells. EPA is proposing this approach rather

than an outright ban of industrial wells because of a lack of

information indicating that a ban is always warranted. Also, this

approach is consistent with the controls already imposed in some

locations. For example, Class V industrial wells in Florida are

required to meet MCLs at the point of injection, as are most kinds of

Class V industrial wells in Massachusetts. Requiring MCLs to be met at

the point of injection would establish a clear threshold to ensure the

wells are not endangering USDWs, but would give owners or operators

flexibility in deciding how to meet that threshold. In some cases, it

will require no action or simple containment and/or treatment measures.

Owners or operators wishing to keep their wells open may also have to

monitor their injectate quality to adequately assure that it does not

exceed MCLs though EPA is not proposing any specific monitoring

requirements for owners and operators of Class V industrial wells.

Owners or operators who are not able to ensure that their discharge

meets MCLs at the point of injection (or who choose not to because of

the high cost of doing so) would have to close their wells.

2. Alternatives

As an alternative to the proposed approach, EPA could ban all or

certain Class V industrial wells in source water protection areas as

part of this rulemaking. For example, the ban could be extended to

wells that dispose of washwater from car washes where motor or

undercarriage washing is performed. As mentioned previously, EPA does

not believe sufficient information exists to support a broader ban at

this time. Additional bans, however, could be justified and imposed as

part of subsequent rulemakings, if additional information supporting a

broader ban becomes available.

EPA also requests comment on whether the pre-closure notification

requirement for industrial wells should be added in Primacy State

programs. As discussed above for motor vehicle waste disposal wells,

EPA currently believes it would be best to restrict that requirement to

DI Programs, as it has restricted the pre-closure notification

requirement in Sec. 144.23(b)(3) for Class IV wells. Finally, elsewhere

in this preamble, comments are requested on whether the requirement

that injectate from industrial wells in source water protection areas

always meet all MCLs at the point of injection could be relaxed under

any circumstances without endangering USDWs. EPA's does not support

this position because it believes that allowing injection of waste that

exceeds the MCL into source water protection areas poses an

endangerment to the USDW and to people that drink this water.

D. Ban of Large-Capacity Cesspools

Cesspools are Class V wells that receive untreated sanitary waste

and allow the waste to percolate directly into the subsurface. Only

those cesspools with the capacity to serve 20 or more persons per day

are subject to UIC regulation.

As discussed in the August 28, 1995 proposal, EPA believes such

large-capacity cesspools have a high potential to contaminate USDWs

because: (1) Sanitary wastes released in cesspools frequently exceed

drinking water MCLs for nitrates, total suspended solids, and coliform

bacteria (Report to Congress, p. 4-151); (2) the wastes released in

cesspools also contain other constituents of concern, including

phosphates, chlorides, grease, viruses, and chemicals used to clean

cesspools such as trichloroethane and methylene chloride; and (3)

cesspools provide no treatment except for some settling of the solids.

In addition, the 1987 Report to Congress notes that some states have

reported degradation of USDWs from such cesspools (Report to Congress,

p. 4-151). Based on these concerns, new

[[Page 40605]]

cesspools are already banned in most states. Where such bans presently

exist, states are phasing out existing cesspools over a time period

negotiated by state and local governments and acceptable to EPA.

The August 28, 1995 notice proposed not to impose a federal ban on

large-capacity cesspools because of the actions being taken to control

cesspools at the state level. The Agency proposed instead to use its

existing enforcement authorities to supplement state bans where

necessary to ensure compliance with the non-endangerment requirements

of Sec. 144.12.

Some commenters on the August 28, 1995 proposal raised a number of

issues associated with this approach. For example, the Sierra Club

Legal Defense Fund asserted that the proposal fails to carry out SDWA

requirements to prevent endangerment of USDWs, that reliance on

existing enforcement authorities is inadequate, and that the existence

of some state or local regulations does not justify an EPA decision not

to regulate. In addition, one state commented that it has not banned

new cesspools by existing regulations. A ban in the federal UIC

regulations would ensure that these high-risk wells are not constructed

in this state or any other state that does not have its own regulations

banning them.

Based on these comments, EPA is today proposing to ban, starting on

the rule's effective date, new large-capacity cesspools in source water

protection areas delineated for community water systems and non-

transient non-community water systems that use ground water as a

source. Existing large-capacity cesspools in such areas would be

required to close within five years of the effective date of the rule.

Owners or operators of such cesspools in DI Programs would have to

notify the UIC Program Director of the intent to abandon their cesspool

at least 30 days prior to abandonment (owners or operators of large-

capacity cesspools in Primacy States would have to meet any state-

established reporting requirements). For the purpose of this

regulation, a ``new'' cesspool would be one starting construction after

the rule's effective date. An ``existing'' cesspool would be one that

is operational or under construction when the rule becomes effective.

These new federal requirements would strengthen existing programs to

protect USDWs.

Existing large-capacity cesspools would have five years to close

instead of 90 days with a possible one year extension proposed for

motor vehicle waste disposal wells because cesspool owners or operators

may need this amount of time to implement appropriate alternatives for

managing their sanitary waste. In particular, they cannot stop the

generation of sanitary waste, so the only options they would have would

be to connect to a sanitary sewer system or install a septic system.

Both of these options may take more than a year to implement and may

not even be feasible (e.g., the septic system option would not be

feasible if onsite soils do not satisfactorily pass a percolation

test). In comparison, there are generally accepted methods available to

owners or operators of motor vehicle-related facilities to stop the

disposal of motor vehicle waste fluids in Class V wells that can be

implemented within 90 days with a possible one year extension. These

alternatives include recycling, sending spent solvents back to

suppliers, installing a semi-permanent plug in the well and a sump to

capture any spills of motor vehicle fluids, running a dry shop, and the

other BMPs discussed above. Although EPA recognizes that other types of

permitting may be required for these options, EPA believes that 90 days

is sufficient to complete this process.

EPA proposes to focus the large-capacity cesspool ban on ground

water-based source water protection areas around community water

systems and non-transient non-community water systems for the purpose

of prioritizing national policy and because these are the highest risk

wells. EPA expects and strongly encourages states to use existing

authorities to take whatever measures are needed to ensure Class V

cesspools are not endangering USDWs in any other sensitive areas

outside delineated source water protection areas (see Sec. IV.B.1 for

examples of other such areas). If a state does not have a complete

source water assessment program by May 2003, the federal ban on

cesspools would apply throughout the state. EPA also requests comment

on the merits and potential impacts of broadening the proposed cesspool

ban to source water protection areas delineated for transient non-

community water systems that use ground water as a source. Transient

systems are those that serve at least 25 people but not on a regular

basis (e.g., campground or highway rest stop). Including these

additional areas within the scope of the proposed requirements for

cesspools could address the unique acute risk associated with the

shallow disposal of untreated sanitary waste in areas where ground

water is used as a drinking water source.

As discussed above for motor vehicle waste disposal wells and

industrial wells, EPA is proposing the pre-closure notification

requirement for large-capacity cesspools in DI Programs because of the

Agency's knowledge of how these programs run and what they need to

track high-priority closures. Because EPA does not know if this same

requirement is needed for all Primacy States, and is unsure if such a

requirement may in fact create a burden that outweighs its benefits in

the context of individual state programs, the Agency is not proposing

to impose the pre-closure notification requirement on Primacy States.

Instead, the proposal would give states flexibility to use their own

authority to adopt this or a similar requirement tailored to their

particular needs. However, EPA requests comment on this issue,

including comments on the merits and potential impacts of extending the

pre-closure notification requirement to Primacy States.

E. Exclusion Criteria for Septic Systems and Cesspools

As discussed in the August 28, 1995 notice, the current UIC

regulations distinguish 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. Section

144.1(g) excludes from UIC regulation ``individual or single family

residential waste disposal systems such as domestic cesspools or septic

systems'' and ``non-residential cesspools, septic systems or similar

waste disposal systems if such systems (A) are used solely for the

disposal of sanitary waste, and (B) have the capacity to serve fewer

than 20 persons a day.''

EPA now believes 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. Therefore, the August 28, 1995 notice proposed to

revise Sec. 144.1 to exclude from UIC regulation all cesspools and

septic systems serving fewer than 20 people, regardless of where such

systems are located. This revision would eliminate the distinction

between septic systems used by single-family homes and small non-

residential septic systems that receive solely sanitary waste. At the

same time, EPA proposed to define cesspools and septic systems as wells

receiving solely sanitary waste to distinguish them from similar

devices receiving industrial waste waters, which would be defined as

industrial waste disposal wells. Finally, EPA proposed to define

sanitary waste as domestic sewage and

[[Page 40606]]

household waste. EPA requested public comment on this proposal and any

alternatives, such as exclusion criteria based on septic tank size

(e.g., tanks under 2,000 gallons would not be subject to UIC

regulation), flow rate (e.g., systems receiving less than 5,000 gallons

per day would not be subject to UIC regulation), or dwelling size.

Of the 57 comment letters submitted on the proposal, 28 addressed

this issue. Only two commenters supported the proposal to maintain the

threshold of 20 persons per day for systems subject to regulation.

Eighteen commenters preferred an alternative criterion, with most

preferring a threshold based on flow rate. The suggested flow rates

ranged from 2,000 to 20,000 gallons per day. A few of the commenters

preferred a criterion based on septic tank size (ranging from 2,000 to

7,500 gallons), and one commenter suggested that a soil application

rate be used (1.5 gallons per day per square foot). Apart from these 18

commenters who preferred an alternative criterion, four commenters

asserted that all septic systems receiving solely sanitary waste--

regardless of capacity--should be excluded from UIC regulation and

addressed by states through other, existing legal authorities. Two

other commenters stated that all cesspools--regardless of capacity--

should be banned altogether.

In addition to comments on the threshold for regulation, seven

commenters took issue with the proposed definition of sanitary waste.

These commenters thought the proposed definition would not clearly

establish that small septic systems and other similar systems receiving

only domestic sewage and household-type wastes at commercial and

industrial facilities are excluded from UIC regulation. The commenters

suggested that the sanitary waste definition be broadened to include

examples of commercial or industrial settings where the exclusion would

apply. Alternatively, EPA could use a more general definition of

sanitary waste that includes wastewater generated from human wastes;

personal or employee food preparation; gray water (e.g., hand washing

waste from lavoratory and kitchen sinks); and other domestic-type

wastes, regardless of where the waste was generated.

Based on these comments, as well as experience implementing the UIC

program, EPA recognizes that the current 20 persons-a-day exclusion

criterion in the federal UIC regulations has weaknesses. However, it is

not now clear to EPA that a change to this criterion is necessary to

protect USDWs or could be made without causing undue disruption to

existing state and local programs. State programs currently interpret

the criterion in different ways, with most programs using a septic

system flow rate and other programs using a septic tank size or other

measure. These various state interpretations appear to work well and

achieve adequate protection of USDWs. EPA's adoption of an

interpretation currently used by one or more states may not improve

protection but might invalidate other state interpretations.

Therefore, EPA is again requesting comment on the Sec. 144.1(g)

criteria proposed on August 28, 1995, which would exclude all septic

systems and cesspools with a capacity to serve fewer than 20 persons a

day, without distinguishing between residential and non-residential

systems. This time, however, the Agency asks that commenters

specifically address the question of whether the federal criteria need

to be changed to correct a significant operational problem, such as

inadequate protection of USDWs or extreme burden or confusion in

implementing the UIC program. If alternative criteria are believed to

be needed, the Agency also requests that commenters propose a specific

alternative and address how it would work if adopted on the federal

level. The vast majority of commenters on the prior proposal simply

suggested that EPA adopt one state's interpretation, without regard to

how it might affect other states.

In response to comments on the proposed definition of sanitary

waste, EPA agrees that the definition should be broadened to clarify

that small-capacity septic systems or cesspools at commercial and

industrial facilities are excluded from UIC regulation if they receive

solely sanitary waste. Therefore, the Agency is re-proposing today a

new sanitary waste definition in Secs. 144.3 and 146.3 that references

commercial and industrial facilities. This proposal is based in part on

the household waste exclusion established in the RCRA regulations (40

CFR 261.4(b)(1)).

F. Other Amendments

As outlined in Table 1 at the beginning of this preamble, EPA is

reproposing other minor revisions originally proposed in the August 28,

1995 notice, in order to provide a complete and coherent picture of all

Class V UIC changes being contemplated. These revisions, on which EPA

will continue to accept public comment, address (1) a few definitions

in Secs. 144.3 and 146.3, and (2) the classification of radioactive

waste disposal wells in Secs. 144.6 and 146.5. In addition, certain

existing Class V requirements are being reiterated in or moved to the

plain-English version of the consolidated Class V regulations in 40 CFR

144 Subpart G. EPA is not accepting comment on these requirements,

identified with notes in the proposed rule language, because they

already exist in the UIC regulations and are only being reworded to

improve their clarity.

1. Sections 144.3 and 146.3--Definitions

In addition to the proposed new definition of sanitary waste

discussed above, the proposed regulation would add new definitions for

the terms ``cesspool,'' ``drywell,'' ``improved sinkhole,'' ``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 V.A of this

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 disposal of waste

waters in natural depressions, open fractures, and crevices (such as

those commonly associated with the cooling of lava flows or weathering

of limestone) fits within the statutory definition of underground

injection.

A ``subsurface fluid distribution system,'' which is a term used in

the proposed new definition of ``septic system,'' would be defined with

a standard engineering description.

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.

2. Sections 144.6 and 146.5--Classification of Wells

The proposed regulation would revise Sec. 144.6(a) and

Sec. 146.5(a) by adding a paragraph (3) to move Class V radioactive

waste disposal wells injecting below all USDWs into the Class I

category. Such Class V wells, in fact, are similar to Class I wells in

terms of their design, the nature of 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.

[[Page 40607]]

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 Class V 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 simpler and more straightforward than keeping the

wells in the Class V universe and developing identical requirements

under the Class V program.

EPA wishes to clarify that this reclassification of Class V

radioactive waste disposal wells does not affect the disposal of

naturally occurring radioactive material (NORM) in Class II wells as

part of oil and gas field operations. The injection of fluids

associated with oil and natural gas production, including such fluids

containing NORM, would continue to be regulated under existing Class II

UIC requirements or under applicable regulations prescribed by the

Primacy State agency.

3. Existing Regulations Being Reiterated or Replaced in 40 CFR Part

144, Subpart G

The existing description of the five classes of injection wells in

Sec. 144.6 would be reiterated, in a plain-English format, in

Sec. 144.82 in the new Subpart G. Similarly, the existing prohibition

of fluid movement in Sec. 144.12 would be reiterated inSec. 144.80.

The existing inventory requirements for Class V wells in

Sec. 144.26(b)(1)(iii) and (e) and the description of when Class V

injection is authorized by rule in Sec. 144.24 would be deleted and

moved to Secs. 144.83 and 144.84, respectively, in the new Subpart G.

With only two exceptions, the substance of these existing

requirements would not be changed. Only the language and format of the

requirements would be revised to make them easier to understand. One of

the changes is a proposed new requirement in Sec. 144.83(a)(2)(iii) for

owners or operators of wells in delineated source water protection

areas, in DI Programs only, to submit new inventory information if they

convert their well into a Class V industrial well as defined in today's

proposal. An analogous inventory requirement for conversions to Class V

motor vehicle waste disposal wells and cesspools is not needed because

the rule would prohibit such well conversions, consistent with the ban

on new motor vehicle waste disposal wells and cesspools. However, wells

in source water protection areas could be converted to industrial wells

after the original submittal of inventory information, and there would

be no way for the UIC Program Director to learn about this potentially

endangering situation if there is not a requirement to submit new

inventory information. The other change calls for the submittal of

inventory information for new wells prior to construction rather than

prior to starting injection, as currently in Sec. 144.26(e)(3). This

change does not add any new burden or cost for well owners or

operators. To the contrary, it is intended to help owners or operators

avoid a situation in which they have incurred all the cost of well

construction and then later, due to some unforeseen problem, are

prohibited from using the well after they submit inventory information.

Submitting the information prior to construction would give UIC

Programs the opportunity to intervene or advise before any construction

costs are wasted.

Just like the pre-closure notification requirement proposed for

motor vehicle waste disposal wells, industrial wells, and large-

capacity cesspools, EPA is proposing the new inventory requirement for

well conversions in DI Programs because the Agency knows how these

programs run and what the EPA Regions want and need to track the status

of high-risk wells. Because EPA does not know if this same requirement

is needed for all Primacy States (comparable or better mechanisms may

already exist or could be developed), and is unsure if such a

requirement may in fact create a burden that outweighs its benefits

given each state's available resources, the Agency is not proposing to

impose the new inventory requirement on Primacy States. However, as

with the pre-closure notification requirement, EPA requests comment on

this issue, including comments on the merits and potential impacts of

extending the inventory requirement to Primacy States. EPA also

requests comment on the merits of broadening the inventory requirement

to well conversions outside of delineated source water protection

areas. Based on public comment, EPA may broaden the inventory

requirement in the final rule.

4. Part 145--State UIC Program Requirements

The Agency proposes to amend Sec. 145.11 to be consistent with the

proposed changes in 40 CFR Part 144. These proposed amendments would

insert a set of new requirements in Sec. 144.86 that state programs

must have the legal authority to implement.

These proposed amendments to Part 145 are technical corrections to

incorporate the proposed changes to 40 CFR Part 144. The corrections

include a reference to the proposed new section and a redesignation of

paragraphs to accommodate the new references.

VI. 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,

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