### 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."Hollins, Nancy" <Nancy.Hollins@alston

.com>

12/23/2008 04:30 PM To OW-Docket@EPA

cc

bcc

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

Please accept the attached comments on behalf of Craig A. Hart.

<<Comments to 73 FR 43492-43541.PDF>>



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# ALSTON&BIRD LLP

The Atlantic Building

950 FStreet, NW Washington, DC 20004-1404

202-756-3300

Fax: 202-756-3333

www.alston.com

Craig A Hart

December 23,2008 Direct Dial: (202) 239-3912 E-mail: craig.hart@alston.com

Mr. Lee Whitehurst

EPA Office of Ground Water and Drinking Water Drinking Water Protection Division, Prevention Branch

Environmental Protection Agency

1200 Pennsylvania Ave., NW Washington, DC 20460

Email address: OW -Docket@epa.gov

RE: Underground Injection Control (UIC) Class VI well rule proposed 25 July 2008 at

73 FR 43492-43541.

Docket: EPA-HQ-OW-2008-0390

Dear Mr. Whitehurst:

I appreciate this opportunity to submit comments on EPA's Underground Injection Control (UIC) Class VI well rule proposed 25 July 2008 at 73 FR 43492-43541.

These comments are submitted in my individual capacity and do not reflect anyone
else's views.

These comments concern the application of the proposed rule to CO 2 injections

for research and test purposes, and are based on a study I recently completed of the Phase

II test injections of the U.S. Department of Energy Regional Carbon Sequestration Partnerships Program (RCSP): C. Hart, Advancing Carbon Capture & Sequestration

Research in an Uncertain Legal and Regulatory Environment: A Study of Phase II of the

DOE Regional Carbon Sequestration Partnerships Pilot Projects (Energy Technology

Innovation Program, John F. Kennedy School of Government, Harvard University,
2008).

This letter recommends that EPA provide for streamline provisions for permitting

small-scale CCS research and test injections under the SDW A in order to facilitate future

CCS research and development efforts. A streamline permitting procedures would focus

Atlanta • Charlotte • Dallas • Los Angeles • New York • Raleigh • Silicon ValleyMr. Lee Whitehurst

December 23,2008 Page 20f5

regulatory resources appropriately on large-scale injections, rather than on small injections that pose little or no risk to the environment.

The EPA's proposed rule for CCS injections under the SDW A released in July

2008 contains no provision for small-scale test injections performed prior to full permitting for purposes of research or characterizing the geology of a proposed well.

The preamble to the proposed rule does, however, provide that Class V experimental well

classification will remain available for those pilot-projects that continue to qualify under

Class V guidelines. 1

However, as described in this letter, there is evidence that the Class V experimental well provision was disfavored by Phase II project proponents. As described
below, most Phase II projects sought to avoid permitting under Class V. Also, the lack of uniformity inherent in the SDWA VIC program poses challenges for the research community in the permitting area. 2 I urge EPA to take the opportunity to consider

research needs in developing a regime for permitting C02 injections for CCS purpose
under Class VI.

Importance of Future CCS Research

Members of the research community and practitioners interviewed in connection

with the review of Phase II projects widely agreed that continued research in CCS will be

essential to the development of CCS, even after CCS is deployed in several commercialscale plants. Just as research in the oil and gas area continues and is increasing as that industry seeks to take advantage of new technologies and overcome increasingly challenging conditions as fields mature, research in various aspects of CCS is likely to be indispensable in such areas as exploring potential new sites, and improving tools for monitoring, measurement and verification.

1 U.S. Environmental Protection Agency, VIC Program Guidance No. 83, "Using the

Class V Experimental Technology Well Classification for Pilot Geologic Sequestration Projects," March 1, 2007, 

### available at http://www.epa.gov/safewater/uic/pdfs j guide_uic_carbonsequestrationJinal-O 3- 07.pdf.

2 Under the VIC program, some states have primacy for all classes of wells, some

states have primacy for Class 11 wells, some states have primacy for all classes of

wells except Class II, and some state VIC programs are operated by the regional U.S.

EPA office. Depending upon the class of permit, authority is held by oil and gas
divisions or environmental protection agencies within states. These agencies may
take differing approaches to the protection of drinking water under the SDW A. Each project will therefore involve different regulators and permitting strategies depending upon the regulatory framework governing the particular project.Mr. Lee Whitehurst

December 23,2008 Page 3 of5

For example, early pilot projects have shown that the most complete understanding of the site-specific behavior of CO 2 has come from monitoring the

movement of CO 2 itselrJ Research tests have provided important information for

researchers studying CO 2 migration in various types of formations. Well-designed test injections could be employed to collect data on response measures to leakage or other contingencies. In a commercial setting, research-scale tests could be used during the

assessment phase of a project before a larger investment is made in fully characterizing

an area.

Experience in Phase II with SDW A Permitting

Based on interviews with the lead implementing organizations in each regional partnership, the time and cost associated with preparing SDW A permit applications, and

the time required for agency review, have caused delays and can impose burdens on small-scale research proj ects due to limited financial and staff resources. EPA review of permit applications is generally expected to require between 6 to 9 months based on EPA

estimates provided to certain of the partnerships in informal consultations. State agency review under Class II, where available, is expected to require less time, in some cases requiring only 1 to 2 months.

Although the EPA issued guidance that applications for CCS injections should be

submitted under the SDWA UIC program's Class V experimental well category,4 a

survey of 19 of the 24 geologic sequestration Phase II projects for which data was available shows that almost two-thirds of the permits will be issued under Class II for

EORJEGR activities.

Interviews with the Phase II project lead organizations revealed that decisions concerning what class of UIC permit would be pursued were typically based on the type

of activity most closely associated with the injection (e.g., EORJEGR) and the

recommendations of partners and the government agencies issuing the injection permits.

Interviewees commonly cited greater experience with C02 injection under EORJEGR3 Christine Doughty, Barry M. Freifeld, Robert 

### C. Trautz, "Site Characterization for

C02 Geologic Storage and Vice Versa: The Frio Brine Pilot, Texas, USA as a Case Study," 

### 54 ENVIRONMENTAL GEOLOGY 

### 1635-1656 (2007).

4 U.S. Environmental Protection Agency, DIC Program Guidance No. 83, "Using the

Class V Experimental Technology Well Classification for Pilot Geologic Sequestration Projects," March 1, 2007, 

### available at http://www.epa.gov / safewater /uic/pdfs / guide_uic_carbonsequestrationjinal-O 3- 07.pdf.Mr. Lee Whitehurst

December 23,2008 Page 40f5

related Class II permits and the perception that Class II permits are easier to obtain compared to Class V permits as the reasons for pursuing permits under Class II.

d VIC CI f 

### T lIP

. tWll b F Ph ase rOlec e s 

### )v orma Ion .ype an ass Oil & Gas Coal Saline Total

Class I 0 0 0 0

Class II 7 4 1 12

Class V 1 1 6 8

Total 8 5 7 20

Note: The survey includes the WESTCARB Calpine-Rosetta project as it was originally planned before its cancellation. As planned, it would involve two injections at different

levels in a stacked saline aquifer and gas field, requiring two permits, for a total of 20 permits for the 19 projects surveyed.

Examples of Streamline Permitting in CCS Regimes and 

### V.S. Environmental Law

The State of Washington's Underground Injection Control Program allows

streamline permitting under Class V for small-scale pilot injections of under 1,000 metric

tons or larger volumes by application. s Australia has adopted a phased permitting

process, which includes an assessment permit. 6

Other U.S. environmental laws, such as the Toxic Substances Control Act, also provide precedent for a streamline permitting approach in other contexts. 7

Options for a Streamline Review Procedure

A common feature of streamline permitting schemes is a quantified limit, which

in the case of CCS, would likely be a volume limit. The advantages of quantified volume

limit include that it provides greater certainty for research organizations and allows EPA

to allocate resources to higher volume CCS injections that pose more significant risks.

5 Wash. Admin. Code, 173-218-115(4)(b).

6 Nigel Bankes and Jenette Poschwatta, Australian Legislation on Carbon Capture and Storage: A Canadian Perspective (June 2008), available at www.iseee.cajfilesjiseeejbankesJesearch_paper. pdf.

7 TSCA governs the manufacture, processing, use, distribution in commerce, and disposal of chemical substances and mixtures. It provides for varying levels of expedited review and exemption from regulations in qualifying research, low

volume commercial production, and low release low exposure commercial production. See Elizabeth Brown et al., A Practitioner's Guide to the Toxic Substance

Control Act, Environmental Law Institute, 1999.Mr. Lee Whitehurst

December 23,2008 Page 5 of5

While no specific volume limit is suggested here, EPA should consider several

factors for setting such a limit. A volume limit should be differentiated base on type of
formation, site pressure, and other site-specific conditions. Such a limit could change (likely increase) along with our knowledge of a particular formation and experience with

C02 injections for purposes of permanent sequestration generally. Finally, in addition to

considerations relating to protection of drinking water sources, a volume limit should be

based on the needs of advancing research and the risks to health and safety, including
workers, the general population, flora and fauna. CCS assessment models have been developed by our national laboratories specifically to address these kinds of risks. 8

Summary

As EPA considers its proposed rule for Class VI wells under the SDW A DIC

program, we will have additional information about the CCS permitting process from the

DOE RCSP Phases II and 

### III projects. As part of its review of the proposed rules for

Class VI injection wells, EPA should take account of this experience and consider providing an improved permitting regime for small-scale research projects in order to

facilitate CCS research and development efforts.

Respectfully Submitted,



# e-,

Craig Hart

Alston & Bird LLP

8 See Curtis M. Oldenburg and Steven L. Bryant, Certification Framework for Geologic C02 Storage, Sixth Annual Conference on Carbon Capture and Sequestration, National Energy Technology Laboratory, Pittsburgh, PA, May 7-10,

2007 available at www.netl.doe.govjpublicationsjproceedingsj07jcarbonseqjdatajpapersjtue_062.pdf; Curtis M. Oldenburg, Steven L. Bryant, Jean-Philippe
Nicot, and Ying Zhang, Certification Framework for Geologic Carbon Sequestration

Based on Effective Trapping, Seventh Annual Conference on Carbon Capture and Sequestration, National Energy Technology Laboratory, Pittsburgh, PA, May 5-8,
2008; Curtis M. Oldenburg, Steven L. Bryant, Jean-Philippe Nicot, Certification

Framework for Geologic Carbon Sequestration Based on Effective Trapping (forthcoming 2008).

### Letter ID: 0261 Commenter: Craig Hart Organization: Alston & Bird LLP

Letter ID: 0261 Comment ID: 22981 Letter Lines: 84 to 91

Comment Code: 1852 1.4.2.1 DOE Regional Carbon Seque stration Partnerships

Comment: These comments concern the application of the proposed rule to CO2 injections for research and test purposes, and are based on a study I recently completed of the Phase II test injecti ons of the U.S. Department of Energy Regional Carbon Sequestration Partnerships Program (RCSP): C. Hart, Advancing Carbon Capture & Sequestration Research in an Uncertain Legal and Regulatory Environment: A Study of Phase II of the DOE Regional Carbon Seque stration Partnerships Pilot Projects (Energy Technology Innovation Program, J ohn F. Kennedy School of Government, Harvard University, 2008).

Individual Response: EPA believes that the GS regulation w ill provide certainty to industry and the public about requirements that apply to injection, by providi ng consistency in requirements across the United States and transp arency about what requirements apply to owners or operators.

EPA acknowledges the value of the DOE pilot pr ojects and resultant data and information generated by such projects. EPA has evaluated permits and reviewed operational data and

information associated with the seven RCSPs funded by the U.S. Department of Energy and coordinated through the Nationa l Energy Technology Laboratory (NETL). In addition to the information cited in the preamble to the pr oposed rule, EPA published a Notice of Data Availability and Request for Comment on A ugust 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 Ut ah; and the Pump Canyon Site, New Mexico. The Agency will continue to track GS project developments and evaluate new and ongoing research and information to ensure USDW protection.

EPA is using an adaptive approach to re gulating GS under the UIC Program. Even after finalizing the rule, the Agency plans to collect and review data every si x years on GS projects, including data generated by the partnerships, to determine whet her the appropriate amount and types of information and appropriate documenta tion are being collected, and to determine if modifications to the requirements are appropriate or necessary.

Letter ID: 0261 Comment ID: 22982 Letter Lines: 93 to 113 ; 220 to 234

Comment Code: 1840 1.4.1.3 Other research

Comment: This letter recommends that EPA provide for streamline provisions for permitting small-scale CCS research and test inj ections under the SDWA in order to

facilitate future CCS research and deve lopment efforts. A streamline permitting

1

### procedures would focus regulatory res ources appropriately on large-scale injections, rather than on small injections that pose little or no risk to the

environment.

The EPA's proposed rule for CCS injections under the SDWA released in July 2008 contains no provision for sma ll-scale test injections performed prior to full permitting for purposes of research or ch aracterizing the geology of a proposed well. The preamble to the proposed rule does, however, provide that Class V experimental well classificat ion will remain available for those pilot-projects that continue to qualify unde r Class V guidelines. [FN1]

However, as described in this letter , there is evidence that the Class V experimental well provision was disfavor ed by Phase II project proponents. As described below, most Phase II projects sought to avoid permitting under Class V. Also, the lack of uniformity inhere nt in the SDWA UIC program poses challenges for the research community in the permitting area.[FN2] I urge EPA to take the opportunity to c onsider research needs in developing a regime for permitting CO2 injections for CCS purpose under Class VI.

[FN1] U.S. Environmental Pr otection Agency, VIC Program Guidance No. 83, "Using the Class V Experimental Technology We ll Classification for Pilot Geologic Sequestration Projects," Ma rch 1, 2007, available at http://www.epa.gov/safewater/uic/pdfs j guide_uic_carbonseque strationJinalO307.pdf.

[FN2]Under the UIC program, some states have primacy for all classes of wells, some states have primacy for Class II we lls, some states have primacy for all classes of wells except Class II, and so me state UIC programs are operated by the regional U.S. EPA office. Depending upon the class of permit, authority is held by oil and gas divisions or enviro nmental protection agencies within states. These agencies may take differi ng approaches to the protection of drinking water under the SDWA. Each projec t will therefore i nvolve different regulators and permitting strategies depe nding upon the regulatory framework governing the particular project.

Individual Response: The final rule allows owners or opera tors to continue using the Class V experimental well permit process for small-scale pr ojects that are experi mental in nature. EPA believes that the Class V and Class VI permitti ng requirements are necessary to protect USDWs from endangerment because they are based on s ite-specific and project-specific information, including CO2 volume. EPA believes that the re quirements for GS owners or operators are flexible enough to take into account plant opera ting data, including the volume to be injected.

EPA acknowledges that there may be technical and administrative challenges including resource concerns, and will work closely w ith the states to assist them in resolving funding issues or acquiring the resources, personnel, and traini ng needed to address the unique technical challenges associated with GS. Please see EPA' s guidance for primacy agencies on implementing

2

### the GS rule, which will be av ailable on EPA’s website at http://water.epa.gov/type/groundwater /uic/wells_sequestration.cfm.

Letter ID: 0261 Comment ID: 22983 Letter Lines: 115 to 134 ; 236 to 238

Comment Code: 1510 1.2.2.3 Need for additional study

Comment: Importance of Future CCS Research

Members of the research community and pr actitioners interviewed in connection

with the review of Phase II projects widely agreed that continued research in CCS will be essential to the development of CCS, even after CCS is deployed in several commercialscale plants. Just as research in the oil and gas area continues and is increasing as that industry seeks to take advantage of new technologies and overcome increasingly chal lenging conditions as fields mature, research in various aspects of CCS is lik ely to be indispensable in such areas as exploring potential new sites, and improving tools for monitoring,

measurement and verification.

For example, early pilot projects ha ve shown that the most complete understanding of the site-specific behavior of CO2 has come from monitoring the movement of CO2 itself [FN3]. Research test s have provided important information for researchers studying CO2 migration in vari ous types of formations. Well-designed test injections could be employed to collect data on response measures to leakage or other contingencies. In a commercial setting, re search-scale tests could be used during the assessment phase of a project before a larger investment is made in fully characterizing an area.

[FN3] Christine Doughty, Barry M. Freifeld, Robert C. Trautz, "Site Characterization for CO2 Geologic Storage a nd Vice Versa: The Frio Brine Pilot, Texas, USA as a Case Study," 54 E NVIRONMENTAL GEOLOGY 1635-1656 (2007).

Individual Response: EPA agrees that continued research in all GS associated fields will be integral to development of GS technology. EPA is aware of research by other federal agencies, industry, international parties, and academia re lated to GS, including projects that address many of the topics suggested by commenters. EPA pub lished a Notice of Data Availability (NODA) 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 (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 also described tw o studies by the Lawrence Berkeley National Laboratory on the potential effect s of CO2 injection on ground wa ter 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.

To protect USDWs from endangerment and meet the potentially fast pace of GS deployment, EPA is using an adaptive approach to regula ting CO2 injection for GS. The Agency plans to,

3

### every six years, collect and review data on GS projects to determine whether the appropriate amount and types of information and appropria te documentation are being collected, and to determine if modifications to the requiremen ts are appropriate or necessary. An adaptive approach will allow regulatory development to pr oceed 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: 0261 Comment ID: 22985 Letter Lines: 136 to 146

Comment Code: 4710 2.7.1 Proposed submissions required for permit applications (seeking comment)

Comment: Experience in Phase II with SDWA Permitting

Based on interviews with the lead imple menting organizations in each regional partnership, the time and cost associ ated with preparing SDWA permit applications, and the time required for ag ency review, have caused delays and can impose burdens on small-scale resear ch projects due to limited financial and staff resources. EPA review of permit a pplications is genera lly expected to require between 6 to 9 months based on EP A estimates provided to certain of the partnerships in informal consultations . State agency revi ew under Class II, where available, is expected to require less time, in some cases requiring only

1 to 2 months.

Individual Response: EPA disagrees that it should stream line or provide a different approval process for small-volume operators. To protec t USDWs from endangerment the information required to be submitted with the permit appli cation under §146.82 is necessary and appropriate to provide permitting authorities sufficient info rmation on which to base informed decisions about establishing permit conditions and granting permits. The purpose of these requirements is to protect USDWs from endangerment, and like large-volume operations, small-volume operations must be permitted and operated in manner that is protective of USDWs.

EPA is preparing guidances to s upport permit applicati on reviews for Class VI permits, including guidance for primacy authorities and an addendu m to UICPG #83 that describes the use of the Class V experimental technology well classification following promulgation of the GS Class VI rule. The guidances will be av ailable on EPA's web site, at http://water.epa.gov/type/groundwater /uic/wells_sequestration.cfm.

Letter ID: 0261 Comment ID: 22986 Letter Lines: 148 to 170 ; 240 to 243

Comment Code: 2046 1.5.2.3 Continuing to classify CO2 in jection for EOR/EGR as Class II/ dividing line between Class II and Class VI (seeking comment)

Comment: Although the EPA issued guidance that applic ations for CCS inje ctions should be submitted under the SDWA UIC program's Class V experimental well category,[FN4] a

4

### survey of 19 of the 24 geologic sequestra tion Phase II projects for which data

was available shows that almost two-thirds of the permits will be issued under

Class II for EOR/EGR activities.

Interviews with the Phase II project lead organizations revealed that decisions concerning what class of UIC permit would be pursued we re typically based on the type of activity most closely associated with the injection (e .g., EOR/EGR) and the recommendations of partners and the gove rnment agencies issu ing the injection permits. Interviewees commonl y cited greater experience with CO2 injection under EOR/EGRrelated Class II permits and th e perception that Class II permits are easier to obtain compared to Class V permits as the reasons for pursuing permits

under Class II.

Phase II Project Wells by Formation Type and UIC Class

[SEE EPA-HQ-OW-2008-0390-02 61.PDF FOR TABLE]

Note: The survey includes the WESTCARB Calpine-Rosetta project as it was originally planned before its cancella tion. As planned, it would involve two injections at different levels in a stacked saline aqui fer and gas field, requiring two permits, for a total of 20 permits for the 19 projects surveyed.

[FN4] U.S. Environmental Pr otection Agency, DIC Program Guidance No. 83, "Using the Class V Experimental Technology We ll Classification for Pilot Geologic Sequestration Projects," March 1, 2007, available at http://www.epa.gov/ safewater/uic/pdfs/ guide_uic_ca rbonsequestrationjinal-O307.pdf.

Individual Response: EPA recognizes that the oil and gas industry has decades of experience injecting CO2 for the purpose of ER, and that site s used for ER may be suitable for GS and may be among the first GS sites. Furthermore, EPA believes that injection of CO2 for the primary purpose of enhancing oil and gas recovery shoul d remain under the Class II Program. However, the Agency believes that the nature and risks of CO2 injection for the primary purpose of long term storage poses different risks than injection for the primary purpose of ER, and therefore has developed new Class VI regulations to address these unique risks. For example, the volume of CO2 anticipated to be injected for long term storage is significantly greater than for ER operations. Reservoir pressure c onditions will also be differe nt, with Class VI injection operations involving large volumes of CO2 and likely having higher pressures within their storage formations than Class II ER projects.

EPA is developing guidance on transitioning perm its 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 recommended methods the Director may use to evaluate change s in risk to USDWs from projects, and how the Director may determine whether a project should be regulated within th e Class II or Class VI UIC program. This guidance will be available on EPA’s website at

5

### http://water.epa.gov/type/groundwat er/uic/wells_sequest ration.cfm. For more information, please

see the discussion on transition of Class II well s in the preamble to the final GS rule.

Letter ID: 0261 Comment ID: 22987 Letter Lines: 172 to 177 ; 245 to 249

Comment Code: 1530 1.2.3.1 State regulatory effort s on GS (seeking comment)

Comment Code: 4710 2.7.1 Proposed submissions required for permit applications (seeking comment)

Comment: Examples of Streamline Permitting in CCS Regimes and U.S. Environmental Law

The State of Washington's Underground Injection Control Program allows streamline permitting under Class V for small-scale pilot injections of under 1,000 metric tons or larger volumes by app lication.[FN5] Austra lia has adopted a phased permitting process, which in cludes an assessment permit.[FN6]

[FN5] Wash. Admin. Co de, 173-218-115(4)(b).

[FN6] Nigel Bankes and Jenette Poschwatta, Australian Legislati on on Carbon Capture and Storage: A Canadian Persp ective (June 2008), available at www.iseee.cajfilesjiseeejbankesJesearch_paper.pdf.

Individual Response: EPA clarifies that, with the promul gation of the GS rule, it no longer considers it appropriate to permit CO2 injecti on wells that are testing the injectivity or appropriateness of an individual fo rmation (e.g., as a prelude to a co mmercial-scale operation) as Class V experimental technology wells. Such wells should be permitted as Class VI wells. EPA clarifies that Class V experimental technology wells may be used for experimental projects designed to test new technologies.

EPA is preparing an addendum to UICPG #83 that describes the use of th e Class V experimental technology well classification to clarify perm itting for Class V wells. This addendum will address shifting of Class V experi mental projects to full-scale GS projects and the future use of the Class V experimental technology well s ubclass for research a nd testing of new GS technologies.

Throughout the regulatory devel opment process for the Class VI regulation, EPA monitored states' regulatory and legislative development efforts and approaches. In EPA's August 31, 2009, Notice of Data Availability (NODA) and Reque st for Comment, the Agency described its ongoing monitoring of states' regulatory effort s and approaches and how the Agency is considering this information as it develops guidance on the primacy application and approval process for Class VI wells. Information about th ese state activities may be found in the docket

for the GS rule.

EPA disagrees with the suggesti on that it should streamline or provide a different approval process for small-volume operators. To protect USDWs from endangerment, EPA believes that the information required to be submitted with the permit application under §146.82 is necessary

6

### and appropriate to provide permitting authorities sufficient information on which to base informed decisions about establishing permit conditions and granting permits. The purpose of these requirements is to protect USDWs from endangerment, and like large-volume operations, small-volume operations must be permitted and opera ted in manner that is protective of USDWs.

EPA clarifies that small scale, experimental research injection wells, such as those operated by the Regional Carbon Sequestration Partnerships, will continue to be regulated as Class V experimental wells as long as they remain small scale and of an experimental nature. Permitting of these wells is addressed in UIC Program Guidance #83: Using the Class V Experimental Technology Well Classification for Pilot Carbon Geologic Seque stration Projects.

Existing pilot projects will continue to be re gulated under their Class V experimental well permits and must meet the reporting requirement s set forth in their individual permit. EPA expects that, as the permits for these Class V proj ects expire, they will either be re-permitted as Class VI wells (subject to repor ting requirements at §146.91) or, if they continue to be of an experimental nature, they may continue to be permitted as Class V experimental technology wells (subject to the reporting requirements in the permit). EPA is preparing an addendum to

UICPG #83 that describes the use of the Cla ss V experimental tec hnology well classification following promulgation of the GS Class VI rule. The guidance will address shifting of Class V experimental projects to full-scal e GS projects and the future use of the Class V experimental technology well subclass for research and tes ting of new GS technology. The guidance will be available on EPA's web site, at http://water.epa.gov/type/groundwater /uic/wells_sequestration.cfm.

Letter ID: 0261 Comment ID: 22988 Letter Lines: 179 to 200 ; 251 to 268

Comment Code: 4000 2.4 Proposed Injection Well Operat ing Requirements (40 CFR 146.88)

Comment Code: 4710 2.7.1 Proposed submissions required for permit applications (seeking comment)

Comment: Other U.S. environmental laws, such as th e Toxic Substances Control Act, also provide precedent for a streamline permitting approach in other contexts.[FN7]

Options for a Streamline Review Procedure

A common feature of streamline permitting schemes is a quantified limit, which in the case of CCS, would likely be a vol ume limit. The advantages of quantified volume limit include that it provides greater certainty for research organizations and allows EPA to allo cate resources to higher volume CCS injections that pose mo re significant risks.

While no specific volume limit is suggested here, EPA should consider several factors for setting such a limit. A volume limit should be differentiated base on type of formation, site pressure, and other site-specific conditions. Such a limit could change (likely increase) along with our knowledge of a particular formation and experience with CO2 inje ctions for purposes of permanent

7

### sequestration generally. Finally, in add ition to considerations relating to protection of drinking water sources, a volume limit should be based on the needs of advancing research and the ri sks to health and safety, including workers, the general population, flora a nd fauna. CCS assessment models have been developed by our national laboratories specifically to address these kinds of risks.[FN8]

[FN7] TSCA governs the manufacture, proce ssing, use, distribution in commerce, and disposal of chemical substances and mixt ures. It provides for varying levels of expedited review and exemption from re gulations in qualifying research, low volume commercial produc tion, and low release lo w exposure commercial production. See Elizabeth Brown et al., A Practitioner's Guide to the Toxic Substance Control Act, Envir onmental Law Institute, 1999.

[FN8] See Curtis M. Oldenbur g and Steven L. Bryant, Ce rtification Framework for Geologic CO2 Storage, Sixth Annual Conference on Carbon Capture and Sequestration, National Energy Technology Laboratory, Pittsburgh, PA, May 7-10, 2007 available at www.netl.doe.govjpubli cationsjproceedingsj07jcarbon seqjdatajpapersjtue _062.pdf; Curtis M. Oldenburg, Steven L. Bryant, JeanPhilippe Nicot, and Ying Zhang, Certif ication Framework for Geologic Carbon Sequestration Based on Effective Trappi ng, Seventh Annual Conference on Carbon Capture and Sequestration, National En ergy Technology Laboratory, Pittsburgh, PA, May 5-8, 2008; Curtis M. Oldenburg, Stev en L. Bryant, Jean-Philippe Nicot, Certification Framework for Geologic Ca rbon Sequestration Based on Effective Trapping (forthcoming 2008).

Individual Response: As described above, EPA disagrees with the suggestion that it should streamline the approval process for small-volume operators. EPA believes that the information required to be submitted with the permit appli cation under §146.82 is necessary and appropriate to provide permitting authorities sufficient info rmation on which to base informed decisions about establishing permit conditions and granting permits. The purpose of these requirements is to protect USDWs from endangerment, and like large-volume operations, small-volume operations must be permitted and operated in manner that is protective of USDWs.

EPA disagrees with the suggestion to set a volume limit. EPA belie ves that the potentially wider range of injection scenarios, formation types, a nd other site-specific factors necessitate a sitespecific approach, and permit limits that are based on the unique geology of the site. The injection pressure limit for each GS project wi ll be based on site-spe cific conditions, and be informed by data on the injection zone.

Letter ID: 0261 Comment ID: 22989 Letter Lines: 204 to 209

Comment Code: 1852 1.4.2.1 DOE Regional Carbon Seque stration Partnerships

Comment Code: 4710 2.7.1 Proposed submissions required for permit applications (seeking comment)

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### 9 Comment: As EPA considers its proposed rule fo r Class VI wells under the SDWA UIC program, we will have additional inform ation about the CCS permitting process from the DOE RCSP Phases II and III projec ts. As part of its review of the proposed rules for Class VI injection we lls, EPA should take account of this experience and consider providing an impr oved permitting regime for small-scale research projects in order to facilitate CCS research and development efforts.

Individual Response: The final rule allows owners or opera tors to continue using the Class V experimental well permit process for small-scale pr ojects that are experi mental in nature. EPA believes that the Class V and Class VI permitti ng requirements are necessary to protect USDWs from endangerment, and are based on site-spe cific and project-specifi c information, including CO2 volume. EPA believes that the requirements fo r GS owners or operators are flexible enough to take into account plant operating data , including the volume to be injected.

The Agency is also tracking operation and techni cal developments of more than three dozen small- and large-scale GS injection projects in the United States and abroad. EPA meets regularly with DOE to discuss its research initiatives, project deve lopments, and "best practices."

EPA is using an adaptive approach to re gulating GS under the UIC Program. Even after finalizing the rule, the Agency plans to collect and review data every si x years on GS projects, including data generated by the partnerships, to determine whet her the appropriate amount and types of information and appropriate documenta tion are being collected, and to determine if modifications to the requirements are appropriate or necessary.

As described above, EPA disagrees with the su ggestion that it should streamline the approval process for small-volume operators. EPA believes th at the information required to be submitted with the permit application under §146.82 is nece ssary and appropriate to provide permitting authorities sufficient information on which to base informed decisions about establishing permit conditions and granting permits. The purpose of th ese requirements is to protect USDWs from endangerment, and like large-volume operations , small-volume operations must be permitted and operated in manner that is protective of USDWs.