[Federal Register Volume 85, Number 197 (Friday, October 9, 2020)]
[Rules and Regulations]
[Pages 64053-64056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20544]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 147

[EPA-HQ-OW-2020-0123; FRL-10013-68-OW]


Wyoming Underground Injection Control Program; Class VI Primacy

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is hereby 
approving an application from the State of Wyoming under the Safe 
Drinking Water Act (SDWA) to implement an underground injection control 
(UIC) program for Class VI injection wells to protect underground 
sources of drinking water located within the state, except within 
Indian lands. EPA will continue to administer all well classes within 
Indian lands. Class VI wells are used for the underground injection of 
carbon dioxide into deep subsurface rock formations for long-term 
storage.

DATES: This final rule is effective on October 9, 2020. The Director of 
the Federal Register approved this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51 on October 9, 2020.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2020-0123. All documents in the docket are listed on the 
https://www.regulations.gov Website. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Molly McEvoy, Drinking Water 
Protection Division, Office of Ground Water and Drinking Water (4606M), 
U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460; telephone number: (202) 564-4765; email address: 
mcevoy.molly@epa.gov or Wendy Cheung, Underground Injection Control 
Section, U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop 
Street, MSC 8WD-SDU, Denver, Colorado 80202; telephone number: (303) 
312-6242; email address: cheung.wendy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The State of Wyoming received primacy enforcement responsibility 
(primacy) for Class I, III, IV, and V injection wells under the SDWA 
section 1422 on August 17, 1983, and Class II injection wells under the 
SDWA section 1425 on December 23, 1982. Wyoming has applied to EPA 
under section 1422 of the SDWA, 42 U.S.C. 300h-1, for primacy for Class 
VI injection wells, except those located on Indian lands. The UIC 
program revision package from Wyoming includes a description of the 
State Underground Injection Control program for Class VI injection 
wells, copies of all applicable rules and forms, a statement of legal 
authority, a summary and results of Wyoming's public participation 
activities, and a Memorandum of Agreement between Wyoming and EPA's 
Regional Administrator for Region 8.
    This action is based on a legal and technical review of the State 
of Wyoming's application as directed in the Code of Federal Regulations 
(CFR) at 40 CFR part 145. As a result of this review, EPA is approving 
Wyoming's application because it meets or exceeds all applicable 
requirements for approval under the SDWA section 1422 and the Agency 
has determined that the state is capable of administering a Class VI 
UIC program in a manner consistent with the terms and purposes of the 
SDWA and all applicable regulations to protect underground sources of 
drinking water (USDWs).

II. Legal Authorities

    This regulation is being promulgated under authority of the SDWA 
sections 1422 and 1450, 42 U.S.C. 300h-1 and 300j-9.

III. Requirements for State UIC Programs

    SDWA section 1421 requires the Administrator of EPA to promulgate 
minimum requirements for effective state UIC programs to prevent 
underground injection activities that endanger USDWs. SDWA section 1422 
establishes requirements for states seeking EPA approval of state UIC 
programs.
    For states that seek approval for UIC programs under SDWA section 
1422, EPA has promulgated a regulation setting forth the applicable 
procedures and substantive requirements, codified at 40 CFR part 145. 
It includes requirements for state permitting programs (by referencing 
certain provisions of 40 CFR parts 124 and 144), compliance evaluation 
programs, enforcement authority, and information sharing.

IV. Wyoming's Application

A. Background

    On January 31, 2020, Wyoming submitted a program revision 
application to add Class VI injection wells to the state's SDWA section 
1422 UIC program. The UIC program revision package from Wyoming 
includes a description of the state UIC program for Class VI injection 
wells, copies of all applicable rules and forms, a statement of legal 
authority, a summary and results of Wyoming's public participation 
activities, and a Memorandum of Agreement between Wyoming and EPA's 
Regional Administrator for Region 8. EPA reviewed the application for 
completeness and simultaneously performed a technical evaluation of the 
application materials.
    On April 14, 2020, EPA published a Federal Register document 
announcing Wyoming's submittal of a complete UIC program revision 
application to the Agency. In that document, EPA proposed to approve 
the application from Wyoming under the SDWA section 1422 to implement a 
UIC program for Class VI injection wells located within the state, 
except those on Indian country; sought public comments on the Agency's 
intent to approve Wyoming's application; and provided an opportunity to 
request a public hearing.

B. Public Participation Activities Conducted by the State of Wyoming

    In 2019, Wyoming held two public hearings with public comment 
periods on the state's intent to adopt its Class VI UIC regulations. 
The Wyoming Water and Waste Advisory Board (WWAB) held the first public 
hearing on June 25, 2019, in Casper, Wyoming. The WWAB accepted public 
comments beginning on May 17, 2019, through the adjournment of the 
public hearing. The Wyoming Environmental Quality Council held the 
second public hearing on November 19, 2019, in Cheyenne, Wyoming. The 
Wyoming Environmental Quality Council accepted comments on proposed 
revisions from September 13, 2019, through October 30, 2019. The 
Wyoming Class VI regulations were signed by the Governor of Wyoming on 
January 23, 2020. Documentation of all public participation activities, 
including those associated with Class VI UIC regulations and subsequent 
revisions that the state proposed before 2019 can

[[Page 64054]]

be found in EPA's Docket ID No. EPA-HQ-OW-2020-0123.

C. Public Participation Activities Conducted by EPA

    On April 14, 2020, EPA issued a proposed rule (85 FR 20621), 
proposing to approve Wyoming's application to implement a UIC program 
for Class VI injection wells. This proposed rule provided that a public 
hearing would be held if requested. EPA did not receive any requests 
for a public hearing.

V. Public Comments Received on the Proposed Rule and EPA's Response to 
Comments

    As previously noted, on April 14, 2020, EPA issued a proposal to 
approve the Wyoming application to implement the Class VI UIC program 
within the state (85 FR 20621) and requested public comments. The 
public comment period was open for 45 days and ended on May 29, 2020. 
EPA received seven public comment submissions. Of the seven commenters, 
all submitted comments in support of the rule and one requested 
clarification on certain aspects of Wyoming's UIC Class VI Program. 
After close consideration of the comments and coordination with the 
Wyoming Department of Environmental Quality, EPA provided clarification 
on the areas where the commenter requested clarification. The comments 
received and EPA's responses are available in EPA's Docket No. EPA-HQ-
OW-2020-0123.

VI. EPA's Approval--Incorporation by Reference

    In this action, EPA is approving the State of Wyoming's Class VI 
UIC program; whereby the state will assume primacy for regulating Class 
VI injection wells in the state, except within Indian lands. Wyoming's 
statutes and supporting documentation are publicly available in EPA's 
Docket No. EPA-HQ-OW-2020-0123. This action amends 40 CFR part 147 and 
incorporates by reference EPA-approved state statutes and regulations. 
EPA will continue to administer the UIC program for all well classes 
within Indian lands.
    The provisions of the State of Wyoming's statutes and regulations 
that contain standards, requirements, and procedures applicable to 
owners or operators of UIC Class VI wells are incorporated by reference 
into 40 CFR 147.2250 by this rule. Provisions of the State of Wyoming's 
statutes and regulations that contain standards, requirements, and 
procedures applicable to owners or operators of Class I, III, IV, and V 
injection wells have already been incorporated by reference into 40 CFR 
147.2250 through prior EPA rules. Any provisions incorporated by 
reference, as well as all permit conditions or permit denials issued 
pursuant to such provisions, will be enforceable by EPA pursuant to the 
SDWA section 1423 and 40 CFR 147.1(e).
    In order to better serve the public, EPA is reformatting the 
codification of EPA-approved Wyoming SDWA section 1422 UIC program 
statutes and regulations for well Classes I, III, IV, V and VI. Instead 
of codifying the Wyoming statutes and regulations as separate 
paragraphs, EPA is now incorporating by reference a compilation that 
contains EPA-approved Wyoming statutes and regulations for well Classes 
I, III, IV, V, and VI. This compilation is incorporated by reference 
into 40 CFR 147.2250 and is available at https://www.regulations.gov in 
the docket for this rule. A complete list of the Wyoming statutes and 
regulations contained in the compilation, titled ``EPA-approved Wyoming 
SDWA Sec.  1422 Underground Injection Control Program Statutes and 
Regulations for Well Classes I, III, IV, V and VI,'' is codified as 
Table 1 to paragraph (a) in that section.
    EPA will continue to oversee the State of Wyoming's administration 
of the SDWA Class VI program. As part of EPA's oversight 
responsibility, EPA will require Wyoming to submit semi-annual reports 
of non-compliance and annual UIC performance reports pursuant to 40 CFR 
144.8. The Memorandum of Agreement between EPA and the State of 
Wyoming, signed by the Regional Administrator on March 20, 2020, makes 
available to EPA any information obtained or used by Wyoming's Class VI 
UIC program, without restriction.

VII. Effective Date

    This final rule is effective immediately upon publication. Section 
553(d) of the Administrative Procedure Act (``APA''), 5 U.S.C. 553(d), 
provides that final rules shall not become effective until 30 days 
after publication in the Federal Register, ``except . . . as otherwise 
provided by the agency for good cause,'' among other exceptions. The 
purpose of this provision is to ``give affected parties a reasonable 
time to adjust their behavior before the final rule takes effect.'' 
Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996); see also 
United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) 
(quoting legislative history). Thus, in determining whether good cause 
exists to waive the 30-day delay, an agency should ``balance the 
necessity for immediate implementation against principles of 
fundamental fairness which require that all affected persons be 
afforded a reasonable amount of time to prepare for the effective date 
of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA has determined that 
there is good cause for making this final rule effective immediately 
because this action will simply provide that the State of Wyoming has 
primacy under the SDWA for the UIC Class VI program, pursuant to which 
the State of Wyoming will be implementing and enforcing a state 
regulatory program that is as stringent as the existing federal 
program. At this time, there are no federally permitted Class VI wells 
in Wyoming. As a result, there are no current permittees that need time 
to prepare for this rule and any prospective permittees will benefit 
from the regulatory certainty that an immediate effective date will 
provide. This final rule will not require affected persons to take 
action or change behavior to come into compliance within the next 30 
days. For these reasons, EPA finds that good cause exists under section 
5 U.S.C. 553(d)(3) to make this rule effective immediately upon 
publication.

VIII. Statutory and Executive Order Reviews

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

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

    This action is exempt from review by the Office of Management and 
Budget (OMB) because it is an approval of a state UIC program.

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

    This action is not an Executive Order 13771 regulatory action 
because this action is exempt under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden 
under the PRA. OMB has previously approved the information collection 
activities contained in the existing regulations and has assigned OMB 
control number 2040-0042. Reporting or recordkeeping requirements will 
be based on Wyoming's UIC Regulations, and the State of Wyoming is not 
subject to the PRA.

[[Page 64055]]

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden, or otherwise has a positive economic effect on the small 
entities subject to the rule. This action does not impose any 
requirements or burden on small entities as this action approves a 
state program.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local, or tribal governments or the private sector. EPA's approval of 
Wyoming's program will not constitute a federal mandate because there 
is no requirement that a state establish UIC regulatory programs and 
because the program is a state, rather than a federal program.

F. Executive Order 13132: Federalism

    EPA has concluded that this action has federalism implications. 
Although federalism concerns were implicated by this action, on the 
distribution of power and responsibilities among the state and federal 
government, the other criteria identified in Executive Order (E.O.) 
13132 do not apply. See E.O. 13132(6)(b)&(c). For example, this action 
does not impose substantial direct compliance costs on the state, which 
voluntarily sought primacy. Moreover, EPA is required by statute to 
approve a primacy application that meets applicable requirements. 
Finally, this action does not preempt state law.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action contains no federal mandates for 
tribal governments and does not impose any enforceable duties on tribal 
governments. Thus, Executive Order 13175 does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    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 program.

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

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

J. National Technology Transfer and Advancement Act

    This action does not involve technical standards.

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

    EPA has determined that this action is not subject to Executive 
Order 12898 (59 FR 7629, February 16, 1994) because it does not 
establish an environmental health or safety standard. This action is 
simply approving primacy for Wyoming under the SDWA for the Class VI 
UIC program, pursuant to which Wyoming will be implementing and 
enforcing a state regulatory program that is as stringent as the 
existing federal program.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. The CRA allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and comment rulemaking procedures are 
impracticable, unnecessary, or contrary to the public interest (5 
U.S.C. 808(2)). EPA has made a good cause finding for this rule for an 
immediate effective date as discussed in Section VII of this document, 
which includes the basis for that finding.

List of Subjects in 40 CFR 147

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

Andrew Wheeler,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR part 
147 as follows:

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

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

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

0
1. Amend Sec.  147.2550 by:
0
a. Revising the section heading;
0
b. Revising the introductory text and paragraph (a);
0
c. Adding paragraphs (c)(6) and (7), and (d)(3) and (4); and
0
d. Revising paragraph (e).
    The revisions and additions read as follows.


Sec.  147.2550   State-administered program--Class I, III, IV, V and VI 
wells.

    The UIC program for Class I, III, IV, and V wells in the State of 
Wyoming, except those located on Indian lands, is the program 
administered by Wyoming Department of Environmental Quality, approved 
by EPA pursuant to the Safe Drinking Water Act (SDWA) section 1422. The 
effective date of this program is August 17, 1983. The UIC Program for 
Class VI wells in Wyoming, except those located on Indian lands, is the 
program administered by Wyoming Department of Environmental Quality, 
approved by EPA pursuant to the SDWA section 1422. The effective date 
of this program is October 9, 2020. The UIC program for Class I, III, 
IV, V, and VI wells in the State of Wyoming, except those located on 
Indian lands, consists of the following elements, as submitted to the 
EPA in the State's program application and program revision 
application.
    (a) Incorporation by reference. The requirements set forth in the 
state statutes and regulations approved by the EPA for inclusion in 
``EPA-Approved Wyoming SDWA Sec.  1422 Underground Injection Control 
Program Statutes and Regulations for Well Classes I, III, IV, V and 
VI,'' dated March 31, 2020, and listed in Table 1 to this paragraph 
(a), are hereby incorporated by reference and made a part of the 
applicable UIC program under the SDWA for Wyoming. The Director of the 
Federal Register approves this incorporation by reference in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the State of 
Wyoming's regulations that are

[[Page 64056]]

incorporated by reference may be inspected at the U.S. Environmental 
Protection Agency, Region 8, 1595 Wynkoop Street, MSC 8WD-SDU, Denver, 
Colorado 80202 and the Water Docket, EPA Docket Center (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., NW, Washington, DC 20460. If 
you wish to obtain materials from the EPA Regional Office, please call 
(303) 312-7226; for materials from a docket in the EPA Headquarters 
Library, please call the Water Docket at (202) 566-2426. You may also 
inspect the materials at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, email fedreg.legal@nara.gov, or go to 
www.archives.gov/federal-register/cfr/ibr-locations.html.

 Table 1 to Paragraph (a)--EPA-Approved Wyoming SDWA Sec.   1422 Underground Injection Control Program Statutes
                              and Regulations for Well Classes I, III, IV, V and VI
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                                                                             State
            State citation                       Title/subject             effective      EPA approval date \1\
                                                                             date
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Wyoming Statutes sections 35-11-101     Wyoming Environmental Quality             1989  March 6, 1991, 56 FR
 through 35-11-115, and 35-11-301        Act.                                            9421.
 through 35-11-305.
Water Quality Rules and Regulations,    Regulations for Permit to                 1983  May 11, 1984, 49 FR
 Wyoming Department of Environmental     Construct, Install or Modify                    20197.
 Quality Chapter III: Regulations for    Public Water Supplies,
 Permit to Construct, Install or         Wastewater Facilities,
 Modify Public Facilities Capable or,    Disposal Systems, Biosolids
 (sic) Causing or Contributing to        Management Facilities,
 Pollution.                              Treated Wastewater Reuse
                                         Systems and Other Facilities
                                         Capable of Causing or
                                         Contributing to Pollution.
Water Quality Rules and Regulations,    Quality Standards for                     1980  May 11, 1984, 49 FR
 Wyoming Department of Environmental     Groundwaters of Wyoming.                        20197.
 Quality, Chapter VIII: Quality
 Standards for Groundwaters of Wyoming.
Water Quality Rules and Regulations,    Wyoming Groundwater Pollution             1980  May 11, 1984, 49 FR
 Wyoming Department of Environmental     Control Permit.                                 20197.
 Quality, Chapter IX: Wyoming
 Groundwater Pollution Control Permit.
Water Quality Rules and Regulations,    Prohibitions of Permits for               1989  March 6, 1991, 56 FR
 Wyoming Department of Environmental     New Hazardous Waste Injection                   9421.
 Quality, Chapter XIII: Prohibitions     Wells.
 of Permits for New Hazardous Waste
 Injection Wells.
Land Quality Rules and Regulations,     In Situ Mining................            1981  May 11, 1984, 49 FR
 Wyoming Department of Environmental                                                     20197.
 Quality, Chapter XXI: In Situ Mining.
Water Quality Rules and Regulations,    Class VI Injection Wells and              2020  October 9, 2020, [Insert
 Wyoming Department of Environmental     Facilities Underground and                      Federal Register
 Quality, Chapter XXIV: Class VI         Injection Control Program.                      citation]
 Injection Wells and Facilities
 Underground and Injection Control
 Program.
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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 notice cited in this column for the particular provision.

* * * * *
    (c) * * *
    (6) Memorandum of Agreement addendum between EPA, Region VIII, and 
Wyoming Department of Environmental Quality, signed by the EPA Regional 
Administrator on March 20, 2020.
    (7) Letter from Governor of Wyoming to Regional Administrator, EPA 
Region VIII, ``Re: UIC Program Class VI Application,'' January 23, 
2020.
    (d) * * *
    (3) ``Attorney General's Statement--``Attorney General's Statement 
to Accompany Wyoming's Underground Injection Control Program Class VI 
Primacy Application,'' signed by Attorney General and Assistant 
Attorney General for the State of Wyoming, January 9, 2020.
    (4) Letter from the Attorney General for the State of Wyoming to 
Regional Counsel, EPA Region VIII, ``Re: Wyoming Underground Injection 
Control Program Class VI Regulations,'' October 25, 2019.
    (e) The Program Description and any other materials submitted as 
part of the application or amendment thereto, and the Program 
Description and any other materials submitted as part of the revision 
application or amendment thereto.

[FR Doc. 2020-20544 Filed 10-8-20; 8:45 am]
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