Ms. Carol M. Browner
Administrator
United States Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Dear Administrator Browner:
Enclosed for your consideration is the Report of the Small Business
Advocacy Review Panel convened for EPA's proposed rulemaking on
the Underground Injection Control (UIC) regulations for Class
V injection wells. These are generally shallow wells or other
devices used to inject fluids either directly into an underground
source of drinking water (USDW), or into the subsurface that overlies
a USDW. Class V wells are subject to the UIC regulations promulgated
under the authority of Part C of the Safe Drinking Water Act.
This rulemaking is a reproposal, in response to substantial public
comments, of a 1995 notice of proposed rulemaking (60 FR 44652,
August 28, 1995). This proposal addresses potential high risk
Class V shallow waste disposal wells located in Source Water Protection
Areas (SWPAs).
On February 17, 1998, EPA's Small Business Advocacy Chairperson
(Thomas E. Kelly) convened this Panel under section 609(b) of
the Regulatory Flexibility Act as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA). 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.
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
and from public comment on the proposed rule. 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 Safe Drinking Water Act.
Summary of Small Entity Outreach
The rule being considered would potentially affect owners and
operators of three categories of Class V injection wells in SWPAs
delineated for community water systems and non-transient non-community
water systems that use ground water as a source. The three categories
of Class V wells subject to the current draft of the proposed
rule are: (1) motor vehicle waste disposal wells; (2) industrial
wells; and (3) large-capacity cesspools.
EPA has sought and obtained input from states, local government
entities, and industries throughout the development of the Class
V UIC regulations. Rule development activities prior to the 1995
proposal included regular coordination with State and EPA Regional
staff who conducted outreach to the regulated community 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 owners and operators of auto dealers and service
stations. At the same time, EPA also convened "light"
industry focus groups that included representatives from the automotive
service, petroleum marketing, funeral, photofinishing, and metal
finishing industries, among others.
The 1995 proposal provided an additional opportunity for input
by small entities. Since that time, EPA's Office of Ground
Water and Drinking Water (OGWDW) 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 18 small entity representatives (SERs) that
were most likely to be affected by the proposed rule. Beginning
in December, 1997, EPA prepared and distributed outreach materials
including a draft Initial Regulatory Flexibility Analysis to
the SERs. The 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. 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. Summaries
of all comments received by both OGWDW and the Panel are provided
in the Panel report. The complete written comments of the SERs
are also attached to the report.
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.
Panel Findings and Discussion
Under the RFA, the Panel is to consider four regulatory flexibility
issues related to the potential impact of the rule on small entities:
(1) the type and number of small entities to which the rule will
apply; (2) record keeping, reporting and other compliance
requirements applicable to small entities; (3) the rule's
interaction with other Federal rules; and (4) regulatory alternatives
that would minimize the impact on small entities consistent with
the stated objectives of the statute authorizing the rule. The
Panel's findings and discussion with respect to each of these
issues are summarized below. In addition, the Panel discussed
several issues related to the general approach currently being
considered by EPA for the proposed rule.
Major Topics of Panel Discussion. The Panel discussed
statements by a number of SERs suggesting 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. EPA responded
that the proposed approach would have addressed all Class V wells,
regardless of the level of risk they pose to USDWs, with one approach,
and thus failed to adequately address high risk wells that threaten
public drinking water supplies. EPA also believes that the 1995
proposal did not provide for consistent public health protection
nationwide because it did not establish a clear baseline program
for States to follow and therefore could allow inadequate controls
in those situations where there is inadequate information and/or
inadequate resources to address Class V wells. Other Panel members
believed that EPA has little new information to suggest that its
earlier proposed approach is inadequate, and 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.
The Panel did not reach closure on this issue.
A number of commenters also questioned whether EPA has adequate
data to support its blanket characterization of all Class V motor
vehicle and industrial wells in SWPAs as "high risk."
Some of these commenters indicated that automotive service facilities,
in particular, have adopted management practices over the past
decade, such as recycling of used oil and antifreeze and spill
prevention and control programs, that have significantly reduced
both the volume and the toxicity of their injectate. 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 responded that
its 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,
and has been documented in its 1987 Report to Congress and numerous
other reports and studies, including contamination studies performed
by State regulators, sampling data obtained from prior Class V
well closures, and various outreach documents published by States.
EPA also noted that its 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. The Panel also did not reach closure on this issue.
Some members of the Panel also questioned whether it was necessary
to require all industrial wells in SWPAs to meet MCLs at the point
of injection and suggested that EPA consider the possibility of
allowing the injectate to meet some higher multiple of the MCL
for certain contaminants under certain conditions, given the fact
that some contaminants (e.g., metals) 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. These Panel members suggested that EPA try to identify
conditions that would allow injection of such contaminants above
the MCL without endangering drinking water sources. EPA responded
that its proposed approach is consistent with its long-standing
interpretation of the statutory requirements to assure the protection
of USDWs, and with the Legislative History, which states that
Congress intended to protect USDWs from present or potential threats
to human health, which may include increases in contamination
in amounts that by themselves would not cause maximum allowable
levels to be exceeded. Furthermore, EPA believes that it would
not be a viable option for most small entities to collect the
site-specific hydrologic, geologic, and soil information necessary
to determine if waste above an MCL could be injected without endangering
the underlying USDW. OMB and SBA recommend that EPA solicit comment
on the appropriateness of allowing injectate to exceed MCLs under
certain conditions, and on specific contaminants, conditions,
and allowable levels for which this approach would be appropriate.
EPA does not support this recommendation because it currently
believes that allowing these high risk wells to inject waste that
exceeds MCLs in areas close to drinking water supplies does not
meet the statutory requirement to protect public health by not
endangering USDWs.
Types and Number of Potentially Affected Small Entities.
As indicated above, the types of small entities that may be subject
to the rule include owners and operators of three categories of
Class V injection wells in SWPAs delineated for community water
systems and non-transient non-community water systems that use
ground water as a source. The three categories of Class V wells
subject to the current draft of the proposed rule are: (1) motor
vehicle waste disposal wells; (2) industrial wells; and (3) large-capacity
cesspools.
EPA estimates that approximately 4,100 facilities would be subject to these new requirements, of which roughly 4,000 are expected to be small entities. This includes approximately 3,000 small business that operate motor vehicle waste disposal wells, 1,000 small businesses that operate Class V industrial wells, and 30 large-capacity cesspools . Some Panel members were concerned that EPA's methodology for estimating the number of wells in SWPAs may have resulted in an underestimate of the number of affected small entities, because of its assumptions that affected classes of wells are evenly distributed throughout a state. The Panel recommends that EPA request comment on its methodology in the preamble to the proposed rule, and revise it to address the concern raised if possible.
The Panel also recommends that EPA use the proposed rule and preamble
to clarify the definitions of three types of Class V injection
wells to further assist owners and operators in determining
if their wells would be subject to the regulation. First, the
Panel recommends that EPA clarify that the new proposed requirements
would not apply to Class V drainage wells intended for storm water
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.
Second, the Panel recommends that EPA clarify that only wells
at those car washes that are specifically set up to perform undercarriage
or engine washing would be considered Industrial Class V wells
under the proposed rule. Third, the Panel recommends that EPA
clarify 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.
The Panel also received comments and data from one SER suggesting
that septic systems at funeral homes do not pose a threat to USDWs
and recommending that they be classified as "other industrial
wells" not subject to this rule. EPA will request comment
in the preamble on this recommendation.
Several commenters also 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 Source Water Assessment by the final statutory deadline of May 2003. While EPA believes this approach is appropriate, it will also request comment on it in the preamble to the proposed rule.
Reporting, Record Keeping, and Other Compliance Requirements.
The Panel received comments from five SERs 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 SWPA. 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
SWPA. 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 SWPAs
of their coverage under this rule .
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.
Interaction with Other Relevant Federal Rules. The
Panel received comments from SERs concerning the relationship
of the draft proposal with other federal rules. While 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, EPA believes that the proposed Class V rule does
not duplicate, overlap, or conflict with UST or RCRA requirements.
However, EPA acknowledges that compliance with the proposed rule
may trigger remediation and waste management requirements under
other federal, state or local law.
Regulatory Alternatives. The Panel discussed 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 SWPAs
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:
1) Require owners and operators of Class V motor vehicle wells
in SWPAs to meet MCLs at the point of injection. This option,
would require owners and operators of Class V automotive waste
disposal wells to monitor their injectate and sludge and utilize
BMPs and/or treatment, as appropriate, to meet MCLs.
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.
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 recommend 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 waste that exceeds MCLs in areas close to 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.
In addition to the above package of regulatory alternatives, the
Panel believes EPA should carefully consider all comments received
during this outreach process on these and other issues of concern
to small entities. A full discussion of comments received and
Panel recommendations are included in the final report.
Sincerely,
Thomas E. Kelly, Chair
Small Business Advocacy
Environmental Protection Agency
Don Arbuckle, Acting Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Jere W. Glover
Chief Counsel for Advocacy
U.S. Small Business Administration
Cynthia C. Dougherty, Director
Office of Ground Water and Drinking Water
Office of WaterEnclosure
U.S. Environmental Protection Agency
* Last Modified: 6/14/01