42 U.S.C. § 300h — Regulations for State programs

Page 1268 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300h (2) Director The term ‘‘Director’’ means the Director of the Cybersecurity and Infrastructure Security Agency. (3) Incident The term ‘‘incident’’ has the meaning given the term in section 3552 of title 44. (4) Prioritization Framework The term ‘‘Prioritization Framework’’ means the prioritization framework developed by the Administrator under subsection (b)(1)(A). (5) Support Plan The term ‘‘Support Plan’’ means the Tech- nical Cybersecurity Support Plan developed by the Administrator under subsection (b)(2)(A). (b) Identification of and support for public water systems (1) Prioritization Framework (A) In general Not later than 180 days after November 15, 2021, the Administrator, in coordination with the Director, shall develop a prioritization framework to identify public water systems (including sources of water for those public water systems) that, if de- graded or rendered inoperable due to an inci- dent, would lead to significant impacts on the health and safety of the public. (B) Considerations In developing the Prioritization Frame- work, to the extent practicable, the Admin- istrator shall incorporate consideration of— (i) whether cybersecurity vulnerabilities for a public water system have been identi- fied under section 300i–2 of this title; (ii) the capacity of a public water system to remediate a cybersecurity vulnerability without additional Federal support; (iii) whether a public water system serves a defense installation or critical na- tional security asset; and (iv) whether a public water system, if de- graded or rendered inoperable due to an in- cident, would cause a cascading failure of other critical infrastructure. (2) Technical Cybersecurity Support Plan (A) In general Not later than 270 days after November 15, 2021, the Administrator, in coordination with the Director and using existing au- thorities of the Administrator and the Direc- tor for providing voluntary support to public water systems and the Prioritization Frame- work, shall develop a Technical Cybersecurity Support Plan for public water systems. (B) Requirements The Support Plan— (i) shall establish a methodology for identifying specific public water systems for which cybersecurity support should be prioritized; (ii) shall establish timelines for making voluntary technical support for cybersecurity available to specific public water systems; (iii) may include public water systems identified by the Administrator, in coordi- nation with the Director, as needing tech- nical support for cybersecurity; (iv) shall include specific capabilities of the Administrator and the Director that may be utilized to provide support to pub- lic water systems under the Support Plan, including— (I) site vulnerability and risk assess- ments; (II) penetration tests; and (III) any additional support determined to be appropriate by the Administrator; and (v) shall only include plans for providing voluntary support to public water systems. (3) Consultation required In developing the Prioritization Framework pursuant to paragraph (1) and the Support Plan pursuant to paragraph (2), the Adminis- trator shall consult with such Federal or non- Federal entities as determined to be appro- priate by the Administrator. (4) Reports required (A) Prioritization Framework Not later than 190 days after November 15, 2021, the Administrator shall submit to the appropriate Congressional committees a re- port describing the Prioritization Frame- work. (B) Technical Cybersecurity Support Plan Not later than 280 days after November 15, 2021, the Administrator shall submit to the appropriate Congressional committees— (i) the Support Plan; and (ii) a list describing any public water systems identified by the Administrator, in coordination with the Director, as need- ing technical support for cybersecurity during the development of the Support Plan. (c) Rules of construction Nothing in this section— (1) alters the existing authorities of the Ad- ministrator; or (2) compels a public water system to accept technical support offered by the Adminis- trator. (July 1, 1944, ch. 373, title XIV, § 1420A, as added Pub. L. 117–58, div. E, title I, § 50113, Nov. 15, 2021, 135 Stat. 1155.) PART C—PROTECTION OF UNDERGROUND SOURCES OF DRINKING WATER § 300h. Regulations for State programs (a) Publication of proposed regulations; promul- gation; amendments; public hearings; admin- istrative consultations (1) The Administrator shall publish proposed regulations for State underground injection con- trol programs within 180 days after December 16, 1974. Within 180 days after publication of such proposed regulations, he shall promulgate such Page 1269 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300h 1 See References in Text note below. regulations with such modifications as he deems appropriate. Any regulation under this sub- section may be amended from time to time. (2) Any regulation under this section shall be proposed and promulgated in accordance with section 553 of title 5 (relating to rulemaking), except that the Administrator shall provide op- portunity for public hearing prior to promulga- tion of such regulations. In proposing and pro- mulgating regulations under this section the Administrator shall consult with the Secretary, the National Drinking Water Advisory Council, and other appropriate Federal entities and with interested State entities. (b) Minimum requirements; restrictions (1) Regulations under subsection (a) for State underground injection programs shall contain minimum requirements for effective programs to prevent underground injection which endan- gers drinking water sources within the meaning of subsection (d)(2). Such regulations shall re- quire that a State program, in order to be ap- proved under section 300h–1 of this title— (A) shall prohibit, effective on the date on which the applicable underground injection control program takes effect, any underground injection in such State which is not authorized by a permit issued by the State (except that the regulations may permit a State to author- ize underground injection by rule); (B) shall require (i) in the case of a program which provides for authorization of under- ground injection by permit, that the applicant for the permit to inject must satisfy the State that the underground injection will not endan- ger drinking water sources, and (ii) in the case of a program which provides for such an au- thorization by rule, that no rule may be pro- mulgated which authorizes any underground injection which endangers drinking water sources; (C) shall include inspection, monitoring, rec- ordkeeping, and reporting requirements; and (D) shall apply (i) as prescribed by section 300j–6(b) 1 of this title, to underground injec- tions by Federal agencies, and (ii) to under- ground injections by any other person whether or not occurring on property owned or leased by the United States. (2) Regulations of the Administrator under this section for State underground injection control programs may not prescribe require- ments which interfere with or impede— (A) the underground injection of brine or other fluids which are brought to the surface in connection with oil or natural gas produc- tion or natural gas storage operations, or (B) any underground injection for the sec- ondary or tertiary recovery of oil or natural gas, unless such requirements are essential to assure that underground sources of drinking water will not be endangered by such injection. (3)(A) The regulations of the Administrator under this section shall permit or provide for consideration of varying geologic, hydrological, or historical conditions in different States and in different areas within a State. (B)(i) In prescribing regulations under this section the Administrator shall, to the extent feasible, avoid promulgation of requirements which would unnecessarily disrupt State under- ground injection control programs which are in effect and being enforced in a substantial num- ber of States. (ii) For the purpose of this subparagraph, a regulation prescribed by the Administrator under this section shall be deemed to disrupt a State underground injection control program only if it would be infeasible to comply with both such regulation and the State underground injection control program. (iii) For the purpose of this subparagraph, a regulation prescribed by the Administrator under this section shall be deemed unnecessary only if, without such regulation, underground sources of drinking water will not be endangered by an underground injection. (C) Nothing in this section shall be construed to alter or affect the duty to assure that under- ground sources of drinking water will not be en- dangered by any underground injection. (c) Temporary permits; notice and hearing (1) The Administrator may, upon application of the Governor of a State which authorizes un- derground injection by means of permits, au- thorize such State to issue (without regard to subsection (b)(1)(B)(i)) temporary permits for underground injection which may be effective until the, expiration of four years after Decem- ber 16, 1974, if— (A) the Administrator finds that the State has demonstrated that it is unable and could not reasonably have been able to process all permit applications within the time available; (B) the Administrator determines the ad- verse effect on the environment of such tem- porary permits is not unwarranted; (C) such temporary permits will be issued only with respect to injection wells in oper- ation on the date on which such State’s permit program approved under this part first takes effect and for which there was inadequate time to process its permit application; and (D) the Administrator determines the tem- porary permits require the use of adequate safeguards established by rules adopted by him. (2) The Administrator may, upon application of the Governor of a State which authorizes un- derground injection by means of permits, au- thorize such State to issue (without regard to subsection (b)(1)(B)(i)), but after reasonable no- tice and hearing, one or more temporary per- mits each of which is applicable to a particular injection well and to the underground injection of a particular fluid and which may be effective until the expiration of four years after Decem- ber 16, 1974, if the State finds, on the record of such hearing— (A) that technology (or other means) to per- mit safe injection of the fluid in accordance with the applicable underground injection con- trol program is not generally available (taking costs into consideration); (B) that injection of the fluid would be less harmful to health than the use of other avail- able means of disposing of waste or producing the desired product; and Page 1270 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 300h–1 (C) that available technology or other means have been employed (and will be employed) to reduce the volume and toxicity of the fluid and to minimize the potentially adverse effect of the injection on the public health. (d) ‘‘Underground injection’’ defined; under- ground injection endangerment of drinking water sources For purposes of this part: (1) UNDERGROUND INJECTION.—The term ‘‘un- derground injection’’— (A) means the subsurface emplacement of fluids by well injection; and (B) excludes— (i) the underground injection of natural gas for purposes of storage; and (ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing oper- ations related to oil, gas, or geothermal production activities. (2) Underground injection endangers drink- ing water sources if such injection may result in the presence in underground water which supplies or can reasonably be expected to sup- ply any public water system of any contami- nant, and if the presence of such contaminant may result in such system’s not complying with any national primary drinking water reg- ulation or may otherwise adversely affect the health of persons. (July 1, 1944, ch. 373, title XIV, § 1421, as added Pub. L. 93–523, § 2(a), Dec. 16, 1974, 88 Stat. 1674; amended Pub. L. 95–190, § 6(b), Nov. 16, 1977, 91 Stat. 1396; Pub. L. 96–502, §§ 3, 4(c), Dec. 5, 1980, 94 Stat. 2738; Pub. L. 99–339, title II, § 201(a), June 19, 1986, 100 Stat. 653; Pub. L. 104–182, title V, § 501(b)(1), Aug. 6, 1996, 110 Stat. 1691; Pub. L. 109–58, title III, § 322, Aug. 8, 2005, 119 Stat. 694.) Editorial Notes REFERENCES IN TEXT Section 300j–6(b) of this title, referred to in subsec. (b)(1)(D), was repealed, and a new section 300j–6(b) re- lating to administrative penalty orders was added, by Pub. L. 104–182, title I, § 129(a), Aug. 6, 1996, 110 Stat. 1660. AMENDMENTS 2005—Subsec. (d)(1). Pub. L. 109–58 inserted heading and amended text of par. (1) generally. Prior to amend- ment, par. (1) read as follows: ‘‘The term ‘underground injection’ means the subsurface emplacement of fluids by well injection. Such term does not include the un- derground injection of natural gas for purposes of stor- age.’’ 1996—Subsec. (b)(3)(B)(i). Pub. L. 104–182 substituted ‘‘number of States’’ for ‘‘number or States’’. 1986—Subsec. (b)(2)(A). Pub. L. 99–339 inserted ‘‘or natural gas storage operations’’ after ‘‘production’’. 1980—Subsec. (b)(1)(A). Pub. L. 96–502, § 4(c), sub- stituted ‘‘effective on the date on which the applicable underground injection control program takes effect’’ for ‘‘effective three years after December 16, 1974’’. Subsec. (d)(1). Pub. L. 96–502, § 3, inserted provision that such term does not include the underground injec- tion of natural gas for purposes of storage. 1977—Subsec. (b)(3). Pub. L. 95–190 added par. (3). § 300h–1. State primary enforcement responsi- bility (a) List of States in need of a control program; amendment of list Within 180 days after December 16, 1974, the Administrator shall list in the Federal Register each State for which in his judgment a State un- derground injection control program may be necessary to assure that underground injection will not endanger drinking water sources. Such list may be amended from time to time. (b) State applications; notice to Administrator of compliance with revised or added require- ments; approval or disapproval by Adminis- trator; duration of State primary enforce- ment responsibility; public hearing (1)(A) Each State listed under subsection (a) shall within 270 days after the date of promulga- tion of any regulation under section 300h of this title (or, if later, within 270 days after such State is first listed under subsection (a)) submit to the Administrator an application which con- tains a showing satisfactory to the Adminis- trator that the State— (i) has adopted after reasonable notice and public hearings, and will implement, an under- ground injection control program which meets the requirements of regulations in effect under section 300h of this title; and (ii) will keep such records and make such re- ports with respect to its activities under its underground injection control program as the Administrator may require by regulation. The Administrator may, for good cause, extend the date for submission of an application by any State under this subparagraph for a period not to exceed an additional 270 days. (B) Within 270 days of any amendment of a regulation under section 300h of this title revis- ing or adding any requirement respecting State underground injection control programs, each State listed under subsection (a) shall submit (in such form and manner as the Administrator may require) a notice to the Administrator con- taining a showing satisfactory to him that the State underground injection control program meets the revised or added requirement. (2) Within ninety days after the State’s appli- cation under paragraph (1)(A) or notice under paragraph (1)(B) and after reasonable oppor- tunity for presentation of views, the Adminis- trator shall by rule either approve, disapprove, or approve in part and disapprove in part, the State’s underground injection control program. (3) If the Administrator approves the State’s program under paragraph (2), the State shall have primary enforcement responsibility for un- derground water sources until such time as the Administrator determines, by rule, that such State no longer meets the requirements of clause (i) or (ii) of paragraph (1)(A) of this sub- section. (4) Before promulgating any rule under para- graph (2) or (3) of this subsection, the Adminis- trator shall provide opportunity for public hear- ing respecting such rule.