SUPPLEMENTARY INFORMATION:

I. Introduction

The State of Wyoming received primacy enforcement responsibility (primacy) for Class I, III, IV, and V injection wells under the SDWA section 1422 on August 17, 1983, and Class II injection wells under the SDWA section 1425 on December 23, 1982. Wyoming has applied to EPA under section 1422 of the SDWA, 42 U.S.C. 300h-1, for primacy for Class VI injection wells, except those located on Indian lands. The UIC program revision package from Wyoming includes a description of the State Underground Injection Control program for Class VI injection wells, copies of all applicable rules and forms, a statement of legal authority, a summary and results of Wyoming's public participation activities, and a Memorandum of Agreement between Wyoming and EPA's Regional Administrator for Region 8.

This action is based on a legal and technical review of the State of Wyoming's application as directed in the Code of Federal Regulations (CFR) at 40 CFR part 145. As a result of this review, EPA is approving Wyoming's application because it meets or exceeds all applicable requirements for approval under the SDWA section 1422 and the Agency has determined that the state is capable of administering a Class VI UIC program in a manner consistent with the terms and purposes of the SDWA and all applicable regulations to protect underground sources of drinking water (USDWs).

II. Legal Authorities

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

III. Requirements for State UIC Programs

SDWA section 1421 requires the Administrator of EPA to promulgate minimum requirements for effective state UIC programs to prevent underground injection activities that endanger USDWs. SDWA section 1422 establishes requirements for states seeking EPA approval of state UIC programs.

For states that seek approval for UIC programs under SDWA section 1422, EPA has promulgated a regulation setting forth the applicable procedures and substantive requirements, codified at 40 CFR part 145. It includes requirements for state permitting programs (by referencing certain provisions of 40 CFR parts 124 and 144), compliance evaluation programs, enforcement authority, and information sharing.

IV. Wyoming's Application

A. Background

On January 31, 2020, Wyoming submitted a program revision application to add Class VI injection wells to the state's SDWA section 1422 UIC program. The UIC program revision package from Wyoming includes a description of the state UIC program for Class VI injection wells, copies of all applicable rules and forms, a statement of legal authority, a summary and results of Wyoming's public participation activities, and a Memorandum of Agreement between Wyoming and EPA's Regional Administrator for Region 8. EPA reviewed the application for completeness and simultaneously performed a technical evaluation of the application materials.

On April 14, 2020, EPA published a Federal Register document announcing Wyoming's submittal of a complete UIC program revision application to the Agency. In that document, EPA proposed to approve the application from Wyoming under the SDWA section 1422 to implement a UIC program for Class VI injection wells located within the state, except those on Indian country; sought public comments on the Agency's intent to approve Wyoming's application; and provided an opportunity to request a public hearing.

B. Public Participation Activities Conducted by the State of Wyoming

In 2019, Wyoming held two public hearings with public comment periods on the state's intent to adopt its Class VI UIC regulations. The Wyoming Water and Waste Advisory Board (WWAB) held the first public hearing on June 25, 2019, in Casper, Wyoming. The WWAB accepted public comments beginning on May 17, 2019, through the adjournment of the public hearing. The Wyoming Environmental Quality Council held the second public hearing on November 19, 2019, in Cheyenne, Wyoming. The Wyoming Environmental Quality Council accepted comments on proposed revisions from September 13, 2019, through October 30, 2019. The Wyoming Class VI regulations were signed by the Governor of Wyoming on January 23, 2020. Documentation of all public participation activities, including those associated with Class VI UIC regulations and subsequent revisions that the state proposed before 2019 can ( printed page 64054) be found in EPA's Docket ID No. EPA-HQ-OW-2020-0123.

C. Public Participation Activities Conducted by EPA

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

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

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

VI. EPA's Approval—Incorporation by Reference

In this action, EPA is approving the State of Wyoming's Class VI UIC program; whereby the state will assume primacy for regulating Class VI injection wells in the state, except within Indian lands. Wyoming's statutes and supporting documentation are publicly available in EPA's Docket No. EPA-HQ-OW-2020-0123. This action amends 40 CFR part 147 and incorporates by reference EPA-approved state statutes and regulations. EPA will continue to administer the UIC program for all well classes within Indian lands.

The provisions of the State of Wyoming's statutes and regulations that contain standards, requirements, and procedures applicable to owners or operators of UIC Class VI wells are incorporated by reference into 40 CFR 147.2250 by this rule. Provisions of the State of Wyoming's statutes and regulations that contain standards, requirements, and procedures applicable to owners or operators of Class I, III, IV, and V injection wells have already been incorporated by reference into 40 CFR 147.2250 through prior EPA rules. Any provisions incorporated by reference, as well as all permit conditions or permit denials issued pursuant to such provisions, will be enforceable by EPA pursuant to the SDWA section 1423 and 40 CFR 147.1(e).

In order to better serve the public, EPA is reformatting the codification of EPA-approved Wyoming SDWA section 1422 UIC program statutes and regulations for well Classes I, III, IV, V and VI. Instead of codifying the Wyoming statutes and regulations as separate paragraphs, EPA is now incorporating by reference a compilation that contains EPA-approved Wyoming statutes and regulations for well Classes I, III, IV, V, and VI. This compilation is incorporated by reference into 40 CFR 147.2250 and is available at https://www.regulations.gov in the docket for this rule. A complete list of the Wyoming statutes and regulations contained in the compilation, titled “EPA-approved Wyoming SDWA §  1422 Underground Injection Control Program Statutes and Regulations for Well Classes I, III, IV, V and VI,” is codified as Table 1 to paragraph (a) in that section.

EPA will continue to oversee the State of Wyoming's administration of the SDWA Class VI program. As part of EPA's oversight responsibility, EPA will require Wyoming to submit semi-annual reports of non-compliance and annual UIC performance reports pursuant to 40 CFR 144.8. The Memorandum of Agreement between EPA and the State of Wyoming, signed by the Regional Administrator on March 20, 2020, makes available to EPA any information obtained or used by Wyoming's Class VI UIC program, without restriction.

VII. Effective Date

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

VIII. Statutory and Executive Order Reviews

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

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

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

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

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

C. Paperwork Reduction Act (PRA)

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2040-0042. Reporting or recordkeeping requirements will be based on Wyoming's UIC Regulations, and the State of Wyoming is not subject to the PRA. ( printed page 64055)

D. Regulatory Flexibility Act (RFA)

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

E. Unfunded Mandates Reform Act (UMRA)

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

F. Executive Order 13132: Federalism

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

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

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

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

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

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

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

J. National Technology Transfer and Advancement Act

This action does not involve technical standards.

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

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

L. Congressional Review Act (CRA)

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

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

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.

1. Amend § 147.2550 by:

a. Revising the section heading;

b. Revising the introductory text and paragraph (a);

c. Adding paragraphs (c)(6) and (7), and (d)(3) and (4); and

d. Revising paragraph (e).

The revisions and additions read as follows.