environmental protection agency pt. 144legismex.mty.itesm.mx/secc_inter/40cfr/40cfrpart144.pdf ·...

517

Environmental Protection Agency Pt. 144

This is intended to alert families about den-tal problems that might affect childrenunder nine years of age. The fluoride con-centration of your water exceeds this federalguideline.

Fluoride in children’s drinking water atlevels of approximately 1 mg/l reduces thenumber of dental cavities. However, somechildren exposed to levels of fluoride greaterthan about 2.0 mg/l may develop dental fluo-rosis. Dental fluorosis, in its moderate andsevere forms, is a brown staining and/or pit-ting of the permanent teeth.

Because dental fluorosis occurs only whendeveloping teeth (before they erupt from thegums) are exposed to elevated fluoride levels,households without children are not ex-pected to be affected by this level of fluoride.Families with children under the age of nineare encouraged to seek other sources ofdrinking water for their children to avoidthe possibility of staining and pitting.

Your water supplier can lower the con-centration of fluoride in your water so thatyou will still receive the benefits of cavityprevention while the possibility of stainedand pitted teeth is minimized. Removal offluoride may increase your water costs.Treatment systems are also commerciallyavailable for home use. Information on suchsystems is available at the address givenbelow. Low fluoride bottled drinking waterthat would meet all standards is also com-mercially available.

For further information, contact 2 at yourwater system.

1 PWS shall insert the compliance resultwhich triggered notification under this part.

2 PWS shall insert the name, address, andtelephone number of a contact person at thePWS.

(c) The effective date of this sectionis May 2, 1986.

[51 FR 11412, Apr. 2, 1986; 51 FR 24329, July 3,1986, as amended at 52 FR 41550, Oct. 28, 1987]

PART 144—UNDERGROUNDINJECTION CONTROL PROGRAM

Subpart A—General Provisions

Sec.144.1 Purpose and scope of part 144.144.2 Promulgation of Class II programs for

Indian lands.144.3 Definitions.144.4 Considerations under Federal law.144.5 Confidentiality of information.144.6 Classification of wells.144.7 Identification of underground sources

of drinking water and exempted aquifers.144.8 Noncompliance and program reporting

by the Director.

Subpart B—General Program Requirements

144.11 Prohibition of unauthorized injec-tion.

144.12 Prohibition of movement of fluid intounderground sources of drinking water.

144.13 Prohibition of Class IV wells.144.14 Requirements for wells injecting haz-

ardous waste.144.15 [Reserved]144.16 Waiver of requirement by Director.144.17 Records.

Subpart C—Authorization of UndergroundInjection by Rule

144.21 Existing Class I, II (except enhancedrecovery and hydrocarbon storage) andIII wells.

144.22 Existing Class II enhanced recoveryand hydrocarbon storage wells.

144.23 Class IV wells.144.24 Class V wells.144.25 Requiring a permit.144.26 Inventory requirements.144.27 Requiring other information.144.28 Requirements for Class I, II, and III

wells authorized by rule.

Subpart D—Authorization by Permit

144.31 Application for a permit; authoriza-tion by permit.

144.32 Signatories to permit applicationsand reports.

144.33 Area permits.144.34 Emergency permits.144.35 Effect of a permit.144.36 Duration of permits.144.37 Continuation of expiring permits.144.38 Transfer of permits.144.39 Modification or revocation and

reissuance of permits.144.40 Termination of permits.144.41 Minor modifications of permits.

Subpart E—Permit Conditions

144.51 Conditions applicable to all permits.144.52 Establishing permit conditions.144.53 Schedule of compliance.144.54 Requirements for recording and re-

porting of monitoring results.144.55 Corrective action.

Subpart F—Financial Responsibility: Class IHazardous Waste Injection Wells

144.60 Applicability.144.61 Definitions of terms as used in this

subpart.144.62 Cost estimate for plugging and aban-

donment.144.63 Financial assurance for plugging and

abandonment.144.64 Incapacity of owners or operators,

guarantors, or financial institutions.144.65 Use of State-required mechanisms.

VerDate 11<SEP>98 13:07 Oct 06, 1998 Jkt 179154 PO 00000 Frm 00513 Fmt 8010 Sfmt 8010 Y:\SGML\179154T.XXX pfrm08 PsN: 179154T

518

40 CFR Ch. I (7–1–98 Edition)§ 144.1

144.66 State assumption of responsibility.144.70 Wording of the instruments.

AUTHORITY: Safe Drinking Water Act, 42U.S.C. 300f et seq; Resource Conservation andRecovery Act, 42 U.S.C. 6901 et seq.

SOURCE: 48 FR 14189, Apr. 1, 1983, unlessotherwise noted.

Subpart A—General Provisions

§ 144.1 Purpose and scope of part 144.

(a) Contents of part 144. The regula-tions in this part set forth require-ments for the Underground InjectionControl (UIC) program promulgatedunder Part C of the Safe DrinkingWater Act (SDWA) (Pub. L. 93–523, asamended; 42 U.S.C. 300f et seq.) and, tothe extent that they deal with hazard-ous waste, the Resource Conservationand Recovery Act (RCRA) (Pub. L. 94–580 as amended; 42 U.S.C. 6901 et seq.).

(b) Applicability. (1) The regulationsin this part establish minimum re-quirements for UIC programs. To theextent set forth in part 145, each Statemust meet these requirements in orderto obtain primary enforcement author-ity for the UIC program in that State.

(2) In addition to serving as mini-mum requirements for UIC programs,the regulations in this part constitutea part of the UIC program for Stateslisted in part 147 to be administered di-rectly by EPA.

(c) The information requirements lo-cated in the following sections havebeen cleared by the Office of Manage-ment and Budget: Sections 144.11,144.28(c)(d)(i), 144.31, 14.33, 144.51(j)(m)(n), 144.52(a), 144.54, 144.55, 144.15, 144.23,144.26, 144.27, 144.28(i)(k), 144.51(o),146.52. The OMB clearance number is2040–0042.

(d) Authority. (1) Section 1421 ofSDWA requires the Administrator topromulgate regulations establishingminimum requirements for effectiveUIC programs.

(2) Section 1422 of SDWA requires theAdministrator to list in the FEDERALREGISTER ‘‘each State for which in hisjudgment a State underground injec-tion control program may be necessaryto assure that underground injectionwill not endanger drinking watersources’’ and to establish by regulationa program for EPA administration of

UIC programs in the absence of an ap-proved State program in a listed State.

(3) Section 1423 of SDWA providesprocedures for EPA enforcement of UICrequirements.

(4) Section 1431 authorizes the Ad-ministrator to take action to protectthe health of persons when a contami-nant which is present in or may entera public water system or undergroundsource of drinking water may presentan imminent and substantial endanger-ment to the health of persons.

(5) Section 1445 of SDWA authorizesthe promulgation of regulations forsuch recordkeeping, reporting, andmonitoring requirements ‘‘as the Ad-ministrator may reasonably require* * * to assist him in establishing regu-lations under this title,’’ and a ‘‘rightof entry and inspection to determinecompliance with this title, includingfor this purpose, inspection, at reason-able time, or records, files, papers,processes, controls, and facilities* * *.’’

(6) Section 1450 of SDWA authorizesthe Administrator ‘‘to prescribe suchregulations as are necessary or appro-priate to carry out his functions’’under SDWA.

(e) Overview of the UIC program. AnUIC program is necessary in any Statelisted by EPA under section 1422 of theSDWA. Because all States have beenlisted, the SDWA requires all States tosubmit an UIC program within 270 daysafter July 24, 1980, the effective date of40 CFR part 146, which was the finalelement of the UIC minimum require-ments to be originally promulgated,unless the Administrator grants an ex-tension, which can be for a period notto exceed an additional 270 days. If aState fails to submit an approvableprogram, EPA will establish a programfor that State. Once a program is es-tablished, SDWA provides that all un-derground injections in listed Statesare unlawful and subject to penaltiesunless authorized by a permit or a rule.This part sets forth the requirementsgoverning all UIC programs, authoriza-tions by permit or rule and prohibitscertain types of injection. The tech-nical regulations governing these au-thorizations appear in 40 CFR part 146.


519

Environmental Protection Agency § 144.1

(f) Structure of the UIC program—(1)Part 144. This part sets forth the per-mitting and other program require-ments that must be met by UIC Pro-grams, whether run by a State or byEPA. It is divided into the followingsubparts:

(i) Subpart A describes general ele-ments of the program, including defini-tions and classifications.

(ii) Subpart B sets forth the generalprogram requirements, including theperformance standards applicable to allinjection activities, basic elementsthat all UIC programs must contain,and provisions for waiving permit ofrule requirements under certain cir-cumstances.

(iii) Subpart C sets forth require-ments for wells authorized by rule.

(iv) Subpart D sets forth permittingprocedures.

(v) Subpart E sets forth specific con-ditions, or types of conditions, thatmust at a minimum be included in allpermits.

(vi) Subpart F sets forth the financialresponsibility requirements for ownersand operators of all existing and newClass I hazardous waste injection wells.

(2) Part 145. While part 144 sets forthminimum requirements for all UICPrograms, these requirements are spe-cifically identified as elements of aState application for primacy to ad-minister an UIC Program in part 145.Part 145 also sets forth the necessaryelements of a State submission and theprocedural requirements for approvalof State programs.

(3) Part 124. The public participationrequirements that must be met by UICPrograms, whether administered bythe State or by EPA, are set forth inpart 124. EPA must comply with allpart 124 requirements; State adminis-tered programs must comply with part124 as required by part 145. These re-quirements carry out the purposes ofthe public participation requirement of40 CFR part 25 (Public Participation),and supersede the requirements of thatpart as they apply to the UIC Program.

(4) Part 146. This part sets forth thetechnical criteria and standards thatmust be met in permits and authoriza-tions by rule as required by part 144.

(g) Scope of the permit or rule require-ment. The UIC Permit Program regu-

lates underground injections by fiveclasses of wells (see definition of ‘‘wellinjection,’’ § 144.3). The five classes ofwells are set forth in § 144.6. All ownersor operators of these injection wellsmust be authorized either by permit orrule by the Director. In carrying outthe mandate of the SDWA, this subpartprovides that no injection shall be au-thorized by permit or rule if it resultsin the movement of fluid containingany contaminant into UndergroundSources of Drinking Water (USDWs—see § 144.3 for definition), if the pres-ence of that contaminant may cause aviolation of any primary drinkingwater regulation under 40 CFR part 142or may adversely affect the health ofpersons (§ 144.12). Existing Class IVwells which inject hazardous waste di-rectly into an underground source ofdrinking water are to be eliminatedover a period of six months and newsuch Class IV wells are to be prohibited(§ 144.13). Class V wells will be inven-toried and assessed and regulatory ac-tion will be established at a later date.In the meantime, if remedial action ap-pears necessary, an individual permitmay be required (§ 144.25) or the Direc-tor must require remedial action orclosure by order (§ 144.12(c)). DuringUIC program development, the Direc-tor may identify aquifers and portionsof aquifers which are actual or poten-tial sources of drinking water. Thiswill provide an aid to the Director incarrying out his or her duty to protectall USDWs. An aquifer is a USDW if itfits the definition, even if it has notbeen ‘‘identified.’’ The Director mayalso designate ‘‘exempted aquifers’’using criteria in § 146.04. Such aquifersare those which would otherwise qual-ify as ‘‘underground sources of drink-ing water’’ to be protected, but whichhave no real potential to be used asdrinking water sources. Therefore,they are not USDWs. No aquifer is an‘‘exempted aquifer’’ until it has beenaffirmatively designated under the pro-cedures in § 144.7. Aquifers which do notfit the definition of ‘‘undergroundsources of drinking water’’ are not ‘‘ex-empted aquifers.’’ They are simply notsubject to the special protection af-forded USDWs.

(1) Specific inclusions. The followingwells are included among those types


520

40 CFR Ch. I (7–1–98 Edition)§ 144.2

by injection activities which are cov-ered by the UIC regulations. (This listis not intended to be exclusive but isfor clarification only.)

(i) Any injection well located on adrilling platform inside the State’s ter-ritorial waters.

(ii) Any dug hole or well that isdeeper than its largest surface dimen-sion, where the principal function ofthe hole is emplacement of fluids.

(iii) Any septic tank or cesspool usedby generators of hazardous waste, or byowners or operators of hazardous wastemanagement facilities, to dispose offluids containing hazardous waste.

(iv) Any septic tank, cesspool, orother well used by a multiple dwelling,community, or Regional system for theinjection of wastes.

(2) Specific exclusions. The followingare not covered by these regulations:

(i) Injection wells located on a drill-ing platform or other site that is be-yond the State’s territorial waters.

(ii) Individual or single family resi-dential waste disposal systems such asdomestic cesspools or septic systems.

(iii) Non-residential cesspools, septicsystems or similar waste disposal sys-tems if such systems (A) Are used sole-ly for the disposal of sanitary waste,and (B) have the capacity to servefewer than 20 persons a day.

(iv) Injection wells used for injectionof hydrocarbons which are of pipelinequality and are gases at standard tem-perature and pressure for the purposeof storage.

(v) Any dug hole which is not used foremplacement of fluids underground.

(3) The prohibition applicable toClass IV wells under § 144.13 does notapply to injections of hazardous wastesinto aquifers or portions thereof whichhave been exempted pursuant to§ 146.04.

(h) Interim Status under RCRA forClass I Hazardous Waste Injection Wells.The minimum national standardswhich define acceptable injection ofhazardous waste during the period ofinterim status under RCRA are set outin the applicable provisions of thispart, parts 146 and 147, and § 265.430 ofthis chapter. The issuance of a UIC per-mit does not automatically terminateRCRA interim status. A Class I well’sinterim status does, however, auto-

matically terminate upon issuance tothat well of a RCRA permit, or uponthe well’s receiving a RCRA permit-by-rule under § 270.60(b) of this chapter.Thus, until a Class I well injecting haz-ardous waste receives a RCRA permitor RCRA permit-by-rule, the well’sinterim status requirements are theapplicable requirements imposedpursuant to this part and parts 146, 147,and 265 of this chapter, including anyrequirements imposed in the UIC per-mit.

[48 FR 14189, Apr. 1, 1983, as amended at 49FR 20181, May 11, 1984; 52 FR 20676, June 2,1987; 52 FR 45797, Dec. 1, 1987; 53 FR 28147,July 26, 1988]

§ 144.2 Promulgation of Class II pro-grams for Indian lands.

Notwithstanding the requirements ofthis part or parts 124 and 146 of thischapter, the Administrator may pro-mulgate an alternate UIC Program forClass II wells on any Indian reservationor Indian lands. In promulgating such aprogram the Administrator shall con-sider the following factors:

(a) The interest and preferences ofthe tribal government having respon-sibility for the given reservation or In-dian lands;

(b) The consistency between the al-ternate program and any program ineffect in an adjoining jurisdiction; and

(c) Such other factors as are nec-essary and appropriate to carry out theSafe Drinking Water Act.

§ 144.3 Definitions.Terms not defined in this section

have the meaning given by the appro-priate Act. When a defined term ap-pears in a definition, the defined termis sometimes placed within quotationmarks as an aid to readers.

Administrator means the Adminis-trator of the United States Environ-mental Protection Agency, or an au-thorized representative.

Application means the EPA standardnational forms for applying for a per-mit, including any additions, revisionsor modifications to the forms; or formsapproved by EPA for use in approvedStates, including any approved modi-fications or revisions.

Appropriate Act and regulations meansthe Solid Waste Disposal Act, as


521


amended by the Resource Conservationand Recovery Act (RCRA); or SafeDrinking Water Act (SDWA), which-ever is applicable; and applicableregulations promulgated under thosestatutes.

Approved State Program means a UICprogram administered by the State orIndian Tribe that has been approved byEPA according to SDWA sections 1422and/or 1425.

Aquifer means a geological ‘‘forma-tion,’’ group of formations, or part of aformation that is capable of yielding asignificant amount of water to a wellor spring.

Area of review means the area sur-rounding an injection well describedaccording to the criteria set forth in§ 146.06 or in the case of an area permit,the project area plus a circumscribingarea the width of which is either 1⁄4 ofa mile or a number calculated accord-ing to the criteria set forth in § 146.06.

Contaminant means any physical,chemical, biological, or radiologicalsubstance or matter in water.

Director means the Regional Adminis-trator, the State director or the Tribaldirector as the context requires, or anauthorized representative. When thereis no approved State or Tribal pro-gram, and there is an EPA adminis-tered program, ‘‘Director’’ means theRegional Administrator. When there isan approved State or Tribal program,‘‘Director’’ normally means the Stateor Tribal director. In some cir-cumstances, however, EPA retains theauthority to take certain actions evenwhen there is an approved State orTribal program. In such cases, the term‘‘Director’’ means the Regional Admin-istrator and not the State or Tribal di-rector.

Draft permit means a document pre-pared under § 124.6 indicating the Direc-tor’s tentative decision to issue ordeny, modify, revoke and reissue, ter-minate, or reissue a ‘‘permit.’’ A noticeof intent to terminate a permit, and anotice of intent to deny a permit, asdiscussed in § 124.5 are types of ‘‘draftpermits.’’ A denial of a request formodification, revocation andreissuance, or termination, as dis-cussed in § 124.5 is not a ‘‘draft permit.’’

Drilling mud means a heavy suspen-sion used in drilling an ‘‘injection

well,’’ introduced down the drill pipeand through the drill bit.

Eligible Indian Tribe is a Tribe thatmeets the statutory requirements es-tablished at 42 U.S.C. 300j-11(b)(1).

Emergency permit means a UIC ‘‘per-mit’’ issued in accordance with § 144.34.

Environmental Protection Agency(‘‘EPA’’) means the United States En-vironmental Protection Agency.

EPA means the United States ‘‘Envi-ronmental Protection Agency.’’

Exempted aquifer means an ‘‘aquifer’’or its portion that meets the criteria inthe definition of ‘‘underground sourceof drinking water’’ but which has beenexempted according to the proceduresin § 144.7.

Existing injection well means an ‘‘in-jection well’’ other than a ‘‘new injec-tion well.’’

Facility or activity means any UIC‘‘injection well,’’ or an other facility oractivity that is subject to regulationunder the UIC program.

Fluid means any material or sub-stance which flows or moves whetherin a semisolid, liquid, sludge, gas, orany other form or state.

Formation means a body of consoli-dated or unconsolidated rock charac-terized by a degree of lithologic homo-geneity which is prevailingly, but notnecessarily, tabular and is mappable onthe earth’s surface or traceable in thesubsurface.

Formation fluid means ‘‘fluid’’ presentin a ‘‘formation’’ under natural condi-tions as opposed to introduced fluids,such as ‘‘drilling mud.’’

Generator means any person, by sitelocation, whose act or process produceshazardous waste identified or listed in40 CFR part 261.

Ground water means water below theland surface in a zone of saturation.

Hazardous waste means a hazardouswaste as defined in 40 CFR 261.3.

Hazardous waste management facility(‘‘HWM facility’’) means all contiguousland, and structures, other appur-tenances, and improvements on theland used for treating, storing, or dis-posing of hazardous waste. A facilitymay consist of several treatment, stor-age, or disposal operational units (forexample, one or more landfills, surfaceimpoundments, or combination ofthem).


522

40 CFR Ch. I (7–1–98 Edition)§ 144.3

HWM facility means ‘‘HazardousWaste Management facility’’

Indian lands means ‘‘Indian country’’as defined in 18 U.S.C. 1151. That sec-tion defines Indian country as:

(a) All land within the limits of anyIndian reservation under the jurisdic-tion of the United States government,notwithstanding the issuance of anypatent, and, including rights-of-wayrunning through the reservation;

(b) All dependent Indian commu-nities within the borders of the UnitedStates whether within the original orsubsequently acquired territory there-of, and whether within or without thelimits of a State; and

(c) All Indian allotments, the Indiantitles to which have not been extin-guished, including rights-of-way run-ning through the same.

Indian Tribe means any Indian Tribehaving a Federally recognized govern-ing body carrying out substantial gov-ernmental duties and powers over a de-fined area.

Injection well means a ‘‘well’’ intowhich ‘‘fluids’’ are being injected.

Injection zone means a geological‘‘formation’’ group of formations, orpart of a formation receiving fluidsthrough a ‘‘well.’’

Interstate Agency means an agency oftwo or more States established by orunder an agreement or compact ap-proved by the Congress, or any otheragency of two or more States or IndianTribes having substantial powers or du-ties pertaining to the control of pollu-tion as determined and approved by theAdministrator under the ‘‘appropriateAct and regulations.’’

Major facility means any UIC ‘‘facil-ity or activity’’ classified as such bythe Regional Administrator, or, in thecase of approved State programs, theRegional Administrator in conjunctionwith the State Director.

Manifest means the shipping docu-ment originated and signed by the‘‘generator’’ which contains the infor-mation required by subpart B of 40 CFRpart 262.

New injection wells means an ‘‘injec-tion well’’ which began injection aftera UIC program for the State applicableto the well is approved or prescribed.

Owner or operator means the owner oroperator of any ‘‘facility or activity’’

subject to regulation under the UICprogram.

Permit means an authorization, li-cense, or equivalent control documentissued by EPA or an approved State toimplement the requirements of thispart, parts 145, 146 and 124. ‘‘Permit’’includes an area permit (§ 144.33) and anemergency permit (§ 144.34). Permitdoes not include UIC authorization byrule (§ 144.21), or any permit which hasnot yet been the subject of final agencyaction, such as a ‘‘draft permit.’’

Person means an individual, associa-tion, partnership, corporation, munici-pality, State, Federal, or Tribal agen-cy, or an agency or employee thereof.

Plugging means the act or process ofstopping the flow of water, oil or gasinto or out of a formation through aborehole or well penetrating that for-mation.

Project means a group of wells in asingle operation.

Radioactive Waste means any wastewhich contains radioactive material inconcentrations which exceed those list-ed in 10 CFR part 20, appendix B, tableII, column 2.

RCRA means the Solid Waste Dis-posal Act as amended by the ResourceConservation and Recovery Act of 1976(Pub. L. 94–580, as amended by Pub. L.95–609, Pub. L. 96–510, 42 U.S.C. 6901 etseq.).

Regional Administrator means the Re-gional Administrator of the appro-priate Regional Office of the Environ-mental Protection Agency or the au-thorized representative of the RegionalAdministrator.

Schedule of compliance means a sched-ule of remedial measures included in a‘‘permit,’’ including an enforceable se-quence of interim requirements (for ex-ample, actions, operations, or mile-stone events) leading to compliancewith the ‘‘appropriate Act and regula-tions.’’

SDWA means the Safe DrinkingWater Act (Pub. L. 93–523, as amended;42 U.S.C. 300f et seq.).

Site means the land or water areawhere any ‘‘facility or activity’’ isphysically located or conducted, in-cluding adjacent land used in connec-tion with the facility or activity.


523


State means any of the 50 States, theDistrict of Columbia, Guam, the Com-monwealth of Puerto Rico, the VirginIslands, American Samoa, the TrustTerritory of the Pacific Islands, theCommonwealth of the Northern Mari-ana Islands, or an Indian Tribe treatedas a State.

State Director means the chief admin-istrative officer of any State, inter-state, or Tribal agency operating an‘‘approved program,’’ or the delegatedrepresentative of the State director. Ifthe responsibility is divided among twoor more States, interstate, or Tribalagencies, ‘‘State Director’’ means thechief administrative officer of theState, interstate, or Tribal agency au-thorized to perform the particular pro-cedure or function to which referenceis made.

State/EPA agreement means an agree-ment between the Regional Adminis-trator and the State which coordinatesEPA and State activities, responsibil-ities and programs.

Stratum (plural strata) means a singlesedimentary bed or layer, regardless ofthickness, that consists of generallythe same kind of rock material.

Total dissolved solids means the totaldissolved (filterable) solids as deter-mined by use of the method specified in40 CFR part 136.

Transferee means the owner or opera-tor receiving ownership and/or oper-ational control of the well.

Transferor means the owner or opera-tor transferring ownership and/or oper-ational control of the well.

UIC means the Underground Injec-tion Control program under Part C ofthe Safe Drinking Water Act, includingan ‘‘approved State program.’’

Underground injection means a ‘‘wellinjection.’’

Underground source of drinking water(USDW) means an aquifer or its por-tion:

(a)(1) Which supplies any publicwater system; or

(2) Which contains a sufficient quan-tity of ground water to supply a publicwater system; and

(i) Currently supplies drinking waterfor human consumption; or

(ii) Contains fewer than 10,000 mg/ltotal dissolved solids; and

(b) Which is not an exempted aquifer.

USDW means ‘‘underground source ofdrinking water.’’

Well means a bored, drilled or drivenshaft, or a dug hole, whose depth isgreater than the largest surface dimen-sion.

Well injection means the subsurfaceemplacement of ‘‘fluids’’ through abored, drilled, or driven ‘‘well;’’ orthrough a dug well, where the depth ofthe dug well is greater than the largestsurface dimension.

[48 FR 14189, Apr. 1, 1983, as amended at 49FR 45305, Nov. 15, 1984; 52 FR 20676, June 2,1987; 53 FR 37412, Sept. 26, 1988; 58 FR 63895,Dec. 3, 1993; 59 FR 64345, Dec. 14, 1994]

§ 144.4 Considerations under Federallaw.

The following is a list of Federal lawsthat may apply to the issuance of per-mits under these rules. When any ofthese laws is applicable, its proceduresmust be followed. When the applicablelaw requires consideration or adoptionof particular permit conditions or re-quires the denial of a permit, those re-quirements also must be followed.

(a) The Wild and Scenic Rivers Act, 16U.S.C. 1273 et seq. Section 7 of the Actprohibits the Regional Administratorfrom assisting by license or otherwisethe construction of any water re-sources project that would have a di-rect, adverse effect on the values forwhich a national wild and scenic riverwas established.

(b) The National Historic PreservationAct of 1966, 16 U.S.C. 470 et seq. Section106 of the Act and implementing regu-lations (36 CFR part 800) require theRegional Administrator, before issuinga license, to adopt measures when fea-sible to mitigate potential adverse ef-fects of the licensed activity and prop-erties listed or eligible for listing inthe National Register of HistoricPlaces. The Act’s requirements are tobe implemented in cooperation withState Historic Preservation Officersand upon notice to, and when appro-priate, in consultation with the Advi-sory Council on Historic Preservation.

(c) The Endangered Species Act, 16U.S.C. 1531 et seq. Section 7 of the Actand implementing regulations (50 CFRpart 402) require the Regional Adminis-trator to ensure, in consultation with


524

40 CFR Ch. I (7–1–98 Edition)§ 144.5

the Secretary of the Interior or Com-merce, that any action authorized byEPA is not likely to jeopardize the con-tinued existence of any endangered orthreatened species or adversely affectits critical habitat.

(d) The Coastal Zone Management Act,16 U.S.C. 1451 et seq. Section 307(c) ofthe Act and implementing regulations(15 CFR part 930) prohibit EPA fromissuing a permit for an activity affect-ing land or water use in the coastalzone until the applicant certifies thatthe proposed activity complies withthe State Coastal Zone Managementprogram, and the State or its des-ignated agency concurs with the cer-tification (or the Secretary of Com-merce overrides the States nonconcur-rence).

(e) The Fish and Wildlife CoordinationAct, 16 U.S.C. 661 et seq., requires theRegional Administrator, before issuinga permit proposing or authorizing theimpoundment (with certain exemp-tions), diversion, or other control ormodification of any body of water, con-sult with the appropriate State agencyexercising jurisdiction over wildlife re-sources to conserve these resources.

(f) Executive orders. [Reserved]

(Clean Water Act (33 U.S.C. 1251 et seq.), SafeDrinking Water Act (42 U.S.C. 300f et seq.),Clean Air Act (42 U.S.C. 7401 et seq.), Re-source Conservation and Recovery Act (42U.S.C. 6901 et seq.))

[48 FR 14189, Apr. 1, 1983, as amended at 48FR 39621, Sept. 1, 1983]

§ 144.5 Confidentiality of information.(a) In accordance with 40 CFR part 2,

any information submitted to EPApursuant to these regulations may beclaimed as confidential by the submit-ter. Any such claim must be assertedat the time of submission in the man-ner prescribed on the application formor instructions or, in the case of othersubmissions, by stamping the words‘‘confidential business information’’ oneach page containing such information.If no claim is made at the time of sub-mission, EPA may make the informa-tion available to the public withoutfurther notice. If a claim is asserted,the information will be treated in ac-cordance with the procedures in 40 CFRpart 2 (Public Information).

(b) Claims of confidentiality for thefollowing information will be denied:

(1) The name and address of any per-mit applicant or permittee;

(2) Information which deals with theexistence, absence, or level of contami-nants in drinking water.

§ 144.6 Classification of wells.Injection wells are classified as fol-

lows:(a) Class I. (1) Wells used by genera-

tors of hazardous waste or owners oroperators of hazardous waste manage-ment facilities to inject hazardouswaste beneath the lowermost forma-tion containing, within one-quartermile of the well bore, an undergroundsource of drinking water.

(2) Other industrial and municipaldisposal wells which inject fluids be-neath the lowermost formation con-taining, within one quarter mile of thewell bore, an underground source ofdrinking water.

(b) Class II. Wells which inject fluids:(1) Which are brought to the surface

in connection with natural gas storageoperations, or conventional oil or natu-ral gas production and may be commin-gled with waste waters from gas plantswhich are an intergral part of produc-tion operations, unless those watersare classified as a hazardous waste atthe time of injection.

(2) For enhanced recovery of oil ornatural gas; and

(3) For storage of hydrocarbonswhich are liquid at standard tempera-ture and pressure.

(c) Class III. Wells which inject forextraction of minerals including:

(1) Mining of sulfur by the Fraschprocess;

(2) In situ production of uranium orother metals; this category includesonly in-situ production from ore bodieswhich have not been conventionallymined. Solution mining of conven-tional mines such as stopes leaching isincluded in Class V.

(3) Solution mining of salts or pot-ash.

(d) Class IV. (1) Wells used by genera-tors of hazardous waste or of radio-active waste, by owners or operators ofhazardous waste management facili-ties, or by owners or operators of radio-active waste disposal sites to dispose of


525


hazardous waste or radioactive wasteinto a formation which within one-quarter (1⁄4) mile of the well containsan underground source of drinkingwater.

(2) Wells used by generators of haz-ardous waste or of radioactive waste,by owners or operators of hazardouswaste management facilities, or byowners or operators of radioactivewaste disposal sites to dispose of haz-ardous waste or radioactive wasteabove a formation which within one-quarter (1⁄4) mile of the well containsan underground source of drinkingwater.

(3) Wells used by generators of haz-ardous waste or owners or operators ofhazardous waste management facilitiesto dispose of hazardous waste, whichcannot be classified under paragraph(a)(1) or (d) (1) and (2) of this section(e.g., wells used to dispose of hazardouswaste into or above a formation whichcontains an aquifer which has been ex-empted pursuant to § 146.04).

(e) Class V. Injection wells not in-cluded in Classes I, II, III, or IV.

[48 FR 14189, Apr. 1, 1983, as amended at 52FR 20676, June 2, 1987]

§ 144.7 Identification of undergroundsources of drinking water and ex-empted aquifers.

(a) The Director may identify (bynarrative description, illustrations,maps, or other means) and shall pro-tect, except where exempted underparagraph (b) of this section, as an un-derground source of drinking water, allaquifers or parts of aquifers whichmeet the definition of an ‘‘undergroundsource of drinking water’’ in § 144.3.Even if an aquifer has not been specifi-cally identified by the Director, it is anunderground source of drinking waterif it meets the definition in § 144.3.

(b)(1) The Director may identify (bynarrative description, illustrations,maps, or other means) and describe ingeographic and/or geometric terms(such as vertical and lateral limits andgradient) which are clear and definite,all aquifers or parts thereof which theDirector proposes to designate as ex-empted aquifers using the criteria in 40CFR 146.04.

(2) No designation of an exempted aq-uifer submitted as part of a UIC Pro-

gram shall be final until approved bythe Administrator as part of a UIC pro-gram.

(3) Subsequent to program approvalor promulgation, the Director may,after notice and opportunity for a pub-lic hearing, identify additional exempt-ed aquifers. For approved State pro-grams exemption of aquifers identifed(i) under § 146.04(b) shall be treated as aprogram revision under § 145.32; (ii)under § 146.04(c) shall become final ifthe State Director submits the exemp-tion in writing to the Administratorand the Administrator has not dis-approved the designation within 45days. Any disapproval by the Adminis-trator shall state the reasons and shallconstitute final Agency action for pur-poses of judicial review.

(c)(1) For Class III wells, the Directorshall require an applicant for a permitwhich necessitates an aquifer exemp-tion under § 146.04(b)(1) to furnish thedata necessary to demonstrate that theaquifer is expected to be mineral or hy-drocarbon producing. Information con-tained in the mining plan for the pro-posed project, such as a map and gen-eral description of the mining zone,general information on the mineralogyand geochemistry of the mining zone,analysis of the amenability of the min-ing zone to the proposed mining meth-od, and a time-table of planned devel-opment of the mining zone shall beconsidered by the Director in additionto the information required by§ 144.31(g).

(2) For Class II wells, a demonstra-tion of commercial producibility shallbe made as follows:

(i) For a Class II well to be used forenhanced oil recovery processes in afield or project containing aquifersfrom which hydrocarbons were pre-viously produced, commercialproducibility shall be presumed by theDirector upon a demonstration by theapplicant of historical production hav-ing occurred in the project area orfield.

(ii) For Class II wells not located in afield or project containing aquifersfrom which hydrocarbons were pre-viously produced, information such aslogs, core data, formation description,formation depth, formation thickness


526

40 CFR Ch. I (7–1–98 Edition)§ 144.8

and formation parameters such as per-meability and porosity shall be consid-ered by the Director, to the extentsuch information is available.

§ 144.8 Noncompliance and programreporting by the Director.

The Director shall prepare quarterlyand annual reports as detailed below.When the State is the permit-issuingauthority, the State Director shall sub-mit any reports required under thissection to the Regional Administrator.When EPA is the permit-issuing au-thority, the Regional Administratorshall submit any report required underthis section to EPA Headquarters.

(a) Quarterly reports. The Directorshall submit quarterly narrative re-ports for major facilities as follows:

(1) Format. The report shall use thefollowing format:

(i) Provide an alphabetized list ofpermittees. When two or more permit-tees have the same name, the lowestpermit number shall be entered first.

(ii) For each entry on the list, in-clude the following information in thefollowing order:

(A) Name, location, and permit num-ber of the noncomplying permittees.

(B) A brief description and date ofeach instance of noncompliance forthat permittee. Instances of non-compliance may include one or morethe kinds set forth in paragraph (a)(2)of this section. When a permittee hasnoncompliance of more than one kind,combine the information into a singleentry for each such permittee.

(C) The date(s) and a brief descrip-tion of the action(s) taken by the Di-rector to ensure compliance.

(D) Status of the instance(s) of non-compliance with the date of the reviewof the status or the date of resolution.

(E) Any details which tend to explainor mitigate the instance(s) of non-compliance.

(2) Instances of noncompliance to be re-ported. Any instances of noncompliancewithin the following categories shall bereported in successive reports until thenoncompliance is reported as resolved.Once noncompliance is reported as re-solved it need not appear in subsequentreports.

(i) Failure to complete construction ele-ments. When the permittee has failed to

complete, by the date specified in thepermit, an element of a complianceschedule involving either planning forconstruction or a construction step (forexample, begin construction, attain op-eration level); and the permittee hasnot returned to compliance by accom-plishing the required elements of theschedule within 30 days from the date acompliance schedule report is dueunder the permit.

(ii) Modifications to schedules of com-pliance. When a schedule of compliancein the permit has been modified under§§ 144.39 or 144.41 because of the permit-tee’s noncompliance.

(iii) Failure to complete or provide com-pliance schedule or monitoring reports.When the permittee has failed to com-plete or provide a report required in apermit compliance schedule (for exam-ple, progress report or notice of non-compliance or compliance) or a mon-itoring report; and the permittee hasnot submitted the complete reportwithin 30 days from the date it is dueunder the permit for compliance sched-ules, or from the date specified in thepermit for monitoring reports.

(iv) Deficient reports. When the re-quired reports provided by the permit-tee are so deficient as to cause mis-understanding by the Director and thusimpede the review of the status of com-pliance.

(v) Noncompliance with other permit re-quirements. Noncompliance shall be re-ported in the following circumstances:

(A) Whenever the permittee has vio-lated a permit requirement (other thanreported under paragraph (a)(2) (i) or(ii) of this section), and has not re-turned to compliance within 45 daysfrom the date reporting of noncompli-ance was due under the permit; or

(B) When the Director determinesthat a pattern of noncompliance existsfor a major facility permittee over themost recent four consecutive reportingperiods. This pattern includes any vio-lation of the same requirement in twoconsecutive reporting periods, and anyviolation of one or more requirementsin each of four consecutive reportingperiods; or

(C) When the Director determinessignificant permit noncompliance orother significant event has occurred,


527


such as a migration of fluids into aUSDW.

(vi) All other. Statistical informationshall be reported quarterly on all otherinstances of noncompliance by majorfacilities with permit requirements nototherwise reported under paragraph (a)of this section.

(b) Annual reports—(1) Annual non-compliance report. Statistical reportsshall be submitted by the Director onnonmajor UIC permittees indicatingthe total number reviewed, the numberof noncomplying nonmajor permittees,the number of enforcement actions,and number of permit modificationsextending compliance deadlines. Thestatistical information shall be orga-nized to follow the types of noncompli-ance listed in paragraph (a) of thissection.

(2) For State-administered UIC Pro-grams only. In addition to the annualnoncompliance report, the State Direc-tor shall:

(i) Submit each year a program re-port to the Administrator (in a mannerand form prescribed by the Adminis-trator) consisting of:

(A) A detailed description of theState’s implementation of its program;

(B) Suggested changes, if any to theprogram description (see § 145.23(f))which are necessary to reflect more ac-curately the State’s progress in issuingpermits;

(C) An updated inventory of activeunderground injection operations inthe State.

(ii) In addition to complying with therequirements of paragraph (b)(2)(i) ofthis section, the Director shall providethe Administrator, on February 28thand August 31st of each of the first twoyears of program operation, the infor-mation required in 40 CFR 146.15, 146.25,and 146.35.

(c) Schedule. (1) For all quarterly re-ports. On the last working day of May,August, November, and February, theState Director shall submit to the Re-gional Administrator information con-cerning noncompliance with permit re-quirements by major facilities in theState in accordance with the followingschedule. The Regional Administratorshall prepare and submit informationfor EPA-issued permits to EPA Head-

quarters in accordance with the sameschedule.

QUARTERS COVERED BY REPORTS ONNONCOMPLIANCE BY MAJOR FACILITIES

[Date for completion of reports]January, February, and March .......................... 1May 31April, May, and June .......................................... 1Aug. 31July, August, and September ............................ 1Nov. 30October, November, and December .................. 1Feb. 28

1 Reports must be made available to the public for inspec-tion and copying on this date.

(2) For all annual reports. The periodfor annual reports shall be for the cal-endar year ending December 31, withreports completed and available to thepublic no more than 60 days later.

Subpart B—General ProgramRequirements

§ 144.11 Prohibition of unauthorizedinjection.

Any underground injection, exceptinto a well authorized by rule or exceptas authorized by permit issued underthe UIC program, is prohibited. Theconstruction of any well required tohave a permit is prohibited until thepermit has been issued.

[48 FR 14189, Apr. 1, 1983, as amended at 58FR 63895, Dec. 3, 1993]

§ 144.12 Prohibition of movement offluid into underground sources ofdrinking water.

(a) No owner or operator shall con-struct, operate, maintain, convert,plug, abandon, or conduct any other in-jection activity in a manner that al-lows the movement of fluid containingany contaminant into undergroundsources of drinking water, if the pres-ence of that contaminant may cause aviolation of any primary drinkingwater regulation under 40 CFR part 142or may otherwise adversely affect thehealth of persons. The applicant for apermit shall have the burden of show-ing that the requirements of this para-graph are met.

(b) For Class I, II and III wells, if anywater quality monitoring of an under-ground source of drinking water indi-cates the movement of any contami-nant into the underground source ofdrinking water, except as authorizedunder part 146, the Director shall pre-scribe such additional requirements for


528

40 CFR Ch. I (7–1–98 Edition)§ 144.13

construction, corrective action, oper-ation, monitoring, or reporting (includ-ing closure of the injection well) as arenecessary to prevent such movement.In the case of wells authorized by per-mit, these additional requirementsshall be imposed by modifying the per-mit in accordance with § 144.39, or thepermit may be terminated under§ 144.40 if cause exists, or appropriateenforcement action may be taken if thepermit has been violated. In the case ofwells authorized by rule, see §§ 144.21through 144.24. For EPA administeredprograms, such enforcement actionshall be taken in accordance with ap-propriate sections of the SDWA.

(c) For Class V wells, if at any timethe Director learns that a Class V wellmay cause a violation of primarydrinking water regulations under 40CFR part 142, he or she shall:

(1) Require the injector to obtain anindividual permit;

(2) Order the injector to take such ac-tions (including, where required, clo-sure of the injection well) as may benecessary to prevent the violation. ForEPA administered programs, such or-ders shall be issued in accordance withthe appropriate provisions of theSDWA; or

(3) Take enforcement action.(d) Whenever the Director learns that

a Class V well may be otherwise ad-versely affecting the health of persons,he or she may prescribe such actions asmay be necessary to prevent the ad-verse effect, including any action au-thorized under paragraph (c) of thissection.

(e) Notwithstanding any other provi-sion of this section, the Director maytake emergency action upon receipt ofinformation that a contaminant whichis present in or likely to enter a publicwater system or underground source ofdrinking water may present an immi-nent and substantial endangerment tothe health of persons. If the Director isan EPA official, he must first deter-mine that the appropriate State andlocal authorities have not taken appro-priate action to protect the health ofsuch persons, before taking emergencyaction.


§ 144.13 Prohibition of Class IV wells.(a) The following are prohibited, ex-

cept as provided in paragraph (c) ofthis section:

(1) The construction of any Class IVwell.

(2) The operation or maintenance ofany Class IV well not in operationprior to July 18, 1980.

(3) The operation or maintenance ofany Class IV well that was in operationprior to July 18, 1980, after six monthsfollowing the effective date of a UICprogram approved or promulgated forthe state.

(4) Any increase in the amount ofhazardous waste or change in the typeof hazardous waste injected into aClass IV well.

(b) The owner or operator of a ClassIV well shall comply with the require-ments of § 144.14, and with the require-ments of § 144.23 regarding closure ofClass IV wells.

(c) Wells used to inject contaminatedground water that has been treated andis being reinjected into the same for-mation from which it was drawn arenot prohibited by this section if suchinjection is approved by EPA pursuantto provisions for cleanup of releasesunder the Comprehensive Environ-mental Response, Compensation, andLiability Act of 1980 (CERCLA), 42U.S.C. 9601–9657, or pursuant to require-ments and provisions under the Re-source Conservation and Recovery Act(RCRA), 42 U.S.C. 6901 through 6987.

(d) Clarification. The following wellsare not prohibited by this action:

(1) Wells used to inject hazardouswaste into aquifers or portions thereofthat have been exempted pursuant to§ 146.4, if the exempted aquifer intowhich waste is injected underlies thelowermost formation containing aUSDW. Such wells are Class I wells asspecified in § 144.6(a)(1), and the owneror operator must comply with the re-quirements applicable to Class I wells.

(2) Wells used to inject hazardouswaste where no USDW exists withinone quarter mile of the well bore inany underground formation, providedthat the Director determines that suchinjection is into a formation suffi-ciently isolated to ensure that injectedfluids do not migrate from the injec-tion zone. Such wells are Class I wells


529


as specified in § 144.6(a)(1), and theowner or operator must comply withthe requirements applicable to Class Iwells.

[49 FR 20181, May 11, 1984]

§ 144.14 Requirements for wells inject-ing hazardous waste.

(a) Applicability. The regulations inthis section apply to all generators ofhazardous waste, and to the owners oroperators of all hazardous waste man-agement facilities, using any class ofwell to inject hazardous wastes accom-panied by a manifest. (See also § 144.13.)

(b) Authorization. The owner or opera-tor of any well that is used to injecthazardous waste required to be accom-panied by a manifest or delivery docu-ment shall apply for authorization toinject as specified in § 144.31 within 6months after the approval or promul-gation of the State UIC program.

(c) Requirements. In addition to com-plying with the applicable require-ments of this part and 40 CFR part 146,the owner or operator of each facilitymeeting the requirements of paragraph(b) of this section, shall comply withthe following:

(1) Notification. The owner or operatorshall comply with the notification re-quirements of section 3010 of PublicLaw 94–580.

(2) Identification number. The owneror operator shall comply with the re-quirements of 40 CFR 264.11.

(3) Manifest system. The owner or op-erator shall comply with the applicablerecordkeeping and reporting require-ments for manifested wastes in 40 CFR264.71.

(4) Manifest discrepancies. The owneror operator shall comply with 40 CFR264.72.

(5) Operating record. The owner or op-erator shall comply with 40 CFR264.73(a), (b)(1), and (b)(2).

(6) Annual report. The owner or opera-tor shall comply with 40 CFR 264.75.

(7) Unmanifested waste report. Theowner or operator shall comply with 40CFR 264.75.

(8) Personnel training. The owner oroperator shall comply with the applica-ble personnel training requirements of40 CFR 264.16.

(9) Certification of closure. When aban-donment is completed, the owner or op-

erator must submit to the Director cer-tification by the owner or operator andcertification by an independent reg-istered professional engineer that thefacility has been closed in accordancewith the specifications in § 144.52(a)(6).

(d) Additional requirements for Class IVwells. [Reserved]

§ 144.15 [Reserved]

§ 144.16 Waiver of requirement by Di-rector.

(a) When injection does not occur into,through or above an underground sourceof drinking water, the Director may au-thorize a well or project with lessstringent requirements for area of re-view, construction, mechanical integ-rity, operation, monitoring, and re-porting than required in 40 CFR part146 or § 144.52 to the extent that the re-duction in requirements will not resultin an increased risk of movement offluids into an underground source ofdrinking water.

(b) When injection occurs through orabove an underground source of drink-ing water, but the radius of endanger-ing influence when computed under§ 146.06(a) is smaller or equal to the ra-dius of the well, the Director may au-thorize a well or project with lessstringent requirements for operation,monitoring, and reporting than re-quired in 40 CFR part 146 or § 144.52 tothe extent that the reduction in re-quirements will not result in an in-creased risk of movement of fluids intoan underground source of drinkingwater.

(c) When reducing requirementsunder paragraph (a) or (b) of this sec-tion, the Director shall prepare a factsheet under § 124.8 explaining the rea-sons for the action.

§ 144.17 Records.

The Director or the Administratormay require, by written notice on a se-lective well-by-well basis, an owner oroperator of an injection well to estab-lish and maintain records, make re-ports, conduct monitoring, and provideother information as is deemed nec-essary to determine whether the owneror operator has acted or is acting in


530

40 CFR Ch. I (7–1–98 Edition)§ 144.21

compliance with Part C of the SDWAor its implementing regulations.

[58 FR 63895, Dec. 3, 1993]

Subpart C—Authorization ofUnderground Injection by Rule

§ 144.21 Existing Class I, II (except en-hanced recovery and hydrocarbonstorage) and III wells.

(a) An existing Class I, II (except en-hanced recovery and hydrocarbon stor-age) and III injection well is authorizedby rule if the owner or operator injectsinto the existing well within one yearafter the date at which a UIC programauthorized under the SDWA becomeseffective for the first time or inven-tories the well pursuant to the require-ments of § 144.26. An owner or operatorof a well which is authorized by rulepursuant to this section shall rework,operate, maintain, convert, plug, aban-don or inject into the well in compli-ance with applicable regulations.

(b) Duration of well authorization byrule. Well authorization under this sec-tion expires upon the effective date ofa permit issued pursuant to §§ 144.25,144.31, 144.33 or 144.34; after pluggingand abandonment in accordance withan approved plugging and abandonmentplan pursuant to §§ 144.28(c) and 146.10,and upon submission of a plugging andabandonment report pursuant to§ 144.28(k); or upon conversion in com-pliance with § 144.28(j).

(c) Prohibitions on injection. An owneror operator of a well authorized by rulepursuant to this section is prohibitedfrom injecting into the well:

(1) Upon the effective date of an ap-plicable permit denial;

(2) Upon failure to submit a permitapplication in a timely manner pursu-ant to §§ 144.25 or 144.31;

(3) Upon failure to submit inventoryinformation in a timely manner pursu-ant to § 144.26;

(4) Upon failure to comply with a re-quest for information in a timely man-ner pursuant to § 144.27;

(5) Upon failure to provide alter-native financial assurance pursuant to§ 144.28(d)(7);

(6) Forty-eight hours after receipt ofa determination by the Director pursu-ant to § 144.28(f)(3) that the well lacks

mechanical integrity, unless the Direc-tor requires immediate cessation;

(7) Upon receipt of notification fromthe Director pursuant to § 144.28(l) thatthe transferee has not demonstrated fi-nancial responsibility pursuant to§ 144.28(d);

(8) For Class I and III wells:(i) In States with approved programs,

five years after the effective date ofthe UIC program unless a timely andcomplete permit application is pendingthe Director’s decision; or

(ii) In States with programs adminis-tered by EPA, one year after the effec-tive date of the UIC program unless atimely and complete permit applica-tion is pending the Director’s decision;or

(9) For Class II wells (except en-hanced recovery and hydrocarbon stor-age), five years after the effective dateof the UIC program unless a timely andcomplete permit application is pendingthe Director’s decision.

(d) Class II and III wells in existingfields or projects. Notwithstanding theprohibition in § 144.11, this section au-thorizes Class II and Class III wells orprojects in existing fields or projects tocontinue normal operations until per-mitted, including construction, oper-ation, and plugging and abandonmentof wells as part of the operation, pro-vided the owner or operator maintainscompliance with all applicable require-ments.

(e) Requirements. The owner or opera-tor of a well authorized under this sec-tion shall comply with the applicablerequirements of § 144.28 and part 147 ofthis chapter no later than one yearafter authorization.

[48 FR 14189, Apr. 1, 1983, as amended at 49FR 20181, May 11, 1984; 58 FR 63895, Dec. 3,1993]

§ 144.22 Existing Class II enhanced re-covery and hydrocarbon storagewells.

(a) An existing Class II enhanced re-covery or hydrocarbon storage injec-tion well is authorized by rule for thelife of the well or project, if the owneror operator injects into the existingwell within one year after the datewhich a UIC program authorized underthe SDWA becomes effective for the


531


first time or inventories the well pur-suant to the requirements of § 144.26.An owner or operator of a well which isauthorized by rule pursuant to this sec-tion shall rework, operate, maintain,convert, plug, abandon or inject intothe well in compliance with applicableregulations.

(b) Duration of well authorization byrule. Well authorization under this sec-tion expires upon the effective date ofa permit issued pursuant to §§ 144.25,144.31, 144.33 or 144.34; after pluggingand abandonment in accordance withan approved plugging and abandonmentplan pursuant to §§ 144.28(c) and 146.10of this chapter, and upon submission ofa plugging and abandonment reportpursuant to § 144.28(k); or upon conver-sion in compliance with § 144.28(j).

(c) Prohibitions on injection. An owneror operator of a well authorized by rulepursuant to this section is prohibitedfrom injecting into the well:



(3) Upon failure to submit inventoryinformation in a timely manner pursu-ant to § 144.26;

(4) Upon failure to comply with a re-quest for information in a timely man-ner pursuant to § 144.27;

(5) Upon failure to provide alter-native financial assurance pursuant to§ 144.28(d)(7);

(6) Forty-eight hours after receipt ofa determination by the Director pursu-ant to § 144.28(f)(3) that the well lacksmechanical integrity, unless the Direc-tor requires immediate cessation; or

(7) Upon receipt of notification fromthe Director pursuant to § 144.28(l) thatthe transferee has not demonstrated fi-nancial responsibility pursuant to§ 144.28(d).

(d) Requirements. The owner or opera-tor of a well authorized under this sec-tion shall comply with the applicablerequirements of § 144.28 and part 147 ofthis chapter. Such owner or operatorshall comply with the casing and ce-menting requirements no later than 3years and other requirements no laterthan 1 year after authorization.

[49 FR 20181, May 11, 1984, as amended at 58FR 63896, Dec. 3, 1993]

§ 144.23 Class IV wells.(a) Injection into existing Class IV

wells is authorized for up to six monthsafter approval or promulgation of theUIC Program. Such wells are subject tothe requirements of §§ 144.13 and144.14(c).

(b) Closure. For EPA administeredprograms only,

(1) Prior to abandoning any Class IVwell, the owner or operator shall plugor otherwise close the well in a manneracceptable to the Regional Adminis-trator.

(2) [Reserved](3) The owner or operator of a Class

IV well must notify the Regional Ad-ministrator of intent to abandon thewell at least thirty days prior to aban-donment.

[49 FR 20181, May 11, 1984, as amended at 60FR 33932, June 29, 1995]

§ 144.24 Class V wells.(a) A Class V injection well is author-

ized by rule until further requirementsunder future regulations become appli-cable.

(b) Duration of well authorization byrule. Well authorization under this sec-tion expires upon the effective date ofa permit issued pursuant to §§ 144.25,144.31, 144.33 or 144.34, or upon properclosure of the well.

(c) Prohibition of injection. An owneror operator of a well which is author-ized by rule pursuant to this section isprohibited from injecting into the well:



(3) Upon failure to submit inventoryinformation in a timely manner pursu-ant to § 144.26; or

(4) Upon failure to comply with a re-quest for information in a timely man-ner pursuant to § 144.27.

[58 FR 63896, Dec. 3, 1993]

§ 144.25 Requiring a permit.(a) The Director may require the

owner or operator of any Class I, II, IIIor V injection well which is authorizedby rule under this subpart to apply forand obtain an individual or area UIC


532

40 CFR Ch. I (7–1–98 Edition)§ 144.26

permit. Cases where individual or areaUIC permits may be required include:

(1) The injection well is not in com-pliance with any requirement of therule;

NOTE: Any underground injection whichviolates any authorization by rule is subjectto appropriate enforcement action.

(2) The injection well is not or nolonger is within the category of wellsand types of well operations authorizedin the rule;

(3) The protection of USDWs requiresthat the injection operation be regu-lated by requirements, such as for cor-rective action, monitoring and report-ing, or operation, which are not con-tained in the rule.

(4) When the injection well is a ClassI, II (except existing enhanced recoveryand hydrocarbon storage) or III well, inaccordance with a schedule establishedby the Director pursuant to § 144.31(c).

(b) For EPA-administered programs,the Regional Administrator may re-quire an owner or operator of any wellwhich is authorized by rule under thissubpart to apply for an individual orarea UIC permit under this paragraphonly if the owner or operator has beennotified in writing that a permit appli-cation is required. The owner or opera-tor of a well which is authorized byrule under this subpart is prohibitedfrom injecting into the well upon theeffective date of permit denial, or uponfailure by the owner or operator to sub-mit an application in a timely manneras specified in the notice. The noticeshall include: a brief statement of thereasons for requiring a permit; an ap-plication form; a statement setting atime for the owner or operator to filethe application; and a statement of theconsequences of denial or issuance ofthe permit, or failure to submit an ap-plication, as described in this para-graph.

(c) An owner or operator of a well au-thorized by rule may request to be ex-cluded from the coverage of this sub-part by applying for an individual orarea UIC permit. The owner or opera-tor shall submit an application under§ 144.31 with reasons supporting the re-

quest, to the Director. The Directormay grant any such requests.


§ 144.26 Inventory requirements.The owner or operator of an injection

well which is authorized by rule underthis subpart shall submit inventory in-formation to the Director. Such anowner or operator is prohibited frominjecting into the well upon failure tosubmit inventory information for thewell within the time specified in para-graph (d) or (e) of this section.

(a) Contents. As part of the inventory,the Director shall require and theowner/operator shall provide at leastthe following information:

(1) Facility name and location;(2) Name and address of legal con-

tact;(3) Ownership of facility;(4) Nature and type of injection wells;

and(5) Operating status of injection

wells.NOTE: This information is requested on na-

tional form ‘‘Inventory of Injection Wells,’’OMB No. 158–R0170.

(b) Additional contents. For EPA ad-ministered programs only, the owneror operator of a well listed in para-graph (b)(1) of this section shall pro-vide the information listed in para-graph (b)(2) of this section.

(1) This section applies to the follow-ing wells:

(i) Class II enhanced recovery wells;(ii) Class IV wells;(iii) The following Class V wells:(A) Sand or other backfill wells

[§ 146.5(e)(8)];(B) Radioactive waste disposal wells

[§ 146.5(e)(11)];(C) Geothermal energy recovery wells

[§ 146.5(e)(12)];(D) Brine return flow wells

[§ 146.5(e)(14)];(E) Wells used in experimental tech-

nologies [§ 146.5(e)(15)];(F) Municipal and industrial disposal

wells other than Class I; and(G) Any other Class V wells at the

discretion of the Regional Adminis-trator.

(2) The owner or operator of a welllisted in paragraph (b)(1) shall provide


533


a listing of all wells owned or operatedsetting forth the following informationfor each well. (A single description ofwells at a single facility with substan-tially the same characteristics is ac-ceptable).

(i) For Class II only, the fieldname(s);

(ii) Location of each well or projectgiven by Township, Range, Section,and Quarter-Section, or by latitude andlongitude to the nearest second, ac-cording to the conventional practice inthe State;

(iii) Date of completion of each well;(iv) Identification and depth of the

formation(s) into which each well is in-jecting;

(v) Total depth of each well;(vi) Casing and cementing record,

tubing size, and depth of packer;(vii) Nature of the injected fluids;(viii) Average and maximum injec-

tion pressure at the wellhead;(ix) Average and maximum injection

rate; and(x) Date of the last mechanical integ-

rity test, if any.(c) Notice. Upon approval of the UIC

Program in a State, the Director shallnotify owners or operators of injectionwells of their duty to submit inventoryinformation. The method of notifica-tion selected by the Director must as-sure that the owners or operators willbe made aware of the inventory re-quirement.

(d) Deadlines. Except as provided inparagraph (e) of this section. (1) Theowner or operator of an injection wellshall submit inventory information nolater than one year after the date ofapproval or effective date of the UICprogram for the State. The Directorneed not require inventory informationfrom any facility with interim statusunder RCRA.

(2) For EPA administered programsthe information need not be submittedif a complete permit application is sub-mitted within one year of the effectivedata of the UIC program. The owner oroperator of Class IV well shall submitinventory information no later than 60days after the effective date of the pro-gram.

(e) Deadlines for Class V Wells (EPA-administered programs only). (1) Theowner or operator of a Class V well in

which injection took place within oneyear after the date at which a UIC pro-gram authorized under the SDWA firstbecame effective, and who failed tosubmit inventory for the well withinthe time specified in paragraph (d) ofthis section may resume injection 90days after submittal of the inventoryinformation to the Director unless theowner or operator receives notice thatinjection may not resume or may re-sume sooner.

(2) The owner or operator of a Class Vwell in which injection started afterthe first anniversary date at which aUIC program authorized under theSDWA became effective, shall submitinventory information no later thanone year after May 2, 1994.

(3) The owner or operator of a Class Vwell in which injection will start afterMay 2, 1994, shall submit inventory in-formation prior to starting injection.

(4) The owner or operator of a Class Vinjection well prohibited from inject-ing for failure to submit inventory in-formation for the well within the timespecified in paragraphs (e) (2) and (3) ofthis section, may resume injection 90days after submittal of the inventoryinformation to the Director unless theowner or operator receives notice fromthe Director that injection may not re-sume or may resume sooner.


§ 144.27 Requiring other information.

(a) For EPA administered programsonly, in addition to the inventory re-quirements of § 144.26, the Regional Ad-ministrator may require the owner oroperator of any well authorized by ruleunder this subpart to submit informa-tion as deemed necessary by the Re-gional Administrator to determinewhether a well may be endangering anunderground source of drinking waterin violation of § 144.12 of this part.

(b) Such information requirementsmay include, but are not limited to:

(1) Performance of ground-watermonitoring and the periodic submis-sion of reports of such monitoring;

(2) An analysis of injected fluids, in-cluding periodic submission of suchanalyses; and


534

40 CFR Ch. I (7–1–98 Edition)§ 144.28

(3) A description of the geologic stra-ta through and into which injection istaking place.

(c) Any request for information underthis section shall be made in writing,and include a brief statement of thereasons for requiring the information.An owner or operator shall submit theinformation within the time period(s)provided in the notice.

(d) An owner or operator of an injec-tion well authorized by rule under thissubpart is prohibited from injectinginto the well upon failure of the owneror operator to comply with a requestfor information within the time pe-riod(s) specified by the Director pursu-ant to paragraph (c) of this section. Anowner or operator of a well prohibitedfrom injection under this section shallnot resume injection except under apermit issued pursuant to §§ 144.25,144.31, 144.33 or 144.34.


§ 144.28 Requirements for Class I, II,and III wells authorized by rule.

The following requirements apply tothe owner or operator of a Class I, II orIII well authorized by rule under thissubpart, as provided by §§ 144.21(e) and144.22(d).

(a) The owner or operator shall com-ply with all applicable requirements ofthis subpart and subpart B of this part.Any noncompliance with these require-ments constitutes a violation of theSafe Drinking Water Act and isgrounds for enforcement action, exceptthat the owner or operator need notcomply with these requirements to theextent and for the duration such non-compliance is authorized by an emer-gency permit under § 144.34.

(b) Twenty-four hour reporting. Theowner or operator shall report any non-compliance which may endanger healthor the environment, including:

(1) Any monitoring or other informa-tion which indicates that any contami-nant may cause an endangerment to aUSDW; or

(2) Any noncompliance or malfunc-tion of the injection system which maycause fluid migration into or betweenUSDWs.Any information shall be provided oral-ly within 24 hours from the time the

owner or operator becomes aware ofthe circumstances. A written submis-sion shall also be provided within fivedays of the time the owner or operatorbecomes aware of the circumstances.The written submission shall contain adescription of the noncompliance andits cause, the period of noncompliance,including exact dates and times, and ifthe noncompliance has not been cor-rected, the anticipated time it is ex-pected to continue; and steps taken orplanned to reduce, eliminate, and pre-vent recurrence of the noncompliance.

(c) Plugging and abandonment plan. (1)The owner or operator shall prepare,maintain, and comply with a plan forplugging and abandonment of the wellor project that meets the requirementsof § 146.10 of this chapter and is accept-able to the Director. For purposes ofthis paragraph, temporary intermit-tent cessation of injection operationsis not abandonment.

(2) For EPA administered programs:(i) The owner or operator shall sub-

mit the plan, on a form provided by theRegional Administrator, no later thanone year after the effective date of theUIC program in the state.

(ii) The owner or operator shall sub-mit any proposed significant revisionto the method of plugging reflected inthe plan no later than the notice ofplugging required by § 144.28(j)(2) (i.e.,45 days prior to plugging unless shorternotice is approved).

(iii) The plan shall include the fol-lowing information:

(A) The nature and quantity and ma-terial to be used in plugging;

(B) The location and extent (bydepth) of the plugs;

(C) Any proposed test or measure-ment to be made;

(D) The amount, size, and location(by depth) of casing to be left in thewell;

(E) The method and location wherecasing is to be parted; and

(F) [Reserved](G) The estimated cost of plugging

the well.(iv) After a cessation of operations of

two years the owner or operator shallplug and abandon the well in accord-ance with the plan unless he:

(A) Provides notice to the RegionalAdministrator;


535


(B) Describe actions or procedures,satisfactory to the Regional Adminis-trator, that the owner or operator willtake to ensure that the well will notendanger USDWs during the period oftemporary abandonment. These actionsand procedures shall include compli-ance with the technical requirementsapplicable to active injection wells un-less waived by the Regional Adminis-trator.

(v) The owner or operator of any wellthat has been temporarily abandoned[ceased operations for more than twoyears and has met the requirements ofparagraphs (c)(2) (A) and (B) of this sec-tion] shall notify the Regional Admin-istrator prior to resuming operation ofthe well.

(d) Financial responsibility. (1) Theowner, operator and/or, for EPA-admin-istered programs, the transferor of aClass I, II or III well, is required todemonstrate and maintain financial re-sponsibility and resources to close,plug and abandon the underground in-jection operation in a manner pre-scribed by the Director until:

(i) The well has been plugged andabandoned in accordance with an ap-proved plugging and abandonment planpursuant to §§ 144.28(c) and 146.10 andsubmission of a plugging and abandon-ment report has been made pursuant to§ 144.28(k);

(ii) The well has been converted incompliance with the requirements of§ 144.28(j); or

(iii) For EPA-administered programs,the transferor has received notice fromthe Director that the transferee hasdemonstrated financial responsibilityfor the well. The owner or operatorshall show evidence of such financialresponsibility to the Director by thesubmission of a surety bond, or otheradequate assurance, such as a financialstatement.

(2) For EPA-administered programs,the owner or operator shall submitsuch evidence no later than one yearafter the effective date of the UIC pro-gram in the State. Where the owner-ship or operational control of the wellis transferred more than one year afterthe effective date of the UIC program,the transferee shall submit such evi-dence no later than the date specified

in the notice required pursuant to§ 144.28(l)(2).

(3) For EPA administered programsthe Regional Administrator may re-quire the owner or operator to submita revised demonstration of financial re-sponsibility if the Regional Adminis-trator has reason to believe that theoriginal demonstration is no longeradequate to cover the cost of closing,plugging and abandoning the well.

(4) For EPA administered programsthe owner or operator of a well inject-ing hazardous waste must comply withthe financial responsibility require-ments of subpart F of this part.

(5) For EPA-administered programs,an owner or operator must notify theRegional Administrator by certifiedmail of the commencement of any vol-untary or involuntary proceedingunder Title 11 (Bankruptcy) of theUnited States Code which names theowner or operator as debtor, within 10business days after the commencementof the proceeding. Any party acting asguarantor for the owner or operator forthe purpose of financial responsibilitymust so notify the Regional Adminis-trator, if the guarantor is named asdebtor in any such proceeding.

(6) In the event of commencement ofa proceeding specified in paragraph(d)(5) of this section, an owner or oper-ator who has furnished a financialstatement for the purpose of dem-onstrating financial responsibilityunder this section shall be deemed tobe in violation of this paragraph untilan alternative financial assurancedemonstration acceptable to the Re-gional Administrator is provided eitherby the owner or operator or by itstrustee in bankruptcy, receiver, orother authorized party. All partiesshall be prohibited from injecting intothe well until such alternate financialassurance is provided.

(e) Casing and cementing requirements.For enhanced recovery and hydro-carbon storage wells:

(1) The owner or operator shall caseand cement the well to prevent move-ment of fluids into or between under-ground sources of drinking water. Indetermining and specifying casing andcementing requirements, the followingfactors shall be considered:

(i) Depth to the injection zone;


536

40 CFR Ch. I (7–1–98 Edition)§ 144.28

(ii) Depth to the bottom of allUSDWs; and

(iii) Estimated maximum and aver-age injection pressures.

(2) In addition, in determining andspecifying casing and cementing re-quirements the Director may considerinformation on:

(i) Nature of formation fluids;(ii) Lithology of injection and confin-

ing zones;(iii) External pressure, internal pres-

sure, and axial loading;(iv) Hole size;(v) Size and grade of all casing

strings; and(vi) Class of cement.(3) The requirements in paragraphs

(e) (1) and (2) of this section need notapply if:

(i) Regulatory controls for casing andcementing existed at the time of drill-ing of the well and the well is in com-pliance with those controls; and

(ii) Well injection will not result inthe movement of fluids into an under-ground source of drinking water so asto create a significant risk to thehealth of persons.

(4) When a State did not have regu-latory controls for casing and cement-ing prior to the time of the submissionof the State program to the Adminis-trator, the Director need not apply thecasing and cementing requirements inparagraph (e)(1) of this section if hesubmits as a part of his application forprimacy, an appropriate plan for casingand cementing of existing, newly con-verted, and newly drilled wells in exist-ing fields, and the Administrator ap-proves the plan.

(f) Operating requirements. (1) Injec-tion between the outermost casing pro-tecting underground sources of drink-ing water and the well bore is prohib-ited.

(2) The owner or operator of a Class I,II or III injection well authorized byrule shall establish and maintain me-chanical integrity as defined in § 146.8of this chapter until the well is prop-erly plugged in accordance with an ap-proved plugging and abandonment planpursuant to §§ 144.28(c) and 146.10, and aplugging and abandonment report pur-suant to § 144.28(k) is submitted, oruntil the well is converted in compli-ance with § 144.28(j). For EPA-adminis-

tered programs, the Regional Adminis-trator may require by written noticethat the owner or operator complywith a schedule describing when me-chanical integrity demonstrationsshall be made.

(3) When the Director determinesthat a Class I (non-hazardous), II or IIIinjection well lacks mechanical integ-rity pursuant to § 146.8 of this chapter,the Director shall give written noticeof his determination to the owner oroperator. Unless the Director requiresimmediate cessation, the owner or op-erator shall cease injection into thewell within 48 hours of receipt of theDirector’s determination. The Directormay allow plugging of the well in ac-cordance with the requirements of§ 146.10 of this chapter, or require theowner or operator to perform such ad-ditional construction, operation, mon-itoring, reporting and corrective actionas is necessary to prevent the move-ment of fluid into or between USDWscaused by the lack of mechanical in-tegrity. The owner or operator may re-sume injection upon receipt of writtennotification from the Director that theowner or operator has demonstratedmechanical integrity pursuant to § 146.8of this chapter.

(4) The Director may allow the owneror operator of a well which lacks me-chanical integrity pursuant to§ 146.8(a)(1) of this chapter to continueor resume injection if the owner or op-erator has made a satisfactory dem-onstration that there is no movementof fluid into or between USDWs.

(5) For Class I wells, unless an alter-native to a packer has been approvedunder § 146.12(c) of this chapter, theowner or operator shall fill the annulusbetween the tubing and the long stringof casings with a fluid approved by theDirector and maintain a pressure, alsoapproved by the Director, on the annu-lus. For EPA administered programs,the owner or operator of a Class I wellcompleted with tubing and packer shallfill the annulus between tubing andcasing with a noncorrosive fluid andmaintain a positive pressure on the an-nulus. For other Class I wells, theowner or operator shall insure that thealternative completion method will re-liably provide a comparable level of


537


protection to underground sources ofdrinking water.

(6) Injection pressure.(i) For Class I and III wells:(A) Except during stimulation, the

owner or operator shall not exceed aninjection pressure at the wellheadwhich shall be calculated so as to as-sure that the pressure during injectiondoes not initiate new fractures or prop-agate existing fractures in the injec-tion zone; and

(B) The owner or operator shall notinject at a pressure which will initiatefractures in the confining zone or causethe movement of injection orformation fluids into an undergroundsource of drinking water.

(ii) For Class II wells:(A) The owner or operator shall not

exceed a maximum injection pressureat the wellhead which shall be cal-culated so as to assure that the pres-sure during injection does not initiatenew fractures of propagate existingfractures in the confining zone adja-cent to the USDWs; and

(B) The owner or operator shall notinject at a pressure which will causethe movement of injection or forma-tion fluids into an underground sourceof drinking water.

(g) Monitoring requirements. Theowner or operator shall perform themonitoring as described in this para-graph. For EPA administered pro-grams, monitoring of the nature of theinjected fluids shall comply with appli-cable analytical methods cited and de-scribed in table I of 40 CFR 136.3 or inappendix III of 40 CFR part 261 or byother methods that have been approvedby the Regional Administrator.

(1) The owner or operator of a Class Iwell shall:

(i) Analyze the nature of the injectedfluids with sufficient frequency toyield data representative of their char-acteristics;

(ii) Install and use continuous record-ing devices to monitor injection pres-sure, flow rate and volume, and thepressure on the annulus between thetubing and the long string of casing;

(iii) Install and use monitoring wellswithin the area of review if required bythe Director, to monitor any migrationof fluids into and pressure in the under-ground sources of drinking water. The

type, number and location of the wells,the parameters to be measured, and thefrequency of monitoring must be ap-proved by the Director.

(2) For Class II wells:(i) The owner or operator shall mon-

itor the nature of the injected fluidswith sufficient frequency to yield datarepresentative of their characteristics.For EPA administered programs, thisfrequency shall be at least once withinthe first year of the authorization andthereafter when changes are made tothe fluid.

(ii) The owner or operator shall ob-serve the injection pressure, flow rate,and cumulative volume at least withthe following frequencies:

(A) Weekly for produced fluid dis-posal operations;

(B) Monthly for enhanced recoveryoperations;

(C) Daily during the injection of liq-uid hydrocarbons and injection forwithdrawal of stored hydrocarbons; and

(D) Daily during the injection phaseof cyclic steam operations.

(iii) The owner or operator shallrecord one observation of injectionpressure, flow rate and cumulative vol-ume at reasonable intervals no greaterthan thirty days.

(iv) For enhanced recovery and hy-drocarbon storage wells:

(A) The owner or operator shall dem-onstrate mechanical integrity pursu-ant to § 146.8 of this chapter at leastonce every five years during the life ofthe injection well.

(B) For EPA administered programs,the Regional Administrator by writtennotice may require the owner or opera-tor to comply with a schedule describ-ing when such demonstrations shall bemade.

(C) For EPA administered programs,the owner or operator of any well re-quired to be tested for mechanical in-tegrity shall notify the Regional Ad-ministrator at least 30 days prior toany required mechanical integrity test.The Regional Administrator may allowa shorter notification period if it wouldbe sufficient to enable EPA to witnessthe mechanical integrity testing if itchose. Notification may be in the formof a yearly or quarterly schedule ofplanned mechanical integrity tests, orit may be on an individual basis.


538

40 CFR Ch. I (7–1–98 Edition)§ 144.28

(v) The owner or operator of a hydro-carbon storage or enhanced recoverywells may monitor them by manifoldmonitoring on a field or project basisrather than on an individual well basisif such facilities consist of more thanone injection well, operate with a com-mon manifold, and provided the owneror operator demonstrates to the Direc-tor that manifold monitoring is com-parable to individual well monitoring.

(3)(i) For Class III wells the owner oroperator shall provide to the Director aqualitative analysis and ranges in con-centrations of all constituents of in-jected fluids at least once within thefirst year of authorization and there-after whenever the injection fluid ismodified to the extent that the initialdata are incorrect or incomplete. Theowner or operator may request Federalconfidentiality as specified in 40 CFRpart 2. If the information is proprietarythe owner or operator may in lieu ofthe ranges in concentrations choose tosubmit maximum concentrationswhich shall not be exceeded. In such acase the owner or operator shall retainrecords of the undisclosed concentra-tions and provide them upon request tothe Regional Administrator as part ofany enforcement investigation; and

(ii) Monitor injection pressure and ei-ther flow rate or volume semi-monthly,or meter and record daily injected andproduced fluid volumes as appropriate;

(iii) Monitor the fluid level in the in-jection zone semi-monthly, where ap-propriate;

(iv) All Class III wells may be mon-itored on a field or project basis ratherthan an individual well basis by mani-fold monitoring. Manifold monitoringmay be used in cases of facilities con-sisting of more than one injection well,operating with a common manifold.Separate monitoring systems for eachwell are not required provided theowner or operator demonstrates to theDirector that manifold monitoring iscomparable to individual well monitor-ing.

(h) Reporting requirements. The owneror operator shall submit reports to theDirector as follows:

(1) For Class I wells, quarterly re-ports on:

(i) The physical, chemical, and otherrelevant characteristics of the injec-tion fluids;

(ii) Monthly average, maximum, andminimum values for injection pressure,flow rate and volume, and annularpressure;

(iii) The results from ground-watermonitoring wells prescribed in para-graph (g)(1)(iii) of this section;

(iv) The results of any test of the in-jection well conducted by the owner oroperator during the reported quarter ifrequired by the Director; and

(v) Any well work over performedduring the reported quarter.

(2) For Class II wells:(i) An annual report to the Director

summarizing the results of all monitor-ing, as required in paragraph (g)(2) ofthis section. Such summary shall in-clude monthly records of injectedfluids, and any major changes in char-acteristics or sources of injected fluids.Previously submitted information maybe included by reference.

(ii) The owner or operator of hydro-carbon storage and enhanced recoveryprojects may report on a field orproject basis rather than on an individ-ual well basis where manifold monitor-ing is used.

(3) For Class III wells:(i) Quarterly reporting on all mon-

itoring, as required in paragraph (g)(3)of this section;

(ii) Quarterly reporting of the resultsof any periodic tests required by theDirector that are performed during thereported quarter;

(iii) Monitoring may be reported on aproject or field basis rather than an in-dividual well basis where manifoldmonitoring is used.

(i) Retention of records. The owner oroperator shall retain records of allmonitoring information, including thefollowing:

(1) Calibration and maintenancerecords and all original strip chart re-cordings for continuous monitoring in-strumentation, and copies of all re-ports required by this section, for a pe-riod of at least three years from thedate of the sample, measurement, orreport. This period may be extended byrequest of the Director at any time;and


539


(2) The nature and composition of allinjected fluids until three years afterthe completion of any plugging andabandonment procedures specifiedunder § 144.52(l)(6). The Director mayrequire the owner or operator to de-liver the records to the Director at theconclusion of the retention period. ForEPA administered programs, the owneror operator shall continue to retain therecords after the three year retentionperiod unless he delivers the records tothe Regional Administrator or obtainswritten approval from the Regional Ad-ministrator to discard the records.

(j) Notice of abandonment. (1) Theowner or operator shall notify the Di-rector, according to a time period re-quired by the Director, before conver-sion or abandonment of the well.

(2) For EPA-administered programs,the owner or operator shall notify theRegional Administrator at least 45days before plugging and abandonment.The Regional Administrator, at his dis-cretion, may allow a shorter notice pe-riod.

(k) Plugging and abandonment report.For EPA-administered programs, with-in 60 days after plugging a well or atthe time of the next quarterly report(whichever is less) the owner or opera-tor shall submit a report to the Re-gional Administrator. If the quarterlyreport is due less than 15 days beforecompletion of plugging, then the reportshall be submitted within 60 days. Thereport shall be certified as accurate bythe person who performed the pluggingoperation. Such report shall consist ofeither:

(1) A statement that the well wasplugged in accordance with the planpreviously submitted to the RegionalAdministrator; or

(2) Where actual plugging differedfrom the plan previously submitted, anupdated version of the plan, on theform supplied by the Regional Admin-istrator, specifying the different proce-dures used.

(l) Change of ownership or operationalcontrol. For EPA-administered pro-grams:

(1) The transferor of a Class I, II orIII well authorized by rule shall notifythe Regional Administrator of a trans-fer of ownership or operational control

of the well at least 30 days in advanceof the proposed transfer.

(2) The notice shall include a writtenagreement between the transferor andthe transferee containing a specificdate for transfer of ownership or oper-ational control of the well; and a spe-cific date when the financial respon-sibility demonstration of § 144.28(d) willbe met by the transferee.

(3) The transferee is authorized to in-ject unless he receives notificationfrom the Director that the transfereehas not demonstrated financial respon-sibility pursuant to § 144.28(d).

(m) Requirements for Class I hazardouswaste wells. The owner or operator ofany Class I well injecting hazardouswaste shall comply with § 144.14(c). Inaddition, for EPA-administered pro-grams the owner or operator shallproperly dispose of, or decontaminateby removing all hazardous waste resi-dues, all injection well equipment.


Subpart D—Authorization byPermit

§ 144.31 Application for a permit; au-thorization by permit.

(a) Permit application. Unless an un-derground injection well is authorizedby rule under subpart C of this part, allinjection activities including construc-tion of an injection well are prohibiteduntil the owner or operator is author-ized by permit. An owner or operator ofa well currently authorized by rulemust apply for a permit under this sec-tion unless well authorization by rulewas for the life of the well or project.Authorization by rule for a well orproject for which a permit applicationhas been submitted terminates for thewell or project upon the effective dateof the permit. Procedures for applica-tions, issuance and administration ofemergency permits are found exclu-sively in § 144.34. A RCRA permit apply-ing the standards of part 264, subpart Cof this chapter will constitute a UICpermit for hazardous waste injectionwells for which the technical standardsin part 146 of this chapter are not gen-erally appropriate.


540

40 CFR Ch. I (7–1–98 Edition)§ 144.31

(b) Who applies? When a facility or ac-tivity is owned by one person but is op-erated by another person, it is the op-erator’s duty to obtain a permit.

(c) Time to apply. Any person who per-forms or proposes an underground in-jection for which a permit is or will berequired shall submit an application tothe Director in accordance with theUIC program as follows:

(1) For existing wells, as expedi-tiously as practicable and in accord-ance with the schedule in any programdescription under § 145.23(f) or (for EPAadministered programs) on a scheduleestablished by the Regional Adminis-trator, but no later than 4 years fromthe approval or promulgation of theUIC program, or as required under§ 144.14(b) for wells injecting hazardouswaste. For EPA administered programsthe owner or operator of Class I or IIIwells shall submit a complete permitapplication no later than 1 year afterthe effective date of the program.

(2) For new injection wells, exceptnew wells in projects authorized under§ 144.21(d) or authorized by an existingarea permit under § 144.33(c), a reason-able time before construction is ex-pected to begin.

(d) Completeness. The Director shallnot issue a permit before receiving acomplete application for a permit ex-cept for emergency permits. An appli-cation for a permit is complete whenthe Director receives an applicationform and any supplemental informa-tion which are completed to his or hersatisfaction. The completeness of anyapplication for a permit shall be judgedindependently of the status of anyother permit application or permit forthe same facility or activity. For EPA-administered programs, an applicationwhich is reviewed under § 124.3 is com-plete when the Director receives eithera complete application or the informa-tion listed in a notice of deficiency.

(e) Information requirements. All appli-cants for permits shall provide the fol-lowing information to the Director,using the application form provided bythe Director.

(1) The activities conducted by theapplicant which require it to obtainpermits under RCRA, UIC, the Na-tional Pollution Discharge Eliminationsystem (NPDES) program under the

Clean Water Act, or the Prevention ofSignificant Deterioration (PSD) pro-gram under the Clean Air Act.

(2) Name, mailing address, and loca-tion of the facility for which the appli-cation is submitted.

(3) Up to four SIC codes which bestreflect the principal products or serv-ices provided by the facility.

(4) The operator’s name, address,telephone number, ownership status,and status as Federal, State, private,public, or other entity.

(5) Whether the facility is located onIndian lands.

(6) A listing of all permits or con-struction approvals received or appliedfor under any of the following pro-grams:

(i) Hazardous Waste Managementprogram under RCRA.

(ii) UIC program under SDWA.(iii) NPDES program under CWA.(iv) Prevention of Significant Dete-

rioration (PSD) program under theClean Air Act.

(v) Nonattainment program underthe Clean Air Act.

(vi) National Emission Standards forHazardous Pollutants (NESHAPS)preconstruction approval under theClean Air Act.

(vii) Ocean dumping permits underthe Marine Protection Research andSanctuaries Act.

(viii) Dredge and fill permits undersection 404 of CWA.

(ix) Other relevant environmentalpermits, including State permits.

(7) A topographic map (or other mapif a topographic map is unavailable) ex-tending one mile beyond the propertyboundaries of the source depicting thefacility and each of its intake and dis-charge structures; each of its hazard-ous waste treatment, storage, or dis-posal facilities; each well where fluidsfrom the facility are injected under-ground; and those wells, springs, andother surface water bodies, and drink-ing water wells listed in public recordsor otherwise known to the applicantwithin a quarter mile of the facilityproperty boundary.

(8) A brief description of the natureof the business.

(9) For EPA-administered programs,the applicant shall identify and submiton a list with the permit application


541


the names and addresses of all ownersof record of land within one-quartermile of the facility boundary. Thisrequirement may be waived by theRegional Administrator where the siteis located in a populous area and theRegional Administrator determinesthat the requirement would be imprac-ticable.

(10) A plugging and abandonmentplan that meets the requirements of§ 146.10 of this chapter and is acceptableto the Director.

(f) Recordkeeping. Applicants shallkeep records of all data used to com-plete permit applications and any sup-plemental information submittedunder § 144.31 for a period of at least 3years from the date the application issigned.

(g) Information Requirements for ClassI Hazardous Waste Injection Wells Per-mits. (1) The following information isrequired for each active Class I hazard-ous waste injection well at a facilityseeking a UIC permit:

(i) Dates well was operated.(ii) Specification of all wastes which

have been injected in the well, if avail-able.

(2) The owner or operator of any fa-cility containing one or more activehazardous waste injection wells mustsubmit all available information per-taining to any release of hazardouswaste or constituents from any activehazardous waste injection well at thefacility.

(3) The owner or operator of any fa-cility containing one or more activeClass I hazardous waste injection wellsmust conduct such preliminary site in-vestigations as are necessary to deter-mine whether a release is occurring,has occurred, or is likely to have oc-curred.

[48 FR 14189, Apr. 1, 1983, as amended at 49FR 20185, May 11, 1984; 52 FR 45797, Dec. 1,1987; 52 FR 46963, Dec. 10, 1987; 58 FR 63897,Dec. 3, 1993]

§ 144.32 Signatories to permit applica-tions and reports.

(a) Applications. All permit applica-tions, except those submitted for ClassII wells (see paragraph (b) of this sec-tion), shall be signed as follows:

(1) For a corporation: by a responsiblecorporate officer. For the purpose of

this section, a responsible corporate of-ficer means; (i) A president, secretary,treasurer, or vice president of the cor-poration in charge of a principal busi-ness function, or any other person whoperforms similar policy- or decision-making functions for the corporation,or (ii) the manager of one or more man-ufacturing, production, or operating fa-cilities employing more than 250 per-sons or having gross annual sales or ex-penditures exceeding $25 million (insecond-quarter 1980 dollars), if author-ity to sign documents has been as-signed or delegated to the manager inaccordance with corporate procedures.

NOTE: EPA does not require specific assign-ments or delegations of authority to respon-sible corporate officers identified in§ 144.32(a)(1)(i). The Agency will presume thatthese responsible corporate officers have therequisite authority to sign permit applica-tions unless the corporation has notified theDirector to the contrary. Corporate proce-dures governing authority to sign permit ap-plications may provide for assignment ordelegation to applicable corporate positionsunder § 144.32(a)(1)(ii) rather than to specificindividuals.

(2) For a partnership or sole proprietor-ship: by a general partner or the propri-etor, respectively; or

(3) For a municipality, State, Federal,or other public agency: by either a prin-cipal executive officer or ranking elect-ed official. For purposes of this section,a principal executive officer of a Fed-eral agency includes: (i) The chief exec-utive officer of the agency, or (ii) asenior executive officer having respon-sibility for the overall operations of aprincipal geographic unit of the agency(e.g., Regional Administrators of EPA).

(b) Reports. All reports required bypermits, other information requestedby the Director, and all permit applica-tions submitted for Class II wells under§ 144.31 shall be signed by a person de-scribed in paragraph (a) of this section,or by a duly authorized representativeof that person. A person is a duly au-thorized representative only if:

(1) The authorization is made in writ-ing by a person described in paragraph(a) of this section;

(2) The authorization specifies eitheran individual or a position having re-sponsibility for the overall operation ofthe regulated facility or activity, such


542

40 CFR Ch. I (7–1–98 Edition)§ 144.33

as the position of plant manager, oper-ator of a well or a well field, super-intendent, or position of equivalent re-sponsibility. (A duly authorized rep-resentative may thus be either anamed individual or any individual oc-cupying a named position); and

(3) The written authorization is sub-mitted to the Director.

(c) Changes to authorization. If an au-thorization under paragraph (b) of thissection is no longer accurate because adifferent individual or position has re-sponsibility for the overall operation ofthe facility, a new authorization satis-fying the requirements of paragraph (b)of this section must be submitted tothe Director prior to or together withany reports, information, or applica-tions to be signed by an authorized rep-resentative.

(d) Certification. Any person signing adocument under paragraph (a) or (b) ofthis section shall make the followingcertification:

I certify under penalty of law that thisdocument and all attachments were preparedunder my direction or supervision in accord-ance with a system designed to assure thatqualified personnel properly gather andevaluate the information submitted. Basedon my inquiry of the person or persons whomanage the system, or those persons directlyresponsible for gathering the information,the information submitted is, to the best ofmy knowledge and belief, true, accurate, andcomplete. I am aware that there are signifi-cant penalties for submitting false informa-tion, including the possibility of fine and im-prisonment for knowing violations.

(Clean Water Act (33 U.S.C. 1251 et seq.), SafeDrinking Water Act (42 U.S.C. 300f et seq.),Clean Air Act (42 U.S.C. 7401 et seq.),Resource Conservation and Recovery Act (42U.S.C. 6901 et seq.))

[48 FR 14189, Apr. 1, 1983, as amended at 48FR 39621, Sept. 1, 1983]

§ 144.33 Area permits.

(a) The Director may issue a permiton an area basis, rather than for eachwell individually, provided that thepermit is for injection wells:

(1) Described and identified by loca-tion in permit application(s) if they areexisting wells, except that the Directormay accept a single description ofwells with substantially the same char-acteristics;

(2) Within the same well field, facil-ity site, reservoir, project, or similarunit in the same State;

(3) Operated by a single owner or op-erator; and

(4) Used to inject other than hazard-ous waste.

(b) Area permits shall specify:(1) The area within which under-

ground injections are authorized, and(2) The requirements for construc-

tion, monitoring, reporting, operation,and abandonment, for all wells author-ized by the permit.

(c) The area permit may authorizethe permittee to construct and operate,convert, or plug and abandon wellswithin the permit area provided:

(1) The permittee notifies the Direc-tor at such time as the permit requires;

(2) The additional well satisfies thecriteria in paragraph (a) of this sectionand meets the requirements specifiedin the permit under paragraph (b) ofthis section; and

(3) The cumulative effects of drillingand operation of additional injectionwells are considered by the Directorduring evaluation of the area permitapplication and are acceptable to theDirector.

(d) If the Director determines thatany well constructed pursuant to para-graph (c) of this section does not sat-isfy any of the requirements of para-graphs (c) (1) and (2) of this section theDirector may modify the permit under§ 144.39, terminate under § 144.40, ortake enforcement action. If the Direc-tor determines that cumulative effectsare unacceptable, the permit may bemodified under § 144.39.

§ 144.34 Emergency permits.(a) Coverage. Notwithstanding any

other provision of this part or part 124,the Director may temporarily permit aspecific underground injection if:

(1) An imminent and substantialendangerment to the health of personswill result unless a temporary emer-gency permit is granted; or

(2) A substantial and irretrievableloss of oil or gas resources will occurunless a temporary emergency permitis granted to a Class II well; and

(i) Timely application for a permitcould not practicably have been made;and


543


(ii) The injection will not result inthe movement of fluids into under-ground sources of drinking water; or

(3) A substantial delay in productionof oil or gas resources will occur unlessa temporary emergency permit isgranted to a new Class II well and thetemporary authorization will not re-sult in the movement of fluids into anunderground source of drinking water.

(b) Requirements for issuance. (1) Anytemporary permit under paragraph(a)(1) of this section shall be for nolonger term than required to preventthe hazard.

(2) Any temporary permit underparagraph (a)(2) of this section shall befor no longer than 90 days, except thatif a permit application has been sub-mitted prior to the expiration of the 90-day period, the Director may extendthe temporary permit until final actionon the application.

(3) Any temporary permit underparagraph (a)(3) of this section shall beissued only after a complete permit ap-plication has been submitted and shallbe effective until final action on theapplication.

(4) Notice of any temporary permitunder this paragraph shall be publishedin accordance with § 124.11 within 10days of the issuance of the permit.

(5) The temporary permit under thissection may be either oral or written.If oral, it must be followed within 5calendar days by a written temporaryemergency permit.

(6) The Director shall condition thetemporary permit in any manner he orshe determines is necessary to ensurethat the injection will not result in themovement of fluids into an under-ground source of drinking water.

[48 FR 14189, Apr. 1, 1983, as amended at 49FR 20185, May 11, 1984]

§ 144.35 Effect of a permit.(a) Except for Class II and III wells,

compliance with a permit during itsterm constitutes compliance, for pur-poses of enforcement, with Part C ofthe SDWA. However, a permit may bemodified, revoked and reissued, or ter-minated during its term for cause asset forth in §§ 144.39 and 144.40.

(b) The issuance of a permit does notconvey any property rights of any sort,or any exclusive privilege.

(c) The issuance of a permit does notauthorize any injury to persons orproperty or invasion of other privaterights, or any infringement of State orlocal law or regulations.

§ 144.36 Duration of permits.

(a) Permits for Class I and Class Vwells shall be effective for a fixed termnot to exceed 10 years. UIC permits forClass II and III wells shall be issued fora period up to the operating life of thefacility. The Director shall review eachissued Class II or III well UIC permit atleast once every 5 years to determinewhether it should be modified, revokedand reissued, terminated, or a minormodification made as provided in§§ 144.39, 144.40, and 144.41.

(b) Except as provided in § 144.37, theterm of a permit shall not be extendedby modification beyond the maximumduration specified in this section.

(c) The Director may issue any per-mit for a duration that is less than thefull allowable term under this section.

§ 144.37 Continuation of expiring per-mits.

(a) EPA permits. When EPA is the per-mit-issuing authority, the conditionsof an expired permit continue in forceunder 5 U.S.C. 558(c) until the effectivedate of a new permit if:

(1) The permittee has submitted atimely application which is a completeapplication for a new permit; and

(2) The Regional Administrator,through no fault of the permittee doesnot issue a new permit with an effec-tive date on or before the expirationdate of the previous permit (for exam-ple, when issuance is impracticable dueto time or resource constraints).

(b) Effect. Permits continued underthis section remain fully effective andenforceable.

(c) Enforcement. When the permitteeis not in compliance with the condi-tions of the expiring or expired permitthe Regional Administrator maychoose to do any or all of the following:

(1) Initiate enforcement action basedupon the permit which has been contin-ued;

(2) Issue a notice of intent to denythe new permit. If the permit is denied,the owner or operator would then be


544

40 CFR Ch. I (7–1–98 Edition)§ 144.38

required to cease the activities author-ized by the continued permit or be sub-ject to enforcement action for operat-ing without a permit;

(3) Issue a new permit under part 124with appropriate conditions; or

(4) Take other actions authorized bythese regulations.

(d) State continuation. An EPA issuedpermit does not continue in force be-yond its time expiration date underFederal law if at that time a State isthe permitting authority. A State au-thorized to administer the UIC pro-gram may continue either EPA orState-issued permits until the effectivedate of the new permits, if State lawallows. Otherwise, the facility or activ-ity is operating without a permit fromthe time of expiration of the old permitto the effective date of the State-issuednew permit.

§ 144.38 Transfer of permits.(a) Transfers by modification. Except

as provided in paragraph (b) of this sec-tion, a permit may be transferred bythe permittee to a new owner or opera-tor only if the permit has been modi-fied or revoked and reissued (under§ 144.39(b)(2)), or a minor modificationmade (under § 144.41(d)), to identify thenew permittee and incorporate suchother requirements as may be nec-essary under the Safe Drinking WaterAct.

(b) Automatic transfers. As an alter-native to transfers under paragraph (a)of this section, any UIC permit for awell not injecting hazardous waste maybe automatically transferred to a newpermittee if:

(1) The current permittee notifies theDirector at least 30 days in advance ofthe proposed transfer date referred toin paragraph (b)(2) of this section;

(2) The notice includes a writtenagreement between the existing andnew permittees containing a specificdate for transfer or permit responsibil-ity, coverage, and liability betweenthem, and the notice demonstratesthat the financial responsibility re-quirements of § 144.52(a)(7) will be metby the new permittee; and

(3) The Director does not notify theexisting permittee and the proposednew permittee of his or her intent tomodify or revoke and reissue the per-

mit. A modification under this para-graph may also be a minor modifica-tion under § 144.41. If this notice is notreceived, the transfer is effective onthe date specified in the agreementmentioned in paragraph (b)(2) of thissection.

§ 144.39 Modification or revocationand reisssuance of permits.

When the Director receives any infor-mation (for example, inspects the facil-ity, receives information submitted bythe permittee as required in the permit(see § 144.51 of this chapter), receives arequest for modification or revocationand reissuance under § 124.5, or con-ducts a review of the permit file) he orshe may determine whether or not oneor more of the causes listed in para-graphs (a) and (b) of this section formodification or revocation andreissuance or both exist. If cause ex-ists, the Director may modify or re-voke and reissue the permit accord-ingly, subject to the limitations ofparagraph (c) of this section, and mayrequest an updated application if nec-essary. When a permit is modified, onlythe conditions subject to modificationare reopened. If a permit is revokedand reissued, the entire permit is re-opened and subject to revision and thepermit is reissued for a new term. See§ 124.5(c)(2) of this chapter. If causedoes not exist under this section or§ 144.41 of this chapter, the Directorshall not modify or revoke and reissuethe permit. If a permit modificationsatisfies the criteria in § 144.41 for‘‘minor modifications’’ the permit maybe modified without a draft permit orpublic review. Otherwise, a draft per-mit must be prepared and other proce-dures in part 124 must be followed.

(a) Causes for modification. The follow-ing are causes for modification. ForClass I hazardous waste injection wells,Class II, or Class III wells the followingmay be causes for revocation andreissuance as well as modification; andfor all other wells the following may because for revocation or reissuance aswell as modification when the permit-tee requests or agrees.

(1) Alterations. There are material andsubstantial alterations or additions tothe permitted facility or activitywhich occurred after permit issuance


545


which justify the application of permitconditions that are different or absentin the existing permit.

(2) Information. The Director has re-ceived information. Permits other thanfor Class II and III wells may be modi-fied during their terms for this causeonly if the information was not avail-able at the time of permit issuance(other than revised regulations, guid-ance, or test methods) and would havejustified the application of differentpermit conditions at the time ofissuance. For UIC area permits(§ 144.33), this cause shall include anyinformation indicating that cumu-lative effects on the environment areunacceptable.

(3) New regulations. The standards orregulations on which the permit wasbased have been changed by promulga-tion of new or amended standards orregulations or by judicial decisionafter the permit was issued. Permitsother than for Class I hazardous wasteinjection wells, Class II, or Class IIIwells may be modified during theirterms for this cause only as follows:

(i) For promulgation of amendedstandards or regulations, when:

(A) The permit condition requestedto be modified was based on a promul-gated part 146 regulation; and

(B) EPA has revised, withdrawn, ormodified that portion of the regulationon which the permit condition wasbased, and

(C) A permittee requests modifica-tion in accordance with § 124.5 withinninety (90) days after FEDERAL REG-ISTER notice of the action on which therequest is based.

(ii) For judicial decisions, a court ofcompetent jurisdiction has remandedand stayed EPA promulgated regula-tions if the remand and stay concernthat portion of the regulations onwhich the permit condition was basedand a request is filed by the permitteein accordance with § 124.5 within ninety(90) days of judicial remand.

(4) Compliance schedules. The Directordetermines good cause exists for modi-fication of a compliance schedule, suchas an act of God, strike, flood, or mate-rials shortage or other events overwhich the permittee has little or nocontrol and for which there is no rea-

sonably available remedy. See also§ 144.41(c) (minor modifications).

(b) Causes for modification or revoca-tion and reissuance. The following arecauses to modify or, alternatively, re-voke and reissue a permit:

(1) Cause exists for terminationunder § 144.40, and the Director deter-mines that modification or revocationand reissuance is appropriate.

(2) The Director has received notifi-cation (as required in the permit, see§ 144.41(d)) of a proposed transfer of thepermit. A permit also may be modifiedto reflect a transfer after the effectivedate of an automatic transfer(§ 144.38(b)) but will not be revoked andreissued after the effective date of thetransfer except upon the request of thenew permittee.

(3) A determination that the wastebeing injected is a hazardous waste asdefined in § 261.3 either because the def-inition has been revised, or because aprevious determination has beenchanged.

(c) Facility siting. Suitability of thefacility location will not be consideredat the time of permit modification orrevocation and reissuance unless newinformation or standards indicate thata threat to human health or the envi-ronment exists which was unknown atthe time of permit issuance.

[48 FR 14189, Apr. 1, 1983, as amended at 53FR 28147, July 26, 1988]

§ 144.40 Termination of permits.(a) The Director may terminate a

permit during its term, or deny a per-mit renewal application for the follow-ing causes:

(1) Noncompliance by the permitteewith any condition of the permit;

(2) The permittee’s failure in the ap-plication or during the permit issuanceprocess to disclose fully all relevantfacts, or the permittee’s misrepresenta-tion of any relevant facts at any time;or

(3) A determination that the per-mitted activity endangers humanhealth or the environment and canonly be regulated to acceptable levelsby permit modification or termination;

(b) The Director shall follow theapplicable procedures in part 124 interminating any permit under this sec-tion.


546

40 CFR Ch. I (7–1–98 Edition)§ 144.41

§ 144.41 Minor modifications of per-mits.

Upon the consent of the permittee,the Director may modify a permit tomake the corrections or allowances forchanges in the permitted activity list-ed in this section, without followingthe procedures of part 124. Any permitmodification not processed as a minormodification under this section mustbe made for cause and with part 124draft permit and public notice as re-quired in § 144.39. Minor modificationsmay only:

(a) Correct typographical errors;(b) Require more frequent monitoring

or reporting by the permittee;(c) Change an interim compliance

date in a schedule of compliance, pro-vided the new date is not more than 120days after the date specified in the ex-isting permit and does not interferewith attainment of the final compli-ance date requirement; or

(d) Allow for a change in ownershipor operational control of a facilitywhere the Director determines that noother change in the permit is nec-essary, provided that a written agree-ment containing a specific date fortransfer of permit responsibility, cov-erage, and liability between the cur-rent and new permittees has been sub-mitted to the Director.

(e) Change quantities or types offluids injected which are within the ca-pacity of the facility as permitted and,in the judgment of the Director, wouldnot interfere with the operation of thefacility or its ability to meet condi-tions described in the permit and wouldnot change its classification.

(f) Change construction requirementsapproved by the Director pursuant to§ 144.52(a)(1) (establishing UIC permitconditions), provided that any such al-teration shall comply with the require-ments of this part and part 146.

(g) Amend a plugging and abandon-ment plan which has been updatedunder § 144.52(a)(6).

Subpart E—Permit Conditions§ 144.51 Conditions applicable to all

permits.The following conditions apply to all

UIC permits. All conditions applicableto all permits shall be incorporated

into the permits either expressly or byreference. If incorporated by reference,a specific citation to these regulations(or the corresponding approved Stateregulations) must be given in the per-mit.

(a) Duty to comply. The permitteemust comply with all conditions of thispermit. Any permit noncomplianceconstitutes a violation of the SafeDrinking Water Act and is grounds forenforcement action; for permit termi-nation, revocation and reissuance, ormodification; or for denial of a permitrenewal application; except that thepermittee need not comply with theprovisions of this permit to the extentand for the duration such noncompli-ance is authorized in an emergencypermit under § 144.34.

(b) Duty to reapply. If the permitteewishes to continue an activity regu-lated by this permit after the expira-tion date of this permit, the permitteemust apply for and obtain a newpermit.

(c) Need to halt or reduce activity not adefense. It shall not be a defense for apermittee in an enforcement actionthat it would have been necessary tohalt or reduce the permitted activityin order to maintain compliance withthe conditions of this permit.

(d) Duty to mitigate. The permitteeshall take all reasonable steps to mini-mize or correct any adverse impact onthe environment resulting from non-compliance with this permit.

(e) Proper operation and maintenance.The permittee shall at all times prop-erly operate and maintain all facilitiesand systems of treatment and control(and related appurtenances) which areinstalled or used by the permittee toachieve compliance with the conditionsof this permit. Proper operation andmaintenance includes effective per-formance, adequate funding, adequateoperator staffing and training, and ade-quate laboratory and process controls,including appropriate quality assur-ance procedures. This provision re-quires the operation of back-up or aux-iliary facilities or similar systems onlywhen necessary to achieve compliancewith the conditions of the permit.


547


(f) Permit actions. This permit may bemodified, revoked and reissued, or ter-minated for cause. The filing of a re-quest by the permittee for a permitmodification, revocation and reissu-ance, or termination, or a notificationof planned changes or anticipated non-compliance, does not stay any permitcondition.

(g) Property rights. This permit doesnot convey any property rights of anysort, or any exclusive privilege.

(h) Duty to provide information. Thepermittee shall furnish to the Director,within a time specified, any informa-tion which the Director may request todetermine whether cause exists formodifying, revoking and reissuing, orterminating this permit, or to deter-mine compliance with this permit. Thepermittee shall also furnish to the Di-rector, upon request, copies of recordsrequired to be kept by this permit.

(i) Inspection and entry. The permit-tee shall allow the Director, or an au-thorized representative, upon the pres-entation of credentials and other docu-ments as may be required by law, to:

(1) Enter upon the permittee’s prem-ises where a regulated facility or activ-ity is located or conducted, or whererecords must be kept under the condi-tions of this permit;

(2) Have access to and copy, at rea-sonable times, any records that mustbe kept under the conditions of thispermit;

(3) Inspect at reasonable times anyfacilities, equipment (including mon-itoring and control equipment), prac-tices, or operations regulated or re-quired under this permit; and

(4) Sample or monitor at reasonabletimes, for the purposes of assuring per-mit compliance or as otherwise author-ized by the SDWA, any substances orparameters at any location.

(j) Monitoring and records. (1) Samplesand measurements taken for the pur-pose of monitoring shall be representa-tive of the monitored activity.

(2) The permittee shall retain recordsof all monitoring information, includ-ing the following:

(i) Calibration and maintenancerecords and all original strip chart re-cordings for continuous monitoring in-strumentation, copies of all reports re-quired by this permit, and records of

all data used to complete the applica-tion for this permit, for a period of atleast 3 years from the date of the sam-ple, measurement, report, or applica-tion. This period may be extended byrequest of the Director at any time;and

(ii) The nature and composition of allinjected fluids until three years afterthe completion of any plugging andabandonment procedures specifiedunder § 144.52(a)(6), or under part 146subpart G as appropriate. The Directormay require the owner or operator todeliver the records to the Director atthe conclusion of the retention period.For EPA administered programs, theowner or operator shall continue to re-tain the records after the three year re-tention period unless he delivers therecords to the Regional Administratoror obtains written approval from theRegional Administrator to discard therecords.

(3) Records of monitoring informa-tion shall include:

(i) The date, exact place, and time ofsampling or measurements;

(ii) The individual(s) who performedthe sampling or measurements;

(iii) The date(s) analyses were per-formed;

(iv) The individual(s) who performedthe analyses;

(v) The analytical techniques ormethods used; and

(vi) The results of such analyses.(k) Signatory requirement. All applica-

tions, reports, or information submit-ted to the Administrator shall besigned and certified. (See § 144.32.)

(l) Reporting requirements. (1) Plannedchanges. The permittee shall give no-tice to the Director as soon as possibleof any planned physical alterations oradditions to the permitted facility.

(2) Anticipated noncompliance. Thepermittee shall give advance notice tothe Director of any planned changes inthe permitted facility or activitywhich may result in noncompliancewith permit requirements.

(3) Transfers. This permit is nottransferable to any person except afternotice to the Director. The Directormay require modification or revocationand reissuance of the permit to changethe name of the permittee and incor-porate such other requirements as may


548

40 CFR Ch. I (7–1–98 Edition)§ 144.51

be necessary under the Safe DrinkingWater Act. (See § 144.38; in some cases,modification or revocation andreissuance is mandatory.)

(4) Monitoring reports. Monitoring re-sults shall be reported at the intervalsspecified elsewhere in this permit.

(5) Compliance schedules. Reports ofcompliance or noncompliance with, orany progress reports on, interim andfinal requirements contained in anycompliance schedule of this permitshall be submitted no later than 30days following each schedule date.

(6) Twenty-four hour reporting. Thepermittee shall report any noncompli-ance which may endanger health or theenvironment, including:

(i) Any monitoring or other informa-tion which indicates that any contami-nant may cause an endangerment to aUSDW; or

(ii) Any noncompliance with a permitcondition or malfunction of the injec-tion system which may cause fluid mi-gration into or between USDWs.

Any information shall be provided oral-ly within 24 hours from the time thepermittee becomes aware of the cir-cumstances. A written submissionshall also be provided within 5 days ofthe time the permittee becomes awareof the circumstances. The written sub-mission shall contain a description ofthe noncompliance and its cause, theperiod of noncompliance, includingexact dates and times, and if the non-compliance has not been corrected, theanticipated time it is expected to con-tinue; and steps taken or planned to re-duce, eliminate, and prevent reoccur-rence of the noncompliance.

(7) Other noncompliance. The permit-tee shall report all instances of non-compliance not reported under para-graphs (l) (4), (5), and (6) of this section,at the time monitoring reports are sub-mitted. The reports shall contain theinformation listed in paragraph (l)(6) ofthis section.

(8) Other information. Where the per-mittee becomes aware that it failed tosubmit any relevant facts in a permitapplication, or submitted incorrect in-formation in a permit application or inany report to the Director, it shallpromptly submit such facts or informa-tion.

(m) Requirements prior to commencinginjection. Except for all new wells au-thorized by an area permit under§ 144.33(c), a new injection well may notcommence injection until constructionis complete, and

(1) The permittee has submitted no-tice of completion of construction tothe Director; and

(2)(i) The Director has inspected orotherwise reviewed the new injectionwell and finds it is in compliance withthe conditions of the permit; or

(ii) The permittee has not receivednotice form the Director of his or herintent to inspect or otherwise reviewthe new injection well within 13 days ofthe date of the notice in paragraph(m)(1) of this section, in which caseprior inspection or review is waivedand the permittee may commence in-jection. The Director shall include inhis notice a reasonable time period inwhich he shall inspect the well.

(n) The permittee shall notify the Di-rector at such times as the permit re-quires before conversion or abandon-ment of the well or in the case of areapermits before closure of the project.

(o) A Class I, II or III permit shall in-clude and a Class V permit may in-clude, conditions which meet the appli-cable requirements of § 146.10 of thischapter to insure that plugging andabandonment of the well will not allowthe movement of fluids into or betweenUSDWs. Where the plan meets the re-quirements of § 146.10 of this chapter,the Director shall incorporate it intothe permit as a permit condition.Where the Director’s review of an ap-plication indicates that the permittee’splan is inadequate, the Director mayrequire the applicant to revise theplan, prescribe conditions meeting therequirements of this paragraph, ordeny the permit. For purposes of thisparagraph, temporary or intermittentcessation of injection operations is notabandonment.

(p) Plugging and abandonment report.For EPA-administered programs, with-in 60 days after plugging a well or atthe time of the next quarterly report(whichever is less) the owner or opera-tor shall submit a report to the Re-gional Administrator. If the quarterlyreport is due less than 15 days beforecompletion of plugging, then the report


549


shall be submitted within 60 days. Thereport shall be certified as accurate bythe person who performed the pluggingoperation. Such report shall consist ofeither:

(1) A statement that the well wasplugged in accordance with the planpreviously submitted to the RegionalAdministrator; or

(2) Where actual plugging differedfrom the plan previously submitted,and updated version of the plan on theform supplied by the regional adminis-trator, specifying the differences.

(q) Duty to establish and maintain me-chanical integrity. (1) The owner or op-erator of a Class I, II or III well per-mitted under this part shall establishprior to commencing injection or on aschedule determined by the Director,and thereafter maintain mechanical in-tegrity as defined in § 146.8 of this chap-ter. For EPA-administered programs,the Regional Administrator may re-quire by written notice that the owneror operator comply with a schedule de-scribing when mechanical integritydemonstrations shall be made.

(2) When the Director determinesthat a Class I, II, or III well lacks me-chanical integrity pursuant to § 146.8 ofthis chapter, he shall give written no-tice of his determination to the owneror operator. Unless the Director re-quires immediate cessation, the owneror operator shall cease injection intothe well within 48 hours of receipt ofthe Director’s determination. The Di-rector may allow plugging of the wellpursuant to the requirements of § 146.10of this chapter or require the permitteeto perform such additional construc-tion, operation, monitoring, reportingand corrective action as is necessary toprevent the movement of fluid into orbetween USDWs caused by the lack ofmechanical integrity. The owner or op-erator may resume injection upon writ-ten notification from the Director thatthe owner or operator has dem-onstrated mechanical integrity pursu-ant to § 146.8 of this chapter.

(3) The Director may allow the owneror operator of a well which lacks me-chanical integrity pursuant to§ 146.8(a)(1) of this chapter to continueor resume injection, if the owner or op-erator has made a satisfactory dem-

onstration that there is no movementof fluid into or between USDWs.

[48 FR 14189, Apr. 1, 1983, as amended at 49FR 20185, May 11, 1984; 53 FR 28147, July 26,1988; 58 FR 63898, Dec. 3, 1993]

§ 144.52 Establishing permit condi-tions.

(a) In addition to conditions requiredin § 144.51, the Director shall establishconditions, as required on a case-by-case basis under § 144.36 (duration ofpermits), § 144.53(a) (schedules of com-pliance), §144.54 (monitoring), and forEPA permits only § 144.53(b) (alternateschedules of compliance), and § 144.4(considerations under Federal law).Permits for owners or operators of haz-ardous waste injection wells shall in-clude conditions meeting the require-ments of § 144.14 (requirements for wellsinjecting hazardous waste), § 144.52(a)(7) and (a)(9), and subpart G of part146. Permits for other wells shall con-tain the following requirements, whenapplicable.

(1) Construction requirements as setforth in part 146. Existing wells shallachieve compliance with such require-ments according to a complianceschedule established as a permit condi-tion. The owner or operator of a pro-posed new injection well shall submitplans for testing, drilling, and con-struction as part of the permit applica-tion. Except as authorized by an areapermit, no constuction may commenceuntil a permit has been issued contain-ing construction requirements (see§ 144.11). New wells shall be in compli-ance with these requirements prior tocommencing injection operations.Changes in construction plans duringconstruction may be approved by theAdministrator as minor modifications(§ 144.41). No such changes may be phys-ically incorporated into constructionof the well prior to approval of themodification by the Director.

(2) Corrective action as set forth in§§ 144.55 and 146.7

(3) Operation requirements as set forthin 40 CFR part 146; the permit shall es-tablish any maximum injection vol-umes and/or pressures necessary to as-sure that fractures are not initiated inthe confining zone, that injected fluidsdo not migrate into any underground


550

40 CFR Ch. I (7–1–98 Edition)§ 144.52

source of drinking water, that forma-tion fluids are not displaced into anyunderground source of drinking water,and to assure compliance with the part146 operating requirements.

(4) Requirements for wells managinghazardous waste, as set forth in § 144.14.

(5) Monitoring and reporting require-ments as set forth in 40 CFR part 146.The permittee shall be required toidentify types of tests and methodsused to generate the monitoring data.For EPA administered programs, mon-itoring of the nature of injected fluidsshall comply with applicable analyticalmethods cited and described in table Iof 40 CFR 136.3 or in appendix III of 40CFR part 261 or in certain cir-cumstances by other methods thathave been approved by the RegionalAdministrator.

(6) After a cessation of operations oftwo years the owner or operator shallplug and abandon the well in accord-ance with the plan unless he:

(i) Provides notice to the RegionalAdministrator;

(ii) Describes actions or procedures,satisfactory to the Regional Adminis-trator, that the owner or operator willtake to ensure that the well will notendanger USDWs during the period oftemporary abandonment. These actionsand procedures shall include compli-ance with the technical requirementsapplicable to active injection wells un-less waived by the Regional Adminis-trator.

(7) Financial responsibility. (i) The per-mittee, including the transferor of apermit, is required to demonstrate andmaintain financial responsibility andresources to close, plug, and abandonthe underground injection operation ina manner prescribed by the Directoruntil:

(A) The well has been plugged andabandoned in accordance with an ap-proved plugging and abandonment planpursuant to §§ 144.51(o) and 146.10 of thischapter, and submitted a plugging andabandonment report pursuant to§ 144.51(p); or

(B) The well has been converted incompliance with the requirements of§ 144.51(n); or

(C) The transferor of a permit has re-ceived notice from the Director thatthe owner or operator receiving trans-

fer of the permit, the new permittee,has demonstrated financial responsibil-ity for the well.

(ii) The permittee shall show evi-dence of such financial responsibilityto the Director by the submission of asurety bond, or other adequate assur-ance, such as a financial statement orother materials acceptable to the Di-rector. For EPA administered pro-grams, the Regional Administratormay on a periodic basis require theholder of a lifetime permit to submitan estimate of the resources needed toplug and abandon the well revised toreflect inflation of such costs, and a re-vised demonstration of financial re-sponsibility, if necessary. The owner oroperator of a well injecting hazardouswaste must comply with the financialresponsibility requirements of subpartF of this part.

(8) Mechanical integrity. A permit forany Class I, II or III well or injectionproject which lacks mechanical integ-rity shall include, and for any Class Vwell may include, a condition prohibit-ing injection operations until the per-mittee shows to the satisfaction of theDirector under § 146.08 that the well hasmechanical integrity.

(9) Additional conditions. The Directorshall impose on a case-by-case basissuch additional conditions as are nec-essary to prevent the migration offluids into underground sources ofdrinking water.

(b)(1) In addition to conditions re-quired in all permits the Director shallestablish conditions in permits as re-quired on a case-by-case basis, to pro-vide for and assure compliance with allapplicable requirements of the SDWAand parts 144, 145, 146 and 124.

(2) For a State issued permit, an ap-plicable requirement is a State statu-tory or regulatory requirement whichtakes effect prior to final administra-tive disposition of the permit. For apermit issued by EPA, an applicable re-quirement is a statutory or regulatoryrequirement (including any interimfinal regulation) which takes effectprior to the issuance of the permit (ex-cept as provided in § 124.86(c) for UICpermits being processed under subpartE or F of part 124). Section 124.14 (re-opening of comment period) provides a


551


means for reopening EPA permit pro-ceedings at the discretion of the Direc-tor where new requirements become ef-fective during the permitting processand are of sufficient magnitude tomake additional proceedings desirable.For State and EPA administered pro-grams, an applicable requirement isalso any requirement which takes ef-fect prior to the modification or rev-ocation and reissuance of a permit, tothe extent allowed in § 144.39.

(3) New or reissued permits, and tothe extent allowed under § 144.39 modi-fied or revoked and reissued permits,shall incorporate each of the applicablerequirements referenced in § 144.52.

(c) Incorporation. All permit condi-tions shall be incorporated either ex-pressly or by reference. If incorporatedby reference, a specific citation to theapplicable regulations or requirementsmust be given in the permit.

[48 FR 14189, Apr. 1, 1983, as amended at 49FR 20185, May 11, 1984; 53 FR 28147, July 26,1988; 58 FR 63898; Dec. 3, 1993]

§ 144.53 Schedule of compliance.(a) General. The permit may, when

appropriate, specify a schedule of com-pliance leading to compliance with theSDWA and parts 144, 145, 146, and 124.

(1) Time for compliance. Any schedulesof compliance shall require complianceas soon as possible, and in no case laterthan 3 years after the effective date ofthe permit.

(2) Interim dates. Except as providedin paragraph (b)(1)(ii) of this section, ifa permit establishes a schedule of com-pliance which exceeds 1 year from thedate of permit issuance, the scheduleshall set forth interim requirementsand the dates for their achievement.

(i) The time between interim datesshall not exceed 1 year.

(ii) If the time necessary for comple-tion of any interim requirement ismore than 1 year and is not readily di-visible into stages for completion, thepermit shall specify interim dates forthe submission of reports of progresstoward completion of the interim re-quirements and indicate a projectedcompletion date.

(3) Reporting. The permit shall bewritten to require that if paragraph(a)(1) of this section is applicable,

progress reports be submitted no laterthan 30 days following each interimdate and the final date of compliance.

(b) Alternative schedules of compliance.A permit applicant or permittee maycease conducting regulated activities(by plugging and abandonment) ratherthan continue to operate and meet per-mit requirements as follows:

(1) If the permittee decides to ceaseconducting regulated activities at agiven time within the term of a permitwhich has already been issued:

(i) The permit may be modified tocontain a new or additional scheduleleading to timely cessation of activi-ties; or

(ii) The permittee shall cease con-ducting permitted activities beforenoncompliance with any interim orfinal compliance schedule requirementalready specified in the permit.

(2) If the decision to cease conductingregulated activities is made beforeissuance of a permit whose term willinclude the termination date, the per-mit shall contain a schedule leading totermination which will ensure timelycompliance with applicable require-ments.

(3) If the permittee is undecidedwhether to cease conducting regulatedactivities, the Director may issue ormodify a permit to contain two sched-ules as follows:

(i) Both schedules shall contain anidentical interim deadline requiring afinal decision on whether to cease con-ducting regulated activities no laterthan a date which ensures sufficienttime to comply with applicable re-quirements in a timely manner if thedecision is to continue conducting reg-ulated activities;

(ii) One schedule shall lead to timelycompliance with applicable require-ments;

(iii) The second schedule shall lead tocessation of regulated activities by adate which will ensure timely compli-ance with applicable requirements;

(iv) Each permit containing twoschedules shall include a requirementthat after the permittee has made afinal decision under paragraph (b)(3)(i)


552

40 CFR Ch. I (7–1–98 Edition)§ 144.54

of this section it shall follow the sched-ule leading to compliance if the deci-sion is to continue conducting regu-lated activities, and follow the sched-ule leading to termination if the deci-sion is to cease conducting regulatedactivities.

(4) The applicant’s or permittee’s de-cision to cease conducting regulatedactivities shall be evidenced by a firmpublic commitment satisfactory to theDirector, such as a resolution of theboard of directors of a corporation.

§ 144.54 Requirements for recordingand reporting of monitoring results.

All permits shall specify:(a) Requirements concerning the

proper use, maintenance, and installa-tion, when appropriate, of monitoringequipment or methods (including bio-logical monitoring methods when ap-propriate);

(b) Required monitoring includingtype, intervals, and frequency suffi-cient to yield data which are represent-ative of the monitored activity includ-ing when appropriate, continuous mon-itoring;

(c) Applicable reporting requirementsbased upon the impact of the regulatedactivity and as specified in part 146.Reporting shall be no less frequentthan specified in the above regulations.

§ 144.55 Corrective action.(a) Coverage. Applicants for Class I,

II, (other than existing), or III injec-tion well permits shall identify the lo-cation of all known wells within the in-jection well’s area of review which pen-etrate the injection zone, or in the caseof Class II wells operating over thefracture pressure of the injection for-mation, all known wells within thearea of review penetrating formationsaffected by the increase in pressure.For such wells which are improperlysealed, completed, or abandoned, theapplicant shall also submit a plan con-sisting of such steps or modificationsas are necessary to prevent movementof fluid into underground sources ofdrinking water (‘‘corrective action’’).Where the plan is adequate, the Direc-tor shall incorporate it into the permitas a condition. Where the Director’s re-view of an application indicates thatthe permittee’s plan is inadequate

(based on the factors in § 146.07), the Di-rector shall require the applicant to re-vise the plan, prescribe a plan for cor-rective action as a condition of the per-mit under paragraph (b) of this section,or deny the application. The Directormay disregard the provisions of § 146.06(Area of Review) and § 146.07 (Correc-tive Action) when reviewing anapplication to permit an existing ClassII well.

(b) Requirements—(1) Existing injectionwells. Any permit issued for an existinginjection well (other than Class II) re-quiring corrective action shall includea compliance schedule requiring anycorrective action accepted or pre-scribed under paragraph (a) of this sec-tion to be completed as soon aspossible.

(2) New injection wells. No owner oroperator of a new injection well maybegin injection until all required cor-rective action has been taken.

(3) Injection pressure limitation. TheDirector may require as a permit con-dition that injection pressure be solimited that pressure in the injectionzone does not exceed hydrostatic pres-sure at the site of any improperly com-pleted or abandoned well within thearea of review. This pressure limitationshall satisfy the corrective action re-quirement. Alternatively, such injec-tion pressure limitation can be part ofa compliance schedule and last untilall other required corrective action hasbeen taken.

(4) Class III wells only. When settingcorrective action requirements the Di-rector shall consider the overall effectof the project on the hydraulic gra-dient in potentially affected USDWs,and the corresponding changes inpotentiometric surface(s) and flow di-rection(s) rather than the discrete ef-fect of each well. If a decision is madethat corrective action is not necessarybased on the determinations above, themonitoring program required in§ 146.33(b) shall be designed to verifythe validity of such determinations.

Subpart F—Financial Responsibil-ity: Class I Hazardous WasteInjection Wells

SOURCE: 49 FR 20186, May 11, 1984, unlessotherwise noted.


553


§ 144.60 Applicability.(a) The requirements of §§ 144.62,

144.63, and 144.70 apply to owners andoperators of all existing and new ClassI Hazardous waste injection wells, ex-cept as provided otherwise in this sec-tion.

§ 144.61 Definitions of terms as used inthis subpart.

(a) Plugging and abandonment planmeans the plan for plugging and aban-donment prepared in accordance withthe requirements of §§ 144.28 and 144.51.

(b) Current plugging cost estimatemeans the most recent of the estimatesprepared in accordance with § 144.62 (a),(b) and (c).

(c) Parent corporation means a cor-poration which directly owns at least50 percent of the voting stock of thecorporation which is the injection wellowner or operator; the latter corpora-tion is deemed a subsidiary of the par-ent corporation.

(d) The following terms are used inthe specifications for the financial testfor plugging and abandonment. Thedefinitions are intended to representthe common meanings of the terms asthey are generally used by the businesscommunity.

Assets means all existing and allprobable future economic benefits ob-tained or controlled by a particular en-tity.

Current assets means cash or other as-sets or resources commonly identifiedas those which are reasonably expectedto be realized in cash or sold or con-sumed during the normal operatingcycle of the business.

Current liabilities means obligationswhose liquidation is reasonably ex-pected to require the use of existing re-sources properly classifiable as currentassets or the creation of other currentliabilities.

Independently audited refers to anaudit performed by an independent cer-tified public accountant in accordancewith generally accepted auditingstandards.

Liabilities means probable future sac-rifices of economic benefits arisingfrom present obligations to transfer as-sets or provide services to other enti-ties in the future as a result of pasttransactions or events.

Net working capital means current as-sets minus current liabilities.

Net worth means total assets minustotal liabilities and is equivalent toowner’s equity.

Tangible net worth means the tangibleassets that remain after deducting li-abilities; such assets would not includeintangibles such as goodwill and rightsto patents or royalties.

§ 144.62 Cost estimate for plugging andabandonment.

(a) The owner or operator must pre-pare a written estimate, in current dol-lars, of the cost of plugging the injec-tion well in accordance with the plug-ging and abandonment plan as specifiedin §§ 144.28 and 144.51. The plugging andabandonment cost estimate must equalthe cost of plugging and abandonmentat the point in the facility’s operatinglife when the extent and manner of itsoperation would making plugging andabandonment the most expensive, asindicated by its plugging and abandon-ment plan.

(b) The owner or operator must ad-just the plugging and abandonmentcost estimate for inflation within 30days after each anniversary of the dateon which the first plugging and aban-donment cost estimate was prepared.The adjustment must be made as speci-fied in paragraphs (b) (1) and (2) of thissection, using an inflation factor de-rived from the annual Oil and GasField Equipment Cost Index. The infla-tion factor is the result of dividing thelatest published annual Index by theIndex for the previous year.

(1) The first adjustment is made bymultiplying the plugging and abandon-ment cost estimate by the inflationfactor. The result is the adjusted plug-ging and abandonment cost estimate.

(2) Subsequent adjustments are madeby multiplying the latest adjustedplugging and abandonment cost esti-mate by the latest inflation factor.

(c) The owner or operator must revisethe plugging and abandonment cost es-timate whenever a change in the plug-ging and abandonment plan increasesthe cost of plugging and abandonment.The revised plugging and abandonmentcost estimate must be adjusted for in-flation as specified in § 144.62(b).


554

40 CFR Ch. I (7–1–98 Edition)§ 144.63

(d) The owner or operator must keepthe following at the facility during theoperating life of the facility: the latestplugging and abandonment cost esti-mate prepared in accordance with§ 144.62 (a) and (c) and, when thisestimate has been adjusted in accord-ance with § 144.62(b), the latest adjustedplugging and abandonment cost esti-mate.

§ 144.63 Financial assurance for plug-ging and abandonment.

An owner or operator of each facilitymust establish financial assurance forthe plugging and abandonment of eachexisting and new Class I hazardouswaste injection well. He must choosefrom the options as specified in para-graphs (a) through (f) of this section.

(a) Plugging and abandonment trustfund. (1) An owner or operator may sat-isfy the requirements of this section byestablishing a plugging and abandon-ment trust fund which conforms to therequirements of this paragraph andsubmitting an originally signed dupli-cate of the trust agreement to the Re-gional Administrator. An owner or op-erator of a Class I well injecting haz-ardous waste must submit the origi-nally signed duplicate of the trustagreement to the Regional Adminis-trator with the permit application orfor approval to operate under rule. Thetrustee must be an entity which hasthe authority to act as a trustee andwhose trust operations are regulatedand examined by a Federal or Stateagency.

(2) The wording of the trust agree-ment must be identical to the wordingspecified in § 144.70(a)(1), and the trustagreement must be accompanied by aformal certification of acknowledg-ment (for example, see § 144.70(a)(2)).Schedule A of the trust agreementmust be updated within 60 days after achange in the amount of the currentplugging and abandonment cost esti-mate covered by the agreement.

(3) Payments into the trust fundmust be made annually by the owner oroperator over the term of the initialpermit or over the remaining operatinglife of the injection well as estimatedin the plugging and abandonment plan,whichever period is shorter; this periodis hereafter referred to as the ‘‘pay-in

period.’’ The payments into the plug-ging and abandonment trust fund mustbe made as follows:

(i) For a new well, the first paymentmust be made before the initial injec-tion of hazardous waste. A receipt fromthe trustee for this payment must besubmitted by the owner or operator tothe Regional Administrator before thisinitial injection of hazardous waste.The first payment must be at leastequal to the current plugging andabandonment cost estimate, except asprovided in § 144.70(g), divided by thenumber of years in the pay-in period.Subsequent payments must be made nolater than 30 days after each anniver-sary date of the first payment. Theamount of each subsequent paymentmust be determined by this formula:

Next payment =PE − CV

Ywhere PE is the current plugging and aban-donment cost estimate, CV is the currentvalue of the trust fund, and Y is the numberof years remaining in the pay-in period.

(ii) If an owner or operator estab-lishes a trust fund as specified in§ 144.63(a) of this chapter, and the valueof that trust fund is less than the cur-rent plugging and abandonment costestimate when a permit is awarded forthe injection well, the amount of thecurrent plugging and abandonmentcost estimate still to be paid into thetrust fund must be paid in over thepay-in period as defined in paragraph(a)(3) of this section. Payments mustcontinue to be made no later than 30days after each anniversary date of thefirst payment made pursuant to part144 of this chapter. The amount of eachpayment must be determined by thisformula:

Next payment =PE − CV

Ywhere PE is the current plugging and aban-donment cost estimate, CV is the currentvalue of the trust fund, and Y is the numberof years remaining in the pay-in period.

(4) The owner or operator may accel-erate payments into the trust fund orhe may deposit the full amount of thecurrent plugging and abandonmentcost estimate at the time the fund is


555


established. However, he must main-tain the value of the fund at no lessthan the value that the fund wouldhave if annual payments were made asspecified in paragraph (a)(3) of this sec-tion.

(5) If the owner or operator estab-lishes a plugging and abandonmenttrust fund after having used one ormore alternate mechanisms specifiedin this section or in § 144.63 of thischapter, his first payment must be inat least the amount that the fundwould contain if the trust fund were es-tablished initially and annual pay-ments made according to specificationsof this paragraph.

(6) After the pay-in period is com-pleted, whenever the current pluggingand abandonment cost estimatechanges, the owner or operator mustcompare the new estimate with thetrustee’s most recent annual valuationof the trust fund. If the value of thefund is less than the amount of the newestimate, the owner or operator, within60 days after the change in the cost es-timate, must either deposit an amountinto the fund so that its value afterthis deposit at least equals the amountof the current plugging and abandon-ment cost estimate, or obtain other fi-nancial assurance as specified in thissection to cover the difference.

(7) If the value of the trust fund isgreater than the total amount of thecurrent plugging and abandonmentcost estimate, the owner or operatormay submit a written request to theRegional Administrator for release ofthe amount in excess of the currentplugging and abandonment cost esti-mate.

(8) If an owner or operator sub-stitutes other financial assurance asspecified in this section for all or partof the trust fund, he may submit awritten request to the Regional Admin-istrator for release of the amount inexcess of the current plugging andabandonment cost estimate covered bythe trust fund.

(9) Within 60 days after receiving arequest from the owner or operator forrelease of funds as specified in para-graph (a) (7) or (8) of this section, theRegional Administrator will instructthe trustee to release to the owner or

operator such funds as the RegionalAdministrator specifies in writing.

(10) After beginning final pluggingand abandonment, an owner or opera-tor or any other person authorized toperform plugging and abandonmentmay request reimbursement for plug-ging and abandonment expenditures bysubmitting itemized bills to the Re-gional Administrator. Within 60 daysafter receiving bills for plugging andabandonment activities, the RegionalAdministrator will determine whetherthe plugging and abandonment expend-itures are in accordance with the plug-ging and abandonment plan or other-wise justified, and if so, he will in-struct the trustee to make reimburse-ment in such amounts as the RegionalAdministrator specifies in writing. Ifthe Regional Administrator has reasonto believe that the cost of plugging andabandonment will be significantlygreater than the value of the trustfund, he may withhold reimbursementof such amounts as he deems prudentuntil he determines, in accordancewith § 144.63(i), that the owner or opera-tor is no longer required to maintainfinancial assurance for plugging andabandonment.

(11) The Regional Administrator willagree to termination of the trust when:

(i) An owner or operator substitutesalternate financial assurance as speci-fied in this section; or

(ii) The Regional Administrator re-leases the owner or operator from therequirements of this section in accord-ance with § 144.63(i).

(b) Surety bond guaranteeing paymentinto a plugging and abandonment trustfund. (1) An owner or operator mustsatisfy the requirements of this sectionby obtaining a surety bond which con-forms to the requirements of this para-graph and submitting the bond to theRegional Administrator with the appli-cation for a permit or for approval tooperate under rule. The bond must beeffective before the initial injection ofhazardous waste. The surety companyissuing the trust must, at a minimum,be among those listed as acceptablesureties on Federal bonds in Circular570 of the U.S. Department of theTreasury.


556

40 CFR Ch. I (7–1–98 Edition)§ 144.63

(2) The wording of the surety bondmust be identical to the wording in§ 144.70(b).

(3) The owner or operator who uses asurety bond to satisfy the require-ments of this section must also estab-lish a standby trust fund. Under theterms of the bond, all payments madethereunder will be deposited by thesurety directly into the standby trustfund in accordance with instructionsfrom the Regional Administrator. Thisstandby trust fund must meet the re-quirements specified in § 144.63(a), ex-cept that:

(i) An originally signed duplicate ofthe trust agreement must be submittedto the Regional Administrator with thesurety bond; and

(ii) Until the standby trust fund isfunded pursuant to the requirements ofthis section, the following are not re-quired by these requirements:

(A) Payments into the trust fund asspecified in § 144.63(a);

(B) Updating of Schedule A of thetrust agreement [see § 144.70(a)] to showcurrent plugging and abandonmentcost estimates;

(C) Annual valuations as required bythe trust agreement; and

(D) Notices of nonpayment as re-quired by the trust agreement.

(4) The bond must guarantee that theowner or operator will:

(i) Fund the standby trust fund in anamount equal to the penal sum of thebond before beginning of plugging andabandonment of the injection well; or

(ii) Fund the standby trust fund in anamount equal to the penal sum within15 days after an order to begin pluggingand abandonment is issued by the Re-gional Administrator or a U.S. districtcourt or other court of competent ju-risdiction; or

(iii) Provide alternate financial as-surance as specified in this section, andobtain the Regional Administrator’swritten approval of the assurance pro-vided, within 90 days after receipt byboth the owner or operator and the Re-gional Administrator of a notice ofcancellation of the bond from the sur-ety.

(5) Under the terms of the bond, thesurety will become liable on the bondobligation when the owner or operator

fails to perform as guaranteed by thebond.

(6) The penal sum of the bond mustbe in amount at least equal to the cur-rent plugging and abandonment costestimate, except as provided in§ 144.63(g).

(7) Whenever the current pluggingand abandonment cost estimate in-creases to an amount greater than thepenal sum, the owner or operator,within 60 days after the increase, musteither cause the penal sum to be in-creased to an amount at least equal tothe current plugging and abandonmentcost estimate and submit evidence ofsuch increase to the Regional Adminis-trator, or obtain other financial assur-ance as specified in this section tocover the increase. Whenever the cur-rent plugging and abandonment costestimate decreases, the penal sum maybe reduced to the amount of the cur-rent plugging and abandonment costestimate following written approval bythe Regional Administrator.

(8) Under the terms of the bond, thesurety may cancel the bond by sendingnotice of cancellation by certified mailto the owner or operator and to the Re-gional Administrator. Cancellationmay not occur, however, during 120days beginning on the date of the re-ceipt of the notice of cancellation byboth owner or operator and the Re-gional Administrator as evidenced bythe returned receipts.

(9) The owner or operator may cancelthe bond if the Regional Administratorhas given prior written consent basedon his receipt of evidence of alternatefinancial assurance as specified in thissection.

(c) Surety bond guaranteeing perform-ance of plugging and abandonment. (1)An owner or operator may satisfy therequirements of this section by obtain-ing a surety bond which conforms tothe requirements of this paragraph andsubmitting the bond to the RegionalAdministrator. An owner or operator ofa new facility must submit the bond tothe Regional Administrator with thepermit application or for approval tooperate under rule. The bond must beeffective before injection of hazardouswaste is started. The surety companyissuing the bond must, at a minimum,be among those listed as acceptable


557


sureties on Federal bonds in Circular570 of the U.S. Department of theTreasury.

(2) The wording of the surety bondmust be identical to the wording speci-fied in § 144.70(c).

(3) The owner or operator who uses asurety bond to satisfy the require-ments of this section must also estab-lish a standby trust fund. Under theterms of the bond, all payments madethereunder will be deposited by thesurety directly into the standby trustfund in accordance with instructionsfrom the Regional Administrator. Thestandby trust must meet the require-ments specified in § 144.63(a), exceptthat:

(i) An original signed duplicate of thetrust agreement must be submitted tothe Regional Administrator with thesurety bond; and

(ii) Unless the standby trust fund isfunded pursuant to the requirements ofthis section, the following are not re-quired by these regulations:


(B) Updating of Schedule A of thetrust agreement [see § 144.70(a)] to showcurrent plugging and abandonmentcost estimates;



(4) The bond must guarantee that theowner or operator will:

(i) Perform plugging and abandon-ment in accordance with the pluggingand abandonment plan and other re-quirements of the permit for the injec-tion well whenever required to do so; or

(ii) Provide alternate financial assur-ance as specified in this section, andobtain the Regional Administrator’swritten approval of the assurance pro-vided, within 90 days after receipt byboth the owner or operator and the Re-gional Administrator of a notice ofcancellation of the bond from the sur-ety.

(5) Under the terms of the bond, thesurety will become liable on the bondobligation when the owner or operatorfails to perform as guaranteed by thebond. Following a determination thatthe owner or operator has failed to per-form plugging and abandonment in ac-

cordance with the plugging and aban-donment plan and other permit re-quirements when required to do so,under terms of the bond the surety willperform plugging and abandonment asguaranteed by the bond or will depositthe amount of the penal sum into thestandby trust fund.

(6) The penal sum of the bond mustbe in an amount at least equal to thecurrent plugging and abandonmentcost estimate.

(7) Whenever the current pluggingand abandonment cost estimate in-creases to an amount greater than thepenal sum, the owner or operator,within 60 days after the increase, musteither cause the penal sum to be in-creased to an amount at least equal tothe current plugging and abandonmentcost estimate and submit evidence ofsuch increase to the Regional Adminis-trator, or obtain other financial assur-ance as specified in this section. When-ever the plugging and abandonmentcost estimate decreases, the penal summay be reduced to the amount of thecurrent plugging and abandonmentcost estimate following written ap-proval by the Regional Administrator.

(8) Under the terms of the bond, thesurety may cancel the bond by sendingnotice of cancellation by certified mailto the owner or operator and to the Re-gional Administrator. Cancellationmay not occur, however, during the 120days beginning on the date of receipt ofthe notice of cancellation by both theowner or operator and the Regional Ad-ministrator, as evidenced by the returnreceipts.

(9) The owner or operator may cancelthe bond if the Regional Administratorhas given prior written consent. TheRegional Administrator will providesuch written consent when:

(i) An owner or operator substitutealternate financial assurance as speci-fied in this section; or


(10) The surety will not be liable fordeficiencies in the performance of plug-ging and abandonment by the owner oroperator after the Regional Adminis-trator releases the owner or operator


558

40 CFR Ch. I (7–1–98 Edition)§ 144.63

from the requirements of this sectionin accordance with § 144.63(i).

(d) Plugging and abandonment letter ofcredit. (1) An owner or operator maysatisfy the requirements of this sectionby obtaining an irrevocable standbyletter of credit which conforms to therequirements of this paragraph andsubmitting the letter to the RegionalAdministrator. An owner or operator ofan injection well must submit theletter of credit to the Regional Admin-istrator during submission of the per-mit application or for approval to oper-ate under rule. The letter of creditmust be effective before initial injec-tion of hazardous waste. The issuinginstitution must be an entity whichhas the authority to issue letters ofcredit and whose letter-of-credit oper-ations are regulated and examined by aFederal or State agency.

(2) The wording of the letter of creditmust be identical to the wording speci-fied in § 144.70(d).

(3) An owner or operator who uses aletter of credit to satisfy the require-ments of this section must also estab-lish a standby trust fund. Under theterms of the letter of credit, allamounts paid pursuant to a draft bythe Regional Administrator will be de-posited by the issuing institution di-rectly into the standby trust fund inaccordance with instructions from theRegional Administrator. This standbytrust fund must meet the requirementsof the trust fund specified in § 144.63(a),except that:

(i) An originally signed duplicate ofthe trust agreement must be submittedto the Regional Administrator with theletter of credit; and

(ii) Unless the standby trust fund isfunded pursuant to the requirements ofthis section, the following are not re-quired by these regulations:


(B) Updating of Schedule A of thetrust agreement (see § 144.70(a)) to showcurrent plugging and abandonmentcost estimates;



(4) The letter of credit must be ac-companied by a letter from the owner

or operator referring to the letter ofcredit by number, issuing institution,and date, and providing the followinginformation: the EPA IdentificationNumber, name, and address of the facil-ity, and the amount of funds assuredfor plugging and abandonment of thewell by the letter of credit.

(5) The letter of credit must be irrev-ocable and issued for a period of atleast 1 year. The letter of credit mustprovide that the expiration date will beautomatically extended for a period ofat least 1 year unless, at least 120 daysbefore the current expiration date, theissuing institution notifies both theowner or operator and the Regional Ad-ministrator by certified mail of a deci-sion not to extend the expiration date.Under the terms of the letter of credit,the 120 days will begin on the datewhen both the owner or operator andthe Regional Administrator have re-ceived the notice, as evidenced by thereturn receipts.

(6) The letter of credit must be issuedin an amount at least equal to the cur-rent plugging and abandonment costestimate, except as provided in§ 144.63(g).

(7) Whenever the current pluggingand abandonment cost estimate in-creases to an amount greater than theamount of the credit, the owner or op-erator, within 60 days after the in-crease, must either cause the amountof the credit to be increased so that itat least equals the current pluggingand abandonment cost estimate andsubmit evidence of such increase to theRegional Administrator, or obtainother financial assurance as specifiedin this section to cover the increase.Whenever the current plugging andabandonment cost estimate decreases,the amount of the credit may be re-duced to the amount of the currentplugging and abandonment cost esti-mate following written approval by theRegional Administrator.

(8) Following a determination thatthe owner or operator has failed to per-form final plugging and abandonmentin accordance with the plugging andabandonment plan and other permit re-quirements when required to do so, theRegional Administrator may draw onthe letter of credit.


559


(9) If the owner or operator does notestablish alternate financial assuranceas specified in this section and obtainwritten approval of such alternate as-surance from the Regional Adminis-trator within 90 days after receipt byboth the owner or operator and the Re-gional Administrator of a notice fromthe issuing institution that it has de-cided not to extend the letter of creditbeyond the current expiration date, theRegional Administrator will draw onthe letter of credit. The Regional Ad-ministrator may delay the drawing ifthe issuing institution grants an exten-sion of the term of the credit. Duringthe last 30 days of any such extensionthe Regional Administrator will drawon the letter of credit if the owner oroperator has failed to provide alternatefinancial assurance as specified in thissection and obtain written approval ofsuch assurance from the Regional Ad-ministrator.

(10) The Regional Administrator willreturn the letter of credit to theissuing institution for terminationwhen:



(e) Plugging and abandonment insur-ance. (1) An owner or operator may sat-isfy the requirements of this section byobtaining plugging and abandonmentinsurance which conforms to the re-quirements of this paragraph and sub-mitting a certificate of such insuranceto the Regional Administrator. Anowner or operator of a new injectionwell must submit the certificate of in-surance to the Regional Administratorwith the permit application or for ap-proval operate under rule. The insur-ance must be effective before injectionstarts. At a minimum, the insurermust be licensed to transact the busi-ness of insurance, or eligible to provideinsurance as an excess or surplus linesinsurer, in one or more States.

(2) The wording of the certificate ofinsurance must be identical to thewording specified in § 144.70(e).

(3) The plugging and abandonmentinsurance policy must be issued for a

face amount at least equal to the cur-rent plugging and abandonment esti-mate, except as provided in § 144.63(g).The term ‘‘face amount’’ means thetotal amount the insurer is obligatedto pay under the policy. Actual pay-ments by the insurer will not changethe face amount, although the insurersfuture liability will be lowered by theamount of the payments.

(4) The plugging and abandonmentinsurance policy must guarantee thatfunds will be available whenever finalplugging and abandonment occurs. Thepolicy must also guarantee that onceplugging and abandonment begins, theissurer will be responsible for payingout funds, up to an amount equal tothe face amount of the policy, upon thedirection of the Regional Adminis-trator, to such party or parties as theRegional Administrator specifies.

(5) After beginning plugging andabandonment, an owner or operator orany other person authorized to performplugging and abandonment may re-quest reimbursement for plugging andabandonment expenditures by submit-ting itemized bills to the Regional Ad-ministrator. Within 60 days after re-ceiving bills for plugging and abandon-ment activities, the Regional Adminis-trator will determine whether the plug-ging and abandonment expendituresare in accordance with the pluggingand abandonment plan or otherwisejustified, and if so, he will instruct theinsurer to make reimbursement in suchamounts as the Regional Adminis-trator specifies in writing. If the Re-gional Administrator has reason to be-lieve that the cost of plugging andabandonment will be significantlygreater than the face amount of thepolicy, he may withhold reimburse-ment of such amounts as he deems pru-dent until he determines, in accordancewith § 144.63(i), that the owner or opera-tor is no longer required to maintainfinancial assurance for plugging andabandonment of the injection well.

(6) The owner or operator must main-tain the policy in full force and effectuntil the Regional Administrator con-sents to termination of the policy bythe owner or operator as specified in


560

40 CFR Ch. I (7–1–98 Edition)§ 144.63

paragraph (e)(10) of this section. Fail-ure to pay the premium, without sub-stitution of alternate financial assur-ance as specified in this section, willconstitute a significant violation ofthese regulations, warranting suchremedy as the Regional Administratordeems necessary. Such violation willbe deemed to begin upon receipt by theRegional Administrator of a notice offuture cancellation, termination, orfailure to renew due to nonpayment ofthe premium, rather than upon thedate of expiration.

(7) Each policy must contain provi-sions allowing assignment to a succes-sor owner or operator. Such assign-ment may be conditional upon consentof the insurer, provided such consent isnot unreasonably refused.

(8) The policy must provide that theinsurer may not cancel, terminate, orfail to renew the policy except for fail-ure to pay the premium. The auto-matic renewal of the policy must, at aminimum, provide the insured with theoption of renewal at the face amount ofthe expiring policy. If there is a failureto pay the premium, the insurer mayelect to cancel, terminate, or fail torenew the policy by sending notice bycertified mail to the owner or operatorand the Regional Administrator. Can-cellation, termination, or failure torenew may not occur, however, during120 days beginning with the date of re-ceipt of the notice by both the Re-gional Administrator and the owner oroperator, as evidenced by the return ofreceipts. Cancellation, termination, orfailure to renew may not occur and thepolicy will remain in full force and ef-fect in the event that on or before thedate of expiration:

(i) The Regional Administratordeems the injection well abandoned; or

(ii) The permit is terminated or re-voked or a new permit is denied; or

(iii) Plugging and abandonment is or-dered by the Regional Administrator ora U.S. district court or other court ofcompetent jurisdiction; or

(iv) The owner or operator is namedas debtor in a voluntary or involuntaryproceeding under title 11 (Bankruptcy),U.S. Code; or

(v) The premium due is paid.(9) Whenever the current plugging

and abandonment cost estimate in-

creases to an amount greater than theface amount of the policy, the owner oroperator, within 60 days after the in-crease, must either cause the faceamount to be increased to an amountat least equal to the current pluggingand abandonment estimate and submitevidence of such increase to the Re-gional Administrator, or obtain otherfinancial assurance as specified in thissection to cover the increase. Wheneverthe current plugging and abandonmentcost estimate decreases, the faceamount may be reduced to the amountof the current plugging and abandon-ment cost estimate following writtenapproval by the Regional Adminis-trator.

(10) The Regional Administrator willgive written consent to the owner oroperator that he may terminate the in-surance policy when:



(f) Financial test and corporate guaran-tee for plugging and abandonment. (1) Anowner or operator may satisfy the re-quirements of this section by dem-onstrating that he passes a financialtest as specified in this paragraph. Topass this test the owner or operatormust meet the criteria of either para-graph (f)(1)(i) or (f)(1)(ii) of this sec-tion:

(i) The owner or operator must have:(A) Two of the following three ratios:

A ratio of total liabilities to net worthless than 2.0; a ratio of the sum of netincome plus depreciation, depletion,and amortization to total liabilitiesgreater than 0.1; and a ratio of currentassets to current liabilities greaterthan 1.5; and

(B) Net working capital and tangiblenet worth each at least six times thesum of the current plugging and aban-donment cost estimate; and

(C) Tangible net worth of at least $10million; and

(D) Assets in the United Statesamounting to at least 90 percent of histotal assets or at least six times thesum of the current plugging and aban-donment cost estimate.


561


(ii) The owner or operator must have:(A) A current rating for his most re-

cent bond issuance of AAA, AA, A orBBB as issued by Standard and Poor’sor Aaa, Aa, A, or Baa as issued byMoody’s; and

(B) Tangible net worth at least sixtimes the sum of the current pluggingand abandonment cost estimate; and

(C) Tangible net worth of at least $10million; and

(D) Assets located in the UnitedStates amounting to at least 90 percentof his total assets or at least six timesthe sum of the current plugging andabandonment cost estimates.

(2) The phrase ‘‘current plugging andabandonment cost estimate’’ as used inparagraph (f)(1) of this section refers tothe cost estimate required to be shownin paragraphs 1 through 4 of the letterfrom the owner’s or operator’s chief fi-nancial officer § 144.70(f).

(3) To demonstrate that he meetsthis test, the owner or operator mustsubmit the following items to the Re-gional Administrator:

(i) A letter signed by the owner’s oroperator’s chief financial officer andworded as specified in § 144.70(f); and

(ii) A copy of the independent cer-tified public accountant’s report on ex-amination of the owner’s or operator’sfinancial statements for the latestcompleted fiscal year; and

(iii) A special report from the owner’sor operator’s independent certified pub-lic accountant to the owner or operatorstating that:

(A) He has compared the data whichthe letter from the chief financial offi-cer specifies as having been derivedfrom the independently audited, year-end financial statements for the latestfiscal year with the amounts in such fi-nancial statements; and

(B) In connection with that proce-dure, no matters came to his attentionwhich caused him to believe that thespecified data should be adjusted.

(4) An owner or operator of a new in-jection well must submit the itemsspecified in paragraph (f)(3) of this sec-tion to the Regional Administratorwithin 90 days after the close of eachsucceeding fiscal year. This informa-tion must consist of all three itemsspecified in paragraph (f)(3) of this sec-tion.

(5) After the initial submission ofitems specified in paragraph (f)(3) ofthis section, the owner or operatormust send updated information to theRegional Administrator within 90 daysafter the close of each succeeding fiscalyear. This information must consist ofall three items specified in paragraph(f)(3) of this section.

(6) If the owner or operator no longermeets the requirements of paragraph(f)(1) of this section, he must send no-tice to the Regional Administrator ofintent to establish alternate financialassurance as specified in this section.The notice must be sent by certifiedmail within 90 days after the end of thefiscal year for which the year-end fi-nancial data show that the owner oroperator no longer meets the require-ments. The owner or operator mustprovide the alternate financial assur-ance within 120 days after the end ofsuch fiscal year.

(7) The Regional Administrator may,based on a reasonable belief that theowner or operator may no longer meetthe requirements of paragraph (f)(1) ofthis section, require reports of finan-cial condition at any time from theowner or operator in addition to thosespecified in paragraph (f)(3) of this sec-tion. If the Regional Administratorfinds, on the basis of such reports orother information, that the owner oroperator no longer meets the require-ments of paragraph (f)(1) of this sec-tion, the owner or operator must pro-vide alternate financial assurance asspecified in this section within 30 daysafter notification of such a finding.

(8) The Regional Administrator maydisallow use of this test on the basis ofqualifications in the opinion expressedby the independent certified public ac-countant in his report on examinationof the owner’s or operator’s financialstatements [see paragraph (f)(3)(ii) ofthis section]. An adverse opinion ordisclaimer of opinion will be cause fordisallowance. The Regional Adminis-trator will evaluate other qualifica-tions on an individual basis. The owneror operator must provide alternate fi-nancial assurance as specified in thissection within 30 days after notifica-tion of the disallowance.


562

40 CFR Ch. I (7–1–98 Edition)§ 144.63

(9) The owner or operator is no longerrequired to submit the items specifiedin paragraph (f)(3) of this section when:



(10) An owner or operator may meetthe requirements of this section by ob-taining a written guarantee, hereafterreferred to as ‘‘corporate guarantee.’’The guarantee must be the parent cor-poration of the owner or operator. Theguarantee must meet the requirementsfor owners or operators in paragraphs(f)(1) through (f)(8) of this section andmust comply with the terms of the cor-porate guarantee. The wording of thecorporate guarantee must be identicalto the wording specified in § 144.70(h).The corporate guarantee must accom-pany the items sent to the RegionalAdministrator as specified in para-graph (f)(3) of this section. The termsof the corporate guarantee must pro-vide that:

(i) If the owner or operator fails toperform plugging and abandonment ofthe injection well covered by the cor-porate guarantee in accordance withthe plugging and abandonment planand other permit requirements when-ever required to do so, the guaranteewill do so or establish a trust fund asspecified in § 144.63(a) in the name ofthe owner or operator.

(ii) The corporate guarantee will re-main in force unless the guarantorsends notice of cancellation by cer-tified mail to the owner or operatorand the Regional Administrator, asevidenced by the return receipts. Can-cellation may not occur, however, dur-ing the 120 days beginning on the dateof receipt of the notice of cancellationby both the owner or operator and theRegional Administrator, as evidencedby the return receipts.

(iii) If the owner or operator fails toprovide alternate financial assuranceas specified in this section and obtainthe written approval of such alternateassurance from the Regional Adminis-trator within 90 days after receipt byboth the owner or operator and the Re-

gional Administrator of a notice ofcancellation of the corporate guaran-tee from the guarantor, the guarantorwill provide such alternative financialassurance in the name of the owner oroperator.

(g) Use of multiple financial mecha-nisms. An owner or operator may sat-isfy the requirements of this section byestablishing more than one financialmechanism per injection well. Thesemechanisms are limited to trust funds,surety bonds, guaranteeing paymentinto a trust fund, letters of credit, andinsurance. The mechanisms must be asspecified in paragraphs (a), (b), (d), and(e), respectively, of this section, exceptthat it is the combination of mecha-nisms, rather than the single mecha-nism, which must provide financial as-surance for an amount at least equal tothe adjusted plugging and abandon-ment cost. If an owner or operator usesa trust fund in combination with a sur-ety bond or letter of credit, he may usethat trust fund as the standby trustfund for the other mechanisms. A sin-gle standby trust may be establishedfor two or more mechanisms. The Re-gional Administrator may invoke anyor all of the mechanisms to provide forplugging and abandonment of the injec-tion well.

(h) Use of a financial mechanism formultiple facilities. An owner or operatormay use a financial assurance mecha-nism specified in this section to meetthe requirements of this section formore than one injection well. Evidenceof financial assurance submitted to theRegional Administrator must include alist showing, for each injection well,the EPA Identification Number, name,address, and the amount of funds forplugging and abandonment assured bythe mechanism. If the injection wellscovered by the mechanism are in morethan one Region, identical evidence offinancial assurance must be submittedto and maintained with the RegionalAdministrators of all such Regions.The amount of funds available throughthe mechanism must be no less thanthe sum of funds that would be avail-able if a separate mechanism had been


563


established and maintained for each in-jection well. In directing funds avail-able through the mechanism for plug-ging and abandonment of any of the in-jection wells covered by the mecha-nism, the Regional Administrator maydirect only the amount of funds des-ignated for that injection well, unlessthe owner or operator agrees to use ad-ditional funds available under themechanism.

(i) Release of the owner or operatorfrom the requirements of this section.Within 60 days after receiving certifi-cations from the owner or operator andan independent registered professionalengineer that plugging and abandon-ment has been accomplished in accord-ance with the plugging and abandon-ment plan, the Regional Administratorwill notify the owner or operator inwriting that he is no longer required bythis section to maintain financial as-surance for plugging and abandonmentof the injection well, unless the Re-gional Administrator has reason to be-lieve that plugging and abandonmenthas not been in accordance with theplugging and abandonment plan.

§ 144.64 Incapacity of owners or opera-tors, guarantors, or financial insti-tutions.

(a) An owner or operator must notifythe Regional Administrator by cer-tified mail of the commencement of avoluntary or involuntary proceedingunder title 11 (Bankruptcy), U.S. Code,naming the owner or operator as debt-or, within 10 business days after thecommencement of the proceeding. Aguarantor of a corporate guarantee asspecified in § 144.63(f) must make such anotification if he is named as debtor, asrequired under the terms of the guar-antee (§ 144.70(f)).

(b) An owner or operator who fulfillsthe requirements of § 144.63 by obtain-ing a letter of credit, surety bond, orinsurance policy will be deemed to bewithout the required financial assur-ance or liability coverage in the eventof bankruptcy, insolvency, or a suspen-sion or revocation of the license orcharter of the issuing institution. Theowner or operator must establish otherfinancial assurance or liability cov-erage within 60 days after such anevent.

§ 144.65 Use of State-required mecha-nisms.

(a) For a facility located in a Statewhere EPA is administering the re-quirements of this subpart but wherethe State has plugging and abandon-ment regulations that include require-ments for financial assurance of plug-ging and abandonment, an owner or op-erator may use State-required finan-cial mechanisms to meet the require-ments of this subpart if the RegionalAdministrator determines that theState mechanisms are at least equiva-lent to the mechanisms specified inthis subpart. The Regional Adminis-trator will evaluate the equivalency ofthe mechanisms mainly in terms of (1)certainty of the availability of fundsfor the required plugging and abandon-ment activities and (2) the amount offunds that will be made available. TheRegional Administrator may also con-sider other factors. The owner or oper-ator must submit to the Regional Ad-ministrator evidence of the establish-ment of the mechanism together with aletter requesting that the State-re-quired mechanism be considered ac-ceptable for meeting the requirementsof this subpart. The submittal must in-clude the following information: Thefacility’s EPA Identification Number,name and address, and the amounts offunds for plugging and abandonmentcoverage assured by the mechanism.The Regional Administrator will notifythe owner or operator of his determina-tion regarding the mechanism’s accept-ability. The Regional Administratormay require the owner or operator tosubmit additional information as isdeemed necessary for making this de-termination.

(b) If a State-required mechanism isfound acceptable as specified in para-graph (a) of this section except for theamount of funds available, the owneror operator may satisfy the require-ments of this subpart by increasing thefunds available through the State-re-quired mechanism or using additionalmechanisms as specified in this sub-part. The amounts of funds availablethrough the State and Federal mecha-nisms must at least equal the amountsrequired by this subpart.


564

40 CFR Ch. I (7–1–98 Edition)§ 144.66

§ 144.66 State assumption of respon-sibility.

(a) If a State either assumes legal re-sponsibility for an owner’s or opera-tor’s compliance with the plugging andabandonment requirements of theseregulations or assures that funds willbe available from State sources tocover these requirements, the owner oroperator will be in compliance with therequirements of this subpart if the Re-gional Administrator determines thatthe State’s assumption of responsibil-ity is at least equivalent to the mecha-nisms specified in this subpart. The Re-gional Administrator will evaluate theequivalency of State guarantees main-ly in terms of (1) certainty of the avail-ability of funds for the required plug-ging and abandonment coverage and (2)the amount of funds that will be madeavailable. The Regional Administratormay also consider other factors. Theowner or operator must submit to theRegional Administrator a letter fromthe State describing the nature of theState’s assumption of responsibility to-gether with a letter from the owner oroperator requesting that the State’sasumption of responsibility be consid-ered acceptable for meeting the re-quirements of this subpart. The letterfrom the State must include, or haveattached to it, the following informa-tion: the facility’s EPA IdentificationNumber, name and address, and theamounts of funds for plugging andabandonment coverage that are guar-anteed by the State. The Regional Ad-ministrator will notify the owner oroperator of his determination regard-ing the acceptability of the State’sguarantee in lieu of mechanisms speci-fied in this subpart. The Regional Ad-ministrator may require the owner oroperator to submit additional informa-tion as is deemed necessary to makethis determination. Pending this deter-mination, the owner or operator will bedeemed to be in compliance with§ 144.63.

(b) If a State’s assumption of respon-sibility is found acceptable as specifiedin paragraph (a) of this section exceptfor the amount of funds available, theowner or operator may satisfy the re-quirements of this subpart by use ofboth the State’s assurance and addi-tional financial mechanisms as speci-

fied in this subpart. The amount offunds available through the State andFederal mechanisms must at leastequal the amount required by this sub-part.

§ 144.70 Wording of the instruments.(a)(1) A trust agreement for a trust

fund, as specified in § 144.63(a) of thischapter, must be worded as follows, ex-cept that instructions in brackets areto be replaced with the relevant infor-mation and the brackets deleted:

TRUST AGREEMENT

TRUST AGREEMENT, the ‘‘Agreement,’’entered into as of [date] by and between[name of the owner or operator], a [name ofState] [insert ‘‘corporation,’’ ‘‘partnership,’’‘‘association,’’ or ‘‘proprietorship’’], the‘‘Grantor,’’ and [name of corporate trustee],[insert ‘‘incorporated in the State of lll’’or ‘‘a national bank’’], the ‘‘Trustee.’’

Whereas, the United States EnvironmentalProtection Agency, ‘‘EPA,’’ an agency of theUnited States Government, has establishedcertain regulations applicable to the Grant-or, requiring that an owner or operator of aninjection well shall provide assurance thatfunds will be available when needed for plug-ging and abandonment of the injection well,

Whereas, the Grantor has elected to estab-lish a trust to provide all or part of such fi-nancial assurance for the facility(ies) identi-fied herein,

Whereas, the Grantor, acting through itsduly authorized officers, has selected theTrustee to be the trustee under this agree-ment, and the Trustee is willing to act astrustee,

Now, therefore, the Grantor and the Trust-ee agree as follows:

Section 1. Definitions. As used in this Agree-ment:

(a) The term ‘‘Grantor’’ means the owneror operator who enters into this Agreementand any successors or assigns of the Grantor.

(b) The term ‘‘Trustee’’ means the Trusteewho enters into this Agreement and any suc-cessor Trustee.

(c) Facility or activity means any ‘‘under-ground injection well’’ or any other facilityor activity that is subject to regulationunder the Underground Injection ControlProgram.

Section 2. Identification of Facilities and CostEstimates. This Agreement pertains to the fa-cilities and cost estimates identified on at-tached Schedule A [on Schedule A, for eachfacility list the EPA Identification Number,name, address, and the current plugging andabandonment cost estimate, or portionsthereof, for which financial assurance isdemonstrated by this Agreement].


565


Section 3. Establishment of Fund. The Grant-or and the Trustee hereby establish a trustfund, the ‘‘Fund,’’ for the benefit of EPA.The Grantor and the Trustee intend that nothird party have access to the Fund exceptas herein provided. The Fund is establishedinitially as consisting of the property, whichis acceptable to the Trustee, described inSchedule B attached hereto. Such propertyand any other property subsequently trans-ferred to the Trustee is referred to as theFund, together with all earnings and profitsthereon, less any payments or distributionsmade by the Trustee pursuant to this Agree-ment. The Fund shall be held by the Trustee,IN TRUST, as hereinafter provided. TheTrustee shall not be responsible nor shall itundertake any responsibility for the amountor adequacy of, nor any duty to collect fromthe Grantor, any payments necessary to dis-charge any liabilities of the Grantor estab-lished by EPA.

Section 4. Payment for Plugging and Aban-donment. The Trustee shall make paymentsfrom the Fund as the EPA Regional Admin-istrator shall direct, in writing, to providefor the payment of the costs of plugging andabandonment of the injection wells coveredby this Agreement. The Trustee shall reim-burse the Grantor or other persons as speci-fied by the EPA Regional Administratorfrom the Fund for plugging and abandon-ment expenditures in such amounts as theEPA Regional Administrator shall direct inwriting. In addition, the Trustee shall refundto the Grantor such amounts as the EPA Re-gional Administrator specifies in writing.Upon refund, such funds shall no longer con-stitute part of the Fund as defined herein.

Section 5. Payments Comprising the Fund.Payments made to the Trustee for the Fundshall consist of cash or securities acceptableto the Trustee.

Section 6. Trustee Management. The Trusteeshall invest and reinvest the principal andincome of the Fund and keep the Fund in-vested as a single fund, without distinctionbetween principal and income, in accordancewith general investment policies and guide-lines which the Grantor may communicatein writing to the Trustee from time to time,subject, however, to the provisions of thisSection. In investing, reinvesting, exchang-ing, selling, and managing the Fund, theTrustee shall discharge his duties with re-spect to the trust fund solely in the interestof the beneficiary and with the care, skill,prudence, and diligence under the cir-cumstances then prevailing which persons ofprudence, acting in a like capacity and fa-miliar with such matters, would use in theconduct of an enterprise of a like characterand with like aims; except that:

(i) Securities or other obligations of theGrantor, or any other owner or operator ofthe facilities, or any of their affiliates as de-fined in the Investment Company Act of 1940,

as amended, 15 U.S.C. 80a–2.(a), shall not beacquired or held, unless they are securitiesor other obligations of the Federal or a Stategovernment;

(ii) The Trustee is authorized to invest theFund in time or demand deposits of theTrustee, to the extent insured by an agencyof the Federal or State government; and

(iii) The Trustee is authorized to hold cashawaiting investment or distributionuninvested for a reasonable time and with-out liability for the payment of interestthereon.

Section 7. Commingling and Investment. TheTrustee is expressly authorized in its discre-tion:

(a) To transfer from time to time any orall of the assets of the Fund to any common,commingled, or collective trust fund createdby the Trustee in which the Fund is eligibleto participate, subject to all of the provi-sions thereof, to be commingled with the as-sets of other trusts participating therein;and

(b) To purchase shares in any investmentcompany registered under the InvestmentCompany Act of 1940, 15 U.S.C. 80a–1 et seq.,including one which may be created, man-aged, underwritten, or to which investmentadvice is rendered or the shares of which aresold by the Trustee. The Trustee may voteshares in its discretion.

Section 8. Express Powers of Trustee. Withoutin any way limiting the powers and discre-tions conferred upon the Trustee by theother provisions of this Agreement or bylaw, the Trustee is expressly authorized andempowered:

(a) To sell, exchange, convey, transfer, orotherwise dispose of any property held by it,by public or private sale. No person dealingwith the Trustee shall be bound to see to theapplication of the purchase money or to in-quire into the validity or expediency of anysuch sale or other disposition;

(b) To make, execute, acknowledge, and de-liver any and all documents of transfer andconveyance and any and all other instru-ments that may be necessary or appropriateto carry out the powers herein granted;

(c) To register any securities held in theFund in its own name or in the name of anominee and to hold any security in bearerform or in book entry, or to combine certifi-cates representing such securities with cer-tificates of the same issue held by the Trust-ee in other fiduciary capacities, or to depositor arrange for the deposit of such securitiesin a qualified central depository eventhough, when so deposited, such securitiesmay be merged and held in bulk in the nameof the nominee of such depositary with othersecurities deposited therein by another per-son, or to deposit or arrange for the depositof any securities issued by the United StatesGovernment, or any agency or instrumental-ity thereof, with a Federal Reserve bank, but


566

40 CFR Ch. I (7–1–98 Edition)§ 144.70

the books and records of the Trustee shall atall times show that all such securities arepart of the Fund;

(d) To deposit any cash in the Fund in in-terest-bearing accounts maintained or sav-ings certificates issued by the Trustee, in itsseparate corporate capacity, or in any otherbanking institution affiliated with theTrustee, to the extent insured by an agencyof the Federal or State government; and

(e) To compromise or otherwise adjust allclaims in favor of or against the Fund.

Section 9. Taxes and Expenses. All taxes ofany kind that may be assessed or leviedagainst or in respect of the Fund and all bro-kerage commissions incurred by the Fundshall be paid from the Fund. All other ex-penses incurred by the Trustee in connectionwith the administration of this Trust, in-cluding fees for legal services rendered to theTrustee, the compensation of the Trustee tothe extent not paid directly by the Grantor,and all other proper charges and disburse-ments of the Trustee shall be paid from theFund.

Section 10. Annual Valuation. The Trusteeshall annually, at least 30 days prior to theanniversary date of establishment of theFund, furnish to the Grantor and to the ap-propriate EPA Regional Administrator astatement confirming the value of the Trust.Any securities in the Fund shall be valued atmarket value as of no more than 60 daysprior to the anniversary date of establish-ment of the Fund. The failure of the Grantorto object in writing to the Trustee within 90days after the statement has been furnishedto the Grantor and the EPA Regional Admin-istrator shall constitute a conclusively bind-ing assent by the Grantor, barring theGrantor from asserting any claim or liabilityagainst the Trustee with respect to mattersdisclosed in the statement.

Section 11. Advice of Counsel. The Trusteemay from time to time consult with counsel,who may be counsel to the Grantor, with re-spect to any question arising as to the con-struction of this Agreement of any action tobe taken hereunder. The Trustee shall befully protected, to the extent permitted bylaw, in acting upon the advice of counsel.

Section 12. Trustee Compensation. The Trust-ee shall be entitled to reasonable compensa-tion for its services as agreed upon in writ-ing from time to time with the Grantor.

Section 13. Successor Trustee. The Trusteemay resign or the Grantor may replace theTrustee, but such resignation or replacementshall not be effective until the Grantor hasappointed a successor trustee and this suc-cessor accepts the appointment. The succes-sor trustee shall have the same powers andduties as those conferred upon the Trusteehereunder. Upon the successor trustee’s ac-ceptance of the appointment, the Trusteeshall assign, transfer, and pay over to thesuccessor trustee the funds and properties

then constituting the Fund. If for any reasonthe Grantor cannot or does not act in theevent of the resignation of the Trustee, theTrustee may apply to a court of competentjurisdiction for the appointment of a succes-sor trustee or for instructions. The successortrustee shall specify the date on which it as-sumes administration of the trust in a writ-ing sent to the Grantor, the EPA RegionalAdministrator, and the present Trustee bycertified mail 10 days before such change be-comes effective. Any expenses incurred bythe Trustee as a result of any of the actscontemplated by this Section shall be paid asprovided in Section 9.

Section 14. Instructions to the Trustee. All or-ders, requests, and instructions by theGrantor to the Trustee shall be in writing,signed by such persons as are designated inthe attached Exhibit A or such other des-ignees as the Grantor may designate byamendment to Exhibit A. The Trustee shallbe fully protected in acting without inquiryin accordance with the Grantor’s orders, re-quests, and instructions. All orders, re-quests, and instructions by the EPA Re-gional Administrator to the Trustee shall bein writing, signed by the EPA Regional Ad-ministrators of the Regions in which the fa-cilities are located, or their designees, andthe Trustee shall act and shall be fully pro-tected in acting in accordance with such or-ders, requests, and instructions. The Trusteeshall have the right to assume, in the ab-sence of written notice to the contrary, thatno event constituting a change or a termi-nation of the authority of any person to acton behalf of the Grantor or EPA hereunderhas occurred. The Trustee shall have no dutyto act in the absence of such orders, re-quests, and instructions from the Grantorand/or EPA, except as provided for herein.

Section 15. Notice of Nonpayment. The Trust-ee shall notify the Grantor and the appro-priate EPA Regional Administrator, by cer-tified mail within 10 days following the expi-ration of the 30-day period after the anniver-sary of the establishment of the Trust, if nopayment is received from the Grantor duringthat period. After the pay-in period is com-pleted, the Trustee shall not be required tosend a notice of nonpayment.

Section 16. Amendment of Agreement. ThisAgreement may be amended by an instru-ment in writing executed by the Grantor, theTrustee, and the appropriate EPA RegionalAdministrator, or by the Trustee and the ap-propriate EPA Regional Administrator if theGrantor ceases to exist.

Section 17. Irrevocability and Termination.Subject to the right of the parties to amendthis Agreement as provided in Section 16,this Trust shall be irrevocable and shall con-tinue until terminated at the written agree-ment of the Grantor, the Trustee, and theEPA Regional Administrator, or by the


567


Trustee and the EPA Regional Adminis-trator if the Grantor ceases to exist. Upontermination of the Trust, all remaining trustproperty, less final trust administration ex-penses, shall be delivered to the Grantor.

Section 18. Immunity and Indemnification.The Trustee shall not incur personal liabil-ity of any nature in connection with any actor omission, made in good faith, in the ad-ministration of this Trust, or in carrying outany directions by the Grantor or the EPARegional Administrator issued in accordancewith this Agreement. The Trustee shall beindemnified and saved harmless by theGrantor or from the Trust Fund, or both,from and against any personal liability towhich the Trustee may be subjected by rea-son of any act or conduct in its official ca-pacity, including all expenses reasonably in-curred in its defense in the event the Grant-or fails to provide such defense.

Section 19. Choice of Law. This Agreementshall be administered, construed, and en-forced according to the laws of the State of[insert name of State].

Section 20. Interpretation. As used in thisAgreement, words in the singular include theplural and words in the plural include thesingular. The descriptive headings for eachSection of this Agreement shall not affectthe interpretation or the legal efficacy ofthis Agreement.

In Witness Whereof the parties have causedthis Agreement to be executed by their re-spective officers duly authorized and theircorporate seals to be hereunto affixed and at-tested as of the date first above written. Theparties below certify that the wording of thisAgreement is identical to the wording speci-fied in 40 CFR 144.70(a)(1) as such regulationswere constituted on the date first abovewritten.[Signature of Grantor]

By [Title]Attest:

[TITLE]

[SEAL]

[Signature of Trustee]By

Attest:

[TITLE]

[SEAL]

(2) The following is an example of thecertification of acknowledgment whichmust accompany the trust agreementfor a trust fund as specified in§ 144.63(a). State requirements may dif-fer on the proper content of this ac-knowledgment.State of ———————————————————County of ——————————————————

On this [date], before me personally came[owner or operator] to me known, who, beingby me duly sworn, did depose and say thatshe/he resides at [address], that she/he is[title] of [corporation], the corporation de-scribed in and which executed the above in-strument; that she/he knows the seal of saidcorporation; that the seal affixed to such in-strument is such corporate seal; that it wasso affixed by order to the Board of Directorsof said corporation, and that she/he signedher/his name thereto by like order.[Signature of Notary Public]

(b) A surety bond guaranteeing pay-ment into a trust fund, as specified in§ 144.63 of this chapter, must be wordedas follows, except that instructions inbrackets are to be replaced with therelevant information and the bracketsdeleted:

FINANCIAL GUARANTEE BOND

Dated bond executed: ————————————Effective date: ———————————————

Principal: [legal name and business addressof owner or operator].

Type of organization: [insert ‘‘individual,’’‘‘joint venture,’’ ‘‘partnership,’’ or ‘‘corpora-tion’’].State of incorporation: ———————————

Surety(ies): [name(s) and business ad-dress(es)].

EPA Identification Number, name, address,and plugging and abandonment amount(s)for each facility guaranteed by this bond [in-dicate plugging and abandonment amountsseparately]: lll

Total penal sum of bond: $lllSurety’s bond number: lllKnow All Persons By These Presents, That

we, the Principal and Surity(ies) hereto arefirmly bound to the U.S. Environmental Pro-tection Agency (hereinafter called EPA), inthe above penal sum for the payment ofwhich we bind ourselves, our heirs, execu-tors, administrators, successors, and assignsjointly and severally; provided that, wherethe Surety(ies) are corporations acting as co-surties, we, the Sureties, bind ourselves insuch sum ‘‘jointly and severally’’ only forthe purpose of allowing a joint action or ac-tions against any or all of us, and for allother purposes each Surety binds itself,jointly and severally with the Principal, forthe payment of such sum only as is set forthopposite the name of such Surety, but if nolimit of liability is indicated, the limit of li-ability shall be the full amount of the penalsum.

Whereas said Principal is required, underthe Underground Injection Control Regula-tions (UIC), to have a permit or comply withrequirements to operate under rule in orderto own or operate each injection well identi-fied above, and


568

40 CFR Ch. I (7–1–98 Edition)§ 144.70

Whereas said Principal is required to pro-vide financial assurance for plugging andabandonment as a condition of the permit orprovisions to operate under rule, and

Whereas said Principal shall establish astandby trust fund as is required when a sur-ety bond is used to provide such financial as-surance;

Now, therefore, the conditions of the obli-gation are such that if the Principal shallfaithfully, before the beginning of pluggingand abandonment of each injection wellidentified above, fund the standby trust fundin the amount(s) identified above for the in-jection well,

Or if the Principal shall fund the standbytrust fund in such amount(s) within 15 daysafter an order to begin plugging and aban-donment is issued by an EPA Regional Ad-ministrator or a U.S. district court or othercourt of competent jurisdiction,

Or, if the Principal shall provide alternatefinancial assurance, as specified in subpart Fof 40 CFR part 144, as applicable, and obtainthe EPA Regional Administrator’s writtenapproval of such assurance, within 90 daysafter the date of notice of cancellation is re-ceived by both the Principal and the EPARegional Administrator(s) from the Sur-ety(ies), then this obligation shall be nulland void, otherwise it is to remain in fullforce and effect.

The Surety(ies) shall become liable on thisbond obligation only when the Principal hasfailed to fulfill the conditions describedabove. Upon notification by an EPA Re-gional Administrator that the Principal hasfailed to perform as guaranteed by this bond,the Surety(ies) shall place funds in theamount guaranteed for the injection well(s)into the standby trust funds as directed bythe EPA Regional Administrator.

The liability of the Surety(ies) shall not bedischarged by any payment or succession ofpayments hereunder, unless and until suchpayment or payments shall amount in theaggregate to the penal sum of the bond, butin no event shall the obligation of the Sur-ety(ies) hereunder exceed the amount of saidpenal sum.

The Surety(ies) may cancel the bond bysending notice of cancellation by certifiedmail to the Principal and to the EPA Re-gional Administrator(s) for the Region(s) inwhich the injection well(s) is (are) located,provided, however, that that cancellationshall not occur during the 120 days beginningon the date of receipt of the notice of can-cellation by both the Principal and the EPARegional Administrator(s), as evidenced bythe return receipts.

The Principal may terminate this bond bysending written notice to the Surety(ies),provided, however, that no such notice shallbecome effective until the Surety(ies) re-ceive(s) written authorization for termi-nation of the bond by the EPA Regional Ad-

ministrator(s) of the Region(s) in which thebonded facility(ies) is (are) located.

[The following paragraph is an optionalrider that may be included but is not re-quired.]

Principal and Surety(ies) hereby agree toadjust the penal sum of the bond yearly sothat it guarantees a new plugging and aban-donment amount, provided that the penalsum does not increase by more than 20percent in any one year, and no decrease inthe penal sum takes place without the writ-ten permission of the EPA Regional Admin-istrator(s).

In Witness Whereof, the Principal and Sur-ety(ies) have executed this Financial Guar-antee Bond and have affixed their seals onthe date set forth above.

The persons whose signatures appear belowhereby certify that they are authorized toexecute this surety bond on behalf of thePrincipal and Surety(ies) and that the word-ing of this surety bond is identical to thewording specified in 40 CFR 144.70(b) as suchregulations were constituted on the date thisbond was executed.

PRINCIPAL

[Signature(s)][Name(s)][Title(s)][Corporate seal]

CORPORATE SURETY(IES)

[Name and address]State of incorporation: lll.Liability limit: $lll.

[Signature(s)][Name(s) and title(s)][Corporate seal][For every co-surety, provide signature(s),corporate seal, and other information in thesame manner as for Surety above.]

Bond premium: $lll.

(c) A surety bond guaranteeing per-formance of plugging and abandon-ment, as specified in § 144.63(c), must beworded as follows, except that the in-structions in brackets are to be re-placed with the relevant informationand the brackets deleted:

PERFORMANCE BOND

Date bond executed: lll.Effective date: lll.Principal: [legal name and business address

of owner or operator].Type of organization: [insert ‘‘individual,’’

‘‘joint venture,’’ ‘‘partnership,’’ or ‘‘corpora-tion’’].

State of incorporation: lll.Surety(ies): [name(s) and business ad-

dress(es)]————————————————————————


569


EPA Identification Number, name, address,and plugging and abandonment amounts(s)for each injection well guaranteed by thisbond [indicate plugging and abandonmentamounts for each well]:————————————————————————

Total penal sum of bond: $lll.Surety’s bond number: lll.Know All Persons By These Presents, That

We, the Principal and Surety(ies) hereto arefirmly bound to the U.S. Environmental Pro-tection Agency [hereinafter called EPA], inthe above penal sum for the payment ofwhich we bind ourselves, our heirs, execu-tors, administrators, successors, and assignsjointly and severally; provided that, wherethe Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves insuch sum ‘‘jointly and severally’’ only forthe purpose of allowing a joint action or ac-tions against any or all of us, and for allother purposes each Surety binds itself,jointly and severally with the Principal, forthe payment of such sum only as is set forthopposite the name of such Surety, but if nolimit of liability is indicated, the limit of li-ability shall be the full amount of the penalsum.

Whereas said Principal is required, underthe Undergound Injection Control Regula-tions, as amended, to have a permit or com-ply with provisions to operate under rule foreach injection well identified above, and

Whereas said Principal is required to pro-vide financial assurance for plugging andabandonment as a condition of the permit orapproval to operate under rule, and

Whereas said Principal shall establish astandby trust fund as is required when asurety bond is used to provide such financialassurance;

Now, Therefore, the conditions of this obli-gation are such that if the Principal shallfaithfully perform plugging and abandon-ment, whenever required to do so, of each in-jection well for which this bond guaranteesplugging and abandonment, in accordancewith the plugging and abandonment plan andother rquirements of the permit or provi-sions for operating under rule and other re-quirements of the permit or provisions foroperating under rule as may be amended,pursuant to all applicable laws, statutes,rules and regulations, as such laws, statutes,rules, and regulations may be amended,

Or, if the Principal shall provide alternatefinancial assurance as specified in subpart Fof 40 CFR part 144, and obtain the EPA Re-gional Administrator’s written approval ofsuch assurance, within 90 days after the dateof notice of cancellation is received by boththe Principal and the EPA Regional Admin-istrator(s) from the Surety(ies), then this ob-ligation shall be null and void, otherwise itis to remain in full force and effect.

The Surety(ies) shall become liable on thisbond obligation only when the Principal has

failed to fulfill the conditions describedabove.

Upon notification by an EPA Regional Ad-ministrator that the Principal has beenfound in violation of the plugging and aban-donment requirements of 40 CFR part 144, foran injection well which this bond guaranteesperformances of plugging and abandonment,the Surety(ies) shall either perform pluggingand abandonment in accordance with theplugging and abandonment plan and otherpermit requirements or provisions for oper-ating under rule and other requirements orplace the amount for plugging and abandon-ment into a standby trust fund as directedby the EPA Regional Administrator.

Upon notification by an EPA Regional Ad-ministrator that the Principal has failed toprovide alternate financial assurance asspecified in subpart F of 40 CFR part 144, andobtain written approval of such assurancefrom the EPA Regional Administrator(s)during the 90 days following receipt by boththe Principal and the EPA Regional Admin-istrator(s) of a notice of cancellation of thebond, the Surety(ies) shall place funds in theamount guaranteed for the injection well(s)into the standby trust fund as directed bythe EPA Regional Administrator.

The surety(ies) hereby waive(s) notifica-tion of amendments to plugging and aban-donment plans, permits, applicable laws,statutes, rules, and regulations and agreesthat no such amendment shall in any way al-leviate its (their) obligation on this bond.

The liability of the Surety(ies) shall not bedischarged by any payment or succession ofpayments hereunder, unless and until suchpayment or payments shall amount in theaggregate to the penal sum of the bond, butin no event shall the obligation of the Sur-ety(ies) hereunder exceed the amount of saidpenal sum.

The Surety(ies) may cancel the bond bysending notice by certified mail to the owneror operator and to the EPA Regional Admin-istrator(s) for the Region(s) in which the in-jection well(s) is (are) located, provided,however, that cancellation shall not occurduring the 120 days beginning on the date ofreceipt of the notice of cancellation by boththe Principal and the EPA Regional Admin-istrator(s), as evidenced by the return re-ceipts.

The principal may terminate this bond bysending written notice to the Surety(ies),provided, however, that no such notice shallbecome effective until the Surety(ies) re-ceive(s) written authorization for termi-nation of the bond by the EPA Regional Ad-ministrator(s) of the EPA Region(s) in whichthe bonded injection well(s) is (are) located.

[The following paragraph is an optionalrider that may be included but is not re-quired.]

Principal and Surety(ies) hereby agree toadjust the penal sum of the bond yearly so


570

40 CFR Ch. I (7–1–98 Edition)§ 144.70

that it guarantees a new plugging and aban-donment amount, provided that the penalsum does not increase by more than 20percent in any one year, and no decrease inthe penal sum takes place without thewritten permission of the EPA Regional Ad-ministrator(s).

In Witness Whereof, The Principal and Sur-ety(ies) have executed this PerformanceBond and have affixed their seals on the dateset forth above.

The persons whose signatures appear belowhereby certify that they are authorized toexecute this surety bond on behalf of thePrincipal and Surety(ies) and that the word-ing on this surety bond is identical to thewording specified in 40 CFR 144.70(c) as suchregulation was constituted on the date thisbond was executed.

Principal.[Signature(s)][Name(s)][Title(s)][Corporate seal][Corporate Surety(ies)][Name and address]

State of incorporation:————————————————————————

Liability limit: $lll.[Signature(s)][Name(s) and title(s)]

Corporate seal:[For every co-surety, provide signature(s),corporate seal, and other information in thesame manner as for Surety above.]

Bond premium: $lll.

(d) A letter of credit, as specified in§ 144.63(d) of this chapter, must beworded as follows, except that instruc-tions in brackets are to be replacedwith the relevant information and thebrackets deleted:

IRREVOCABLE STANDBY LETTER OF CREDIT

Regional Administrator(s)Region(s) ——————————————————

U.S. Environmental Protection Agency.Dear Sir or Madam:We hereby establish our Irrevocable Stand-

by Letter of Credit No. lll in your favor,at the request and for the account of [own-er’s or operator’s name and address] up tothe aggregate amount of [in words] U.S. dol-lars $lll, available upon presentation [in-sert, if more than one Regional Adminis-trator is a beneficiary, ‘‘by any one of you’’]of

(1) Your sight draft, bearing reference tothis letter of credit No. lll, and

(2) Your signed statement reading as fol-lows: ‘‘I certify that the amount of the draftis payable pursuant to regulations issuedunder authority of the Safe Drinking WaterAct.’’

This letter of credit is effective as of [date]and shall expire on [date at least 1 year

later], but such expiration date shall beautomatically extended for a period of [atleast 1 year] on [date] and on each successiveexpiration date, unless, at least 120 days be-fore the current expiration date, we notifyboth you and [owner’s or operator’s name] bycertified mail that we have decided not toextend this letter of credit beyond the cur-rent expiration date. In the event you are sonotified, any unused portion of the creditshall be available upon presentation of yoursight draft for 120 days after the date of re-ceipt by both you and [owner’s or operator’sname], as shown on the signed returnreceipts.

Whenever this letter of credit is drawn onunder and in compliance with the terms ofthis credit, we shall duly honor such draftupon presentation to us, and we shall depositthe amount of the draft directly into thestandby trust fund of [owner’s or operator’sname] in accordance with your instructions.

We certify that the wording of this letterof credit is identical to the wording specifiedin 40 CFR 144.70(d) as such regulations wereconstituted on the date shown immediatelybelow.[Signature(s) and title(s) of official(s) ofissuing institution][Date]

This credit is subject to [insert ‘‘the mostrecent edition of the Uniform Customs andPractice for Documentary Credits, publishedand copyrighted by the International Cham-ber of Commerce,’’ or ‘‘the Uniform Commer-cial Code’’].

(e) A certificate of insurance, as spec-ified in § 144.63(e) of this chapter, mustbe worded as follows, except that in-structions in brackets are to be re-placed with the relevant informationand the brackets deleted:

Certificate of Insurance for Plugging andAbandonment

Name and Address of Insurer (herein calledthe ‘‘insurer’’):————————————————————————

Name and Address of Insurer (herein calledthe ‘‘insurer’’):————————————————————————

Injection Wells covered: [list for each well:The EPA Identification Number, name, ad-dress, and the amount of insurance for plug-ging and abandonment (these amounts for allinjection wells covered must total the faceamount shown below).]Face Amount: ————————————————Policy Number: ——————————————Effective Date: ———————————————

The insurer hereby certifies that it hasissued to the Insured the policy of insuranceidentified above to provide financial assur-ance for plugging and abandonment for theinjection wells identified above. The Insurerfurther warrants that such policy conforms


571


in all respects with the requirements of 40CFR 144.63(e), as applicable and as such regu-lations were constituted on the date shownimmediately below. It is agreed that anyprovision of the policy inconsistent withsuch regulations is hereby amended to elimi-nate such inconsistency.

Whenever requested by the EPA RegionalAdministrator(s) of the U.S. EnvironmentalProtection Agency, the Insurer agrees to fur-nish to the EPA Regional Administrator(s) aduplicate original of the policy listed above,including all endorsements thereon.

I hereby certify that the wording of thiscertificate is identical to the wording speci-fied in 40 CFR 144.70(e) as such regulationswere constituted on the date shown imme-diately below.[Authorized signature of Insurer][Name of person signing][Title of person signing]

[Signature of witness or notary:]————————————————————————[Date]

(f) A letter from the chief financialofficer, as specified in § 144.63(f) of thischapter, must be worded as follows, ex-cept that instructions in brackets areto be replaced with the relevant infor-mation and the brackets deleted:

LETTER FROM CHIEF FINANCIAL OFFICER

[Address to Regional Administrator ofevery Region in which injection wells forwhich financial responsibility is to be dem-onstrated through the financial test arelocated.]

I am the chief financial officer of [nameand address of firm.] This letter is in supportof this firm’s use of the financial test todemonstrate financial assurance, as specifiedin subpart F of 40 CFR part 144.

[Fill out the following four paragraphs re-garding injection wells and associated costestimates. If your firm has no injection wellsthat belong in a particular paragraph, write‘‘None’’ in the space indicated. For each in-jection well, include its EPA IdentificationNumber, name, address, and current plug-ging and abandonment cost estimate.]

1. This firm is the owner or operator of thefollowing injection wells for which financialassurance for plugging and abandonment isdemonstrated through the financial testspecified in subpart F of 40 CFR part 144. Thecurrent plugging and abandonment cost esti-mate covered by the test is shown for eachinjection well: lll.

2. This firm guarantees, through the cor-porate guarantee specified in subpart F of 40CFR part 144, the plugging and abandonmentof the following injection wells owned or op-erated by subsidaries of this firm. The cur-rent cost estimate for plugging and abandon-

ment so guaranteed is shown for each injec-tion well: lll.

3. In States where EPA is not administer-ing the financial requirements of subpart Fof 40 CFR part 144, this firm, as owner or op-erator or guarantor, is demonstrating finan-cial assurance for the plugging andabandoment of the following injection wellsthrough the use of a test equivalent or sub-stantially equivalent to the financial testspecified in subpart F of 40 CFR part 144. Thecurrent plugging and abandonment cost esti-mate covered by such a test is shown foreach injection well: lll.

4. This firm is the owner or operator of thefollowing injection wells for which financialassurance for plugging and abandonment isnot demonstrated either to EPA or a Statethrough the financial test or any other fi-nancial assurance mechanism specified insubpart F of 40 CFR part 144 or equivalent orsubstantially equivalent State mechanisms.The current plugging and abandonment costestimate not covered by such financial assur-ance is shown for each injection well: lll.

This firm [insert ‘‘is required’’ or ‘‘is notrequired’’] to file a Form 10K with the Secu-rities and Exchange Commission (SEC) forthe latest fiscal year.

The fiscal year of this firm ends on[month, day]. The figures for the followingitems marked with an asterisk are derivedfrom this firm’s independently audited, year-end financial statements for the latest com-pleted fiscal year, ended [date].

[Fill in Alternative I if the criteria of para-graph (f)(1)(i) of § 144.63 of this chapter areused. Fill in Alternative II if the criteria ofparagraph (f)(1)(ii) of § 144.63 of this chapterare used.]

ALTERNATIVE I1. (a) Current plugging and abandonment cost $————

(b) Sum of the company’s financial respon-sibilities under 40 CFR Parts 264 and265, Subpart H, currently met using thefinancial test or corporate guarantee ...... ....................

(c) Total of lines a and b ............................ ....................*2. Total liabilities [if any portion of the plugging

and abandonment cost is included in total li-abilities, you may deduct the amount of thatportion from this line and add that amount tolines 3 and 4] .................................................. ....................

*3. Tangible net worth ........................................ ....................*4. Net worth ...................................................... ....................*5. Current assets .............................................. ....................*6. Current liabilities ........................................... ....................*7. Net working capital [line 5 minus line 6] ...... ....................*8. The sum of net income plus depreciation,

depletion and amortization ............................. ....................*9. Total assets in U.S. (required only if less

than 90% of firm’s assets are located inU.S.) ............................................................... ....................

Yes No

10. Is line 3 at least $10 million? ... ................ ....................11. Is line 3 at least 6 times line

1(c)? ............................................ ................ ....................


572

40 CFR Ch. I (7–1–98 Edition)§ 144.70

ALTERNATIVE I—Continued12. Is line 7 at least 6 times line

1(c)? ............................................ ................ ....................*13. Are at least 90% of firm’s as-

sets located in the U.S.? If not,complete line 14. ........................ ................ ....................

14. Is line 9 at least 6 times line1(c)? ............................................ ................ ....................

15. Is line 2 divided by line 4 lessthan 2.0? ..................................... ................ ....................

16. Is line 8 divided by line 2 great-er than 0.1? ................................ ................ ....................

17. Is line 5 divided by line 6 great-er than 1.5? ................................ ................ ....................

ALTERNATIVE II1. (a) Current plugging and abandonment cost $————

(b) Sum of the company’s financial respon-sibilities under 40 CFR Parts 264 and265, Subpart H, currently met using thefinancial test or corporate guarantee ...... ....................

(c) Total of lines a and b ............................ ....................2. Current bond rating of most recent issuance

of this firm and name of rating service .......... ....................3. Date of issuance of bond .............................. ....................4. Date of maturity of bond ................................ ....................*5. Tangible net worth [if any portion of the

plugging and abandonment cost estimate isincluded in ‘‘total liabilities’’ on your firm’s fi-nancial statements, you may add the amountof that portion to this line] .............................. ....................

*6. Total assets in U.S. (required only if lessthan 90% of firm’s assets are located inU.S.) ............................................................... ....................

Yes No

7. Is line 5 at least $10 million? ..... ................ ....................8. Is line 5 at least 6 times line

1(c)? ............................................ ................ ....................*9. Are at least 90% of the firm’s

assets located in the U.S.? Ifnot, complete line 10 .................. ................ ....................

10. Is line 6 at least 6 times line1(c)? ............................................ ................ ....................

I hereby certify that the wording of thisletter is identical to the wording specified in40 CFR 144.70(f) as such regulations were con-stituted on the date shown immediatelybelow.[Signature][Name][Title][Date]

(g) A corporate guarantee as specifiedin § 144.63(e) must be worded as followsexcept that instructions in bracketsare to be replaced with the relevant in-formation and the bracketed materialdeleted:

GUARANTEE FOR PLUGGING AND ABANDONMENT

Guarantee made this ll day of lll,19ll, by [name of guaranteeing entity], abusiness corporation organized under thelaws of the State of llll, herein referredto as guarantor, to the United States Envi-ronmental Protection Agency (EPA), obli-

gee, on behalf of our subsidiary [owner or op-erator] of [business address].Recitals

1. Guarantor meets or exceeds the financialtest criteria and agrees to comply with thereporting requirements for guarantors asspecified in 40 CFR 144.63(e).

2. [Owner or operator] owns or operates thefollowing Class I hazardous waste injectionwell covered by this guarantee: [List for eachfacility: EPA Identification Number, name,and address. Indicate for each whether guar-antee is for closure, post-closure care, orboth.]

3. ‘‘Plugging and abandonment plan’’ asused below refers to the plans maintained asrequired by 40 CFR part 144 for the pluggingand abandonment of injection wells as iden-tified above.

4. For value received from [owner or opera-tor], guarantor guarantees to EPA that inthe event that [owner or operator] fails toperform [‘‘plugging and abandonment’’] ofthe above facility(ies) in accordance with theplugging and abandonment plan and otherrequirements when required to do so, theguarantor will do so or fund a trust fund asspecified in 40 CFR 144.63 in the name of[owner or operator] in the amount of the ad-justed plugging and abandonment cost esti-mates prepared as specified in 40 CFR 144.62.

5. Guarantor agrees that, if at the end ofany fiscal year before termination of thisguarantee, the guarantor fails to meet the fi-nancial test criteria, guarantor will sendwithin 90 days, by certified mail, notice tothe EPA Regional Administrator(s) for theRegion(s) in which the facility(ies) is (are)located and to [owner or operator] that heintends to provide alternate financial assur-ance as specified in 40 CFR 144.63 in the nameof [owner or operator]. Within 30 days aftersending such notice, the guarantor will es-tablish such financial assurance if [owner oroperator] has not done so.

6. The guarantor agrees to notify the Re-gional Administrator, by certified mail, of avoluntary or involuntary case under Title 11,U.S. Code, naming guarantor as debtor, with-in 10 days after its commencement.

7. Guarantor agrees that within 30 daysafter being notified by an EPA Regional Ad-ministrator of a determination that guaran-tor no longer meets the financial test cri-teria or that he is disallowed from continu-ing as a guarantor of plugging andadandonment, he will establish alternate fi-nancial assurance, as specified in 40 CFR144.63, in the name of [owner or operator] if[owner or operator] has not done so.

8. Guarantor agrees to remain bound underthis guarantee notwithstanding any or all ofthe following: amendment or modification ofthe plugging and abandonment plan, the ex-tension or reduction of the time of perform-ance of plugging and abandonment or any


573


other modification or alteration of an obli-gation of [owner or operator] pursuant to 40CFR part 144.

9. Guarantor agrees to remain bound underthis guarantee for so long as [owner or oper-ator] must comply with the applicable finan-cial assurance requirements of 40 CFR part144 for the above-listed facilities, except thatguarantor may cancel this guarantee bysending notice by certified mail, to the EPARegional Administrator(s) for the Region(s)in which the facility(ies) is (are) located andto [owner or operator], such cancellation tobecome effective no earlier than 120 daysafter actual receipt of such notice by bothEPA and [owner or operator] as evidenced bythe return receipts.

10. Guarantor agrees that if [owner or oper-ator] fails to provide alternate financial as-surance and obtain written approval of suchassurance from the EPA Regional Adminis-trator(s) within 90 days after a notice of can-cellation by the guarantor is received byboth the EPA Regional Administrator(s) and[owner or operator], guarantor will providealternate financial assurance as specified in40 CFR 144.63 in the name of [owner or opera-tor].

11. Guarantor expressly waives notice ofacceptance of this guarantee by the EPA orby [owner or operator]. Guarantor also ex-pressly waives notice of amendments ormodifications of the plugging and abandon-ment plan.

I hereby certify that the wording of thisguarantee is identical to the wording speci-fied in 40 CFR 144.70(f).

Effective date: lll.[Name of guarantor][Authorized signature for guarantor][Type name of person signing][Title of person signing]

Signature of witness or notary: lll


PART 145—STATE UIC PROGRAMREQUIREMENTS

Subpart A—General ProgramRequirements

Sec.145.1 Purpose and scope.145.2 Definitions.

Subpart B—Requirements for StatePrograms

145.11 Requirements for permitting.145.12 Requirements for compliance evalua-

tion programs.145.13 Requirements for enforcement au-

thority.145.14 Sharing of information.

Subpart C—State Program Submissions

145.21 General requirements for program ap-provals.

145.22 Elements of a program submission.145.23 Program description.145.24 Attorney General’s statement.145.25 Memorandum of Agreement with the

Regional Administrator.

Subpart D—Program Approval, Revisionand Withdrawal

145.31 Approval process.145.32 Procedures for revision of State pro-

grams.145.33 Criteria for withdrawal of State pro-

grams.145.34 Procedures for withdrawal of State

programs.

Subpart E—Indian Tribes

145.52 Requirements for Tribal eligibility.145.56 Request by an Indian Tribe for a de-

termination of eligibility.145.58 Procedure for processing an Indian

Tribe’s application.

AUTHORITY: 42 U.S.C. 300f et seq.

SOURCE: 48 FR 14202, Apr. 1, 1983, unlessotherwise noted.

Subpart A—General ProgramRequirements

§ 145.1 Purpose and scope.(a) This part specifies the procedures

EPA will follow in approving, revising,and withdrawing State programs undersection 1422 (underground injectioncontrol—UIC) of SDWA, and includesthe elements which must be part ofsubmissions to EPA for program ap-proval and the substantive provisionswhich must be present in State pro-grams for them to be approved.

(b) State submissions for program ap-proval must be made in accordancewith the procedures set out in subpartC. This includes developing and sub-mitting to EPA a program description(§ 145.23), an Attorney General’s State-ment (§ 145.24), and a Memorandum ofAgreement with the Regional Adminis-trator (§ 145.25).

(c) The substantive provisions whichmust be included in State programs toobtain approval include requirementsfor permitting, compliance evaluation,enforcement, public participation, andsharing of information. The require-ments are found in subpart B. Many of


environmental protection agency pt. 144legismex.mty.itesm.mx/secc_inter/40cfr/40cfrpart144.pdf ·...

Documents