
[Federal Register Volume 81, Number 209 (Friday, October 28, 2016)]
[Rules and Regulations]
[Pages 74927-74930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25931]



[[Page 74927]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-HQ-OW-2015-0372; FRL 9953-37-OW]


State of Kentucky Underground Injection Control (UIC) Class II 
Program; Primacy Approval

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is taking 
direct final action to approve the Commonwealth of Kentucky's 
Underground Injection Control Class II (UIC) Program for primacy. The 
EPA determined that the state's program is consistent with the 
provisions of the Safe Drinking Water Act (SDWA) at Section 1425 to 
prevent underground injection activities that endanger underground 
sources of drinking water. The agency's approval allows the state to 
implement and enforce state regulations for UIC Class II injection 
wells located within the state. The Commonwealth's authority excludes 
the regulation of injection well Classes I, III, IV, V and VI and all 
wells on Indian lands, as required by rule under the SDWA.

DATES: This rule is effective on January 26, 2017 without further 
notice, unless EPA receives adverse comment by November 28, 2016. If 
EPA receives adverse comment, we will publish a timely withdrawal in 
the Federal Register informing the public that the rule will not take 
effect. For judicial purposes, this final rule is promulgated as of 
January 26, 2017. The incorporation by reference of certain 
publications listed in the rule is approved by the Director of the 
Federal Register as of January 26, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0372, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. The EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Holly S. Green, Drinking Water 
Protection Division, Office of Ground Water and Drinking Water (4606M), 
U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; telephone number: (202) 566-0651; fax number: 
(202) 564-3754; email address: green.holly@epa.gov; or Nancy H. Marsh, 
Safe Drinking Water Branch, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303; telephone 
number (404) 562-9450; fax number: (404) 562-9439; email address: 
marsh.nancy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Why is EPA issuing a direct final rule?

    EPA published this rule without a prior proposed rule because the 
agency views this action as noncontroversial and anticipates no adverse 
comment. However, in the ``Proposed Rules'' section of today's Federal 
Register, EPA published a separate document that serves as the proposed 
rule if the agency receives adverse comment on this direct final rule. 
The agency will not institute a second comment period on this action. 
Any parties interested in commenting must do so at this time. For 
further information about commenting on this rule, see the ADDRESSES 
section of this document.
    If EPA receives adverse comment, the agency will publish a timely 
withdrawal in the Federal Register, informing the public that this 
direct final rule will not take effect. The agency will then address 
all public comments in any subsequent final rule based on the proposed 
rule.

II. Does this action apply to me?

Regulated Entities

------------------------------------------------------------------------
                                                         North American
                                     Examples of            industry
           Category             potentially regulated    classification
                                       entities              system
------------------------------------------------------------------------
Industry......................  Private owners and       211111 & 213111
                                 operators of Class
                                 II injection wells
                                 located within the
                                 state (Enhance
                                 Recovery, Produce
                                 Fluid Disposal and
                                 Hydrocarbon Storage).
------------------------------------------------------------------------

    This table is intended to be 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. If you have questions regarding the applicability of this 
action to a particular entity, consult the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

III. Legal Authorities

    EPA approves the Commonwealth of Kentucky's UIC Program primacy 
application for Class II injection wells located within the state, as 
required by rule under the SDWA, to prevent underground injection 
activities that endanger underground sources of drinking water. 
Accordingly, the agency codifies the state's program in the Code of 
Federal Regulations (CFR) at 40 CFR part 147, under the authority of 
the SDWA, sections 1425, 42 U.S.C. 300h-4. The state applied to EPA 
under sections 1425 of the SDWA, 42 U.S.C. Sections 300h-4, for primacy 
(primary enforcement responsibility) for all Class II injection wells 
within the state except those on Indian lands.
    The agency's approval is based on a legal and technical review of 
the state's primacy application as directed at 40 CFR part 145 and the 
requirements for state permitting and compliance evaluation programs, 
enforcement authority and information sharing to determine that the 
state's program is effective. EPA oversees the state's administration 
of the UIC program; part of the agency's oversight responsibility 
requires quarterly reports of non-compliance and annual UIC performance 
reports pursuant to 40 CFR 144.8. The Memorandum of Agreement between 
EPA and the Commonwealth of Kentucky, signed by the Regional 
Administrator on October 20, 2015,

[[Page 74928]]

provides the agency with the opportunity to review and comment on all 
permits. The agency continues to administer the UIC program for Class 
I, III, VI, V and VI injection wells in the state and all wells on 
Indian lands (if any such lands exist in the state in the future).

IV. Kentucky's Application

A. Public Participation Activities Conducted by the Commonwealth of 
Kentucky

    As part of the primacy application requirements, the state held a 
public hearing on the state's intent to apply for primacy. The hearing 
was held on September 23, 2014, in the city of Frankfort, Kentucky. 
Both oral and written comments received for the hearing were generally 
supportive of the state pursuing primacy for the UIC Class II injection 
well program.

B. Public Participation Activities Conducted by EPA

    On November 10, 2015, the agency published a notice of the state's 
application in the Federal Register (80 FR 69629). This notice provided 
a comment period and that a public hearing would be held if requested. 
The EPA received one comment during the comment period, and no requests 
for a public hearing. An anonymous commenter suggested the state agency 
give permission to construct these Class II wells so that energy 
dependency and job creation remain domestic and that extraction of oil 
and gas resources be done in an environmentally sound manner. The 
agency determined that the issue was outside the scope of the UIC 
program and not relevant as to whether the state's regulations are 
effective to manage the UIC Class II injection well program in 
accordance with section 1425 of the Safe Drinking Water Act.

C. Incorporation by Reference

    This direct final rule amends 40 CFR part 147 and incorporates by 
reference EPA-approved state statutes and regulations. The provisions 
of the Commonwealth of Kentucky Code that contain standards, 
requirements and procedures applicable to owners or operators of UIC 
Class II wells are incorporated by reference into 40 CFR part 147. Any 
provisions incorporated by reference, as well as all permit conditions 
or permit denials issued pursuant to such provisions, will be 
enforceable by EPA pursuant to the SDWA, section 1423 and 40 CFR 
147.1(e).
    In order to better serve the public, the agency is reformatting the 
codification of the EPA-approved state statutes and regulations. 
Instead of codifying the Commonwealth of Kentucky's Statutes and 
Regulations as separate paragraphs, the agency is now codifying a 
binder that contains the ``EPA-Approved Commonwealth of Kentucky Safe 
Drinking Water Act Sec.  1425 Underground Injection Control (UIC) 
Program Statutes and Regulations for Class II wells.'' This binder will 
be incorporated by reference into 40 CFR part 147 and available at 
www.regulations.gov in the docket for this rule. The agency is also 
codifying a table listing the ``EPA-Approved Commonwealth of Kentucky 
Safe Drinking Water Act Sec.  1425 Underground Injection Control (UIC) 
Program Statutes and Regulations for Class II wells'' in 40 CFR part 
147.

V. Statutory and Executive Order Reviews

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

    This action is exempt from review by the Office of Management and 
Budget (OMB) because OMB has determined that the approval of state UIC 
primacy for Class II rules are not significant regulatory actions.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
EPA determined that there is no need for an Information Collection 
Request under the Paperwork Reduction Act because this direct final 
rule does not impose any new federal reporting or recordkeeping 
requirements. Reporting or recordkeeping requirements are based on the 
Commonwealth of Kentucky's UIC Regulations, and the state is not 
subject to the Paperwork Reduction Act. However, OMB has previously 
approved the information collection requirements contained in the 
existing UIC regulations at 40 CFR parts 144-148 for SDWA section 1422 
states and also for section 1425 states under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and assigned OMB 
control number 2040-0042. The OMB control numbers for EPA's regulations 
in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This action does not impose any new 
requirements on any regulated entities. It simply codifies the 
Commonwealth of Kentucky's UIC Program regulations, which meets the 
effectiveness standard under SDWA section 1425 for regulating a Class 
II well program. I have therefore concluded that this action will have 
no net regulatory burden for any directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate as described in 
UMRA, 2 U.S.C. 1521-1538. The action imposes no enforceable duty on any 
state, local or tribal governments or the private sector.

E. Executive Order 13132--Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

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

    This action does not have tribal implications as specified in 
Executive Order 13175 as explained in section V.C. Thus, Executive 
Order 13175 does not apply to this action.

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

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it approves a state action as explained in section V.C.

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

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

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I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations because the rule does not change the level of 
protection provided to human health or the environment.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 147

    Environmental protection, Appeals, Incorporation by reference, 
Penalties, Requirements for plugging and abandonment, Underground 
Injection Control, Protection for USDWs.

    Dated: October 19, 2016.
Gina McCarthy,
Administrator.
    For the reasons set out in the preamble, title 40 of the Code of 
Federal Regulations is amended as follows:

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

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

    Authority:  42 U.S.C. 300h-4.

0
 2. Section 147.900 is added to read as follows:

Subpart S--Kentucky


Sec.  147.900  State-administered program--Class II wells.

    The UIC program for Class II injection wells in the Commonwealth of 
Kentucky, except for those on Indian lands, is the program administered 
by the Kentucky Department of Natural Resources, Division of Oil and 
Gas approved by the EPA pursuant to section 1425 of the SDWA. 
Notification of this approval was published in the Federal Register on 
October 28, 2016]; the effective date of this program is January 26, 
2017. Table 1 to paragraph (a) of this section is the table of contents 
of the Kentucky state statutes and regulations incorporated as follows 
by reference. This program consists of the following elements, as 
submitted to the EPA in the state's program application.
    (a) Incorporation by reference. The requirements set forth in the 
Kentucky State statutes and regulations cited in the binder entitled 
``EPA-Approved Commonwealth of Kentucky Safe Drinking Water Act Sec.  
1425 Underground Injection Control (UIC) Program Statutes and 
Regulations for Class II wells,'' dated August 2016 is hereby 
incorporated by reference and made a part of the applicable UIC program 
under the SDWA for the Commonwealth of Kentucky. This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the 
Kentucky regulations may be obtained or inspected at the Kentucky 
Department of Natural Resources, Division of Oil and Gas, 3th Floor, 
300 Sower Blvd., Frankfort, Kentucky 40601, (315) 532-0191; at the U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960, (404) 562-8190; or at the National 
Archives and Records Administration (NARA). For information on 
availability of this material at NARA, call (202) 741-6030, or go to: 
http://www.archives.gov/federal-register/cfr/ibr-locations.html.

   Table 1 to Paragraph (a)--EPA-Approved Kentucky SDWA Sec.   1425 Underground Injection Control Program Statutes and Regulations for Class II Wells
--------------------------------------------------------------------------------------------------------------------------------------------------------
            State citation                     Title/subject           State effective date                      EPA approval date \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kentucky Revised Statutes Chapter 13B  Kentucky Administrative       June 15, 1994..........  [Insert Federal Register citation].
                                        Procedures Act KRS 13B.005
                                        to 13B.170.
Kentucky Revised Statutes 353.180....  Requirements for plugging     June 24, 2015..........  [Insert Federal Register citation].
                                        abandoned well--Bids--
                                        Remedy for possessor of
                                        adjacent land or for
                                        department.
Kentucky Revised Statutes 353.510....  Definition of KRS 353.500 to  July 15, 2010..........  [Insert Federal Register citation].
                                        353.720.
Kentucky Revised Statutes 353.520....  Territorial application of    June 24, 2003..........  [Insert Federal Register citation].
                                        KRS 353.500 to 353.720--
                                        Waste of oil and gas
                                        prohibited.
Kentucky Revised Statutes 353.550....  Specific authority over oil   July 15, 1996..........  [Insert Federal Register citation].
                                        and gas operators.
Kentucky Revised Statutes 353.570....  Permit Required--May          July 15, 1998..........  [Insert Federal Register citation].
                                        authorize operation prior
                                        to issuance of permit.
Kentucky Revised Statutes 353.590....  Application for permit-Fees-  July 15, 2010..........  [Insert Federal Register citation].
                                        Plat-Bond to insure
                                        plugging--Schedule--Blanket
                                        bonds-Corporate guarantee--
                                        Use of forfeited funds-Oil
                                        and gas well. plugging fund-
                                        Wells not included in
                                        ``water supply well''.
Kentucky Revised Statutes 353.591....  Purpose and application of    July 15, 1986..........  [Insert Federal Register citation].
                                        KRS 353.592 and 353.593.
Kentucky Revised Statutes 353.592....  Powers of the department....  June 24, 2015..........  [Insert Federal Register citation].
Kentucky Revised Statutes 353.593....  Appeals.....................  July 15, 1996..........  [Insert Federal Register citation].
Kentucky Revised Statutes 353.992....  Penalties...................  July 15, 1986..........  [Insert Federal Register citation].
805 Kentucky Administrative            Providing Protection for      August 9, 2007.........  [Insert Federal Register citation].
 Regulations 1:020.                     USDWs.

[[Page 74930]]

 
805 Kentucky Administrative            Well location and as-drilled  October 23, 2009.......  [Insert Federal Register citation].
 Regulations 1:030.                     location plat, preparation,
                                        form and contents.
805 Kentucky Administrative            Plugging wells; non-coal-     June 11, 1975..........  [Insert Federal Register citation].
 Regulations 1:060.                     bearing strata.
805 Administrative Regulations 1:070.  Plugging wells; coal bearing  October 23, 1975.......  [Insert Federal Register citation].
                                        strata.
805 Kentucky Administrative            Underground Injection         April 4, 2008..........  [Insert Federal Register citation].
 Regulations 1:110.                     Control.
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\1\ In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register document cited in this
  column for the particular provision.

    (b) Memorandum of Agreement (MOA). The MOA between EPA Region 4 and 
the Commonwealth of Kentucky Department of Natural Resources signed by 
EPA Regional Administrator on October 20, 2015.
    (c) Statements of Legal Authority. ``Underground Injection Control 
Program, Attorney General's Statement,'' signed by General Counsel of 
Kentucky Energy and Environmental Cabinet on June 7, 2010.
    (d) Program Description. The Program Description submitted as part 
of Kentucky's application, and any other materials submitted as part of 
this application or as a supplement thereto.

0
3. Section 147.901 is amended by revising the section heading and the 
first sentence of paragraph (a) to read as follows:


Sec.  147.901  EPA-administered program--Class I, III, IV, V, and VI 
wells and Indian lands.

    (a) Contents. The UIC program for Class I, III, IV, V and VI wells 
and all wells on Indian lands in the Commonwealth of Kentucky is 
administered by the EPA. * * *
* * * * *

0
4. Add Sec.  147.902 to read as follows:


Sec.  147.902  Aquifer Exemptions.

    (a) This section identifies any aquifers or their portions exempted 
in accordance with Sec. Sec.  144.7(b) and 146.4 of this chapter. These 
aquifers are not being proposed for exemption under the Commonwealth of 
Kentucky's primacy approval. Rather, the exempted aquifers listed below 
were previously approved while EPA had primary enforcement authority 
for the Class II UIC program in the Commonwealth of Kentucky and are 
included here for reference. Additional information pertinent to these 
exempted aquifers or their portions resides in EPA Region 4.
    (1) The following eight aquifers (underground sources of drinking 
water) in the Commonwealth of Kentucky have been exempted in accordance 
with the provisions of Sec. Sec.  144.7(b) and 146.4 of this chapter 
for Class II injection activities only: A portion of the Tar Springs 
sandstone formation that has a quarter mile radius areal extent (125.6 
acres) that is located at latitude 37.7261 and longitude -86.6914. The 
formation has a true vertical depth from surface of 280 feet.
    (2) A portion of the Tar Springs sandstone formation that has a 
quarter mile radius areal extent (125.6 acres) that is located at 
latitude 37.7294 and longitude -867212. The formation has a true 
vertical depth from surface of 249 feet.
    (3) A portion of the Tar Springs sandstone formation that has a 
quarter mile radius areal extent (125.6 acres) that is located at 
latitude 37.7055 and longitude -86.7177. The formation has a true 
vertical depth from surface of 210 feet.
    (4) A portion of the Pennsylvanian Age sandstone formation that has 
a quarter mile radius areal extent (125.6 acres) that is located at 
latitude 37.5402 and longitude -87.2551. The formation has a true 
vertical depth from surface of 1,050 feet.
    (5) A portion of the Tar Springs sandstone formation that has a 
quarter mile radius areal extent (125.6 acres) that is located at 
latitude 37.7301 and longitude -87.6922. The formation has a true 
vertical depth from surface of 240 feet.
    (6) A portion of the Caseyville sandstone formation that has a 
quarter mile radius areal extent (125.6 acres) that is located at 
latitude 37.5776 and longitude -87.1321. The formation had a true 
vertical depth from surface of 350 feet.
    (7) A portion of the Caseyville sandstone formation that has a 
quarter mile radius areal extent (125.6 acres) that is located at 
latitude 37.5778 and longitude -87.1379. The formation has a true 
vertical depth from surface of 1,080 feet.
    (8) A portion of the Caseyville sandstone formation that has a 
quarter mile radius areal extent (125.6 acres) that is located at 
latitude 37.5652 and longitude -87.1222. The formation has a true 
vertical depth from surface of 1,060 feet.
    (b) [Reserved]

0
5. Section 147.903 is amended by revising the section heading to read 
as follows:


Sec.  147.903.  Existing Class I and III wells authorized by rule.


Sec.  147.904   [Removed and reserved]

0
6. Section 147.904 is removed and reserved.

[FR Doc. 2016-25931 Filed 10-27-16; 8:45 am]
 BILLING CODE 6560-50-P


