Aquifer Exemptions. Ground Water Protection Council Conference 2015 UIC Annual Conference Austin, TX February 9-11

Transcription

1 Aquifer Exemptions Ground Water Protection Council Conference 2015 UIC Annual Conference Austin, TX February

2 Outline Key Principles of the Safe Drinking Water Act (SDWA) and the Underground Injection Control (UIC) Program Underground Sources of Drinking Water (USDW) Well Classification and Permitting Process UIC Program Primacy Overview on Aquifer Exemptions Background on Aquifer Exemptions Procedure for exemptions Roles and Responsibilities EPA Review of AE Requests Consistency and predictability in the AE review process o Policy Memorandum and Checklist Basis for exemption and EPA s assessment 2

3 The Safe Drinking Water Act Underground Sources of Drinking Water SDWA is designed to prevent endangerment of underground drinking water sources (SDWA 1421(b)) Definition (40 CFR 144.3) Underground source of drinking water (USDW) means an aquifer or its portion: (a)(1) Which supplies any public water system; or (2) Which contains a sufficient quantity of ground water to supply a public water system; and (i) Currently supplies drinking water for human consumption; or (ii) Contains fewer than 10,000 mg/l total dissolved solids; and (b) Which is not an exempted aquifer. All USDWs are protected by the UIC program 3

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5 Underground Injection Control Classes I III & VI Generally must have permit Specific requirements for siting, construction, operation Class V May be rule authorized Cannot endanger Aquifer Exemptions For aquifers of portion thereof with TDS 10,000 mg/l Criteria at 40 CFR Separate from UIC permitting requirements 5

6 UIC Program Primacy 33 States and Tribes have primary enforcement authority (primacy) for the UIC program; EPA and States share program implementation in 7 States; EPA directly implements the entire UIC Program in 10 states 6

7 Overview on Aquifer Exemptions 7

8 Background on AEs AEs allow injection into an aquifer which would otherwise be prohibited by the UIC program. AEs are primarily used to allow mineral, hydrocarbon, or geothermal energy production. AEs are subject to EPA review and approval- EPA is the final decision-maker in whether to grant an AE request, even if a state has primacy for the UIC program. In approving an AE, EPA makes a determination that the proposed exemption area is not a current source of drinking water and will not serve in the future as a source of drinking water. The scrutiny on EPA s rationale and consistency in decision making is rising, especially if there are drinking water wells nearby. 8

9 Aquifer Exemptions Inventory Class Aquifer Exemptions Class I 140 Class II 4,614 II D: 1,251 II R: 3,037 II Other: 326 Class III 120 Class V 2 Unknown 61 Total 4,937 9

10 Roles & Responsibilities Owners/Operators: Owners/Operators typically submit a request for an AE to the primacy state or tribe, or EPA where the Agency directly implements the program. States/Tribes: Primacy states or tribes review and approve or disapprove the request. The state then submits the approved AE request to the EPA Regional office for review and approval. EPA Regions: The EPA Region evaluates the AE and if it is treated as a non-substantial program revision, responds by letter to the state, or to the applicant where EPA is the Direct Implementation authority. The EPA Region prepares a Statement of Basis that explains the factual, technical, and legal bases for the approval/disapproval determination. EPA HQ: EPA HQ will offer support to EPA Regions for substantial or complex requests and to promote national consistency. Only the EPA Administrator may approve substantial program revisions. 10

11 Federal Regulations Two sections of the federal UIC regulations address the identification of AEs by states and evaluation and review of AE requests by EPA: (1) 40 CFR allows the UIC Program Director to identify aquifers or portions of aquifers that are exempt from the definition of a USDW and prescribes procedural rules for EPA review and approval. This section also describes how such exempted aquifers/portions would be delineated. (2) 40 CFR provides the criteria that must be met for EPA to approve an aquifer exemption. 11

12 Class VI wells must meet the criteria under paragraph (d) of this section. Substantive and procedural rules for AE for Class VI wells are different than Class I-V and are not addressed in this presentation. 12 Criteria for Granting Aquifer Exemptions Criteria for exemptions in 40 CFR (Classes I-V) An aquifer or a portion thereof which meets the criteria for an underground source of drinking water in may be determined under of this chapter to be an exempted aquifer for Class I-V wells if it meets the criteria in paragraphs (a) through (c) of this section. (a) It does not currently serve as a source of drinking water; and (b) It cannot now and will not in the future serve as a source of drinking water because: (1) It is mineral, hydrocarbon or geothermal energy producing, or can be demonstrated by a permit applicant as part of a permit application for a Class II or III operation to contain minerals or hydrocarbons that considering their quantity and location are expected to be commercially producible. (2) It is situated at a depth or location which makes recovery of water for drinking water purposes economically or technologically impractical; (3) It is so contaminated that it would be economically or technologically impractical to render that water fit for human consumption; or (4) It is located over a Class III well mining area subject to subsidence or catastrophic collapse; or (c) The total dissolved solids content of the ground water is more than 3,000 and less than 10,000 mg/l and it is not reasonably expected to supply a public water system

13 Aquifer Exemptions Delineation - Examples The aquifer exemption boundary should based on where the injected fluids and any contaminants released from the aquifer as a result of injection are expected to flow. Lateral Limits: Lateral extent of exemption is usually a distance radially from the well bore. Vertical Limits: Vertical extent typically coincides with the injection zone 13

14 Aquifer Exemptions Delineation Examples (cont ) Area Aquifer Exemption 14

15 Aquifer Exemption Requests 15

16 EPA s Review Process The EPA Region will evaluate the water well inventory submitted with the AE Depending on the specific facts, e.g., potential presence of public or private water wells in proximity (minimum of 1/4 mile) of the proposed exempted area, the Region may confirm nearby water well inventory May verify existing wells location, completion, and purpose (This could include site visits) May conduct a review of a state s response to comments received on the exemption request May interview local stakeholders on their wells purpose: current or inactive drinking water or another use The Region may contact water resource planners to confirm completeness of the well inventory and gain insight and knowledge of local groundwater use. The Region will verify that the state provided public notice and opportunity for public hearing on the aquifer exemption request (144.7 (b)) [Usually done through the State public participation process for the permit.] 16

17 EPA s Review Process (Cont.) If there are concerns during the review process, Regions may engage the Primacy Program by phone or in writing to discuss EPA may write to the state to communicate potential concerns with the AE (e.g., data gaps) If questions require the applicant s (operator/permit holder) direct involvement, EPA may seek the state s assistance to facilitate the applicant s communication with the Region EPA may seek public comment to inform its approval/disapproval decision even if the Agency treats it as a non-substantial program revision. Factors EPA might consider in determining whether to seek public comment: whether the public had an opportunity during the state s public participation process to comment on the data and analyses relevant to EPA s decision and/or the complexity of factual/technical issues For substantial program revisions, EPA must issue public notice of the proposed AE in the Federal Register and provide for the opportunity to submit written comments and request a public hearing 17

18 EPA s Review Process (Cont.) Upon receipt of an exemption request, EPA will begin compiling the records to support its decision. EPA will document its evaluation and analysis of the information EPA considered in a Statement of Basis. If the aquifer exemption is based on meeting the criteria at 146.4(a) and (b), the AE is not final until EPA approves it as a program revision under 40 CFR as either a substantial or non-substantial program revision: o If the exemption is a non-substantial program revision, the Region may approve or deny the exemption request by letter to the Executive Director of the state agency and copy HQ on the decision, or o If the exemption is a substantial program revision, submit the formal request to HQ and initiate Federal Register Notice publication process (per 40 CFR ) 18

19 Aquifer Exemption Policy Memorandum and Checklist 19

20 Aquifer Exemptions EPA Guidance 34 EPA developed Guidance 34 (January 9, 1984) to address UIC program revisions, either in response to primacy applications or aquifer exemptions that require a program revision. This guidance provides information specific to Aquifer Exemptions. Guidance 34: Provides recommendations for applying the rule criteria at by discussing specific considerations associated with the criteria. Provides guidelines for reviewing AE requests (Attachment 3 of Guidance 34). Clarifies the concept of substantial and non-substantial program revision and addresses review and approval of non-substantial program revisions which are the responsibility of the Regional Administrator. Discusses evaluation criteria to demonstrate that aquifer is not a current source of drinking water, including survey of the proposed exempted area to identify any water supply wells which tap the proposed exempted aquifer. Clarifies that the area to survey should cover the proposed exempted area and a buffer zone which should extend a minimum of ¼ of a mile from the boundary of the exempted area. 20

21 Need for Consistency in AE review and approval Over the last several years, EPA identified the need to provide national consistency and additional clarity on the AE review and determination process o o o o o o Increased public attention around ground water use and protection efforts and water scarcity and drought is impacting many areas of the country A few recent proposed exemptions are in close vicinity to drinking water wells A law suit against EPA on its recent approval of an aquifer exemption request A recent discovery of injection activities taking place in aquifers that were not exempt A States claim of EPA late engagement in the process, which can significantly upset the state planning process An industry request for EPA to communicate early on in the process EPA HQ engaged its regional staff, Water Division Directors and a number of key states which participated in a work group organized by the Ground Water Protection Council (GWPC), to help bring greater clarity to the needs and expectations of EPA and states in approving AE requests. The key AE process improvements discussed with the states informed the policy memorandum. Informed by discussions with the states and its regions, EPA recently issued a memorandum to its Regional Water Division Directors, along with a checklist for the aquifer exemption review process, to help bring greater clarity to the needs and expectations of EPA and states in approving AE requests. 21

22 Aquifer Exemption Policy Memorandum (2014) Key points Provides consistency and predictability in the AE review process. Introduces a checklist recommended for use when evaluating AE requests that can be shared with state programs. Highlights factors that are likely to make AE requests more complex (including in particular, nearby drinking water wells). Suggests early consultation between EPA regions and states to discuss key AE issues likely to make the request complex. Clearly articulates EPA s view that an area proposed for exemption currently serves as source of drinking water if wells currently in existence draw water from the exempted area at present or in the future. This implicitly recognizes ground water movement. Suggests course for elevating areas of disagreement between state and EPA staff if needed. 22

23 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C MEMORANDUM SUBJECT: FROM: viu L? 2014 OFFICE OF WATER Enhancing Coordination and Communication with States on Review and Approval of Aquifer Exemption Requests Under SDWA Peter Grevatt, Director 0 11 Office of Ground Water and Drinking Water (O G W V TO: Water Division Directors Regions I - X I. Introduction More than four thousand aquifer exemptions have been approved over the history of the UIC program, and the vast majority of these have been straightforward actions that have been completed in a timely manner. There are some aquifer exemption decisions, however, where review of the aquifer exemption request has been considerably more complex, due to specific conditions associated with the proposed exemption. In some cases, these issues have led to protracted discussions between EPA and the states, without a clear path for resolution. The purpose of this memorandum is to promote a consistent and pred ictable process for the review of Aquifer Exemption requests under the Safe Drinking Water Act (SDWA). 1 EPA has both a direct implementation role and a state partnership role in reviewing and approving aquifer exemption requests. Over the course of the past year, EPA has participated in discussions with a number of states through a Ground Water Protection Council (GWPC) workgroup to review issues associated with more complex aquifer exemption requests and to make recommendations on steps to improve the review process. Based on these discussions, EPA and the participating states agreed on a number of steps to enhance coordination and communication between EPA Regions and state UJC programs regarding proposed aquifer exemptions, as discussed below. II. Roles and Responsibilities EPA is responsible for the final review and approval of all aquifer exemption requests, based on the regulatory criteria in 40 CFR [attached]. UIC permit applicants that need an aquifer exemption in order to conduct injection activities typically delineate the proposed exempted area and submit the delineation to the primacy agency, along with information to support a determination under 40 CFR that the proposed exemption is appropriate. States or tribes with primacy review the application and, if the information submitted supports a determination that an aquifer exemption is warranted, make a designation, provide for public participation, and submit a request for approval of the exemption to the 1 The substantive and procedural requirements for aquifer exemptions in connection with Class VI wells are not addressed in this memo. Page 1 of 4 Internet Address (URL) Recycled/Recyclable Printed with Vegetable O il Based Inks on 100% Postconsumer, Process Chlorine Free Recycled Paper

24 Aquifer Exemptions The Checklist Purpose Promotes national consistency, where appropriate, on the review process. Facilitates collection of appropriate and adequate information for review of AE requests and documentation of AE decisions. Is not a one size fit all document as some information described in it may not apply to all AE requests. Facilitates discussions between EPA regions and applicants (DI) or states and helps manage expectations. Helps with EPA s documentation of its review and decision on the request, to inform a statement of basis to be included in the Agency s record of final action. Provides a mechanism of consistent data collection for a robust, standardized recordkeeping and data mapping. 24

25 Aquifer Exemption Checklist Reviewed by: _ Date A. Regulatory Background and Purpose An aquifer or a portion thereof which meets the criteria for an "underground source of drinkingwater" in may be determinedto be an "exempted aquifer". The aquifer exemption criteria at must be met as follows: Class 1-V wells must meet criteria 146.4(a) and 146.4(b)(l); or 146.4(a) and 146.4(b)(2); or 146.4(a) and 146.4(b)(3); or 146.4(a) and 146.4(b)(4); or 146.4(a) and 146.4(c). Class VI wells must meet the criteria 146.4(d) 1. Regardless of the AE request or the type of injection activity, in all cases, first and foremost a demonstration that the aquifer or portion thereof does not currently serve as a source of drinking wate r is the required first step in the process. EPA must evaluate each AE request to ensure the criteria are met prior to approval. EPA should also document its rationale for approvingor d isapprovingeach AE request in its statement of basis and, in case of exemptions that are substantial program revisions, EPA must provide public notice and an opportunity for the public to comment and request a public hearing. The purpose of this checklist is to ensure that appropriate and adequate information is collected to facilitate review of AErequests, and documentation of AE decisions. Some information described here may not apply to all AE requests. B. General Information AE request received by EPA on Is the aquifer exemption Substantial Non-Substantia.l _ Describe basis for substantial/non-substantial determination Is the aquifer exemptioncomplex? (Existence of drinking water wells, populated area...) Did the state or tribe provide public noticeand opportunity for public hearing on the aquifer exemption request (144.7 (b)) Y/N Were there any public comments? Y/NIf yes, identify where they may belocated. _ Date(s) of notice(s) published Public meeting(s) held Hearing held _, any notable findings or pending litigat ion Describe the notice and comment process and the final decision. Describe the basis for the decision to exempt the aquifer or the basis for the decision to w ithhold or deny approval of the exemptions request Any anticipated issues associated with EPA approval or disapproval of the AErequest Y/N Any meetings between EPA/States/Tribes/Operator to discussissues Y/N list Is the request submitted by a primacy state or tribe? Y/N If yes name the State/Tribe/Agency Contact": AEidentified by the Primacy State or tribe and submitted for EPA review and final determination on Name of the Owner/operator_ Well/Project Name.:.. Well Class Purpose of injection: (mineral mining/oil and gas/other) _ Where isthe proposed aquifer exemption located? Township, Section, Range, Quarter Section or other method used to identify the area Latitude and longitude information County City _ State Add informat ion about distance to nearest Town, County Name of aquifer or portion of aquifer to be exempted Additional Class VI only requirements in 40 CFR 144.7(d)( I) and (2) apply. This checklist does not address those requirements.

26 Aquifer Exemption Standard for EPA Assessment 26

27 EPA Assessment Current Source For all AEs, EPA needs a record-based technical or factual analysis to support the conclusion that the exempted portion of the aquifer does not currently serve as a source of drinking water per 40 CFR 146.4(a) EPA first needs to determine whether any drinking water well (public or private) either exists within the proposed exempted area, or is located beyond the exemption boundary but may draw water either currently, or in the future, from the proposed exempted portion of the aquifer. If there are drinking water wells within or in close proximity to the proposed exempted area, further analysis would be needed. o o o A demonstration may be necessary to show that an existing well will not draw water from the proposed exempted aquifer. One way to do this is through a capture zone analysis based on the capture zone of the drinking water well i.e., the volume of the aquifer(s) or portion(s) thereof from within which groundwater is expected to be captured by that well during the life of the well. If any drinking water well or spring is (or will over the lifetime of the well) capturing or producing drinking water from within the proposed exemption area, then the aquifer currently serves as a source of drinking water. 27

28 EPA Assessment - Future Use Factors to consider when demonstrating that an aquifer cannot now and will not in the future serve as a source of drinking water per 40 CFR 146.4(b), or that an aquifer is not reasonably expected to supply a public water system per 40 CFR 146.4(c)? Mineral, hydrocarbon, or geothermal producing Likelihood that the water in the exempted area would need to be used as a drinking water source in the future. Remoteness / Low Population. Availability of alternative water supplies to satisfy future drinking water needs Population projections and growth Future demand in the area Alternative water supply in the area Available treatment or drilling technologies. Cost of obtaining drinking water from deeper aquifers. 28

29 Next Steps Continue to communicate early on in the process on AE requests to identify potential issues and resolve them expeditiously. Identify additional process improvement opportunities and work with stakeholders to provide additional clarity Define parameters that are used to inform calculations when a capture zone analysis is needed Provide additional considerations to inform the determination of whether an aquifer could serve as a future source of drinking water 29

30 Questions? 30