KRC Comments On EPA Proposal to Delegate Authority For Oil and Gas-Related Injection Well Regulation to Kentucky Posted: December 9, 2016
November 28, 2016
Ms. Nancy H. Marsh
Safe Drinking Water Branch
U.S. Environmental Protection Agency Region IV
61 Forsyth Street, SW.
Atlanta, Georgia 30303
Re: Docket ID No. EPA–HQ–OW–2015–0372
Commonwealth of Kentucky Underground Injection Control (UIC) Class II Program Primacy Approval
Dear Ms. Marsh:
These comments are submitted on behalf of the Board of Directors and membership of the Kentucky Resources Council, Inc. (“KRC” or “Council”). The Council is a nonprofit, membership-based organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the Commonwealth, and to advancing environmental health and environmental justice across the Commonwealth.
The Council has reviewed the Application for Primary Enforcement Responsibility for Class II Injection Wells Under Section 1425, Safe Drinking Water Act submitted to EPA in August, 2012, and has reviewed the Kentucky statutes and regulations applicable to a delegated Class II UIC program in the Commonwealth, and offers these comments.
KRC prefaces the comments that follow with an acknowledgment that the staff and management of the Kentucky Division of Oil and Gas (KDOG) are indeed committed to protection of the water resources of the Commonwealth, and with appreciation for the efforts that the Division has undertaken to identify and plug abandoned wells using all available resources. Delegation of the primary responsibility for implementation of the Class II program to the KDOG would complement the existing program for permitting of test and production wells, and KRC offers these comments in the spirit of assuring that the KDOG has the regulatory tools and resources necessary to effectively implement the delegated program now, and in the future when market conditions improve and when production and new well development increases above current levels. Specific comments follow:
1. Area Of Review
KDOG has promulgated 805 KAR 1:110 as the regulation that would govern the implementation of a delegated Class II UIC program. In Section 1(3) of that regulation, the “area of review” is defined to mean “that area within not less than a fixed radius of one-fourth (1/4) mile around an injection well, except that at the option of the permit applicant, the area of review may be deemed to be the zone of endangering influence calculated in accordance with 40 C.F.R. 146.6.”
The Council is concerned that the approach outlined in the regulation of using a ¼ mile default, with no stated criteria to guide when the permit reviewer would require a larger area of influence, and with the applicant rather than the agency determining whether to use the mathematical formula for determining the “zone of endangering influence,” is neither consistent with 40 CFR 146.6 nor as protective in cases where the hydrogeology, geology, and past history of well development, suggest that a wider area of review is needed to assure that the intended injection zone will be isolated from any USDWs.
Under 40 CFR 146.6, it is the Director, and not the permit applicant, that is to determine the area of review for each injection well. This much is clear from the plain text of the federal regulation, which provides that the Director may “solicit input” from the “owners or operators of injections wells within the State as to which method is most appropriate for each geographic area or field.” The federal regulation anticipates that each Class II well application will be considered individually with respect to what is the appropriate “area of review,” and that the agency and not the applicant will identify the approach that is best suited to define the area to be reviewed.
If KDOG is proposing to use the fixed radius approach in all cases rather than the more nuanced formula approach that considers and adjusts the area of review based on a determination of the zone of endangering influence defined by such variables such as the conductivity of the injection zone, the time and rate of injection, the hydrostatic head of the injection zone and USDW, and zone thickness, among other factors, then the agency must incorporate into the state regulation the factors that are required by 40 CFR 146.6 to be used by the permit reviewer to define the area of review on a case-by-case basis. The following language should be included in the regulation in order for the state program to be eligible for delegation:
"In determining the fixed radius, the following factors shall be taken into consideration by the Division: Chemistry of injected and formation fluids; hydrogeology; population and ground-water use and dependence; and historical practices in the area."
In a Commonwealth whose geology and hydrology is diverse and includes both areas of homogeneous, isotropic aquifers and heterogeneous aquifers dominated by fracture-flow, karst, and other secondary permeability and porosity geologic regimes, individualized determination of the area of review must be grounded in consideration of these factors in establishing a fixed radius for a particular Class II well application.
2. Public Notice, Draft Permits, and Response To Comments
Among the requirements for approval of an application for delegation of management of the Class II UIC program is the requirement that the state program provides opportunities for public notice, comment, and participation in the permit review process, comparable to selected portions of 40 CFR Part 124.
Specifically, in order to be approved, 40 CFR 145.11 requires that
"All State programs under this part must have legal authority to implement each of the following provisions and must be administered in conformance with each . . .
(24) Section 124.3(a) - (Application for a permit);
(25) Section 124.5 (a), (c), (d), and (f) - (Modification of permits);
(26) Section 124.6 (a), (c), (d), and (e) - (Draft Permit);
(27) Section 124.8 - (Fact sheets);
(28) Section 124.10 (a)(1)(ii), (a)(1)(iii), (a)(1)(v), (b), (c), (d), and (e) - (Public notice);
(29) Section 124.11 - (Public comments and requests for hearings);
(30) Section 124.12(a) - (Public hearings);
(31) Section 124.17 (a) and (c) - (Response to comments)"
40 CFR 145.11.
In reviewing 805 KAR 1:110 against the public participation requirements listed above, these appear to be several instances in which the state regulation does not provide comparable information or processes to those available to a citizen under an EPA-managed UIC program. Those include the availability of a draft permit and fact sheet (rather than just the public notice proposed by the Kentucky regulation) and the obligation of the agency to provide response to public comments received.
KRC respectfully requests that the EPA review the language of 805 KAR 1:110 against the public participation and notice requirements of 40 CFR Part 124 that are made applicable to state UIC programs under 40 CFR 145.11, and require those changes (including the two noted immediately above) needed to assure that the applicable provisions of 40 CFR Part 124 are fully referenced or incorporated into state regulation prior to approval of the application for delegated UIC status for Class II wells.
3. Resource/Staffing Adequacy
The Energy and Environment Cabinet has struggled for many years to implement and administer delegated programs under the Clean Water Act, Clean Air Act, Surface Mining Control and Reclamation Act, Safe Drinking Water Act, and other federally-delegated and state-lead programs, due to serial cuts in their budget which have forced reductions in staffing levels. At the time of the 2012 application for UIC delegation, KDOG had 17 inspectors – they are now reduced to 15 (inclusive of supervisors).
In order to assure that the agency will have the resources needed to effectively administer the delegated program, EPA should review the current budget and staff resources and establish minimum levels of staffing for administrative, permit review, recordkeeping and inspection/compliance personnel for the delegated program, in order to define the minimum level of funding and personnel positions that will need to be provided by the Executive and Legislative Branches of Kentucky’s state government in order to maintain the delegated UIC Class II program.
Thank you in advance for your consideration of these comments. The Council requests that the approval of the Class II program be made contingent on the revisions outlined in this letter, and looks forward to continued cooperation with both EPA and the KDOG under a delegated UIC program that conforms to all of the requirements of 40 CFR 145.11 and the federal regulations it makes applicable to state programs.