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.
December 19, 2008 

EPA Docket Center (EPA/DC) 

1200 Pennsylvania Ave., NW. 

Washington, DC 20460 

Attention: Docket ID [EPA–HQ–OW–2008–0390, FRL–8695–3] 

Subject: Federal Requirements Under the Underground Injection Control (UIC) Program 

for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells 

These comments are filed on behalf of the Independent Petroleum Association of 

America (IPAA), the International Association of Drilling Contractors (IADC), the 

International Association of Geophysical Contractors (IAGC), the National Stripper Well 

Association (NSWA), the Petroleum Equipment Suppliers Association (PESA), the US 

Oil & Gas Association (USOGA) and the following organizations: 

Arkansas Independent Petroleum and Royalty Owners Association 

California Independent Petroleum Association 

Coalbed Methane Association of Alabama 

Colorado Oil & Gas Association 

East Texas Producers & Royalty Owners Association 

Eastern Kansas Oil & Gas Association 

Florida Independent Petroleum Association 

Illinois Oil & Gas Association 

Independent Oil & Gas Association of New York 

Independent Oil & Gas Association of Pennsylvania 

Independent Oil & Gas Association of West Virginia 

Independent Oil Producers Agency 

Independent Oil Producers Association Tri-State 

Independent Petroleum Association of Mountain States 

Independent Petroleum Association of New Mexico 

Indiana Oil & Gas Association 

Kansas Independent Oil & Gas Association 

Kentucky Oil & Gas Association 

Louisiana Independent Oil & Gas Association 

Michigan Oil & Gas Association 

Mississippi Independent Producers & Royalty Association 

Montana Petroleum Association 

National Association of Royalty Owners 

Nebraska Independent Oil & Gas Association 

New Mexico Oil & Gas Association 

New York State Oil Producers Association 

North Dakota Petroleum Council 

Northern Alliance of Independent Producers 
2

Ohio Oil & Gas Association 

Oklahoma Independent Petroleum Association 

Panhandle Producers & Royalty Owners Association 

Pennsylvania Oil & Gas Association 

Permian Basin Petroleum Association 

Petroleum Association of Wyoming 

Southeastern Ohio Oil & Gas Association 

Tennessee Oil & Gas Association 

Texas Alliance of Energy Producers 

Texas Independent Producers and Royalty Owners Association 

Virginia Oil and Gas Association 

Wyoming Independent Producers Association 

Collectively, these groups represent the thousands of independent oil and natural gas 

explorers and producers that will be the most significantly affected by the proposed 

actions in these regulatory actions. Independent producers have the knowhow to drill and 

complete wells to depths beneath America’s USDWs. They drill about 90 percent of 

American oil and natural gas wells, produce over 65 percent of American oil, and more 

than 80 percent of American natural gas. 

In addition to the specific comments made herein, we support those comments submitted 

separately by the participants in these comments. 

These comments address three primary – and interrelated – concerns regarding the 

proposed federal regulatory scheme for CO2 GS wells. Our primary interest in this 

proposal to create a Class VI well category is its interaction with the use of CO2 for 

Enhanced Oil Recovery (EOR) under the Class II category. CO2 EOR offers both an 

existing technology and one with rapidly expanding application. In this context, the 

utilization of CO2 during EOR also provides for geologic sequestration. The decisions 

attendant to the Class VI proposal regarding the characterization of CO2 as a commercial 

chemical, a pollutant or a hazardous waste and regarding the federal regulatory structure 

and impacts on state primacy are interrelated and of significant concern. 

First, EPA properly notes that CO2 is used for EOR. The Department of Energy studied 

the potential for extended use of CO2 and reported that at least six oil producing basins

were potential EOR areas and that over 100 billion barrels of American oil could 

potentially be produced utilizing this technology (Undeveloped Domestic Oil Resources: 

The Foundation For Increased Oil Production And A Viable Domestic Oil Industry, 

February 2006). In fact, when CO2 EOR is used, a significant portion of the CO2 remains 

in the oil reservoir and effectively becomes geologically sequestered. With recognition 

of the goals of sequestration, those volumes will dramatically grow. At issue is whether 

the Class VI proposal would interfere with the EOR projects. We strongly urge EPA to 

assure that CO2 EOR and its attendant sequestration are not inhibited by the application 

of Class VI requirements to EOR operations. EPA recognizes that the Class VI 

requirements should not be applied to Class II CO2 EOR operations. We believe that the 

current process of shutting down oil field operations (site closure) effectively protects the 
3

environment under existing regulatory structure and do not support changes that would 

discourage EOR activities by imposing new requirements at the end of the reservoir’s 

life. Such requirements would effectively discourage CO2 EOR and result in less 

American oil production and less geologic sequestration of CO2. 

Second, these concerns similarly arise regarding the characterization of CO2 in the GS 

process. Currently, for EOR operations, CO2 is essentially treated as a commercial 

chemical. This characterization is significant because of the connotation that 

characterization as a pollutant or a hazardous waste implies. CO2 has not been declared 

either a pollutant or a hazardous substance under any federal law. Suggesting that it 

should be so classified (or even a treatment in policy that would indirectly point to it as 

such) as a part of this rulemaking implies a risk that is not consistent with its use in EOR. 

Indeed, implicit in such an implication is a liability threat that would chill further 

development of CO2 EOR with no incremental environmental benefit. However, we do 

recognize that compositional controls over what is injected may be necessary. This does 

not seem to be addressed in the draft rules. 

EPA has requested comments on the application of the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA or Superfund) to Class VI wells. 

Because of the interrelation of Class VI and Class II CO2 EOR operations, we offer the 

following observations. EPA states that CO2 is not a listed hazardous substance under 

Superfund – nor should it be. Rather EPA focuses on the potential for such substances to 

be included in a carbon capturing operation or for the presence of CO2 to react in GS. We 

do not believe that CO2 GS operations reasonably fall under the scope of Superfund. As 

long as compositional controls are specified, it is not a hazardous substance nor is it a 

pollutant or contaminant under the Superfund definition. Assuming that some other 

chemicals could be present and trigger Superfund’s application, UIC program operations 

fall under Superfund’s “federally permitted releases” limitations. This provision allows 

EPA to respond to a release or threat of a release assuring environmental protection. 

Recovery of the response costs would have to be sought under other federal or state laws 

rather than CERCLA. However, UIC operations under federal and state regulatory 

programs already provide for mechanisms to correct for failures and, in fact, these 

operations have proven to be very effective. Unfortunately, we believe that EPA’s focus 

on the potential application of Superfund creates the appearance of risks that will impede 

the development of GS wells. More importantly, as stated above, from our perspective 

the threat of new liability exposure can chill CO2 EOR and risk both billions of barrels of 

American oil production and a valuable and expedient mechanism for sequestration. 

A third area of concern relates to the federal-state regulatory relationship and the process 

for a state to obtain primacy for Class VI wells. The Interstate Oil and Gas Compact 

Commission (IOGCC) has been actively developing a regulatory framework for GS 

wells. We urge EPA to work closely and cooperatively with IOGCC to develop a sound 

regulatory framework. IOGCC member states have a long history of managing UIC 

operations, particularly those related to CO2 EOR. EPA needs to develop a structure that 

can be willingly sought by states. 
4

Class II wells provide an example of the risks that can arise. After enactment of the Safe 

Drinking Water Act (SDWA) in 1974, EPA developed a Class II regulatory structure that 

states were largely unwilling to adopt. Faced with a regulatory burden that EPA could 

not bear of permitting Class II wells throughout the country, Congress enacted 

amendments in 1980 to the SDWA to provide for states to obtain primacy for Class II 

wells based on equivalent environmental protection rather than adopting the EPA 

regulatory program itself. The Class VI program should not result in a similar outcome. 

The SDWA is structured with the presumption that states will obtain primacy for the UIC 

program and manage the wells that must be developed. While EPA suggests that a 

national structure may be necessary to address interstate consistency, this dynamic would 

pale compared to the challenge for EPA to attempt to develop the permitting expertise 

and daily regulatory management capability to run a national UIC Class VI program 

given the enormous volumes of captured carbon resulting from the aggressive global 

climate initiatives currently proposed. Moreover, the history of the IOGCC shows that it 

can serve as a multistate management operation. While it has been decades since it has 

functioned to allocate oil and natural gas production among states, IOGCC’s original role 

was managing oil and natural gas production to avoid wasted resources. This history 

works well in the context of coordinating the movement of captured carbon to state 

regulated UIC operations. Consequently, a close relationship between IOGCC and EPA 

in crafting a workable structure where states will seek primacy is essential for a positive 

national outcome. 

Conclusion 

We appreciate the opportunity to provide these comments. CO2 use in EOR offers 

America the opportunity to produce billions of barrels of oil that would otherwise be 

imported from foreign nations. These are existing American subsurface assets we should 

strive to optimize and America deserves these dual benefits of its own resources. EPA’s 

search for a regulatory structure to manage the geologic sequestration of CO2 in the 

context of carbon capture initiatives has resulted in its proposal to create a new UIC 

category – Class VI. This approach reflects the reality that GS wells do not fall readily 

under the current UIC classes. Because of CO2 use in EOR, EPA’s proposal must be 

balanced against any risk it poses to limit the use of CO2 EOR. We have identified three 

specific concerns in these comments; others may be similarly significant. However, we 

believe that these three items – the relationship between Class II operations and the new 

Class VI GS wells, the threat of new liability risks and the federal-state relationship – 

must be positively addressed to assure that American can effectively produce its oil 

resources. If there are questions regarding these comments or if additional information is 

required, please contact Lee Fuller at IPAA, 202-857-4722. 
Letter ID: 0179 

Commenter: Lee O. Fuller 

Organization: Independent Petroleum Association of America et al. 

Letter ID: 0179 Comment ID: 23609 Letter Lines: 27 to 82 

Comment Code: 1000 1. General and Administrative Comments 

Comment: These comments are filed on behalf of the Independent Petroleum Association of 

America (IPAA), the International Association of Drilling Contractors (IADC), 

the International Association of Geophysical Contractors (IAGC), the National 

Stripper Well Association (NSWA), the Petroleum Equipment Suppliers Association 

(PESA), the US Oil & Gas Association (USOGA) and the following organizations: 

Arkansas Independent Petroleum and Royalty Owners Association 

California Independent Petroleum Association 

Coalbed Methane Association of Alabama 

Colorado Oil & Gas Association 

East Texas Producers & Royalty Owners Association 

Eastern Kansas Oil & Gas Association 

Florida Independent Petroleum Association 

Illinois Oil & Gas Association 

Independent Oil & Gas Association of New York 

Independent Oil & Gas Association of Pennsylvania 

Independent Oil & Gas Association of West Virginia 

Independent Oil Producers Agency 

Independent Oil Producers Association Tri-State 

Independent Petroleum Association of Mountain States 

Independent Petroleum Association of New Mexico 

Indiana Oil & Gas Association 

Kansas Independent Oil & Gas Association 

Kentucky Oil & Gas Association 

Louisiana Independent Oil & Gas Association 

Michigan Oil & Gas Association 

Mississippi Independent Producers & Royalty Association 

Montana Petroleum Association 

National Association of Royalty Owners 

Nebraska Independent Oil & Gas Association 

New Mexico Oil & Gas Association 

New York State Oil Producers Association 

North Dakota Petroleum Council 

Northern Alliance of Independent Producers 

Ohio Oil & Gas Association 

Oklahoma Independent Petroleum Association 

Panhandle Producers & Royalty Owners Association 

1
Pennsylvania Oil & Gas Association 

Permian Basin Petroleum Association 

Petroleum Association of Wyoming 

Southeastern Ohio Oil & Gas Association 

Tennessee Oil & Gas Association 

Texas Alliance of Energy Producers 

Texas Independent Producers and Royalty Owners Association 

Virginia Oil and Gas Association 

Wyoming Independent Producers Association 

Collectively, these groups represent the thousands of independent oil and 

natural gas explorers and producers that will be the most significantly affected 

by the proposed actions in these regulatory actions. Independent producers have 

the knowhow to drill and complete wells to depths beneath America’s USDWs. They 

drill about 90 percent of American oil and natural gas wells, produce over 65 

percent of American oil, and more than 80 percent of American natural gas. 

In addition to the specific comments made herein, we support those comments 

submitted separately by the participants in these comments. 

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. 

Letter ID: 0179 Comment ID: 23610 Letter Lines: 84 to 93 

Comment Code: 1480 1.2.2.2.2 CO2 is not a pollutant 

Comment: These comments address three primary - and interrelated - concerns regarding the 

proposed federal regulatory scheme for CO2 GS wells. Our primary interest in 

this proposal to create a Class VI well category is its interaction with the use 

of CO2 for Enhanced Oil Recovery (EOR) under the Class II category. CO2 EOR 

offers both an existing technology and one with rapidly expanding application. 

In this context, the utilization of CO2 during EOR also provides for geologic 

sequestration. The decisions attendant to the Class VI proposal regarding the 

characterization of CO2 as a commercial chemical, a pollutant or a hazardous 

waste and regarding the federal regulatory structure and impacts on state 

primacy are interrelated and of significant concern. 

Individual Response: EPA clarifies that the GS rule does not address the status of CO2 as either 

a pollutant or a commodity. In addition, whether or not a fluid could be sold on the market as a 

commodity does not override EPA's authority under the SDWA to protect USDWs from 

endangerment. 

Under the SDWA, the injection of any "fluid" is subject to the requirements of the UIC program. 

"Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, 

2
whether in a semisolid, liquid, sludge, gas or other form or state, and it includes liquids, gases, 

and semisolids (i.e., slurries) injected into the subsurface. 

Under §146.82(a)(7), owners or operators of GS wells must characterize their CO2 stream as part 

of their permit application. If the injectate is determined to meet the definition of a hazardous 

waste under RCRA, and as defined in 40 CFR Part 261, the stringent UIC Class I hazardous 

waste requirements for injection of hazardous waste apply. Thus, injection of corrosive CO2 into 

Class VI wells is prohibited. In addition, owners or operators must periodically monitor their 

injectate throughout injection operations under §146.90(a). 

EPA stresses that the focus of the GS rule is to ensure that, where GS is deployed, it is conducted 

in a manner that protects USDWs. 

Please see EPA's response below for additional information on the final approach to transitioning 

permits from Class II to Class VI. 

Letter ID: 0179 Comment ID: 23611 Letter Lines: 95 to 113 

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: First, EPA properly notes that CO2 is used for EOR. The Department of Energy 

studied the potential for extended use of CO2 and reported that at least six oil 

producing basins were potential EOR areas and that over 100 billion barrels of 

American oil could potentially be produced utilizing this technology 

(Undeveloped Domestic Oil Resources: The Foundation For Increased Oil Production 

And A Viable Domestic Oil Industry, February 2006). In fact, when CO2 EOR is 

used, a significant portion of the CO2 remains in the oil reservoir and 

effectively becomes geologically sequestered. With recognition of the goals of 

sequestration, those volumes will dramatically grow. At issue is whether the 

Class VI proposal would interfere with the EOR projects. We strongly urge EPA to 

assure that CO2 EOR and its attendant sequestration are not inhibited by the 

application of Class VI requirements to EOR operations. EPA recognizes that the 

Class VI requirements should not be applied to Class II CO2 EOR operations. We 

believe that the current process of shutting down oil field operations (site 

closure) effectively protects the environment under existing regulatory 

structure and do not support changes that would discourage EOR activities by 

imposing new requirements at the end of the reservoir’s life. Such requirements 

would effectively discourage CO2 EOR and result in less American oil production 

and less geologic sequestration of CO2. 

Individual Response: EPA agrees that injection of CO2 for the primary purpose of enhancing 

oil and gas recovery should remain under the Class II Program. However, EPA believes that the 

nature and risks of CO2 injection for long term storage is different from Class II CO2 injection 

for ER, and that tailored requirements for GS wells are appropriate and necessary to protect 

USDWs from endangerment. For this reason, the Agency tailored UIC requirements for Class VI 

wells that address the general risks deep injection may pose to USDWs and specifically address 

3
the unique nature of CO2 GS (i.e., very large volumes, very long time-periods, and reservoir 

pressure conditions. 

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 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 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 

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: 0179 Comment ID: 23612 Letter Lines: 115 to 126 

Comment Code: 1480 1.2.2.2.2 CO2 is not a pollutant 

Comment Code: 1680 1.3.8 Don't overstate risk, don't stigmatize CO2 

Comment: Second, these concerns similarly arise regarding the characterization of CO2 in 

the GS process. Currently, for EOR operations, CO2 is essentially treated as a 

commercial chemical. This characterization is significant because of the 

connotation that characterization as a pollutant or a hazardous waste implies. 

CO2 has not been declared either a pollutant or a hazardous substance under any 

federal law. Suggesting that it should be so classified (or even a treatment in 

policy that would indirectly point to it as such) as a part of this rulemaking 

implies a risk that is not consistent with its use in EOR. Indeed, implicit in 

such an implication is a liability threat that would chill further development 

of CO2 EOR with no incremental environmental benefit. However, we do recognize 

that compositional controls over what is injected may be necessary. This does 

not seem to be addressed in the draft rules. 

Individual Response: Under §146.82(a)(7), owners or operators of GS wells must characterize 

their CO2 stream as part of their permit application. If the injectate is determined to meet the 

definition of a hazardous waste under RCRA, and as defined in 40 CFR Part 261, the stringent 

UIC Class I hazardous waste requirements for injection of hazardous waste apply. Thus, 

injection of corrosive CO2 into Class VI wells is prohibited. In addition, owners or operators 

4
must periodically monitor their injectate throughout injection operations under §146.90(a). 

EPA adds that the requirements of the GS rule are tailored to the nature of the CO2 itself and 

risks imposed by the injection of CO2, and do not address the status of CO2 as either a pollutant, 

commodity, or waste. 

Letter ID: 0179 Comment ID: 23613 Letter Lines: 128 to 150 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: EPA has requested comments on the application of the Comprehensive 

Environmental 

Response, Compensation, and Liability Act (CERCLA or Superfund) to Class VI 

wells. Because of the interrelation of Class VI and Class II CO2 EOR operations, 

we offer the following observations. EPA states that CO2 is not a listed 

hazardous substance under Superfund - nor should it be. Rather EPA focuses on 

the potential for such substances to be included in a carbon capturing operation 

or for the presence of CO2 to react in GS. We do not believe that CO2 GS 

operations reasonably fall under the scope of Superfund. As long as 

compositional controls are specified, it is not a hazardous substance nor is it 

a pollutant or contaminant under the Superfund definition. Assuming that some 

other chemicals could be present and trigger Superfund’s application, UIC 

program operations fall under Superfund’s "federally permitted releases" 

limitations. This provision allows EPA to respond to a release or threat of a 

release assuring environmental protection. Recovery of the response costs would 

have to be sought under other federal or state laws rather than CERCLA. However, 

UIC operations under federal and state regulatory programs already provide for 

mechanisms to correct for failures and, in fact, these operations have proven to 

be very effective. Unfortunately, we believe that EPA’s focus on the potential 

application of Superfund creates the appearance of risks that will impede the 

development of GS wells. More importantly, as stated above, from our perspective 

the threat of new liability exposure can chill CO2 EOR and risk both billions of 

barrels of American oil production and a valuable and expedient mechanism for 

sequestration. 

Individual Response: 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. 

5
Furthermore, EPA is promulgating the GS rule under the authority of the SDWA. To the extent 

the commenter is seeking interpretations of CERCLA and its related provisions, such as the 

definition of a federally permitted release, such interpretations are beyond the scope of this 

rulemaking. 

The UIC program Director has authority under SDWA §1423 to address potential compliance 

issues (e.g., potential releases that may endanger USDWs) resulting from injection violations in 

the unlikely event that a remedial response is necessary. Although EPA anticipates that the need 

for emergency or remedial actions at GS sites will be rare, the GS rule requires, at §146.94, that 

emergency and remedial response plans be developed and updated to address such events and 

that owners or operators demonstrate that financial resources are set aside to implement the plans 

if necessary, per §146.85. 

Regarding long term liability, 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. 

Letter ID: 0179 Comment ID: 23614 Letter Lines: 152 to 182 

Comment Code: 5600 2.11 Comments related to UIC Program primacy for Class VI wells 

6
Comment: A third area of concern relates to the federal-state regulatory relationship and 

the process for a state to obtain primacy for Class VI wells. The Interstate Oil 

and Gas Compact Commission (IOGCC) has been actively developing a regulatory 

framework for GS wells. We urge EPA to work closely and cooperatively with IOGCC 

to develop a sound regulatory framework. IOGCC member states have a long history 

of managing UIC operations, particularly those related to CO2 EOR. EPA needs to 

develop a structure that can be willingly sought by states. 

Class II wells provide an example of the risks that can arise. After enactment 

of the Safe Drinking Water Act (SDWA) in 1974, EPA developed a Class II 

regulatory structure that states were largely unwilling to adopt. Faced with a 

regulatory burden that EPA could not bear of permitting Class II wells 

throughout the country, Congress enacted amendments in 1980 to the SDWA to 

provide for states to obtain primacy for Class II wells based on equivalent 

environmental protection rather than adopting the EPA regulatory program itself. 

The Class VI program should not result in a similar outcome. The SDWA is 

structured with the presumption that states will obtain primacy for the UIC 

program and manage the wells that must be developed. While EPA suggests that a 

national structure may be necessary to address interstate consistency, this 

dynamic would pale compared to the challenge for EPA to attempt to develop the 

permitting expertise and daily regulatory management capability to run a 

national UIC Class VI program given the enormous volumes of captured carbon 

resulting from the aggressive global climate initiatives currently proposed. 

Moreover, the history of the IOGCC shows that it can serve as a multistate 

management operation. While it has been decades since it has functioned to 

allocate oil and natural gas production among states, IOGCC’s original role was 

managing oil and natural gas production to avoid wasted resources. This history 

works well in the context of coordinating the movement of captured carbon to 

state regulated UIC operations. Consequently, a close relationship between IOGCC 

and EPA in crafting a workable structure where states will seek primacy is 

essential for a positive national outcome. 

Individual Response: EPA acknowledges the expertise of IOGCC, and notes that it coordinated 

with IOGCC throughout the rulemaking process. EPA also 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. 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. 

EPA also understands that the CO2 plumes for large GS projects may cross State, Tribal, 

Territorial, or EPA Regional boundaries. The final GS rule, at §146.82(a)(2), requires the owner 

or operator to identify all State, Tribal, and Territorial boundaries within the AoR. Based on this 

7
information, the Director must provide written notification to all States, Tribes, and Territories to 

inform them of the permit application, as specified in §146.82(b), and ensure that they are 

involved in any necessary processes (e.g., development of the emergency and remedial response 

plan, as specified in §146.94). The Agency encourages transparency in the permitting process 

and anticipates that State-State/State-Tribal communication on GS permitting will facilitate 

information sharing and encourage safe, protective projects. 

Letter ID: 0179 Comment ID: 23615 Letter Lines: 184 to 202 

Comment Code: 1200 1.1 General comments about the rulemaking 

Comment: Conclusion 

We appreciate the opportunity to provide these comments. CO2 use in EOR offers 

America the opportunity to produce billions of barrels of oil that would 

otherwise be imported from foreign nations. These are existing American 

subsurface assets we should strive to optimize and America deserves these dual 

benefits of its own resources. EPA’s search for a regulatory structure to manage 

the geologic sequestration of CO2 in the context of carbon capture initiatives 

has resulted in its proposal to create a new UIC category - Class VI. This 

approach reflects the reality that GS wells do not fall readily under the 

current UIC classes. Because of CO2 use in EOR, EPA’s proposal must be balanced 

against any risk it poses to limit the use of CO2 EOR. We have identified three 

specific concerns in these comments; others may be similarly significant. 

However, we believe that these three items - the relationship between Class II 

operations and the new Class VI GS wells, the threat of new liability risks and 

the federal-state relationship - must be positively addressed to assure that 

American can effectively produce its oil resources. If there are questions 

regarding these comments or if additional information is required, please 

contact Lee Fuller at IPAA, 202-857-4722. 

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, including the discussion of the repermitting of Class II/EOR wells for GS, 

please see the final rule and preamble as well as the rulemaking docket. 

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