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

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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 ofthe proposed rule to CO2 injections

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

II test injections ofthe 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 ofPhase II ofthe

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 SDWA 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 Valley
Mr. 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 SDWA released in July

2008 contains no provision for small-scale test injections performed prior to full

permitting for purposes ofresearch 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 ofthe 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 ofCCS, 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 ofCCS 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/pdfsj guide_uic_carbonsequestrationJinal-O3-

07.pdf.

2Under 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 SDWA. 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 ofthe site-specific behavior ofCO2 has come from monitoring the

movement ofCO2 itselrJ Research tests have provided important information for

researchers studying CO2migration in various types offormations. 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 SDWA Permitting

Based on interviews with the lead implementing organizations in each regional

partnership, the time and cost associated with preparing SDWA 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 ofthe 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 ofthe 24 geologic sequestration Phase II projects for which data was

available shows that almost two-thirds ofthe 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-O3-

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.

Phase lIPrOlec . tWll e s b F )v ormafIon T.ype and VIC CIass

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 ofstreamline 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 ofrisks. 8

Summary

As EPA considers its proposed rule for Class VI wells under the SDWA 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 ofthe proposed rules for

Class VI injection wells, EPA should take account ofthis 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 Sequestration 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 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). 

Individual Response: EPA believes that the GS regulation will provide certainty to industry and 

the public about requirements that apply to injection, by providing consistency in requirements 

across the United States and transparency about what requirements apply to owners or operators. 

EPA acknowledges the value of the DOE pilot projects 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 National Energy Technology Laboratory (NETL). 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. 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 regulating GS under the UIC Program. Even after 

finalizing the rule, the Agency plans to collect and review data every six years on GS projects, 

including data generated by the partnerships, 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: 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 injections under the SDWA in order to 

facilitate future CCS research and development efforts. A streamline permitting 

1
procedures would focus 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 SDWA 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. [FN1] 

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 UIC program poses 

challenges for the research community in the permitting area.[FN2] I urge EPA to 

take the opportunity to consider research needs in developing a regime for 

permitting CO2 injections for CCS purpose under Class VI. 

[FN1] 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/pdfsj guide_uic_carbonsequestrationJinalO307.pdf. 

[FN2]Under the UIC program, some states have primacy for all classes of wells, 

some states have primacy for Class II wells, some states have primacy for all 

classes of wells except Class II, and some 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 environmental protection agencies within 

states. These agencies may take differing approaches to the protection of 

drinking water under the SDWA. Each project will therefore involve different 

regulators and permitting strategies depending upon the regulatory framework 

governing the particular project. 

Individual Response: The final rule allows owners or operators to continue using the Class V 

experimental well permit process for small-scale projects that are experimental in nature. EPA 

believes that the Class V and Class VI permitting requirements are necessary to protect USDWs 

from endangerment because they are based on site-specific and project-specific information, 

including CO2 volume. EPA believes that the requirements for GS owners or operators are 

flexible enough to take into account plant operating data, including the volume to be injected. 

EPA acknowledges that there may be technical and administrative challenges including resource 

concerns, and will work closely with the states to assist them in resolving funding issues or 

acquiring the resources, personnel, and training 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 available 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 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. 

For example, early pilot projects have shown that the most complete 

understanding of the site-specific behavior of CO2 has come from monitoring the 

movement of CO2 itself [FN3]. Research tests have provided important information for 

researchers studying CO2 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. 

[FN3] Christine Doughty, Barry M. Freifeld, Robert C. Trautz, "Site 

Characterization for CO2 Geologic Storage and Vice Versa: The Frio Brine Pilot, 

Texas, USA as a Case Study," 54 ENVIRONMENTAL 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 related to GS, including projects that address many 

of the topics suggested by commenters. EPA published 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 two 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. 

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, 

3
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 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: 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 implementing organizations in each regional 

partnership, the time and cost associated with preparing SDWA permit 

applications, and the time required for agency review, have caused delays and 

can impose burdens on small-scale research projects 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. 

Individual Response: EPA disagrees that it should streamline or provide a different approval 

process for small-volume operators. To protect USDWs from endangerment the information 

required to be submitted with the permit application under §146.82 is necessary 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 operated in manner that is protective of USDWs. 

EPA is preparing guidances to support permit application reviews for Class VI permits, including 

guidance for primacy authorities and an addendum 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 available 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 injection for EOR/EGR as Class II/ 

dividing line between Class II and Class VI (seeking comment) 

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

submitted under the SDWA UIC program's Class V experimental well category,[FN4] a 

4
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 EOR/EGR 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., EOR/EGR) and 

the recommendations of partners and the government agencies issuing the injection 

permits. Interviewees commonly cited greater experience with CO2 injection under 

EOR/EGRrelated 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. 

Phase II Project Wells by Formation Type and UIC Class 

[SEE EPA-HQ-OW-2008-0390-0261.PDF FOR TABLE] 

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. 

[FN4] 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-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 sites 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 should 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 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. 

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 recommended 

methods the Director may use to evaluate 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 

5
http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. For more information, please 

see the discussion on transition of Class II wells 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 efforts 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 application.[FN5] Australia has adopted a 

phased permitting process, which includes an assessment permit.[FN6] 

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

[FN6] Nigel Bankes and Jenette Poschwatta, Australian Legislation on Carbon Capture 

and Storage: A Canadian Perspective (June 2008), available at 

www.iseee.cajfilesjiseeejbankesJesearch_paper.pdf. 

Individual Response: EPA clarifies that, with the promulgation of the GS rule, it no longer 

considers it appropriate to permit CO2 injection wells that are testing the injectivity or 

appropriateness of an individual formation (e.g., as a prelude to a commercial-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 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. 

Throughout the regulatory development 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 Request for Comment, the Agency described its 

ongoing monitoring of states' regulatory efforts 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 these state activities may be found in the docket 

for the GS rule. 

EPA disagrees with the suggestion 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 operated 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 Sequestration Projects. 

Existing pilot projects will continue to be regulated under their Class V experimental well 

permits and must meet the reporting requirements set forth in their individual permit. EPA 

expects that, as the permits for these Class V projects expire, they will either be re-permitted as 

Class VI wells (subject to reporting 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 Class V experimental technology well classification 

following promulgation of the GS Class VI rule. The guidance 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 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 Operating 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 the 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 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. 

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 injections for purposes of permanent 

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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.[FN8] 

[FN7] 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. 

[FN8] See Curtis M. Oldenburg and Steven L. Bryant, Certification 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.govjpublicationsjproceedingsj07jcarbon 

seqjdatajpapersjtue_062.pdf; Curtis M. Oldenburg, Steven L. Bryant, JeanPhilippe 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). 

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 application under §146.82 is necessary 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 operated in manner that is protective of USDWs. 

EPA disagrees with the suggestion to set a volume limit. EPA believes that the potentially wider 

range of injection scenarios, formation types, and 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 will be based on site-specific 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 Sequestration Partnerships 

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

comment) 

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Comment: As EPA considers its proposed rule for Class VI wells under the SDWA UIC 

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. 

Individual Response: The final rule allows owners or operators to continue using the Class V 

experimental well permit process for small-scale projects that are experimental in nature. EPA 

believes that the Class V and Class VI permitting requirements are necessary to protect USDWs 

from endangerment, and are based on site-specific and project-specific information, including 

CO2 volume. EPA believes that the requirements for 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 technical 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 developments, and "best practices." 

EPA is using an adaptive approach to regulating GS under the UIC Program. Even after 

finalizing the rule, the Agency plans to collect and review data every six years on GS projects, 

including data generated by the partnerships, 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. 

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 application under §146.82 is necessary 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 

operated in manner that is protective of USDWs.