Rule2024-00044
State of Louisiana Underground Injection Control Program; Class VI Primacy
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 5, 2024
Effective
February 5, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency is approving an application from the state of Louisiana to revise the state's Safe Drinking Water Act (SDWA) section 1422 underground injection control (UIC) program to include Class VI injection well primary enforcement responsibility (primacy). This final rule allows the Louisiana Department of Natural Resources to issue UIC permits for geologic carbon sequestration facilities as Class VI wells and ensure compliance of Class VI wells under the UIC program within the state. The EPA will remain the permitting authority for all well classes in Indian lands within the state and will also oversee Louisiana's administration of the state's UIC Class VI program as authorized under SDWA.
Full Text
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<title>Federal Register, Volume 89 Issue 4 (Friday, January 5, 2024)</title>
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[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Rules and Regulations]
[Pages 703-712]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00044]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[EPA-HQ-OW-2023-0073; FRL 9916-02-OW]
State of Louisiana Underground Injection Control Program; Class
VI Primacy
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is approving an
application from the state of Louisiana to revise the state's Safe
Drinking Water Act (SDWA) section 1422 underground injection control
(UIC) program to include Class VI injection well primary enforcement
responsibility (primacy). This final rule allows the Louisiana
Department of Natural Resources to issue UIC permits for geologic
carbon sequestration facilities as Class VI wells and ensure compliance
of Class VI wells under the UIC program within the state. The EPA will
remain the permitting authority for all well classes in Indian lands
within the state and will also oversee Louisiana's administration of
the state's UIC Class VI program as authorized under SDWA.
DATES: This final rule is effective on February 5, 2024. 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 February 5, 2024.
For judicial purposes, this final rule is promulgated as of January 5,
2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2023-0073. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by law. 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Suzanne Kelly, Drinking Water
Infrastructure Development Division, Office of Ground Water and
Drinking Water (4606M), Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202)
564-3887; or Lisa Pham, U.S. EPA Region 6, Groundwater/UIC Section
(Mail code WDDG), 1201 Elm Street, Suite 500, Dallas, Texas 75720-2102;
telephone number: (214) 665-8326. Both can be reached by emailing:
<a href="/cdn-cgi/l/email-protection#c5898486a9a4b6b6938c8b8a8485a0b5a4eba2aab3"><span class="__cf_email__" data-cfemail="5c101d1f303d2f2f0a1512131d1c392c3d723b332a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. UIC Program and Primary Enforcement Authority (Primacy)
B. Class VI Wells Under the UIC Program
C. Louisiana UIC Programs
D. Final Rule
II. Legal Authorities
III. Louisiana's Application for Class VI Primacy
A. Background
B. Public Participation Activities Conducted by Louisiana
C. Environmental Justice (EJ) in Class VI Permitting
D. Summary of the EPA's Comprehensive Evaluation
E. Public Participation Activities Conducted by the EPA
IV. Public Comments and the EPA's Responses
A. Public Comments
B. The EPA's Response to Comments
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations; Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Congressional Review Act (CRA)
VII. References
I. Introduction
A. UIC Program and Primary Enforcement Authority (Primacy)
The Safe Drinking Water Act (also known as SDWA), 42 U.S.C. 300h-1,
was passed by Congress in 1974. It protects public health by regulating
the nation's public drinking water supply, including both surface and
groundwater
[[Page 704]]
sources. The SDWA requires the EPA to develop requirements for state
and Tribal Underground Injection Control programs. These programs
regulate the injection of fluids (such as water, wastewater, brines
from oil and gas production, and carbon dioxide) to protect underground
sources of drinking water. USDWs are aquifers or parts of aquifers that
supply a public water system or contain enough groundwater to supply a
public water system. See 40 CFR 144.3.
The UIC program regulates various aspects of an injection well
project. These include technical aspects throughout the lifetime of the
project from site characterization, construction, operation, and
testing and monitoring through site closure, as well as permitting,
site inspections, and reporting to ensure well owners and operators
comply with UIC regulations.
SDWA section 1422 directs the EPA to establish requirements that
states, territories, and federally recognized Tribes (hereafter
referred to as applicants) must meet to be granted primary enforcement
responsibility or ``primacy'' for implementing a UIC program, including
a Class VI program. An applicant seeking primacy under SDWA section
1422 for a Class VI program must demonstrate to the EPA that the
applicant's Class VI program meets federal requirements to protect
USDWs, including jurisdiction over underground injection and provisions
for the necessary civil and criminal enforcement remedies under SDWA.
The EPA conducts a comprehensive technical and legal evaluation of
each primacy application to assess and confirm that the proposed
program meets the federal regulatory requirements and to evaluate the
effectiveness of the state's proposed program at protecting USDWs.
Louisiana's application included the following elements: Louisiana's
Class VI-related UIC statutes and regulations; documents describing
Louisiana's public participation process when adopting its proposed
Class VI program; a letter from the Governor of Louisiana requesting
Class VI primacy; a Program Description that explains how the state
intends to carry out its responsibilities; a state Attorney General's
Class VI statement of enforcement authority; and an addendum to the
existing Memorandum of Agreement between the EPA and Louisiana
describing the administration, implementation, and enforcement of the
Louisiana's Class VI program.
B. Class VI Wells Under the UIC Program
Class VI wells are used to inject carbon dioxide into deep rock
formations for the purpose of long-term underground storage, also known
as geologic sequestration. Geologic sequestration, when used as a part
of carbon capture and storage and carbon dioxide removal projects (such
as projects that remove carbon dioxide from the atmosphere), is a
promising tool for reducing the amount of carbon dioxide in the
atmosphere. Class VI injection wells are regulated under an existing,
rigorous SDWA permitting framework that protects USDWs.
The UIC Class VI program provides multiple safeguards that work
together to protect USDWs and human health. Owners or operators that
wish to inject carbon dioxide for the purpose of geologic sequestration
must demonstrate that their injection well will meet all regulatory
requirements and receive a Class VI permit for each well. The UIC Class
VI program requires applicants to meet strict technical, financial, and
reporting and record keeping requirements to obtain a Class VI permit,
including:
<bullet> Site characterization to ensure the geology in the project
area will contain the carbon dioxide within the zone where it will be
injected.
<bullet> Modeling to delineate the predicted area influenced by
injection activities through the lifetime of operation.
<bullet> Evaluation of the delineated area to ensure all potential
pathways for fluid movement have been identified and addressed through
corrective action.
<bullet> Well construction requirements that ensure the Class VI
injection well will not leak carbon dioxide.
<bullet> Testing and monitoring throughout the life of the project,
including after carbon dioxide injection has ended. Requirements
include, for example, testing to ensure physical integrity of the well,
monitoring for seismic activity near the injection site, monitoring of
injection pressure and flow, chemical analysis of the carbon dioxide
stream that is being injected, and monitoring the extent of the
injected carbon dioxide plume and the surrounding area (e.g., ground
water) to ensure the carbon dioxide is contained as predicted.
<bullet> Operating requirements (e.g., injection pressure
monitoring and mechanical integrity testing requirements) to ensure the
injection activity will not endanger USDWs or human health.
<bullet> Financial assurance mechanisms sufficient to cover the
cost for all phases of the geologic sequestration project including the
post injection site care period until site closure has been approved by
the permitting authority.
<bullet> Emergency and remedial response plans.
<bullet> Reporting of all testing and monitoring results to the
permitting authority to ensure the well is operating in compliance with
all permit and regulatory requirements.
The permitting authority ensures that these protective requirements
are included and implemented for each Class VI permit. A draft of each
Class VI permit must be made available to the public for comment before
a final permit is issued.
C. Louisiana UIC Programs
The state of Louisiana received primacy for Class I, III, IV, and V
injection wells under SDWA section 1422, and Class II injection wells
under SDWA section 1425 on March 23, 1982. On September 17, 2021,
Louisiana applied to the EPA under section 1422 of SDWA for primacy for
Class VI injection wells located within the state, except those located
on Indian lands. On December 9, 2022, and January 11, 2023, the EPA
Administrator Michael S. Regan sent letters to governors and Tribal
leaders calling for partnership to advance the twin goals of combatting
climate change and supporting environmental justice. In the letters,
the EPA encouraged states and Tribes seeking primacy to incorporate EJ
and equity considerations into proposed UIC Class VI programs. During
development of the proposed rule, Louisiana revised its Class VI MOA
addendum to incorporate all the EJ elements described in the letter,
including elements related to implementing an inclusive public
participation process, incorporating EJ and civil rights considerations
in permit review processes, enforcing Class VI regulatory protections,
and incorporating mitigation measures. During the comment period for
the EPA's proposal, Louisiana signed into law Act No. 378 (HB 571),
which revised portions of Louisiana law relevant to LDNR's application
effective June 14, 2023. After the comment period, on June 30, 2023,
LDNR supplemented its Class VI primacy application to include Act No.
378. In response, on August 16, 2023, the EPA published a Notice of
Availability in the Federal Register (88 FR 55610) providing a 30-day
comment period specific to LDNR's supplement to its primacy
application, since this information was not available for public review
and comment at the time of the proposal. That comment period closed on
September 15, 2023.
[[Page 705]]
D. Final Rule
In this final rule, the EPA is approving Louisiana's application
because the EPA has determined that the application meets all
applicable requirements for approval under SDWA section 1422 and the
state is capable of administering a Class VI program in a manner
consistent with the terms and purposes of SDWA and applicable UIC
regulations. The EPA will remain the permitting authority for all UIC
well classes on Indian land within the state (including Class VI wells)
and will also oversee Louisiana's administration of the state's UIC
Class VI program as authorized under SDWA.
II. Legal Authorities
This final rule is issued under authority of SDWA sections 1422 and
1450, 42 U.S.C. 300h-1 and 300j-9.
Section 1421 of SDWA requires the Administrator of the EPA to
promulgate federal requirements for effective state UIC programs to
prevent underground injection activities that endanger USDWs. Section
1422 of SDWA establishes requirements for states and Tribes seeking the
EPA's approval of their UIC programs. It also requires that states and
Tribes seeking approval demonstrate to the satisfaction of the
Administrator that the applicant (after public notice) has adopted and
will implement a UIC program which meets the requirements set forth
under section 1421. The EPA's regulations establish procedures for the
EPA's review, and approval or disapproval, of state or Tribal revisions
to existing UIC programs already approved by the EPA. 40 CFR 145.32.
For states and Tribes that seek approval for UIC programs under
section 1422 of SDWA and those seeking the EPA's approval of revisions
to existing state and Tribal UIC programs, the EPA has promulgated
regulations setting forth the applicable procedures and substantive
requirements codified in 40 CFR parts 144, 145 and 146. 40 CFR part 144
outlines general program requirements that each state or Tribe must
meet to obtain UIC primacy. 40 CFR part 145 specifies the procedures
the EPA will follow in approving primacy programs, approving revisions
to such programs, and withdrawing primacy programs and outlines the
elements and provisions that a state or Tribe must include in its
application. It also includes requirements for state or Tribal
permitting programs (often by reference to certain provisions of 40 CFR
parts 124 and 144), compliance evaluation programs, enforcement
authority, and information sharing. 40 CFR part 146 contains the
technical criteria and standards applicable to each well class,
including Class VI wells.
III. Louisiana's Application for Class VI Primacy
A. Background
On September 17, 2021, Louisiana submitted to the EPA a program
revision application to add Class VI injection wells to the state's
SDWA section 1422 UIC program. The UIC program revision package
included a description of the state's UIC Class VI program, copies of
all applicable rules and forms, a statement of legal authority, a
summary and results of Louisiana's public participation activities for
developing the proposed Class VI program, and an addendum to the
existing MOA between Louisiana and the EPA's Region 6 office. The EPA
reviewed the application for completeness and performed a technical
evaluation of the application materials.
B. Public Participation Activities Conducted by Louisiana
In October 2020, LDNR published a notice of intent in the Louisiana
Register to adopt Statewide Order No. 29-N-6 providing rules for Class
VI injection wells. LDNR held a public comment period from October 20,
2020, to December 1, 2020, and provided the opportunity to request a
public hearing. There was no request for a public hearing. LDNR
received five comments, which did not result in changes to the proposed
rule. LDNR later provided a second public comment period on the state's
intent to seek Class VI Primacy from May 28, 2021, to July 13, 2021.
LDNR held a public hearing at the LDNR Office in Baton Rouge on July 6,
2021. Notice of the comment period and public hearing was published in
six newspapers across Louisiana, through an email mailing list, and on
LDNR's website to garner statewide attention. LDNR received seven oral
comments at the hearing and 21 written public comments. Commenters
shared general concerns about the role of carbon capture and storage in
mitigating climate change, sensitive coastal areas and erosion caused
by pipelines, and the current pollution and environmental hazard burden
in Louisiana. Commenters were also specifically concerned about whether
LDNR had adequate resources to successfully permit and monitor Class VI
projects and the state's assumption of liability after completion of
projects. Environmental Justice was also a major concern, with
commenters seeking a clear EJ review process and criteria, as well as a
mechanism for Class VI projects to avoid impacts on already
overburdened communities. LDNR responded to all public comments
including details about increased staffing and resources for Class VI
permitting responsibilities. Documentation of Louisiana's public
participation activities, including comments received and responses by
the LDNR, can be found in EPA's Docket ID No. EPA-HQ-OW-2023-0073.
C. Environmental Justice (EJ) in Class VI Permitting
People across the country have shared with the EPA concerns about
the safety of carbon capture and storage and carbon dioxide removal
projects as well as their concern that already environmentally
overburdened communities may yet again bear a disproportionate
environmental burden associated with geologic sequestration. Executive
Order 12898 (59 FR 7629, February 16, 1994) and Executive Order 14096
(88 FR 25251, April 21, 2023) direct federal agencies, to the greatest
extent practicable and permitted by law, to identify and address, as
appropriate, disproportionate and adverse human health or environmental
impacts on communities with EJ concerns. On December 9, 2022, and
January 11, 2023, the EPA Administrator Michael S. Regan sent letters
to governors and Tribal leaders calling for partnership to advance the
twin goals of combatting climate change and supporting EJ. In the
letters, the Administrator encouraged states and Tribes seeking primacy
to incorporate EJ and equity considerations into proposed UIC Class VI
programs, including in permitting. The Administrator's letters outlined
a variety of approaches related to implementing an inclusive public
participation process, consideration of EJ impacts on communities,
enforcing Class VI regulatory requirements, and incorporating
mitigation measures.
As part of developing this final rule, the EPA worked with the
state of Louisiana to adopt the environmental justice approaches
encouraged in the Administrator's letter, which Louisiana has
incorporated into its primacy application. The EPA reviewed Louisiana's
EJ approach as described in the state's Program Description and MOA
addendum and compared it to the EJ elements discussed in the
Administrator's letter. Louisiana has committed in its MOA addendum to
adopt all of the EJ elements described in the letter, and in particular
noted that inclusive public participation processes and incorporation
of EJ and civil rights considerations in permit review will be
[[Page 706]]
achieved through the methods set forth in the Program Description. For
example, Louisiana committed in the MOA addendum to examine the
potential risks of each proposed Class VI well to minority and low-
income populations. The EPA supports these commitments. Furthermore,
Louisiana's Program Description specifies that LDNR will require well
owners or operators to conduct an EJ review as part of the Class VI
application process. The Program Description also provides that LDNR
intends to evaluate project sites using the EPA's EJ Screen and to
utilize qualified third-party reviewers to conduct additional
evaluation of the Class VI application when communities with EJ
concerns and/or other increased risk factors are identified. The
results of the review will be used by LDNR to determine if an enhanced
public comment period will be required. Lastly, LDNR's Program
Description provides that LDNR will require applicants to assess
alternatives to the proposed site location and propose mitigating
measures to ensure adverse environmental effects are minimized. The EPA
supports each of these efforts described in LDNR's program description.
Based on its review of LDNR's MOA addendum and Program Description,
the EPA concludes that Louisiana has addressed all EJ elements that
were discussed in the Administrator's letter. The EPA supports LDNR's
adoption of these approaches to protecting communities with EJ
concerns. Louisiana's Class VI Program, as described in LDNR's primacy
application, includes approaches to ensure that equity and EJ will be
appropriately considered in permit reviews, and in LDNR's UIC Class VI
program as a whole.
D. Summary of the EPA's Comprehensive Evaluation
The EPA conducted a comprehensive technical and legal evaluation of
Louisiana's Class VI primacy application to assess and confirm that the
state's UIC Class VI program meets federal regulatory requirements, and
the EPA evaluated the effectiveness of the state's Class VI program. To
be approved for Class VI primacy under SDWA section 1422, a state or
Tribe must have a UIC program that meets federal requirements (40 CFR
parts 124, 144, 145, and 146). The EPA evaluated Louisiana's UIC
statutes and Class VI regulations against these federal requirements.
The evaluation involved identifying and resolving any discrepancies
between the state and federal UIC Class VI statutory and regulatory
provisions prior to LDNR's submittal of the primacy application. The
EPA's evaluation of the stringency and effectiveness of Louisiana's
proposed Class VI program included an evaluation of Louisiana's Class
VI Program Description, the state Attorney General's Class VI statement
of enforcement authority, and the addendum to the MOA between the EPA
and Louisiana, describing the administration, implementation, and
enforcement of Louisiana's UIC Class VI program.
The EPA evaluated Louisiana's Class VI program description against
40 CFR 145.23, which identifies all the information that must be
submitted as part of the program description. The EPA's evaluation of
the program description includes reviewing the scope, structure,
coverage, processes and organizational structure of the permitting
authority. The EPA evaluated LDNR's permitting, administrative and
judicial review procedures and reviewed the permit application,
reporting, and manifest forms. The EPA also reviewed LDNR's description
of the state's compliance tracking and enforcement mechanisms. The EPA
evaluated LDNR's proposed schedule for issuing permits within the first
2 years after Class VI program approval. The EPA reviewed LDNR's
description of the state agency staff who will carry out the Class VI
program, including number, occupations, and general duties. The EPA
also reviewed the Program Description to ensure that Louisiana has
demonstrated that the state's Class VI program will have adequate in-
house staff or access to contractor support for technical areas
including site characterization, modeling, well construction, testing
and monitoring, financial responsibility, regulatory and risk analysis
expertise.
The EPA evaluated Louisiana's Class VI Attorney General's statement
against 40 CFR 145.24 to ensure it meets federal requirements. The
Attorney General's statement is required to ensure that a state's top
legal officer affirms that state statutes, regulations and judicial
decisions demonstrate adequate authority to administer the UIC Program
as described in the program description and consistent with the EPA's
regulatory requirements for UIC programs. The EPA independently
evaluates and confirms that the Attorney General's statement certifies
that the state either does not have environmental audit privilege and/
or immunity laws, or, if there are environmental audit privilege and/or
immunity laws, that they will not affect the ability of the state to
meet the EPA's regulatory requirements regarding enforcement and
information gathering.
The EPA evaluated Louisiana's Class VI MOA addendum against 40 CFR
145.25 to ensure it meets federal requirements. The MOA is the central
agreement setting the provisions and arrangements between the state and
the EPA concerning the administration, implementation, and enforcement
of the state UIC Program. The EPA's evaluation includes ensuring that
the MOA contains the necessary provisions pertaining to agreements on
coordination, permitting, compliance monitoring, enforcement, and the
EPA's oversight. For example, the LDNR Class VI MOA addendum specifies
that LDNR and the EPA agree to maintain a high level of cooperation and
coordination to assure successful and efficient administration of the
UIC Class VI program. The EPA is aware that stakeholders have raised
concern about Louisiana's long term liability provision in Louisiana
Revised Statute (LA R.S.) 30:1109. As noted in the EPA's proposal, LDNR
agreed in the MOA addendum that LDNR will not issue a certificate of
completion pursuant to LA R.S. 30:1109 until the owner or operator
submits a site closure report pursuant to 40 CFR 146.93(f) and
Louisiana Code (LAC) 43:XVII.3633.A.6 and otherwise fully complies with
the site closure requirements in 40 CFR 146.93 and LAC 43:XVII.3633.A.
Additionally, LDNR agreed to coordinate with the EPA prior to LDNR
approving any site closure to ensure doing so is consistent with the
requirements of the federal Safe Drinking Water Act. During the comment
period for the EPA's proposal, Louisiana signed into law Act No. 378
(HB 571), which revised Louisiana's long term liability provision in LA
R.S. 30:1109. In this final rule, the EPA concludes that Louisiana's
Class VI Program--considering the revisions made by Act 378 and as
implemented consistent with the MOA addendum--meets federal
requirements.
Louisiana has demonstrated that it has the legal authority to
implement its Class VI program in conformance with the permit
requirements found in 40 CFR 145.11. Louisiana's UIC Class VI
permitting provisions are as stringent as permitting requirements found
in 40 CFR 145.11. The state has incorporated necessary procedures,
pursuant to 40 CFR 145.12 to support a robust compliance evaluation
program for Class VI. For example, LDNR will maintain a program for
periodic inspections of all Class VI facilities and activities subject
to its authority. Additionally, Louisiana has the necessary civil and
criminal
[[Page 707]]
enforcement remedies pursuant to 40 CFR 145.13. The EPA has determined
that Louisiana's enforcement authority related to the state's Class VI
Program meets federal requirements. Louisiana's Class VI regulations
regarding permitting, inspection, operation, and monitoring are at
least as stringent as found in 40 CFR parts 145 and 146. Louisiana's
reporting and recordkeeping requirements for Class VI wells are as
stringent as found in 40 CFR 144.54 and 146.91.
E. Public Participation Activities Conducted by the EPA
On May 4, 2023, the EPA published a proposed rule in the Federal
Register (88 FR 28450) to approve the state of Louisiana's application
to implement a UIC program for Class VI injection wells within the
state. The proposal established a 60-day public comment period that
closed on July 3, 2023. The EPA held a three day in-person public
hearing on June 21-23, 2023 in Baton Rouge, Louisiana and one virtual
hearing on June 30, 2023. The EPA published notice of the public
hearings on the EPA's website and in six major local newspapers in
Louisiana. The EPA received oral comments from 156 people at the in-
person public hearings and from 23 at the virtual hearing.
On June 30, 2023, LDNR supplemented its Class VI primacy
application to include Act No. 378 (HB 571), which revised portions of
Louisiana's law relevant to LDNR's application. On June 14, 2023, Act
No. 378 was signed into law and went into effect during the comment
period for the EPA's proposal. In response, on August 16, 2023, the EPA
published a Notice of Availability in the Federal Register (88 FR
55610) providing a 30-day comment period specific to LDNR's supplement
to its primacy application regarding Act No. 378, since this
information was not available for public review and comment at the time
of the proposal. This comment period closed on September 15, 2023.
On March 23, 2023, the EPA sent a written invitation to interested
Tribes, requesting a consultation regarding the agency's review of
Louisiana's request for Class VI program approval, in accordance with
the EPA Policy for Consultation and Coordination with Indian Tribes
(May 4, 2011). The EPA held a consultation conference call with
interested Tribes on March 30, 2023. The Tribes did not raise any
concerns during the consultation.
IV. Public Comments and the EPA's Responses
A. Public Comments
Following publication of the proposed rule, the EPA accepted public
comments for 60 days. The EPA received 41,622 comments on the proposal
from individuals and organizations representing a wide range of
stakeholders, from individual citizens, energy, and industry groups,
permittees, environmental and civil rights non-government
organizations, local governments, members of the state Legislature,
academia, and others. Of the comments received on the proposal, 36,151
were from mass mailing campaigns. In general, the EPA received comments
from stakeholders that supported and opposed primacy approval.
Following publication of the NOA, the EPA accepted public comments
for 30 days. The EPA received 6,997 comments from stakeholders similar
to those received during the earlier public comment period for the
proposal. Of the comments received on the supplemental notice, 6,940
were from mass mailing campaigns. In general, the majority of comments
on the NOA that the EPA received supported primacy approval.
Each unique comment received for the proposal and the supplemental
notice was read and considered in the development of this final rule.
Copies of unique individual comments are available as part of the
public record and can be accessed through the EPA's docket (ID No. EPA-
HQ-OW-2023-0073). Documentation of the EPA's public participation
activities, including comments received and the EPA's responsiveness
summary can also be found in the docket (ID No. EPA-HQ-OW-2023-0073).
B. The EPA's Response to Comments
Comments received during the proposed rule and supplemental notice
comment periods were similar to those received by the state of
Louisiana during the state's public comment period. Commenters were
concerned about the state's assumption of liability after completion of
projects, whether LDNR had adequate staff and expertise to successfully
permit and monitor Class VI projects, and LDNR's oversight of its
existing UIC program. Commenters were also concerned about mitigation
of risk, emergency response, community engagement, and Environmental
Justice.
The EPA received comments during the proposal from commenters who
stated that LDNR's proposed Class VI program meets or exceeds minimum
federal requirements as well as from commenters who said that the
state's proposed Class VI program failed to meet federal requirements.
The EPA agrees with the many commenters that asserted that LDNR's
proposed Class VI program meets the EPA's regulatory requirements and
that approving Louisiana's Class VI primacy application is appropriate.
The EPA worked closely with LDNR as the agency developed its
regulations and Class VI primacy application. The final primacy
application reflects the EPA's recommendations during that pre-
application process. The EPA performed a thorough review of LDNR's
primacy application, which describes how LDNR intends to oversee Class
VI well owners or operators, including by reviewing permit
applications, monitoring compliance with permits, and taking
enforcement actions when appropriate.
Some commenters, noting that Louisiana has a state law provision
concerning the transfer of long-term liability, argued that SDWA
prohibits transfer of liability. The EPA disagrees that long term
liability provisions are always incompatible with the SDWA and the
EPA's UIC regulatory requirements. When promulgating its Class VI Rule
(75 FR. 77272 Dec. 10, 2010), the EPA considered a range of comments
regarding liability following site closure. Some commenters during that
rulemaking urged that, ``after a GS site is closed, liability should be
transferred to the State or Federal government or to a publicly- or
industry-funded entity,'' while others disagreed ``that a public entity
should bear liability following site closure.'' Ultimately, the EPA
decided not to include regulatory provisions addressing long term
liability after site closure in the Class VI Rule. The EPA explained
this decision in part by noting that the SDWA does not grant the EPA
the authority ``to transfer liability from one entity (i.e., owner or
operator) to another.'' It is important to note that, in making this
statement, the EPA was not interpreting its UIC regulatory requirements
as prohibiting primacy states from allowing liability transfer after
site closure, but merely noting that, when the EPA acts as the Class VI
permitting authority, it cannot do so. In short, the EPA did not
conclude in the 2010 Class VI rule that states that authorize liability
transfer after site closure cannot receive UIC Class VI primacy.
However, such state liability transfer provisions must be appropriately
crafted so that the state's Class VI program meets UIC regulatory
requirements. Certain provisions could result in stringency issues. For
example,
[[Page 708]]
such issues may arise if a state law authorizes liability transfer
before the permittee has fulfilled all of its UIC regulatory
obligations, including all site closure requirements identified at 40
CFR 146.93. Further, as noted in the 2010 Class VI Rule preamble, even
after the former permittee has fulfilled all of its UIC regulatory
obligations, it may still be held liable for previous regulatory
noncompliance. Thus, there may be stringency issues if a state law
authorizes the permitting agency to release a former permittee from
liability for earlier UIC violations. Additionally, as noted in the
2010 Class VI Rule preamble, a former permittee may always be subject
to an order the Administrator deems necessary to protect public health
if there is fluid migration that causes or threatens imminent and
substantial endangerment to a USDW. The EPA's UIC regulations require
that state UIC programs possess similar emergency authority (40 CFR
144.12(e)). Stringency issues will likely arise if state liability
transfer provisions prohibit the EPA or the state UIC authority from
subjecting a former permittee to such an emergency order. In
conclusion, the EPA disagrees with commenters that SDWA and the UIC
regulatory requirements prohibit state long term liability transfer
provisions; however, when such provisions exist, they must be crafted
so that the state Class VI program meets federal UIC regulatory
requirements.
The EPA also received comments stating that the state's liability
transfer provisions in Louisiana Revised Statute (LA R.S.) 30:1109 were
in direct conflict with the EPA's Class VI regulations. As mentioned in
the EPA's proposed approval, the EPA was aware that stakeholders had
raised concern about Louisiana's long-term liability provisions, and
the EPA and LDNR worked together to address stakeholder concerns by
specifying in the Class VI MOA addendum that LDNR would not issue a
certificate of completion pursuant to LA R.S. 30:1109 until the owner
or operator submits a site closure report pursuant to 40 CFR 146.93(f)
and Louisiana Administrative Code (LAC) 43:XVII.3633.A.6 and otherwise
fully complies with the site closure requirements in 40 CFR 146.93 and
LAC 43:XVII.3633.A. On August 16, 2023, the EPA provided notice that
LDNR supplemented its primacy application to incorporate Act 378, which
revised portions of Louisiana law relevant to long term liability
including at LA R.S. 30:1109. Many commenters strongly supported
Louisiana's passage of Act 378 stating that it strengthens the state's
Class VI program because it prevents the issuance of certificates until
``Fifty years after cessation of injection into a storage facility'' or
``any other time frame established on a site-specific basis by
application of the rules regarding the time frame for a storage
operator's post-injection site care and site closure plan'' which
matches the post-injection site care timeframes in the EPA's
regulations (see 40 CFR 146.93(b)). The EPA agrees that the statutory
revisions to the long-term liability provisions resolve the concern
that transfer of liability could occur before a site is closed and the
non-endangerment standard is met. Act 378 requires that before a
certificate may be issued, it must be demonstrated that the owner or
operator ``has complied with all applicable [UIC] regulations related
to post-injection monitoring,'' the ``facility has been closed in
accordance with all [UIC] regulations related to site closure,'' and
the ``storage facility does not pose an endangerment to underground
sources of drinking water, or the health and safety of the public.''
Additional commenters asserted that while Act 378 narrowed the
scope of operator liability exemptions that were adopted in 2009, the
state still does not have equivalent enforcement authority required by
section 40 CFR 145.13(a)(1). The EPA disagrees with commenters that the
state does not have enforcement authority as required by 40 CFR
145.13(a)(1). Overall, 40 CFR 145.13(a) requires a state agency to
possess the ability to enforce ``violations of State program
requirements.'' However, after an owner or operator has fully complied
with all UIC Class VI regulatory requirements related to site closure,
the former permittee is no longer subject to any Class VI regulatory
requirements and therefore no ``violations'' could occur. Moreover, a
certificate of completion issued pursuant to LA R.S. 30:1109 cannot
release a former operator from any liabilities that arise from
noncompliance with UIC regulatory requirements prior to issuance of the
certificate. LA R.S. 30:1109.A(3). Further, as made explicit by Act
378, LDNR continues to possess authority to take emergency action to
restrain any person, including a former operator of a Class VI well,
from engaging in any activity which is endangering or causing damage to
public health or the environment (see LAC 43:XVII.103.D.4). The EPA
carefully reviewed Louisiana's statutes and regulations related to
enforcement of its Class VI program and has determined that it meets
federal requirements.
The EPA received a range of comments from stakeholders regarding
LDNR's staff capacity and expertise. Some commenters expressed concern
that LDNR has insufficient staff capacity and expertise to oversee the
number of Class VI projects the commenters expected LDNR to eventually
oversee. Conversely, other commenters stated that LDNR has a strong,
well-established UIC program with dedicated, knowledgeable, and
experienced staff. The EPA disagrees that LDNR staff lack the necessary
expertise to oversee a Class VI program. The LDNR UIC program is
comprised of staff with expertise in the variety of technical
specialties needed to issue and oversee Class VI permits, including
site characterization, modeling, well construction and testing, and
finance. LDNR's staff competency is demonstrated via annual reviews
with the EPA in accordance with the state's minimum qualifications for
education and professional experience, and requirements to be a
licensed professional engineer (P.E.) or geoscientist (or work under
one) in good standing with either the Louisiana Professional
Engineering and Land Surveying Board or Louisiana Board of Professional
Geoscientists. The EPA understands that the state of Louisiana has a
plan in place to expand its program to further support Class VI
activities within the state by hiring seven additional staff and third-
party contractors for modeling, risk and environmental justice
analysis. In addition, the EPA stands ready to provide additional
support as needed, including technical support, site specific analysis,
and access to the experience and knowledge of the EPA staff in the
regions, Headquarters, and the Office of Research and Development.
The EPA received a range of comments regarding LDNR's oversight of
its existing UIC program. Some commenters stated that LDNR has
significant institutional knowledge and expertise and has effectively
regulated Class I-V injection wells and protected underground sources
of drinking water since 1982. Other commenters stated that LDNR has a
poor record of enforcing UIC and oil and gas program requirements and
expressed concerns related to inspections, procedures for the public to
report violations, whether fines are sufficient to deter noncompliance,
and delays in enforcement. These commenters also provided examples of
environmental incidents regulated by LDNR and other Louisiana agencies.
They assert that LDNR is non-compliant with other environmental
programs (e.g., for
[[Page 709]]
coastal and wetlands management), and asked the EPA to defer granting
Class VI primacy until LDNR addresses these perceived deficiencies. The
EPA notes that a number of the examples provided by commenters did not
involve LDNR, which is the agency seeking Class VI primacy. Other
examples did involve LDNR but were not related to UIC program
implementation. The EPA agrees with commenters that inspections and
enforcement actions are key components of a UIC program, and essential
to ensuring compliance with UIC requirements. As LDNR describes in its
Class VI MOA addendum with the EPA, LDNR will conduct periodic
inspections of permittees to assess compliance with Class VI permits,
to verify the accuracy of information submitted by operators in
reporting forms and monitoring data, and to verify the adequacy of
sampling, monitoring, and other methods to provide the information
(MOA, Part III.D; see also 40 CFR 145.12(b)(2)). LDNR plans to devote
15 percent of its Class VI budget (first- and second-year Class VI
budget estimates are $345,000 and $1.135 million respectively) to
inspections and enforcement activities (Program Description, pg. 4).
The EPA considers this to be appropriate and adequate to ensure that
Class VI well owners or operators in Louisiana comply with the UIC
requirements and their permits. With regard to Louisiana's current UIC
program, all UIC enforcement and compliance records are publicly
accessible on Louisiana's SONRIS Data Portal link at the top of the
page at <a href="https://www.sonris.com/">https://www.sonris.com/</a> or onsite at the Injection and Mining
Division of LDNR. Based on data it reports annually to the EPA, LDNR
has over the past several years, taken an average of over 500 UIC
enforcement actions annually. The EPA has determined that LDNR's Class
VI program will have the capacity to perform the necessary inspections
of all Class VI facilities and actives subject to LDNR's oversight to
identify persons who have failed to comply with program requirements.
40 CFR 145.12(b). The EPA encourages residents to report violations to
the state. Consideration of information submitted by the public about
violations is a required element of 145.12(b)(3) and (b)(4). LDNR's
Class VI primacy application indicates that LDNR has these programs in
place at MOA Addendum 1, Sec. III.E. (p. 5) and Program Description,
Sec. 5 (pp. 8-9). However, residents who are concerned that LDNR is not
taking enforcement action against a violation of the UIC requirements
may report a violation on the EPA's website at <a href="http://www.epa.gov">www.epa.gov</a> (click on
``Report a Violation''), contact the EPA via the SDWA Hotline at (800)
426-4791, or email the EPA at <a href="/cdn-cgi/l/email-protection#c9baa8afacbea8bdacbb89acb9a8e7aea6bf"><span class="__cf_email__" data-cfemail="4c3f2d2a293b2d38293e0c293c2d622b233a">[email protected]</span></a>. The EPA will continue
to oversee LDNR's administration of the SDWA Class VI program. The EPA
conducts UIC program oversight to help ensure that states who have been
granted primacy continue to implement their programs in a manner
consistent with the SDWA and their memorandums of agreement with the
EPA. See Class VI MOA addendum, section V, EPA Oversight. As part of
the EPA's oversight responsibility, the EPA will conduct, at least
annually, performance evaluations of the state's Class VI program using
program reports and other requested information to determine state
Class VI program consistency with the LDNR's approved program, SDWA,
and applicable regulations. This includes a review of financial
expenditures, progress on program implementation, and any departures
from the Program Description; and MOA addendum. Any deficiencies in
Class VI program performance will be shared with the state along with
recommendations for improving state operations. In addition, the EPA's
Region 6 Administrator may select Class VI activities and facilities
within the state for the EPA to inspect jointly with the State.
Further, in states with UIC primacy, the EPA maintains its independent
authority to enforce violations of applicable UIC program requirements
under SDWA 1423(a)(1), and its authority to act to address imminent and
substantial endangerment under SDWA 1431.
Several commenters expressed concern that the state's Class VI UIC
regulations do not have adequately robust monitoring mechanisms to
mitigate risk to USDWs and ensure that projects are properly sited,
permitted, and maintained. The EPA agrees that proper site selection
and robust monitoring are fundamental components of the UIC program to
ensure USDWs are protected. Further, the EPA finds that the monitoring
requirements in LDNR's Class VI regulations, if properly implemented,
adequately address the risks to USDWs associated with carbon dioxide
injection for geologic sequestration because LDNR's monitoring
requirements meet the EPA's Class VI regulatory requirements. For
example, LAC 43: XVII.3625.A requires Class VI well owners or operators
to develop and comply with an enforceable Testing and Monitoring Plan
to verify that the geologic sequestration project is operating as
permitted and is not endangering USDWs. The monitoring requirements of
LDNR's Class VI rule are as stringent as those at 40 CFR 146.90 and
ensure early warning of exceedances of operating conditions, damage to
the injection well, changes in water quality, or unanticipated behavior
of the carbon dioxide plume and pressure front that could endanger
USDWs. Further, Louisiana regulations at LAC 43: XVII.3627 regarding
monitoring for mechanical integrity are as stringent as the EPA's
regulations on the same subject at 40 CFR 146.89 and LAC 43: XVII.3633
regarding post injection monitoring is as stringent as 40 CFR 146.93.
The state's regulations, like the EPA's, require the development of
enforceable testing and monitoring plans that are appropriately
tailored to site-specific operational conditions and the geologic
setting. The EPA concludes that this is the best approach for
addressing the unique potential risks at each geologic sequestration
project.
Additionally, some commenters asserted that the state's Class VI
rule does not adequately address emergency scenarios (i.e., evacuations
and notification) involving endangerment to USDWs as well as situations
that are broader than endangerment to USDWs. The EPA disagrees as
LDNR's Class VI requirements for emergency and remedial response at LAC
43: XVII.625.A.1, are as stringent as the EPA's related requirements at
40 CFR 146.94 and are protective of USDWs. LDNR's regulations require
Class VI well owners or operators to develop and comply with an
enforceable site-specific Emergency and Remedial Response Plan with
remedial actions to be taken in the event of an emergency in order to
expeditiously mitigate any emergency situations and protect USDWs from
endangerment. As stated in the EPA's 2018 UIC program Class VI
Implementation Manual, the Emergency and Remedial Response Plan should
consider the site operation, geology, local infrastructure, and the
community's needs. While the federal Class VI regulations do not
specify the specific content of the Emergency and Remedial Response
Plan, the EPA encourages permittees in its 2012 UIC Class VI Well
Project Plan Development Guidance to identify first responders (e.g.,
police, fire) in the plan and include a section on how the owner or
operator would communicate with first responders and the public about
an emergency event.
Commenters asserted that LDNR lacks the statutory or regulatory
authority to make the results of an EJ review part of a Class VI
permitting decision or to
[[Page 710]]
deny a permit based on EJ concerns. Commenters also expressed doubts
about LDNR's or the state's commitment to EJ. The EPA acknowledges
commenters' concerns about regulatory decisions not considering the
environmental impacts of those decisions on disproportionately affected
communities. In the Administrator's letter to state governors and
Tribal leaders, the Administrator called for states seeking primacy to
incorporate EJ and equity considerations into proposed UIC Class VI
programs, including in permitting. The letter outlined a variety of
approaches, including elements related to implementing an inclusive
public participation process, consideration of EJ impacts on
communities, enforcing Class VI regulatory requirements, and
incorporating other mitigation measures. The EPA elaborated on these
approaches in its Environmental Justice Guidance for UIC Class VI
Permitting and Primacy that was released August 17, 2023. Additionally,
the EPA's new UIC Class VI Grant Program (authorized by the Bipartisan
Infrastructure Law) for states and Tribes seeking to establish or
implement UIC Class VI primacy programs will require applicants to
demonstrate how EJ and equity considerations are incorporated in their
Class VI primacy programs. An integral part of Louisiana's Class VI
primacy application (which includes a state Attorney Generals'
statement that LDNR has authority to implement the Class VI Program as
described) is a commitment to incorporating EJ considerations into the
Class VI permitting process. LDNR's Program Description and Class VI
MOA addendum both describe an EJ review process that is consistent with
the EPA's guidance, including enhanced public participation, and
incorporation of additional potential mitigation measures. LDNR's Class
VI MOA addendum answers the EPA's request for states to incorporate EJ
into their Class VI program by, among other things, adopting an
inclusive public participation process. Louisiana will provide robust
and ongoing opportunities for public participation, especially for
lower-income people, communities of color, and those experiencing a
disproportionate burden of pollution and environmental hazards. In its
MOA addendum, LDNR described specific plans for tailoring notice of
proposed Class VI wells to specific community needs and interests.
Tailored public participation activities that LDNR may employ include
scheduling public meetings at times convenient for residents, offering
translation services where needed, enabling face-to-face or written
feedback on permit applications early in the review process, convening
local stakeholders and community groups for safety planning, and
supporting the development of community benefits agreements (Class VI
MOA addendum, Part II.H). The EPA agrees with commenters about the
value of incorporating additional mitigation measures where appropriate
for Class VI projects to address effects on already overburdened
communities from all Class VI activities throughout the lifetime of the
project. In its Class VI MOA addendum (Part II.H), Louisiana committed
to work within its legal authority to prevent and/or reduce any adverse
impacts to USDWs from well construction and operational activities.
While the scope of Louisiana's UIC Program (and this primacy decision)
is designed to protect USDWs, LDNR stated in its Class VI MOA addendum
that it may work within its legal authority under state law to employ a
range of mitigation measures to ensure that Class VI projects do not
increase environmental impacts and public health risks in already
overburdened communities. For example, LDNR's MOA addendum said such
residential protection measures could include carbon dioxide monitoring
and release notification networks, installation of enhanced pollution
controls, or other measures to offset impacts by improving other
environmental amenities for affected communities and providing
resources for clean-up of previously degraded public areas.
V. Incorporation by Reference
In this action, the EPA is approving a revision to the state of
Louisiana's UIC Program for primacy for regulating Class VI injection
wells in the state, except for those located on Indian lands.
Louisiana's statutes and regulations incorporated by reference in this
final rule are publicly available in EPA's Docket No. EPA-HQ-OW-2023-
0073. This action amends 40 CFR 147.950 and incorporates by reference
EPA-approved state statutes and regulations that contain standards,
requirements, and procedures applicable to Class VI owners or
operators.
For clarity, the EPA is reformatting the codification of Louisiana
UIC Program statutes and regulations for Well Classes I, II, III, IV,
and V that the EPA already approved in previous approval actions, and
which are already incorporated by reference into 40 CFR 147.950.
Instead of codifying Louisiana statutes and regulations as separate
paragraphs, the EPA is incorporating by reference a compilation that
contains ``EPA-approved Louisiana SDWA Sec. 1422 and Sec. 1425
Underground Injection Control Program Statutes and Regulations for Well
Classes I, II, III, IV, V, and VI,'' dated November 8, 2023. This
compilation is incorporated by reference into 40 CFR 147.950 and is
available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in the docket for this final
rule. The EPA has also codified a table listing EPA-approved Louisiana
Statutes and Regulations for Well Classes I, II, III, IV, V, and VI in
40 CFR 147.950, including those already incorporated by reference.
The EPA will oversee Louisiana's administration of the SDWA Class
VI program and will continue to oversee Louisiana's administration of
the programs for SDWA Class I, II, III, IV, and V wells. The EPA will
require quarterly reports of non-compliance and annual UIC performance
reports pursuant to 40 CFR 144.8. The MOA addendum between the EPA and
Louisiana, signed by the Regional Administrator on March 3, 2023,
articulates that the EPA will oversee the state's administration of the
UIC Class VI program on a continuing basis to assure that such
administration is consistent with the program MOAs, the state UIC grant
application, and all applicable requirements embodied in current
regulations and federal law. In addition, the MOA addendum provides
that the EPA may request specific information including permits and the
accompanying EJ reviews.
VI. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive orders
can be found at: <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is exempt from review under Executive Order 12866, as
amended by Executive Order 14094, because the Office of Management and
Budget has exempted, as a category, the approval of state UIC programs.
B. Paperwork Reduction Act (PRA)
This action does not impose any 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 Louisiana's Class VI UIC Regulations,
[[Page 711]]
and the State of Louisiana is not subject to the PRA.
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. This
action does not impose any requirements on small entities as this
action approves an existing state program.
D. 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. The EPA's approval
of Louisiana's Class VI 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.
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. 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.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions considered significant under section 3(f)(1) of
Executive Order 12866 and that concern environmental health or safety
risks that the 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.
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.
I. National Technology Transfer and Advancement Act
This action does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations; Executive
Order 14096: Revitalizing Our Nation's Commitment to Environmental
Justice for All
EPA believes that it is not practicable to assess whether the human
health or environmental conditions that exist prior to this action
result in disproportionate and adverse effects on communities with EJ
concerns. There currently are no Class VI wells permitted in Louisiana
and because this is a procedural action. The EPA has reviewed
Louisiana's proposed approach to environmental justice, as outlined in
the Program Description and Class VI MOA addendum, and described in
section IV.B of this preamble. The EPA considers Louisiana's Class VI
primacy application to fully integrate environmental justice and equity
considerations into the state's UIC Class VI program, while ensuring
protection of USDWs. This action would provide Louisiana with primacy
under SDWA section 1422 for a UIC Class VI program, pursuant to which
Louisiana will implement a program that meets the EPA's requirements
for UIC Class VI programs.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the 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).
VII. References
Memorandum of Agreement Addendum 3 between the State of Louisiana
and EPA, Region VI for the UIC Class VI Program, signed by the EPA
Regional Administrator on March 3, 2023.
State of Louisiana Class VI Underground Injection Control Program
1422 Description, April 2021.
USEPA. 2012. Geologic Sequestration of Carbon Dioxide--UIC Program
Class VI Well Project Plan Development Guidance. August 2012. Office
of Water. EPA 816-R-11-017
USEPA. 2018. Geologic Sequestration of Carbon Dioxide--UIC Program
Class VI Implementation Manual for UIC Program Directors. January
2018. Office of Water. EPA 816-R-18-001
USEPA. 2022. U.S. Environmental Protection Agency. EPA
Administrator's EJ Letter to State Governors, from Michael S. Regan,
EPA Administrator. (December 9, 2022).
USEPA. 2023a. U.S. Environmental Protection Agency. EPA
Administrator's EJ Letter to Tribal leaders, from Michael S. Regan,
EPA Administrator. (January 11, 2023).
USEPA. 2023b. U.S. Environmental Protection Agency. Memorandum to
Water Division Directions, Regions I-X, from Radhika Fox, Office of
Water. Environmental Justice Guidance for UIC Class VI Permitting
and Primacy (August 17, 2023).
List of Subjects in 40 CFR Part 147
Environmental protection, Incorporation by reference, Indian lands,
Intergovernmental relations, Reporting and recordkeeping requirements,
Water supply.
Michael S. Regan,
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
0
1. The authority citation for part 147 continues to read as follows:
Authority: 42 U.S.C. 300f et seq.; and 42 U.S.C. 6901 et seq.
0
2. Amend Sec. 147.950 by:
0
a. Revising the section heading, the introductory text, and paragraph
(a);
0
b. Adding a paragraph (b) heading and adding paragraphs (b)(3) and (4)
and (c)(4); and
0
c. Revising paragraph (d).
The revisions and additions read as follows.
Sec. 147.950 State-administered program--Class I, II, III, IV, V and
VI wells.
The UIC program for Class I, II, III, IV, and V wells in the State
of Louisiana, except those wells on Indian lands, is the program
administered by the Louisiana Department of Natural Resources approved
by EPA pursuant to sections 1422 and 1425 of the SDWA. Notice of this
approval was published in the Federal Register on April 23, 1982; the
effective date of this program is March 23, 1982. The UIC Program for
Class VI wells in Louisiana, except those located on Indian lands, is
the program administered by the Louisiana
[[Page 712]]
Department of Natural Resources, approved by EPA pursuant to SDWA
section 1422. The effective date of this program is February 5, 2024.
The UIC program for Class I, II, III, IV, V, and VI wells in the State
of Louisiana, except those located on Indian lands, consists of the
following elements, as submitted to 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 including in
``EPA-approved Louisiana SDWA Sec. 1422 and Sec. 1425 Underground
Injection Control Program Statutes and Regulations for Well Classes I,
II, III, IV, V, and VI, dated November 8, 2023, 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 the State of
Louisiana. 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 Louisiana's statutes and regulations
that are incorporated by reference may be inspected at the U.S.
Environmental Protection Agency, Region VI Library, U.S. Environmental
Protection Agency, 1201 Elm Street, Suite 500, Dallas, Texas 75270 and
the U.S. Environmental Protection Agency, Water Docket, EPA Docket
Center (EPA/DC), EPA WJC West, Room 3334, 1301 Constitution Ave. NW,
Washington, DC 20004. If you wish to obtain materials from the EPA
Regional Office, please call (214) 665-7515, or from the EPA
Headquarters Library, please call the Water Docket at (202) 566-2426.
You may also view this material at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, visit <a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a> or email <a href="/cdn-cgi/l/email-protection#197f6b3770776a697c7a6d7076775977786b78377e766f"><span class="__cf_email__" data-cfemail="badcc894d3d4c9cadfd9ced3d5d4fad4dbc8db94ddd5cc">[email protected]</span></a>.
Table 1 to Paragraph (a)--EPA-Approved Louisiana SDWA Sec. 1422 and Sec. 1425 Underground Injection Control
Program Statutes and Regulations for Well Classes I, II, III, IV, V, and VI
----------------------------------------------------------------------------------------------------------------
State citation Title/subject State effective date EPA approval date
----------------------------------------------------------------------------------------------------------------
Louisiana Revised Statutes Annotated Minerals, Oil, and Gas January 1, 1975, and June 25, 1984.
Sec. Sec. 30:1-30:24. and Environmental Supp. 1982.
Quality.
Louisiana Administrative Code 43: Underground Injection February 20, 1982, as March 6, 1991.
XVII Chapter 1 (Statewide Order No. Control Program amended June 1, 1985
29-N-1). Regulations for Class and January 20, 1986.
I, III, IV, and V
wells.
Louisiana Administrative Code 43: XIX Statewide Order August 26, 1974 as March 6, 1991.
Chapters 1-6 (Statewide Order No. 29- Governing the Drilling amended July 20, 1980,
B). for and Producing of January 1 1981,
Oil and Gas in the February 20, 1982, May
State of Louisiana. 20, 1983, May 20,
1984, and July 1 1985.
Louisiana Administrative Code 43: Hydrocarbon Storage July 6, 1977, as June 25, 1984.
XVII Chapter 3 (Statewide Order No. Wells in Salt Dome amended October 2,
29-M). Cavities. 1978, June 8, 1979.
Louisiana Revised Statutes Annotated Louisiana Geologic July 10, 2009 as January 5, 2024,
Sec. Sec. 30:1101-30:1112. Sequestration of amended June 14, 2023. FEDERAL REGISTER
Carbon dioxide Act. CITATION].
Louisiana Administrative Code 43: Class VI Injection January 20, 2021....... January 5, 2024,
XVII Chapter 36 (Statewide Order No. Wells. [FEDERAL REGISTER
29-N-6). CITATION].
----------------------------------------------------------------------------------------------------------------
(b) Memorandum of Agreement (MOA). * * *
(3) Memorandum of Agreement Addendum 3 between the State of
Louisiana and EPA, Region VI for the UIC Class VI Program, signed by
the EPA Regional Administrator on March 3, 2023.
(4) Letter from Governor of Louisiana to Regional Administrator,
EPA Region VI, March 4, 2021.
(c) * * *
(4) Attorney General's Statement ``Attorney General's Statement to
Accompany Louisiana's Underground Injection Control Program Class VI
Primacy Application,'' signed by the Attorney General for the State of
Louisiana, February 10, 2021.
(d) Program Description. 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 program revision application or amendment thereto.
[FR Doc. 2024-00044 Filed 1-4-24; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on January 5, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.