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 P aul Pike and I am a Strategic Analyst

at Ameren Corporatio n 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 co mpanies and trade associations throughout

the country. I am the C hair of USWAG's Carbon Capt ure 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 highli ght 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 captur e and storage are significant, the utility

industry certainly will be at the forefr ont 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 establishi ng certainty and transparency to the

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

the regulations to reflect the chall enges inherent in crafting controls for

commercial CO 2 injection and storage activities when such large-scale

commercial operations are only at t he nascent stage. The fundamental

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

environmentally sound regul atory program to cover a range of operations for

which the technology will not be commercia lly 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 experi ence with large-scale carbon dioxide sequestration.

3. Because information and technology rela ted to carbon sequestration are sure to

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

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

underlying the technical requirements for carbon dioxide sequestration wells is

the protection of underground sources of drin king 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

CO 2 storage – EPA should not prematurely prec lude 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 potent ial for liability under RCRA and CERCLA,

including Natural Resource Damages, st emming from injection and sequestration

of carbon dioxide. As EPA can surely appreciate, the potential for these openended liabilities will act as a serious dete rrent 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 res pect to CERCLA is to ensure that final

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

of USDWs – to maximize the protection o ffered by the federally permitted release

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

dioxide injection all other CERCLA hazar dous constituents likely to be contained

in the CO 2 stream, including those generated during capture and transport as

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

of carbon dioxide. Simila rly, the scope of the authoriz ed "permit zone” should be

as broad as possible while remain ing protective of USDWs.

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

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

Carbon dioxide is a commodity used in a vari ety of processes; to the extent that-4- there is any possibility that carbon diox ide injection operati ons could be subject

to RCRA controls, EPA should create an app licable 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 Agen cy’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 sign ificant delays and an overall chilling

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

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

be limited. In the end, USWAG believe s 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 t he states will be crucial to the success of

the Program.-5- 6. Because of the widely varied characteri stics and limitations of different carbon

dioxide sequestration projects, it is e ssential to incorporate performance-based

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

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

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

clarify requirements for financ ial responsibility, we st ress that such guidance

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

addition, it is essential that self-ins urance 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 Cla ss VI permit application process overly

burdensome or unrealistic by requiring det ailed information that may not be

available at the time of the initial applic ation; instead, the Fi nal Rule should allow

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

that information becomes available.

* * * * *

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

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

Commenter: Paul Pike Organization: Ameren Corpor ation 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 (p erformance-based standards)

Comment: 2. Given the direct impact this program will have on the electric utility industry, we appreciate EPA's goal of esta blishing certainty and transparency to the requirements for Class VI carbon dioxi de 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 rulema king 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 wo rkable 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 fi ne-tuned as industry and regulators alike gain expe rience with large-scale car bon dioxide sequestration.

3. Because information and technology rela ted to carbon sequestration are sure to develop as more experience is gain ed, USWAG urges EPA to avoid blanket prohibitions or arbitrary absolutes in the Final Rule. We agree that the standard underlying the technical requi rements for carbon dioxide sequestration wells is the protection of underground s ources of drinking water. However,

because it is difficult to know at this point what future technologies will be developed for injection and long-term stor age of carbon dioxide in a manner that is protective of USDWs - and because ther e 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 s ites 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 fl exibility 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 th e site, performing corrective action, and postinjection site care. EPA believes that the plan s—which would be reviewed and approved by the Director and periodically updated throughout the life of th e project—promote an ongoing dialogue between the operator and the Director th at will encourage use of the most appropriate technologies for a pa rticular project.

1EPA clarifies that the Class VI GS requirements are designed to ensure that, where deployed, GS is conducted in a manner that protects USDWs fr om endangerment. Encouraging investment in CCS projects and facilitating deployment ar e 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 ad aptive approach to regulating GS under the UIC Program. Even after finalization of the GS regulat ion, 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 documenta tion 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 Dama ges, stemming from injection and sequestration of carbon dioxide. As EPA can surely appreciate, the potential for these openended liabilities will act as a se rious deterrent to would-be Owners or Operators of Class VI injection we lls. Simply put, EPA must mitigate the threat of potential RCRA and CERCLA liabil ity to the extent possible in this rulemaking.

One step that the Agency can take with resp ect to CERCLA is to ensure that final Class VI permits have the broadest possi ble 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 gene rated during capture and transport as well as any that could be formed in th e injection zone as a result of the injection of carbon dioxide. Similarly, th e scope of the authorized "permit zone" should be as broad as possible wh ile remaining protective of USDWs.

The bottom line is that the potential fo r 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 addr ess 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 str ongly support such a solution.

Individual Response: As described above, EPA has decide d 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.

2The Agency acknowledges the commenter's concer ns regarding the scope and possible impacts of CERCLA liability on CCS activi ties, however EPA notes that the GS rule is not promulgated under CERCLA, therefore the appli cability 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 ex tent 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 i ssues (seeking comment)

Comment: 4. Of particular importance is the potential for liability under RCRA and CERCLA, including Natural Resource Dama ges, stemming from injection and sequestration of carbon dioxide. As EPA can surely appreciate, the potential for these openended liabilities will act as a se rious deterrent to would-be Owners or Operators of Class VI injection we lls. Simply put, EPA must mitigate the threat of potential RCRA and CERCLA liabil ity 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 theref ore possibly solid waste under RCRA. Carbon dioxide is a commodity used in a vari ety of processes; to the extent that there is any possibility that carbon di oxide injection operations could be subject to RCRA controls, EPA should create an applicable exemption from RCRA

under the well-established "c ontingent management" concept given that the UIC permit will ensure that the injected ma terial is not mismanaged. Such an exclusion would be legally justified, consistent w ith the Agency’s past promulgation of conditional exclusion rule s, and would make sound policy sense by removing a potentially significant re gulatory barrier to the commercial development of carbon dioxide sequestration operations.

The bottom line is that the potential fo r 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 addr ess 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 str ongly support such a solution.

Individual Response: EPA received many comments regardi ng the applicability of the RCRA regulations and statute to CO2 st reams that are geologically seque stered under the final Class VI UIC well requirements. As a result, EPA has deci ded to initiate a sepa rate proposed rulemaking specifically to examine the issue of RCRA appl icability 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

3development of that proposal. The Agency will consider issues pa rticular 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 comment ers who wish to submit comments on the RCRA proposal will need to do so during the comment pe riod for that rule. Finall y, EPA also notes that the final GS rule, which adds ne w regulations for Class VI wells under the Safe Drinking Water Act (SDWA), is not making any changes to th e RCRA regulations. Under the final GS rule, owners or operators will need to determine wh ether 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 substan ce 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 th e composition of the specific CO2 stream and the environmental media in which it is stored (e.g., soil or gr ound water). CERCLA exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain “feder ally 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 we ll which are outside the scope of the Class VI permit.

EPA adds that promoting the use of GS is outsi de the scope of the GS rule. Rather, the purpose of the GS regulation is to ensu re that, where deployed, GS is c onducted 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 th e 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 spec ific 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 settin gs in which GS will be applied. EPA recognizes that State, Tribal, Territorial, a nd DI UIC Program Direct ors are in the best position to evaluate the unique issues related to well depth, geol ogy, and hydrogeology that are posed by a Class VI well. Some degree of flexibility is needed for Cl ass VI wells because each decision made will be site-specific and conditions will di ffer 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.

4The Agency believes that it is important for stat es to use their unique e fficiencies to promote adoption of this burgeoning and important tec hnology, 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 (encom passing capture, transportation, and geologic sequestration) to be an important part of a na tional 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 res ponsibility for implementation of Class VI regulations and provide for a more co mprehensive approach to managing CCS projects by promoting the integration of GS activities under SDWA in to 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 leve l (but outside UIC author ity) 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 (p erformance-based standards)

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

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

Comment: 6. Because of the widely varied charac teristics and limitations of different carbon dioxide sequestration projects, it is essential to incorporate performance-based standards into the Fi nal Rule, leading to a site-specific approach to requirements for Area of Revi ew reevaluation and pos t-injection site care and closure periods.

Individual Response: The post-injection site care requirement s in the final GS rule, as specified in §146.93(b), incorporate a combination of a fi xed 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 discretio n 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 Cl ass VI well owner or operator to demonstrate, based on substantial data during the permitting pro cess, that an alternative PISC timeframe may be appropriate if it ensures non-endangermen t of USDWs pursuant to requirements at §146.93(c). EPA believes that a default post-injection site car e 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

5sites where GS is anticipated to occur, to ac commodate site-specific circumstances and various geologic conditions, and addre sses commenters’ concerns, wh ile ensuring USDW protection. Both approaches will utilize si te-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 propo sed well plugging plans a nd post-injection site care and site closure plans under §146.92 a nd §146.93. The guidance describes recommended approaches for how an owner or operator coul d plug injection and m onitoring 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/groundwat er/uic/wells_se questration.cfm.

In response to comments about AoR evaluation, EPA disagrees that the GS regulation should include performance-based standards for Ao R calculation. However, EPA believes that consideration of site-specific conditions is appropriate for th e AoR calculation and reevaluation process. EPA believes that the flexibility incorp orated into the AoR and corrective action plans and the provision for AoR reevaluation as requi red at §146.84(e) provide for an ongoing review of the site and a dialogue between the Director and the owner or ope rator to ensure that the most appropriate modeling and correc tive action technologies are us ed 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 financia l responsibility requirements (40 CFR 146.85)

Comment: 7. With respect to EPA’s suggestion that fu ture guidance documents be issued to clarify requirements for financial respons ibility, 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 instrument s remain available to Owners or Operators as a method of fi nancial assurance for Class VI carbon dioxide geologic seque stration projects.

Individual Response: EPA will retain the use of self-insurance as an instrument for financial responsibility for GS wells. EPA is developing gu idance that describes th e types of financial instruments, including self insu rance, which owners or operato rs can use to meet financial responsibility requirements for GS wells. The fina ncial responsibility guidance will include considerations for Directors regarding how to evaluate the appropr iateness of a specific financial responsibility instrument for a specific project. EPA notes that direct ors may disallow certain instruments. The guidance will be available on EPA's website at http://water.epa.gov/type/groundwat er/uic/wells_se questration.cfm.

6EPA plans to take OMB's Good Guidance Manual in to consideration as financial responsibility guidance is developed. OMB's Good Guidance Manua l establishes policies and procedures for the development, issuance, and use of signi ficant 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 Cla ss VI permit application process overly burdensome or unrealistic by requiring deta iled information that may not be available at the time of the initial appli cation; instead, the Final Rule should allow for submission of updated informati on 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 in formation to evaluate whether a specific site will allow safe injection of CO2 and ensure US DW 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 fina l regulation specifies se parate requirements for information to be submitted with the permit appl ication and before well construction is approved at §146.82(a), and information to be submitted befo re operation of the we ll is authorized, at §146.82(c).

7