Rule2025-02974
West Virginia Underground Injection Control (UIC) 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
February 26, 2025
Effective
March 28, 2025
Issuing agencies
Environmental Protection Agency
Abstract
The U.S. Environmental Protection Agency (EPA or the Agency) is approving an application from the State of West Virginia (the State) 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 authority (primacy). This final rule allows the West Virginia Department of Environmental Protection (WVDEP) to issue UIC permits for geologic carbon sequestration facilities as Class VI wells and ensure compliance of Class VI wells under the UIC program. The EPA will remain the permitting authority for all well classes in Indian lands within the State and will also oversee West Virginia's administration of its UIC Class VI program as authorized under SDWA.
Full Text
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<title>Federal Register, Volume 90 Issue 37 (Wednesday, February 26, 2025)</title>
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[Federal Register Volume 90, Number 37 (Wednesday, February 26, 2025)]
[Rules and Regulations]
[Pages 10691-10697]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-02974]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 147
[EPA-HQ-OW-2024-0357; FRL 12000-02-OW]
West Virginia Underground Injection Control (UIC) Program; Class
VI Primacy
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency)
is approving an application from the State of West Virginia (the State)
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 authority (primacy). This final rule
allows the West Virginia Department of Environmental Protection (WVDEP)
to issue UIC permits for geologic carbon sequestration facilities as
Class VI wells and ensure compliance of Class VI wells under the UIC
program. The EPA will remain the permitting authority for all well
classes in Indian lands within the State and will also oversee West
Virginia's administration of its UIC Class VI program as authorized
under SDWA.
DATES: This final rule is effective on March 28, 2025. The
incorporation by reference of certain material listed in this rule is
approved by the Director of the Federal Register as of March 28, 2025.
For judicial purposes, this final rule is promulgated as of February
26, 2025.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2024-0357. 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 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Colin Dyroff, 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)
564-3149; or Himanshu Vyas, Water Division, Source Water & UIC Section
(3WD22), Environmental Protection Agency, Region 3, Four Penn Center,
1600 JFK Boulevard, Philadelphia, PA 19103; telephone number: (215)
814-2112. Both can be reached by emailing <a href="/cdn-cgi/l/email-protection#8cdbdacfe0edffffdac5cce9fceda2ebe3fa"><span class="__cf_email__" data-cfemail="7c2b2a3f101d0f0f2a353c190c1d521b130a">[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. West Virginia UIC Program Final Rule
II. Legal Authorities
III. West Virginia's Application for Class VI Primacy
A. Background
B. Public Participation Activities Conducted by West Virginia
C. Summary of the EPA's Comprehensive Evaluation
D. Public Participation Activities Conducted by the EPA
IV. Public Comments and the EPA's Response
A. Public Comments
B. The EPA's Response to Comments
V. The EPA's Action
A. Incorporation by Reference
B. Class I-V Codification--No Action
VI. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and 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 (NTTAA)
J. Congressional Review Act (CRA)
VII. References
I. Introduction
A. UIC Program and Primary Enforcement Authority (Primacy)
The SDWA protects public health by regulating the nation's public
drinking water supply, including both surface and groundwater sources.
The SDWA requires the EPA to develop
[[Page 10692]]
requirements for effective state and Tribal UIC programs to prevent
underground injection of fluids (such as water, wastewater, brines from
oil and gas production, and carbon dioxide) from endangering
underground sources of drinking water (USDWs). In general, 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, reporting, and enforcement to ensure well owners and
operators comply with UIC regulations.
SDWA section 1421 directs the EPA to establish requirements that
states, territories, and federally recognized Tribes (hereafter
referred to as primacy applicants) must meet to be approved for primary
enforcement responsibility or ``primacy'' for implementing a UIC
program, including a Class VI program. A primacy applicant seeking
primacy under SDWA section 1422 for a Class VI program must demonstrate
to the EPA that the primacy applicant's Class VI program meets the
Federal requirements, including requirements for permitting, technical
criteria and standards for injection wells, compliance evaluation
programs, and enforcement authority, and is protective of USDWs. A
primacy applicant agency must also demonstrate jurisdiction over
underground injection and the administrative, civil, and criminal
enforcement authorities required by the SDWA and EPA regulation. After
the EPA approves a primacy applicant for UIC primacy, the primacy
applicant's UIC program may be revised with EPA approval. See 40 CFR
145.32. When an applicant that already has primacy under SDWA section
1422 seeks to add Class VI primacy to its existing program, the
application and review process takes the form of a program revision.
The EPA conducts a comprehensive technical and legal evaluation of
each primacy application to assess and confirm that the proposed
program meets Federal regulatory requirements and to evaluate the
effectiveness of the primacy applicant's proposed program. The EPA
likewise conducts a comprehensive evaluation of a proposed revision to
an existing UIC program, particularly a revision as substantial as
adding Class VI primacy. West Virginia's Class VI application included
the following elements: West Virginia's Class VI-related UIC statutes
and regulations; documents describing West Virginia's public
participation process when adopting its proposed Class VI program; a
letter from the Governor of West Virginia requesting Class VI primacy;
a Program Description that explains how the State intends to carry out
its Class VI responsibilities; a state Attorney General's Class VI
statement of enforcement authority; an interagency Memorandum of
Agreement between the West Virginia Department of Environmental Quality
and the West Virginia Geologic and Economic Survey (WVGES); an
interagency Memorandum of Agreement between the West Virginia
Department of Environmental Quality and the West Virginia Department of
Health; and an amended addendum to the existing UIC Memorandum of
Agreement between the EPA and West Virginia describing the
administration, implementation, and enforcement of the West Virginia'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. The geologic sequestration of carbon dioxide
through UIC Class VI wells is used in carbon capture and storage to
prevent carbon dioxide emissions from industrial sources from reaching
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 underground for the purpose of geologic
sequestration must demonstrate that their injection well and related
injection activities will meet all UIC regulatory requirements and
receive a Class VI permit for each injection well. The UIC Class VI
program requires permit applicants to meet strict technical, financial,
and managerial requirements to obtain a Class VI permit, including:
--Site characterization to ensure the geology in the project area will
contain the carbon dioxide within the zone where it will be injected;
--Modeling to delineate the predicted area influenced by injection
activities through the lifetime of operation;
--Evaluation of the delineated area to ensure all potential pathways
for fluid movement have been identified and addressed through
corrective action;
--Well construction requirements that ensure the Class VI injection
well will not leak carbon dioxide;
--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.
--Operating requirements (for example, injection pressure limitations)
to ensure the injection activity will not endanger USDWs or human
health;
--Financial assurance mechanisms sufficient to cover the costs for all
phases of the geologic sequestration project including the post-
injection site care period and until site closure has been approved by
the permitting authority;
--Emergency and remedial response plans;
--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 UIC permitting authority ensures that these protective
requirements are included in each Class VI permit. A draft of each
Class VI permit is made available to the public for comment before the
decision is made whether to issue a final permit.
C. West Virginia UIC Program
The State of West Virginia received primacy for Class I, III, IV,
and V injection wells under SDWA section 1422 and for Class II
injection wells under SDWA section 1425 on December 9, 1983 (48 FR
55127). On May 1, 2024, West Virginia 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.
D. Final Rule
In this final rule, the EPA is approving West Virginia's
application because the EPA has determined that the application meets
all applicable requirements for approval under SDWA section 1422 and
the EPA's implementing regulations, 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
[[Page 10693]]
will remain the permitting authority for all UIC well classes on Indian
land within the State, including Class VI wells, and will also oversee
West Virginia'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 or Tribal UIC
programs to prevent underground injection activities that endanger
USDWs. Section 1422 of SDWA establishes requirements for states and
Tribes seeking EPA approval of their UIC programs. It also requires
that states and Tribes seeking approval demonstrate how the state or
Tribe has adopted (after public notice) and will implement a UIC
program which meets the requirements that the EPA promulgated under
section 1421.
For states and Tribes that seek approval of UIC programs under
section 1422 of SDWA and those seeking EPA 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 primary enforcement authority. 40 CFR part 145 specifies
the procedures the EPA will follow in approving, revising, and
withdrawing state or Tribal programs and outlines the elements and
provisions that a state or Tribe must include in its application for
primacy. 40 CFR part 145 also identifies requirements for state
permitting programs (including by reference to certain provisions of 40
CFR parts 124 and 144), compliance evaluation programs, enforcement
authority, and sharing of information between the EPA and the state. 40
CFR part 146 contains the technical criteria and standards applicable
to each well class, including Class VI wells.
III. West Virginia's Application for Class VI Primacy
A. Background
On May 1, 2024, West Virginia submitted to the EPA a program
revision application to add Class VI wells to the State's existing SDWA
section 1422 UIC program. The UIC program revision package from West
Virginia 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 West Virginia's public
participation activities, an amended addendum to the existing
Memorandum of Agreement (MOA) between West Virginia and the EPA's
Region 3 office, an interagency MOA between the WVDEP and the WVGES,
and an interagency MOA between the WVDEP and the West Virginia
Department of Health. The EPA reviewed the application for completeness
and performed a technical evaluation of the application materials.
B. Public Participation Activities Conducted by West Virginia
On June 23, 2021, the WVDEP posted a notice of public comment
period on its website for a proposed action to revise West Virginia
Code of State Rules 47CSR13 to add new regulations for Class VI wells
and to update the State's existing Class I-V regulations. The WVDEP
held a public comment period from June 23, 2021 to July 23, 2021 and
held a virtual public hearing on July 23, 2021. The WVDEP received 55
comments, 19 of which commented on Class VI wells. These comments did
not result in changes to the proposed regulatory revisions. The
effective date for this rule revision was March 9, 2022.
Then, on June 12, 2023, the WVDEP posted a notice of public comment
period on its website for another proposed action to make additional
updates to the State's Class I-VI regulations in 47CSR13 of the West
Virginia Code of State Rules. The WVDEP held a public comment period
from June 12, 2023 to July 18, 2023 and held a public hearing on July
18, 2023 in Charleston, WV. The WVDEP received five comments, all of
which related to Class VI wells. These comments did not result in
changes to the proposed updates to the regulations. The effective date
for this rule revision was April 5, 2024.
Commenters on the WVDEP's proposed rulemakings shared concerns on
various topics including permit applicant financial burden, fees, the
area of review radius, post-injection site care, and seismic activity
reviews. Commenters also expressed concern about whether the WVDEP has
adequate staffing and technical expertise to properly manage a UIC
Class VI program. The WVDEP responded to all public comments and
provided various clarifications. The WVDEP also explained that its
Class VI team would be composed of technical specialists with expertise
in geology, well construction, and UIC inspections. Additionally, the
WVDEP responded that the rule revisions were adopted to be consistent
with Federal requirements and that its primary objective is to protect
underground sources of drinking water, groundwater, and surface water.
Documentation of West Virginia's public participation activities,
including comments received and responses by the WVDEP, can be found in
the EPA's Docket ID No. EPA-HQ-OW-2024-0357.
C. Summary of the EPA's Comprehensive Evaluation
The EPA conducted a comprehensive technical and legal evaluation of
West Virginia's Class VI primacy application to assess and confirm that
the State's UIC Class VI program is as stringent as required by the
Federal regulations and 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 West Virginia's Class VI UIC program, including the relevant
statutes and regulations, against these Federal requirements. The EPA
worked with West Virginia to address any stringency issues with its
Class VI statutes and regulations prior to submittal of the Class VI
primacy application. The EPA also evaluated for stringency and
effectiveness West Virginia's Class VI program description, the Class
VI Attorney General's statement, the amended Class VI addendum to the
MOA between the EPA and West Virginia, the interagency MOA between the
WVDEP and the West Virginia Geologic and Economic Survey, and the
interagency MOA between the WVDEP and the West Virginia Department of
Health.
The EPA evaluated West Virginia's Class VI program description
against 40 CFR 145.23, which lists all the information to be submitted
as part of a program description. The EPA's evaluation of the Class VI
program description included reviewing the scope, structure, coverage,
processes, and organizational structure of the WVDEP. The EPA evaluated
the WVDEP's permitting, administrative, and judicial review procedures,
as well as the State's proposed Class VI permit application, reporting,
and manifest forms. The EPA also reviewed the State's compliance
evaluation and enforcement mechanisms. The EPA evaluated the WVDEP's
proposed schedule for issuing Class VI permits within the first two
years after program approval. The EPA required West Virginia to
demonstrate that the State's
[[Page 10694]]
Class VI program will have adequate in-house staff (including the
number, occupations, and general duties of the employees) or access to
contractor support for technical areas including site characterization,
modeling, well construction and testing, financial responsibility, and
regulatory and risk analysis.
The EPA evaluated West Virginia's Class VI Attorney General's
statement against 40 CFR 145.24 to ensure it met 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
Class VI program as described in the Class VI 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 enforcement and information gathering
requirements under the SDWA.
The EPA evaluated West Virginia's amended Class VI MOA addendum
against 40 CFR 145.25 to ensure it met 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 EPA oversight. For example, the amended Class VI MOA
addendum specifies that the WVDEP 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 reviewed the WVDEP's interagency MOA with the WVGES. The
WVGES is a West Virginia agency with expertise to provide information
to the WVDEP on local geologic characteristics in relation to proposed
underground injection operations. The interagency MOA between the WVDEP
and the WVGES establishes a coordinated relationship between the two
state agencies to properly assess geological characteristics in a
proposed work area to support WVDEP permit determinations. The EPA also
reviewed the WVDEP's interagency MOA with the West Virginia Department
of Health (WVDOH). This interagency MOA specifies, among other
provisions, that the WVDOH will conduct a review of the proposed area
of work and permit application details and provide input to assist in
WVDEP permit determinations.
The EPA is aware that stakeholders have raised concern about
geologic sequestration long term liability transfer provisions enacted
in West Virginia and other states. The EPA reviewed the West Virginia
statutory provision relating to long-term liability transfer (W. Va.
Code Sec. 22-11B-12) and determined that it does not undermine any
protections afforded to USDWs under the Safe Drinking Water Act. Under
the West Virginia long-term liability transfer provision, all Class VI
regulatory and permit requirements must be met before liability
transfer may occur. Consistent with EPA regulations, West Virginia
imposes extensive post-injection monitoring--a default of 50 years--and
site closure requirements at the end of a Class VI well's life cycle to
ensure that there will be no endangerment to USDWs. Only after these
requirements are met does West Virginia's long-term liability transfer
provision allow a limited transfer of any future liability to a state-
administered and industry-funded trust fund. Among other additional
limitations, the provision is explicit that it does not relieve any
owner or operator from any liability that arises from noncompliance
with UIC laws, regulations or permits; it does not apply if the WVDEP
determines that there is fluid migration for which the operator is
responsible that threatens imminent and substantial endangerment to a
USDW; it must be implemented in a manner that does not interfere with
the State's authority to immediately and effectively restrain any
person from engaging in any unauthorized activity which is endangering
or causing damage to public health or the environment; and it cannot
interfere with the EPA's emergency authority under SDWA section 1431.
West Virginia has demonstrated that it has the legal authority to
implement and will administer its Class VI program in conformance with
permitting requirements as stringent as those found in 40 CFR 145.11
for Class VI permits. West Virginia's UIC Class VI permitting
provisions are as stringent as the EPA's permitting regulations in 40
CFR parts 124 and 144. The State has incorporated necessary procedures
required by 40 CFR 145.12 to support a robust Class VI compliance
evaluation program. Additionally, WVDEP has the necessary
administrative, civil, and criminal enforcement authorities required by
40 CFR 145.13. West Virginia's Class VI regulations regarding
permitting, inspection, operation, and monitoring meet Federal
requirements found in 40 CFR parts 145 and 146. West Virginia's
reporting and recordkeeping requirements for Class VI wells meet
Federal requirements found in 40 CFR 144.54 and 146.91.
D. Public Participation Activities Conducted by the EPA
On November 27, 2024, the EPA published a proposed rulemaking in
the Federal Register (89 FR 93538) to approve the State of West
Virginia's application to implement a UIC program for Class VI
injection wells within the State. The proposal established a public
comment period that closed on December 30, 2024. The EPA held a public
hearing on December 30, 2024 in Charleston, West Virginia that
participants could attend in-person and virtually, as well as by phone.
The EPA published notice of the hearing on the EPA's website and in 4
major local newspapers in West Virginia. The EPA received oral comments
from 13 people.
IV. Public Comments and the EPA's Response
A. Public Comments
Following publication of the proposed rulemaking, the EPA accepted
public comments from November 27, 2024 to December 30, 2024. The EPA
received 9,012 comments on the proposal from individuals and
organizations representing a wide range of stakeholders, including from
individual citizens, energy and industry groups, environmental non-
governmental organizations, a member of the United States Congress, and
others. Of the comments received on the proposal, 8,962 were from mass
mailing campaigns. In general, the EPA received comments from
stakeholders that supported and opposed primacy approval.
Each unique comment received for the proposal was 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-2024-0357). Documentation of the
EPA's public participation activities, including comments received and
the EPA's comment response document can also be found in the docket
(ID. No. EPA-HQ-OW-2024-0357).
B. The EPA's Response to Comments
The EPA received comments both supporting and opposing UIC Class VI
[[Page 10695]]
primacy approval. Commenters in support of Class VI primacy approval
asserted that the EPA's evaluation was thorough and the EPA's proposed
approval of West Virginia's primacy application was appropriate as
these commenters stated that West Virginia satisfied all applicable
statutory and regulatory standards for EPA approval. Commenters
opposing Class VI primacy approval were concerned about the length of
the EPA's public comment period, the EPA's primacy approval process,
WVDEP staffing for its Class VI program, transfer of long-term
liability, Class II injection and oil and gas regulations, and other
topics. Additionally, commenters expressed concerns about topics that
the EPA determined to be outside the scope of this primacy approval
action, including general concerns about the safety of geologic
sequestration, a state statute concerning sequestered CO2 and the term
``pollutant,'' a state statute concerning pore space rights, subsurface
long-term effects of carbon dioxide injection, well corrosion, post-
injection monitoring requirements in the EPA's Class VI Rule, and past
mining effects on subsurface conditions in West Virginia. The EPA has
noted and addressed all topics, including out-of-scope topics, in the
Agency's response to comment document. Some commenters interpreted the
EPA's proposed rulemaking as incorporating by reference into the Code
of Federal Regulations (CFR) certain provisions of West Virginia law,
such as the provisions referenced above concerning the definition of
the term ``pollutant'' and pore space rights, among other provisions
raised by commenters. In response to these comments, the EPA is
expressly excluding these provisions from the Agency's incorporation by
reference. See section V.A of this preamble and the comment response
document for more information.
V. The EPA's Action
A. Incorporation by Reference
In this action, the EPA is approving a revision to the State of
West Virginia's UIC Program for primacy for regulating Class VI
injection wells in the State, except for those located on Indian lands.
The West Virginia statutes and regulations incorporated by reference in
this final rule are publicly available in the EPA's Docket No. EPA-HQ-
OW-2024-0357. This action amends 40 CFR 147.2450 and incorporates by
reference EPA-approved state statutes and regulations that contain UIC
standards, requirements, and procedures applicable to Class VI owners
or operators. Any such provisions incorporated by reference, as well as
all permit conditions or permit denials issued pursuant to such
provisions, are enforceable by the EPA pursuant to section 1423 of SDWA
and 40 CFR 147.1(e). The EPA will continue to administer the UIC
program for Class I, II, III, IV, V, and VI injection wells on Indian
lands.
The EPA is incorporating by reference the West Virginia statutes
and regulations that contain UIC requirements applicable to owners or
operators of Class VI wells as a compilation titled ``EPA-approved West
Virginia SDWA section 1422 Underground Injection Control Program
Statutes and Regulations for Well Class VI,'' dated January 10, 2025.
This compilation is incorporated by reference into 40 CFR 147.2450 and
is available at <a href="http://www.regulations.gov">www.regulations.gov</a> in the docket for this final rule.
The EPA has also codified a table in 40 CFR 147.2450 listing the EPA-
approved West Virginia Statutes and Regulations for Well Class VI.
While the West Virginia regulations in 47CSR13 contain requirements for
all UIC well classes (i.e., Class I-VI), only the requirements
applicable to owners or operators of Class VI wells are incorporated by
reference as part of this action. In response to comments, the EPA is
updating this compilation and corresponding table in 40 CFR 147.2450 to
expressly exclude certain provisions of West Virginia law. The EPA is
incorporating by reference only those state statutes and regulations
that are within the scope of coverage required under the Federal UIC
regulations. 40 CFR 145.1(g)(2). For further information, see the EPA's
comment response document (ID. No. EPA-HQ-OW-2024-0357).
The EPA will oversee West Virginia's administration of its Class VI
program and will continue to oversee West Virginia's administration of
its programs for Class I, II, III, IV, and V wells. The EPA will
require quarterly reports on non-compliance and annual UIC performance
reports pursuant to 40 CFR 144.8. The amended MOA addendum between the
EPA and West Virginia, signed by the Regional Administrator on October
9, 2024, 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,
UIC grant agreements, and all applicable requirements embodied in
current regulations and Federal law. In addition, the amended MOA
addendum provides that the EPA may request specific information
including Class VI permits.
B. Class I-V Codification--No Action
As detailed in the preamble of the proposed rulemaking, for reasons
that current EPA staff were unable to ascertain, when the EPA approved
West Virginia's Class I-V UIC program in 1983 (48 FR 55127, December 9,
1983), the CFR was not revised to reflect the EPA's approval, and the
CFR currently does not reflect West Virginia's Class I-V primacy. The
EPA is not addressing this CFR discrepancy as part of this action. The
current action is confined to approving a revision to West Virginia's
existing UIC primacy program to approve the State for primacy over
Class VI wells; it is not addressing other well classes. Separately,
the EPA is working with West Virginia to assess the State's current
Class I-V program elements and expects to codify in the CFR the State's
Class I-V program in 2025 as part of a separate action.
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
This action is exempt from review under Executive Order 12866
because the Office of Management and Budget (OMB) has exempted, as a
category, the approval of state UIC programs.
B. Paperwork Reduction Act (PRA)
This action does not impose an 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 West Virginia's Class VI UIC Regulations, and the State of
West Virginia 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 new requirements on small entities. It
simply approves and codifies West Virginia's UIC Class VI program,
which meets the same standard under SDWA section 1422 as is required
for the EPA's direct implementation of a UIC Class VI program.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate as described in
[[Page 10696]]
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action imposes no enforceable duty on any
state, local, or Tribal governments or the private sector. The EPA's
approval of West Virginia'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 does 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 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 (NTTAA)
This action does not involve technical standards.
J. 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
Attorney General's Statement ``Attorney General's Statement to
Accompany West Virginia's Underground Injection Program Class VI
Primacy Application,'' signed by the General Counsel of the West
Virginia Department of Environmental Protection, April 29, 2024.
Class VI Underground Injection Control Program Description ``WV
Class 6 Program Description'', June 2024.
Email from West Virginia to EPA related to Class I-V program
revision, April 22, 2024.
Letter from Governor of West Virginia to Regional Administrator, EPA
Region III, April 25, 2024.
Memorandum of Agreement Amended Addendum 1 between the State of West
Virginia and the EPA, Region III for the UIC Class VI Program,
signed by the EPA Regional Administrator on October 9, 2024.
Federal Register Notice ``West Virginia Department of Natural
Resources; Underground Injection Control Program Approval'', EPA, 48
FR 55127-55128 (December 9, 1983).
Memorandum of Agreement between the State of West Virginia and the
EPA, Region III, signed by the EPA Regional Administrator on August
31, 1983.
Memorandum of Agreement Between The West Virginia Department of
Environmental Protection and The West Virginia Department of Health,
signed April 26, 2024.
Memorandum of Agreement Between The West Virginia Department of
Environmental Protection and The West Virginia Geological and
Economic Survey, signed April 29, 2024.
Program Description ``Program Description for the West Virginia
Underground Injection Control Program'', December 1983.
State of West Virginia. Notice of Action Taken by Legislative Rule-
Making Review Committee, December 9, 2021.
State of West Virginia. Notice of Action Taken by Legislative Rule-
Making Review Committee, September 13, 2023.
State of West Virginia. Notice of Public Comment Period and Hearing,
June 12, 2023.
State of West Virginia. Notice of Public Comment Period and Hearing,
June 23, 2021.
State of West Virginia. Public Comments and Responses, July 24,
2023.
State of West Virginia. Public Comments and Responses, July 30,
2021.
State of West Virginia. Public Hearing Transcript (Public Hearing
Date: July 23, 2021), July 31, 2021.
State of West Virginia. Public Hearing Transcript (Public Hearing
Date: July 18, 2023), August 12, 2023.
West Virginia Code Sec. 22-11. Water Pollution Control Act. May 13,
2024.
West Virginia Code Sec. 22-11A. Carbon Dioxide Sequestration Pilot
Program. May 20, 2022.
West Virginia Code Sec. 22-11B. Underground Carbon Dioxide
Sequestration and Storage. May 13, 2024.
West Virginia Code of State Rules Sec. 47-13. Underground Injection
Control. April 5, 2024.
List of Subjects in 40 CFR Part 147
Environmental protection, Incorporation by reference, Indian lands,
Intergovernmental relations, Reporting and recordkeeping requirements,
Water supply.
Lee Zeldin,
Administrator.
For the reasons set forth in the preamble, the 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. Add Sec. 147.2450 to read as follows:
Sec. 147.2450 State-administered program--Class VI Wells
The UIC program for Class VI wells in the State of West Virginia,
except those on Indian lands, is the program administered by the West
Virginia Department of Environmental Protection, approved by the EPA
pursuant to SDWA section 1422. The effective date of this program is
March 28, 2025. The UIC program for Class VI wells in the State of West
Virginia, except those located on Indian lands, consists of the
following elements, as submitted to the EPA in the State's program
revision application.
(a) Incorporation by reference. The UIC requirements applicable to
owners or operators of Class VI wells set forth in the State statutes
and regulations approved by the EPA for including in ``EPA-Approved
West Virginia SDWA section 1422 Underground Injection Control Program
Statutes and Regulations for Well Class VI,'' dated January 10, 2025,
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 West Virginia. 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 West Virginia's
statutes and regulations that are incorporated by reference may be
inspected at the U.S.
[[Page 10697]]
Environmental Protection Agency, Region 3, Four Penn Center, 1600 JFK
Blvd., Philadelphia, PA 19103 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 (215) 814-
2816, 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">www.archives.gov/federal-register/cfr/ibr-locations</a> or email <a href="/cdn-cgi/l/email-protection#680e1a4601061b180d0b1c0107061b2806091a09460f071e"><span class="__cf_email__" data-cfemail="7c1a0e5215120f0c191f081513120f3c121d0e1d521b130a">[email protected]</span></a>.
You may also obtain the State of West Virginia's statutes and
regulations that are incorporated by reference from: Room MB-27,
Building 1, State Capitol Complex, Charleston, West Virginia 25305;
phone: (304) 347-4836; website: <a href="http://www.wvlegislature.gov">www.wvlegislature.gov</a>.
Table 1 to Paragraph (a)--EPA-Approved West Virginia SDWA Sec. 1422 Underground Injection Control Program
Statutes and Regulations for Well Class VI
----------------------------------------------------------------------------------------------------------------
State citation Title/subject State effective date EPA approval date
----------------------------------------------------------------------------------------------------------------
West Virginia Code Sec. 22-11.... Water Pollution Control Act May 13, 2024.......... February 26, 2025.
West Virginia Code Sec. 22-11A... Carbon Dioxide May 30, 2022.......... February 26, 2025.
Sequestration Pilot
Program.
West Virginia Code Sec. 22-11B, Underground Carbon Dioxide May 13, 2024.......... February 26, 2025.
except exclude Sec. 22-11B-8(a), Sequestration and Storage.
Sec. 22-11B-9(a), Sec. 22-11B-
12(e)(1)-(3), 22-11B-18, and 22-
11B-19.
West Virginia Code of State Rules Underground Injection April 5, 2024......... February 26, 2025.
Sec. 47-13. Control.
----------------------------------------------------------------------------------------------------------------
(b) Memorandum of Agreement (MOA). (1) The Memorandum of Agreement
between the State of West Virginia and the EPA, Region III, signed by
the EPA Regional Administrator on August 31, 1983; and (2) Memorandum
of Agreement Amended Addendum 1 between the State of West Virginia and
the EPA, Region III for the UIC Class VI Program, signed by the EPA
Regional Administrator on October 9, 2024.
(c) Letter from Governor. Letter from Governor of West Virginia to
Regional Administrator, EPA Region III, April 25, 2024.
(d) West Virginia Memoranda of Agreement. (1) Memorandum of
Agreement Between The West Virginia Department of Environmental
Protection and The West Virginia Geological and Economic Survey, signed
April 29, 2024; and (2) Memorandum of Agreement Between The West
Virginia Department of Environmental Protection and The West Virginia
Department of Health, signed April 26, 2024.
(e) Statement of legal authority. Attorney General's Statement,
``Attorney General's Statement to Accompany West Virginia's Underground
Injection Program Class VI Primacy Application,'' signed by the
Attorney General of West Virginia on April 29, 2024.
(f) Program Description. The Program Description, ``Program
Description for the West Virginia Underground Injection Control
Program,'' December 1983, and any other materials submitted as part of
the application or amendment thereto, and the Class VI Underground
Injection Control Program Description, ``WV Class 6 Program
Description'', June 2024, and any other materials submitted as part of
the program revision application or as amendment thereto.
[FR Doc. 2025-02974 Filed 2-25-25; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on February 26, 2025.
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.