SBA: - Office of Advocacy - Report of the Small Business Advocacy Review Panel on the Revisions to the Underground Injection Control Regulations for Class V Injection Wells (April 17, 1998)

This report is presented by the Small Business Advocacy Review Panel convened for the proposed rulemaking on revisions to the Underground Injection Control (UIC) regulations for Class V injection wells that the Environmental Protection Agency (EPA) is currently developing. On February 17, 1998, EPA’s Small Business Advocacy Chairperson convened this Panel under section 609(b) of the Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). Section 609(b) requires convening a review panel prior to publication of the initial regulatory flexibility analysis that an agency may be required to prepare under the RFA. In addition to its chairperson, the Panel consists of the Director of the Office of Ground Water and Drinking Water within EPA’s Office of Water, the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget, and the Chief Counsel for Advocacy of the Small Business Administration.

This report provides background information on the proposed rule being developed and the types of small entities that would be subject to the proposed rule, describes efforts to obtain the advice and recommendations of representatives of those small entities, summarizes the comments that have been received to date from those representatives, and presents the findings and recommendations of the Panel. The complete written comments of the small entity representatives are attached to this report.

Section 609(b) of the RFA directs the review panel to report on the comments of small entity representatives and make findings as to issues related to identified elements of an initial regulatory flexibility analysis (IRFA) under section 603 of the RFA. Those elements of an IRFA are:

Once completed, the Panel report is provided to the agency issuing the proposed rule and included in the rulemaking record. In light of the Panel report, the agency is to make changes to the draft proposed rule, the IRFA for the proposed rule, or the decision on whether an IRFA is required, where appropriate.

It is important to note that the Panel’s findings and discussion are based on the information available at the time this report was drafted. EPA is continuing to conduct analyses relevant to the proposed rule, and additional information may be developed or obtained during the remainder of the rule development process. The Panel makes its report at a preliminary stage of rule development and its report should be considered in that light. At the same time, the report provides the Panel and the Agency with an opportunity to identify and explore potential ways of shaping the proposed rule to minimize the burden of the rule on small entities while achieving the rule’s statutory purposes. Any options the Panel identifies for reducing the rule’s regulatory impact on small entities may require further analysis and/or data collection to ensure that the options are practicable, enforceable, environmentally sound and consistent with the statute authorizing the proposed rule.

Class V injection wells are generally shallow waste disposal wells, stormwater and agricultural drainage systems, or other devices used to release fluids either directly into an underground source of drinking water (1) (USDW) or into the subsurface that overlies USDWs. In some instances, such fluids contain elevated concentrations of contaminants that may endanger drinking water supplies. EPA estimates that more than one million Class V wells currently exist in the United States. These wells are located in every State, especially in unsewered areas where the population is likely to depend on ground water based drinking water supplies. Frequently, Class V wells consist of shallow holes or septic tank and leachfield combinations. While such facilities may be adequate for the treatment of sanitary waste, they may not be appropriate for the disposal of industrial wastes or other fluids, although they are sometimes used for this purpose. Some types of Class V wells may include other types of treatment systems, such as oil and water separation tanks, which are designed to treat certain types of industrial waste.

Class V wells are subject to the UIC regulations promulgated under the authority of Part C of the Safe Drinking Water Act (SDWA). Under the existing regulations, Class V wells are "authorized by rule," meaning that they do not have to obtain a permit as long as they comply with the UIC Program requirements. These regulations provide, most importantly, that Class V wells cannot allow the movement of fluid containing any contaminant into USDWs, if the presence of that contaminant may cause a violation of the primary drinking water regulations or may otherwise adversely affect human health. Owners or operators not in compliance with this standard may be required to close their well, get a permit, or take other actions prescribed by the UIC Program Director. Owners or operators of Class V injection wells also must submit basic inventory and assessment information.

Major events in the history of this rulemaking include a Report to Congress on Class V wells published by EPA in 1987, a 1994 consent decree with the Sierra Club, a 1995 notice of proposed rulemaking (60 FR 44652, August 28, 1995), and a 1997 modified consent decree with the Sierra Club.

EPA summarized available information on 32 categories of Class V wells in a 1987 Report to Congress. This report presents a national overview of Class V injection practices and State recommendations for Class V well design, construction, installation, and siting requirements.

On December 30, 1993, the Sierra Club filed a complaint against EPA alleging that EPA failed to comply with the SDWA regarding publication of proposed and final regulations for Class V injection wells. In particular, the complaint alleged that EPA's current regulations regarding Class V wells do not meet the SDWA's statutory requirements to "prevent underground injection which endangers drinking water sources." On August 31, 1994, EPA entered into a consent decree with the Sierra Club which required that no later than August 15, 1995, the Administrator sign a notice to be published in the Federal Register proposing regulatory action with respect to Class V injection wells. In this notice, EPA was to propose additional regulations for some or all Class V injection wells or propose a decision that further rulemaking is unnecessary.

On August 15, 1995, the EPA Administrator signed a notice of proposed rulemaking intended to fulfill EPA's obligation under the 1994 consent decree with the Sierra Club. In this notice, EPA proposed not to adopt additional federal regulations for any types of Class V injection wells; instead, the Agency proposed to address the risks posed by certain wells using existing authorities and a Class V well closure and management strategy. This proposal reflected a determination, based on data available at that time, that existing regulations coupled with an effective nationwide enforcement initiative were adequate to protect USDWs.

The Sierra Club Legal Defense Fund submitted comments on the 1995 proposed Class V rule alleging that the proposal violates the SDWA and fails to carry out statutory requirements. As a result, EPA and the Sierra Club entered into a modified consent decree on January 28, 1997, that extended the dates for rulemaking in the Decree. The modified Decree requires three actions. First, by no later than June 18, 1998, the EPA Administrator must sign a notice proposing to fully discharge the Agency's rulemaking obligation under the SDWA with respect to Class V injection wells determined to be highest risk and for which additional study is not necessary (by July 31, 1999, EPA must take final action on this proposal). Second, by no later than September 30, 1999, EPA must complete a study of all Class V wells not included in the rulemaking on high-risk Class V injection wells. Third, by no later than April 30, 2001, the EPA Administrator must sign a notice proposing to discharge EPA’s rulemaking obligations under the SDWA with respect to all Class V injection wells not included in the rulemaking on high-risk Class V injection wells (by May 31, 2002, EPA must take final action on this proposal). The proposed rule addressed in this notification is being developed in response to the first required action listed above.

In this rulemaking, EPA is proposing to regulate high risk wells by focusing on certain wells located near ground water-based drinking water supplies. The 1996 Amendments to the SDWA make source water protection a national priority. Source water protection areas, to be defined by States in accordance with the 1996 Amendments, will identify those areas considered most critical for the protection of public drinking water supplies. The proposed Class V rule would help achieve this protection by establishing additional federal requirements for three categories of Class V wells in source water protection areas which EPA currently believes may present the highest risk to USDWs. These categories are: (1) motor vehicle waste disposal wells; (2) industrial wells; and (3) large-capacity cesspools.

EPA is considering banning motor vehicle waste disposal wells in delineated source water protection areas. Such a strategy would be based on EPA’s current belief that these wells have a high potential to endanger USDWs. Class V motor vehicle waste disposal wells are located in every State in the country -- mainly in populated areas -- at a variety of automotive-related facilities. EPA believes that these wells tend to be uncased, which would allow contaminated fluids to move more easily into USDWs.

EPA further believes that many wells at motor vehicle-related facilities perform little or no treatment of injected fluids such as spilled gasoline and oil, waste oil, grease, engine cleaning solvents, brake and transmission fluids, and antifreeze. These fluids contain potentially harmful contaminants, often in high concentrations. Data collected for the 1987 Report to Congress, from later EPA Regional investigations, and from a national study in 1991 indicate that fluids being injected may exceed health-based limits for contaminant levels in drinking water by 10 to 100 times. It is not known, however, the extent to which such fluids may now be recycled and/or properly disposed of off-site in accordance with best management practices (BMPs) that have been developed by the automotive industry over the past decade. Some commenters believe that the use of such BMPs is now widespread. EPA expressed concern that BMPs would not fully account for spill or leak scenarios.

Although limited data exists on the extent to which BMPs are used at Class V motor vehicle wells, EPA believes that banning motor vehicle waste disposal wells in source water protection areas represents a preventative approach that would fulfill the statutory mandate to protect USDWs.

Some Class V industrial process water and waste disposal wells may endanger USDWs because of the low quality and large volumes of waste injected. According to the 1987 Report to Congress, such wells could receive any fluid disposed of by the various industries and commercial entities that use Class V wells, including those engaged in commercial printing, die and tool manufacturing, machinery and equipment manufacturing, chemical production, and dry cleaning.

A subset of Class V industrial wells are drainage wells that are intended to receive storm water but may be used to dispose of industrial fluids. These wells may pose a high threat of contamination to USDWs because of the potentially poor quality of injection fluids, susceptibility to accidental industrial spills, and availability for abuse through illicit discharges. Studies from the Nationwide Urban Runoff Projects in Fresno, CA and Spokane, WA, conducted in 1984 and 1986 found that industrial areas had the lowest quality stormwater runoff of all land-use types evaluated.

EPA is considering a strategy that would require owners or operators of Class V industrial wells in source water protection areas to either (1) make sure fluids disposed of in their wells meet primary drinking water maximum contaminant levels (MCLs) at the point of injection, or (2) close their wells.

EPA is still considering which industry sectors belong in this category. If EPA determines, based either on current data or on new data received from commenters, that Class V wells in certain industry sectors do not pose a high risk to USDWs, even when located in a source water protection area, it will place these wells in an "other industrial wells" category for further study and not include them in the "industrial wells" category addressed in this rulemaking. The National Funeral Directors Association has submitted data suggesting that such an approach may be appropriate for Class V septic systems operated by funeral homes.

Cesspools receive and allow untreated sanitary waste to percolate directly into the shallow subsurface. Only those cesspools with the capacity to serve 20 or more persons per day are subject to UIC regulation. Such large-capacity cesspools have a high potential to contaminate USDWs because: (1) sanitary wastes released in cesspools frequently exceed drinking water MCLs for nitrates, total suspended solids, and coliform bacteria; (2) the wastes also contain other constituents of concern, including phosphates, chlorides, grease, viruses, and chemicals used to clean cesspools such as trichloroethane and methylene chloride; and (3) cesspools provide no treatment except for some settling of the solids. In addition, EPA’s 1987 Report to Congress notes that some States have reported degradation of USDWs from such cesspools. Based on these concerns, new cesspools are already banned in most states.

In this rulemaking, EPA is considering proposing new federal requirements which EPA believes will strengthen programs to protect USDWs from pollution by a ban on both new and existing large-capacity cesspools in source water protection areas. These cesspools represent perhaps the clearest case of high risk wells that can be addressed without further study, as specified in the consent decree with the Sierra Club discussed above.

Class V wells are currently authorized by rule as long as (1) they do not endanger USDWs, and (2) the well owners or operators submit basic inventory and assessment information. If a Class V well may cause a violation of drinking water standards, UIC Program Directors in EPA Regions or States can require the injector to apply for a permit, order preventive actions (including closure of the well) to prevent the violation, require remediation to assure USDWs are protected, or take enforcement action. These and other existing federal requirements and authorities will continue as basic elements of EPA’s Class V strategy, applicable to all Class V wells in all areas.

EPA is considering a three-pronged approach to supplement the existing program and ensure Class V injection wells do not endanger USDWs. This expanded strategy is being developed to resolve major issues raised in public comments on the 1995 proposal, to protect USDWs in designated source water protection areas, to embrace priorities and help achieve goals defined under the 1996 Amendments to the SDWA, and to fulfill the Agency’s responsibilities under the 1997 consent decree with the Sierra Club. The three prongs are: (1) an initial rule creating additional requirements for high-risk Class V wells in ground water-based source water protection areas that can be addressed without further study; (2) further study of other types of Class V wells not covered in the initial rule; and, 3) further regulatory action, as necessary.

The current rulemaking is the first prong of this Class V strategy. As discussed above, EPA is considering new requirements for motor vehicle waste disposal wells, industrial wells, and large-capacity cesspools, each of which EPA currently believes fall into the category of high risk wells that do not require additional study. The new requirements would be targeted to such wells in source water protection areas delineated for community water systems and non-transient non-community water systems that use ground water as a source of drinking water.

EPA is considering a ban on motor vehicle waste disposal wells in delineated source water protection areas. Starting one year from the effective date of the rule, owners or operators of such existing wells would be required to cease injection operations and close their well within 90 days of the completion of the local source water assessment program for their area. This timeframe is designed to give owners or operators of existing wells a reasonable amount of time to close their wells and implement alternative waste management methods. New motor vehicle waste disposal wells, and new conversions to such wells, in those delineated areas would be prohibited starting on the effective date of the rule. If a State has not completed its source water assessment program by May 2003, the ban would apply throughout the State.

EPA is endeavoring to design the proposed ban on motor vehicle waste disposal wells to be self-implementing by owners or operators, with minimal new reporting requirements and no new inspection or other administrative requirements. Under the current draft proposal, owners or operators of existing motor vehicle waste disposal wells in affected areas would have to close their wells within one year of the effective date of the rule or 90 days of the completion of the local source water assessment program for their area, whichever is later. For drinking water programs administered by EPA, also known as Direct Implementation (DI) Programs, owners or operators of wells being closed would be required to notify the UIC Program Director of their intent to close their well at least 30 days prior to closure. This would be identical to the notification requirement for Class IV wells regulated by DI Programs, specified in 40 CFR section 114.23(b)(3). Owners or operators of wells in Primacy States would have to meet any existing State-established reporting requirements.

For some owners or operators of motor vehicle waste disposal wells, well closure would entail sealing floor drains or disconnecting them from existing wells. Owners or operators would be required to plug or otherwise close the well in a manner acceptable to the UIC Program Director prior to abandoning the well. This closure requirement would be similar to the one that exists in section 144.23(b)(1) for Class IV wells. The existing requirement in section 144.12(a) also would continue to apply, which prohibits owners or operators from plugging and abandoning a well in a manner that allows the movement of fluid into USDWs. Remediation -- defined as removal of piping, septic tank, and/or contaminated soil and installation of ground water monitoring wells -- would not be required as part of closure under the proposal being considered, but may be required under other existing laws or regulations depending on the nature and extent of soil or ground water contamination (if any) caused by the well operation. EPA recognizes that, as a practical matter, the new rule may trigger remediation that otherwise would not have occurred, and, therefore, will factor the costs of such remediation into its economic analysis of the rule. In addition, any wastes generated during well closure or under alternative waste management scenarios after the wells are closed (e.g., spent cleaning solutions and absorbents) would have to be managed in accordance with all existing statutes and regulations. EPA is in the process of drafting Class V well closure guidance that is scheduled to be available by the time the final rule is promulgated. This guidance will provide more detail on how to close disposal wells used by motor vehicle-related facilities.

These new requirements would be consistent with guidance developed by the American Petroleum Institute recommending that oil companies and service stations eliminate the use of Class V wells to dispose of motor vehicle-related waste ("Handling Water Discharges from Automotive Service Facilities Located at Petroleum Marketing Operations," API Recommended Practice 1633, January 1992). It would also be consistent with requirements currently being implemented by some State UIC Programs. For example, the State of Connecticut has published a guidebook for local officials with regulatory responsibility for Class V wells ("Best Management Practices for the Protection of Ground Water," November 4, 1992) recommending that all discharges from existing wells at automotive repair and service facilities to other than a sanitary sewer be prohibited, and that discharges at new or expanded facilities in wellhead protection areas also be prohibited. New Hampshire also disallows discharges into floor drains at automotive facilities.

EPA is considering requirements for owners or operators of existing Class V industrial wells in source water protection areas, for community water systems and non-transient non-community water systems that use ground water as a source, to either (1) make sure fluids disposed of in their wells meet drinking water MCLs at the point of injection, or (2) close their wells. New wells in such areas, including new conversions to Class V industrial wells, would be prohibited unless they were able to meet the same standard on injectate quality. UIC Program Directors would retain their existing discretion to require the injectate to meet other appropriate health-based limits for contaminants for which no MCL has been promulgated, as needed to protect USDWs. Industrial well closures would be subject to the same basic closure requirements being considered for motor vehicle waste disposal wells, including the requirement that owners or operators in DI Programs submit pre-closure notification at least 30 days prior to closure.

The timing for these new requirements would be the same as that proposed for motor vehicle waste disposal wells. Starting one year from the effective date of the rule, existing wells would have to meet the MCLs or close within 90 days of the completion of the source water assessment program for their local area. This timeframe is designed to give owners or operators of existing wells a reasonable amount of time to comply with the new requirements. The requirements for new and converted industrial wells would be effective immediately on the effective date of the rule.

EPA is considering banning new large-capacity cesspools in delineated source water protection areas (defined as those having the capacity to serve 20 persons or more per day) starting on the rule's effective date. Existing large-capacity cesspools in such areas would have to be phased out within five years of the effective date of the rule. Owners or operators of such cesspools in DI Programs would have to notify the UIC Program Director of the intent to abandon their cesspool at least 30 days prior to abandonment. Owners or operators of large-capacity cesspools in Primacy States would have to meet any State-established reporting requirements. Cesspool closures would be subject to the same basic closure requirements being considered for Class V motor vehicle waste disposal and industrial wells.

To define small entities, EPA used the Small Business Administration (SBA) industry-specific criteria published in 13 CFR section 121. SBA size standards have been established for each type of economic activity under the Standard Industrial Classification (SIC) System. These criteria are usually expressed in terms of number of employees or dollar volume of sales.

To determine the affected small entities, EPA developed a list of SIC codes containing industries that might be subject to the proposed rule; development of this list is described in Section 5 below. For the purposes of the Initial Regulatory Flexibility Analysis, SIC codes in which at least 90 percent of the firms met the SBA definition of a small business were treated as if they consisted entirely of small businesses, while those in which less than 90 percent of the firms met the SBA definition were divided into large and small firms and the large firms excluded from the analysis. During the Panel review, SBA expressed concern that this methodology may not adequately capture the effects of the rule on different size categories of small businesses within an SIC code. SBA is particularly concerned that the potentially significant effects on the smallest firms may be overlooked by an approach that looks only at the "average" effects on all small firms within a sector. This problem is exacerbated by the inclusion of large firms in the analysis as well for many SIC codes.

The rule being considered would affect owners and operators of three categories of Class V injection wells in source water protection areas delineated for community water systems and non-transient non-community water systems that use ground water as a source.(2) The three categories of Class V wells that would be subject to the proposed rule under the current draft are:

In order to formulate a list of the industries that operate Class V wells potentially subject to the proposed rule, EPA developed a list of SIC codes that capture the universe of facilities that possibly could have motor vehicle waste disposal wells and industrial wells. Injection well inventory data from six states (West Virginia, Kansas, Nebraska, New Hampshire, Illinois, and Montana), as well as data from EPA Region 3 (including data on Pennsylvania and Virginia), were reviewed to determine the SIC codes associated with industrial disposal wells, automotive service station wells, and cesspools. An SIC code was included in the list of affected industries if it appeared at least one time in at least three of the State inventories. Additional SIC codes judged to be applicable were also added to this list.

This initial list was then pared down to reflect the number of facilities that may be actually affected by the proposed rule. EPA eliminated from the list those facilities that would be outside the scope of the rule, including:

Although States have the flexibility to delineate their source water protection areas in a variety of ways, EPA believes that such areas delineated for ground water supply sources will be similar to wellhead protection areas already delineated in most places. A total of 43 States and 2 Territories have EPA-approved Wellhead Protection Programs. Most of these programs have defined wellhead protection areas using a fixed radius around water supply wells.

Given this situation, EPA determined the number of facilities likely to fall within source water protection areas by estimating the number of facilities likely to fall within a fixed radius of existing supply wells. Based on data from the State Wellhead Protection Plans, it was assumed that the typical protection area will be a half-mile radius around community ground water supply wells and a quarter-mile radius around non-transient non-community ground water supply wells. Using these areas and current data on the number of supply wells in each State, EPA estimated the land area in each State likely to fall within a source water protection area targeted by the proposal. That area was then divided by the total land area in the State to estimate the fraction of land in each State likely to be in a source water protection area. Finally, the number of potentially affected facilities was estimated by multiplying that fraction by the total number of facilities in each State estimated to have a Class V motor vehicle waste disposal well or industrial well that would be subject to the proposal. This approach assumes that the Class V wells are distributed evenly across each State. (The appropriateness of this assumption was discussed by the Panel; see Section 9: Panel Findings and Discussion below.)

Table 1 summarizes the results of this analysis for each potentially affected SIC code, it provides the corresponding SBA size threshold and the estimated number of small facilities potentially subject to the rule.

**Small Businesses Potentially Subject to the Class V Proposal Under Consideration**
SIC Code	Description	No. of Facilities	SBA Size Threshold ¹	Percentage Small ²	No. of Small Facilities
Industrial Wells
0742	Veterinary services for animal specialties	24	$5.0	94.6%	22
1521	General contractors - single family houses	131	$17.0	100.0%	131
1541	Industrial buildings & warehouses	8	$17.0	100.0%	8
1611	Highway and street construction (not elevated)	12	$17.0	100.0%	12
1711	Plumbing, heating and air conditioning	92	$7.0	99.0%	91
1794	Excavation work	18	$7.0	98.2%	18
2752	Commercial printing, lithographic	34	500	99.8%	33
2759	Commercial printing, nec	10	500	100.0%	10
3089	Plastics products, nec	10	500	99.3%	10
3599	Industrial and commercial machinery & equipment, nec	27	500	100.0%	27
4911	Electric services	6	$10.0 ³	31.9%	2
4953	Refuse systems	4	$6.0	91.4%	4
5012	Automobiles and other motor vehicles	13	100	97.6%	13
5013	Motor vehicle supplies and new parts	25	100	98.5%	24
5063	Electrical apparatus and equipment, wiring supplies & construction materials	19	100	98.3%	19
5082	Farm & garden machinery and equip.	5	100	95.8%	5
5083	Construction and Mining (except Petroleum) Machinery and Equipment	13	100	99.5%	13
5084	Industrial machinery and equipment	32	100	98.7%	32
5085	Industrial supplies	17	100	98.2%	16
5087	Service establishment equipment	9	100	99.0%	9
5169	Chemicals and allied products, nec	10	100	98.0%	10
5172	Petroleum and petroleum products wholesalers exc. bulk stations and terminals	7	100	98.5%	6
5261	Retail nurseries and garden stores	30	$5.0	99.2%	30
5411	Grocery stores	143	$20.0	98.9%	141
5551	Boat dealers	6	$5.0	96.2%	5
5941	Sporting goods and bicycle shops	25	$5.0	98.7%	24
5983	Fuel oil dealers	12	$9.0	97.5%	12
5999	Miscellaneous retail stores, nec	46	$5.0	97.7%	45
7261	Funeral service and crematories	19	$3.5	99.5%**	19
7389	Business services, nec	61	$5.0	97.9%	59
7542	Carwashes	13	$5.0	99.8%	13
7692	Welding repair	6	$5.0	99.7%	6
7694	Armature rewinding shops	3	$5.0	97.4%	3
7699	Repair shops and related services, nec	38	$5.0	99.0%	38
7999	Amusement and recreation, nec	25	$5.0	98.4%	25
8062	General medical and surgical hospitals	1	$5.0	21.4%	0
8211	Elementary and secondary schools	132	$5.0	70.5%	93
8734	Testing laboratories	5	$5.0	95.1%	5
9224	Fire Protection	23	$5.0	97.0%	22
Automotive Service Station Wells
4142	Bus charter service, except local	10	$5.0	95.3%	10
4212	Local trucking, without storage	327	$6.0	99.3%	325
4213	Trucking, except local	263	$18.5	98.7%	260
4581	Airports, flying fields, and airport terminal services	18	$5.0	93.9%	17
5015	Motor vehicle parts, used	88	$5.0	99.9%	88
5511	Motor vehicle dealers (new and used)	165	$17.0	83.9%**	138
5521	Motor vehicle dealers (used only)	143	$11.5	99.9%**	143
5531	Auto and home supply stores	293	$5	98.8%	289
5541	Gasoline service stations	665	$4.5	98.2%**	653
7514	Passenger car rental	41	$18.5	98.6%	40
7515	Passenger car leasing	8	$18.5	100.0%	8
7532	Top, body and upholstery repair shops and paint shops	268	$3.5	99.8%**	268
7533	Auto exhaust system repair shops	42	$5.0	99.5%	42
7537	Automotive transmission repair shops	43	$3.5	100.0%**	43
7538	General automotive repair shops	449	$3.5	99.9%**	449
7539	Automotive repair shops, nec	67	$3.5	99.8%**	67
7549	Automotive services, except repair and carwashes	73	$3.5	99.4%**	72
9111	Executive offices	200	50,000	97.0%	194
Totals		4,275			4,162

¹ SBA size thresholds from 13 CFR 121. Units in millions of dollars or number of employees.

²For each SIC code, the Percentage Small equals the number of businesses that are small (below SBA threshold) divided by all businesses.

³ SBA threshold for electric services is 4 million megawatt-hours. There were insufficient data available on the generating capacity of a representative sample of the industry so an alternate threshold of $10,000,000 was used.

** Percent calculated with a threshold lower than that used by SBA. Actual percent is the same or higher.

EPA has sought and obtained input from States, local government entities, and industries throughout the development of the Class V UIC regulations. For the purpose of this summary, the outreach activities can be divided into two major timeframes: prior to and subsequent to the 1995 proposal.

Rule development activities prior to the 1995 proposal included regular coordination with State and EPA Regional staff. Since these staff are the key points of contact for most businesses that are regulated under Class V requirements, they have first-hand knowledge of the kinds of concerns those businesses can be expected to have. These staff conducted outreach to the regulated community (a large percentage of which is small businesses) to solicit opinions about the modifications to the Class V UIC program that EPA was planning to propose. Small entities targeted by this outreach included auto dealers and service stations (Region II). The outreach methods included asking State auto service station associations to assist in the design of Class V permits (New Jersey) and having EPA Regional UIC staff meet with members of national associations to explain the purpose of the program and alternatives to the use of Class V wells (North Carolina).

At the same time, EPA rule development staff reached out directly to representatives of small businesses that own or operate Class V wells. EPA also convened "light" industry focus groups that included representatives from the automotive service, petroleum marketing, funeral, photofinishing, and metal finishing industries, among others. At these meetings, EPA sought input to identify innovative implementation strategies for management of Class V wells that could be incorporated into the rule. For example, EPA asked for input on best management practices that could be undertaken by various industries to accomplish the goal of a reduction in risk to USDWS at the lowest cost to businesses.

The 1995 proposal itself provided an opportunity for input by small entities. EPA received 57 public comment letters, many of which were from small businesses or associations that represent small businesses, including the National Automobile Dealers Association, the Petroleum Marketers Association, and the Society of Independent Gasoline Marketers of America. The comments provided input and ideas in response to EPA’s proposed Class V strategy as well as the specific comment solicitations spelled out in the preamble.

Since that time, EPA has conducted outreach directly to representatives of small entities that would be affected by the proposed rule as required by SBREFA. EPA, in consultation with SBA, identified 17 representatives of small entities that were most likely to be affected by the proposed rule. In December, 1997, EPA prepared an outreach brochure titled "Possible Changes to Class V UIC Requirements: Information for Owners and Operators of Class V Injection Wells." This brochure was distributed to the small entity representatives and EPA convened a two-hour conference call with these representatives on January 15, 1998. Also in January, 1998, EPA presented the new Class V draft proposed requirements to the SBA Environmental Roundtable.

In addition, EPA has been convening stakeholder meetings to inform potentially affected entities, including small businesses, of the requirements under consideration for the proposed rule and to solicit feedback. To date, EPA has held three stakeholder meetings, one in Washington, DC, on January 20, 1998, one in Chicago, IL on January 27, 1998, and one in San Francisco, CA on February 19, 1998.

EPA, in consultation with the Small Business Administration, invited the following 17 small entity representatives (SERs) to participate in its outreach efforts on the UIC Class V proposal being considered. Many of these representatives have also submitted written comments.

Ralph Bombardiere
Gasoline and Automotive Service Dealers Association
New York Association of Service Stations

The Office of Ground Water and Drinking Water (OGWDW) received 11 sets of written comments from SERs prior to the convening of the Panel on February 17, 1998. In addition, oral comments were provided to OGWDW during a telephone conference call on January 15, 1998. Copies of all written comments and a summary of the conference call were provided to all Panel members by OGWDW. Six additional sets of written comments from SERs were received by the Panel after it convened. The Panel also conducted outreach through a face-to-face meeting with the SERs on March 5, 1998, in Washington, DC. A list of all written comments received by both OGWDW and the Panel is provided in Table 2 below. Summaries of the SERs’ oral comments from the January 15 conference call and the March 5 meeting, as well as of the 17 sets of written comments are contained in Appendix A. The complete written comments are provided in Attachment A.

A number of commenters suggested that the existing UIC program, in conjunction with EPA’s 1995 Proposal to address high risk Class V wells through a management and closure strategy using existing authorities, is adequate to protect USDWs. These commenters believe that state, local, and regional authorities already have ample authority to deal with problem wells and support the continued flexibility of these authorities to address Class V wells on a site-specific basis. These commenters believe that additional regulation requiring automatic closure of certain wells is redundant and unnecessarily limits that flexibility. Several commenters also stated that wells currently classified as Class V wells that are injecting hazardous waste should be reclassified as Class IV wells, which are already prohibited under existing regulations. They believe this would be more appropriate than imposing new closure requirements on legitimate Class V wells.

EPA now believes that the 1995 proposal on Class V injection wells was inadequate to protect USDWs for two main reasons. First, the 1995 approach proposed to address all Class V wells regardless of the level of risks they pose to USDWs, with one approach. This proposed approach failed to account for the wide range of risks posed by the varied universe of Class V wells. As a result, the proposed rule did not adequately address high risk wells that threaten public drinking water supplies. EPA now believes that specific regulatory requirements are necessary to control the risks posed by industrial waste disposal wells, motor vehicle waste disposal wells and large capacity cesspools in delineated source water protection areas. This belief was echoed in public comment received on the proposed rule and in recent stakeholder meetings. Second, EPA believes that the 1995 proposed rule did not provide for consistent public health protection nationwide because it did not establish a clear baseline program for States to follow and, therefore, even though the authority exists, States could allow inadequate controls in those situations where there is inadequate information and/or inadequate resources to address Class V wells.

The Panel did not reach consensus on this issue. Despite the concerns raised by EPA and many commenters on the 1995 proposal, some Panel members believe that EPA has little new information to suggest that its earlier proposed approach of addressing the risk from Class V wells through existing authorities combined with a management strategy to speed up well closures and promote the use of BMPs, is inadequate. These Panel members urged EPA to consider expanding its current permit-by-rule approach to require the use of appropriate management practices while maintaining the flexibility of state UIC programs to tailor their programs to local conditions. For example, required management practices for automotive facilities would include the elimination of solvents, used oil, and waste antifreeze from these wells. These Panel members question whether EPA has adequately examined automotive facilities currently employing such practices, or adequately modeled the fate and transport of the remaining lower quantity higher quality injectate, to determine if Class V wells at such facilities endanger USDWs.

**Table 2: List of SER Written Comments**
Name	Organization	Date Received	Number of Pages
OGWDW Outreach
Jeffrey Longsworth Jeffrey Leiter	Society of Independent Gasoline Marketers of America	1/14/98	7
Jill Zucker	National Funeral Directors Association	1/15/98	3
Frank Tabish	Tabish Brothers Distribution	1/23/98	1
Dick Taylor	Big O Tires	1/24/98	3
Jeffrey Longsworth Jeffrey Leiter	Society of Independent Gasoline Marketers of America (second set)	1/30/98	8
Tracy Alaimo Mattson	Institute of Scrap Recycling Industries	1/30/98	5
Ralph Bombariere	NY State Association of Service Associations and Repair Shops	1/29/98	1
John J. Huber	Petroleum Marketers Association of America	2/2/98	2
Doug Greenhaus	National Automobile Dealers Association	2/3/98	4
Jeffrey Longsworth Jeffrey Leiter	American Car Rental Association	2/10/98	5
Steve Hensley	American Trucking Associations	1/30/98	13
Panel Outreach
Jill Zucker	National Funeral Directors Association	3/18/98	2+ Attachment
Jeffrey Leiter Jeffrey Longsworth Ann-Marie Carrington	Society of Independent Gasoline Marketers of America	3/19/98	5
Jeffrey Leiter Jeffrey Longsworth Ann-Marie Carrington	American Car Rental Association	3/19/98	5
Steve Hensely	American Trucking Associations	3/16/98	1+ Attachment
Doug Greenhaus	National Automobile Dealers Association	3/20/98	4+ Attachments
Ralph Bombardier	NY State Association of Service Associations and Repair Shops	3/27/98	2

9.1.2 Characterization of Motor Vehicle and Industrial Wells in SWPAs as High Risk

Some commenters questioned whether EPA has adequate data to support its blanket characterization of all Class V motor vehicle wells and industrial wells in SWPAs as "high risk" wells that do not require further study. These commenters believe that many such wells do not pose significant risk to USDWs and that in general the risk of individual wells can only be determined through consideration of site specific factors, such as soil hydrology, depth of water table, quality of injectate, and distance to drinking water intakes. Some Panel members expressed concern that EPA’s data regarding contamination of USDWs from such wells consists largely of individual case studies, rather than a systematic statistical correlation between injection in such wells and contamination of USDWs.

EPA’s evaluation of the risk from such wells is based on the combined professional judgement of EPA and State geologists and engineers that are responsible for implementing the Class V UIC program. The risk associated with these wells is discussed in numerous reports and studies. In 1987 the EPA completed a Report to Congress (RTC) on Class V injection wells. This report was based on information and data, provided by States, on all types of Class V wells. The RTC concluded that motor vehicle waste disposal wells and industrial waste injection wells pose a high potential to contaminate underground sources of drinking waters. This conclusion is supported by a number of other information sources including contamination studies performed by the State regulators, environmental sampling data obtained from Class V well closures, and various outreach documents published by States. Finally, EPA’s position that motor vehicle waste disposal wells should be banned is consistent with guidance put out by the American Petroleum Institute recommending that such wells be closed (Handling Water Discharges from Automotive Service Facilities Located at Petroleum Marketing Operations, by the American Petroleum Institute, API Recommended Practice 1633, First Edition, January 1992).

The Panel received comments from four small entity representatives which indicated that over the past decade, many industrial facilities, and service stations and repair shops in particular, have adopted best management practices (BMPs), such as recycling of used motor oil and antifreeze, spill prevention and control, and use of environmentally friendly cleaning products, that have significantly reduced both the volume and the toxicity of their injectate. These commenters asserted that the use of such practices is now widespread in the automotive service industry. One of the same Small Entity Representatives did agree that EPA had "picked the right set of wells to focus on," however, he opposed categorical closure of automotive waste disposal wells in source water protection areas. Some Panel members expressed concern that the EPA’s current proposal to close all Class V motor vehicle wells in SWPAs is not based on actual data documenting endangerment from properly operated wells using current BMPs. These Panel members suggested that EPA consider an alternative approach based on the required use of BMPs, appropriate treatment, and assessment of endangerment potential on a site-specific basis. In response, EPA developed two alternative options for motor vehicle wells that would not require automatic well closure and agreed to consider them. These are discussed in the Regulatory Alternatives section below.

9.1.3 Requirement for Industrial Well Injectate to Meet MCLs at the Point of Injection

The Panel discussed EPA’s interpretation of the statutory requirement to promulgate regulations containing minimum requirements for effective State UIC programs to prevent underground injection which endangers drinking water sources (SDWA Sec 1421 (b)(1)). In the current rulemaking, EPA is proposing to satisfy this requirement by prohibiting injection by Class V industrial wells located in source water protection areas (SWPAs) unless the injectate meets all MCLs at the point of injection. Some members of the Panel questioned whether this was necessary, and suggested that EPA consider the possibility of allowing the injectate to meet some higher multiple of the MCL (e.g., 10 or 100 times the MCL) for certain contaminants under certain conditions, in recognition of the fact that some contaminants are significantly attenuated by percolation through the soil prior to reaching the water table, and most are diluted within an aquifer prior to reaching a public water system. In addition, many existing wells are designed in accordance with state and local requirements to treat wastes before releasing them into the soil. These Panel members suggested that for such contaminants (e.g., metals, which generally do not travel far from the point of injection unless injected directly into the water table), EPA should try to identify conditions (e.g., soil type, water table depth, distance to nearest drinking water well) that would allow injection of contaminants that exceeds the MCL by a specified amount without endangering drinking water sources. To be workable, such conditions would have to be easily verifiable.

EPA believes that its proposed approach to regulate cesspools, automotive service station wells and industrial wells is consistent with its long-standing interpretation of the statutory requirements to assure the protection of underground sources of drinking water. The Class V wells addressed in this proposed rule are used to inject waste either directly into or above USDWs. EPA also believes that developing a set of conditions within which a Class V well owner or operator could inject waste that exceeds drinking water standards without endangering drinking water sources would not be a viable option for most small entities because of the difficulty and expense involved in collecting the site-specific hydrologic, geologic, and soil information necessary to determine if waste, above the MCL, could be injected without endangering the underlying USDW. Additionally, EPA questions whether it would be possible to develop such conditions because of the difficulty of anticipating certain events (such as high volume spills, illicit discharges, the siting of new drinking water supplies wells, and, improper system maintenance) that could endanger underlying USDWs.

The SDWA Sec 1421 (d)(2) specifically states that, "Underground injection endangers drinking water sources if such injection may result in the presence in underground water which supplies or can reasonably be expected to supply any public water system of any contaminant, and if the presence of such contaminant may result in such system’s not complying with any national primary drinking water regulation or may otherwise adversely affect the health of persons." EPA noted that Congress, in establishing this endangerment standard, intended that the definition be "liberally construed so as to effectuate the preventive and public health protective purposes of the bill." (A Legislative History of the Safe Drinking Water Act, Committee Print February, 1982, at 564.) More specifically, in defining endangerment, the legislative history states that :

The Panel could not reach consensus on how to address this issue. OMB and SBA recommend that EPA solicit comment in the preamble to the proposed rule on the appropriateness of allowing injectate from Class V industrial wells in source water protection areas to exceed the MCL for certain contaminants under certain conditions, and on specific contaminants, conditions, and allowable levels for which this approach would be appropriate. They also suggested that EPA encourage commenters to provide data in support of their comments. EPA does not support this recommendation because it believes that allowing these high risk wells to inject wastes that exceed MCLs in areas close to drinking water supplies does not meet the statutory requirement to protect public health by not endangering USDWs.

9.2 The Types and Number of Small Entities to Which the Proposed Rule Would Apply

The type and number of facilities that may be subject to the rule as estimated by EPA is presented in Table 1 (above). Four small entity representatives raised concerns about these estimates, given that the scope of the rule will be largely determined by state source water protection area delineations which have not yet been performed. Some Panel members also raised concerns about the methodology used to estimate the number of affected wells. The current methodology does not account for the fact that Class V wells tend to be located in populated areas, and may thus be more likely to occur in source water protection areas than if they were evenly distributed across a state. This could lead to an underestimate of the number of impacted wells. The Panel recommends that EPA ask for comment in the preamble to the proposed regulation on its methodology for estimating the number of impacted wells and, if possible, revise it to account for the likely overlap between areas where Class V wells are located and source water protection areas.

The Panel also discussed several issues raised by commenters on the exact scope of the proposed rule and agreed that further clarification was needed regarding which wells are being proposed for regulation. These issues are discussed in more detail below.

Six commenters suggested that the current definition of Class V drainage wells proposed for regulation is unclear about the extent to which stormwater drainage wells are or are not included. The Panel recommends that EPA clarify that the proposed rule would not cover Class V drainage wells intended for stormwater management that may occasionally receive minor amounts of waste due to unintentional small volume leaks, drips or spills and that cannot reasonably be separated from potential sources of contamination. Additionally, the Panel recommends that the preamble to the proposed rule be used to clarify the meaning of the phrase "cannot reasonably be separated" in this context.

The Panel received comments from one small entity representative expressing concern over the language regarding car washes proposed for regulation in the current draft of the rule. The Panel recommends that the preamble to the rule be used to clarify that only wells at those car washes that are specifically set up to perform undercarriage or engine washing are considered to be Industrial Class V wells under the proposed rule. Wells at manual car washes using hand held hoses would not generally be covered.

The Panel received comments from the National Funeral Directors Association (NFDA) that included a study which indicated that only three contaminants with potential human health concerns, formaldehyde, methanol, and phenol, are likely to be found in funeral home waste water in concentrations that exceed the MCL. The study concluded that these contaminants are generally adequately treated in septic systems such that concentrations exceeding the MCL do not reach groundwater. NFDA thus recommended that Class V septic systems operated by funeral homes be classified as "other industrial" wells in the proposed regulation, rather than as "high risk" industrial wells. EPA believes that it needs additional time to evaluate the data submitted by NFDA and consider whether or not to classify funeral home waste water wells under the "other industrial" category as suggested. EPA will solicit comment and additional data on this issue in the preamble to the proposed rule.

In response to Panel discussions, EPA agreed to clarify in the preamble to the proposed rule that if all motor vehicle waste fluids generated at a service facility are segregated so that none are injected, the facility’s Class V well would not be prohibited and could be used to dispose of other waste streams such as storm water, ice melt, and carwash waste water. Examples of ways to segregate wastes include:

- Perform all vehicle maintenance in areas that do not drain to a Class V well. Use service bays connected to the Class V wells for ice melt or other non-motor vehicle waste discharges.

- Install a semi-permanent plug (a.k.a. plumber’s plug) in the sump outlet leading to the injection well. Collect automotive waste and spills in the sump and periodically dispose of off-site. When necessary, remove the plug and use the well for non-automotive wastes only.

9.2.5. Statewide Coverage for States that Fail to Complete Source Water Assessments

Several commenters questioned the appropriateness of EPA’s proposal to include within the scope of the rule all class V motor vehicle and industrial wells and large capacity cesspools within a state if the state fails to complete a SWAP by the extended statutory deadline of May 2003. These commenters believed this approach would unfairly impose a burden on some UIC operators who are not endangering community drinking water supplies because of the state’s failure to comply with applicable deadlines. EPA believes this provision is necessary to protect USDWs because without a completed SWA, there will be no way of knowing which wells in the state pose the highest risk. EPA will request comment on this approach and whether there are situations where exceptions would be appropriate, in the preamble to the proposed rule.

9.3 Projected Reporting, Record Keeping, and Other Compliance Requirements of the Proposed Rule

The Panel received comments from five small entity representatives expressing concern that it will be difficult for owners and operators of Class V wells to assess if they are covered by this regulation because they will not know at the time of proposal and promulgation if they are located in a source water protection area. One commenter also noted that small businesses are often unaware of regulatory developments and expressed concern at the inflexible way in which EPA has enforced Class V UIC regulations in the past. This commenter suggested getting compliance information to the regulated community well in advance of enforcement actions. The Panel discussed this concern and EPA noted that the proposed rule includes language on how owners and operators can find out if they are located within a source water protection area. SBA supports the recommendation of some commenters that the rule include a requirement that UIC program authorities directly notify all known owners of covered Class V wells located in source water protection areas (based on state inventories) of their coverage under this rule once these areas are delineated.

Most commenters stated that compliance with this rule would be burdensome to small businesses. Four commenters were particularly concerned that clean-up and remediation requirements under RCRA or existing UIC regulations might be triggered by well closures under the proposed rule and questioned whether EPA has adequately factored these potentially high costs into its analysis of the rule’s impacts. After discussing this issue within the Panel, EPA agreed that all costs incurred as a result of actions required under this rule, even if not based on rule requirements per se, should be included in its analysis of regulatory impacts, and EPA is currently revising its economic analysis to reflect such costs. The Panel also agreed that in areas where state and local authorities are already requiring closure of certain types of wells without this rule, the costs of closing such wells should not be included in the analysis for the rule.

9.4 Other Relevant Federal rules Which May Duplicate, Overlap, or Conflict with the Proposed Rule

The proposed rule is closely connected with (1) the existing regulations governing UIC wells, (2) the Source Water Assessment and Protection Program under the SDWA, and (3) the solid and hazardous waste regulations under RCRA.

The Panel received comments from two small entity representatives suggesting that the proposed rule may be inconsistent with the approach currently being adopted by the underground storage tank (UST) program. Commenters suggested that the UST program uses a risk based approach which recognizes the potential for natural attenuation of contaminants in soil that may prevent them from endangering USDWs. Commenters were concerned that in cases where well closures resulting from the current proposal trigger soil remediation requirements, it may be difficult to distinguish soil contaminated by Class V wells from soil contaminated by USTs, which could lead to inconsistent remediation standards and conflicts with insurers.

In response, EPA noted that the UST program regulates underground or inground gasoline storage tanks to protect ground water from contamination by petroleum hydrocarbon leaks. While acknowledging that the majority of Class V injection wells affected by the proposed regulation are located at automotive service facilities, which may also have underground storage tanks, EPA believes there is no overlap, duplication, or conflict between the proposed Class V regulation and the existing UST regulations, because the proposed Class V regulation will not impose any additional regulations on any USTs at these facilities, nor directly require any remediation.

As previously noted, commenters were also concerned that the closure requirements in the current proposed rule would trigger soil remediation requirements under RCRA that may be very costly for small businesses. In response, EPA notes that the proposed Class V rule does not require soil sampling or site remediation when a motor vehicle waste disposal well, industrial well, or large-capacity cesspool is closed. However, EPA understands that sampling and remediation of contaminated soils or groundwater at these closed or closing wells may be required under state law, or as a matter of insurance, contract, local ordinance or other federal requirement. EPA believes that any such remediation should be, to the extent possible, carried out consistent with any ongoing remediation of UST contamination at affected facilities. In addition, any wastes generated during well closure or under alternative waste management scenarios after the wells are closed (e.g., spent cleaning solutions and absorbents) will have to be managed in accordance with applicable solid and hazardous waste regulations, including RCRA.

In summary, while EPA believes that the proposed Class V rule does not duplicate, overlap, or conflict with UST or RCRA requirements, EPA acknowledges that compliance with the proposed rule may trigger remediation and waste management requirements under other federal, state or local law.

The Panel noted the concerns expressed by four of the ten commenters that some owners and operators may not be able to comply with the proposed new requirements within 90 days, especially in cases where the most efficient compliance option is connection to a sanitary sewer or installation of treatment. The Panel thus recommends that the UIC Program Director be allowed to extend the deadline for up to one year in such situations. The Panel also recommends that the preamble to the rule be used to clarify that UIC Program Directors have additional flexibility to extend the deadline through compliance agreements with owners and operators of covered facilities.

In response to comments raised by SERs concerning the burden of well closure on small entities, the Panel recommends that regulatory alternatives to the ban on automotive service wells in source water protection areas be considered. During the Panel’s deliberations, EPA developed preliminary outlines of two alternative options that served as the basis for the Panel’s subsequent discussions. They were:

2) Retain the ban on Class V motor vehicle wells in SWPAs but allow owners and operators to apply for a waiver if they can demonstrate that they meet MCLs at the point of injection. This approach differs from the first option, in that motor vehicle wells in SWPAs would be prohibited unless the owner/operator applied for a waiver within a certain time-frame.

EPA indicated that it would be willing to co-propose its original option (requiring closure of all Class V motor vehicle wells in SWPAs) and the second of the two options presented above, and to request comment in the preamble on the first option. The Panel endorsed this approach. However, OMB and SBA also suggested that EPA consider expanding the flexibility available under the second option. Because this approach would require a site-specific determination by the UIC Program director before a waiver for a Class V motor vehicle well in a SWPA could be issued, OMB and SBA believe that the appropriate condition for such a waiver is that the well not endanger USDWs, rather than that it meet all MCLs at the point of injection. OMB and SBA suggested that the UIC Program Director should have the flexibility to identify site-specific situations where exceedence of an MCL for a particular contaminant at the point of injection would not endanger USDWs and to include in the waiver any conditions necessary to ensure non-endangerment. OMB and SBA recommended that EPA request comment on this option in the preamble as well. EPA does not support this recommendation because it currently believes that allowing these high risk wells to inject wastes that exceed MCLs near drinking water supplies would endanger USDWs and would not provide adequate public health protection.

The Panel also recommended that the preamble presentation of the first option include a discussion of EPA’s rationale for including additional monitoring requirements beyond those proposed for industrial wells and request comment on appropriate monitoring requirements under this option.

The following summary highlights major points of the Small Entity Representative written comments received by EPA. A complete copy of all comments is included as Attachment A (Order of summary follows Table 2).

"SIGMA disagrees with EPA’s estimate that 700 service stations owned or operated by small businesses are "likely to be affected the most by the new Class V UIC requirements." Further, the Association questions the Agency’s estimate that 3,400 facilities of any size would be subject to the new requirements." Based upon the review of data available through the National Petroleum News annual Factbook, SIGMA believes that EPA’s estimate of small and affected facilities "misses the mark." Given that EPA does not know how states will designate source water protection areas, EPA should be difficult to estimate the minimum number of affected entities.

SIGMA states that "The many permutations of ownership/operator patterns at retail gasoline outlets complicates EPA’s RFA analysis, including the party responsible for the regulatory requirement and its attendant cost."

SIGMA feels that "a legitimate difference of opinion exists between EPA and regulated entities over whether current injection is causing a violation." "EPA’s study of motor repair wastes is dated and should not constitute per se evidence of a violation." and, "EPA should analyze the effectiveness of Best Management Practices (BMPs) recommended by the American Petroleum Institute (API)."

In estimating compliance costs for the requirements currently under consideration for Class V wells, "EPA should factor in that a percentage of facilities will need to determine whether Class V wells exist or whether floor drains are connected legally to sanitary sewers."

SIGMA believes that "It is unreasonable to impose the burden on a small business to find out if its Class V well is in a source water protection area and, if so, to close the well within 90 days of the State’s designation." SIGMA believes the most effective approach would be to notify affected entities when they become subject to the requirements as a result of inclusion in a designated SWPA.

SIGMA notes that any record keeping requirements for small entities prior to their being included in a designated SWPA could be burdensome. SIGMA is also concerned about the additional costs of learning about and complying with RCRA requirements for facilities closing wells.

SIGMA feels that there may be conflicts with EPA’s underground storage tank rules, particularly in the well closure/corrective action area. "On one hand, EPA has been promoting risk-based corrective actions for tank releases, including the use of "remediation by natural attenuation." On the other hand, the Agency’s brochure implies that Class V well closures largely will be accomplished by excavation and removal." This may cause problems with insurers for facilities where it is not possible to distinguish contamination stemming from UST releases from contamination stemming from Class V wells.

SIGMA states that another area of possible confusion for retail gasoline outlets involves drainage wells. SIGMA goes on to say that "EPA needs to clearly distinguish drainage wells from the Class V wells under consideration for new requirements."

NFDA reports that "Based on preliminary information recently collected, about 20% of NFDA’s members of 4,000 funeral homes, likely discharge embalming fluids to septic systems."

NFDA feels that "The detailed information requested of industrial dischargers [in existing regulations] is inappropriate for small businesses like funeral homes that discharge industrial wastewater to septic systems." NFDA believes that a funeral home on a septic system is unlikely to have the information requested.

NFDA feels that EPA should classify funeral home wastewater discharged to septic systems as "Septic Systems" or "Other Industrial Wells" because their wastewater is similar in composition to sanitary wastewater, their volume of discharge is similar to that of a residential household, and they are unaware of any evidence that funneral home septic system discharge has endangered USDWs. In addition, NFDA states that "If funeral homes are considered subject to the rule, EPA ought to provide an alternative point of compliance that is outside of the well, after the wastewater leaves the septic systems" and the embalming fluid constituents have been degraded.

Mr. Frank Tabish, owner and operator of a permitted Class V well, believes that most of the proposed regulations are already in place in Montana, and urges the agency to keep the requirements as simple as possible for small business people.

Mr. Dick Taylor, owner of a facility that closed a Class V well relates his experience. He is concerned about the heavy handed tactics used by EPA to close wells in his area, and the Agency’s lack of sensitivity to local conditions (businesses in his area were already working to have a sewer installed). "It’s how those [EPA’s] goals are presented to the industrial community by employees of the government that creates the problem. ...Suggestions that I would ask be considered when the EPA has an area that they plan on bringing into compliance with the Class V requirements are to first sell the importance of this project to the citizens and give them plenty of warning that their community is to be targeted in the near future."

Note: This set of comments expands upon first submission, comment #1 in this summary

SIGMA is "not convinced that the non-regulatory approaches proposed by EPA in August 1995 are inadequate to protect human health and the environment. A non-regulatory approach would enable State and local officials to deal with facilities on a site-by-site basis, rather than constructing a more detailed and confusing regulatory scheme." SIGMA goes on to say, " If the Agency insists on rejecting the "no action" alternative, it must provide more concrete reasons than those outlines in the existing materials."

SIGMA believes that "EPA should not reject the BMP approach to Class V well controls. BMPs currently exist and are practiced by SIGMA members. ...Adding to these BMPs and/or making these BMPs mandatory -- even through some type of permitting program -- in source water protection areas are viable alternatives to mandated closure."

SIGMA also states, "The Agency should not regulate motor vehicle wells more stringently than other wells. If motor vehicle well operators can show that their injectate meets drinking water MCLs at the point of contact (not the point of injection), then they should not be discriminated against and forced to close their well. .... EPA must recognize the natural attenuation of contaminants prior to their contact with drinking water sources."

ISRI "is concerned that some storm water drainage wells, by definition will be classified as industrial wells." ISRI believes that "...by focusing strictly on absolute containment by physical barriers, the Agency may cause closure of beneficial storm water drainage wells in source water protection areas where a facility has incorporated pollution prevention methods, albeit not structural controls." ISRI recommends that "the Agency clarify that storm water drainage wells that do not receive uncontrolled, contaminated runoff from an industrial or commercial site or storage area not contained or minimized by structural controls or other effective storm water BMPs, are not subject to the proposed new Class V requirements." Furthermore, ISRI states, "the Agency should clarify that a storm water drainage well that has historically received uncontrolled spills in excess of reportable quantities should be classified as an industrial well."

ISRI notes that "The draft proposal does not differentiate between high and low risks within an industrial well category or expand on "other industrial wells" that would not be subject to the new rules." and recommends that, "To properly address this issue, the Agency should conduct a comprehensive research plan to assess the health risks associated with Class V wells and then draft a proposal regulating the Class V wells deemed ‘high risk’."

ISRI goes on to say that "The Agency must identify other types of low and zero risk wells that will not be subject to the new rule - including additional industrial activity classifications and specific Class V wells affected by topography of the land, hydraulic connection or "time of travel" that do not harm public water supplies." ISRI suggests, "the Agency may want to consider allowing a state to determine what potential sources are significant or insignificant in a source water protection area and enable the state to act accordingly."

ISRI encourages EPA "to not apply the proposed rule statewide permanently if a state’s SWAP is not completed by May 2003." ISRI believes that states should have greater flexibility, especially if they are making progress in completing SWAPs and that industry should not be punished for a state’s inability to meet a deadline. The Agency should also "...consider assessing the impact a Class V well has on a public water supply not at the point of discharge from the well, but at the point of intake." ISRI also states that "At a minimum, the time of travel, hydraulic connection and other geological impacts should be considered before a Class V well is ordered to be closed or to meet the primary MCLs."

ISRI believes that there "is still merit in EPA’s original approach taken in 1995 regarding the use of BMP guidance over new regulatory requirements" and that encouraging the use of BMPs is more effective than a command and control approach. ISRI believes that "creating guidance to educate industry for example, on ways to minimize the environmental impact of storm water drainage wells, would be more effective and a greater use of Agency resources than the current proposal."

Based on its experience with bay drain closures in NY State, the Association states that the closures and associated clean-ups were expensive and in many cases were required even though there were only limited threats to drinking water. The Association recommends that closures be limited to areas that pose a real threat to USDWs, taking into account natural filtration, that facilities be given the opportunity to demonstrate that they do not threaten USDWs, that clean-up requirements be limited to "immediate contamination only," and that "run off water" from service stations not be regulated.

PMAA is concerned that the Agency "is unaware of the importance of these wells for service stations and also has not adequately considered alternatives that would be environmentally protective at a lower cost to the regulated community." PMAA feels that the inclusion of all service station wells within a source water protection area or within the entire state if the state does not complete its SWAP on time would lead to the shut down of many service stations that do not directly affect the groundwater which is of interest. PMAA believes that the operators of these wells "should be entitled to prove to the Agency that they are not affecting groundwater."

PMAA believes that the Agency’s first approach should be to "spread the use of BMPs and determine what is discharged in the well when BMPs are used." PMAA also feels that "the Agency should evaluate whether monitoring wells installed as part of the underground storage tank program could be used to determine is there is movement [of contaminants] from a bay drain."

PMAA also believes that "the Agency should provide states with guidance regarding a simple shutdown." If well closure involves extensive regulatory costs, "early closure becomes more difficult and a marketer may not want to go to full closure."

PMAA believes "in many cases the products deposited in the well are not migrating" and "...[deposited products] may not be affecting the subsurface water and natural attenuation may be destroying the materials before they migrate."

NADA is concerned about EPA’s method of estimating the number of affected facilities, particularly the assumption that Class V wells are evenly distributed throughout a state. "An accurate, up-to-date inventory of potentially impacted facilities should be collected (with that number adjusted upward to include unaccounted for facilities) before a final proposal or regflex document is issued."

NADA believes that "The categorical closure of motor vehicle waste disposal wells is unjustified as potential waste streams (solvents, oils, lubricants and even antifreeze) are no long routinely discharged into these wells but instead typically are recycled. In addition, most facilities employ spill prevention and control practices aimed at minimizing the inadvertent introduction of wastes to floor drains and facility washing activities utilizing ‘environmentally friendly’ cleaners." Also, NADA states that "A proposal to require the categorical closure of motor vehicle ‘waste disposal’ wells would inappropriately fail to reflect current facility waste and wastewater management practices."

NADA feels that "The proposed rule should treat motor vehicle facility Class V wells like other "industrial wells." In addition, "EPA should provide small business owner/operators with the information necessary to operate these [Class V] wells in compliance without incurring prohibitory monitoring or testing costs."

NADA feels that "The proposal does not consider the fact that the actual risk of contamination depends on the degree to which subsurface soils act to filter contaminant and to which the aquifer is protected by impermeable barriers." and, " The final proposal should allow these risk factors to be taken into consideration, especially with respect to newly installed wells where minimum setback, minimum separation and other best engineering design criteria can be incorporated into the well system."

NADA feels that "it may be appropriate to condition the exclusion of drainage wells from this proposed regulation on a prohibition of intentional discharges of contaminants of concern or proper well maintenance and operational management practices including source separation options and/or spill response and pollution prevention planning. The unintentional discharge of minor amounts of contaminant and the discharge of wash water should not serve to render these [drainage wells] "industrial."

NADA feels that car washes excluded from this rulemaking should be defined to include "vehicle washing facilities at dealerships and other private businesses in additional to commercial and do-it-yourself car washes." Moreover, this well category "should be defined broadly enough to include truck and other equipment washing operations."

NADA believes that "States should be required to inventory wells potentially regulated by the new Class V rule and to notify the owners and operator of those wells early on in the assessment process." NADA also states that "The proposal should clarify that the rule is effective ninety days after the assessment program has been approved by EPA." NADA also believes that State programs should be required to include small business outreach efforts designed to ensure that Class V well owner/operators become aware of their compliance responsibilities.

NADA felt that "The proposed rule should reference or include guidance, perhaps in the forms of an appendix, designed to address appropriate well closure and cleanup." NADA is concerned that in the past, "local and state regulators have often imposed expensive and unnecessary cleanup requirements on small businesses shutting down their Class V wells" and suggested that "Guidance designed to educate state and local regulators and to promote uniformity will help to avoid unnecessary costs and burdens. A closure notification requirement designed to allow states to update their inventories would not be unreasonable."

"ACRA disagrees with EPA’s estimate that 700 service stations owned or operated by small businesses are "likely to be affected the most by the new Class V UIC requirements." Further, the Association questions the Agency’s estimate that 3,400 facilities of any size would be subject to the new requirements.

ACRA feels that "a legitimate difference of opinion exists between EPA and regulated entities over whether current injection is causing a violation." "EPA’s study of motor repair wastes is dated and should not constitute per se evidence of a violation." and, "EPA should analyze the effectiveness of Best Management Practices (BMPs) recommended by the American Petroleum Institute."

ACRA believes that "It is unreasonable to impose the burden on a small business to find out if its Class V well is in a source water protection area and, if so, to close the well within 90 days of the State’s designation." ACRA believes the most effective approach would be to UIC program directors should notify affected entities when they become subject to the requirements as a result of inclusion in a designated SWPA.

ACRA notes that any record keeping requirements for small entities prior to their being included in a designated SWPA could be burdensome. ACRA is also concerned about the additional costs of learning about and complying with RCRA requirements for facilities closing wells.

ACRA feels that there may be conflicts with EPA’s underground storage tank rules, particularly in the well closure/corrective action area. "On one hand, EPA has been promoting risk-based corrective actions for tank releases, including the use of "remediation by natural attenuation." On the other hand, the Agency’s brochure implies that Class V well closures largely will be accomplished by excavation and removal." This may cause problems with insurers for facilities where it is not possible to distinguish contamination stemming from UST releases from contamination stemming from Class V wells.

ACRA encourages EPA to enable State and local officials to deal with facilities on a site-by-site basis or to consider a permitting program rather than mandated well closure. ACRA states that EPA should not regulate motor vehicle wells more stringently than other wells and should recognize natural attenuation of injectate constituents.

ATA believes that EPA has "grossly underestimated the number of wells (3400 facilities by EPA estimate) affected and the costs and time associated with this action." In particular, ATA feels that the proposed 90 day time limit for compliance is "completely unreasonable". ATA also feels that EPA’s proposed notification process is inherently faulty and many facilities will not necessarily know that they have been added under a new regulation. ATA feels that EPA funds would be better spent in an outreach program regarding the UIC program rather than further regulation..

ATA also believes that EPA has not presented technical data for review to support this proposed regulation. "ATA does believe that the term high risk has not been properly defined or identified by EPA." ATA feels that EPA needs to produce groundwater contamination data in a tabular form for review by industry.

ATA recommends that the UIC Director have discretion to delay the state-wide application of the requirements after the May 2003 SWAP deadline. In addition, ATA believes that owner/operators of motor vehicle waste disposal wells should be given the option of meeting certain water standards as opposed to closing their UIC well.

ATA notes that "EPA has proposed an outright ban on these wells but has offered no options to industry for redirecting their discharge."

ATA feels that the classification of stormwater drainage wells that receive "contaminated" runoff as an industrial well is excessive. ATA encourages EPA is clarify this section by stating that contamination from spills should not be allowed to enter drainage wells.

ATA opposes adding extensive closure, testing or remediation requirements to this regulation.

NUDA submitted an analysis in support of their request that EPA consider funeral home wastewater as classified under the category of "Other Industrial Wells" rather than under the high risk category of "Industrial Wells." The report, entitled "Septic Systems Treatment of Funeral Home Wastewater" examines the characteristics of funeral home wastewater, evaluates the extent of treatment afforded funeral home wastewater by septic systems and compares the projected septic system effluent against health-based values established by EPA. The report notes that funeral home wastewater is comprised primarily of low levels of three readily biodegradable preservative chemicals which pose a low risk to underground sources of drinking water when discharged to on-site septic systems. Finally, the report concludes that septic systems can properly handle funeral home wastewater without risk to health or the environment. In addition, NUDA reports that it is not aware of any instances of contamination of drinking water sources by funeral home wastewater.

SIGMA and ACRA ("the Associations") continue to question the data on which EPA relies to supports its claim that there is a need to regulate Class V wells, particularly automotive wells. SIGMA and ACRA are specifically troubled by the limited amount of evidence cited by the Agency that contaminants from motor vehicle well injectate pose a high risk to human health and the environment.

The Associations are concerned with EPA’s definition of "industrial wells." Specifically, with the broad definition as currently drafted, stormwater drainage wells from canopies and roofs at retail gasoline outlets will be reclassified as industrial wells and could be subject to new requirements. Requiring physical barriers between a storm drainage well and the industrial or commercial site is unnecessary and would result in closure of essential stormwater drainage wells from these canopies and roofs.

The Associations feel that there remains an absence of a clear indication by the Agency as to which facilities will be subject to the proposed regulation. What assurances does the Agency have that the states, in fact, will use well-head protection programs as a basis for delineation of SWPAs? Determining the exact areas that will be included in a state’s SWAP is important because, until a facility is determined to be within the protected area, the facility operator has no incentive to comment on the proposed rule.

SIGMA and ACRA are also concerned with EPA’s failure to include provisions requiring state authorities to notify the businesses that are within these newly-designated source water protection areas. Including a notification requirement will ease some of the burdens small businesses will encounter as a result of this proposal.

SIGMA recommends application of the risk-based approach utilized in the underground storage tank program to management of Class V wells.

SIGMA has received estimates from members in Massachusetts that closing an injection well has cost between $5,000 and $7,000 per drain, while closures in New York have cost between $18,000 and $24,000 per drain. These estimates exclude costs of further remediation.

ATA submitted Class V wells closure information, which includes estimated time of operation, impact above State action levels, depth to groundwater and approximate cost of closure, for 18 trucking facilities. ATA encourages EPA to examine the closure data available from EPA Regional or state enforcement actions from these and similar facilities to reduce reliance on "anecdotal" data.

ATA notes that some soil contamination was discovered during closure of the 18 wells, however, no ground water contamination was found.

NADA feels that no adequate record justification exists to support a categorical prohibition of motor vehicle waste disposal wells. EPA should propose an option that would allow motor vehicle wells to continue to operate, perhaps under a permit-by-rule, conditioned on the use of certain management practices and, where necessary, engineering controls. If necessary, new facilities could be held to different standards.

NADA encourages EPA to join with state groundwater protection programs in promoting to motor vehicle facilities the importance of keeping their waste water clean. NADA provides a list of pollution prevention strategy and BMP documents that are representatives of the many already in use by motor vehicle facilities. [NADA lists 13 documents here]

NADA feels that any proposal to prohibit motor vehicle maintenance wells across the board would ignore accepted industry pollution prevention practices, management strategies and pretreatment engineering controls, many of which were instituted in the 1990's. EPA should develop guidelines for states to use, both within and without wellhead protection areas, to enable case-by-case endangerment determinations to be made. NADA urges EPA to allow for program flexibility in order to be able to regulate motor vehicle disposal wells as necessary to prevent groundwater degradation. NADA provides a list of "...just a few documents that discuss and review case-by-case and risk-based regulatory approaches." [NADA lists 7 additional documents here]

Finally, NADA: 1) notes that EPA should not confuse Class IV wells with Class V wells,

2) encourages EPA to expand the Class V study to include motor vehicle and other industrial wells, and, 3) discourages the use of the API Closure Guidance as a justification for categorical closure of automotive wells.

The Association notes that New York State has required clean up and well closures for several years which has caused a large economic burden for small service stations and repair shops. The NY State Association of Service Stations and Repair Shops notes that recordkeeping requirements will be a problem and that in some cases it is difficult to ascertain if a well is connected to a sewer system. This Association also suggests that EPA conduct a study of the problems associated with Class V wells and threats to ground water.

The NY State Association of Service Stations and Repair Shops has found that the cost of cleaning an injection well is several thousand dollars and that a few have cost over $20,000.

Between 1:00 and 3:00 p.m. on January 15, 1998, there was a conference call between Jennifer Greenamoyer and Lee Whitehurst of EPA’s Office of Ground Water and Drinking Water and representatives of small businesses that could be subject to the new proposed rule being considered for Class V injection wells. Attachment 1 lists the small entity representatives (SERs) and other individuals who participated as well as those invited to participate in the call.

The purpose of the call was to (1) inform SERs about the rule being considered, as described in an outreach brochure distributed on December 29 (entitled Possible Changes to the Class V UIC Requirements: Information for Owners and Operators of Class V Injection Wells); and (2) discuss issues or concerns the SERs may have about the rule’s possible impact on small businesses. EPA intends to use information and recommendations obtained from the call, as well as follow-up written comments submitted by the SERs, to shape the new requirements and minimize regulatory impacts in accordance with the Small Business Regulatory Enforcement Fairness Act (SBREFA).

After defining the purpose of the call, Ms. Greenamoyer reviewed the Class V rulemaking process and schedule, particularly as it relates to SER involvement and input under SBREFA. She stated that two stakeholder meetings will be held over the next couple of weeks -- one in Washington, D.C. on January 20 and the other in Chicago on January 27 -- as announced in the Federal Register (62 FR 67035, December 23, 1997). A third meeting is in the planning stages, currently scheduled for San Francisco on February 19.

Addressing the SBREFA process, Ms. Greenamoyer said that EPA plans to accept written comments from SERs up until January 27. Comments received by then can be integrated into a document that EPA is planning to distribute during the first week February. [Note: As per EPA policy, this document will be provided only to EPA’s Office of Planning Policy and Evaluation at that time. OPPE will most likely convene the SBREFA panel shortly thereafter.] The SBREFA panel will have 60 days to prepare its report. During this time, the panel will conduct additional outreach to SERs as needed to identify and resolve remaining issues. The court-ordered deadline for EPA to publish the proposed Class V rule is in June, 1998.

One participant requested that everyone present on the conference call be provided with agendas for the upcoming stakeholder meetings. Ms Greenamoyer agreed to make these agendas available in advance of the meetings. [Note: stakeholder meeting agendas were faxed to all SERs on January 15]

Ms. Greenamoyer also said that based on her conversations with the Small Business Administration (SBA), it is clear that SERs are looking for more information about the Class V rule. Therefore, next week EPA will distribute additional information describing the history of the rulemaking, including regulatory alternatives that have been considered before and alternatives that are still being considered now. This information also will include more detailed information on the estimated economic impacts of the rule, as requested by the SBA and SERs.

Mr. Whitehurst then provided an overview of the rule as it is presently being considered. He noted that an internal draft of the rule have been prepared in a "plain English" format, as part of a pilot test of the plain English rule-writing process.

He explained that EPA is trying to set a minimum federal standard to control the disposal of known "high-risk" waste into shallow disposal wells overlying public drinking water supplies. EPA and State UIC programs have been addressing this problem using existing regulatory authorities, but most regulators believe that more specific standards that clearly define a "federal floor" are needed to support existing programs and prevent them from "backsliding."

The requirements being considered would apply only in source water protection areas (SWPAs) delineated around ground-water based drinking water supplies. Class V industrial wells in these areas would have to (1) dispose of wastewater that meets drinking water maximum contaminant levels (MCLs) at the point of injection, or (2) close. In addition, motor vehicle waste disposal wells in ground-water based SWPAs would be banned and large-capacity cesspools in such areas would be phased out. This approach would be consistent with the requirements currently being implemented by many State UIC programs.

The SERs had several questions about the link between SWPAs and the Class V rule. They requested information on where SWPAs are (or are likely to be) located, so they could better estimate the number and kinds of facilities that might be subject to the rule. Mr. Whitehurst responded that EPA cannot provide that information presently, since states are still delineating SWPAs and have until May 2003 to complete that process. Many states are likely to use wellhead protection areas that have already been defined. However, an increased emphasis on "sound science" and capturing the recharge zone of ground-water supplies within protected areas may result in some SWPAs being larger than the existing wellhead protection areas, many of which were drawn as quarter- or half-mile radii around drinking water wells.

Participants expressed a desire to find an alternative to the rule’s "all or nothing" approach, which requires all motor vehicle waste disposal wells in SWPAs to be shut down without considering site-specific factors proving it is necessary to close a particular well. One individual asked whether there is any consideration in the rule for wells that do not pose a high risk, even though they might be in a SWPA. The risk at a particular site may be low risk due to hydrogeologic factors, such as clay sediments, deep aquifers that do not intersect shallow zones, or an extended travel time from the point of injection to the drinking water aquifer. Alternatively, site-specific risk may be low due to operational factors. For example, some participants said many floor drains at automotive service stations are used only rarely, such as when water drips off of a car. Hazardous substances going down the floor drain may be extremely dilute (e.g., mostly water) or may be released in very small volumes.

One participant asked whether the UIC program had considered adopting something akin to underground storage tank (UST) program policies, which now acknowledge that certain petroleum compounds naturally remediate (through biological and chemical degradation) in soil. He contended that UST-contaminated soils used to be considered a hazard, but now they are not seen as threats. He wondered whether the Class V UIC program might take the same regulatory path. Another participant echoed this thought, and asked whether EPA has analyzed the actual risks posed by the injection activities that would be banned under this rule -- in other words, whether "endangerment" has actually been demonstrated for these wells.

The conversation then moved to the topic of remediation following closure. Mr. Whitehurst explained that the rule would not require cleanup, only that the owner/operator stop injecting into banned wells. The existing UIC regulations, however, specify that wells cannot be abandoned in a manner that endangers underground sources of drinking water. UIC Program Directors can use this authority, or other existing authorities, to require specific actions, including soils testing and soil or ground-water remediation. The rule would not change or add to these existing authorities. Participants expressed a concern that by submitting pre-closure notifications, they may get into a regulatory loop that leads to RCRA-type or other cleanup requirements. Mr. Whitehurst reiterated that those requirements would not stem directly from this rule.

Ms. Greenamoyer then directed the conversation to the following four points of particular interest for the SBREFA process and Regulatory Flexibility Analysis to be prepared in support of the rule:

3. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposal; and

4. Significant Alternatives That Would Accomplish Objectives and Minimize Impacts to Small Entities.

SERs said that it is virtually impossible to estimate this number, given the lack of knowledge of which facilities are hooked up to sewers or are located in SWPAs. A representative of the auto service station industry estimated that in upstate New York alone, there are thousands of facilities with floor drains. Another representative of the auto service industry reported that the number of Class V wells used by that industry has been decreasing since 1995, because many owners have been attaching to public systems. The representative of the National Funeral Directors Association said that approximately 20 percent of their members, or about 4,000 facilities, are estimated to use septic systems, although the number of these facilities in SWPAs is unknown.

One person representing the auto service industry questioned how the rule would apply to carwashes. Mr. Whitehurst clarified that carwashes that perform only exterior washing would be classified as "other" industrial wells, which would not be subject to the new requirements. On the other hand, wells that inject wastewater from carwashes that perform engine or undercarriage washing would be classified as industrial wells, subject to the new rule.

Another SER asked how owners/operators would be required to demonstrate that they meet MCLs. He said the cost of complying with the rule could be very high if they had to monitor their injectate. Mr. Whitehurst said the rule would not specify how owners/operators would do this, allowing them to use existing knowledge of management practices and wastestream quality if sufficient. He said this may be an area to address in guidance.

Another participant agreed with this comment, suggesting that he might prefer to see more specific language on closure added to the regulation to ensure that the "best science" is used in remediation decisions. Such language in the regulation could help in providing a clear standard and ensuring consistency.

One participant expressed concern about the effects of closing on a well’s regulatory status. He reported that voluntary closure was encouraged early in the Class V UIC program. However, the EPA Region was requiring wells to close in accordance with a permit, which invariably reclassified the wells as Class IV. This resulted in closure and remedial actions that were overkill in many cases.

Mr. Whitehurst explained that specific closure and remediation requirements were left out of the rule as it presently stands to provide flexibility. He said a 1994 version of the rule did include these requirements, but the costs of this approach were very high (more than $1 billion annually).

Mr. Whitehurst reminded everyone that the proposal would not require industrial wells in SWPAs to close if they can meet MCLs at the point of injection. In this case, the callers suggested that the rule allow industrial wells to exceed MCLs if they can demonstrate they do not endanger USDWs. Some people thought this leads to three options for industrial wells: meet MCLs, close, or get a permit if non-endangerment can be demonstrated. Others thought that it may not be necessary to get a permit if non-endangerment is demonstrated.

Several people liked the idea of a permit tied to performance-based best management practices (BMPs), specific operating criteria, etc. Under this scenario, a motor vehicle waste disposal well could continue to operate or an industrial well could continue to exceed MCLs, as long as it met the conditions of a permit. One SER suggested that EPA offer this as a temporary option, such as when a wastewater treatment system is being upgraded or when there are plans to hook up to the sewer system. Another SER recommended that permits be offered as a permanent solution if risk is found to be low based on geology or other factors. He stated that well closure is not going to be an acceptable option for many of his members, and that treating to MCLs is not practical or acceptable.

One participant questioned what kinds of conditions could go into such a permit. People responded that conditions could address management practices and hydrogeologic factors. There also was some suggestion that alternative conditions on injectate quality could be developed, something higher than MCLs but still meeting some goal of environmental and health protection. Some people thought it might be possible to define conditions of safe operation categorically, and to put them in the rule. If owners/operators decide they meet these conditions, they could be permitted by rule.

Mr. Whitehurst reiterated that the new requirements would only apply in SWPAs. If owners/operators wanted to continue injecting wastewater above the MCLs in these areas, the focus of any non-endangerment determination or permit conditions would have to be on hydrogeologic factors. Something way beyond simple BMPs would be needed in order to show that the local hydrogeology actually protects source waters. One participant responded that this may not be true, depending on how SWPAs are defined. If they are defined very broadly, SWPAs could include areas where shallow injection poses a small risk to underground sources of drinking water. Most people agreed that they need more information on how SWPAs are going to be defined and how big they are likely to be.

Mr. Whitehurst also asked about the need for the American Petroleum Institute guidance entitled "Handling Water Discharges from Automotive Service Facilities Located at Petroleum Marketing Operations." This guidance, which is basically directed toward getting owners/operators to shut down motor vehicle waste disposal wells whether they are in SWPAs or not, seems to support the position EPA is considering for the proposed rule.

The SER from the Petroleum Marketers Association of America responded that drainage into Class V wells, particularly in older shops, has been needed to keep standing water off the floor and minimize "slip and fall" problems. Most fluids from repair work today are collected using BMPs; "no one" is hosing down spilled gasoline or antifreeze into their floor drains, according to the SER. Instead, the water that makes into these drains usually drips from wet cars or tires. This water is generally low-volume and more like stormwater than motor vehicle fluids. If this water cannot be released into the floor drain, it has to go somewhere else. Requiring a repair shop floor to be broken up, the drain to be removed, and an underground holding tank to be installed would require extensive and costly remodeling.

One participant asked what kinds of alternatives there might be to tearing up the concrete floor and pulling up the drain. Mr. Whitehurst responded that Massachusetts has solved the problem of one significant water source in service stations -- snow melt -- by putting in drains that divert the water away from the drain and into separate storage tanks. Another participant said he is aware that such alternatives are possible, but questioned whether they are always necessary, even in SWPAs.

Participants familiar with the technology stated that requiring oil-water separators for pre-treatment, in addition to BMPs, might be a reasonable alternative. They reported that there are many existing oil-water pretreatment technologies, and that many service stations already have them.

Everyone generally agreed that BMPs are an essential component of any alternative. Mr. Whitehurst mentioned that the notice of proposed rulemaking on Class V wells published in 1995 (60 FR 44652, August 28, 1995) proposed to establish BMPs as guidance. Some of the participants suggested that a better approach may be to establish BMPs in the regulations, which would make them binding. In order to maintain flexibility, different sets of BMPs could be developed for different categories of conditions (e.g., different operations and hydrogeologic characteristics).

Others suggested that EPA provide more specific instructions on closure and remediation. More specific language in the rule would provide a clear standard to shoot for, creating more certainty in cleanup decisions and helping to assure the marketability of property. Some participants asked if EPA would be willing to establish cleanup requirements on an industry-by-industry or state-by-state basis. One participant wondered whether EPA could specify cleanup standard for different categories of wells or conditions. By meeting stated cleanup requirements, the owner/operator can get final closure approval from a regulatory agency.

The call ended at this point, with the EPA representatives reminding SERs of the stakeholder meetings taking place over the next few weeks. In addition, EPA reminded the SERs that they will have the opportunity to provide input and comments both during the SBREFA process and during the rule proposal process.

Revisions to the Underground Injection Control Regulations for Class V Injection Wells

Between 10:30 and 12:30 p.m. on March 5, 1998, there was a meeting of the SBREFA Small Business Advocacy Review Panel convened for the Revisions to the Underground Injection Control Regulations for Class V Injection Wells and the small entity representatives for the proposed rule being considered for Class V injection wells. A list of the small entity representatives and other individuals who participated as well as those invited to participate in the meeting appears at the end of this summary.

The purpose of the meeting was to discuss issues or concerns the SERs may have about the rule’s possible impact on small entities. The Panel intends to use information and recommendations obtained from the meeting, as well as follow-up written comments submitted by the SERs, to shape the new requirements and minimize regulatory impacts in accordance with the Small Business Regulatory Enforcement Fairness Act .

Ann Marie Carrington of Collier, Shannon, Rill and Scott representing Society of Independent Gasoline Marketers of America and American Car Rental Association

Ms. Carrington stated that the main concerns of SIGMA and ACRA center around requiring Class V injectates to meet MCLs and the linkage of the UIC program with the SWAP.

SIGMA and ACRA are concerned about the appropriateness of requiring injectate to meet MCLs. Ms. Carrington noted that measuring injectate concentrations at the point of injection does not allow for the effects of natural attenuation and dispersion. She suggested that the concentration of injectate could be measured at the point it enters the drinking water supply.

Ms. Carrington expressed concern over tying the Class V regulation with the Source Water Program (SWAP). She stated that this approach does not allow for a clear assessment of who will be regulated. SIGMA and ACRA are concerned that there is an assumption that SWPAs will be similar to WHPAs, and they would like would like assurances from States.

ATA encouraged EPA to re-assess the number of facilities affected because it appears that the estimate of impact has not included the trucking industry and ATA knows of a number of small trucking industries that use Class V wells. ATA felt that the anecdotal information presented thus far does not show that Class V waste disposal poses a significant health concern. ATA would like to see existing programs and policies continued without further regulation.

ATA expressed concern with how the regulation will be implemented, specifically, it seems that a facility will have to determine on its own if it has a Class V well and then it will have 90 days to comply. It appears that owners/operators of Class V wells will have little support or time to come into compliance considering that a facility may have to stop an industrial process and find alternative means of disposal. For example, a facility may be working towards closing its Class V wells yet cannot get sewer to their area, if they had to close their well on short notice, there may be a substantial loss of profit if a facility cannot get another discharge option. ATA encouraged EPA to examine its timeframe to close wells and make an assessment of true costs.

In addition, ATA notes that over 3,000 wells are expected to be required to close and suggested direct notification of these facilities.

ATA encouraged EPA to examine its classification of stormwater wells. For trucking facilities it is not always possible to separate stormwater drains from potential sources of contamination by physical barriers. ATA noted that this assessment depends on what one considers a potential source of contamination. ATA is concerned because of the substantial number of facilities this might affect.

ATA further encouraged EPA to invest in an outreach program to notify the public of these wells and their potential problems.

NFDA expressed concerned about how this regulation relates to funeral home discharge. Most funeral homes are very small and 25% rely on septic systems for their waste disposal. A past study of funeral home waste has shown that they are low hazard discharges. This study has led NFDA to believe that funeral homes pose a very low risk to drinking water supplies. NFDA will be submitting written evidence to show that funeral home waste constituents pose a low risk to underground sources of drinking water.

Mr. Greenhaus, noted that NADA submitted written comments previously. NADA noted that the basic structure of the rule does not focus on risk or knowledge of transport and attenuation. NADA felt that rulemaking should focus on real endangerment and not focus on MCLs based solely on the type of facility. NADA noted that allowing for this level of scrutiny is not easy but that other parts of the agency have built in flexibility. Flexibility is important for States and small entities and the current draft of the proposal does not appear to be flexible.

The data that has been made available and that NADA is aware of (NJ study, Task Force Report, etc.) are putting the cart before the horse. Questions regarding injectate risk should be answered before the rulemaking according to the real world as of today. The industry is much cleaner now than in recent history and therefore, injectate is much cleaner now.

NADA noted that the API guidance is being continually used to substantiate this rulemaking, however, NADA feels that the guidance is the product of a consent decree in which EPA cut a deal with large oil companies. Therefore, the API guidance is one approach to protect underground sources of drinking water but not a one size fits all.

Mr. Greenhaus stated that NADA would encourage any efforts at the Federal level to establish clear cut closure requirements, including clean-up. NADA felt that there is a need for Federal consistency on Class V well closure.

NADA offered the following suggestions for regulatory alternatives: 1) general permitting, and 2) stringent requirements for new facilities. Finally, NADA encouraged EPA to have less categorical requirements as part of this regulation.

A checkmark (ü) in the left column denotes that the individual participated in the conference call.

**LIST OF SER INVITEES AND PARTICIPANTS**
Participated in Meeting	Name	Affiliation
	Susan Asmus	National Association of Home Builders
	Anthony Bodell	Independent Electrical Contractors
	Ralph Bombardiere	Gasoline and Automotive Service Dealers Association New York Association Of Service Stations
	Matthew Brown	Automotive Service Association
	Angie Conway	Air Conditioning Contractors of America
	Ben Cooper	Printing Industries of America
	Christine Corcoran	National Grocers Association
ü	Doug Greenhaus	National Automobile Dealers Association
ü	Steve Hensley	American Trucking Association
	Tom Halicki	National Association of Towns and Townships
	John J. Huber	Petroleum Marketers Association of America
ü	Ann-Marie Carrington, for Jeffrey Leiter	American Rental Car Association
ü	Ann-Marie Carrington, for Jeffrey Longsworth	Society of Independent Gasoline Marketers of America
	Tracy Alaimo Mattson	Institute of Scrap Recycling Industries
	Nora Neilis	The Neighborhood Cleaners Association
	Diane Shea	National Association of Counties
	Frank Tabish	Tabish Brothers Distribution
ü	Jill Zucker John Fitch	National Funeral Directors Association

1. According to 40 CFR 146.3 an underground source of drinking water means an aquifer or its portion: (1)(i) Which supplies any public water system; or (ii) Which contains a sufficient quantity of ground water to supply a public water system; and (A) Currently supplies drinking water for human consumption; or (B) Contains fewer than 10,000 mg/l total dissolved solids; and (2) Which is not an exempted aquifer.

2. As defined in the drinking water regulations, a "community water system" is a public water system that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. A "non-transient non-community water system" is a public water system that is not a community water system and that regularly serves at least 25 of the same people over six months a year. Non-transient non-community water systems may include systems that provide water to day care centers, government/military installations, manufacturers, hospitals or nursing homes, office buildings, schools, and other facilities.