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.
#986622 

Testimony of Paul Pike, Ameren Corporation, 

ON BEHALF OF 

UTILITY SOLID WASTE ACTIVITIES GROUP 

Public Hearing on EPA’s Proposed Regulations for 

Geologic Sequestration of Carbon Dioxide under the UIC Program 

October 2, 2008 – Denver, Colorado 

Good [morning/afternoon]. My name is Paul Pike and I am a Strategic Analyst 

at Ameren Corporation headquartered in St. Louis, MO. I am here today on behalf of 

the Utility Solid Waste Activities Group, or “USWAG.” USWAG is an association of 

approximately 80 electric utility operating companies and trade associations throughout 

the country. I am the Chair of USWAG's Carbon Capture and Storage Task Force. 

USWAG will be submitting formal comments on the UIC proposal in November but I 

would like to take this opportunity to highlight a few important issues related to this 

rulemaking. 

1. Clearly, this rulemaking reflects a very important undertaking that will have 

significant practical and cost implications for the entire power industry. While the 

challenges and uncertainties associated with the development of large-scale 

commercial deployment of carbon capture and storage are significant, the utility 

industry certainly will be at the forefront of implementing these controls. 
-2- 

2. Given the direct impact this program will have on the electric utility industry, we 

appreciate EPA's goal of establishing certainty and transparency to the 

requirements for Class VI carbon dioxide injection. It is also crucial, however, for 

the regulations to reflect the challenges inherent in crafting controls for 

commercial CO2 injection and storage activities when such large-scale 

commercial operations are only at the nascent stage. The fundamental 

challenge confronting EPA in this rulemaking is to establish a cost-effective and 

environmentally sound regulatory program to cover a range of operations for 

which the technology will not be commercially deployed for a number of years. 

To meet this challenge and establish a workable regulatory framework over the 

coming decades for the long-term storage of carbon dioxide, EPA must craft the 

regulations with flexibility so that they may be fine-tuned as industry and 

regulators alike gain experience with large-scale carbon dioxide sequestration. 

3. Because information and technology related to carbon sequestration are sure to 

develop as more experience is gained, USWAG urges EPA to avoid blanket 

prohibitions or arbitrary absolutes in the Final Rule. We agree that the standard 

underlying the technical requirements for carbon dioxide sequestration wells is 

the protection of underground sources of drinking water. However, because it is 

difficult to know at this point what future technologies will be developed for 

injection and long-term storage of carbon dioxide in a manner that is protective of 

USDWs – and because there is sure to be demand for significant capacity for 

CO2 storage – EPA should not prematurely preclude injection in specific types of 

sites or through certain methods. The Final Rule should leave the door open for 
-3- 

a range of injection sites and methods – some of which are unrecognized, or 

even unknowable, at this point in time – provided that the ultimate objective of 

protecting USDWs is achieved. 

4. Of particular importance is the potential for liability under RCRA and CERCLA, 

including Natural Resource Damages, stemming from injection and sequestration 

of carbon dioxide. As EPA can surely appreciate, the potential for these openended liabilities will act as a serious deterrent to would-be Owners or Operators 

of Class VI injection wells. Simply put, EPA must mitigate the threat of potential 

RCRA and CERCLA liability to the extent possible in this rulemaking. 

One step that the Agency can take with respect to CERCLA is to ensure that final 

Class VI permits have the broadest possible reach – while remaining protective 

of USDWs – to maximize the protection offered by the federally permitted release 

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

dioxide injection all other CERCLA hazardous constituents likely to be contained 

in the CO2 stream, including those generated during capture and transport as 

well as any that could be formed in the injection zone as a result of the injection 

of carbon dioxide. Similarly, the scope of the authorized "permit zone” should be 

as broad as possible while remaining protective of USDWs. 

With respect to RCRA, it is premature to suggest that the captured and injected 

carbon dioxide is “discarded” and therefore possibly solid waste under RCRA. 

Carbon dioxide is a commodity used in a variety of processes; to the extent that 
-4- 

there is any possibility that carbon dioxide injection operations could be subject 

to RCRA controls, EPA should create an applicable exemption from RCRA under 

the well-established “contingent management” concept given that the UIC permit 

will ensure that the injected material is not mismanaged. Such an exclusion 

would be legally justified, consistent with the Agency’s past promulgation of 

conditional exclusion rules, and would make sound policy sense by removing a 

potentially significant regulatory barrier to the commercial development of carbon 

dioxide sequestration operations. 

The bottom line is that the potential for interaction with RCRA or liability under 

CERCLA must be mitigated to avoid significant delays and an overall chilling 

effect. USWAG recognizes that while there are some measures the Agency can 

take in the regulatory context to address these concerns, those measures may 

be limited. In the end, USWAG believes that the Agency should consider 

whether a legislative solution is necessary to eliminate these concerns; if so, we 

recommend that the EPA strongly support such a solution. 

5. Because state regulators have worked extensively with permitting UIC Class V 

experimental carbon dioxide wells and have familiarity with environmental, 

geologic, and financial concerns specific to a given region, adoption and 

implementation of the Class VI rules by the states will be crucial to the success of 

the Program. 
-5- 

6. Because of the widely varied characteristics and limitations of different carbon 

dioxide sequestration projects, it is essential to incorporate performance-based 

standards into the Final Rule, leading to a site-specific approach to requirements 

for Area of Review reevaluation and post-injection site care and closure periods. 

7. With respect to EPA’s suggestion that future guidance documents be issued to 

clarify requirements for financial responsibility, we stress that such guidance 

must be issued in keeping with OMB’s Good Guidance Practices bulletin. In 

addition, it is essential that self-insurance instruments remain available to 

Owners or Operators as a method of financial assurance for Class VI carbon 

dioxide geologic sequestration projects. 

8. The Final Rule must not make the Class VI permit application process overly 

burdensome or unrealistic by requiring detailed information that may not be 

available at the time of the initial application; instead, the Final Rule should allow 

for submission of updated information regarding a Class VI well and its AoR as 

that information becomes available. 

* * * * * 

On behalf of USWAG, thank you again for the opportunity to participate in this 

process and to present some of our views on this extremely important rulemaking effort. 
Letter ID: 0111 

Commenter: Paul Pike 

Organization: Ameren Corporation on behalf of USWAG 

Letter ID: 0111 Comment ID: 22401 Letter Lines: 30 to 56 

Comment Code: 1250 1.1.1.4 Flexibility is needed (performance-based standards) 

Comment: 2. Given the direct impact this program will have on the electric utility 

industry, we appreciate EPA's goal of establishing certainty and transparency to 

the requirements for Class VI carbon dioxide injection. It is also crucial, 

however, for the regulations to reflect the challenges inherent in crafting 

controls for commercial CO2 injection and storage activities when such largescale commercial operations are only at the nascent stage. The fundamental 

challenge confronting EPA in this rulemaking is to establish a cost-effective 

and environmentally sound regulatory program to cover a range of operations for 

which the technology will not be commercially deployed for a number of years. To 

meet this challenge and establish a workable regulatory framework over the 

coming decades for the long-term storage of carbon dioxide, EPA must craft the 

regulations with flexibility so that they may be fine-tuned as industry and 

regulators alike gain experience with large-scale carbon dioxide sequestration. 

3. Because information and technology related to carbon sequestration are sure 

to develop as more experience is gained, USWAG urges EPA to avoid blanket 

prohibitions or arbitrary absolutes in the Final Rule. We agree that the 

standard underlying the technical requirements for carbon dioxide sequestration 

wells is the protection of underground sources of drinking water. However, 

because it is difficult to know at this point what future technologies will be 

developed for injection and long-term storage of carbon dioxide in a manner that 

is protective of USDWs - and because there is sure to be demand for significant 

capacity for CO2 storage - EPA should not prematurely preclude injection in 

specific types of sites or through certain methods. The Final Rule should leave 

the door open for a range of injection sites and methods - some of which are 

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

ultimate objective of protecting USDWs is achieved. 

Individual Response: The Agency agrees that flexibility is important, and believes that the 

Class VI requirements balance site-specific flexibility with USDW protection. Rather than 

setting performance or technology-based standards for GS projects, EPA is adopting a flexible 

approach, where operators of GS projects would develop and implement site-specific plans for 

delineating the AoR, testing and monitoring the site, performing corrective action, and postinjection site care. EPA believes that the plans—which would be reviewed and approved by the 

Director and periodically updated throughout the life of the project—promote an ongoing 

dialogue between the operator and the Director that will encourage use of the most appropriate 

technologies for a particular project. 

1
EPA clarifies that the Class VI GS requirements are designed to ensure that, where deployed, GS 

is conducted in a manner that protects USDWs from endangerment. Encouraging investment in 

CCS projects and facilitating deployment are outside the scope of the GS rulemaking. 

To address the comment that the rule should accommodate future technological developments 

related to GS, EPA adds that it is using an adaptive approach to regulating GS under the UIC 

Program. Even after finalization of the GS regulation, EPA plans, every six years, to collect and 

review project data on GS research projects to determine whether the appropriate amount and 

types of information and appropriate documentation are being collected, and to determine if 

modifications to the requirements are appropriate or necessary. 

Letter ID: 0111 Comment ID: 22402 Letter Lines: 58 to 74 ; 88 to 94 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: 4. Of particular importance is the potential for liability under RCRA and 

CERCLA, including Natural Resource Damages, stemming from injection and 

sequestration of carbon dioxide. As EPA can surely appreciate, the potential for 

these openended liabilities will act as a serious deterrent to would-be Owners 

or Operators of Class VI injection wells. Simply put, EPA must mitigate the 

threat of potential RCRA and CERCLA liability to the extent possible in this 

rulemaking. 

One step that the Agency can take with respect to CERCLA is to ensure that final 

Class VI permits have the broadest possible reach - while remaining protective 

of USDWs - to maximize the protection offered by the federally permitted release 

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

dioxide injection all other CERCLA hazardous constituents likely to be contained 

in the CO2 stream, including those generated during capture and transport as 

well as any that could be formed in the injection zone as a result of the 

injection of carbon dioxide. Similarly, the scope of the authorized "permit 

zone" should be as broad as possible while remaining protective of USDWs. 

The bottom line is that the potential for interaction with RCRA or liability 

under CERCLA must be mitigated to avoid significant delays and an overall 

chilling effect. USWAG recognizes that while there are some measures the Agency 

can take in the regulatory context to address these concerns, those measures may 

be limited. In the end, USWAG believes that the Agency should consider whether a 

legislative solution is necessary to eliminate these concerns; if so, we 

recommend that the EPA strongly support such a solution. 

Individual Response: As described above, EPA has decided to initiate a separate proposed 

rulemaking specifically to examine the issue of RCRA applicability to CO2 streams being 

geologically sequestered, including the possible option of a conditional exemption from the 

RCRA requirements for CO2 GS in Class VI wells. 

2
The Agency acknowledges the commenter's concerns regarding the scope and possible impacts 

of CERCLA liability on CCS activities, however EPA notes that the GS rule is not promulgated 

under CERCLA, therefore the applicability of that statute will not be determined under the 

SDWA or the terms of the GS rule, but rather according to the CERCLA statute itself and any 

implementing regulations that may apply. To the extent the commenter is seeking interpretations 

of RCRA or CERCLA, such interpretations are beyond the scope of this rulemaking. 

Letter ID: 0111 Comment ID: 22403 Letter Lines: 58 to 64 ; 76 to 94 

Comment Code: 1630 1.3.3 RCRA/hazardous waste issues (seeking comment) 

Comment: 4. Of particular importance is the potential for liability under RCRA and 

CERCLA, including Natural Resource Damages, stemming from injection and 

sequestration of carbon dioxide. As EPA can surely appreciate, the potential for 

these openended liabilities will act as a serious deterrent to would-be Owners 

or Operators of Class VI injection wells. Simply put, EPA must mitigate the 

threat of potential RCRA and CERCLA liability to the extent possible in this 

rulemaking. 

With respect to RCRA, it is premature to suggest that the captured and injected 

carbon dioxide is "discarded" and therefore possibly solid waste under RCRA. 

Carbon dioxide is a commodity used in a variety of processes; to the extent that 

there is any possibility that carbon dioxide injection operations could be 

subject to RCRA controls, EPA should create an applicable exemption from RCRA 

under the well-established "contingent management" concept given that the UIC 

permit will ensure that the injected material is not mismanaged. Such an 

exclusion would be legally justified, consistent with the Agency’s past 

promulgation of conditional exclusion rules, and would make sound policy sense 

by removing a potentially significant regulatory barrier to the commercial 

development of carbon dioxide sequestration operations. 

The bottom line is that the potential for interaction with RCRA or liability 

under CERCLA must be mitigated to avoid significant delays and an overall 

chilling effect. USWAG recognizes that while there are some measures the Agency 

can take in the regulatory context to address these concerns, those measures may 

be limited. In the end, USWAG believes that the Agency should consider whether a 

legislative solution is necessary to eliminate these concerns; if so, we 

recommend that the EPA strongly support such a solution. 

Individual Response: EPA received many comments regarding the applicability of the RCRA 

regulations and statute to CO2 streams that are geologically sequestered under the final Class VI 

UIC well requirements. As a result, EPA has decided to initiate a separate proposed rulemaking 

specifically to examine the issue of RCRA applicability to CO2 streams being geologically 

sequestered, including the possible option of a conditional exemption from the RCRA 

requirements for CO2 GS in Class VI wells. EPA will consider these comments as part of its 

3
development of that proposal. The Agency will consider issues particular to RCRA in the context 

of that separate rulemaking, and recommends that the commenter read that proposed rule when it 

is published. The Agency notes that commenters who wish to submit comments on the RCRA 

proposal will need to do so during the comment period for that rule. Finally, EPA also notes that 

the final GS rule, which adds new regulations for Class VI wells under the Safe Drinking Water 

Act (SDWA), is not making any changes to the RCRA regulations. Under the final GS rule, 

owners or operators will need to determine whether the CO2 stream is hazardous under EPA’s 

RCRA regulations, and if so, any injection of the hazardous CO2 stream may only occur in a 

Class I hazardous waste injection well. 

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. 

EPA adds that promoting the use of GS is outside the scope of the GS rule. Rather, the purpose 

of the GS regulation is to ensure that, where deployed, GS is conducted in a manner that protects 

USDWs from endangerment. Furthermore, EPA is promulgating the GS rule under the authority 

of the SDWA. To the extent the commenter is seeking interpretations of RCRA or CERCLA, 

such interpretations are beyond the scope of this rulemaking. 

Letter ID: 0111 Comment ID: 22404 Letter Lines: 96 to 100 

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

Comment: 5. Because state regulators have worked extensively with permitting UIC Class V 

experimental carbon dioxide wells and have familiarity with environmental, 

geologic, and financial concerns specific to a given region, adoption and 

implementation of the Class VI rules by the states will be crucial to the 

success of the Program. 

Individual Response: EPA agrees with commenters on the importance of states having primacy 

for GS wells given the variety of geologic settings in which GS will be applied. EPA recognizes 

that State, Tribal, Territorial, and DI UIC Program Directors are in the best position to evaluate 

the unique issues related to well depth, geology, and hydrogeology that are posed by a Class VI 

well. Some degree of flexibility is needed for Class VI wells because each decision made will be 

site-specific and conditions will differ from state to state. The GS rule balances the need for 

these site-specific decisions with the need for minimum Federal requirements to ensure national 

consistency while ensuring the protection of USDWs. 

4
The Agency believes that it is important for states to use their unique efficiencies to promote 

adoption of this burgeoning and important technology, while assuring that USDWs are protected 

from endangerment through the UIC regulatory framework. EPA encourages states to accept 

primacy for Class VI, and believes that, due to the importance of implementing an effective, 

comprehensive, and seamless CCS program, States should be provided the flexibility to obtain 

primacy for Class VI only. 

However, given the potential for CCS (encompassing capture, transportation, and geologic 

sequestration) to be an important part of a national priority to address climate change, EPA 

believes that providing states the flexibility to obtain primacy for Class VI wells independently 

of other well classes can help foster effective management of CCS. EPA believes that allowing 

independent Class VI primacy may encourage states to take responsibility for implementation of 

Class VI regulations and provide for a more comprehensive approach to managing CCS projects 

by promoting the integration of GS activities under SDWA into a broader framework for 

managing CCS. Furthermore, GS operations involve ancillary activities (e.g., pipeline 

operations, pore space ownership, land use rights, and surface access) for which states can call 

upon other authorities that exist at the state level (but outside UIC authority) to provide a more 

comprehensive CCS management approach. The Agency will allow independent primacy for 

Class VI wells under §145.1(i) of the final GS rule. 

Letter ID: 0111 Comment ID: 22405 Letter Lines: 102 to 106 

Comment Code: 1250 1.1.1.4 Flexibility is needed (performance-based standards) 

Comment Code: 3500 2.2.3 Area of Review Reevaluation (seeking comment) 

Comment Code: 5000 2.8 Proposed Well Plugging and Post-Injection Site Care Requirements 

Comment: 6. Because of the widely varied characteristics and limitations of different 

carbon dioxide sequestration projects, it is essential to incorporate 

performance-based standards into the Final Rule, leading to a site-specific 

approach to requirements for Area of Review reevaluation and post-injection site 

care and closure periods. 

Individual Response: The post-injection site care requirements in the final GS rule, as specified 

in §146.93(b), incorporate a combination of a fixed timeframe and a performance standard 

approach. The GS rule offers owners or operators flexibility regarding the duration of the PISC 

timeframe by: (1) allowing the Director discretion to shorten or lengthen the PISC timeframe 

during the PISC period based on site-specific data, pursuant to requirements at §146.93(b); or (2) 

affording the Director discretion to allow a Class VI well owner or operator to demonstrate, 

based on substantial data during the permitting process, that an alternative PISC timeframe may 

be appropriate if it ensures non-endangerment of USDWs pursuant to requirements at 

§146.93(c). 

EPA believes that a default post-injection site care timeframe of 50 years, with flexibility to 

adjust the timeframe for a limited number of GS projects during the permitting process where 

substantial data exists to demonstrate that an alternative timeframe would be protective of 

USDWs, or based on data collected during the PISC period, is appropriate to address the range of 

5
sites where GS is anticipated to occur, to accommodate site-specific circumstances and various 

geologic conditions, and addresses commenters’ concerns, while ensuring USDW protection. 

Both approaches will utilize site-specific data, and be based on pressure monitoring and USDW 

impacts. 

EPA is developing guidance to assist owners or operators in evaluating well plugging, postinjection site care, and site closure requirements of §146.92 and §146.93. Additionally, the 

guidance will assist Directors in evaluating proposed well plugging plans and post-injection site 

care and site closure plans under §146.92 and §146.93. The guidance describes recommended 

approaches for how an owner or operator could plug injection and monitoring wells; perform 

post-injection monitoring; demonstrate the appropriateness of an alternative post-injection site 

care time frame; demonstrate non endangerment; and perform site closure activities. The 

guidance will be available on EPA's web site, at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

In response to comments about AoR evaluation, EPA disagrees that the GS regulation should 

include performance-based standards for AoR calculation. However, EPA believes that 

consideration of site-specific conditions is appropriate for the AoR calculation and reevaluation 

process. EPA believes that the flexibility incorporated into the AoR and corrective action plans 

and the provision for AoR reevaluation as required at §146.84(e) provide for an ongoing review 

of the site and a dialogue between the Director and the owner or operator to ensure that the most 

appropriate modeling and corrective action technologies are used to protect USDWs from 

endangerment. 

Letter ID: 0111 Comment ID: 22406 Letter Lines: 108 to 113 

Comment Code: 5430 2.9.1 Comments on proposed financial responsibility requirements (40 

CFR 146.85) 

Comment: 7. With respect to EPA’s suggestion that future guidance documents be issued to 

clarify requirements for financial responsibility, we stress that such guidance 

must be issued in keeping with OMB’s Good Guidance Practices bulletin. In 

addition, it is essential that self-insurance instruments remain available to 

Owners or Operators as a method of financial assurance for Class VI carbon 

dioxide geologic sequestration projects. 

Individual Response: EPA will retain the use of self-insurance as an instrument for financial 

responsibility for GS wells. EPA is developing guidance that describes the types of financial 

instruments, including self insurance, which owners or operators can use to meet financial 

responsibility requirements for GS wells. The financial responsibility guidance will include 

considerations for Directors regarding how to evaluate the appropriateness of a specific financial 

responsibility instrument for a specific project. EPA notes that directors may disallow certain 

instruments. The guidance will be available on EPA's website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

6
EPA plans to take OMB's Good Guidance Manual into consideration as financial responsibility 

guidance is developed. OMB's Good Guidance Manual establishes policies and procedures for 

the development, issuance, and use of significant guidance documents by Executive Branch 

departments and agencies. 

Letter ID: 0111 Comment ID: 22407 Letter Lines: 115 to 119 

Comment Code: 2400 1.8 Comments on EPA's adaptive rulemaking process 

Comment: 8. The Final Rule must not make the Class VI permit application process overly 

burdensome or unrealistic by requiring detailed information that may not be 

available at the time of the initial application; instead, the Final Rule should 

allow for submission of updated information regarding a Class VI well and its 

AoR as that information becomes available. 

Individual Response: EPA believes that the permitting requirements for GS wells at §146.82 

are appropriate. The extensive data on the geologic site, AoR evaluation, and testing of the well 

during drilling that owner or operators must submit are appropriate to ensure that permitting 

authorities have the necessary information to evaluate whether a specific site will allow safe 

injection of CO2 and ensure USDW protection from endangerment. 

EPA recognizes that not all of the information listed at §146.82 of the proposed regulation would 

be available at the time the owner or operator develops their initial permit application. Therefore, 

EPA has revised this subpart so that the final regulation specifies separate requirements for 

information to be submitted with the permit application and before well construction is approved 

at §146.82(a), and information to be submitted before operation of the well is authorized, at 

§146.82(c). 

7