Section 0400-45-06-.04 - PREVENTION OF POLLUTION OF GROUND WATER AND IDENTIFICATION OF UNDERGROUND SOURCES OF DRINKING WATER AND EXEMPTED AQUIFERS(1) No owner or operator shall construct, operate, maintain, convert, plug, abandon, or conduct any other injection activity in a manner that allows the movement of fluid containing any contaminant into underground sources of drinking water, if the presence of that contaminant may cause a violation of any primary drinking water regulation or may otherwise adversely affect the health of persons. The applicant for a permit shall have the burden of showing that the requirements of this paragraph are met.(2) For Class I, II and III wells, if any water quality monitoring of an underground source of drinking water indicates the movement of any contaminant into the underground source of drinking water, except as authorized under this rule, the Commissioner shall prescribe such additional requirements for construction, corrective action, operation, monitoring, or reporting (including closure of the injection well) as are necessary to prevent such movement. In the case of wells authorized by permit, the Commissioner may impose additional requirements by modifying the permit in accordance with Rule paragraph (8) of Rule 0400-45-06-.08 or may terminate the permit in accordance with paragraph (9) of Rule 0400-45-06-.08. Additionally, the Commissioner may assess civil penalties for all permit or rule violations in accordance with T.C.A § 69-3-115.(3) For class V wells, if at any time the Commissioner learns that a Class V well may cause a violation of primary drinking water regulations he or she shall: (a) Require the injector to obtain an individual permit; and/or(b) Order the injector to take such actions (including, where required, closure of the injection well) as may be necessary to prevent the violation; and/or(c) Take enforcement action.(4) Whenever the Commissioner learns that a Class V well may be otherwise adversely affecting the health of persons, he or she may prescribe such actions as may be necessary to prevent the adverse effect, including any action authorized under paragraph (3) of this rule and assess civil penalties in accordance with T.C.A § 69-3-115.(5) Notwithstanding any other provision of this rule, the Commissioner may take emergency action upon receipt of information that a contaminant which is present in or likely to enter a public water system or underground source of drinking water may present an imminent and substantial endangerment to the health of persons. The Commissioner must first determine that local authorities have not taken appropriate action to protect the health of such persons, before taking emergency action.(6) Identification of Underground Sources of Drinking Water (a) The Commissioner may identify (by narrative description, illustrations, maps, or other means) and shall protect, except where exempted under subparagraph (b) of this paragraph, as an underground source of drinking water, all aquifers or parts of aquifers which meet the definition of an "underground source of drinking water'' in Rule 0400-45-06-.02. Even if an aquifer has not been specifically identified by the commissioner, it is an underground source of drinking water if it meets the definition in Rule 0400-45-06-.02.(b)1. The Commissioner may identify (by narrative description, illustrations, maps, or other means) and describe in geographic and/or geometric terms (such as vertical and lateral limits and gradient) which are clear and definite, all aquifers or parts thereof which the Commissioner proposes to designate as exempted aquifers using the criteria in paragraph (7) of this rule.2. No designation of an exempted aquifer submitted as part of a UIC Program shall be final until approved by the EPA Administrator. 3 Subsequent to program approval or promulgation by the EPA, the Commissioner may, after notice and opportunity for a public hearing, identify additional exempted aquifers.
(i) Exemption of aquifers identified under subparagraph (7)(b) of this Rule shall be treated as a program revision under 40 CFR 145.32. (Note: 40 CFR 145.32 provides that:
(a) Either EPA or the approved state may initiate program revision. Program revision may be necessary when the controlling federal or state statutory or regulatory authority is modified or supplemented. The state shall keep EPA fully informed of any proposed modifications to its basic statutory or regulatory authority, its forms, procedures, or priorities.(b) Revision of a state program shall be accomplished as follows: (1) The state shall submit a modified program description, Attorney General's statement, Memorandum of Agreement, or such other documents as EPA determines to be necessary under the circumstances.(2) Whenever EPA determines that the proposed program revision is substantial, EPA shall issue public notice and provide an opportunity to comment for a period of at least 30 days. The public notice shall be mailed to interested persons and shall be published in the Federal Register and in enough of the largest newspapers in the state to provide statewide coverage. The public notice shall summarize the proposed revisions and provide for the opportunity to request a public hearing. Such a hearing will be held if there is significant public interest based on requests received.(3) The Administrator shall approve or disapprove program revisions based on the requirements of this part and of the Safe Drinking Water Act.(4) A program revision shall become effective upon the approval of the Administrator. Notice of approval of any substantial revision shall be published in the Federal Register. Notice of approval of non-substantial program revisions may be given by a letter from the Administrator to the State Governor or his designee.)(ii) Exemption of aquifers identified under subparagraph (7)(c) of this Rule shall become final if the Commissioner submits the exemption in writing to the EPA Administrator and the EPA Administrator has not disapproved the designation within 45 days. Any disapproval by the EPA Administrator shall state the reasons and shall constitute final Agency action for purposes of judicial review.(c)1. For Class III wells, the Commissioner shall require an applicant for a permit which necessitates an aquifer exemption under part (7)(b)1 of this rule to furnish the data necessary to demonstrate that the aquifer is expected to be mineral or hydrocarbon producing. Information contained in the mining plan for the proposed project, such as a map and general description of the mining zone, general information on the mineralogy and geochemistry of the mining zone, analysis of the amenability of the mining zone to the proposed mining method, and a time-table of planned development of the mining zone shall be considered by the Commissioner in addition to the information required.2. For Class II wells, a demonstration of commercial producibility shall be made as follows: (i) For a Class II well to be used for enhanced oil recovery processes in a field or project containing aquifers from which hydrocarbons were previously produced, commercial producibility shall be presumed by the Commissioner upon a demonstration by the applicant of historical production having occurred in the project area or field; and(ii) For Class II wells not located in a field or project containing aquifers from which hydrocarbons were previously produced, information such as logs, core data, formation description, formation depth, formation thickness and formation parameters such as permeability and porosity shall be considered by the Commissioner, to the extent such information is available.(7) Exempted Aquifers An aquifer or a portion thereof which meets the criteria for an "underground source of drinking water'' may be determined to be an "exempted aquifer'' if it meets the following criteria:
(a) It does not currently serve as a source of drinking water; and(b) It cannot now and will not in the future serve as a source of drinking water because: 1. It is mineral, hydrocarbon or geothermal energy producing, or can be demonstrated by a permit applicant as part of a permit application for a Class II or III operation to contain minerals or hydrocarbons that considering their quantity and location are expected to be commercially producible;2. It is situated at a depth or location which makes recovery of water for drinking water purposes economically or technologically impractical;3. It is so contaminated that it would be economically or technologically impractical to render that water fit for human consumption; or4. It is located over a Class III well mining area subject to subsidence or catastrophic collapse; or
(c) The total dissolved solids content of the ground water is more than 3,000 and less than 10,000 mg/l and it is not reasonably expected to supply a public water system.Tenn. Comp. R. & Regs. 0400-45-06-.04
Original rule filed September 12, 2012; effective December 11, 2012. Rule renumbered from 1200-04-06.Authority: T.C.A. §§ 69-3-101 et seq. and 4-5-201 et seq.