This comment letter response contains two parts:   

(1) The original submittal from the commenter.

(2) A data base printout of EPA’s response to each point raised by the commenter.

Notes about the response letters:

• The response letters were generated by a data base used to track the content of all public

comment submittals and ensure that the Agency responds to each. Each comment letter

was assigned a Letter ID that corresponds to the last four digits of the docket number of the

original comment (as posted on www.regulations.gov).

• Each response letter includes: comment text; an EPA‐assigned comment code; and an

individual response. These are described and explained below.  

• The data base contains Comment text from the letters submitted by commenters.  

Many hard copy letters were scanned into electronic format for inclusion in the data

base. As a result, there may be some typographical errors attributable to optical

character recognition issues.  However, all original submittals were reviewed in the

process of drafting responses to ensure that the comment content was understood and

appropriately addressed.

• The content of each comment letter was divided into topic areas and assigned a unique

Comment ID.  Additionally, one or more Comment Codes (i.e., unique topic area ID) was

assigned to each discrete point raised by a commenter. This information was added to

the data base. To inform final rulemaking decisions, all comments and information

received on a given topic were reviewed by technical experts in each rule area (e.g., on

construction requirements).  

• Following decisions on the final rule requirements, Individual responses were drafted

by topic area to ensure completeness and consistency of the responses with the final

rule and other responses to similar comments.  Each discrete point made by a

commenter was given a unique response.

• Upon completion of comment responses, all information was entered into the data base.

Each letter response is a compilation of each comment and its individual response,

compiled in the order of the original comment letter.  As a result of this process, there is

repetition in the response text.  The Agency believes this approach ensures completeness

and attention to each comment letter that was submitted.   

• All comments in a topic area were reviewed, evaluated, and responded to concurrently.  

Responses on each topic area are compiled and are also available in the rulemaking docket.
1

Federal Requirements Under the Underground Injection Control Program for 

Carbon Dioxide Geologic Sequestration Wells

Docket No. EPA-HQ-OW-2008-0390

73 Fed. Reg. 43492 (July 25, 2008)

Comments of the 

American Public Power Association (APPA)

December 19, 2008

INTRODUCTION

The American Public Power Association (APPA) appreciates the opportunity to 

file comments on such a significant rulemaking. APPA filed preliminary comments with 

the EPA regarding the issue of geologic sequestration in the context of the experimental 

injection projects in 2007 which did not fit into a Class II UIC program definition. APPA

submits these comments on the proposal of the Environmental Protection Agency 

("EPA" or "the Agency") to establish the regulatory framework for geologic sequestration 

(“GS”) of carbon dioxide (“CO2”) under the Underground Injection Control (“UIC”) 

Program pursuant to the Safe Drinking Water Act ("SDWA"). 73 Fed. Reg. 43492 (July 

25, 2008). 

Public power is the term used to describe the more than 2,000 municipal and 

other state and local community-owned electric utilities that provide electricity for 

approximately 45 million Americans. These public power systems are among the most 

diverse of the electric utility sectors, representing utilities in small, medium and large 

communities in 49 states (all states except Hawaii). Seventy-five percent of public 
2

power systems are located in cities with populations of 10,000 or less. Overall, public 

power accounts for about 16 percent of all kilowatt-hour sales to consumers. APPA 

was created in 1940 as a non-profit, non-partisan organization. Its purpose is to 

advance the public policy interests of its members and their consumers, and provide 

member services to ensure adequate, reliable electricity at a reasonable price with the 

proper protection of the environment. More than 90% of APPA member utilities meet 

the definition and qualify under the Small Business Regulatory Enforcement and 

Fairness Act of 1996 (SBREFA).

One characteristic of public power municipal electric utilities that makes our 

perspective unique is that more than 80% of APPA member utilities also manage 

drinking water utilities with residential, industrial, commercial and industrial customers. 

While APPA’s comments primarily focus on the electric generation issues related to the 

proposed UIC rule, we cannot divorce the drinking water protection issues from our own 

responsibilities as a part of approximately 1,000 municipal governments. There are 

approximately 4,000 additional private drinking water companies in the United States. 
3

Table of Contents

Introduction – Pg. 1

Executive Summary of APPA’s comments -- Pg. 7

Background -- Pg. 10

APPA has a very unique perspective and knowledge base from which to provide 

meaningful input on the development of EPA's UIC regulations for CO2

sequestration because of our 1,400 member utilities (owned and operated by 

local government—usually municipalities), over 80% also manage local drinking 

water for residential consumers as well as commercial and other parties.

Area of Review -- Pg. 26

Modeling -- Pg. 26

General Issues Related to Classification and Regulation of CO2 GS Wells -- Pg. 20

APPA believes the creation of a new category of wells under the UIC Program for 

long-term storage of CO2 is appropriate and agrees with EPA that the Final Rule 

should create a delegable program and encourage the adoption and 

implementation of that program by States.

Grandfathering Requirements of Class I, II and V UIC Wells -- Pg. 31

APPA believes that the state should be allowed to grandfather construction 

requirements for existing Class I, II, and V wells seeking a Class VI permit for GS 

of CO2 if the state believes that the Class V experimental well USDW protections 

are adequate.

Sitting of CO2 GS Wells -- Pg. 32

APPA believes it is counter-productive at this stage in the development of a CO2

GS regulatory regime to categorically preclude any potentially feasible injection 

formations as possible long-term storage sites with the exception of sole source 

aquifers.

Interaction with RCRA -- Pg.33

APPA believes that RCRA corrective action for the entire power plant would rank 

with parasitic power loss as possibly insurmountable obstacles for geologic 

sequestration.
4

Table of Contents Continued

Interaction with CERCLA -- Pg. 37

APPA believes that Congress will need to act to correct the potential for openended CERCLA liability for any contamination resulting from CO2 GS activities 

before commercial deployment should be expected.

Permit Application and Reporting Requirements -- Pg. 39

APPA believes that electronic reporting should not be absolute but should 

instead permit the Director to allow other methods of reporting when he deems 

such methods more appropriate. In addition, APPA believes that annual 

reporting will not always be the best way to collect this information over the 

lifetime of the project.

Well Plugging and Post-Injection Site Care -- Pg. 41

APPA believes that the Proposal’s suggested fifty-year default fixed timeframe 

for the post-injection site care period is arbitrary and will serve to discourage 

Owners or Operators of CO2 GS sites from seeking to develop innovative ways to 

safely close wells in a shorter time period. While there is no single time period 

that can apply across the board, APPA suggests that 10 years or until the plume 

is determined to be stable is sufficient. 

Financial Responsibility -- Pg. 42

APPA supports EPA’s suggestion to issue guidance in the future for clarification 

of the financial responsibility mechanisms available for Owners or Operators of 

CO2 GS wells, provided that such guidance is issued in accordance with OMB’s 

Good Guidance Manual and that the final rule accommodate a range of options, 

including self-insurance instruments.

Public Participation -- Pg. 44

APPA agrees that public participation is crucial to the success of any individual 

CO2 GS project and of the UIC Program as a whole. 

The need for better data for GS to work -- Pg. 44

In non-oil and gas states (or perhaps some mining states) there is little known 

about the subsurface geology. APPA believes that USGS and other agencies 

can help the EPA and state agency directors in better characterizing these 

formations.
5

Table of Contents Continued

Leaks and response plans -- Pg. 46

APPA believes that the owner/operator must take remedial action as described in 

the permit’s response plan.

Monitoring -- Pg. 46

APPA believes it makes common sense to place monitors close enough to detect 

the leak before it can negatively affect the USDW.

Electric Reliability -- Pg. 47

APPA believes that potential impacts to electric reliability should be considered in 

promulgating the UIC Class VI permitting program rules.

NERC’s study can be found at: 

http://www.nerc.com/files/2008-Climate-Initiatives-Report.pdf

SBREFA Impacts – Pg. 47

Executive Order 12866 – Pg. 47

Conclusion -- Pg. 48

Appendix -- Pg. 49

-Australia Parliamentary Library, Research Paper no. 9 2008–09, “The potential 

for renewable energy to provide baseload power in Australia”, by Stewart 

Needham, Science, Technology, Environment and Resources Section. 23 

September 2008.

-L.D. Carter, White Paper, "Carbon Capture and Storage From Coal-based 

Power Plants: A White Paper on Technology for the American Public Power 

Association (APPA)," May 2007 

-L.D. Carter, White Paper, "Retrofitting Carbon Capture Systems on Existing 

Coal-fired Power Plants," November 2007

-Marianne Horinko “Carbon Capture and Sequestration Legal and Environmental 

Challenges Ahead,” August 2007
6

Table of Contents Continued

-“Will Water Issues/Regulatory Capacity Allow or Prevent Geologic Sequestration 

for New Power Plants?” J. Gledhill, J. Rollins, T. Pugh

-Issues Related to Seismic Activity Induced by the Injection of CO2 in Deep 

Saline Aquifers, Joel Sminchak and Neeraj Gupta, Battelle Memorial Institute

-Why doesn't Greece like carbon capture? Leigh Phillips

September 23, 2008

-GAO study “Climate Change” Federal Actions will Greatly Affect the Viability of 

Carbon Capture and Storage As a key Mitigation Option.

-Statement of Don Broussard, Lafayette, La. Utilities System before the House 

Subcommittee on Environment and Hazardous Materials On Geologic Carbon 

Sequestration. July 24th, 2008

-APPA Comments to NERC on Reliability Impacts of Climate Change Initiatives. 

July 16th, 2008

-Populations Trend Map

-Aquifer Map
7

Executive Summary of APPA’s comments

1. APPA believes that a Class VI permitting program is essential to enable geologic 

sequestration at power plants.

2. APPA represents 1,400 municipal or public power utilities and 80% of those also 

manage public or municipal drinking water utilities and provide drinking water to 

residential, commercial and industrial customers. Approximately 50% of the 

power generated by public power utilities is from coal and APPA believes coal is 

critical for baseload generation. Although peaking and intermediate generation 

may be possible with renewables, baseload generation requires hydro, nuclear, 

coal, oil or natural gas to maintain reliability. While some renewable sources 

(e.g. biomass) are available for baseload generation, the current power capacity 

is small. Further development in the renewables sector is required before any 

significant level of substitution of coal-fired power can take place. Research and 

development into special battery storage, solar thermal, photovoltaic, ocean and 

geothermal energy indicates promising prospects for reliable and continuous 

power from renewables, but, it will be several decades before expected 

widespread deployment of renewable baseload generation.

1

3. APPA wants geologic sequestration of CO2 to work. Geologic Sequestration 

might enable the power utility sector to use coal at future and existing power 

plants while reducing CO2 emissions. However, the technology is not yet fully 

1 Australia Parliamentary Library, Research Paper no. 9 2008–09, “The potential for renewable energy to 

provide baseload power in Australia”, by Stewart Needham, Science, Technology, Environment and 

Resources Section. 23 September 2008. A copy is included in the Appendix.
8

commercially demonstrated and suitable geology may not be available in all 

states. This caution does not discourage us from wanting it to work or for 

supporting additional demonstration projects at DOE/NETL and in the private 

sector. Geosequestration opportunities in oil and gas states are probably the 

most optimal location for early adopters of CCS technology(s). APPA encourages 

the use of oil and gas fields for injection of CO2 from power plants.

4. APPA strongly encourages the EPA to recognize the inextricable link between 

energy and water use. Water demand for power production remains intense, and 

may grow concurrently with demand growth and population growth. APPA 

recommends the Desalination and Water Purification Technology Roadmap

developed by Sandia National Labs in 2003 as a summary of the water-energy 

issues.2

5. APPA believes that new power plants designed for geologic sequestration should 

be planned for sequestration to be conducted for the “life of the plant”—which 

can be as long as 60 years. However, APPA believes that if some type of lateral 

or vertical migration of the CO2 or other substances (such as brine, metals, 

drilling muds, cement from well failure) is detected and believed to be potentially 

harmful to the underground sources of drinking water (USDW), that the power 

plant or power plants supplying the CO2 to the injection site(s) should be given 

an “infeasibility exemption3” for sequestration of its CO2. This exemption should 

enable the power plant to continue to operate without carbon dioxide injection in 

that location. Without this “infeasibility” or “back out” clause for geosequestration, 

2

This document can be downloaded at http://www.sandia.gov/water/desal/docs/DesalRdmap04a.pdf

3

For the first generation plants, the “infeasibility exemption” should extend beyond infeasibility of the 

carbon capture operations of the power plant.
9

it is highly unlikely that communities would build power generating facilities with 

carbon capture and injection systems that could cost at least $2 billion dollars

(2008 dollars) or be able to obtain financing if the plant was not expected to 

operate for the full 50-60 years. The financial risks for closure of a power 

generating plant or multiple plants in a region would simply be too enormous.

APPA does not believe that anyone should presume that the CO2 from power 

plants to be injected into in situ or distant geology should be presumed to exceed 

50% of the total CO2 in the first few decade of the commercial deployment. APPA 

has no notion that the future fossil power plants with CCS will be carbon neutral

given the larger volume of coal to be consumed in the gasification process in 

order to make up for parasitic power losses.

6. APPA enthusiastically supports a UIC Class VI permit classification despite our 

questions about feasibility and commercial deployment of the technology in 2008.

Development of a permitting system soon is necessary to provide regulatory 

certainty to the first generation demonstration projects that are essential before 

the commercial development of larger scale plants.

7. Congress must address a number of critical liability issues under CERCLA and 

RCRA to enable widespread commercial deployment of geosequestration of CO2

from power plants. That issue primarily is outside the scope of this rulemaking 

but must be acknowledged. Unless these issues are resolved, first generation 

plants cannot progress. As EPA recognized in its ANPR on CO2, this UIC 

rulemaking provides one opportunity to address these issues, while protecting 

the public health and welfare under the Safe Drinking Water Act.
10

8. “Acts of God” such as CO2 or other substances released from seismic events 

where seismic events could not have been reasonably anticipated by experts

should not have liability attached to the owner/operator or other parties if the 

parties acted in a responsible way and could not have reasonably anticipated a 

fault or seismic risk.

9. State governments, the EPA, power plant owner/operators, water utilities and the 

public need more data on water and subsurface geology/hydrology before we 

can actually begin wide scale deployment of new CCS plants. APPA strongly 

encourages EPA, DOE/NETL, U.S. Geological Survey (USGS) and state 

geologists/hydrologists to work together to improve our knowledge on both 

surface and subsurface geology. APPA believes it will be helpful for Congress to 

better understand the technology and to fully fund demonstration projects so that 

there is sufficient understanding of geology to support widespread 

geosequestration. 

Background

APPA has a very unique perspective and knowledge base from which to provide 

meaningful input on the development of EPA's UIC regulations for CO2 sequestration.

What makes APPA unique is that of our 1,400 member utilities (owned and operated by 

local government—usually municipalities), over 80% also manage local drinking water 

for residential consumers as well as commercial and other parties. It is with that 

background information that we offer a somewhat more cautious view of geologic 
11

sequestration technology into deep saline aquifers as a presumed commercially 

available and deployable technology in all states.

Geologic sequestration into all geologic formations must be considered by

electric utilities in their long-term plans for future fossil-fuel electricity generation while 

also weighing the need to protect public drinking water supplies. Protection of drinking 

water supplies, for some communities, may mean that inadequate surface water 

supplies may require that the city (or private utility) may require usage of groundwater in 

future years which may not appear to be “drinkable” under today’s presumed costs and 

technological (pump and treat or desalination) limitations. Our colleagues in the 

municipal drinking water operations remind us that Americans are currently drinking 

water which, in many locations, was undrinkable only 5-10 years ago. While most 

American cities in the east provide drinking water made up largely of surface water, 

more than 90% of all drinking water systems (private and public) use some amount of 

groundwater to make up for shortages. Acknowledging this does not mean that 

geosequestration should not be allowed. It simply requires common sense decision 

making at the local and regional level by power plants and the state directors as to the 

best placement of geosequestration plants or off-site injection formations.

We thank EPA for the regional workshops and public hearings associated with 

this proposed rule, the willingness of staff to meet with our electric (and water) utility 

representatives, and for the openness in the meetings about the tough issues inherently 

involved with drinking water protection with an entirely new technology (given the scale) 

for the power plants sector. 
12

The EPA’s proposed rule asks for comment on many issues which are new to the 

power sector. EPA does its best to tease out what we know from the use of CO2

injection/recycling from the oil and gas sector and try to apply some of these concepts 

to the future power sector parties who might need to build coal-fired electric generating

plants but would be required to reduce emissions of carbon dioxide through the 

combination of carbon capture technology at the plant and GS at an injection site. 

Carbon sequestration can employ any of several physical, chemical, or biological 

processes to isolate CO2 from the atmosphere, on a long-term basis. Carbon 

sequestration can be terrestrial and geological. As part of the Earth’s carbon cycle, 

terrestrial sequestration uses vegetation and the soil as carbon sinks. There are both 

technical and non-technical challenges to sequester large quantities of CO2 in 

subsurface repositories. The technical challenges are exacerbated by a lack of 

experience with processes on an appropriate scale, or in geologic formations that have 

no history of oil and gas production. The non-technical challenges – in the form of legal 

and regulatory issues – are as significant as the technical uncertainties. But APPA 

supports research in order to assist us to make these changes.

The amount of CO2 that could be required to be sequestered is enormous. The 

generation of power by coal-fired power plants in the U.S. produces 1.5 billion tons of 

CO2 that, when compressed to supercritical conditions, comprises a volume that 

exceeds that equal to U.S. oil consumption. The task of transporting and managing 

this volume of material is complicated by the need to operate the transport in a pipeline 

at 2,000 psig to maintain CO2 in a fluid state in these specialty pipelines.
13

APPA does not question the viability of the technology of carbon dioxide injection 

for enhanced oil and gas recovery in production fields. Any questioning about the

technology in the context of these APPA comments pertains to new large scale power 

plant parties which would likely be built outside the geologic formations suitable for oil 

and gas recovery. While the proposed rule asked for comments on the impacts on 

other industries, these APPA comments focus on power plants. We don’t offer 

comments on carbon separation and injection/storage for ethanol plants, chemical

companies, cement factories, or coal bed methane plants that might have similar 

opportunities to inject CO2. APPA has no comments on more shallow methane recovery 

from coal operations. 

APPA strongly supports private and DOE/NETL geologic 

sequestration demonstration projects to tell us more about the technical 

viability of the separation technology and the scaling up of geologic 

sequestration. Further, these projects must also support any 

geosequestration or GS research projects that would better enable us to 

know more about the USDWs and protection of that critical resource. The 

“location is everything” is a critical presumption for the reader of our 

comments on the proposed UIC rule. In some locations geosequestration 

will be an optimal technology that makes sense for those future coal 

plants. In other locations, the type of rock, the lack of trapping 

mechanisms or proximity to underground faults, seismic risks or other 
14

Our comments pertain to large scale power plant applications and those much 

larger CO2 injections and storage in geologic formations. There may be opportunities in 

the early years for the placement of coal plants for geosequestration in the shadow of 

the oil and gas industry where there would be opportunities for EOR/EGR. APPA 

encourages this and believes that this may be beneficial to many parties—including the 

power sector. If all new coal power plants could be built over geologic formations that 

have oil and gas recovery operations or where the CO2 could be stored in depleted 

wells, the economics would be far more favorable for the power sector. However, even

if that were the case, the drinking water protection issues do suggest some initial 

caution in site selection.

Our comments here should not deny the viability of CCS in some subsurface 

locations nor be read as APPA’s view that geologic sequestration works in all geologic 

locations or for all power plants. There is a great deal that we do not yet know about the 

wide variety of geologic formations to know that there are no risks to USDWs or that we 

could identify specifically what those risks might be. APPA hopes that on-going private 

and public research in the United States, Canada, Australia, and Europe will affirm that 

there are no risks to drinking water supplies or that the risks are so truly negligible that 

there is no reason to hesitate to use this technology. But we cannot presume that there 

are no risks simply based upon the commercial and technical success in CO2 recycling 

in Class II injection locations that are managed as production fields. It has been 

presumed that because the CO2 injections began in the Permian Basin of West Texas 

in the late 1970s that the CO2 from those tertiary recovery fields (for oil or gas) is 

actually still in the formation. In most cases the CO2 was recycled and used in different 
15

production operations. Even if the CO2 was injected 25-35 years ago, the CO2 may not 

still reside or remain in storage there. Because we have not seen large storage fields 

where the CO2 was stored for 10-30 years on a sustained basis, there is not as much 

known about the geologic formations, the adequacy of holding capacity and subsurface 

impacts as we would like to know. Also, in many cases, those oil or gas production 

fields are regulated differently than a newly established long-term GS formation would 

be regulated if it were owned/operated by a power company.

But, APPA does believe that the CCS plants that will be proven viable deserve a 

permitting mechanism under the EPA’s proposed Class VI program. APPA has no 

hesitation about a Class VI permitting system. APPA encourages the U.S. EPA to 

finalize this new category as soon as possible to facilitate the permitting and 

construction of first generation U.S. demonstration projects. 

Some personnel at the U.S. EPA and members of Congress often assume 

falsely that CCS or GS is commercially deployable now in all states based upon the 

success in the half dozen or perhaps as many as a dozen oil/gas production states. The 

development of a national viable and workable CO2 capture and sequestration 

permitting program is one of the key prerequisites to the implementation of 

contemplated energy reform initiatives-ranging from state laws that force reductions in 

CO2 to pending new Federal legislation to require a national cap (on CO2 emissions.)

APPA’s comments are offered here on the UIC permitting system are valid regardless to 

whatever “carbon signal” there might be to reduce CO2 from power plants. Even if there 

is no new national law setting a carbon emissions limit, intensity limit, carbon tax, or 

new generation requirement, states also have the ability to set state by state limits on 
16

carbon dioxide emissions from power plants under separate state CO2 laws. APPA 

does not like patchwork quilt state by state regulatory approaches to reduce CO2

through different laws and regulations. It is entirely too soon to know what Congress 

might do. At this time, we have no clue what Congress might do in the future to 

constrain CO2 that would motivate any party to reduce CO2 from coal or natural gas 

plants. APPA’s comments are neutral as to the new legislative mechanism that would

“constrain carbon”. These technical, logistical, or cost issues are valid regardless of why 

utilities would want to inject CO2 under any carbon dioxide mitigation standard, 

reduction policy, or law. 

EPA contemplates that the electric power sector "will most likely be the largest 

potential market for carbon capture and sequestration (CCS) technologies, with the 

potential to reduce CO2 by approximately 80-90% at an individual plant." EPA’s figure 

seems extremely optimistic and perhaps unrealistic given what we know about both 

current demonstration projects of carbon separation and geologic sequestration. We do 

not recommend that anyone assume that 80-90% of CO2 from the power sector can 

actually be separated and STORED or sequestered in all geologic formations given our 

current knowledge. While separation of CO2 from the other air emissions might be 

achievable at 80-90%, presuming this number for geosequestration that EPA offers 

seems overly rosy. See 73 Fed. Reg. 44354, 44492. The oil and gas sector does not 

universally store 80-90% of the CO2 that is recycled in its current EOR/EGR operations. 

In our review of descriptions of current EGR/EOR, as much as 95% of the CO2 can be 

recycled many times and sometimes the remaining CO2 is ultimately vented to the 

atmosphere. 
17

Figure 1 – Enhanced Oil Recovery Schematic Showing CO2 recycling

(source: American Geological Institute)

Separation and storage capacities may be very different at each geologic 

formation or subsurface location. APPA is not offering this as a criticism of oil/gas 

operations but simply explaining that there are many myths about actual retention of 

CO2 in oil/gas recovery operations and how translatable that experience is for the power 

plant sector. Regardless of the actual future volume of injection (or perhaps the 

ultimately limited success of carbon separation and ultimate injection), a practical Class 

VI permitting system is essential. Given the direct impact this program will have on the 

electric utility industry, APPA genuinely appreciates EPA's goal of establishing a 

regulatory regime that will provide "certainty" and "transparency" to what requirements 

would apply to owners/operators who engage in Class VI CO2 injection. Id. at 43496 

(July 25, 2008). At the same time, it is crucial for the regulations to reflect the 

challenges inherent in crafting controls for commercial CO2 injection and storage 

activities when such large-scale commercial operations are only at the nascent stage.

Given what we know now, APPA remains rather skeptical that the large scale 
18

operations as envisioned by the popular or trade press (and perhaps EPA’s proposed 

rule’s preamble) are very possible in the next few decades. DOE’s original estimate that 

this new commercialized CCS industry is possible in about 40 years is probably more 

realistic. Of course, APPA hopes that there are technology breakthroughs and that CCS

or GS can be viable on larger scales which also remain protective of USDWs within the 

next 15 years. But we believe these larger commercial size power plants with > 10 tons 

of carbon sequestered annually would likely come online after 2025. We hold this hope 

on CCS in the same context as in hoping that there will be breakthroughs in large 

capacity battery storage or in storage for wind capacity or for new nanotechnology for 

solar panels. All are needed to achieve improvements in a power plants’ carbon 

footprint and in reducing criteria pollutants. While we may hope for technology and 

infrastructure breakthroughs, we plan on geologic sequestration based upon cold 

reality. The last thing that APPA wants is to promise what we might not yet be able to 

deliver.

One of the largest hurdles: Parasitic Power

The fundamental challenge confronting the utility industry is in carbon separation 

and in reducing the parasitic loss of energy at a power plant. Parasitic loss issues at 

power plants are best explained in Attachments 2 and 3 by Doug Carter. These two 

papers explain to both laymen and technical experts why parasitic energy could be one 

of several “deal killers” for new power plants with GS.4These parasitic are problems 

that are very fundamental and will determine whether power plants pursue this 

4

L.D. Carter, White Paper, "Carbon Capture and Storage From Coal-based Power Plants: A White Paper 

on Technology for the American Public Power Association (APPA)," May 2007 and 

L.D. Carter, White Paper, "Retrofitting Carbon Capture Systems on Existing Coal-fired Power Plants," 

November 2007
19

technology or opt for another type of generation such as nuclear power or perhaps 

natural gas (which has roughly half of the carbon dioxide as coal). See Figure 2 which 

highlights the processes which contribute to the parasitic power demands of CCS. Even 

if carbon separation technology is commercially demonstrated at > 30 MW in the next 

few years, parasitic power or energy losses are a huge disincentive to use this new 

generation technology.

Figure 2 – Parasitic Power Losses in CCS Power Plant
20

The storage issues can be equally daunting but the fundamental question of 

separation and parasitic power are so overwhelming that it is not entirely clear how 

many municipal governments will want to pursue this technology until those economic 

issues (especially the parasitic power) are sorted out. The other remaining issue in the 

three legged footstool is the question of infrastructure and logistics. Without a massive 

investment in infrastructure for additional pipelines and booster compressors, APPA 

wonders how many of these plants will be built in the first 10-30 years. The oil and gas 

industry had 35 years to build up the essential infrastructure for CO2 injection in the 

context of oil and gas recovery. This infrastructure includes pipelines, booster 

compressors and feedstock delivery. See Figure 3 for a map showing current CO2

pipelines in the U.S. The industry also has systems in place to remove/treat produced 

waters. These systems are not in place in states with no oil or gas production. Those oil 

and gas recovery fields were and are highly profitable and had a revenue stream to 

offset the investments in delivery methods such as construction of pipeline or adaptation 

of existing natural gas pipelines, booster compressors, or for the use of tankers for 

some small quantities of CO2 for use at production fields. The economics for power 

plants are not yet ripe for such investments because power plants would not have the 

additional revenue stream coming in for infrastructure investments coming off the oil 

and gas production revenue stream

Nor are the right of way or surface right issues sorted out by state law before CO2

can be either transported across jurisdictional lines or stored as a commodity without 

surface property rights being sorted out. These commercial and practical impediments

to geologic sequestration (GS) are enormous and should not be minimized simply 
21

Figure 3 – U.S. CCS Pipeline Mp

because we wish to find a technology that will work to enable us to use coal or natural 

gas in the future. These commercial, technology and feasibility impediments are not 

EPA’s problems to fix—but they are mentioned here because we are trying to inject 

“reality” into the zealous discussions in the trade press, on television, and at coal plant 

hearings about the viability of geologic sequestration at new coal plants in 2008. These 

same issues apply to the existing coal plant fleet. These same commercial issues apply 

in the context of natural gas generation sources where no carbon separation technology 

exists today without dramatic parasitic power impacts which would typically be too 

onerous for existing plants.
22

EPA, in this rulemaking, must establish a cost-effective and environmentally 

sound regulatory program to cover a range of operations in order that the technology 

will be commercially deployed. To meet this challenge and establish a workable 

regulatory framework over the coming decades for the long-term storage of CO2, it is 

imperative that EPA take care to craft the regulations with flexibility so that they may be 

fine-tuned as industry and regulators alike gain experience with the large-scale CO2

sequestration contemplated by this rulemaking. APPA applauds EPA’s efforts to build 

such flexibility mechanisms into the Proposed Rule, including the use of state directorial 

discretion and the provision for forthcoming guidance to clarify other requirements. 

APPA agrees that both of these methods will help create a regulatory framework that 

can evolve as information and technological advancements are gained in the field of 

carbon capture and sequestration. 

EPA asked for comments on financial guidance on any aspect of the final rule 

(for example, clarification of requirements for financial assurance mechanisms). APPA 

thinks that this might be an area where the EPA might call for a “second bite at the 

apple” after we know more from the preliminary carbon sequestration projects and 

“scaling up” projects. We agree with Utility Solid Waste Activities Group (USWAG) and 

others who have suggested that that guidance must be developed in accordance with 

OMB’s Good Guidance Practices Bulletin, which directs that notice and comment be 

provided for the development of ”significant” and “economically significant” guidance 

documents.

Because information and technology related to carbon sequestration are sure to 

develop as more experience is gained, APPA urges EPA to do what it can avoid the use 
23

of arbitrary or blanket prohibitions or absolutes in the EPA final rule. However, APPA 

believes that there are some common sense prohibitions that may be justifiable. For 

example, EPA should have in the final rule an explanation, consistent with the Class I 

program, that seismic-induced subsurface conveyance risks such as major faults, or 

proximity to sole source aquifer5protections are essential. Sole source aquifers are not 

the same as deep saline aquifers. APPA believes there are some prohibitions that are 

key to protection of USDWs. At the same time we do not want to contribute to “NIMBY” 

or “not in my backyard” or “NUMBY” — or “not under my back yard”. What APPA asks 

for in the context of seismicity issues are clear-cut and understandable parameters or 

USGS guidelines so that power plant owner/operators don’t pursue a geologic formation 

thinking that it is eligible only to learn that the EPA has used a USGS designation on 

seismic risks that would render it disqualified later in the permitting process. APPA asks 

that when the EPA or state directors make seismicity conditions that these be subject to 

notice and comment and be published in the Federal Register and the state equivalent

publication. It would be terrible to have a power plant owner/operator spend time and 

significant money pursuing a geologic formation only to learn after he had spent many 

hundreds of thousands of dollars that the site did not meet the EPA’s seismic risk or 

USGS seismic requirements. Seismicity risk avoidance is a new factor for thermal or 

fossil plants and not one with which we have experience. APPA includes in the 

Appendix a paper from an NETL-funded study on seismic activity induced by injection of 

5 A sole source aquifer (SSA) is an underground water supply designated by the U.S. EPA as the "sole or 

principal” source of drinking water for an area under Section 1424(e) the Safe Drinking Water Act of 1974. 

“Sole or principal” has been interpreted to mean that the aquifer must supply at least 50 percent of the 

drinking water to persons living over the aquifer; there should be no alternate and feasible sources of 

drinking water that could replace the aquifer.
24

CO2 into deep saline aquifers6and an article regarding the Greek government’s 

concerns with injection of CO2 in the Mediterranean.

7

Including these references to 

seismic issues does not mean that APPA fears that CO2 will cause seismic activity. 

Instead APPA does not want to see APPA member utilities pursue geology which has

underlying seismic risks that are unknown to the power sector (and perhaps to the state 

agencies) and misuse critical resources, time and money pursuing that location for 

permitting only to find out later that they must start again. Most locations in the U.S. 

have not had recent seismic data assessed at the “fine granular” level needed to target 

the right formations for carbon dioxide geosequestration. This will necessitate the 

support of United States Geologic Survey and other agencies.

We agree with EPA that the appropriate standard underlying technical 

requirements for CO2 GS wells should be the protection of underground sources of 

drinking water (“USDWs”). Even though it is difficult to know at this point what methods 

or technology will be developed for injection and long-term storage of CO2 in a manner 

that is protective of USDWs –we know intuitively that sole source aquifers and some

high risks seismic locations should be ineligible. Proximity to Class IV wells might also 

be inappropriate (although those wells are very rare) because of their contents. In 

areas where there has been a history of Class I or Class II leakage or USDW 

contamination problems the state directors should have full discretion to take those 

locations off the table for injection for long-term storage. APPA assumes that state 

directors will know best which geologic locations should be unsuitable or ineligible. But, 

6

Issues Related to Seismic Activity Induced by the Injection of CO2 in Deep Saline Aquifers, Joel 

Sminchak and Neeraj Gupta, Battelle Memorial Institute

7

“Why doesn't Greece like carbon capture?” Leigh Phillips, EU Observer, 9/23/08, 

http://euobserver.com/19/26794
25

we acknowledge that there are some risks not worth taking. Sole source aquifers are 

just not worth the risk for CO2 injection no matter how noble the goal of CO2 reductions 

might be. There are perhaps 10-15 sole source aquifers in the United States so APPA 

does not believe that removing these locations restricts the available geology storage in 

any significant way on a national basis. 

In some cases, those power plants might need to be coal or gas with other 

carbon dioxide mitigation strategies such as the purchase of renewable credits or other 

measures that are outside the scope of this rule. APPA does not suggest that coal 

plants cannot be built near sole source aquifers since sequestration could be conducted 

off-site if the infrastructure for moving the CO2 is in place or would be in place within a 

reasonable date after start up of the new power plant.

APPA is not expert on drilling practices and many of the site characterization 

techniques discussed in the proposed rule. As discussed below, the Final Rule should 

leave the door open for a range of injection sites (except for sole source aquifers which 

we believe should be excluded from consideration) and methods (some of which are 

unrecognized, or even unknowable, at this point in time), provided that the Owner or 

Operator can show that the injection and storage will be protective of USDWs. APPA 

does join its “sister” organization, AWWA, representing the water utilities, in calling for 

proposed GS projects to at least identify all the confining zones in applications. APPA 

does not believe that multiple confining zones should be arbitrarily required. We defer to 

state directors to make these judgments based upon their knowledge of local geology.
26

Area of Review: APPA has nominal background in Area of Review, but we do believe 

that AoR sites require periodic review. Given the fact that carbon sequestration 

technology is still developing, and the widely varied characteristics and limitations of 

different CO2 GS projects, it is essential to incorporate performance-based standards 

into the Final Rule, with site-tailored approaches to requirements for Area of Review 

(“AoR”) reevaluation and post-injection site care and closure periods. APPA believes 

that the AoR should be periodically reviewed at least every five years for the first 10 

years. At the conclusion of the tenth year APPA believes that a less stringent periodic 

review should be allowed by the director if he so chooses. However, APPA believes that 

the operation of the power plant should not be stopped if the geologic storage or 

sequestration is deemed ill advised by the state director (or court). Only the CO2

injection in that location should cease. Instead the owner/operator of that power plant 

should be allowed to continue operations for the purpose of generating electricity (and 

other functions) without CO2 injection until either a different technique is developed or 

until infrastructure can be built to move the CO2 to a different injection location. In some 

cases, the power plant owner/operator will simply have to make commercial or 

contractual arrangements to pay a party to take the CO2 for injection or geoengineering 

mitigation measures (not yet identified). 

Use of proprietary models: EPA asked about AoR and proprietary models. APPA is 

not expert on models but has some general discomfort with relying solely on proprietary 

models owned/operated by a third party—particularly when there are only approximately 

five companies in the United States that have such sophisticated models for AoR 
27

modeling. Proprietary models are de rigueur in the oil and gas extractive industry. We

would not seek to change that for such a critical industry to our economy and to our own 

natural resource needs. However, it would not lead to an easy future for power plant 

owner/operators to not know how site selection and AoR decisions are made because 

the owner/operator of the AoR work would use confidential the proprietary models from 

even the power plant owner/operator. It would be rare to have such a significant portion 

of the operational costs where the power plant’s management could not review the 

model or run a cross check proprietary models to affirm site selection or to do double 

checks after operations had begun. This is a tricky question for APPA. The AoR 

decisions will be fundamental to the entire geologic sequestration decision tree. Yet, if 

proprietary models are used, the power plant management will have little say over the 

geosequestration operations. Additionally, relying upon proprietary models for such a 

significant portion of the geologic sequestration decision making will be anti-competitive. 

It is not easy for power plants owner/operators to easily know what the costs of an 

operation will be for the consumers if they are relying upon proprietary AoR models at 

the beginning of the geologic sequestration process and relying upon these same 

models during the 40-50 year life of the plant. APPA would prefer that the use of a 

replicatable model is used. This may need considerable work by the U. S. EPA to 

ensure that the proprietary nature of these seismic modeling products and services are 

not exposed in a way that harms the oil field services industry. Perhaps the EPA can 

review what confidential business information methods are undertaken in the Food and 

Drug Administration or Homeland Security Administration as those agencies review very 
28

confidential drug testing or security data which much be confidential but still usable and 

able to be reviewed.

APPA respects that the true value in the oil and gas extractive industry is in the quality 

of its seismic readings technology and models that make it the pre-eminent in the world. 

No one at APPA wants to tamper with that. We wonder if some sort of proprietary 

method can be arranged for the AoR models to be run off of proprietary models where 

the model can at least be reviewed or replicated for quality purposes by the state 

director and the power plant owner/operator. Without this ability to have a handle on 

operational costs and decisions made by the contractors to the power sector, many 

public power communities would be reticent to commit to a technology where the 

proprietary model sets in motion most major decisions without a way to review them or 

make mid-course corrections.

APPA outlines below its major views on the proposal and then provides a more 

detailed discussion regarding these issues.

· Because the technology described in the Proposal will not be commercially and 

widely deployed (in states without oil and gas production) for perhaps as long as 

30 years, the Final Rule must be flexible enough to accommodate developments 

in information and technology related to carbon sequestration. These 

developments could reflect knowledge that affirms the technology and minimizes 

any cautions or concerns expressed by APPA regarding USDW risk, liability, etc.

· APPA is really not qualified to comments on site selection or well construction or 

injection procedures. APPA defers to decision making by the state directors (or

EPA in the case of non-delegated states on these aspect). EPA’s Final Rule 

should keep as many options regarding site and method of injection available, 

subject to the standard that any CO2 GS be protective of underground sources of 

drinking water (“USDWs”).

Because state regulators in approximately five or six states have worked 

extensively with Owners or Operators of UIC Class V experimental CO2 wells they have 
29

familiarity with environmental, geologic, and financial concerns specific to a given 

region, their adoption and tailored implementation of the CO2 GS rules will be crucial to 

the success of the Program.

Although there are significant similarities between the proposed requirements for 

Class VI wells and the existing requirements for Class I, II, and V wells under the UIC 

Program, APPA does not believe that there should be a presumed grandfathering of 

Class I, II and V for the Class VI as storage sites. APPA cannot easily imagine why an

oil and gas production field would typically want to move from a Class II to a Class VI 

well classification since oil and gas recovery is always technically possible at the right 

price. Besides, UIC Class II production classification has certain other regulatory and 

commercial advantages to remain as Class II to the oil and gas sector. Few wells are 

truly ever 100% depleted since newer technology may make unreachable oil and gas 

obtainable. APPA does not oppose state directors who believe that they should 

grandfather a well from Class II to a Class VI provided that it can be demonstrated to 

the state’s satisfaction that such carrying over of requirements will be protective of 

USDWs.

· EPA prematurely assumes that the CO2 injected for GS is a solid waste. The 

CO2 that will be captured and injected for long-term storage into Class VI wells is 

an uncontained gas and therefore does not meet the statutory definition of a 

"solid waste" under the Resource Conservation and Recovery Act (“RCRA”). 

Further, it is premature to assume that material will be "discarded" as CO2 is 

currently used as a commodity in a variety of manufacturing processes. To the 

extent there is any possibility that CO2 injection operations could be subject to 

RCRA controls, EPA should exempt such activities from RCRA's corrective 

action program under the well established "contingent management" concept 

given that the UIC permit will ensure that the injected material is not 

mismanaged. APPA is confident that state directors will have strict rules on how 

the injections are managed. On this topic of RCRA and solid waste, APPA 

defers to the Utility Solid Waste Activities Group (USWAG) and recommends 

those aspects of their comments. 
30

· The Final Rule must not make the application process overly burdensome or 

unrealistic by requiring detailed information that may not be available at the time 

of the initial application; instead, the Final Rule should allow for submission of 

updated information regarding a CO2 GS well and its AoR as that information 

becomes available through phased corrective action.

General Issues Related to Classification and Regulation of CO2 GS Wells

APPA believes the creation of a new category of wells under the UIC Program for 

long-term storage of CO2 is appropriate. Id. at 43502

With respect to the integration of State programs, APPA agrees with EPA that 

the Final Rule should create a delegable program and encourage the adoption and 

implementation of that program by States. APPA realizes that some states have no 

experience with oil and gas use of CO2 but encourages all states to adopt the program. 

Adopting the program does not automatically presume that all power plants built and 

operated in those states will be able to conduct geologic sequestration in that state. 

Id. at 43497. State regulators have familiarity with local environmental, geologic, and 

financial concerns, and in many cases have pre-existing relationships with the regulated 

community that can facilitate implementation of a new and complex regulatory program. 

For these reasons, APPA also believes it is appropriate to allow States to obtain 

primacy for only Class VI wells if a particular State so chooses. Id. at 43523. Such 

class-specific primacy is consistent with the statutory authorization behind the UIC 

Program, and EPA correctly predicts that States obtaining primacy for Class VI wells, 

regardless of whether they have sought primacy under other aspects of the UIC 

program, may be more likely to develop a comprehensive regulatory program for all 

aspects of carbon capture and storage. Id.; see also 42 U.S.C. § 300h-1 (SDWA 
31

§ 1422). Simply put, APPA is not trying to force states to have Class I and Class II UIC 

programs in order to have Class VI programs. States may well decide that they still are 

not comfortable with a Class II or Class I UIC program. APPA has no desire to change 

those state policies through this UIC rulemaking.

Grandfathering Requirements of Class I, II, and V UIC Wells

This is an extremely important issue as a few APPA members plan to invest 

substantial resources in developing and permitting Class V experimental CO2 injection 

wells to help demonstrate the viability of large-scale commercial deployment of CO2

sequestration. Some of these may also be conducted as DOE/NETL or state research 

or demonstration projects to illustrate how CO2 can be separated and injected. Federal 

and state governments should encourage these research and demonstration efforts, as 

their success is critical to the large-scale commercial deployment of CO2 sequestration. 

The opportunity to operate these wells on a regular basis after they have been shown to 

be effective on an experimental basis should be allowed to help encourage the 

substantial, upfront investment necessary to get these wells permitted. APPA believes 

that the state should be allowed to grandfather of construction requirements for existing 

Class I, II, and V wells seeking a Class VI permit for GS of CO2 if the state believes that 

the Class V experimental well USDW protections are adequate. Since most of these 

new Class V experimental permits appear to be mirror images of Class I programs, 

APPA does not see how this will be a problem. Id. at 43502 In the case where the 

Class V program mirrored the Class I program, grandfathering of requirements beyond 

those related to construction is both necessary and appropriate, particularly for Class V 
32

wells. As an initial point, it has already been determined through the permitting process 

that the operation of these Class V wells is protective of USDWs. See 40 C.F.R. § 144 

et seq. Having made this determination, there should be a regulatory presumption that 

conversion of these wells for the exact same activity – at a larger scale and for an 

extended time period – under the Class VI program is also protective of USDWs. 

However, APPA acknowledges and believes that the EPA final rule should clearly state 

that this should be done with the understanding that grandfathering will not be allowed if

the Director demonstrates that conversion of these Class V experimental wells to Class 

VI would jeopardize USDWs. 

APPA recognizes that there are differences between Class II wells and Class VI 

wells that may necessitate additional requirements and safeguards as Class II wells 

transition to Class VI wells. 73 Fed. Reg. 43502. However, APPA recommends that 

the Final Rule include an option whereby Owners or Operators of Class II wells can 

make a demonstration that their well(s), if used for CO2 GS, will not pose a threat to 

USDWs. Such a case-by-case demonstration would allow for the carrying over of Class 

II well requirements where appropriate and protective of USDWs, maximizing the 

efficiency of such transitions while ensuring that USDWs remain protected.

Siting of CO2 GS Wells

As discussed above, APPA believes it is counter-productive at this stage in the 

development of a CO2 GS regulatory regime to categorically preclude any potentially 

feasible injection formations as possible long-term storage sites with the exception of 

sole source aquifers. EPA correctly recognizes that the commercial deployment of CO2
33

GS activities will result in the new production of large volumes of CO2 for which owners 

or operators will have to locate new and environmentally protective injection zones. It 

makes sound policy sense for EPA to encourage the identification and utilization of as 

many protective zones as possible, with the prerequisite that any injection site be 

protective of USDWs. Injection of CO2 should be allowed as long as it can be 

demonstrated that injection will be protective of USDWs and meet other applicable 

conditions for Class VI CO2 GS wells. APPA offers no opinions on injection of CO2 into 

coal seams. APPA defers to the American Water Works Association regarding the 

questions pertaining to whether above or below the lowermost USDW. The EPA asked 

for comments on basalt, salt domes or shales. APPA is not qualified to offer any 

opinions about formations such as basalts, salt domes, or shales. APPA presumes that 

these site choice issues will be clearer after demonstrations by the U.S. DOE regional 

partnership and private R&D pilots. Id. at 43503. If it can be demonstrated that the 

injection of CO2 into such sites is protective of USDWs, then such activities should be 

allowed under the Class VI UIC program. At a minimum, we know that more 

demonstration projects are needed looking at diverse geology for maximum use of coal 

which is an essential fuel source.

Interaction with RCRA

The U.S. EPA seeks comment on the question of whether CO2 that exhibits a 

Resource Conservation and Recovery Act or “RCRA” hazardous waste characteristic 

should be precluded from injection in a Class VI CO2 GS well. Id. at 43503. APPA 
34

questions the underlying premise behind EPA's discussion regarding the potential 

applicability of the RCRA hazardous waste regulations to CO2 GS. Id. 

The fundamental error in EPA's request for comment on this point is its 

premature assumption that CO2 is being discarded and therefore is a solid waste. A 

material cannot be a RCRA hazardous waste if it is not first a "solid waste." See 40 

C.F.R. § 261.2. The statutory definition of "solid waste" is limited to specified 

"discarded" materials; a material cannot be a "solid waste" unless it has first been 

"discarded." 42 U.S.C. § 6903 (RCRA § 3001). 

While there have been numerous judicial decisions addressing what constitutes 

"discard," the fundamental holding from these cases is simple and straightforward: 

Congress intended to extend EPA’s authority to regulate “solid waste” under RCRA 

“only to materials that are truly discarded, disposed of, thrown away, or abandoned” 

American Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987) (emphasis 

added). The D.C. Circuit has emphasized that the "plain meaning” of the term “solid 

waste” extends only to materials that are “discarded” and that the term "discard" should 

be interpreted with reference to its ordinary meaning. Ass’n of Battery Recyclers, Inc. v. 

EPA, 208 F.3d 1047, 1051-52 (D.C. Cir. 2000).

CO2 is a valuable commodity used in a variety of manufacturing operations, 

including in the enhanced oil recovery (“EOR”) and enhanced gas recovery (“EGR”) 

production process. When used in these commercial oil/gas production applications, 

CO2 is not “discarded” and therefore is not a solid waste. While large volumes of CO2

will be produced under the carbon capture and sequestration programs contemplated 

by the UIC Class VI program, it is premature for EPA to presume that these additional 
35

volumes of CO2 will not retain commercial value and that their sequestration in Class VI 

wells automatically means that they have been “discarded” as that term has been 

defined under RCRA. As we have already noted, the Agency should refrain from 

making categorical assumptions associated with this still-emerging technology 

associated with the commercial deployment of CO2 GS operations, including with 

respect to the status of captured CO2 destined for GS. 

Finally, assuming, for purposes of argument, that CO2 is “discarded” and exhibits 

a hazardous waste characteristic when injected for long-term sequestration, there are 

compelling policy reasons to exclude such activities from RCRA regulation. Subjecting 

these injection operations to regulation under a Class I UIC hazardous waste injection 

permit could expose all other waste management units at the power plant facility, 

including units that are in no way related to the injection operations, to the full panoply 

of RCRA’s Subtitle C corrective action program. This is because a Class I UIC 

hazardous waste injection permit is a classified as a RCRA “permit by rule” under 

RCRA’s hazardous waste permit program. See 40 C.F.R. §§ 270.1(c)(1)(i) and 270.64. 

Facilities that have obtained a RCRA permit by rule for the operation of a Class I UIC 

hazardous waste injection well are potentially subject to the full scope of RCRA’s 

corrective action program for all solid waste management units ("SWMUs") located at 

the facility. If RCRA were to regulate the CO2 as a waste this would make many power 

plant owner/operators reticent to pursue these technologies. See EPA RCRA/Superfund 

Hotline Monthly Summary, "Corrective Action for UIC Wells," April 1986 

(9502.1986(07)). The specter of RCRA corrective action is a significant economic and 
36

practical operational obstacle for any facility considering whether to seek a permit for a 

new Class VI well for geosequestration.

The imposition of this obstacle is completely unwarranted. Any well receiving a 

permit under the UIC Program for CO2 GS will be, by definition, protective of USDWs. 

EPA’s RCRA program has established a legally sound process, referred to as 

"contingent management," for the exclusion of materials from hazardous waste 

regulation when such materials are already subject to an alternate regulatory regime 

that ensures the wastes are managed in an environmentally protective manner. EPA 

has employed the contingent management concept in several contexts where the 

Agency determined that other regulatory regimes adequately addressed any potential 

mismanagement scenarios related to certain materials, including used oil and military 

munitions. 

The D.C. Circuit has reviewed EPA's legal theory underlying the contingent 

management concept and found it to be a "permissible construction of the statute" –

namely, that the statutory definition of "hazardous waste" is predicated upon the risks 

posed by a solid waste when "improperly" managed; therefore, "where a waste might 

pose a hazard only under limited management scenarios, and other regulatory 

programs already address such scenarios, EPA is not required to classify a waste as 

hazardous waste subject to regulation under [RCRA] Subtitle C." Military Toxics Project 

v. EPA, 146 F.3d 948, 958 (D.C. Cir 1998) (emphasis added).

APPA believes that RCRA corrective action for the entire power plant would rank 

with parasitic power loss as strong deterrents to geologic sequestration for many small 
37

municipality power plant owner/operators. We do not want to see these CCS projects 

prevented because of RCRA waste concerns.

Interaction with CERCLA

APPA has been bothered by the risks of CERCLA given the complexities of what 

can trigger CERCLA and remediation under the statute’s ARARs. (Applicable or

Relevant and Appropriate Requirements). A critically important issue on which EPA 

seeks comment is the interaction of the CO2 GS regulatory program with the 

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). 

While EPA acknowledges that “CO2 itself is not listed as a hazardous substance under 

CERCLA,” the Agency raises the specter of potential CERCLA liability if the CO2 stream 

contains other CERCLA hazardous constituents (e.g., mercury), or if other hazardous 

constituents are formed when the injected CO2 stream reacts with groundwater (e.g., 

sulfuric acid). Id. at 43504. As EPA can surely appreciate, the potential for open-ended 

CERCLA liability for any contamination resulting from CO2 GS activities will act as a 

serious deterrent to would-be Owners or Operators of Class VI wells and could 

jeopardize the contemplated wide-spread commercial deployment of CO2 GS 

operations. CERCLA liability would be the ultimate disincentive for commercial 

deployment. APPA believes that Congress will need to act to correct this risk before 

commercial deployment should be expected. APPA’s white paper on CERCLA issues 

by Marianne Horinko, former Acting EPA Administrator, and career policy senior 
38

manager at the U.S. EPA on CERCLA and other waste matters address these points. 

That paper is found in the Appendix.

8

EPA correctly acknowledges that CERCLA’s “federally permitted release” 

exemption will provide CERCLA protection from those "releases" that fall within the 

scope of a Class VI permit (e.g., contained within the Area of Review (“AoR”)), but the 

Agency also recognizes the limitations of this exemption, as it does not offer protection 

for any release of a hazardous substance that is out the scope of the Class VI permit 

(e.g., outside the AoR). Indeed, EPA states that any permits will have to "be carefully 

structured to ensure that they do not 'authorize' inappropriate hazardous releases," 

including "potential releases from the well which are outside the scope of the Class VI 

permit." Id.

APPA appreciates that the contamination issue is extremely important and 

should be addressed in the Final Rule. However, we have no reason to believe that the 

technology and safeguards developed to prevent migration of injected CO2 or its 

constituents will fail. At the same time, the specter of open-ended CERCLA liability will 

impede the ability of Owners or Operators to calculate and demonstrate financial 

responsibility, obtain financial assurance, and obtain the initial capital necessary to 

invest in this important technology. Simply put, EPA (and Congress) must mitigate the 

threat of potential CERCLA liability to the extent possible in this rulemaking.

One step that the Agency can take is to ensure that final Class VI permits for 

individual CO2 GS projects have the broadest possible reach – while remaining 

protective of USDWs – to maximize the protection offered by the Federally Permitted 

8Marianne Horinko “Carbon Capture and Sequestration Legal and Environmental Challenges Ahead,” 

August 2007
39

Release exemption. This would mean including in the scope of the permit for CO2

injection all other CERCLA hazardous constituents likely to be contained in the CO2

stream, including those generated during capture and transport as well as any that 

could be formed in the injection zone as a result of the injection of CO2. Similarly, the 

scope of the authorized "permit zone” should be as broad as possible while remaining 

protective of USDWs. This could mean, for example, effectively authorizing the 

migration of constituents contained in the CO2 stream (or resulting from injection) 

outside the scope of the AoR, provided that such migration does not directly impact a 

USDW.

The bottom line is that the potential for unlimited CERCLA liability must be 

mitigated to avoid significant delays and an overall chilling effect for geosequestration.

APPA recognizes that while there are some measures the Agency can take in the 

regulatory context to address this concern, including those described above, those 

measures may be limited. In the end, APPA believes that a legislative solution is critical

to eliminate this liability concern. APPA recommends that the EPA strongly support 

such a broader liability solution and communicate that support to Congress at the 

appropriate time.

Permit Application and Reporting Requirements

The EPA asks for comments about electronic reporting. Any requirement 

contained in the Final Rule for electronic reporting should not be absolute but should 

instead allow the Director to allow other methods of reporting when he deems such 

methods more appropriate. APPA imagines that by the time CCS is widely commercially 
40

viable, electronic filing (or whatever society considers “electronic filing of data” will be at 

that future date) will be the least of our cost or operational concerns. APPA would 

suggests that early projects, say in the first five years, have some modest leniency for 

ways to file effectively and responsibly without the presumption of real time data on 

every imaginable data point. We also suggest that the EPA have some reasonable test 

for response to the state or Federal permitting agency in the event that a reporting event 

happens on a weekend or during nighttime hours. Some owner/operators will be on 

different time zones than the injection well operator. APPA suggests that a reasonable 

time be allowed for reporting to be sent in on routine data where there is no catastrophic 

reporting event. 

With respect to the Proposal’s suggestion of an annual reporting requirement for 

CO2 GS projects, APPA appreciates the importance of the information EPA seeks to 

gather but believes that annual reporting will not always be the best way to collect this 

information over the lifetime of the project. Id. at 43518. The Final Rule will require 

some form of periodic reevaluation of the AoR throughout the life of the project; much of 

the information sought through the proposed annual reporting requirement would be 

gathered and submitted to EPA through the AoR reevaluation process. Gathering this 

information through the AoR reevaluations alone, rather than imposing an unnecessary 

and duplicative annual reporting requirement, will provide a more cost-effective and 

manageable method of information exchange for regulators and Owners or Operators 

alike. APPA prefers the idea of reporting every five years in the first 20 years of 

operations.
41

Well Plugging and Post-Injection Site Care

APPA acknowledges that for some potential power plant owner/operators that 

the Proposal’s suggested fifty-year default fixed timeframe for the post-injection site 

care period is arbitrary and will serve to discourage Owners or Operators of CO2 GS 

sites from seeking to develop innovative ways to safely close wells in a shorter time 

period. Id. at 43519. EPA acknowledges in the Preamble to the Proposal that it is likely 

“that the actual time for CO2 plume stabilization ... will be very site specific, being 

influenced by geologic factors such as formation permeability, geochemistry, and the 

degree of capillary trapping.” Id. (emphasis added). EPA then goes on to note that the 

studies used for their preliminary analysis suggest that the length of time required 

before plume stabilization ranges from ten to one hundred years after cessation of 

injection – quite a significant range. Id, emphasis added. In the same discussion, EPA 

reviews a range of suggested time periods, acknowledging that even a ten-year 

timeframe is suggested by some studies.

APPA understands that a ten-year site closure period may be insufficient in some 

cases; there is no single time period that would apply to every CO2 GS site across the 

board. Because of the greatly varied geologic characteristics, APPA believes a post 

closure period of 10 years or until the plume is determined to be stable. Stability is to be 

defined by the state Director that he/she does not believe that it can harm USDWs. 

Given the concerns by the water utilities, APPA defers to AWWA for their expertise in 

this matter. 

Tracers – If the state Director believes that tracers are needed, we encourage 

the least cost tracer be selected from the most effective options. EPA correctly notes 
42

that some drawbacks can accompany the use of tracers, including the possibility of 

false positives. Id. at 43512-13. 

Plume and pressure front monitoring– Because of APPA’s inextricable link to the 

municipal water utilities, we fully appreciate the importance of accurate monitoring of the 

plume and pressure front. Id. at 43514. APPA defers to AWWA to comment on 

monitoring and frequency of monitoring requirements. APPA believes that most early 

projects will likely monitor far more often than will be unnecessary as more information 

is gained regarding the accuracy of initial modeling. 

Financial Responsibility 

APPA supports EPA’s suggestion to issue guidance in the future for clarification 

of the financial responsibility mechanisms available for Owners or Operators of CO2 GS 

wells. Id. at 43520-22. Provided that such guidance is issued in accordance with 

OMB’s Good Guidance Manual, APPA believes that such guidance could be particularly 

helpful as the Program advances and industry and regulators gain experience and 

knowledge related to CO2 GS projects. APPA believes it is far too soon to offer 

significant comment on this aspect of the proposed rule. 

APPA would like to see that the final rule accommodate a range of options 

including self-insurance instruments remain available to Owners or Operators as a 

method of financial assurance for Class VI CO2 GS projects. Id. at 43521.

Self-insurance instruments, including the corporate financial test and the corporate 

guarantee, have been utilized successfully under RCRA over two decades. However, 

APPA must acknowledge that the volume of CO2 and the length of operations would 
43

suggest that the UIC Class VI wells will be different. As EPA mentions in the 

Preamble, the assessment by the Environmental Finance Advisory Board (“EFAB”) of 

various financial responsibility issues revealed no specific failures of the corporate 

financial test. Id.

APPA is comfortable with the Proposal’s suggestion to allow separate financial 

responsibility demonstrations for different phases of CO2 GS projects, specifically for 

well plugging and then post-injection site care. Id. at 43522. As EPA recognizes, 

“post-injection site care has the potential to extend many years into the future,” and 

“[t]rying to determine the cost for post-injection site care ... could be difficult, as could 

the approval of a financial demonstration.” Id. Requiring all financial demonstrations to 

be completed at one time, prior to well plugging, could unnecessarily delay the site 

closure process. Allowing a subsequent demonstration for financial responsibility for 

the post-injection site care period will allow regulators and Owners or Operators to 

better understand the site-closure needs for a given CO2 GS project prior to 

demonstration and approval of financial responsibility. 

APPA urges EPA to actively pursue a legislative solution to the liability issue.

APPA does not yet have the legislative solution in mind to address long-term liability 

under RCRA, CERCLA, Natural Resource Damage Assessment (NRDA) and other 

state laws but we know that considerable effort will have to be made to enable power 

plants to comfortably enter into these commercial activities without unlimited 

environmental or tort liability.
44

Public Participation

APPA agrees that public participation is crucial to the success of any individual 

CO2 GS project and of the UIC Program as a whole. Id. at 43523. We urge EPA to 

structure the Final Rule’s public participation requirements to maximize impact without 

unnecessarily slowing down the application process. To this end APPA believes that 

public participation would prove most useful after an application has been deemed 

complete but before it has been approved. APPA is inclined to believe that the states 

will set up public participation requirements consistent with their existing proposed new 

plant operations. APPA does not want the EPA UIC Class VI rulemaking to add new 

steps for permit review or hearings but offers no Federal pre-emption of existing state 

public participation requirements. 

The need for better data for GS to work

EPA did not specifically call for comment on additional information needed to 

enable geologic sequestration. But APPA would like to make some recommendations 

for consideration in the EPA final rule that would better enable us as a nation to use 

geologic sequestration in a very responsible manner. First, many states have not 

conducted modeling on groundwater use and availabity in decades, and the earlier 

modeling may have used outdated models and information. In non-oil and gas states (or 

perhaps some mining states) there is little known about the subsurface geology. While 

APPA greatly appreciates the maps and placement analysis modeling conducted by

U.S. Geological Service or “USGS”, Batelle, NETL/DOE and others. We do not believe 

that we have preliminary characterizations or pre-commercial data as to underground 
45

formations suitable for injection and long-term storage of CO2. Nor do we know what the

storage capacity is for those geologic formations given the volume of CO2 from power 

plants. We believe that DOE’s regional sequestration pilots, USGS, and other agencies 

can help the EPA and state agency directors in better characterizing these formations

and ruling out transmissive faults, historically abandoned wells or mines, or poorly 

closed oil/gas operations from the 1930s where the well was closed with very poor 

closure mechanisms that would not prevent seepage. These formations that need to be 

considered by these agencies include deep saline formations, since we believe that 

most oil and gas formations will be saturated with CO2 in the first few years of broad

commercial deployment. Oil and gas states have had motivation to keep up with 

subsurface mapping and preliminary characterization of the geology and hydrology 

because of the revenue streams from oil/gas sales and taxes back to the states. States 

will need to provide much clearer preliminary characterizations of the subsurface before 

this technology is commercially deployable because even the most modest subsurface 

characterization in a deep saline aquifer can take millions of dollars. Many power plant 

owner operators will hesitate to undertake such studies in non oil and gas states.

APPA encourages the state agencies to use the available training and resources from 

USGS. EPA and state agencies should also become familiar with and be trained to use 

the SEQURE program, licensed by the Department of Energy’s NETL program. 

SEQURE is an aerial methane detection program which can be used in each state to 

identify abandoned or orphaned oil and gas wells, mines, and perhaps other subsurface 

faults that could inadvertently lead to leakage and ultimate risks to USDWs. Other 

programs may be appropriate in addition to SEQURE. APPA does not intend to close 
46

the door to other modern ways to better characterize drinking water resources and the 

surrounding geology but we encourage the use of SEQURE. We defer to our colleagues 

at the American Water Works Association, the AWWA Research Foundation (AwwaRF),

and the Association of Metropolitan Water Agencies who might offer other insights as to 

what else is needed. Further, APPA encourages state directors to communicate in 

substantives ways with the state hydrologist or geologist. Many states have not had any 

motivation to review subsurface geology in many decades. Updating maps and ruling 

out areas with faults or other unintended methods of conveyance for CO2 migration will 

be essential to make this program work. APPA encourages the U.S. EPA and states to 

meet with USGS to discuss other tools available to the EPA and to states agencies.

Leaks and response plans

APPA believes that the owner/operator must take remedial action as described in 

the permit’s response plan.

Monitoring

APPA does not have great expertise in monitoring in GS commercial settings. 

However, it makes common sense to place monitors close enough to detect the leak 

before it can negatively affect the USDW. APPA realizes that some local jurisdictions 

may require surface monitoring or that OSHA may require surface monitoring for safety 

purposes. However, we doubt that surface monitoring would do much to protect 

USDWs. 
47

Electricity Reliability

While the EPA UIC Class VI program permitting proposed rule did not call for 

comments on electricity reliability, we offer our comments to NERC on Reliability 

Impacts of Climate Change Initiatives, dated July 16, 2008, which we believe should be 

considered. These are included in the Appendix. NERC’s “Reliability Impact of Climate 

Change Initiatives” (Nov. 2008) link is:

http://www.nerc.com/files/2008-Climate-Initiatives-Report.pdf to the final report (23pp).

EPA to Consider SBREFA Impacts

APPA asks that the U.S. EPA consider APPA’s comments under Small Business

Regulatory Enforcement and Fairness Act (SBREFA) since > 90% of APPA’s member 

utilities meet the threshold for small entities.

Executive Order 12866

APPA asks that the U.S. EPA consider APPA’s comments and NERC’s study 

under Executive Order 12866 and any future Executive Orders on energy expressed by 

President-Elect Obama which covers energy issues.
48

Conclusion

APPA appreciates the opportunity to comment on this important rulemaking 

initiative and looks forward to working with EPA on this effort. APPA has also filed

comments on the EPA ANPR in response to many questions that the EPA has asked on 

geologic sequestration. It is critical that the EPA’s air, water and policy offices 

understand that while APPA will offer reasons why geologic sequestration should not be 

presumed to be Clean Air Act technological choices under MACT, BACT, LAER, or for 

NSPS compliance etc., we do strongly want the U.S. EPA to have a Class VI regulatory 

system that would allow for these demonstration (and later commercial scale plants) 

plants. APPA would be pleased to meet with the EPA regarding these issues. We 

would additionally be pleased to include in any EPA meeting our partners, the American 

Water Works Association (AWWA) which represents the public and private water 

utilities who have “front line” drinking water protection obligations. 

Attached in the Appendix are APPA’s white papers, background documents and

maps which should assist the EPA in evaluating our recommendations.

Contact:

Theresa Pugh

Director, Environmental Services 

American Public Power Association (APPA)

(202) 467-2943

tpugh@appanet.org
49

Appendix

-Australia Parliamentary Library, Research Paper no. 9 2008–09, “The potential 

for renewable energy to provide baseload power in Australia”, by Stewart 

Needham, Science, Technology, Environment and Resources Section. 23 

September 2008.

-L.D. Carter, White Paper, "Carbon Capture and Storage From Coal-based 

Power Plants: A White Paper on Technology for the American Public Power 

Association (APPA)," May 2007 

-L.D. Carter, White Paper, "Retrofitting Carbon Capture Systems on Existing 

Coal-fired Power Plants," November 2007

-Marianne Horinko “Carbon Capture and Sequestration Legal and Environmental 

Challenges Ahead,” August 2007

-“Will Water Issues/Regulatory Capacity Allow or Prevent Geologic Sequestration 

for New Power Plants?” J. Gledhill, J. Rollins, T. Pugh

-Issues Related to Seismic Activity Induced by the Injection of CO2 in Deep 

Saline Aquifers, Joel Sminchak and Neeraj Gupta, Battelle Memorial Institute

-Why doesn't Greece like carbon capture? Leigh Phillips

September 23, 2008 

-GAO study “Climate Change” Federal Actions will Greatly Affect the Viability of 

Carbon Capture and Storage As a key Mitigation Option.

-Statement of Don Broussard, Lafayette, La. Utilities System before the House 

Subcommittee on Environment and Hazardous Materials On Geologic Carbon 

Sequestration. July 24th, 2008

-APPA Comments to NERC on Reliability Impacts of Climate Change Initiatives. 

July 16th, 2008

-Populations Trend Map

-Aquifer Map
This document is not available in Regulations.gov since it 

contains copyrighted material that may not be reproduced 

without consent of the copyright holder. 

Contact the EPA Docket Center, Public Reading Room to view 

or receive a copy of this document. Requests for copies may be 

made as follows: 

In person/writing: 

Environmental Protection Agency, Docket Center 

1301 Constitution Ave NW, 2822T, Room 3334 

Washington, DC. 20004 

Telephone: 

202-566-1744 

Fax: 

202-566- 9744 

Email: 

docket-customerservice@epa.gov
Letter ID: 0169 

Commenter: Theresa Pugh 

Organization: American Public Power Association 

Letter ID: 0169 Comment ID: 23361 Letter Lines: 83 to 88 

Comment Code: 2020 1.5.1 Support Class VI designation 

Comment Code: 5600 2.11 Comments related to UIC Program primacy for Class VI wells 

Comment: General Issues Related to Classification and Regulation of CO2 GS Wells -- Pg. 20 

APPA believes the creation of a new category of wells under the UIC Program for 

long-term storage of CO2 is appropriate and agrees with EPA that the Final Rule 

should create a delegable program and encourage the adoption and 

implementation of that program by States. 

Individual Response: EPA acknowledges the comment and agrees that tailored requirements for 

Class VI wells are necessary to address the unique nature of injecting large volumes of CO2 and 

to ensure that USDWs are protected from endangerment. The Class VI requirements are 

appropriate because of the unique nature and risks of CO2 injection for long-term storage (e.g., 

large injection volumes, long project duration, and reservoir pressure conditions). The GS rule 

contains tailored requirements for the permitting, geologic site characterization, AoR and 

corrective action, well construction, operation, mechanical integrity testing, monitoring, well 

plugging, post-injection site care, and site closure of GS wells that directly address issues unique 

to the nature of large-scale CO2 injection for GS. 

EPA agrees with commenters on the importance of states having primacy for GS wells given the 

variety of geologic settings in which GS will be applied. EPA recognizes that State, Tribal, 

Territorial and DI UIC Program Directors are in the best position to evaluate the unique issues 

related to well depth, geology, and hydrogeology that are posed by a Class VI well. Some degree 

of flexibility is needed for Class VI wells because each decision made will be site-specific and 

conditions will differ from state to state. The GS rule balances the need for these site-specific 

decisions with the need for minimum standards to ensure national consistency. 

The Agency believes that it is important for states to use their unique efficiencies to promote 

adoption of this burgeoning and important technology, while assuring that USDWs are protected 

from endangerment through the UIC regulatory framework. EPA encourages states to accept 

primacy for Class VI, and believes that, due to the importance of implementing an effective, 

comprehensive, and seamless CCS program, States should be provided the flexibility to obtain 

primacy for Class VI only. 

However, given the potential for CCS (encompassing capture, transportation, and geologic 

sequestration) to be an important part of a national priority to address climate change, EPA 

believes that providing states the flexibility to obtain primacy for Class VI wells independently 

of other well classes can help foster effective management of CCS. EPA believes that allowing 

1
independent Class VI primacy may encourage states to take responsibility for implementation of 

Class VI regulations and provide for a more comprehensive approach to managing CCS projects 

by promoting the integration of GS activities under SDWA into a broader framework for 

managing CCS. Furthermore, GS operations involve ancillary activities (e.g., pipeline 

operations, pore space ownership, land use rights, and surface access) for which states can call 

upon other authorities that exist at the state level (but outside UIC authority) to provide a more 

comprehensive CCS management approach. 

Letter ID: 0169 Comment ID: 23362 Letter Lines: 90 to 95 

Comment Code: 2060 1.5.3 Comments on grandfathering of existing wells (seeking comment) 

Comment: Grandfathering Requirements of Class I, II and V UIC Wells -- Pg. 31 

APPA believes that the state should be allowed to grandfather construction 

requirements for existing Class I, II, and V wells seeking a Class VI permit for GS 

of CO2 if the state believes that the Class V experimental well USDW protections 

are adequate. 

Individual Response: EPA agrees that many Class I, Class II, and Class V experimental 

technology wells are designed and constructed to withstand exposure to CO2. The final GS rule 

provides for the construction of these wells to be grandfathered per §146.81(c), provided the 

owner or operator can demonstrate to the Director that the wells were engineered and constructed 

to meet the requirements at §146.86(a) and ensure protection of USDWs, in lieu of requirements 

at §146.86(b) and §146.87(a). EPA clarifies that decisions regarding the appropriateness of 

grandfathering will be made by the Director. 

EPA clarifies that only the construction requirements are grandfathered and that all other Class 

VI requirements (reporting, monitoring, mechnical integrity testing, etc.) must be met following 

a determination under §146.81(c). 

Letter ID: 0169 Comment ID: 23363 Letter Lines: 97 to 102 

Comment Code: 2100 1.6 Target Geologic Formations for GS 

Comment: Sitting of CO2 GS Wells -- Pg. 32 

APPA believes it is counter-productive at this stage in the development of a CO2 

GS regulatory regime to categorically preclude any potentially feasible injection 

formations as possible long-term storage sites with the exception of sole source 

aquifers. 

Individual Response: EPA clarifies that the GS rule does not categorically preclude injection of 

CO2 into any non-USDW formation types. The purpose of the GS rule is to ensure protection of 

USDWs from endangerment, and the rule requires that owners or operators demonstrate that 

wells are sited in suitable systems with geologic formations to receive and confine injected CO2, 

2
required at §146.83 of the GS rule. The Class VI siting, well construction and operation, 

monitoring and testing, and post-injection site care and site closure requirements are designed to 

ensure that injected CO2 remains within the target formation. If an owner or operator can 

demonstrate to the Director's satisfaction that GS in coal seams, basalts, salt domes, or shales can 

be accomplished in a manner that protects USDWs and meets all of the requirements of the GS 

rule, the project may be permitted as a Class VI well. 

Letter ID: 0169 Comment ID: 23364 Letter Lines: 104 to 108 

Comment Code: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment) 

Comment: Interaction with RCRA -- Pg.33 

APPA believes that RCRA corrective action for the entire power plant would rank 

with parasitic power loss as possibly insurmountable obstacles for geologic 

sequestration. 

Individual Response: EPA received many comments regarding the applicability of the RCRA 

regulations and statute to CO2 streams that are geologically sequestered under the final Class VI 

UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking 

specifically to examine the issue of RCRA applicability to CO2 streams being geologically 

sequestered, including the possible option of a conditional exemption from the RCRA 

requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its 

development of that proposal. The Agency will consider issues particular to RCRA in the context 

of that separate rulemaking, and recommends that the commenter read that proposed rule when it 

is published. The Agency notes that commenters who wish to submit comments on the RCRA 

proposal will need to do so during the comment period for that rule. Finally, EPA also notes that 

the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water 

Act (SDWA), is not making any changes to the RCRA regulations. 

Letter ID: 0169 Comment ID: 23365 Letter Lines: 110 to 114 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: Interaction with CERCLA -- Pg. 37 

APPA believes that Congress will need to act to correct the potential for open ended 

CERCLA liability for any contamination resulting from CO2 GS activities 

before commercial deployment should be expected. 

Individual Response: The Agency acknowledges the commenter’s concern regarding the scope 

and possible impacts of CERCLA liability on CCS activities. EPA notes that the GS rule is not 

promulgated under CERCLA, therefore the applicability of that statute will not be determined 

under the SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself 

and any implementing regulations that may apply. 

3
Letter ID: 0169 Comment ID: 23366 Letter Lines: 116 to 120 

Comment Code: 4740 2.7.4 Electronic reporting (seeking comment) 

Comment: Permit Application and Reporting Requirements -- Pg. 39 

APPA believes that electronic reporting should not be absolute but should 

instead permit the Director to allow other methods of reporting when he deems 

such methods more appropriate. In addition, APPA believes that annual 

Individual Response: EPA believes that electronic formatting is the most appropriate format for 

submitting Class VI project information to the Director, and based on comments received on the 

proposed rule, the majority of Class VI GS well owners or operators will have the capability to 

report electronically, and requires this at §146.91(e). 

EPA is developing guidance for states that describes the recordkeeping, reporting, and additional 

data management needs associated with GS activities and provides recommended guidelines on 

the types of data to be collected for tracking GS projects, reporting to EPA for compliance 

tracking, and transfer of data to EPA's GS data system. The recordkeeping and reporting 

guidance will be available on EPA's web site, at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23367 Letter Lines: 120 to 122 

Comment Code: 4760 2.7.6 Proposed reporting frequency (seeking comment) 

Comment: such methods more appropriate. In addition, APPA believes that annual 

reporting will not always be the best way to collect this information over the 

lifetime of the project. 

Individual Response: The final GS regulation retains the reporting requirements as proposed 

and does not include a requirement for an annual report. Instead, EPA believes that periodic 

reevaluation of the AoR, as required at §146.84(e), along with any revisions to the required plans 

that may be required based on the AoR reevaluation, will promote an ongoing relationship 

between the permitting authority and the owner or operator. The final GS rule, at §§146.84(c), 

146.90(j), and 146.94(d), requires owners or operators to review and update the AoR and 

corrective action plan, the testing and monitoring plan, and the emergency and remedial response 

plan throughout the life of the project. Owners or operators must review each plan and identify 

necessary amendments to the plan or demonstrate to the Director that no amendment is needed. 

These reviews must be performed within one year of an AoR reevaluation, following any 

significant changes to the facility (e.g., the addition of monitoring or injection wells), or when 

required by the Director. In no case can reviews occur less often than once every five years. See 

the final rule and preamble for further discussion on EPA's final approach to reporting and 

recordkeeping. 

4
Letter ID: 0169 Comment ID: 23368 Letter Lines: 124 to 131 

Comment Code: 5240 2.8.2.2 Post injection timeframe (seeking comment) 

Comment: Well Plugging and Post-Injection Site Care -- Pg. 41 

APPA believes that the Proposal’s suggested fifty-year default fixed timeframe 

for the post-injection site care period is arbitrary and will serve to discourage 

Owners or Operators of CO2 GS sites from seeking to develop innovative ways to 

safely close wells in a shorter time period. While there is no single time period 

that can apply across the board, APPA suggests that 10 years or until the plume 

is determined to be stable is sufficient. 

Individual Response: EPA disagrees that a post-injection site care timeframe of 50 years is 

arbitrary. EPA proposed a default post-injection site care timeframe of 50 years based on a 

review of research studies, industry reports, and existing environmental programs. This analysis 

was included in an EPA-prepared background document that is available in the federal docket, 

titled "Computational Modeling of Underground Injection of Carbon Dioxide for Determination 

of Area-of-Review and Potential Risk to Underground Sources of Drinking Water." EPA 

assessed various default timeframes based on additional review of research studies and 

evaluation of public comments. While numerous commenters suggested that EPA shorten the 

monitoring timeframe, none of the commenters provided sufficient data or other evidence to 

warrant a change in the proposed timeframe. While the 10- or 30-year timeframe suggested by 

some of these commenters may be within the timeframe suggested in some studies, EPA believes 

that the potential risks of endangering USDWs will likely not decline within these timeframes 

and available data, including data submitted by commenters, do not support a different default 

timeframe. 

However, EPA recognizes that alternative timeframes may be appropriate under limited, specific 

circumstances. For this reason, the Class VI rule offers owners or operators flexibility regarding 

the duration of the PISC timeframe by: (1) allowing the Director discretion to shorten or 

lengthen the PISC timeframe during the PISC period based on site-specific data, pursuant to 

requirements at §146.93(b); or (2) affording the Director discretion to allow a Class VI well 

owner or operator to demonstrate, based on substantial data during the permitting process, that an 

alternative PISC timeframe may be appropriate if it ensures non-endangerment of USDWs 

pursuant to requirements at §146.93(c). 

EPA believes that a 50 year post-injection site care timeframe represents a reasonable and 

protective monitoring period and available data, including data submitted by commenters, do not 

support a different default timeframe. Furthermore, EPA believes that a 50-year default postinjection site care timeframe, as required at §146.93(b)(1), is not overly burdensome, does not 

exaggerate the risks associated with GS, is consistent with other environmental programs, and 

sufficiently protects USDWs from endangerment. 

EPA adds that the purpose of the GS rule is not to incentivize the use of GS; rather, the purpose 

of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that protects 

5
USDWs from endangerment. 

Letter ID: 0169 Comment ID: 23369 Letter Lines: 133 to 139 

Comment Code: 5400 2.9 Proposed Financial Responsibility and Long-Term Care 

Requirements 

Comment: Financial Responsibility -- Pg. 42 

APPA supports EPA’s suggestion to issue guidance in the future for clarification 

of the financial responsibility mechanisms available for Owners or Operators of 

CO2 GS wells, provided that such guidance is issued in accordance with OMB’s 

Good Guidance Manual and that the final rule accommodate a range of options, 

including self-insurance instruments. 

Individual Response: EPA is developing guidance on financial responsibility for GS wells. 

EPA plans to take OMB's Good Guidance Manual into advisement as financial responsibility 

guidance is developed. OMB's Good Guidance Manual establishes policies and procedures for 

the development, issuance, and use of significant guidance documents by Executive Branch 

departments and agencies. 

EPA is developing guidance that describes the types of financial instruments, which owners or 

operators can use to meet financial responsibility requirements for GS wells. The financial 

responsibility guidance will include considerations for Directors regarding how to evaluate the 

appropriateness of a specific financial responsibility instrument for a specific project. EPA notes 

that directors may disallow certain instruments. See the final rule and preamble for further 

discussion of EPA's final approach to financial responsibility. 

Letter ID: 0169 Comment ID: 23370 Letter Lines: 141 to 144 

Comment Code: 5500 2.1 Comments on Involving the Public in Permitting Decisions 

Comment: Public Participation -- Pg. 44 

APPA agrees that public participation is crucial to the success of any individual 

CO2 GS project and of the UIC Program as a whole. 

Individual Response: The Agency believes that public participation is an important part of the 

UIC permitting process and wants to ensure wide access to decision-making processes and 

information on projects. GS permitting authorities must follow the existing public participation 

requirements for UIC permits as specified in 40 CFR Part 124. These regulations lay out the 

procedures for decision making and include requirements such as requiring the Director to notify 

the public regarding the availability of the draft permit and allow him or her to request a public 

hearing on the draft permit. EPA encourages operators and permitting agencies to begin 

6
involving the public by providing information as early in the process as possible. Encouraging 

public participation allows the permitting authority to understand public viewpoints, preferences, 

and concerns about the project, which might help avoid public misperceptions about the nature 

and safety of GS projects and forestall resistance later in the permitting effort. 

Letter ID: 0169 Comment ID: 23371 Letter Lines: 146 to 151 

Comment Code: 1800 1.4 Scientific Background/Informing the Proposal 

Comment: The need for better data for GS to work -- Pg. 44 

In non-oil and gas states (or perhaps some mining states) there is little known 

about the subsurface geology. APPA believes that USGS and other agencies 

can help the EPA and state agency directors in better characterizing these 

formations. 

Individual Response: While developing the GS regulation, EPA evaluated relevant GS 

research, including projects conducted by the seven regional carbon sequestration partnerships 

funded by the U.S. Department of Energy (DOE) and coordinated through the National Energy 

Technology Laboratory (NETL), and several international projects. Additionally, EPA's Office 

of Water continues to fund research at the Lawrence Berkeley National Laboratory examining 

the effects of CO2 interaction on ground water aquifers and any potential mobilization of trace 

elements that may occur. EPA is communicating with other research organizations and academic 

institutions including, among others, Princeton University, Massachusetts Institute of 

Technology, and Montana State University, where specific research on geologic sequestration, 

injection well materials, and CO2 monitoring techniques is in progress. EPA is also working 

with DOE, USGS, and others to identify tools and training techniques that will provide GS 

permitting assistance and technical expertise as appropriate. Additionally, EPA's Office of 

Research and Development (ORD) is undertaking multiple research efforts on GS. Topics of 

research include bolstering different default thermodynamic databases to include more 

comprehensive information on aqueous complexes and solid-phases that contain 

carbonate/bicarbonate and toxic elements for which EPA has a listed maximum contaminant 

level (MCL) for safe drinking water. 

ORD's National Center for Environmental Research (NCER) awarded six Science To Achieve 

Results (STAR) grants in the Fall of 2009 to recipients from major universities and institutions 

within the scope of the "Integrated Design, Modeling and Monitoring of Geologic Sequestration 

of Anthropogenic Carbon Dioxide to Safeguard Sources of Drinking Water" research area. These 

projects, which started in late 2009, include these lead institutions with specific topics of 

investigation: Clemson University will study potential impacts to drinking water aquifers of 

CO2-rich dissolved brines; the University of Illinois-Urbana will conduct research related to 

reducing hydrologic and geochemical uncertainties associated with CO2 sequestration in deep, 

saline reservoirs; the University of Texas at Austin will assess appropriate monitoring 

approaches at geologic sequestration sites; the University of Utah will integrate design, 

monitoring, and modeling of GS to assist in developing a practical methodology for 

characterizing risks to USDWs; Columbia University will conduct laboratory experiments on 

7
shallow aquifer systems to improve understanding of geochemical and microbiological reactions 

under low pH/high CO2 stress; and Princeton University will develop a set of computational 

tools to model CO2 and brine movement associated with GS. 

In response to the comment regarding the amount of data available on the subsurface geology of 

states that do not produce oil or gas, EPA clarifies that the permitting requirements at §146.82 

require an extensive evaluation of the geologic conditions at a proposed GS site to demonstrate 

the suitability of a potential project site for GS. If adequate maps and cross sections do not exist 

to support a thorough evaluation of the site, the owner or operator must produce the information 

(e.g., through additional, new studies) and the Director has the authority to request additional 

information. See §146.82(a)(21). 

EPA is using an adaptive approach to regulating GS under the UIC Program. Even after 

finalization of the GS regulation, the Agency plans to collect and review data every six years on 

GS projects to determine whether the appropriate amount and types of information and 

appropriate documentation are being collected, and to determine if modifications to the 

requirements are appropriate or necessary. 

Letter ID: 0169 Comment ID: 23372 Letter Lines: 153 to 156 

Comment Code: 5800 2.13 Comments on emergency and remedial response (40 CFR 146.94) 

Comment: Leaks and response plans -- Pg. 46 

APPA believes that the owner/operator must take remedial action as described in 

the permit’s response plan. 

Individual Response: EPA agrees that an emergency and remedial response plan is an important 

part of assuring protection of USDWs from endangerment at GS sites. The requirements for an 

emergency and remedial response plan at §146.94(a) are designed to ensure that owners or 

operators, as part of their permit applications, comprehensively plan what actions would be 

necessary in the unlikely event of an emergency. The plan will ensure that operators know what 

entities and individuals must be notified and what actions must be taken to expeditiously mitigate 

any emergency situations. 

Letter ID: 0169 Comment ID: 23373 Letter Lines: 158 to 161 

Comment Code: 4600 2.6 Proposed Plume and Pressure Front Monitoring Requirements (40 

CFR 146.90) 

Comment: Monitoring -- Pg. 46 

APPA believes it makes common sense to place monitors close enough to detect 

the leak before it can negatively affect the USDW. 

8
Individual Response: Regarding monitoring locations, section §146.90(d) requires periodic 

monitoring of the ground water quality and geochemical changes above the confining zone(s). 

EPA clarifies that this monitoring requirement does not include the confining layer itself. 

Monitoring above the confining layer will provide an indication of upward movement of CO2 

that might endanger a USDW. In addition, the final GS regulation, at §146.90(g)(1), requires all 

GS project owners or operators to monitor for pressure changes in the injection zone. Monitoring 

of pressure in the injection zone gives even greater advance warning of fluid movement that 

could potentially affect impact USDWs. The exact number and location of monitoring locations 

to be tested will, however, be based on site-specific characteristics and vulnerabilities and 

described in the Director-approved testing and monitoring plan. 

The GS rule stipulates that the monitoring frequency and spatial distribution of monitoring wells 

must be based on baseline geochemical data that were collected during the initial site 

characterization and the area of review evaluation, at §146.90(d)(2). The details of the 

geochemical monitoring will be based on site-specific information and described in the Directorapproved testing and monitoring plan. 

EPA is developing guidance on testing and monitoring to assist owners or operators and 

Directors in evaluating requirements under §146.90, including proposed monitoring plans. The 

guidance describes available technologies and recommended approaches for implementing a 

testing and monitoring plan, including pre-operational geophysical logging and testing of 

injection wells, MITs, injection well testing during operation, groundwater quality monitoring, 

tracking the CO2 plume and pressure front, and soil gas and surface air monitoring, which may 

be required by the UIC Director for specific GS projects. The guidance can be found on EPA’s 

website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23374 Letter Lines: 163 to 168 

Comment Code: 1300 1.1.2.3 Comments on other aspects of CCS (capture, transport) 

Comment: Electric Reliability -- Pg. 47 

APPA believes that potential impacts to electric reliability should be considered in 

promulgating the UIC Class VI permitting program rules. 

NERC’s study can be found at: 

http://www.nerc.com/files/2008-Climate-Initiatives-Report.pdf 

Individual Response: The UIC program’s authority under the SDWA focuses on ensuring that 

Class VI GS projects are permitted, sited, constructed, operated, monitored, and closed in a 

manner that protects USDWs from endangerment. Regulation of electricity providers is outside 

the scope of the Class VI GS rulemaking. 

Letter ID: 0169 Comment ID: 23375 Letter Lines: 237 to 245 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

9
Comment: 3. APPA wants geologic sequestration of CO2 to work. Geologic Sequestration 

might enable the power utility sector to use coal at future and existing power 

plants while reducing CO2 emissions. However, the technology is not yet fully 

commercially demonstrated and suitable geology may not be available in all 

states. This caution does not discourage us from wanting it to work or for 

supporting additional demonstration projects at DOE/NETL and in the private 

sector. Geosequestration opportunities in oil and gas states are probably the 

most optimal location for early adopters of CCS technology(s). APPA encourages 

the use of oil and gas fields for injection of CO2 from power plants. 

Individual Response: EPA clarifies that the intent of the Class VI regulation is not to promote 

or encourage the use of GS, but to ensure protection of USDWs where GS technologies are 

deployed. Please see the remainder of EPA’s responses to this comment for further details. For 

additional information on EPA’s final regulatory approach, please see the final rule and preamble 

as well as the rulemaking docket. 

Letter ID: 0169 Comment ID: 23376 Letter Lines: 247 to 251 ; 1314 to 1315 

Comment Code: 1200 1.1 General comments about the rulemaking 

Comment: 4. APPA strongly encourages the EPA to recognize the inextricable link between 

energy and water use. Water demand for power production remains intense, and may 

grow concurrently with demand growth and population growth. APPA recommends the 

Desalination and Water Purification Technology Roadmap developed by Sandia 

National Labs in 2003 as a summary of the water-energy issues. [FN2] 

[FN2] This document can be downloaded at 

http://www.sandia.gov/water/desal/docs/DesalRdmap04a.pdf 

Individual Response: EPA clarifies that the linkage of water and energy issues is outside the 

scope of the GS rulemaking; the purpose of the GS regulation is to ensure consistency in 

permitting underground injection of CO2 at GS operations across the United States and provide 

requirements to prevent endangerment of USDWs in anticipation of the eventual use of GS to 

reduce CO2 emissions. 

Letter ID: 0169 Comment ID: 23377 Letter Lines: 253 to 274 ; 1317 to 1318 

Comment Code: 1320 1.1.3 General comments about GS 

Comment: 5. APPA believes that new power plants designed for geologic sequestration 

should be planned for sequestration to be conducted for the "life of the plant"- 

which can be as long as 60 years. However, APPA believes that if some type of 

lateral or vertical migration of the CO2 or other substances (such as brine, 

metals, drilling muds, cement from well failure) is detected and believed to be 

10
potentially harmful to the underground sources of drinking water (USDW), that 

the power plant or power plants supplying the CO2 to the injection site(s) 

should be given an "infeasibility exemption[FN3]" for sequestration of its CO2. 

This exemption should enable the power plant to continue to operate without 

carbon dioxide injection in that location. Without this "infeasibility" or "back 

out" clause for geosequestration, it is highly unlikely that communities would 

build power generating facilities with carbon capture and injection systems that 

could cost at least $2 billion dollars (2008 dollars) or be able to obtain 

financing if the plant was not expected to operate for the full 50-60 years. The 

financial risks for closure of a power generating plant or multiple plants in a 

region would simply be too enormous. APPA does not believe that anyone should 

presume that the CO2 from power plants to be injected into in situ or distant 

geology should be presumed to exceed 50% of the total CO2 in the first few 

decade of the commercial deployment. APPA has no notion that the future fossil 

power plants with CCS will be carbon neutral given the larger volume of coal to 

be consumed in the gasification process in order to make up for parasitic power 

losses. 

[FN3] For the first generation plants, the "infeasibility exemption" should 

extend beyond infeasibility of the carbon capture operations of the power plant. 

Individual Response: EPA clarifies that regulating power plants is outside the scope of the UIC 

GS rulemaking, and that GS rule does not require any facilities to capture and/or sequester CO2. 

EPA also clarifies that the intent of the Class VI regulations is not to promote or encourage the 

use of GS, but, instead to ensure protection of USDWs where GS technologies are deployed. 

Letter ID: 0169 Comment ID: 23378 Letter Lines: 276 to 280 

Comment Code: 2020 1.5.1 Support Class VI designation 

Comment: 6. APPA enthusiastically supports a UIC Class VI permit classification despite 

our questions about feasibility and commercial deployment of the technology in 

2008. Development of a permitting system soon is necessary to provide regulatory 

certainty to the first generation demonstration projects that are essential 

before the commercial development of larger scale plants. 

Individual Response: As described above, EPA acknowledges the comment and agrees that 

tailored requirements for Class VI wells are necessary to address the unique nature of injecting 

large volumes of CO2 and to ensure that USDWs are protected from endangerment. 

Letter ID: 0169 Comment ID: 23379 Letter Lines: 282 to 288 

Comment Code: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment) 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

11
Comment: 7. Congress must address a number of critical liability issues under CERCLA and 

RCRA to enable widespread commercial deployment of geosequestration of CO2 from 

power plants. That issue primarily is outside the scope of this rulemaking but 

must be acknowledged. Unless these issues are resolved, first generation plants 

cannot progress. As EPA recognized in its ANPR on CO2, this UIC rulemaking 

provides one opportunity to address these issues, while protecting the public 

health and welfare under the Safe Drinking Water Act. 

Individual Response: EPA agrees that overlapping regulatory schemes are undesirable. EPA 

received many comments regarding the applicability of the RCRA regulations and statute to CO2 

streams that are geologically sequestered under the final Class VI UIC well requirements. As a 

result, EPA has decided to initiate a separate proposed rulemaking specifically to examine the 

issue of RCRA applicability to CO2 streams being geologically sequestered, including the 

possible option of a conditional exemption from the RCRA requirements for CO2 GS in Class 

VI wells. EPA will consider these comments as part of its development of that proposal. The 

Agency will consider issues particular to RCRA in the context of that separate rulemaking, and 

recommends that the commenter read that proposed rule when it is published. The Agency notes 

that commenters who wish to submit comments on the RCRA proposal will need to do so during 

the comment period for that rule. Finally, EPA also notes that the final GS rule, which adds new 

regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any 

changes to the RCRA regulations. 

CO2 itself is not listed as a hazardous substance under CERCLA; however, the CO2 stream may 

contain a listed hazardous substance (such as mercury) or may mobilize substances in the 

subsurface that could react with ground water to produce listed hazardous substances (such as 

sulfuric acid). Whether such substances may result in CERCLA liability from a sequestration 

facility depends entirely on the composition of the specific CO2 stream and the environmental 

media in which it is stored (e.g., soil or ground water). CERCLA exempts from liability, under 

CERCLA section 107, 42 U.S.C. 9607, certain “federally permitted releases” (FPR) as defined in 

CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure 

that they prevent potential releases from the well which are outside the scope of the Class VI 

permit. 

Letter ID: 0169 Comment ID: 23380 Letter Lines: 290 to 294 

Comment Code: 1600 1.3 Risk Associated with CO2 GS 

Comment: 8. "Acts of God" such as CO2 or other substances released from seismic events 

where seismic events could not have been reasonably anticipated by experts 

should not have liability attached to the owner/operator or other parties if the 

parties acted in a responsible way and could not have reasonably anticipated a 

fault or seismic risk. 

Individual Response: Under the final GS rule, once an owner or operator has met all regulatory 

requirements under Part 146 for Class VI wells and the Director has approved site closure 

12
pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to 

enforcement for regulatory noncompliance. Furthermore, their financial instrument as required 

under §146.85 will be released if it was not used. However, even if a site closure is approved 

under §146.93, an owner or operator may be held liable for regulatory noncompliance (including 

violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be 

held liable for regulatory noncompliance even after site closure was approved if the Director 

relied on erroneous information (e.g., erroneous modeling data) provided by the owner or 

operator when approving site closure. 

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be 

subject to a §1431 response order even after proper site closure is approved under §146.93. 

Under §1431 the Administrator may require an owner or operator to take necessary response 

measures if he or she receives information that a contaminant is present or is likely to enter a 

public water system or an USDW, which may present an imminent and substantial endangerment 

to the health of persons, and the appropriate State and local authorities have not acted to protect 

the health of such persons. The action may include issuing administrative orders or commencing 

a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner 

or operator fails to comply with the order, they may be subject to a civil penalty for each day in 

which such violation occurs or failure to comply continues. 

Furthermore, after site closure an owner or operator may remain liable under tort and other 

remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. 

§§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA 

does not have authority to transfer SDWA or other legal liability for Class VI wells to the State 

or federal government or a third-party fund. See the final rule preamble for further discussion of 

EPA's final approach. 

EPA adds that the GS rule contains several permit requirements (i.e., related to proper siting and 

operation of the well) to address seismic risk that should mitigate the chances of such events. 

Letter ID: 0169 Comment ID: 23381 Letter Lines: 296 to 304 

Comment Code: 1800 1.4 Scientific Background/Informing the Proposal 

Comment: 9. State governments, the EPA, power plant owner/operators, water utilities and 

the public need more data on water and subsurface geology/hydrology before we 

can actually begin wide scale deployment of new CCS plants. APPA strongly 

encourages EPA, DOE/NETL, U.S. Geological Survey (USGS) and state 

geologists/hydrologists to work together to improve our knowledge on both 

surface and subsurface geology. APPA believes it will be helpful for Congress to 

better understand the technology and to fully fund demonstration projects so 

that there is sufficient understanding of geology to support widespread 

geosequestration. 

Individual Response: As described in the previous response, EPA is tracking continuing 

13
research on CCS conducted by other federal agencies. EPA clarifies that Congressional actions 

and budget issues are outside the scope of the GS rulemaking. 

Letter ID: 0169 Comment ID: 23382 Letter Lines: 318 to 334 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment Code: 1610 1.3.1 Risks to USDWs 

Comment: Geologic sequestration into all geologic formations must be considered by 

electric utilities in their long-term plans for future fossil-fuel electricity 

generation while also weighing the need to protect public drinking water 

supplies. Protection of drinking water supplies, for some communities, may mean 

that inadequate surface water supplies may require that the city (or private 

utility) may require usage of groundwater in future years which may not appear 

to be "drinkable" under today’s presumed costs and technological (pump and treat 

or desalination) limitations. Our colleagues in the municipal drinking water 

operations remind us that Americans are currently drinking water which, in many 

locations, was undrinkable only 5-10 years ago. While most American cities in 

the east provide drinking water made up largely of surface water, more than 90% 

of all drinking water systems (private and public) use some amount of 

groundwater to make up for shortages. Acknowledging this does not mean that 

geosequestration should not be allowed. It simply requires common sense decision 

making at the local and regional level by power plants and the state directors 

as to the best placement of geosequestration plants or off-site injection 

formations. 

Individual Response: The Agency acknowledges commenter concerns about water resources 

and future water resource availability. The primary goal of the UIC Program under the SDWA is 

to protect USDWs from endangerment in order to ensure a reliable supply of drinking water for 

the American public. The GS rule, as part of the UIC program regulations, continues the 

program’s mandate and mission of ensuring the protection of USDWs. EPA expects the tailored 

permitting, siting, construction, operation, monitoring, and post-injection site care requirements 

in the GS rule to prevent leakage from injection formations and protect USDWs. 

Letter ID: 0169 Comment ID: 23383 Letter Lines: 336 to 340 

Comment Code: 1910 1.4.4 Stakeholder outreach 

Comment: We thank EPA for the regional workshops and public hearings associated with this 

proposed rule, the willingness of staff to meet with our electric (and water) 

utility representatives, and for the openness in the meetings about the tough 

issues inherently involved with drinking water protection with an entirely new 

technology (given the scale) for the power plants sector. 

Individual Response: EPA acknowledges the comment and agrees that input of and 

14
participation by a wide spectrum of stakeholders is a vital component of successful rulemaking. 

The Agency appreciates the degree of cooperation, participation, and active dialogue between the 

EPA and stakeholders and will continue to work with stakeholders and experts as it implements 

the GS rule. 

Letter ID: 0169 Comment ID: 23384 Letter Lines: 342 to 379 

Comment Code: 1320 1.1.3 General comments about GS 

Comment: The EPA’s proposed rule asks for comment on many issues which are new to the 

power sector. EPA does its best to tease out what we know from the use of CO2 

injection/recycling from the oil and gas sector and try to apply some of these 

concepts to the future power sector parties who might need to build coal-fired 

electric generating plants but would be required to reduce emissions of carbon 

dioxide through the combination of carbon capture technology at the plant and GS 

at an injection site. 

Carbon sequestration can employ any of several physical, chemical, or biological 

processes to isolate CO2 from the atmosphere, on a long-term basis. Carbon 

sequestration can be terrestrial and geological. As part of the Earth’s carbon 

cycle, terrestrial sequestration uses vegetation and the soil as carbon sinks. 

There are both technical and non-technical challenges to sequester large 

quantities of CO2 in subsurface repositories. The technical challenges are 

exacerbated by a lack of experience with processes on an appropriate scale, or 

in geologic formations that have no history of oil and gas production. The nontechnical challenges - in the form of legal and regulatory issues - are as 

significant as the technical uncertainties. But APPA supports research in order 

to assist us to make these changes. 

The amount of CO2 that could be required to be sequestered is enormous. The 

generation of power by coal-fired power plants in the U.S. produces 1.5 billion 

tons of CO2 that, when compressed to supercritical conditions, comprises a 

volume that exceeds that equal to U.S. oil consumption. The task of transporting 

and managing this volume of material is complicated by the need to operate the 

transport in a pipeline at 2,000 psig to maintain CO2 in a fluid state in these 

specialty pipelines. 

APPA does not question the viability of the technology of carbon dioxide 

injection for enhanced oil and gas recovery in production fields. Any 

questioning about the technology in the context of these APPA comments pertains 

to new large scale power plant parties which would likely be built outside the 

geologic formations suitable for oil and gas recovery. While the proposed rule 

asked for comments on the impacts on other industries, these APPA comments focus 

on power plants. We don't offer comments on carbon separation and 

injection/storage for ethanol plants, chemical companies, cement factories, or 

coal bed methane plants that might have similar opportunities to inject CO2. 

15
APPA has no comments on more shallow methane recovery from coal operations. 

Individual Response: EPA acknowledges the comment. Please see the remainder of EPA’s 

responses to this comment for further details. For additional information on EPA’s final 

regulatory approach, please see the final rule and preamble as well as the rulemaking docket. As 

described above, the GS rule does not require any facilities to capture and/or sequester CO2. 

Letter ID: 0169 Comment ID: 23385 Letter Lines: 381 to 390 

Comment Code: 1610 1.3.1 Risks to USDWs 

Comment Code: 1850 1.4.2 CO2 GS Field Research 

Comment: APPA strongly supports private and DOE/NETL geologic sequestration 

demonstration 

projects to tell us more about the technical viability of the separation 

technology and the scaling up of geologic sequestration. Further, these projects 

must also support any geosequestration or GS research projects that would better 

enable us to know more about the USDWs and protection of that critical resource. 

The "location is everything" is a critical presumption for the reader of our 

comments on the proposed UIC rule. In some locations geosequestration will be an 

optimal technology that makes sense for those future coal plants. In other 

locations, the type of rock, the lack of trapping mechanisms or proximity to 

underground faults, seismic risks or other 

Individual Response: As described above, EPA is tracking continuing research on CCS 

conducted by other federal agencies. 

EPA agrees that further research will assist with the transition to commercial-scale GS. As part 

of its adaptive rulemaking approach, The Agency plans, every six years, to collect and review 

data on GS projects to determine whether the appropriate amount and types of information and 

appropriate documentation are being collected, and to determine if modifications to the 

requirements are appropriate or necessary. 

While developing the GS regulation, EPA evaluated relevant GS research, including projects 

conducted by the seven Regional Carbon Sequestration Partnerships funded by DOE and 

coordinated through the National Energy Technology Laboratory (NETL), and several 

international projects. EPA published a Notice of Data Availability and Request for Comment 

(NODA) on August 31, 2009 (74 FR 44802), in which the Agency presented the results of 

research at three DOE partnership sites (in Escatawpa, Mississippi; the Aneth Field in Paradox 

Basin, southeast Utah; and the Pump Canyon Site, New Mexico). 

In the NODA and Request for Comment, EPA described two modeling studies by the Lawrence 

Berkeley National Laboratory on the potential effects of CO2 injection on ground water and 

surrounding formations to determine the potential for impacts on USDWs and human health in 

the event that a GS project is not properly sited, operated, or managed. In one study, LBNL used 

a comprehensive computational model to evaluate the potential impact of CO2 leaking from 

16
deep GS sites on the concentrations of trace elements in USDWs (Birkholzer et al., 2008a). In 

the other, LBNL studied a hypothetical, future scenario of GS in a sedimentary basin to 

demonstrate the potential for basin-scale hydrologic impacts of CO2 storage (Birkholzer et al., 

2008b). EPA has also examined potential methods for conducting treatment of water affected by 

a CO2 leak; this study is presented in the final rulemaking docket. 

EPA continues to fund research in this area. In December 2009, EPA awarded a STAR grant to 

Clemson University to investigate the potential for GS to affect USDWs. The research will 

involve laboratory experiments and modeling simulations to investigate the fate of dissolved 

CO2 in underground geologic formations and to determine possible risks associated with the 

dissolution of CO2 in underground aquifers. Other projects funded by the STAR grants include: 

the University of Illinois-Urbana will conduct research related to reducing hydrologic and 

geochemical uncertainties associated with CO2 sequestration in deep, saline reservoirs; the 

University of Texas at Austin will assess appropriate monitoring approaches at geologic 

sequestration sites; the University of Utah will integrate design, monitoring, and modeling of GS 

to assist in developing a practical methodology for characterizing risks to USDWs; Columbia 

University will conduct laboratory experiments on shallow aquifer systems to improve our 

understanding of geochemical and microbiological reactions under low ph/high CO2 stress; and 

Princeton University will develop a set of computational tools to model CO2 and brine 

movement associated with GS. 

Letter ID: 0169 Comment ID: 23386 Letter Lines: 392 to 402 

Comment Code: 1320 1.1.3 General comments about GS 

Comment: Our comments pertain to large scale power plant applications and those much 

larger CO2 injections and storage in geologic formations. There may be 

opportunities in the early years for the placement of coal plants for 

geosequestration in the shadow of the oil and gas industry where there would be 

opportunities for EOR/EGR. APPA encourages this and believes that this may be 

beneficial to many parties-including the power sector. If all new coal power 

plants could be built over geologic formations that have oil and gas recovery 

operations or where the CO2 could be stored in depleted wells, the economics 

would be far more favorable for the power sector. However, even if that were the 

case, the drinking water protection issues do suggest some initial caution in 

site selection. 

Individual Response: EPA acknowledges the comment. As described above, the GS rule does 

not require any facilities to capture and/or sequester CO2. Please see the remainder of EPA’s 

responses to this comment for further details. 

Letter ID: 0169 Comment ID: 23387 Letter Lines: 404 to 425 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment Code: 1610 1.3.1 Risks to USDWs 

17
Comment Code: 1800 1.4 Scientific Background/Informing the Proposal 

Comment: Our comments here should not deny the viability of CCS in some subsurface 

locations nor be read as APPA’s view that geologic sequestration works in all 

geologic locations or for all power plants. There is a great deal that we do not 

yet know about the wide variety of geologic formations to know that there are no 

risks to USDWs or that we could identify specifically what those risks might be. 

APPA hopes that on-going private and public research in the United States, 

Canada, Australia, and Europe will affirm that there are no risks to drinking 

water supplies or that the risks are so truly negligible that there is no reason 

to hesitate to use this technology. But we cannot presume that there are no 

risks simply based upon the commercial and technical success in CO2 recycling in 

Class II injection locations that are managed as production fields. It has been 

presumed that because the CO2 injections began in the Permian Basin of West 

Texas in the late 1970s that the CO2 from those tertiary recovery fields (for 

oil or gas) is actually still in the formation. In most cases the CO2 was 

recycled and used in different production operations. Even if the CO2 was 

injected 25-35 years ago, the CO2 may not still reside or remain in storage 

there. Because we have not seen large storage fields where the CO2 was stored 

for 10-30 years on a sustained basis, there is not as much known about the 

geologic formations, the adequacy of holding capacity and subsurface impacts as 

we would like to know. Also, in many cases, those oil or gas production fields 

are regulated differently than a newly established long-term GS formation would 

be regulated if it were owned/operated by a power company. 

Individual Response: EPA agrees with the commenter that the risks involved in GS projects are 

different than the risks associated with Class II activities. EPA believes that GS is sufficiently 

distinct from Class II ER operations to warrant the tailored requirements in the GS regulation. 

For example, the volume of CO2 anticipated to be injected in Class VI wells is significantly 

greater than for Class II wells. Reservoir pressure conditions will be different, with Class VI 

injection operations involving large volumes of CO2 and likely having higher pressures within 

their storage formations than Class II ER projects. Therefore, Class VI GS reservoir pressures 

will increase more in comparison to Class II ER during the injection phase of the GS project. 

EPA continues to research and collect data on CO2 storage and containment. EPA is tracking 

operations at the DOE GS pilot projects and will review data on all aspects of those operations, 

from well construction and injection to long-term plume fate and transport and monitoring of 

containment, as the data become available. In addition to the information cited in the preamble to 

the proposed rule, EPA published a Notice of Data Availability and Request for Comment on 

August 31, 2009 (74 FR 44802), in which the Agency described the results of research at three 

DOE partnership sites: the Escatawpa, Mississippi project; the Aneth Field project in Paradox 

Basin, Southeast Utah; and the Pump Canyon Site, New Mexico. Please also see the research 

described in the above response. 

As part of its adaptive rulemaking approach, the Agency plans, every six years, to collect and 

review data on GS projects to determine whether the appropriate amount and types of 

18
information and appropriate documentation are being collected, and to determine if 

modifications to the requirements are appropriate or necessary. 

Letter ID: 0169 Comment ID: 23388 Letter Lines: 427 to 431 

Comment Code: 2020 1.5.1 Support Class VI designation 

Comment: But, APPA does believe that the CCS plants that will be proven viable deserve a 

permitting mechanism under the EPA’s proposed Class VI program. APPA has no 

hesitation about a Class VI permitting system. APPA encourages the U.S. EPA to 

finalize this new category as soon as possible to facilitate the permitting and 

construction of first generation U.S. demonstration projects. 

Individual Response: As described above, EPA agrees that tailored requirements for Class VI 

wells are necessary to address the unique nature of injecting large volumes of CO2 and to ensure 

that USDWs are protected from endangerment. 

Letter ID: 0169 Comment ID: 23389 Letter Lines: 433 to 453 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment Code: 1540 1.2.3.2 Climate change legislation 

Comment: Some personnel at the U.S. EPA and members of Congress often assume falsely that 

CCS or GS is commercially deployable now in all states based upon the success in 

the half dozen or perhaps as many as a dozen oil/gas production states. The 

development of a national viable and workable CO2 capture and sequestration 

permitting program is one of the key prerequisites to the implementation of 

contemplated energy reform initiatives-ranging from state laws that force 

reductions in CO2 to pending new Federal legislation to require a national cap 

(on CO2 emissions.) APPA’s comments are offered here on the UIC permitting 

system are valid regardless to whatever "carbon signal" there might be to reduce 

CO2 from power plants. Even if there is no new national law setting a carbon 

emissions limit, intensity limit, carbon tax, or new generation requirement, 

states also have the ability to set state by state limits on 16 carbon dioxide 

emissions from power plants under separate state CO2 laws. APPA does not like 

patchwork quilt state by state regulatory approaches to reduce CO2 through 

different laws and regulations. It is entirely too soon to know what Congress 

might do. At this time, we have no clue what Congress might do in the future to 

constrain CO2 that would motivate any party to reduce CO2 from coal or natural 

gas plants. APPA’s comments are neutral as to the new legislative mechanism that 

would "constrain carbon". These technical, logistical, or cost issues are valid 

regardless of why utilities would want to inject CO2 under any carbon dioxide 

mitigation standard, reduction policy, or law. 

Individual Response: EPA acknowledges that GS falls within the broader context of CCS and 

19
the need for regulatory clarity to ensure that USDWs are protected from endangerment. In 

developing the final GS rule, the Office of Water coordinated with other Agency program offices 

and across federal agencies (e.g., with the Department of Energy; United States Geological 

Survey; Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly the 

Minerals Management Service; Bureau of Land Management). The Agency continues to evaluate 

areas of potential applicability of other Federal environmental statutes including, but not limited 

to: the Clean Air Act; the Resource Conservation and Recovery Act; the Comprehensive 

Environmental Response, Compensation, and Liability Act; and the Marine Protection, Research 

and Sanctuaries Act to various aspects of GS and CCS. The Agency will continue to coordinate 

on GS and CCS related issues to minimize redundancy and maximize efficiencies for owners or 

operators. For additional information, please see the discussion entitled "How Does This 

Rulemaking Relate to Other Federal Authorities and GS and CCS Activities?" in the preamble to 

the final GS rule. 

EPA is also aware that states are currently in various stages of developing statutory frameworks, 

regulations, technical guidance, and strategies for addressing CCS and GS. States can use 

multiple authorities beyond those afforded under the SDWA and UIC regulations, including laws 

and policies addressing surface access and land rights, unitization of fields, pore space 

ownership, mineral rights, worker safety and emergency preparedness, and maximization of state 

oil and gas resource exploitation. EPA plans to work closely with states and tribes as they 

develop Class VI primacy programs in this broader context. EPA adds that states may adopt 

more stringent standards for Class VI wells than the Federal requirements. 

In a separate rulemaking under authority of the Clean Air Act, EPA is amending the Greenhouse 

Gas (GHG) Reporting Program at 40 CFR Part 98 to add reporting requirements for facilities 

that conduct GS (subpart RR) and all other facilities that inject CO2 underground (subpart UU). 

For additional information, see the section of the final GS rule preamble entitled, "How Does 

Mandatory Reporting of Greenhouse Gases (GHGs) Relate to This Rulemaking?” and the GHG 

Reporting Program rulemaking and docket. 

Letter ID: 0169 Comment ID: 23390 Letter Lines: 455 to 479 

Comment Code: 1370 1.1.3.5 US storage capacity 

Comment: EPA contemplates that the electric power sector "will most likely be the largest 

potential market for carbon capture and sequestration (CCS) technologies, with 

the potential to reduce CO2 by approximately 80-90% at an individual plant." 

EPA’s figure seems extremely optimistic and perhaps unrealistic given what we 

know about both current demonstration projects of carbon separation and geologic 

sequestration. We do not recommend that anyone assume that 80-90% of CO2 from 

the power sector can actually be separated and STORED or sequestered in all 

geologic formations given our current knowledge. While separation of CO2 from 

the other air emissions might be achievable at 80-90%, presuming this number for 

geosequestration that EPA offers seems overly rosy. See 73 Fed. Reg. 44354, 

44492. The oil and gas sector does not universally store 80-90% of the CO2 that 

is recycled in its current EOR/EGR operations. In our review of descriptions of 

20
current EGR/EOR, as much as 95% of the CO2 can be recycled many times and 

sometimes the remaining CO2 is ultimately vented to the atmosphere. 

Enhanced Oil Recovery Schematic Showing CO2 recycling (source: American 

Geological Institute) 

[Please refer to p. 17 of the pdf file for Figure 1.] 

Separation and storage capacities may be very different at each geologic 

formation or subsurface location. APPA is not offering this as a criticism of 

oil/gas operations but simply explaining that there are many myths about actual 

retention of CO2 in oil/gas recovery operations and how translatable that 

experience is for the power plant sector. Regardless of the actual future volume 

Individual Response: EPA acknowledges this comment. The purpose of the Class VI GS rule is 

to ensure consistency in permitting underground injection of CO2 at GS operations across the 

United States and provide requirements to prevent endangerment of USDWs in anticipation of 

the eventual use of GS to reduce CO2 emissions. 

In a separate rulemaking under authority of the Clean Air Act, EPA is amending the Greenhouse 

Gas Reporting Program at 40 CFR Part 98 to add reporting requirements for CO2 injection and 

geologic sequestration. The greenhouse gas reporting requirements build on the requirements 

outlined in the Class VI GS rule with the additional goals of verifying the amount of CO2 

sequestered and collecting data on any CO2 emissions to the surface from Class VI GS facilities. 

Letter ID: 0169 Comment ID: 23391 Letter Lines: 479 to 486 

Comment Code: 1260 1.1.1.5 More certainty/stringency is needed 

Comment: experience is for the power plant sector. Regardless of the actual future volume 

of injection (or perhaps the ultimately limited success of carbon separation and 

ultimate injection), a practical Class VI permitting system is essential. Given 

the direct impact this program will have on the electric utility industry, APPA 

genuinely appreciates EPA's goal of establishing a regulatory regime that will 

provide "certainty" and "transparency" to what requirements would apply to 

owners/operators who engage in Class VI CO2 injection. Id. at 43496 (July 25, 

2008). At the same time, it is crucial for the regulations to reflect the 

Individual Response: EPA clarifies that the Class VI GS requirements are designed to ensure 

that, where deployed, GS is conducted in a manner that protects USDWs from endangerment. 

Encouraging investment in CCS projects and facilitating deployment are outside the scope of the 

GS rulemaking. 

Letter ID: 0169 Comment ID: 23392 Letter Lines: 486 to 504 

21
Comment Code: 1380 1.1.3.6 Deployment of GS 

Comment: 2008). At the same time, it is crucial for the regulations to reflect the 

challenges inherent in crafting controls for commercial CO2 injection and 

storage activities when such large-scale commercial operations are only at the 

nascent stage. Given what we know now, APPA remains rather skeptical that the 

large scale operations as envisioned by the popular or trade press (and perhaps 

EPA’s proposed rule’s preamble) are very possible in the next few decades. DOE’s 

original estimate that this new commercialized CCS industry is possible in about 

40 years is probably more realistic. Of course, APPA hopes that there are 

technology breakthroughs and that CCS or GS can be viable on larger scales which 

also remain protective of USDWs within the next 15 years. But we believe these 

larger commercial size power plants with > 10 tons of carbon sequestered 

annually would likely come online after 2025. We hold this hope on CCS in the 

same context as in hoping that there will be breakthroughs in large capacity 

battery storage or in storage for wind capacity or for new nanotechnology for 

solar panels. All are needed to achieve improvements in a power plants’ carbon 

footprint and in reducing criteria pollutants. While we may hope for technology 

and infrastructure breakthroughs, we plan on geologic sequestration based upon 

cold reality. The last thing that APPA wants is to promise what we might not yet 

be able to deliver. 

Individual Response: EPA clarifies that the Class VI GS regulations promulgated under Safe 

Drinking Water Act authority do not promote or encourage the use of GS, but, ensure 

consistency in permitting underground injection of CO2 at GS operations across the United 

States and provide requirements to prevent endangerment of USDWs in anticipation of the 

eventual use of GS to reduce CO2 emissions. EPA believes that the Class VI GS regulations, 

which build upon the long-standing, protective, regulatory framework of the UIC program, will 

provide the regulatory certainty and clarity that owners or operators have requested. 

EPA acknowledges that there are unknowns associated with early GS project deployment and the 

long term storage of CO2 for GS. For these reasons, the Agency is using an adaptive approach to 

regulating GS injection. The Agency will, every six years, collect and review data on GS projects 

to determine whether the appropriate amount and types of information and appropriate 

documentation are being collected, and to determine if modifications to the requirements are 

appropriate or necessary. 

Letter ID: 0169 Comment ID: 23393 Letter Lines: 506 to 563 ; 1320 to 1323 

Comment Code: 1300 1.1.2.3 Comments on other aspects of CCS (capture, transport) 

Comment: One of the largest hurdles: Parasitic Power 

The fundamental challenge confronting the utility industry is in carbon 

separation and in reducing the parasitic loss of energy at a power plant. 

Parasitic loss issues at power plants are best explained in Attachments 2 and 3 

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by Doug Carter. [Please see EPA-HQ-OW-2008-0390-0169.pdf for Attachments 2 and 

3.] These two papers explain to both laymen and technical experts why parasitic 

energy could be one of several "deal killers" for new power plants with GS.[FN4] 

These parasitic are problems that are very fundamental and will determine 

whether power plants pursue this technology or opt for another type of 

generation such as nuclear power or perhaps natural gas (which has roughly half 

of the carbon dioxide as coal). See Figure 2 which highlights the processes 

which contribute to the parasitic power demands of CCS. Even if carbon 

separation technology is commercially demonstrated at > 30 MW in the next few 

years, parasitic power or energy losses are a huge disincentive to use this new 

generation technology. 

[Please refer to the p. 19 of the pdf file for Figure 2 of Parasitic Power 

Losses in CCS Power Plant] 

The storage issues can be equally daunting but the fundamental question of 

separation and parasitic power are so overwhelming that it is not entirely clear 

how many municipal governments will want to pursue this technology until those 

economic issues (especially the parasitic power) are sorted out. The other 

remaining issue in the three legged footstool is the question of infrastructure 

and logistics. Without a massive investment in infrastructure for additional 

pipelines and booster compressors, APPA wonders how many of these plants will be 

built in the first 10-30 years. The oil and gas industry had 35 years to build 

up the essential infrastructure for CO2 injection in the context of oil and gas 

recovery. This infrastructure includes pipelines, booster compressors and 

feedstock delivery. See Figure 3 for a map showing current CO2 pipelines in the 

U.S. [Please refer to p. 21 of the pdf file for Figure 3 of U.S. CCS Pipeline 

Map] The industry also has systems in place to remove/treat produced waters. 

These systems are not in place in states with no oil or gas production. Those 

oil and gas recovery fields were and are highly profitable and had a revenue 

stream to offset the investments in delivery methods such as construction of 

pipeline or adaptation of existing natural gas pipelines, booster compressors, 

or for the use of tankers for some small quantities of CO2 for use at production 

fields. The economics for power plants are not yet ripe for such investments 

because power plants would not have the additional revenue stream coming in for 

infrastructure investments coming off the oil and gas production revenue stream 

Nor are the right of way or surface right issues sorted out by state law before 

CO2 can be either transported across jurisdictional lines or stored as a 

commodity without surface property rights being sorted out. These commercial and 

practical impediments to geologic sequestration (GS) are enormous and should not 

be minimized simply because we wish to find a technology that will work to 

enable us to use coal or natural gas in the future. These commercial, technology 

and feasibility impediments are not EPA’s problems to fix-but they are mentioned 

here because we are trying to inject "reality" into the zealous discussions in 

the trade press, on television, and at coal plant hearings about the viability 

23
of geologic sequestration at new coal plants in 2008. These same issues apply to 

the existing coal plant fleet. These same commercial issues apply in the context 

of natural gas generation sources where no carbon separation technology exists 

today without dramatic parasitic power impacts which would typically be too 

onerous for existing plants. 

[Figure 3. Please refer to p. 21 of the pdf file for Figure 3 of U.S. CCS Pipeline Map] 

[FN4] L.D. Carter, White Paper, "Carbon Capture and Storage From Coal-based 

Power Plants: A White Paper on Technology for the American Public Power 

Association (APPA)," May 2007 and L.D. Carter, White Paper, "Retrofitting Carbon 

Capture Systems on Existing Coal-fired Power Plants," November 2007 

Individual Response: EPA emphasizes that the UIC program’s authority under the SDWA is 

focused on ensuring that Class VI CO2 injection projects are permitted, sited, constructed, 

operated, monitored, and closed in a manner that protects USDWs from endangerment. The 

capture and transport of CO2 are not within the UIC program’s authority. 

Letter ID: 0169 Comment ID: 23394 Letter Lines: 565 to 577 

Comment Code: 1250 1.1.1.4 Flexibility is needed (performance-based standards) 

Comment: EPA, in this rulemaking, must establish a cost-effective and environmentally 

sound regulatory program to cover a range of operations in order that the 

technology will be commercially deployed. To meet this challenge and establish a 

workable regulatory framework over the coming decades for the long-term storage 

of CO2, it is imperative that EPA take care to craft the regulations with 

flexibility so that they may be fine-tuned as industry and regulators alike gain 

experience with the large-scale CO2 sequestration contemplated by this 

rulemaking. APPA applauds EPA’s efforts to build such flexibility mechanisms 

into the Proposed Rule, including the use of state directorial discretion and 

the provision for forthcoming guidance to clarify other requirements. APPA 

agrees that both of these methods will help create a regulatory framework that 

can evolve as information and technological advancements are gained in the field 

of carbon capture and sequestration. 

Individual Response: The Agency believes that the Class VI requirements balance site-specific 

flexibility with USDW protection. Rather than setting performance or technology-based 

standards for GS projects, EPA is adopting a flexible approach, where operators of GS projects 

would develop and implement site-specific plans for delineating the AoR, testing and monitoring 

the site, performing corrective action, and post-injection site care. EPA believes that the plans—

which would be reviewed and approved by the Director and periodically updated throughout the 

life of the project—promote an ongoing dialogue between the operator and the Director that will 

encourage use of the most appropriate technologies for a particular project. 

EPA clarifies that the intent of the Class VI regulations is not to promote or encourage the use of 

24
GS, but, instead to ensure protection of USDWs where GS technologies are deployed. EPA is 

using an adaptive approach to regulating GS under the UIC Program. Even after finalization of 

the GS regulation, EPA plans, every six years, to collect and review project data on GS research 

projects to determine whether the appropriate amount and types of information and appropriate 

documentation are being collected, and to determine if modifications to the requirements are 

appropriate or necessary. 

Letter ID: 0169 Comment ID: 23395 Letter Lines: 579 to 587 

Comment Code: 1200 1.1 General comments about the rulemaking 

Comment Code: 1435 1.2.1.3 EPA should develop guidance 

Comment: EPA asked for comments on financial guidance on any aspect of the final rule 

(for example, clarification of requirements for financial assurance mechanisms). 

APPA thinks that this might be an area where the EPA might call for a "second 

bite at the apple" after we know more from the preliminary carbon sequestration 

projects and "scaling up" projects. We agree with Utility Solid Waste Activities 

Group (USWAG) and others who have suggested that that guidance must be developed 

in accordance with OMB’s Good Guidance Practices Bulletin, which directs that 

notice and comment be provided for the development of "significant" and 

"economically significant" guidance documents. 

Individual Response: The GS rule contains minimum technical criteria for the permitting, 

geologic site characterization, AoR and corrective action, well construction, operation, 

mechanical integrity testing, monitoring, financial responsibility, injection well plugging, postinjection site care, and site closure of GS wells, which will ensure that USDWs are protected 

from endangerment. 

To promote consistency while providing the Director with an appropriate level of discretion, 

EPA is developing guidances for states and tribes that describe the process of applying for and 

receiving primacy for GS Class VI wells under Section 1422 of SDWA, as well as the technical 

and administrative issues associated with developing GS regulations that are the equivalent of 

minimum federal criteria and requirements. These are available on EPA’s website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

EPA intends to take OMB’s Good Guidance Manual into consideration as financial 

responsibility guidance is developed. OMB’s Good Guidance Manual establishes policies and 

procedures for the development, issuance, and use of significant guidance documents by 

Executive Branch departments and agencies. 

EPA agrees that an adaptive and flexible approach is appropriate. To protect USDWs from 

endangerment and meet the potentially fast pace of GS deployment, EPA is using an adaptive 

approach to regulating CO2 injection for GS. The Agency plans to, every six years, collect and 

review data on GS projects to determine whether the appropriate amount and types of 

information and appropriate documentation are being collected, and to determine if 

modifications to the requirements are appropriate or necessary. An adaptive approach will allow 

25
regulatory development to proceed in time to meet the current and future demands for Class VI 

permits while EPA continues to gather data from pilot projects and other research as it becomes 

available. 

Letter ID: 0169 Comment ID: 23396 Letter Lines: 589 to 624 ; 1325 to 1330 ; 1332 to 1333 ; 

1335 to 1336 

Comment Code: 1260 1.1.1.5 More certainty/stringency is needed 

Comment Code: 1620 1.3.2 Induced seismicity 

Comment: Because information and technology related to carbon sequestration are sure to 

develop as more experience is gained, APPA urges EPA to do what it can avoid the 

use of arbitrary or blanket prohibitions or absolutes in the EPA final rule. 

However, APPA believes that there are some common sense prohibitions that may be 

justifiable. For example, EPA should have in the final rule an explanation, 

consistent with the Class I program, that seismic-induced subsurface conveyance 

risks such as major faults, or proximity to sole source aquifer [FN5] 

protections are essential. Sole source aquifers are not the same as deep saline 

aquifers. APPA believes there are some prohibitions that are key to protection 

of USDWs. At the same time we do not want to contribute to "NIMBY" or "not in my 

backyard" or "NUMBY" - or "not under my back yard". What APPA asks for in the 

context of seismicity issues are clear-cut and understandable parameters or USGS 

guidelines so that power plant owner/operators don't pursue a geologic formation 

thinking that it is eligible only to learn that the EPA has used a USGS 

designation on seismic risks that would render it disqualified later in the 

permitting process. APPA asks that when the EPA or state directors make 

seismicity conditions that these be subject to notice and comment and be 

published in the Federal Register and the state equivalent publication. It would 

be terrible to have a power plant owner/operator spend time and significant 

money pursuing a geologic formation only to learn after he had spent many 

hundreds of thousands of dollars that the site did not meet the EPA’s seismic 

risk or USGS seismic requirements. Seismicity risk avoidance is a new factor for 

thermal or fossil plants and not one with which we have experience. APPA 

includes in the Appendix a paper from an NETL-funded study on seismic activity 

induced by injection of CO2 into deep saline aquifers [FN6] and an article 

regarding the Greek government’s concerns with injection of CO2 in the 

Mediterranean. [FN7] [See EPA-HQ-OW-2008-0390-0169.pdf for these documents.] 

Including these references to seismic issues does not mean that APPA fears that 

CO2 will cause seismic activity. Instead APPA does not want to see APPA member 

utilities pursue geology which has underlying seismic risks that are unknown to 

the power sector (and perhaps to the state agencies) and misuse critical 

resources, time and money pursuing that location for permitting only to find out 

later that they must start again. Most locations in the U.S. have not had recent 

seismic data assessed at the "fine granular" level needed to target the right 

formations for carbon dioxide geosequestration. This will necessitate the 

support of United States Geologic Survey and other agencies. 

26
[FN5] A sole source aquifer (SSA) is an underground water supply designated by 

the U.S. EPA as the "sole or principal" source of drinking water for an area 

under Section 1424(e) the Safe Drinking Water Act of 1974. "Sole or principal" 

has been interpreted to mean that the aquifer must supply at least 50 percent of 

the drinking water to persons living over the aquifer; there should be no 

alternate and feasible sources of drinking water that could replace the aquifer. 

[FN6] Issues Related to Seismic Activity Induced by the Injection of CO2 in Deep 

Saline Aquifers, Joel Sminchak and Neeraj Gupta, Battelle Memorial Institute 

[FN7] "Why doesn't Greece like carbon capture?" Leigh Phillips, EU Observer, 

9/23/08, http://euobserver.com/19/26794 

Individual Response: The GS rule, at §146.82(a)(5) requires prospective owners or operators to 

submit information on all USDWs within the AoR. EPA expects that this information will 

include identification of any sole source aquifers. The GS rule also requires operators to submit 

extensive information about the site, including the geologic characteristics of the injection and 

confining zones, to demonstrate that the injected CO2 will remain within the target formation. 

The Director must consider this information when determining whether GS is acceptable at a 

given site. EPA expects that during this evaluation the Director will consider the potential impact 

of the GS project on any sole source aquifers. 

Regarding seismicity, EPA acknowledges that induced seismicity is a risk that may be associated 

with GS but maintains that the risk is low (IPCC, 2005). The GS rule contains several 

requirements to address seismic risk. First, as part of the site characterization process, owners or 

operators must submit information about the seismic history of and seismic sources near a 

proposed GS site, data on known or suspected faults in the AoR, geomechanical information on 

fractures, stress, ductility, rock strength, and in situ fluid pressures within the confining zone as 

specified in §146.82(a)(3). This information is evaluated by the Director, who determines the 

suitability of a potential project site for GS. Any sites with the potential for reopening or 

reactivation of faults or unacceptable seismic risk that could otherwise interfere with 

containment will not be permitted as GS sites. During injection, the pressure in the injection zone 

must not exceed 90 percent of the fracture pressure of the injection zone as specified in 

§146.88(a); this requirement is intended to prevent the opening of fractures or faults through 

over pressurization of the injection zone. 

EPA clarifies that the rule does not contain any specific requirements describing "seismically 

appropriate" areas, and does not believe this is appropriate for all sites. EPA believes such 

determinations should be made on a site-specific basis. If such information is available, and the 

Director determines it to be relevant to the site characterization, it is in their authority to require 

detailed evaluations. However, EPA disagrees that this should be a requirement for all GS 

projects. In many cases, UIC Directors will have extensive knowledge of which areas are 

suitable for GS, but clarifies that it is the responsibility of Class VI permit applicants to 

demonstrate the suitability of a particular site or formation. It is the responsibility of the Director 

to evaluate the information collected and submitted by the owner or operator to determine 

27
whether a permit for GS at the site is appropriate. 

EPA is developing guidance on site characterization for GS projects to assist owners or operators 

and Directors in evaluating permit requirements and applications under §146.82. The guidance 

provides recommendations to owners or operators regarding information to support 

characterizing the regional geology and hydrogeology of a proposed GS site as well as how to 

perform the necessary geochemical, geomechanical, and geophysical analyses of the injection 

and confining zone. EPA expects that this guidance will assist permit writers/UIC Directors in 

making an objective decision about requiring additional confining layers. The guidance can be 

found on EPA’s website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23397 Letter Lines: 626 to 650 

Comment Code: 1610 1.3.1 Risks to USDWs 

Comment: We agree with EPA that the appropriate standard underlying technical 

requirements for CO2 GS wells should be the protection of underground sources of 

drinking water ("USDWs"). Even though it is difficult to know at this point what 

methods or technology will be developed for injection and long-term storage of 

CO2 in a manner that is protective of USDWs –we know intuitively that sole 

source aquifers and some high risks seismic locations should be ineligible. 

Proximity to Class IV wells might also be inappropriate (although those wells 

are very rare) because of their contents. In areas where there has been a 

history of Class I or Class II leakage or USDW contamination problems the state 

directors should have full discretion to take those locations off the table for 

injection for long-term storage. APPA assumes that state directors will know 

best which geologic locations should be unsuitable or ineligible. But, we 

acknowledge that there are some risks not worth taking. Sole source aquifers are 

just not worth the risk for CO2 injection no matter how noble the goal of CO2 

reductions might be. There are perhaps 10-15 sole source aquifers in the United 

States so APPA does not believe that removing these locations restricts the 

available geology storage in any significant way on a national basis. 

In some cases, those power plants might need to be coal or gas with other carbon 

dioxide mitigation strategies such as the purchase of renewable credits or other 

measures that are outside the scope of this rule. APPA does not suggest that 

coal plants cannot be built near sole source aquifers since sequestration could 

be conducted off-site if the infrastructure for moving the CO2 is in place or 

would be in place within a reasonable date after start up of the new power 

plant. 

Individual Response: EPA agrees that certain aspects of a site (e.g., the presence of seismic 

sources or sole-source aquifers) may make it unsuitable for GS. For this reason, owners and 

operators must submit extensive information about the proposed site in their permit applications, 

which the UIC Director must consider under §146.82 before issuing a Class VI permit. For 

example, the GS rule, at §146.82(a)(5) requires prospective owners or operators to submit 

28
information on all USDWs (which would include sole source aquifers) within the AoR. The GS 

rule also requires operators to submit extensive information about the site, including the geologic 

characteristics of the injection and confining zones, to demonstrate that the injected CO2 will 

remain within the target formation. The Director must consider this information when 

determining whether GS is acceptable at a given site. EPA expects that this determination will 

include consideration of potential impacts of the GS project on any sole source aquifers. 

In many cases, UIC Directors have extensive knowledge of which areas are suitable for GS, but 

clarifies that it is the responsibility of Class VI permit applicants to demonstrate the suitability of 

a particular site or formation. It is the responsibility of the Director to evaluate the information 

collected and submitted by the owner or operator to determine whether a permit for GS at the site 

is appropriate. 

EPA is developing guidance for permitting authorities. This guidance will be available on EPA’s 

website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23398 Letter Lines: 652 to 662 

Comment Code: 3120 2.1.2 Need to identify additional confining and containment zones 

(seeking comment) 

Comment: APPA is not expert on drilling practices and many of the site characterization 

techniques discussed in the proposed rule. As discussed below, the Final Rule 

should leave the door open for a range of injection sites (except for sole 

source aquifers which we believe should be excluded from consideration) and 

methods (some of which are unrecognized, or even unknowable, at this point in 

time), provided that the Owner or Operator can show that the injection and 

storage will be protective of USDWs. APPA does join its "sister" organization, 

AWWA, representing the water utilities, in calling for proposed GS projects to 

at least identify all the confining zones in applications. APPA does not believe 

that multiple confining zones should be arbitrarily required. We defer to state 

directors to make these judgments based upon their knowledge of local geology. 

Individual Response: EPA retains the requirement to identify additional containment/confining 

zones, if required by the Director, as proposed (§146.83(b)). EPA acknowledges that such 

additional zones may not be needed in all circumstances, and clarifies that this requirement is at 

the Director's discretion, based on his or her understanding of a particular site. EPA believes that, 

in some situations, the presence of additional confining and containment zones above the 

primary (i.e., lowermost) confining zone can improve USDW protection. These layers could 

further impede vertical fluid movement and allow for pressure dissipation, and also provide 

additional sites for monitoring, mitigation, and remediation. The Agency believes that providing 

the Director discretion will allow consideration of a range of sites for GS, based on site-specific 

conditions and ensure USDW protection. EPA believes that requiring appropriate site 

characterization by the owner or operator (under §146.82) and providing an appropriate degree 

of flexibility to the Director to evaluate site-specific geologic data will afford the greatest 

protection of USDWs from endangerment. 

29
Letter ID: 0169 Comment ID: 23399 Letter Lines: 664 to 673 

Comment Code: 3500 2.2.3 Area of Review Reevaluation (seeking comment) 

Comment: Area of Review: APPA has nominal background in Area of Review, but we do 

believe 

that AoR sites require periodic review. Given the fact that carbon sequestration 

technology is still developing, and the widely varied characteristics and 

limitations of different CO2 GS projects, it is essential to incorporate 

performance-based standards into the Final Rule, with site-tailored approaches 

to requirements for Area of Review ("AoR") reevaluation and post-injection site 

care and closure periods. APPA believes that the AoR should be periodically 

reviewed at least every five years for the first 10 years. At the conclusion of 

the tenth year APPA believes that a less stringent periodic review should be 

allowed by the director if he so chooses. However, APPA believes that the 

Individual Response: EPA agrees that reevaluations of the AoR every ten years may not be 

sufficient to appropriately model plume and pressure front movement, establish conditions for 

corrective action, and ensure protection of USDWs from endangerment. For these reasons, the 

Agency changed the minimum frequency for the AoR reevaluation at §146.84(e) from 10 years 

to at least every 5 years in the final GS rule. EPA believes that this revised frequency addresses 

commenters' concerns about the inherent uncertainties in modeling CO2 movement, the 

emerging nature of GS technology, risk-based targeting of monitoring activities, and the unique 

nature of CO2 GS. EPA disagrees that a longer reevaluation frequency in the later years of the 

project is appropriate, however. EPA believes that the same justifications for reevaluations will 

continue to apply. EPA adds that if site monitoring data agrees with the existing AoR 

delineation, the AoR reevaluation may consist of a demonstration that the current AoR 

delineation is adequate based on site monitoring data. 

Letter ID: 0169 Comment ID: 23400 Letter Lines: 673 to 683 

Comment Code: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space 

ownership 

Comment: allowed by the director if he so chooses. However, APPA believes that the 

operation of the power plant should not be stopped if the geologic storage or 

sequestration is deemed ill advised by the state director (or court). Only the 

CO2 injection in that location should cease. Instead the owner/operator of that 

power plant should be allowed to continue operations for the purpose of 

generating electricity (and other functions) without CO2 injection until either 

a different technique is developed or until infrastructure can be built to move 

the CO2 to a different injection location. In some cases, the power plant 

owner/operator will simply have to make commercial or contractual arrangements 

to pay a party to take the CO2 for injection or geoengineering mitigation 

measures (not yet identified). 

30
Individual Response: The UIC program’s authority under the SDWA focuses on ensuring that 

Class VI GS projects are permitted, sited, constructed, operated, monitored, and closed in a 

manner that protects USDWs from endangerment. EPA clarifies that the Class VI GS regulation 

applies to owners or operators of wells that will be used to inject CO2 into the subsurface for the 

purpose of long-term storage and does not require any facilities to capture and/or sequester CO2 

and that permitting of power plants is outside the scope of the Class VI GS rulemaking. 

Letter ID: 0169 Comment ID: 23401 Letter Lines: 685 to 726 

Comment Code: 3350 2.2.1.5 Use of proprietary models for GS sites (seeking comment) 

Comment: Use of proprietary models: EPA asked about AoR and proprietary models. APPA is 

not expert on models but has some general discomfort with relying solely on 

proprietary models owned/operated by a third party-particularly when there are 

only approximately five companies in the United States that have such 

sophisticated models for AoR modeling. Proprietary models are de rigueur in the 

oil and gas extractive industry. We would not seek to change that for such a 

critical industry to our economy and to our own natural resource needs. However, 

it would not lead to an easy future for power plant owner/operators to not know 

how site selection and AoR decisions are made because the owner/operator of the 

AoR work would use confidential the proprietary models from even the power plant 

owner/operator. It would be rare to have such a significant portion of the 

operational costs where the power plant’s management could not review the model 

or run a cross check proprietary models to affirm site selection or to do double 

checks after operations had begun. This is a tricky question for APPA. The AoR 

decisions will be fundamental to the entire geologic sequestration decision 

tree. Yet, if proprietary models are used, the power plant management will have 

little say over the geosequestration operations. Additionally, relying upon 

proprietary models for such a significant portion of the geologic sequestration 

decision making will be anti-competitive. It is not easy for power plants 

owner/operators to easily know what the costs of an operation will be for the 

consumers if they are relying upon proprietary AoR models at the beginning of 

the geologic sequestration process and relying upon these same models during the 

40-50 year life of the plant. APPA would prefer that the use of a replicatable 

model is used. This may need considerable work by the U. S. EPA to ensure that 

the proprietary nature of these seismic modeling products and services are not 

exposed in a way that harms the oil field services industry. Perhaps the EPA can 

review what confidential business information methods are undertaken in the Food 

and Drug Administration or Homeland Security Administration as those agencies 

review very confidential drug testing or security data which much be 

confidential but still usable and able to be reviewed. 

APPA respects that the true value in the oil and gas extractive industry is in 

the quality of its seismic readings technology and models that make it the preeminent in the world. No one at APPA wants to tamper with that. We wonder if 

31
some sort of proprietary method can be arranged for the AoR models to be run off 

of proprietary models where the model can at least be reviewed or replicated for 

quality purposes by the state director and the power plant owner/operator. 

Without this ability to have a handle on operational costs and decisions made by 

the contractors to the power sector, many public power communities would be 

reticent to commit to a technology where the proprietary model sets in motion 

most major decisions without a way to review them or make mid-course 

corrections. 

Individual Response: EPA agrees that available proprietary models may meet the complex 

needs for calculating the AoRs of GS sites, and shares their concern about the need to evaluate 

the inputs and assumptions used. EPA notes that several proprietary models are currently, 

successfully used by petroleum-reservoir engineering professionals as well as in peer-reviewed 

studies to model CO2 sequestration. EPA adds that its Confidential Business Information 

requirements at 40 CFR 144.5 will apply to the use of proprietary models. 

EPA clarifies that owners or operators have flexibility to select the most appropriate models for 

the conditions at the GS site and based on the types and amount of data available given the wide 

range of site-specific conditions present at GS sites. 

To ensure that all predictive models used for AoR calculations are meeting the Agency's 

expectations, EPA plans, every six years, to collect and review data on GS projects to determine 

whether the appropriate amount and types of information and appropriate documentation are 

being collected, and to determine if modifications to the requirements are appropriate or 

necessary. 

Letter ID: 0169 Comment ID: 23402 Letter Lines: 731 to 743 

Comment Code: 1250 1.1.1.4 Flexibility is needed (performance-based standards) 

Comment: · Because the technology described in the Proposal will not be commercially and 

widely deployed (in states without oil and gas production) for perhaps as long 

as 30 years, the Final Rule must be flexible enough to accommodate developments 

in information and technology related to carbon sequestration. These 

developments could reflect knowledge that affirms the technology and minimizes 

any cautions or concerns expressed by APPA regarding USDW risk, liability, etc. 

· APPA is really not qualified to comments on site selection or well 

construction or injection procedures. APPA defers to decision making by the 

state directors (or EPA in the case of non-delegated states on these aspect). 

EPA’s Final Rule should keep as many options regarding site and method of 

injection available, subject to the standard that any CO2 GS be protective of 

underground sources of drinking water ("USDWs"). 

Individual Response: As described above, EPA believes the rule provides flexibility to address 

32
site-specific conditions. EPA is using an adaptive approach to regulating GS under the UIC 

Program. 

Letter ID: 0169 Comment ID: 23403 Letter Lines: 745 to 749 

Comment Code: 1320 1.1.3 General comments about GS 

Comment Code: 5600 2.11 Comments related to UIC Program primacy for Class VI wells 

Comment: Because state regulators in approximately five or six states have worked 

extensively with Owners or Operators of UIC Class V experimental CO2 wells they 

have familiarity with environmental, geologic, and financial concerns specific 

to a given region, their adoption and tailored implementation of the CO2 GS 

rules will be crucial to the success of the Program. 

Individual Response: EPA acknowledges the expertise of existing State, Tribal, and Territorial 

programs that implement the UIC requirements under Section 1422 of the SDWA (Class I, III, 

IV, and V wells (particularly Class V experimental technology wells)) and state oil and gas 

agencies that have been regulating Class II UIC wells for decades under section 1425 of SDWA. 

These agencies already understand the technical and administrative issues involved in 

construction, operation, injection and permitting as well as, in the case of Class II operators 

issues related to CO2 injection, subsurface operations, and pipeline transport. EPA believes that 

existing programs can adapt this expertise to the new requirements for Class VI wells and will be 

able to develop a primacy application for Class VI wells under section 1422 of SDWA. 

Many of the tools, resources, expertise, and infrastructure currently exist within States to 

effectively and efficiently manage GS projects. Additionally, States can use multiple authorities 

beyond those afforded under the SDWA and UIC regulations including surface access and land 

rights, unitization of fields, pore space ownership, mineral rights, site safety and emergency 

preparedness, and maximization of State oil and gas resource exploitation. 

Letter ID: 0169 Comment ID: 23404 Letter Lines: 751 to 754 

Comment Code: 2060 1.5.3 Comments on grandfathering of existing wells (seeking comment) 

Comment: Although there are significant similarities between the proposed requirements 

for Class VI wells and the existing requirements for Class I, II, and V wells 

under the UIC Program, APPA does not believe that there should be a presumed 

grandfathering of Class I, II and V for the Class VI as storage sites. APPA 

Individual Response: EPA agrees that a cautious approach to grandfathering is appropriate, 

particularly given that the converted well will be used for a substantially different process, which 

involves increased reservoir pressures associated with large volumes of stored CO2 and the 

corrosivity of CO2 in the presence of water. The final GS rule provides for the construction of 

these wells to be grandfathered (per 146.81(c)). EPA has included a requirement in the final GS 

rule that owners or operators seeking to convert existing wells for long term storage must 

33
demonstrate to the Director that the grandfathered wells were engineered and constructed meet 

the requirements at §146.86(a) and ensure protection of USDWs, in lieu of requirements at 

§146.86(b) and §146.87(a). EPA clarifies that only the construction requirements are 

grandfathered and that all other Class VI requirements (reporting, monitoring, mechnical 

integrity testing, etc.) must be met following a determination under §146.81(c). 

Letter ID: 0169 Comment ID: 23405 Letter Lines: 754 to 764 

Comment Code: 2046 1.5.2.3 Continuing to classify CO2 injection for EOR/EGR as Class II/ 

dividing line between Class II and Class VI (seeking comment) 

Comment: grandfathering of Class I, II and V for the Class VI as storage sites. APPA 

cannot easily imagine why an oil and gas production field would typically want 

to move from a Class II to a Class VI well classification since oil and gas 

recovery is always technically possible at the right price. Besides, UIC Class 

II production classification has certain other regulatory and commercial 

advantages to remain as Class II to the oil and gas sector. Few wells are truly 

ever 100% depleted since newer technology may make unreachable oil and gas 

obtainable. APPA does not oppose state directors who believe that they should 

grandfather a well from Class II to a Class VI provided that it can be 

demonstrated to the state’s satisfaction that such carrying over of requirements 

will be protective of USDWs. 

Individual Response: EPA believes that injection for the primary purpose of long term storage 

is sufficiently different from Class II ER operations and warrants tailored requirements in order 

to protect USDWs from endangerment. For example, the volume of CO2 anticipated to be 

injected in Class VI wells is significantly greater than for Class II wells. Reservoir pressure 

conditions will also be different, with Class VI injection operations involving large volumes of 

CO2 and likely having higher pressures within their storage formations than Class II ER projects. 

The final Class VI regulations require that any owner or operator injecting CO2 for the primary 

purpose of long term storage obtain a Class VI permit with some special consideration for the 

fact that they are transitioning from a well not originally designed to meet Class VI requirements. 

The Director has the authority to determine at what point a Class VI permit is required for those 

projects that are transitioning from the primary purpose of EOR to long term storage of CO2. 

The final regulation provides a set of technical factors for the Director to evaluate in making this 

determination, at §144.19. EPA believes that this approach provides sufficient protection of 

USDWs when there is an increased risk to USDWs as compared to traditional Class II operations 

while allowing for site-specific flexibility. For more information, please see the discussion on 

transition of Class II wells in the preamble to the final GS rule. 

EPA is developing guidance on transitioning permits from Class II to Class VI. The guidance 

will assist Directors in determining whether an injection project should be transitioned from 

Class II where the primary purpose is oil and gas production to Class VI where the primary 

purpose is long-term storage of large volumes of CO2. The guidance describes the methods 

available for the Director to evaluate changes in risk to USDWs from projects, and 

34
recommended approaches the Director may use to evaluate whether a project should be regulated 

within the Class II or Class VI UIC program. This guidance will be available on EPA’s website 

at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23406 Letter Lines: 766 to 779 

Comment Code: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment) 

Comment: · EPA prematurely assumes that the CO2 injected for GS is a solid waste. The CO2 

that will be captured and injected for long-term storage into Class VI wells is 

an uncontained gas and therefore does not meet the statutory definition of a 

"solid waste" under the Resource Conservation and Recovery Act ("RCRA"). 

Further, it is premature to assume that material will be "discarded" as CO2 is 

currently used as a commodity in a variety of manufacturing processes. To the 

extent there is any possibility that CO2 injection operations could be subject 

to RCRA controls, EPA should exempt such activities from RCRA's corrective 

action program under the well established "contingent management" concept given 

that the UIC permit will ensure that the injected material is not mismanaged. 

APPA is confident that state directors will have strict rules on how the 

injections are managed. On this topic of RCRA and solid waste, APPA defers to 

the Utility Solid Waste Activities Group (USWAG) and recommends those aspects of 

their comments. 

Individual Response: As described above, EPA has decided to initiate a separate proposed 

rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being 

geologically sequestered, including the possible option of a conditional exemption from the 

RCRA requirements for CO2 GS in Class VI wells. 

Letter ID: 0169 Comment ID: 23407 Letter Lines: 781 to 785 

Comment Code: 3150 2.1.5 Comments on required permit information (40 CFR 146.82) 

Comment Code: 4710 2.7.1 Proposed submissions required for permit applications (seeking 

comment) 

Comment: · The Final Rule must not make the application process overly burdensome or 

unrealistic by requiring detailed information that may not be available at the 

time of the initial application; instead, the Final Rule should allow for 

submission of updated information regarding a CO2 GS well and its AoR as that 

information becomes available through phased corrective action. 

Individual Response: EPA agrees that not all of the information listed at §146.82 of the 

proposed regulation will be available at the time the owner or operator develops their initial 

permit application. In response to comments and based on an evaluation of the proposed 

requirements at §146.82, the Agency revised this subpart so that the final regulation specifies 

separate requirements for information to be submitted with the permit application and before 

35
well construction is approved (at §146.82(a)) and information to be submitted before operation 

of the well is authorized (at §146.82(c)). 

EPA believes that this revision of §146.82 addresses commenters' concerns regarding the timing 

of information to be submitted. In addition, section §146.82 in the final rule is similar to the 

permit application requirements for other injection well classes, which could help avoid 

confusion about how to meet the permitting requirements for Class VI wells. The requirements at 

§146.82(c) for information to be submitted before operation of the well is authorized are very 

similar to those for Class I wells, with modifications and additions that address the unique 

challenges and types of data collected for GS wells. 

The final rule requires for the submission of updated information on the well and its AoR. The 

final GS rule, at §§146.84(c) and §146.90(j) requires owners or operators to review and update 

the AoR and corrective action plan and the testing and monitoring plan, at least once every 5 

years, throughout the life of the project. Owners or operators must review each plan and identify 

necessary modifications to the plan or demonstrate to the Director that no amendment is needed. 

These reviews must be performed within one year of an AoR reevaluation, following any 

significant changes to the facility (e.g., the addition of monitoring or injection wells), or when 

required by the Director. While the rule does not specify that changes in phased corrective action 

warrant an update, the Director may determine that these types of modifications need to be 

incorporated into a plan update. EPA is developing guidance on developing and updating the GS 

project plans, which includes recommended considerations for developing and updating the 

plans. This guidance will be available on EPA’s website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23408 Letter Lines: 787 to 790 

Comment Code: 2020 1.5.1 Support Class VI designation 

Comment: General Issues Related to Classification and Regulation of CO2 GS Wells 

APPA believes the creation of a new category of wells under the UIC Program for 

long-term storage of CO2 is appropriate. Id. at 43502 

Individual Response: As described above, EPA agrees that tailored requirements for Class VI 

wells are necessary to address the unique nature of injecting large volumes of CO2 and to ensure 

that USDWs are protected from endangerment. 

Letter ID: 0169 Comment ID: 23409 Letter Lines: 792 to 813 

Comment Code: 5610 2.11.1 Allowing partial primacy for Class VI wells (seeking comment) 

Comment: With respect to the integration of State programs, APPA agrees with EPA that the 

Final Rule should create a delegable program and encourage the adoption and 

implementation of that program by States. APPA realizes that some states have no 

36
experience with oil and gas use of CO2 but encourages all states to adopt the 

program. Adopting the program does not automatically presume that all power 

plants built and operated in those states will be able to conduct geologic 

sequestration in that state. Id. at 43497. State regulators have familiarity 

with local environmental, geologic, and financial concerns, and in many cases 

have pre-existing relationships with the regulated community that can facilitate 

implementation of a new and complex regulatory program. For these reasons, APPA 

also believes it is appropriate to allow States to obtain primacy for only Class 

VI wells if a particular State so chooses. Id. at 43523. Such class-specific 

primacy is consistent with the statutory authorization behind the UIC Program, 

and EPA correctly predicts that States obtaining primacy for Class VI wells, 

regardless of whether they have sought primacy under other aspects of the UIC 

program, may be more likely to develop a comprehensive regulatory program for 

all aspects of carbon capture and storage. Id.; see also 42 U.S.C. § 300h-1 

(SDWA § 1422). Simply put, APPA is not trying to force states to have Class I 

and Class II UIC programs in order to have Class VI programs. States may well 

decide that they still are not comfortable with a Class II or Class I UIC 

program. APPA has no desire to change those state policies through this UIC 

rulemaking. 

Individual Response: EPA agrees that states should be allowed to obtain primacy for Class VI 

wells independently of other well classes, and will allow independent primacy for Class VI wells 

under §145.1(i) of the final GS rule. In the past, EPA has not accepted UIC primacy applications 

for individual well classes under Section 1422 of SDWA. In other words, if a State wanted 

primacy for Class I wells, the State would also need to accept responsibility for Class III, IV, and 

V wells. This policy has been in place since the initiation of the UIC Program in the early 1980s 

and was intended to encourage states to take full responsibility for UIC programs, avoid 

duplication of efforts, and provide for administrative efficiencies. 

However, given the potential for CCS (encompassing capture, transportation, and geologic 

sequestration) to be an important part of a national priority to address climate change, EPA 

believes that providing states the flexibility to obtain primacy for Class VI wells independently 

of other well classes can help foster effective management of CCS. EPA believes that allowing 

independent Class VI primacy may encourage states to take responsibility for implementation of 

Class VI regulations and provide for a more comprehensive approach to managing CCS projects 

by promoting the integration of GS activities under SDWA into a broader framework for 

managing CCS. Furthermore, GS operations involve ancillary activities (e.g., pipeline 

operations, pore space ownership, land use rights, and surface access) for which states can call 

upon other authorities that exist at the state level (but outside UIC authority) to provide a more 

comprehensive CCS management approach. 

The Agency believes that it is important for states to use their unique efficiencies to promote 

adoption of this burgeoning and important technology, while assuring that USDWs are protected 

from endangerment through the UIC regulatory framework. EPA believes that, due to the 

importance of implementing an effective, comprehensive, and seamless CCS program, States 

should be provided the flexibility to obtain primacy for Class VI only. 

37
EPA also believes that allowing states to apply only for Class VI primacy will shorten the 

primacy approval process for states. EPA's willingness to accept independent primacy 

applications for Class VI wells represents a shift in its longstanding policy of discouraging 

"partial primacy." It is very important to note that this shift in policy allowing for Class VI 

primacy does not apply to any other well Class under Section 1422. EPA will continue to 

discourage applications for partial primacy for all other well types under Section 1422. 

EPA clarifies that states should be able to obtain primacy for Class VI wells independent of other 

well classes provided they develop regulations that are at least as stringent as the minimum 

Federal requirements (e.g., permitting, inspection, operation, monitoring, and recordkeeping 

requirements) provided in the final GS rule. EPA believes that existing programs can adapt their 

expertise to the new requirements for Class VI wells and will be able to develop a primacy 

application for Class VI wells under section 1422 of SDWA and ensure that their GS programs 

integrate into national climate change priorities and protect USDWs from endangerment. 

EPA recognizes that some states have already begun legislative efforts that are wider in scope 

than the federal GS rule and believes that allowing Class VI primacy (independent of other well 

classes) may encourage states to take responsibility for implementation of a more comprehensive 

approach to managing CCS projects (e.g., capture, transportation, and geologic sequestration). 

Letter ID: 0169 Comment ID: 23410 Letter Lines: 815 to 844 

Comment Code: 2060 1.5.3 Comments on grandfathering of existing wells (seeking comment) 

Comment: Grandfathering Requirements of Class I, II, and V UIC Wells 

This is an extremely important issue as a few APPA members plan to invest 

substantial resources in developing and permitting Class V experimental CO2 

injection wells to help demonstrate the viability of large-scale commercial 

deployment of CO2 sequestration. Some of these may also be conducted as DOE/NETL 

or state research or demonstration projects to illustrate how CO2 can be 

separated and injected. Federal and state governments should encourage these 

research and demonstration efforts, as their success is critical to the largescale commercial deployment of CO2 sequestration. The opportunity to operate 

these wells on a regular basis after they have been shown to be effective on an 

experimental basis should be allowed to help encourage the substantial, upfront 

investment necessary to get these wells permitted. APPA believes that the state 

should be allowed to grandfather of construction requirements for existing Class 

I, II, and V wells seeking a Class VI permit for GS of CO2 if the state believes 

that the Class V experimental well USDW protections are adequate. Since most of 

these new Class V experimental permits appear to be mirror images of Class I 

programs, APPA does not see how this will be a problem. Id. at 43502 In the case 

where the Class V program mirrored the Class I program, grandfathering of 

requirements beyond those related to construction is both necessary and 

appropriate, particularly for Class V wells. As an initial point, it has already 

38
been determined through the permitting process that the operation of these Class 

V wells is protective of USDWs. See 40 C.F.R. § 144 et seq. Having made this 

determination, there should be a regulatory presumption that conversion of these 

wells for the exact same activity - at a larger scale and for an extended time 

period - under the Class VI program is also protective of USDWs. However, APPA 

acknowledges and believes that the EPA final rule should clearly state that this 

should be done with the understanding that grandfathering will not be allowed if 

the Director demonstrates that conversion of these Class V experimental wells to 

Class VI would jeopardize USDWs. 

Individual Response: EPA agrees that, when the Regional Carbon Sequestration Partnership 

projects are no longer of an experimental nature, they should be re-permitted as Class VI wells if 

they are to be used for commercial-scale GS, and be subject to the Class VI requirements. 

EPA is provides for the construction of Class V experimental technology wells to be 

grandfathered per §146.81(c), provided the owner or operator can demonstrate to the Director 

that the wells were engineered and constructed to meet the requirements at §146.86(a) and 

ensure protection of USDWs, in lieu of requirements at §146.86(b) and §146.87(a). EPA 

understands based on reviews of several Class V pilot project permits, that many Class V 

experimental technology wells, including those used in the RCSP projects, are specifically 

designed for injection of CO2 and are being built to Class I non-hazardous well specifications, 

which should facilitate re-permitting as Class VI wells. EPA clarifies that only the construction 

requirements are grandfathered and that all other Class VI requirements (reporting, monitoring, 

mechnical integrity testing, etc.) must be met following a determination under §146.81(c). 

EPA is preparing an addendum to UICPG #83 that describes the use of the Class V experimental 

technology well classification to clarify permitting for Class V wells. This addendum will 

address shifting of Class V experimental projects to full-scale GS projects and the future use of 

the Class V experimental technology well subclass for research and testing of new GS 

technologies. 

Letter ID: 0169 Comment ID: 23411 Letter Lines: 846 to 854 

Comment Code: 2064 1.5.3.2 Grandfathering construction of Class II wells (seeking comment) 

Comment: APPA recognizes that there are differences between Class II wells and Class VI 

wells that may necessitate additional requirements and safeguards as Class II 

wells transition to Class VI wells. 73 Fed. Reg. 43502. However, APPA recommends 

that the Final Rule include an option whereby Owners or Operators of Class II 

wells can make a demonstration that their well(s), if used for CO2 GS, will not 

pose a threat to USDWs. Such a case-by-case demonstration would allow for the 

carrying over of Class II well requirements where appropriate and protective of 

USDWs, maximizing the efficiency of such transitions while ensuring that USDWs 

remain protected. 

Individual Response: EPA agrees that many Class II wells are designed and constructed to 

39
withstand exposure to CO2. The final GS rule provides for the construction of these wells to be 

grandfathered per §146.81(c), provided the owner or operator can demonstrate to the Director 

that the wells were engineered and constructed to meet the requirements at §146.86(a) and 

ensure protection of USDWs, in lieu of requirements at §146.86(b) and §146.87(a). 

The final Class VI regulations require that any owner or operator injecting CO2 for the primary 

purpose of long term storage obtain a Class VI permit with some special consideration for the 

fact that they are transitioning from a well not originally designed to meet Class VI requirements. 

The Director has the authority to determine at what point a Class VI permit is required for those 

projects that are transitioning from the primary purpose of EOR to long term storage of CO2. 

The final regulation provides a set of technical factors for the Director to evaluate in making this 

determination, at §144.19. EPA believes that this approach provides sufficient protection of 

USDWs when there is an increased risk to USDWs as compared to traditional Class II operations 

while allowing for site-specific flexibility. EPA adds that, following re-permitting as Class VI 

wells, these projects would be subject to the operational, MIT, monitoring, reporting, plugging, 

and post-injection site care and site closure requirements in the final GS rule. 

EPA is developing guidance on transitioning permits from Class II to Class VI. The guidance 

will assist Directors in evaluating whether an injection project should be transitioned from Class 

II where the primary purpose is oil and gas production to Class VI where the primary purpose is 

long-term storage of large volumes of CO2. The guidance describes recommended methods the 

Director may use to determine changes in risk to USDWs from projects, and how the Director 

may determine whether a project should be regulated within the Class II or Class VI UIC 

program. This guidance will be available on EPA’s website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23412 Letter Lines: 856 to 869 

Comment Code: 2100 1.6 Target Geologic Formations for GS 

Comment: Siting of CO2 GS Wells 

As discussed above, APPA believes it is counter-productive at this stage in the 

development of a CO2 GS regulatory regime to categorically preclude any 

potentially feasible injection formations as possible long-term storage sites 

with the exception of sole source aquifers. EPA correctly recognizes that the 

commercial deployment of CO2 GS activities will result in the new production of 

large volumes of CO2 for which owners or operators will have to locate new and 

environmentally protective injection zones. It makes sound policy sense for EPA 

to encourage the identification and utilization of as many protective zones as 

possible, with the prerequisite that any injection site be protective of USDWs. 

Injection of CO2 should be allowed as long as it can be demonstrated that 

injection will be protective of USDWs and meet other applicable conditions for 

Class VI CO2 GS wells. APPA offers no opinions on injection of CO2 into coal 

40
Individual Response: As described above, EPA clarifies that the GS rule does not categorically 

preclude injection of CO2 into any non-USDW formation types. 

Letter ID: 0169 Comment ID: 23413 Letter Lines: 869 to 871 

Comment Code: 4320 2.4.4.1 Injection beneath the lowermost formation containing a USDW 

Comment Code: 4430 2.4.4.3.3 Injection into coal seams above USDWs (seeking comment) 

Comment: Class VI CO2 GS wells. APPA offers no opinions on injection of CO2 into coal 

seams. APPA defers to the American Water Works Association regarding the 

questions pertaining to whether above or below the lowermost USDW. The EPA asked 

Individual Response: EPA believes that there are limited circumstances where injection above 

the lowermost USDW can be performed in a manner that protects USDWs from endangerment, 

as long as appropriate protections are in place. The final GS rule at §146.95 establishes a process 

by which owners or operators can seek a waiver of the Class VI injection depth requirements for 

injection into non-USDW formations above and/or between USDWs. 

EPA believes that these requirements will ensure USDW protection while providing flexibility to 

UIC program Directors and owners or operators who undertake CO2 injection for GS. The 

Agency believes this approach: 1) responds to concerns about local and regional geologic storage 

capacity limitations imposed by the proposed injection depth requirements; 2) allows for a more 

site-specific assessment of injection depth for GS projects; 3) accommodates injection into 

different formation types; 4) allows for injection of CO2 for GS into non-USDWs above and/or 

between USDWs when appropriate and where it can be demonstrated that USDWs will be 

protected; and 5) responds to concerns about the use of aquifer exemptions for GS. Finally, 

EPA’s approach to addressing injection depth variability through a waiver process responds to 

concerns about future drinking water resource availability and the need to ensure that high 

quality water remains available in sufficient quantities to supply drinking water needs. For 

additional information on the waiver approach, please see the final rule and preamble, as well as 

EPA's responses to comments on the Notice of Data Availability and Request for Comment. 

Letter ID: 0169 Comment ID: 23414 Letter Lines: 872 to 879 

Comment Code: 2200 1.6.4 Other formation types 

Comment: for comments on basalt, salt domes or shales. APPA is not qualified to offer any 

opinions about formations such as basalts, salt domes, or shales. APPA presumes 

that these site choice issues will be clearer after demonstrations by the U.S. 

DOE regional partnership and private R&D pilots. Id. at 43503. If it can be 

demonstrated that the injection of CO2 into such sites is protective of USDWs, 

then such activities should be allowed under the Class VI UIC program. At a 

minimum, we know that more demonstration projects are needed looking at diverse 

geology for maximum use of coal which is an essential fuel source. 

41
Individual Response: The final GS rule does not preclude injection into any non-USDW 

formation type provided owners or operators can demonstrate that GS can be performed in a 

manner that protects USDWs from endangerment. The Agency acknowledges that GS into 

basalts, salt domes, and shales will likely have limited application, or that owners or operators 

seeking Class VI permits for injection into these formations may not be able to meet the final GS 

requirements or demonstrate protection of USDWs. 

The purpose of the GS rule is to ensure protection of USDWs, and the rule includes requirements 

to ensure that the geologic formations are adequate to receive and confine injected CO2, at 

§146.83. The siting, well construction, operational, and other requirements in the GS rule are 

designed to ensure that injected CO2 remains within the target formation. 

EPA acknowledges that there may be risks associated with GS, particularly regarding GS into 

basalts, which have been the subject of limited experimental projects in the past. EPA anticipates 

that in the short-term, GS into basalts, salt domes, shales, limestone formations, and fractured 

karst will continue to be experimental in nature (i.e., if they are to test GS technologies and 

collect data), and will likely be permitted as Class V experimental technology wells and be 

subject to UIC Program Guidance #83. EPA will continue to review data on early GS projects, 

including those in such formations, to determine whether the appropriate amount and types of 

information and documentation are required and being collected. EPA plans, every six years, to 

collect and review data on GS projects to determine whether the appropriate amount and types of 

information and appropriate documentation are being collected, and to determine if 

modifications to the requirements are appropriate or necessary. 

Letter ID: 0169 Comment ID: 23415 Letter Lines: 881 to 962 

Comment Code: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment) 

Comment: Interaction with RCRA 

The U.S. EPA seeks comment on the question of whether CO2 that exhibits a 

Resource Conservation and Recovery Act or "RCRA" hazardous waste characteristic 

should be precluded from injection in a Class VI CO2 GS well. Id. at 43503. APPA 

questions the underlying premise behind EPA's discussion regarding the potential 

applicability of the RCRA hazardous waste regulations to CO2 GS. Id. The 

fundamental error in EPA's request for comment on this point is its premature 

assumption that CO2 is being discarded and therefore is a solid waste. A 

material cannot be a RCRA hazardous waste if it is not first a "solid waste." 

See 40 C.F.R. § 261.2. The statutory definition of "solid waste" is limited to 

specified "discarded" materials; a material cannot be a "solid waste" unless it 

has first been "discarded." 42 U.S.C. § 6903 (RCRA § 3001). While there have 

been numerous judicial decisions addressing what constitutes "discard," the 

fundamental holding from these cases is simple and straightforward: Congress 

intended to extend EPA’s authority to regulate "solid waste" under RCRA "only to 

materials that are truly discarded, disposed of, thrown away, or abandoned" 

American Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987) (emphasis 

42
added). The D.C. Circuit has emphasized that the "plain meaning" of the term 

"solid waste" extends only to materials that are "discarded" and that the term 

"discard" should be interpreted with reference to its ordinary meaning. Ass’n of 

Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1051-52 (D.C. Cir. 2000). CO2 is 

a valuable commodity used in a variety of manufacturing operations, including in 

the enhanced oil recovery ("EOR") and enhanced gas recovery ("EGR") production 

process. When used in these commercial oil/gas production applications, CO2 is 

not "discarded" and therefore is not a solid waste. While large volumes of CO2 

will be produced under the carbon capture and sequestration programs 

contemplated by the UIC Class VI program, it is premature for EPA to presume 

that these additional volumes of CO2 will not retain commercial value and that 

their sequestration in Class VI wells automatically means that they have been 

"discarded" as that term has been defined under RCRA. As we have already noted, 

the Agency should refrain from making categorical assumptions associated with 

this still-emerging technology associated with the commercial deployment of CO2 

GS operations, including with respect to the status of captured CO2 destined for 

GS. 

Finally, assuming, for purposes of argument, that CO2 is "discarded" and 

exhibits a hazardous waste characteristic when injected for long-term 

sequestration, there are compelling policy reasons to exclude such activities 

from RCRA regulation. Subjecting these injection operations to regulation under 

a Class I UIC hazardous waste injection permit could expose all other waste 

management units at the power plant facility, including units that are in no way 

related to the injection operations, to the full panoply of RCRA’s Subtitle C 

corrective action program. This is because a Class I UIC hazardous waste 

injection permit is a classified as a RCRA "permit by rule" under RCRA’s 

hazardous waste permit program. See 40 C.F.R. §§ 270.1(c)(1)(i) and 270.64. 

Facilities that have obtained a RCRA permit by rule for the operation of a Class 

I UIC hazardous waste injection well are potentially subject to the full scope 

of RCRA’s corrective action program for all solid waste management units 

("SWMUs") located at the facility. If RCRA were to regulate the CO2 as a waste 

this would make many power plant owner/operators reticent to pursue these 

technologies. See EPA RCRA/Superfund Hotline Monthly Summary, "Corrective Action 

for UIC Wells," April 1986 (9502.1986(07)). The specter of RCRA corrective 

action is a significant economic and practical operational obstacle for any 

facility considering whether to seek a permit for a new Class VI well for 

geosequestration. 

The imposition of this obstacle is completely unwarranted. Any well receiving a 

permit under the UIC Program for CO2 GS will be, by definition, protective of 

USDWs. EPA’s RCRA program has established a legally sound process, referred to 

as "contingent management," for the exclusion of materials from hazardous waste 

regulation when such materials are already subject to an alternate regulatory 

regime that ensures the wastes are managed in an environmentally protective 

manner. EPA has employed the contingent management concept in several contexts 

43
where the Agency determined that other regulatory regimes adequately addressed 

any potential mismanagement scenarios related to certain materials, including 

used oil and military munitions. 

The D.C. Circuit has reviewed EPA's legal theory underlying the contingent 

management concept and found it to be a "permissible construction of the 

statute" - namely, that the statutory definition of "hazardous waste" is 

predicated upon the risks posed by a solid waste when "improperly" managed; 

therefore, "where a waste might pose a hazard only under limited management 

scenarios, and other regulatory programs already address such scenarios, EPA is 

not required to classify a waste as hazardous waste subject to regulation under 

[RCRA] Subtitle C." Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C. Cir 

1998) (emphasis added). 

APPA believes that RCRA corrective action for the entire power plant would rank 

with parasitic power loss as strong deterrents to geologic sequestration for 

many small municipality power plant owner/operators. We do not want to see these 

CCS projects prevented because of RCRA waste concerns. 

Individual Response: EPA received many comments regarding the applicability of the RCRA 

regulations and statute to CO2 streams that are geologically sequestered under the final Class VI 

UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking 

specifically to examine the issue of RCRA applicability to CO2 streams being geologically 

sequestered, including the possible option of a conditional exemption from the RCRA 

requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its 

development of that proposal. The Agency will consider issues particular to RCRA in the context 

of that separate rulemaking, and recommends that the commenter read that proposed rule when it 

is published. The Agency notes that commenters who wish to submit comments on the RCRA 

proposal will need to do so during the comment period for that rule. Finally, EPA also notes that 

the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water 

Act (SDWA), is not making any changes to the RCRA regulations. 

Letter ID: 0169 Comment ID: 23417 Letter Lines: 1029 to 1040 

Comment Code: 4740 2.7.4 Electronic reporting (seeking comment) 

Comment: Permit Application and Reporting Requirements 

The EPA asks for comments about electronic reporting. Any requirement contained 

in the Final Rule for electronic reporting should not be absolute but should 

instead allow the Director to allow other methods of reporting when he deems 

such methods more appropriate. APPA imagines that by the time CCS is widely 

commercially viable, electronic filing (or whatever society considers 

"electronic filing of data" will be at that future date) will be the least of 

our cost or operational concerns. APPA would suggests that early projects, say 

in the first five years, have some modest leniency for ways to file effectively 

44
and responsibly without the presumption of real time data on every imaginable 

data point. We also suggest that the EPA have some reasonable test for response 

Individual Response: EPA believes that electronic formatting is the most appropriate format for 

submitting Class VI project information to the Director, and based on comments received on the 

proposed rule, the majority of Class VI well owners or operators will have the capability to 

report electronically, and requires this at §146.91(e). 

EPA is developing guidance for states that describes the recordkeeping, reporting, and additional 

data management needs associated with GS activities and provides recommended guidelines on 

the types of data to be collected for tracking GS projects, reporting to EPA for compliance 

tracking, and transfer of data to EPA's GS data system. The recordkeeping and reporting 

guidance will be available on EPA's web site, at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23418 Letter Lines: 1040 to 1045 

Comment Code: 4720 2.7.2 Operational recordkeeping and reporting 

Comment Code: 5800 2.13 Comments on emergency and remedial response (40 CFR 146.94) 

Comment: data point. We also suggest that the EPA have some reasonable test for response 

to the state or Federal permitting agency in the event that a reporting event 

happens on a weekend or during nighttime hours. Some owner/operators will be on 

different time zones than the injection well operator. APPA suggests that a 

reasonable time be allowed for reporting to be sent in on routine data where 

there is no catastrophic reporting event. 

Individual Response: EPA clarifies that the requirement at §146.94(b)(3) is to notify the 

Director within 24 hours of an emergency. The Agency believes that the 24 hour timeframe for 

notifying the Director is a "reasonable" time period. Furthermore, permitting agency response 

personnel are typically "on call" 24 hours a day, 7 days a week. 

Letter ID: 0169 Comment ID: 23419 Letter Lines: 1047 to 1059 

Comment Code: 4760 2.7.6 Proposed reporting frequency (seeking comment) 

Comment: With respect to the Proposal’s suggestion of an annual reporting requirement for 

CO2 GS projects, APPA appreciates the importance of the information EPA seeks to 

gather but believes that annual reporting will not always be the best way to 

collect this information over the lifetime of the project. Id. at 43518. The 

Final Rule will require some form of periodic reevaluation of the AoR throughout 

the life of the project; much of the information sought through the proposed 

annual reporting requirement would be gathered and submitted to EPA through the 

AoR reevaluation process. Gathering this information through the AoR 

reevaluations alone, rather than imposing an unnecessary and duplicative annual 

45
reporting requirement, will provide a more cost-effective and manageable method 

of information exchange for regulators and Owners or Operators alike. APPA 

prefers the idea of reporting every five years in the first 20 years of 

operations. 

Individual Response: The final GS regulation retains the reporting requirements as proposed 

and does not include a requirement for an annual report. EPA agrees that the AoR reevaluations 

offer a good opportunity to promote a dialogue between the owner or operator and the permitting 

authority. The final GS rule, at §§146.84(c), 146.90(j), and 146.94(d), requires owners or 

operators to review and update the AoR and corrective action plan, the testing and monitoring 

plan, and the emergency and remedial response plan throughout the life of the project. Owners or 

operators must review each plan and identify necessary amendments to the plan or demonstrate 

to the Director that no amendment is needed. These reviews must be performed within one year 

of an AoR reevaluation, following any significant changes to the facility (e.g., the addition of 

monitoring or injection wells), or when required by the Director. In no case can reviews occur 

less often than once every five years. 

EPA encourages and expects owners and operators to share monitoring and operating data with 

the public voluntarily (e.g., through the Internet), however. Providing the public with 

information throughout the GS project will help clear up and avoid public misperceptions about 

the nature and safety of GS. See the final rule and preamble for further discussion on EPA's final 

approach to reporting and recordkeeping. 

Letter ID: 0169 Comment ID: 23420 Letter Lines: 1061 to 1084 

Comment Code: 5240 2.8.2.2 Post injection timeframe (seeking comment) 

Comment: Well Plugging and Post-Injection Site Care 

APPA acknowledges that for some potential power plant owner/operators that the 

Proposal’s suggested fifty-year default fixed timeframe for the post-injection 

site care period is arbitrary and will serve to discourage Owners or Operators 

of CO2 GS sites from seeking to develop innovative ways to safely close wells in 

a shorter time period. Id. at 43519. EPA acknowledges in the Preamble to the 

Proposal that it is likely "that the actual time for CO2 plume 

stabilization...will be very site specific, being influenced by geologic factors 

such as formation permeability, geochemistry, and the degree of capillary 

trapping." Id. (emphasis added). EPA then goes on to note that the studies used 

for their preliminary analysis suggest that the length of time required before 

plume stabilization ranges from ten to one hundred years after cessation of 

injection - quite a significant range. Id, emphasis added. In the same 

discussion, EPA reviews a range of suggested time periods, acknowledging that 

even a ten-year timeframe is suggested by some studies. 

APPA understands that a ten-year site closure period may be insufficient in some 

cases; there is no single time period that would apply to every CO2 GS site 

46
across the board. Because of the greatly varied geologic characteristics, APPA 

believes a post closure period of 10 years or until the plume is determined to 

be stable. Stability is to be defined by the state Director that he/she does not 

believe that it can harm USDWs. Given the concerns by the water utilities, APPA 

defers to AWWA for their expertise in this matter. 

Individual Response: As noted above, EPA disagrees that a post-injection site care timeframe 

of 50 years is arbitrary. In determining the post-injection site care-timeframe for the proposed 

regulation, EPA reviewed industry reports, existing environmental programs, and initial GS 

research studies. EPA provided a synthesis of pertinent results from GS modeling studies in the 

preamble to the proposed regulation. Further explanation of this analysis was included in an 

EPA-prepared background document that is available in the federal docket, titled 

"Computational Modeling of Underground Injection of Carbon Dioxide for Determination of 

Area-of-Review and Potential Risk to Underground Sources of Drinking Water." Based on 

review of these studies, modeling results indicate that the CO2 plume stabilization may occur on 

the timeframe of 10-100 years after the cessation of injection. While the 10- or 30-year 

timeframe suggested by some of these commenters may be within the timeframe suggested in 

some studies, EPA believes that the potential risks of endangering USDWs will likely not 

decline within these timeframes and available data, including data submitted by commenters, do 

not support a different default timeframe. 

However, EPA recognizes that alternative timeframes may be appropriate under limited, specific 

circumstances. For this reason, the Class VI rule offers owners or operators flexibility regarding 

the duration of the PISC timeframe by: (1) allowing the Director discretion to shorten or 

lengthen the PISC timeframe during the PISC period based on site-specific data, pursuant to 

requirements at §146.93(b); or (2) affording the Director discretion to allow a Class VI well 

owner or operator to demonstrate, based on substantial data during the permitting process, that an 

alternative PISC timeframe may be appropriate if it ensures non-endangerment of USDWs 

pursuant to requirements at §146.93(c). 

EPA believes that a 50 year post-injection site care timeframe represents a reasonable and 

protective monitoring period and available data, including data submitted by commenters, do not 

support a different default timeframe. Furthermore, EPA believes that a 50-year default postinjection site care timeframe, as required at §146.93(b)(1), is not overly burdensome, does not 

exaggerate the risks associated with GS, is consistent with other environmental programs, and 

sufficiently protects USDWs from endangerment. 

Letter ID: 0169 Comment ID: 23421 Letter Lines: 964 to 1027 ; 1338 to 1339 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: Interaction with CERCLA 

APPA has been bothered by the risks of CERCLA given the complexities of what can 

trigger CERCLA and remediation under the statute’s ARARs. (Applicable or 

Relevant and Appropriate Requirements). A critically important issue on which 

EPA seeks comment is the interaction of the CO2 GS regulatory program with the 

47
Comprehensive Environmental Response, Compensation, and Liability Act 

("CERCLA"). While EPA acknowledges that "CO2 itself is not listed as a hazardous 

substance under CERCLA," the Agency raises the specter of potential CERCLA 

liability if the CO2 stream contains other CERCLA hazardous constituents (e.g., 

mercury), or if other hazardous constituents are formed when the injected CO2 

stream reacts with groundwater (e.g., sulfuric acid). Id. at 43504. As EPA can 

surely appreciate, the potential for open-ended CERCLA liability for any 

contamination resulting from CO2 GS activities will act as a serious deterrent 

to would-be Owners or Operators of Class VI wells and could jeopardize the 

contemplated wide-spread commercial deployment of CO2 GS operations. CERCLA 

liability would be the ultimate disincentive for commercial deployment. APPA 

believes that Congress will need to act to correct this risk before commercial 

deployment should be expected. APPA’s white paper on CERCLA issues by Marianne 

Horinko, former Acting EPA Administrator, and career policy senior manager at 

the U.S. EPA on CERCLA and other waste matters address these points. That paper 

is found in the Appendix. [FN8] [See EPA-HQ-OW-2008-0390-0169.pdf for this document.] 

EPA correctly acknowledges that CERCLA’s "federally permitted release" exemption 

will provide CERCLA protection from those "releases" that fall within the scope 

of a Class VI permit (e.g., contained within the Area of Review ("AoR")), but 

the Agency also recognizes the limitations of this exemption, as it does not 

offer protection for any release of a hazardous substance that is out the scope 

of the Class VI permit (e.g., outside the AoR). Indeed, EPA states that any 

permits will have to "be carefully structured to ensure that they do not 

'authorize' inappropriate hazardous releases," including "potential releases 

from the well which are outside the scope of the Class VI permit." Id. 

APPA appreciates that the contamination issue is extremely important and should 

be addressed in the Final Rule. However, we have no reason to believe that the 

technology and safeguards developed to prevent migration of injected CO2 or its 

constituents will fail. At the same time, the specter of open-ended CERCLA 

liability will impede the ability of Owners or Operators to calculate and 

demonstrate financial responsibility, obtain financial assurance, and obtain the 

initial capital necessary to invest in this important technology. Simply put, 

EPA (and Congress) must mitigate the threat of potential CERCLA liability to the 

extent possible in this rulemaking. 

One step that the Agency can take is to ensure that final Class VI permits for 

individual CO2 GS projects have the broadest possible reach - while remaining 

protective of USDWs - to maximize the protection offered by the Federally 

Permitted Release exemption. This would mean including in the scope of the 

permit for CO2 injection all other CERCLA hazardous constituents likely to be 

contained in the CO2 stream, including those generated during capture and 

transport as well as any that could be formed in the injection zone as a result 

of the injection of CO2. Similarly, the scope of the authorized "permit zone" 

should be as broad as possible while remaining protective of USDWs. This could 

48
mean, for example, effectively authorizing the migration of constituents 

contained in the CO2 stream (or resulting from injection) outside the scope of 

the AoR, provided that such migration does not directly impact a USDW. 

The bottom line is that the potential for unlimited CERCLA liability must be 

mitigated to avoid significant delays and an overall chilling effect for 

geosequestration. APPA recognizes that while there are some measures the Agency 

can take in the regulatory context to address this concern, including those 

described above, those measures may be limited. In the end, APPA believes that a 

legislative solution is critical to eliminate this liability concern. APPA 

recommends that the EPA strongly support such a broader liability solution and 

communicate that support to Congress at the appropriate time. 

[FN8]Marianne Horinko "Carbon Capture and Sequestration Legal and Environmental 

Challenges Ahead," August 2007 

Individual Response: The Agency thanks the commenter for their detailed comments regarding 

the scope and possible impacts of CERCLA liability on CCS activities, and in particular 

comments related to the CERCLA exemption for federally-permitted releases. EPA notes that 

the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not 

be determined under the SDWA or the terms of the GS rule, but rather according to the 

CERCLA statute itself and any implementing regulations that may apply. 

As described above, whether the release of any hazardous substances in the CO2 may result in 

CERCLA liability from a sequestration facility depends entirely on the composition of the 

specific CO2 stream and the environmental media in which it is stored (e.g., soil or ground 

water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain 

“federally permitted releases” as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will 

need to be carefully structured to ensure that they prevent potential releases from the well which 

are outside the scope of the Class VI permit. 

Comments recommending that EPA support legislation for purposes of creating a broader 

liability framework for GS are outside the scope of this rulemaking. 

Letter ID: 0169 Comment ID: 23422 Letter Lines: 1086 to 1089 

Comment Code: 4490 2.4.5 Use of tracers and potential impact on human health or ecosystems 

(seeking comment) 

Comment: Tracers - If the state Director believes that tracers are needed, we encourage 

the least cost tracer be selected from the most effective options. EPA correctly 

notes that some drawbacks can accompany the use of tracers, including the 

possibility of false positives. Id. at 43512-13. 

Individual Response: EPA agrees that the use of tracers should not be required at all GS sites, 

but should be available as an option. For this reason, EPA does not require the use of tracers at 

49
all GS sites; however, the Director has discretion to require their use if he/she determines that the 

use of tracers could improve monitoring of the site and enhance USDW protection from 

endangerment. The rule will also allow their use if proposed by the owner or operator and 

approved by the Director. 

EPA adds that, if tracers are warranted at a site, the specific tracers to be used would be 

described in the testing and monitoring plan, which the Director would evaluate in the context of 

other information about the GS site. The Director would assess the use of tracers in the context 

of site-specific information, including risks to USDWs. 

Letter ID: 0169 Comment ID: 23423 Letter Lines: 1091 to 1097 

Comment Code: 4650 2.6.5 CO2 plume and pressure front tracking (seeking comment) 

Comment: Plume and pressure front monitoring- Because of APPA’s inextricable link to the 

municipal water utilities, we fully appreciate the importance of accurate 

monitoring of the plume and pressure front. Id. at 43514. APPA defers to AWWA to 

comment on monitoring and frequency of monitoring requirements. APPA believes 

that most early projects will likely monitor far more often than will be 

unnecessary as more information is gained regarding the accuracy of initial 

modeling. 

Individual Response: EPA agrees with commenters on the importance of monitoring at GS sites 

and emphasizes that monitoring of injection activities will be an important component of every 

GS project. Monitoring associated with injection wells and the movement of the CO2 plume is 

necessary to verify that the injectate is confined in the target formations and does not endanger 

USDWs. 

EPA believes that monitoring data should be used to review model assumptions, verify 

computational model projections, and, when necessary, provide input for model refinements. As 

data are collected at an injection site, model parameters can be adjusted to match observations 

(i.e., for model calibration or), which in turn improves the predictive capability of the model. As 

a GS project proceeds, both monitoring and modeling will evolve, with monitoring results 

supporting effective AoR reevaluations and leading to improved model predictions and changes 

to an owner and operators testing and monitoring plan. 

Letter ID: 0169 Comment ID: 23424 Letter Lines: 1099 to 1108 

Comment Code: 5400 2.9 Proposed Financial Responsibility and Long-Term Care 

Requirements 

Comment: Financial Responsibility 

APPA supports EPA’s suggestion to issue guidance in the future for clarification 

of the financial responsibility mechanisms available for Owners or Operators of 

50
CO2 GS wells. Id. at 43520-22. Provided that such guidance is issued in 

accordance with OMB’s Good Guidance Manual, APPA believes that such guidance 

could be particularly helpful as the Program advances and industry and 

regulators gain experience and knowledge related to CO2 GS projects. APPA 

believes it is far too soon to offer significant comment on this aspect of the 

proposed rule. 

Individual Response: EPA is developing guidance on financial responsibility for GS wells. 

EPA plans to take OMB's Good Guidance Manual into advisement as financial responsibility 

guidance is developed. OMB's Good Guidance Manual establishes policies and procedures for 

the development, issuance, and use of significant guidance documents by Executive Branch 

departments and agencies. See the final rule and preamble for further discussion of EPA's final 

approach to financial responsibility. 

Letter ID: 0169 Comment ID: 23425 Letter Lines: 1110 to 1119 

Comment Code: 5434 2.9.1.2 Need for additional instruments (seeking comment) 

Comment: APPA would like to see that the final rule accommodate a range of options 

including self-insurance instruments remain available to Owners or Operators as 

a method of financial assurance for Class VI CO2 GS projects. Id. at 43521. 

Self-insurance instruments, including the corporate financial test and the 

corporate guarantee, have been utilized successfully under RCRA over two 

decades. However, APPA must acknowledge that the volume of CO2 and the length of 

operations would suggest that the UIC Class VI wells will be different. As EPA 

mentions in the Preamble, the assessment by the Environmental Finance Advisory 

Board ("EFAB") of various financial responsibility issues revealed no specific 

failures of the corporate financial test. Id. 

Individual Response: EPA will retain self insurance as an option for financial responsibility for 

Class VI wells. EPA believes that if properly used, the financial test can be an appropriate option 

for some owners or operators. EPA recognizes that it is important for self-insurers to be creditworthy, otherwise USDWs may not be adequately protected. Owner or operators who choose to 

self-insure and use the financial test must be able to demonstrate profitability, with a margin 

sufficient to cover contingencies and unknown obligations, and stability. If the owner or operator 

meets corporate financial test criteria, this is an indication that the owner or operator can 

guarantee its ability to satisfy financial obligations based solely on the strength of the company’s 

financial condition. If an operator or operator is not able to meet the corporate financial test 

criteria may arrange a corporate guarantee by demonstrating that its corporate parent meets the 

financial requirements on its behalf. 

EPA is developing guidance that describes the types of financial instruments, including self 

insurance, which owners or operators can use to meet financial responsibility requirements for 

GS wells. This guidance will be available on EPA's website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. The financial responsibility 

51
guidance will include considerations for Directors regarding how to evaluate the appropriateness 

of a specific financial responsibility instrument for a specific project. 

Letter ID: 0169 Comment ID: 23426 Letter Lines: 1121 to 1132 

Comment Code: 5436 2.9.1.3 Allowing separate financial demonstrations for plugging and 

abandonment and post-injection site care (seeking comment) 

Comment: APPA is comfortable with the Proposal’s suggestion to allow separate financial 

responsibility demonstrations for different phases of CO2 GS projects, 

specifically for well plugging and then post-injection site care. Id. at 43522. 

As EPA recognizes, "post-injection site care has the potential to extend many 

years into the future," and "[t]rying to determine the cost for post-injection 

site care...could be difficult, as could the approval of a financial 

demonstration." Id. Requiring all financial demonstrations to be completed at 

one time, prior to well plugging, could unnecessarily delay the site closure 

process. Allowing a subsequent demonstration for financial responsibility for 

the post-injection site care period will allow regulators and Owners or 

Operators to better understand the site-closure needs for a given CO2 GS project 

prior to demonstration and approval of financial responsibility. 

Individual Response: EPA will allow owners or operators to use separate financial 

responsibility instruments for well plugging and site closure. However, owners or operators must 

demonstrate adequate financial responsibility for injection well plugging and post-injection site 

care and site closure with their permit applications per §146.85(a). This will ensure that 

resources are available to prevent the endangerment of USDWs in the event that the owner or 

operator experiences financial difficulties at any time during the life of the GS project. In 

addition, financial responsibility will need to be reevaluated and updated as needed prior to well 

plugging or site closure, or at any other time deemed appropriate by the Director (e.g., if the 

Director determines that based on information about the site, additional financial resources are 

needed to protect USDWs). 

EPA is developing guidance on financial responsibility for Class VI wells. The guidance will 

include a discussion on how best to estimate costs to assist Class VI well owners or operators in 

developing estimates of the costs associated with various GS activities. The guidance will 

include considerations, such as risk, that support accurate cost estimates. In addition, the final 

regulation at §146.85(e) requires the owner or operator to provide annual updates to the cost 

estimates to account for any amendments to the AoR and corrective action plan, the injection 

well plugging plan, the PISC and site closure plan, and the emergency and remedial response 

plan. This guidance will be available on EPA's website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0169 Comment ID: 23427 Letter Lines: 1134 to 1139 

Comment Code: 5460 2.9.2 Comments on transfer of liability for long-term care 

52
Comment: APPA urges EPA to actively pursue a legislative solution to the liability issue. 

APPA does not yet have the legislative solution in mind to address long-term 

liability under RCRA, CERCLA, Natural Resource Damage Assessment (NRDA) and 

other state laws but we know that considerable effort will have to be made to 

enable power plants to comfortably enter into these commercial activities 

without unlimited environmental or tort liability. 

Individual Response: Under the final GS rule, once an owner or operator has met all regulatory 

requirements under Part 146 for Class VI wells and the Director has approved site closure 

pursuant to requirements at §146.93, the owner or operator will generally no longer be subject to 

enforcement for regulatory noncompliance. Furthermore, their financial instrument as required 

under §146.85 will be released if it was not used. However, even if a site closure is approved 

under §146.93, an owner or operator may be held liable for regulatory noncompliance (including 

violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be 

held liable for regulatory noncompliance even after site closure was approved if the Director 

relied on erroneous information (e.g., erroneous modeling data) provided by the owner or 

operator when approving site closure. 

Separate from EPA’s authority to enforce regulatory compliance, an owner or operator may be 

subject to a §1431 response order even after proper site closure is approved under §146.93. 

Under §1431 the Administrator may require an owner or operator to take necessary response 

measures if he or she receives information that a contaminant is present or is likely to enter a 

public water system or an USDW, which may present an imminent and substantial endangerment 

to the health of persons, and the appropriate State and local authorities have not acted to protect 

the health of such persons. The action may include issuing administrative orders or commencing 

a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner 

or operator fails to comply with the order, they may be subject to a civil penalty for each day in 

which such violation occurs or failure to comply continues. 

Furthermore, after site closure an owner or operator may remain liable under tort and other 

remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. 

§§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA 

does not have authority to transfer SDWA or other legal liability for Class VI wells to the State 

or federal government or a third-party fund. See the final rule preamble for further discussion of 

EPA's final approach. 

Comments requesting EPA to pursue amendments to legislation related to liability are outside 

the scope of this rulemaking. This is also true to comments related to tort liability. 

Letter ID: 0169 Comment ID: 23428 Letter Lines: 1141 to 1153 

Comment Code: 5500 2.1 Comments on Involving the Public in Permitting Decisions 

Comment: Public Participation 

53
APPA agrees that public participation is crucial to the success of any 

individual CO2 GS project and of the UIC Program as a whole. Id. at 43523. We 

urge EPA to structure the Final Rule’s public participation requirements to 

maximize impact without unnecessarily slowing down the application process. To 

this end APPA believes that public participation would prove most useful after 

an application has been deemed complete but before it has been approved. APPA is 

inclined to believe that the states will set up public participation 

requirements consistent with their existing proposed new plant operations. APPA 

does not want the EPA UIC Class VI rulemaking to add new steps for permit review 

or hearings but offers no Federal pre-emption of existing state public 

participation requirements. 

Individual Response: The Agency believes that public participation is an important part of the 

UIC permitting process and wants to ensure wide access to decision-making processes and 

information on projects. GS permitting authorities must follow the existing public participation 

requirements for UIC permits as specified in 40 CFR Part 124. These regulations lay out the 

procedures for decision making and include requirements such as requiring the Director to notify 

the public regarding the availability of the draft permit and allow him or her to request a public 

hearing on the draft permit. EPA encourages operators and permitting agencies to begin 

involving the public by providing information as early in the process as possible. Encouraging 

public participation allows the permitting authority to understand public viewpoints, preferences, 

and concerns about the project, which might help avoid public misperceptions about the nature 

and safety of GS projects and forestall resistance later in the permitting effort. 

EPA disagrees with commenters who claim that early public involvement may slow the 

application process. Encouraging public participation allows the permitting authority to 

understand public viewpoints, preferences, and concerns about the project, which might help 

avoid public misperceptions about the nature and safety of GS projects and forestall resistance 

later in the permitting effort. 

Letter ID: 0169 Comment ID: 23429 Letter Lines: 1160 to 1168 

Comment Code: 3300 2.2.1 Delineating the AoR/Modeling CO2 movement 

Comment: to use geologic sequestration in a very responsible manner. First, many states 

have not conducted modeling on groundwater use and availabity in decades, and 

the earlier modeling may have used outdated models and information. In non-oil 

and gas states (or perhaps some mining states) there is little known about the 

subsurface geology. While APPA greatly appreciates the maps and placement 

analysis modeling conducted by U.S. Geological Service or "USGS", Batelle, 

NETL/DOE and others. We do not believe that we have preliminary 

characterizations or pre-commercial data as to underground formations suitable 

for injection and long-term storage of CO2. Nor do we know what the storage 

Individual Response: EPA acknowledges that some states do not have much geological and 

hydrogeologic data. For this reason, it is important that owners or operators gather new site54
specific data and conduct new modeling for each GS project. The Agency believes that AoR 

delineation using computational modeling that accounts for the multiphase flow of CO2 and 

native fluids (i.e., naturally occurring salty water), including density-driven flow (i.e., 

buoyancy), is necessary to ensure protection of USDWs from endangerment. The computational 

models used for this purpose are required to predict the fate of injected CO2 and changes in 

formation pressure. EPA believes that the requirements at 146.84(c)(1) to delineate the AoR 

using computational modeling are appropriate and encompass the significant processes that 

could affect the location of the CO2 plume and associated pressure front. Models can predict 

CO2 fate and transport, as well as changes in formation pressure, in three dimensions, as a 

function of time in order to delineate the subsurface storage site and the AoR. Models can 

account for site-specific and predicted operating conditions as well as geologic heterogeneities 

and potential migration through faults, fractures, and artificial penetrations. 

EPA has evaluated technical documents regarding several computational models that may be 

used for GS sites. Based on this review (as documented in the AoR section of the preamble to the 

proposed GS regulation and the background document "Computational Modeling of 

Underground Injection of Carbon Dioxide for Determination of Area-of-Review and Potential 

Risk to Underground Sources of Drinking Water"), EPA believes that several models meet the 

minimum requirements for models in the GS regulation. 

Letter ID: 0169 Comment ID: 23430 Letter Lines: 1168 to 1203 

Comment Code: 1800 1.4 Scientific Background/Informing the Proposal 

Comment: for injection and long-term storage of CO2. Nor do we know what the storage 

capacity is for those geologic formations given the volume of CO2 from power 

plants. We believe that DOE’s regional sequestration pilots, USGS, and other 

agencies can help the EPA and state agency directors in better characterizing 

these formations and ruling out transmissible faults, historically abandoned 

wells or mines, or poorly closed oil/gas operations from the 1930s where the 

well was closed with very poor closure mechanisms that would not prevent 

seepage. These formations that need to be considered by these agencies include 

deep saline formations, since we believe that most oil and gas formations will 

be saturated with CO2 in the first few years of broad commercial deployment. Oil 

and gas states have had motivation to keep up with subsurface mapping and 

preliminary characterization of the geology and hydrology because of the revenue 

streams from oil/gas sales and taxes back to the states. States will need to 

provide much clearer preliminary characterizations of the subsurface before this 

technology is commercially deployable because even the most modest subsurface 

characterization in a deep saline aquifer can take millions of dollars. Many 

power plant owner operators will hesitate to undertake such studies in non oil 

and gas states. APPA encourages the state agencies to use the available training 

and resources from USGS. EPA and state agencies should also become familiar with 

and be trained to use the SEQURE program, licensed by the Department of Energy’s 

NETL program. SEQURE is an aerial methane detection program which can be used in 

each state to identify abandoned or orphaned oil and gas wells, mines, and 

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perhaps other subsurface faults that could inadvertently lead to leakage and 

ultimate risks to USDWs. Other programs may be appropriate in addition to 

SEQURE. APPA does not intend to close the door to other modern ways to better 

characterize drinking water resources and the surrounding geology but we 

encourage the use of SEQURE. We defer to our colleagues at the American Water 

Works Association, the AWWA Research Foundation (AwwaRF), and the Association of 

Metropolitan Water Agencies who might offer other insights as to what else is 

needed. Further, APPA encourages state directors to communicate in substantives 

ways with the state hydrologist or geologist. Many states have not had any 

motivation to review subsurface geology in many decades. Updating maps and 

ruling out areas with faults or other unintended methods of conveyance for CO2 

migration will be essential to make this program work. APPA encourages the U.S. 

EPA and states to meet with USGS to discuss other tools available to the EPA and 

to states agencies. 

Individual Response: As discussed previously, EPA continues to fund and track research on 

geology as it relates to CCS. Information about this research is available on EPA's safewater 

website and ORD's web site. 

In response to the comment regarding the amount of data available on the subsurface geology of 

states that do not produce oil or gas, EPA clarifies that the permitting requirements at §146.82 

require an extensive evaluation of the geologic conditions at a proposed GS site to demonstrate 

the suitability of a potential project site for GS. If adequate maps and cross sections do not exist 

to support a thorough evaluation of the site, the owner or operator must produce the information 

(e.g., through additional, new studies), and the Director has the authority to request additional 

information under §146.82(a)(21). EPA also agrees with the commenter that communication 

among knowledgeable staff, such state hydrologists or geologists, is important to ensure that 

USDWs are protected. EPA encourages such communication wherever appropriate or necessary 

so that the Director will have all of the information needed to support permitting decisions. 

Regarding the use of SEQURE to identify abandoned wells, EPA notes that owners or operators 

may propose to use whatever methods they choose to support the AoR and corrective action 

process required at §146.84, as long as they are approved by the Director as part of the AoR and 

corrective action plan. Please see EPA's AoR and corrective action guidance, available on EPA’s 

website at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm, for additional 

information. 

Letter ID: 0169 Comment ID: 23431 Letter Lines: 1205 to 1208 

Comment Code: 5800 2.13 Comments on emergency and remedial response (40 CFR 146.94) 

Comment: Leaks and response plans 

APPA believes that the owner/operator must take remedial action as described in 

the permit’s response plan. 

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Individual Response: EPA agrees that an emergency and remedial response plan is an important 

part of assuring protection of USDWs from endangerment at GS sites. The requirements for an 

emergency and remedial response plan at §146.94(a) are designed to ensure that owners or 

operators, as part of their permit applications, comprehensively plan what actions would be 

necessary in the unlikely event of an emergency. The plan will ensure that operators know what 

entities and individuals must be notified and what actions must be taken to expeditiously mitigate 

any emergency situations. 

Letter ID: 0169 Comment ID: 23432 Letter Lines: 1210 to 1217 

Comment Code: 4600 2.6 Proposed Plume and Pressure Front Monitoring Requirements (40 

CFR 146.90) 

Comment: Monitoring 

APPA does not have great expertise in monitoring in GS commercial settings. 

However, it makes common sense to place monitors close enough to detect the leak 

before it can negatively affect the USDW. APPA realizes that some local 

jurisdictions may require surface monitoring or that OSHA may require surface 

monitoring for safety purposes. However, we doubt that surface monitoring would 

do much to protect USDWs. 

Individual Response: Baseline characterization of the site, including the geochemical data and 

initial modeling, will be highly valuable in selection of monitoring well locations and in refining 

plans for monitoring frequency. The GS rule stipulates that the monitoring frequency and spatial 

distribution of monitoring wells must be based on baseline geochemical data that were collected 

during the initial site characterization and the area of review evaluation at §146.90(d)(2). The 

details of the geochemical monitoring will be based on site-specific information and described in 

the Director-approved testing and monitoring plan. 

The Agency believes that surface air and soil gas monitoring, when coupled with subsurface 

monitoring, may be appropriate at some GS projects to ensure USDW protection. EPA also 

acknowledges that surface air and soil gas measurements are subject to variability and may not 

be suitable in all settings as a method to ensure USDW protection. However, EPA does not 

believe that this should entirely preclude their use. The decision to use surface monitoring and 

the selection of monitoring methods will be site-specific (e.g., may be influenced by geology, 

injection depth, and operational conditions) and must be based on potential risks to USDWs 

within the AoR. 

Letter ID: 0169 Comment ID: 23433 Letter Lines: 1219 to 1228 

Comment Code: 1300 1.1.2.3 Comments on other aspects of CCS (capture, transport) 

Comment: Electricity Reliability 

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While the EPA UIC Class VI program permitting proposed rule did not call for 

comments on electricity reliability, we offer our comments to NERC on 

Reliability Impacts of Climate Change Initiatives, dated July 16, 2008, which we 

believe should be considered. These are included in the Appendix. [See EPA-HQOW-2008-0390-0169.pdf for these comments.] NERC’s "Reliability Impact of Climate 

Change Initiatives" (Nov. 2008) link is: 

http://www.nerc.com/files/2008-Climate-Initiatives-Report.pdf to the final 

report (23pp). 

Individual Response: As described above, the capture and transport of CO2 are not within the 

UIC program’s authority. The UIC program’s authority under the SDWA focuses on ensuring 

that Class VI GS projects are permitted, sited, constructed, operated, monitored, and closed in a 

manner that protects USDWs from endangerment. 

Letter ID: 0169 Comment ID: 23434 Letter Lines: 1230 to 1234 

Comment Code: 7300 4.3 Regulatory Flexibility Act 

Comment: EPA to Consider SBREFA Impacts 

APPA asks that the U.S. EPA consider APPA’s comments under Small Business 

Regulatory Enforcement and Fairness Act (SBREFA) since > 90% of APPA’s member 

utilities meet the threshold for small entities. 

Individual Response: Based on a review of all of the Executive and Statutory Orders, EPA has 

determined that the GS rule is not subject to the requirements of Regulatory Flexibility Act and 

SBREFA. This conclusion is based on the scope of the GS Rule, which affects only those entities 

that choose to engage in GS. 

EPA clarifies that the GS rule does not require any facilities to sequester CO2; nor does it create 

an economic incentive to do so. The purpose of the GS regulation is to ensure that, where 

deployed, GS is conducted in a manner that does not endanger USDWs. 

Letter ID: 0169 Comment ID: 23435 Letter Lines: 1236 to 1240 

Comment Code: 7100 4.1 Executive Order 12866: Regulatory Planning and Review 

Comment: Executive Order 12866 

APPA asks that the U.S. EPA consider APPA’s comments and NERC’s study under 

Executive Order 12866 and any future Executive Orders on energy expressed by 

President-Elect Obama which covers energy issues. 

Individual Response: EPA determined that the final GS rule is a "significant regulatory action,” 

under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), because GS will raise novel 

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legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and 

Budget (OMB) for review under EO 12866. Any changes made in response to OMB 

recommendations are documented and are provided in the rulemaking docket. 

Letter ID: 0169 Comment ID: 23436 Letter Lines: 1244 to 1256 

Comment Code: 1000 1. General and Administrative Comments 

Comment: APPA appreciates the opportunity to comment on this important rulemaking 

initiative and looks forward to working with EPA on this effort. APPA has also 

filed comments on the EPA ANPR in response to many questions that the EPA has 

asked on geologic sequestration. It is critical that the EPA’s air, water and 

policy offices understand that while APPA will offer reasons why geologic 

sequestration should not be presumed to be Clean Air Act technological choices 

under MACT, BACT, LAER, or for NSPS compliance etc., we do strongly want the 

U.S. EPA to have a Class VI regulatory system that would allow for these 

demonstration (and later commercial scale plants) plants. APPA would be pleased 

to meet with the EPA regarding these issues. We would additionally be pleased to 

include in any EPA meeting our partners, the American Water Works Association 

(AWWA) which represents the public and private water utilities who have "front 

line" drinking water protection obligations. 

Individual Response: EPA acknowledges the comment. Please see the remainder of EPA's 

responses to this comment for further details. For additional information on EPA's final 

regulatory approach, please see the final rule and preamble as well as the rulemaking docket. 

EPA clarifies that technologies considered under Clean Air Act regulations are outside the scope 

of the GS rulemaking. Rather, the purpose of the GS regulation is to ensure consistency in 

permitting underground injection of CO2 at GS operations across the United States and provide 

requirements to prevent endangerment of USDWs in anticipation of the eventual use of GS to 

reduce CO2 emissions. Please see the discussion, “How Does This Rulemaking Relate to the 

Greenhouse Gas (GHG) Reporting Program?” in the preamble. 

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