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.
Nor1h 

NACCSA 

I csrbon c.oam. a Stono~ Auod.aon 

DEC 2 3 2008 

The Atlantic Building " 950 F Street, NW " Washington, D.C. 20004 

202.654 .4860 " 202.756.3333 fax " www.naccsa.org 

COMMENTS OF THE NORTH AMERICAN CARBON CAPTURE AND STORAGE 

ASSOCIATION (NACCSA) 

ON THE ENVIRONMENTAL PROTECTION AGENCY'S 

PROPOSED RULEMAKING UNDER THE SAFE DRINKING WATER ACT'S UNDERGROUND 

INJECTION CONTROL PROGRAM FOR CARBON DIOXIDE GEOLOGIC SEQUESTRATION 

WELLS 

DOCKET ID NO. EPA-HQ-OW-2008-0390 

December 23, 2008 

The North American Carbon Capture and Storage Association (NACCSA) submits these comments 

on the Environmental Protection Agency (EPA or Agency)'s proposed regulations for the injection and 

geologic storage (GS) of carbon dioxide (C02) under the authority of the Safe Drinking Water Act 

(SDWA)'s underground injection control (UIC) program, issued in July 2008 (Docket ID No. EPA-HQ-OW2008-0390) . 

I. About NACCSA 

NACCSA is a nonprofit organization of companies in North America that support the development of 

a sustainable carbon dioxide capture and storage (CCS) industry in the United States and Canada. The 

members of NACCSA include companies' involved in developing commercial processes to mitigate 

greenhouse gas emissions through CCS, and specialists engaged in the technical, commercial, financial and 

developmental aspects of CCS activities in both the U.S. and Canada. As we noted in our oral and written 

testimony presented at EPA's September 30, 2008 public hearing on the proposed rules, policymakers and 

' NACCSA members are the American Petroleum Institute; Arch Coal Inc. ; Blue Source LLC; Halliburton; International Paper; 

Keener Oil & Gas Company; Kinder Morgan; Occidental Petroleum Corporation ; Peabody Energy ; SandRidge Energy; 

Schlumberger Carbon Services; Shell; and Tenaska. 

~' . . DEC 23 2008 
companies are, and should be, like the members of NACCSA, interested in CCS technology because it holds 

significant promise as a tool to manage C02 emissions as well as to maximize energy recovery. EPA's 

proposed regulations are a needed first step toward establishing a stable, predictable, and workable 

regulatory framework that appropriately encourages the development of a CCS industry to both safely 

mitigate GHG emissions and maximize energy production . 

11. General Principles Applicable To EPA's GS Regulatory Effort 

As legislative and regulatory efforts to address climate change accelerate, it is critically important 

that policymakers follow EPA's lead by continuing to recognize the central role that CCS can play as a 

mitigation tool. As noted in the Preamble to EPA's proposed rule, CCS holds the promise of storing large 

volumes of carbon dioxide in geologic formations such as deep saline formations, depleting and depleted oil 

& natural gas reservoirs, unmineable coal seams and similar geologic structures . Because CCS has the 

potential to be applied in a wide range of fossil fuel production processes, NACCSA believes that CCS 

should be recognized as an emissions mitigation measure under any climate regime. Additionally, NACCSA 

members view carbon dioxide as a central component in the enhanced recovery of oil and natural gas and 

recognize that it is capable of being responsibly stored as part of this process. 

Recognizing the significance of the initiative displayed by EPA in proposing regulations for injection 

and storage of C02 carbon dioxide under the Safe Drinking Water Act's UIC program, NACCSA appreciates 

the opportunity to provide input on which aspects of the proposed rules are favorable, and for which aspects 

of the proposed rules EPA should consider possible changes, in light of the rulemaking's dual goals of 

improving the chances of achieving commercial viability for CCS while also preventing potentially 

undesirable impacts to drinking water resources. NACCSA's general areas of focus in this discussion 

include siting and secondary containment; monitoring/use of tracers; closure and post-injection site care; 

financial assurance; grandfathering; state primacy; and potential issues arising under other environmental 

laws. Comments on specific aspects of the Agency's proposed rules within these general focus areas are set 

forth below. 
III. Specific Comments on the Proposed Regulations 

a. Executive Summary 

The primary areas of comment and a brief summary of NACCSA's comments within each area are 

listed below. 

" Siting/Secondary Containment: Injection above the lowermost USDW should not be categorically 

prohibited; further, any discretion vested in the UIC program director to require secondary 

containment should be explicitly bounded with appropriate criteria for its exercise. 

" Area of Review Reevaluation: NACCSA questions the inclusion of a requirement that the area of 

review by reevaluated at least every ten years. 

" Monitoring Provisions/Use of Tracers/Use of Down-Hole Shut-off Valves: NACCSA is opposed 

to imposition of mandatory requirements to use tracers; conduct surface air/soil gas monitoring. 

" Closure and Post-Injection Site Care: NACCSA urges the Agency to adopt a shorter default time 

period than the 50 year period currently proposed. Although a fair amount of certainty may be 

achieved through setting some default period of time for the post-injection site care period, the 

proposed 50 year default is both arbitrary and unjustifiably long. Further, while NACCSA supports 

the concept of a performance-based component, the rules should include specific and appropriate 

circumstances that the program director will consider in exercising any discretion in this regard . 

" Financial Assurance Provisions: NACCSA urges the Agency to revise the proposed financial 

assurance provisions, which are more stringent than those currently placed on Class I hazardous 

waste injection wells and, as proposed, present a number of practical problems for operators. 

" Grandfathering Provisions: The Agency should (1) expand the scope of available grandfathering 

beyond construction requirements and (2) allow grandfathering unless an examination of specified 

factors reveals that the project would be unsuitable for C02 storage. 

" Issues Related to State Primacy: States should be permitted to seek primacy for Class VI wells, 

even in the absence of primacy for other well classes. 

" Relationships with other Environmental Laws: The Agency should carefully consider any 

discussion of other environmental laws that it may desire to include in the Preamble to the rules in 

order to ensure that such discussion is necessary and does not hamper the successful 

commercialization of CCS. 

Other Issues for the Agency's Consideration: The Agency should ensure that nothing in the rule 

precludes C02-EOR operators from claiming "storage" at some future date. Additionally, NACCSA 

notes that because of the Agency's limited jurisdiction, issues related to long-term liability and 

property rights will remain to be resolved despite this rulemaking, and CCS projects may not go 

forward in the a~sence of such resolution. NACCSA encourages the Agency to continue seeking 

information i%&s regard and to support development of a complete regulatory scheme for CCS. 
b. Specific Comments 

1. Ban on Injection Above the Lowermost USDW 

The proposed regulations do not permit project operators to inject and store C02 above the lowermost 

formation containing a USDW. NACCSA believes that a categorical elimination of receiving formations is 

unnecessary and undesirable. Rather, the appropriateness of any given receiving formation-as with the 

bulk of issues related to the siting of projects-should be considered on a case-by-case basis in light of the 

geologic characteristics of a given project and based on the application of clear and appropriate parameters 

set forth in the rules . 

Categorically eliminating a set of potential receiving formations is simply unnecessary in light of the 

overall function of the UIC rules . As a general proposition, permit applicants must demonstrate that projects 

will not endanger USDWs; permit applicants for C02 injection and storage projects would be held to the 

same standard. The proposed rules would require permit applicants to demonstrate that the project will be 

sited in areas with a "suitable geologic system," consisting of an injection zone of sufficient areal extent, 

thickness, porosity, and permeability to receive the total anticipated volume of injectate, as well as a 

confining zone free of transmissive faults or fractures and sufficient to contain the injected stream and any 

displaced fluids, considering the proposed maximum pressures and volumes of injection, without fracturing . 

It is NACCSA's view that if the "suitable geologic system" contains confining zones above and below the 

injection formation that will not allow the endangerment of USDWs, injection above a USDW should be 

allowed because the system will still meet the groundwater protection requirements of the UIC program. 

The fact that permit applications would be considered based on site specific information would mean that the 

regulator could evaluate whether individual projects would be protective of groundwater regardless of their 

depth with respect to USDWs. 

Further, a blanket exclusion will hinder the ability of existing and possibly future Class I, II, and V 

projects to convert to Class VI projects, as the proposed grandfathering requirement is limited to well 

construction (as further discussed below), thus excluding projects that do not inject below the lowermost 

-4- 
USDW from the scope of potential grandfathering. Existing (and future) projects that do not inject beneath 

the lowermost USDW would seemingly be stranded, left with no ability to convert to Class VI GS projects. 

Such a risk greatly disincentivizes many projects that would otherwise be likely to go forward and would 

hamper commercialization of CCS. And creation of such a disincentive is unnecessary because the wells at 

issue would have been designed and constructed specifically with injection of C02 and the protection of 

USDWs in mind. 

While NACCSA acknowledges that EPA has raised for consideration the possibility of aquifer 

exemptions or the use of discretion to allow injection above the lowermost USDW in a given case, NACCSA 

submits that such a procedure would introduce increased complexity to the process with no corresponding 

increase in protection afforded to USDWs as compared to an approach under which no default limitations on 

siting exist and the merits of a proposed receiving formation are considered in the context of a particular 

project, using clearly identified and appropriate factors. And in the context of existing or proposed projects 

that may be seeking to later convert to Class VI wells, such provisions would create unnecessary uncertainty 

regarding the potential viability of projects going forward. 

Finally, a default limitation on injections to only those formations below the lowermost USDWcurrently in place only for Class I hazardous waste injection wells-is likely to create a public misimpression 

that C02 injection wells are analogous to hazardous waste injection wells and carry analogous risks. 

NACCSA urges EPA to consider the potential effects of each proposed regulation on public perception of 

CCS, as attaching unnecessary stigmas to CCS will do nothing to further its development or to protect 

USDWs. 

2. Secondary Containment 

Another area of concern related to siting involves the Agency's proposed grant of discretion to the 

UIC program director to require permit applicants to identify secondary containment/confining zones. VVhile 

NACCSA agrees with the Agency's current approach not to include a blanket secondary containment 

requirement (although, if secondary confining units exist with regard to a given project, they should be 

-5- 
included in site modeling, along with identification of any transmissive zones between the primary and 

secondary confining units), and, while a discretionary requirement for secondary containment is preferable to 

a blanket, universal requirement, any discretionary requirement that is imposed should be bounded by clear 

parameters for its use. The proposed rule, however, contains no such parameters. NACCSA urges the 

Agency to consider what parameters may be put in place to ensure protection of USDWs while providing 

some level of clarity for project operators and investors regarding under what circumstances such a 

requirement should be expected, as well as some degree of assurance that the "on paper" discretionary 

requirement will not lead to an "in practice" blanket requirement due to the lack of appropriately 

enumerated. 

Several points should be considered in determining whether any sort of requirement for secondary 

containment, including a discretionary requirement, should be imposed, as well as what parameters may be 

appropriately included in the final rule should the Agency choose to implement a discretionary requirement. 

They include the following: 

" Do better alternatives exist to protect USDWs? In any given case, the additional protection to 

USDWs that the Agency appears to believe secondary containment could provide likely may be better 

addressed through proper site selection and well-designed plans and procedures to detect and contain leakage 

from the primary containment system, rather than through imposing de facto limitations on the types of sites 

that may be used. If such requirements have already been satisfied, there is likely no need for secondary 

containment. 

" What public misconceptions may be created? Secondary containment is unprecedented under the 

UIC program, even for the injection of hazardous wastes under the Class I permitting scheme. Imposition of 

such a requirement on injection and storage of C02 suggests that such a project would be more dangerous 

than underground injection of a host of other materials, including hazardous wastes, or even than injection of 

C02 for purposes of EOR. The Agency should carefully consider the risk of creating unwarranted negative 
public perception posed by proposed requirements . In any given case, CCS technology can be safely 

employed absent any secondary containment requirements . 

3. Area of Review Reevaluation 

EPA's proposal would require that the owner or operator periodically reevaluate the AoR during the 

injection operation. Reevaluations would occur at a minimum fixed frequency, not to exceed 10 years, as 

agreed upon by the Director. We question the need for this requirement to be mandatory in light of the rule's 

extensive monitoring requirements. In the event that ongoing monitoring indicated a problem, appropriate 

action could be taken at that time without separately requiring a complete AoR reevaluation according to a 

pre-defined schedule. 

We recommend that EPA provide the AoR reevaluation is at the discretion of the Administration if 

the Administration determines that site-specific data, reservoir characteristics and/or monitoring or modeling 

data dictate that such a reevaluation would be warranted . 

4. Monitoring Provisions/Use of Tracers/Use of Down-Hole Shut-off Valves 

The proposed regulations would vest discretion in the program director to require the use of tracers 

and/or surface air/soil gas monitoring "to detect movement of C02 that could endanger a USDW." 

NACCSA is opposed to this proposed requirement for the reasons outlined below. 

The proposal raises potential issues regarding the scope of EPA's authority . The Preamble 

acknowledges that regulation of surface/atmospheric releases of C02 is outside the scope of the proposed 

rule and the Agency's jurisdiction under SDWA. The UIC program is designed to protect USDW`s from 

endangerment due to subsurface injection. The use of tracers combined with surface or soil monitoring is 

unlikely to be protective because by the time any tracers or C02 is detected in these zones it may have passed 

through all USDWs between the injection zone and the surface . 

NACCSA is also concerned that tracers are relatively untested in terms of leak detection capabilities 

and transport properties. Because there have been limited tests of tracers it is not clear how they interact 

with the subsurface and if they are conservatively transported with C02. Further, tracers may also pose 

-7- 
independent safety concerns for project operators, workers, and other potentially affected individuals and the 

environment. 

Finally, the proposed regulations also would require the use of automatic down-hole shut-off systems. 

We question the need for such a mandatory requirement because in some applications such systems could 

cause operational problems and add risk during maintenance operations . These risks seem to outweigh the 

benefits of the use of such systems in GS applications . Moreover, such systems are not required in other 

applications, such as natural gas which arguably pose greater hazards than the storage of carbon dioxide. 

Instead of making the use of automatic down-hole shut-off systems mandatory, the Administrator should be 

given discretion to require their installation and use when site-specific data and reservoir characteristics 

indicate that the benefits of requiring such systems outweigh the risks of their use. 

5. Closure and Post-Injection Site Care 

An additional key area of concern for NACCSA is the proposed rule's provision imposing a 50 year 

default time period following cessation of injection activities to serve as the closure and post-injection site 

care ("PISC") period, throughout which monitoring activities and corresponding financial assurance 

requirements would continue. Under the proposal, the program director would have discretion to adjust the 

time period upward or downward, with the effect that the PISC period would continue "until the geologic 

sequestration project no longer poses an endangerment to USDWs." 

NACCSA understands that a fair amount of certainty may be achieved through setting some default 

period of time for the PISC. Establishing such a lengthy default time period also places unnecessary burdens 

on owners and operators who can clearly establish that no threat to USDWs will be posed within a shorter 

time frame than whatever default may be established. 

NACCSA urges the Agency to adopt a performance-based approach more in keeping with the actual 

risks posed by CCS projects. NACCSA believes that the site specific nature of C02 storage projects will 

require each project to be judged on its own merit. If a project can show, at any time after the cessation of 

injection, that there is sufficiently small risk of endangerment to USDWs, monitoring should no longer be 

-8- 
required. Given that under the proposed rule, the program director would retain discretion to lengthen or 

shorten the PISC period as necessary to protect USDWs, a performance based approach is in keeping with 

the spirit of the draft rule. Furthermore, a performance based approach is more in keeping with the realty of 

potential risks associated with C02 storage would minimize disincentivization of CCS projects while 

providing an equivalent degree of protection for USDWs. NACCSA believes that the performance-based 

approach, currently proposed by EPA as an element of the rule, would be beneficial to project operators and 

investors and for the protection of USDWs. The final rule should include specific and appropriate 

circumstances that the program director will consider in exercising discretion in this regard, so that project 

operators and investors have a clear idea of the bar they will be required to meet in order to close out the 

PISC period. 

6. Financial Assurance Provisions 

NACCSA is also concerned with the nature and scope of the proposed rule's financial assurance 

provisions, which would require that the permittee, at the time of permitting, demonstrate financial assurance 

for activities ranging from corrective action and injection well plugging to post-injection site care and well 

closure, as well as for emergency and remedial response activities to address movement of formation or 

injection fluids that may endanger an underground source of drinking water-activities that, as contemplated 

under the proposed rule, could span 50 years or more. 

First, the scope of the proposed financial assurance requirements goes beyond what is currently in 

place for any class of wells under the UIC program, even those injecting hazardous wastes. Given that C02 

has been safely injected under the UIC program for decades, it is relatively clear that its physical and 

chemical properties are not sufficiently unique-and that they do not pose a sufficiently unique potential 

threat to USDW-to warrant such heightened treatment under the UIC program. And while the Agency 

properly considers any unique threats that may be posed by the long-term nature of the storage at issue in a 

CCS project, the risk curve associated with a properly sited and managed project begins to fall off rapidly 

over time and well before the Agency's proposed financial assurance provisions would come to an end. In 

-9- 
any event, any financial assurance requirements that may be imposed should not go beyond those currently 

in place under the UIC program. 

Further concerns arise from a cost certainty perspective. Financial assurance requirements depend on 

the ability to obtain reliable cost estimates for the activity to be assured . If an accurate cost estimate cannot 

be developed for the activity at issue, the financial assurance itself cannot be assumed to be adequately 

protective or not unduly burdensome. The Agency is proposing imposition of financial assurance 

requirements for activities that may occur more than 50 years in the future, with requirements to be satisfied 

at the time of permitting. The Agency should carefully examine whether at this time, or at the time of 

permitting, the cost of such activities can be accurately estimated and assumed to be relatively accurate going 

forward. 

Relatedly, the Agency should consider the cost and availability of financial assurance for the 

activities it would seek to ensure. If no market exists to assure activities at issue, projects will be unable to 

move forward. Even where markets do exist, financial assurance options may prove inordinately expensive 

to project operators and investors, who may choose to walk away from projects rather than face millions of 

dollars in assurances for activities 50 years down the road that may never occur. NACCSA believes that any 

financial assurance requirements should be subject to reasonable caps (whether absolute caps or based on 

tons injected) in order to facilitate ability to secure the relevant financial instruments. 

The Preamble indicates EPA may be willing to consider a phased or staged approach to financial 

assurance requirements, as well as separate financial assurance demonstrations for plugging and PISC 

activities at later points in time. Such provisions would ease some of the difficulties with the financial 

assurance proposal in terms of estimating costs for future activities assuming that better estimation tools 

would become available, but, again, would not eliminate any difficulties that may exist in forming cost 

estimates at the time of permitting . 

NACCSA acknowledges EPA's statements that, under this SDWA rulemaking, the Agency cannot 

assign "liabilities" of a project operator or permittee to a third party. Regardless, NACCSA encourages the 

-10- 
Agency to consider ways it may be able to tailor the regulations-in particular their financial assurance 

requirements-to take into consideration situations in which such assignments may have been affected 

through other laws. As the Agency is aware, various proposed statutes and regulations for CCS contemplate 

a state, for example, or other third party assuming long-term risk or liability for or ownership of stored C02, 

such as the IOGCC model statute and regulations issued in September 2007 . One option within the 

Agency's SDWA jurisdiction may be to include a provision indicating that where a third party assumes a 

permittee's regulatory obligations, the permittee is deemed to have satisfied applicable financial assurance 

requirements which can then be terminated. Such a mechanism is not unprecedented under the current UIC 

program; see, e.g . , 40 C.F.R. § 144 .66, which provides that, where a state assumes legal responsibility for 

compliance with plugging and abandonment requirements or assures state funding for such requirements, the 

operator is deemed to have satisfied applicable financial assurance requirements where the Administrator 

determines that the state's assumption is at least equivalent to available financial assurance mechanisms. 

7. Grandfathering Provisions 

As referenced above, EPA has also raised for consideration how certain existing wells should be 

addressed under the final regulations. In particular, EPA has proposed allowing the UIC program director to 

"grandfather," on a discretionary basis, the construction requirements for existing Class II and Class V 

experimental wells (as well as existing Class I wells that were not intended to inject C02 originally) where 

the director can determine that the wells will not endanger underground sources of drinking water. But the 

proposed grandfathering is not merely discretionary ; it is also limited in scope to construction requirements . 

Thus, operators would be required to satisfy all other provisions of the Class VI permitting requirements in 

order to transition to Class VI wells. The limited scope of the grandfathering provision may make it hard for 

other classes of wells to transition to Class VI. 

The proposed provision provides little assurance to project operators or investors that existing wells, 

or wells that may be permitted before the proposed rule takes effect, could ever be transitioned to the 

Class VI regime. In light of the additional proposed limitations on GS projects, such as the restrictions on 

-11- 
receiving formations, grandfathering may simply prove impossible, even for projects that were specifically 

designed to inject and store C02 in the first instance. 

Further, as noted above, wells permitted to inject and store C02 have already been deemed safe and 

suitable for those purposes, and a determination has already been made that no endangerment is posed to 

USDWs. Under these circumstances, leaving a grandfathering determination to the discretion of the 

director-discretion that may be exercised where the director determines that there is no endangerment to 

USDWs-is unnecessarily duplicative as long as the operating parameters of the site are unchanged. 

NACCSA thus recommends that the Agency expand the scope of available grandfathering for 

existing wells beyond construction requirements to cover all Class VI requirements. Further, rather than 

leave grandfathering to the discretion of the program director, a preferable approach would be to allow 

grandfathering unless, upon an examination of specified criteria, the director determines that the 

circumstances of the initial project, as compared to the long-term storage aspect, result in a project that is 

unsuitable for C02 storage from a point of view of protecting USDWs. 

8. Issues Related to State Primacy 

The proposed rule seeks comment on whether states should be permitted to seek primacy for Class VI 

wells, noting the Agency's belief that "the most effective approach for the comprehensive management of 

C02 GS projects would be achieved at the State and Tribal level." NACCSA agrees that states and tribes 

should play a key role in managing CCS projects going forward. To that end, states should be permitted to 

seek primacy for Class VI wells, even in the absence of primacy for other well classes . Numerous states 

have decades of experience regulating C02 injection through Class II programs, and those states in particular 

may have much to offer in the context of Class IV wells. Further, many states are moving ahead with 

developing their own legislation and regulations related to CCS activities-in many cases legislation and 

regulations that go beyond the scope of EPA's jurisdiction, such as incentives provisions and provisions 

clarifying the nature of potentially affected property rights. Allowing those states to take on primacy for 

Class VI wells unencumbered with the burdens of taking on primacy for other well classes ensures that they 

-12- 
are given credit and recognition for their groundbreaking work on CCS without disincentivizing states from 

taking a leadership role on CCS. 

9. Relationships with other Environmental Laws 

NACCSA is concerned about the potential application of other environmental laws to CCS activities . 

These laws include the Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) and the Resource Conservation and Recovery Act (RCRA). Setting aside for the moment the 

important questions of whether either of these laws could apply to CCS activities and, if so, precisely how 

and to what extent, NACCSA understands and does not disagree with the Agency's position that drafting a 

clear exception from either of these regimes likely cannot be accomplished through the context of this 

SDWA UIC rulemaking . Nonetheless, NACCSA urges EPA to carefully consider whether to include any 

discussion of these two laws (or others) along with the Class VI regulations, as well as the particulars of 

what any such discussion may contain, to ensure that such discussion is necessary and does not serve as an 

unnecessary and unintended springboard for hampering the successful commercialization of CCS. 

NACCSA believes that EPA should clarify that supercritical and gaseous C02 do not fit the defmition 

of "solid waste" under RCRA, and that injected C02 is not solid waste that is "disposed of' and thus subject 

to RCRA regulation. While NACCSA acknowledges that such clarification may be best achieved in the 

context of a RCRA rulemaking, the Preamble to the proposed rules appears to make the assumption that 

injected C02 is a solid waste that is being disposed of in the first instance, in the context of its discussion 

regarding waste characterizations that may be required of permitees. Such discussion in the Preamble is 

unnecessary and will only prove harmful to those seeking to move forward with CCS projects. Further, any 

concern about potentially hazardous constituents in C02 injectate may be addressed without addressing any 

potential RCRA implications, as the contents of an injectate must be "characterized" under the proposed 

rules regardless, and permit limitations may be imposed to address the content of injectate without reference 

to RCRA's provisions . 
In addition, EPA should clarify that the provisions of CERCLA are not triggered by Class VI 

operations . As a preliminary matter, as the Agency is aware, CERCLA imposes liability for releases of 

hazardous substances . EPA indicates in the Preamble that whether injected C02 may be considered a 

hazardous substance "depends entirely on the make-up of the specific C02 stream and of the environmental 

media . . . in which it is stored," leaving the door open for claims of environmental harm arising out of C02 

injection and storage activities . This discussion, however, assumes that C02 injection activities could fall 

within CERCLA's ambit in the first instance . As with the RCRA issue, a determination of this issue is 

unnecessary from the point of view of regulating injection and storage of C02 under the UIC program, and 

NACCSA urges the Agency to avoid creating unnecessary hurdles for the successful commercial deployment 

of CCS by assuming potential applications of other statutes that may not come into play. Regardless, even if 

the provisions of CERCLA could be interpreted to apply to CCS activities, NACCSA is opposed to any 

limitations on the federally permitted release exemption from CERCLA liability, which should be given its 

fullest application in the Class VI context. Relatedly, NACCSA encourages the Agency, pursuant to its 

authority under RCRA and CERCLA, to examine possibilities for exemption or exclusion from those 

programs. 

10. Other Issues for the Agency's Consideration 

One additional issue raised in the Preamble relates to treatment of injection wells that are currently 

producing oil or gas. The Preamble suggests that as long as production is occurring and the reservoirs are 

not depleted, Class II permitting provisions apply; only when a reservoir is depleted may Class VI provisions 

apply. 2 NACCSA encourages the Agency to consider regulatory or preamble language in the final rule 

which clarifies that nothing in the rule is intended to preclude C02-EOR operators for claiming that they are 

engaged in "storage" operations for purposes (for example) of a future cap-and-trade scheme. 

Finally, although NACCSA recognizes the limits on the Agency's jurisdiction with regard to CCS 

projects, its members appreciate the Agency raising for public comment issues related to property rights that 

2 See discussion in Preamble at 48-49. 

-14- 
may be associated with C02 injection and storage, such as ownership of pore space in which C02 will be 

stored, as well as issues of long-term responsibility for stored C02 and storage site integrity. While the 

importance of EPA's rulemaking as an important step in providing clarity and certainty for project operators 

and investors cannot be overstated, CCS projects may not go forward in the absence of resolution of these 

issues . EPA's efforts in this regard will serve to raise stakeholder and policy maker awareness regarding the 

importance of resolving these critical issues so necessary to the successful commercial deployment of CCS. 

IV. Conclusion 

Again, NACCSA appreciates the opportunity to participate in this important rulemaking process, 

which will likely shape the future of CCS activities in the U.S. Any questions regarding the comments 

provided herein may be addressed to : 

Michael Moore 

Executive Director, NACCSA 

c/o BlueSource 

3165 East Millrock Drive 

Suite 340 

Holladay, Utah 84121 

801 .322.4750 

mmoore@bluesource .com 
Letter ID: 0265 

Commenter: Michael Moore 

Organization: North American Carbon Capture & Storage Association (NACCSA) 

Letter ID: 0265 Comment ID: 22848 Letter Lines: 48 to 52 

Comment Code: 1320 1.1.3 General comments about GS 

Comment: developmental aspects of CCS activities in both the U.S. and Canada. As we noted in 

our oral and written testimony presented at EPA's September 30, 2008 public 

hearing on the proposed rules, policymakers and companies are, and should be, like 

the members of NACCSA,interested in CCS technology because it holds significant 

promise as a tool to manage CO2 emissions as well as to maximize energy recovery. 

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: 0265 Comment ID: 22849 Letter Lines: 53 to 56 

Comment Code: 1420 1.2.1.1 Support the GS rulemaking 

Comment: EPA's proposed regulations are a needed first step toward establishing a stable, 

predictable, and workable regulatory framework that appropriately encourages the 

development of a CCS industry to both safely mitigate GHG emissions and maximize 

energy production. 

Individual Response: While EPA agrees with commenters that a stable, predictable, nationally 

consistent, and workable regulatory framework is important, 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 

from endangerment. For additional information on EPA’s authority to promulgate this 

rulemaking, see the preamble section on "Under What Authority is This Rulemaking 

Promulgated?" 

Letter ID: 0265 Comment ID: 22850 Letter Lines: 58 to 85 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment: II. General Principles Applicable To EPA's GS Regulatory Effort 

As legislative and regulatory efforts to address climate change accelerate, it is 

critically important that policymakers follow EPA's lead by continuing to 

recognize the central role that CCS can play as a mitigation tool. As noted in the 

Preamble to EPA's proposed rule, CCS holds the promise of storing large volumes of 

1
carbon dioxide in geologic formations such as deep saline formations, depleting 

and depleted oil & natural gas reservoirs, unmineable coal seams and similar 

geologic structures. Because CCS has the potential to be applied in a wide range of 

fossil fuel production processes, NACCSA believes that CCS should be recognized 

as an emissions mitigation measure under any climate regime. Additionally, NACCSA 

members view carbon dioxide as a central component in the enhanced recovery of oil 

and natural gas and recognize that it is capable of being responsibly stored as 

part of this process. 

Recognizing the significance of the initiative displayed by EPA in proposing 

regulations for injection and storage of CO2 carbon dioxide under the Safe 

Drinking Water Act's UIC program, NACCSA appreciates the opportunity to provide 

input on which aspects of the proposed rules are favorable, and for which aspects 

of the proposed rules EPA should consider possible changes, in light of the 

rulemaking's dual goals of improving the chances of achieving commercial 

viability for CCS while also preventing potentially undesirable impacts to 

drinking water resources. NACCSA's general areas of focus in this discussion 

include siting and secondary containment; monitoring/use of tracers; closure 

and post-injection site care; financial assurance; grandfathering; state primacy; 

and potential issues arising under other environmental laws. Comments on specific 

aspects of the Agency's proposed rules within these general focus areas are set 

forth below. 

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 information on siting and containment, monitoring and use of 

tracers, site closure and post-injection site care, financial assurance, primacy, transitioning 

existing wells into Class VI wells, and potential issues arising under other environmental laws), 

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

Letter ID: 0265 Comment ID: 22851 Letter Lines: 93 to 96 

Comment Code: 4324 2.4.4.1.2 Comments opposed to requiring injection below the lowermost 

USDW 

Comment: - Siting/Secondary Containment: Injection above the lowermost USDW should 

not be categorically prohibited; further, any discretion vested in the UIC 

program director to require secondary containment should be explicitly bounded 

with appropriate criteria for its exercise. 

Individual Response: EPA acknowledges that there are limited circumstances where injection 

above the lowermost USDW can be performed in a manner that protects USDWs from 

endangerment, as long as appropriate protections are in place. The final GS rule at §146.95 

establishes a process by which owners or operators can seek a waiver of the Class VI injection 

depth requirements for injection into non-USDW formations above and/or between USDWs. 

2
The final rule establishes: 1) requirements specifying information that owners or operators must 

submit, and Directors must consider, in consultation with PWSS Directors; 2) procedures for 

public notice of a waiver application and for Director-Regional Administrator communication; 3) 

the waiver issuance process; and, 4) additional requirements that apply to owners or operators of 

Class VI wells granted a waiver of the injection depth requirements to ensure USDW protection 

above and below the injection zone. The final rule also establishes limited circumstances under 

which expansions of the areal extent of aquifer exemptions may be granted for owners or 

operators of Class II EOR/EGR wells transitioning to Class VI injection for GS. 

For additional information on the waiver approach and aquifer exemptions for Class VI wells, 

please see the final rule and preamble, as well as EPA's responses to comments on the Notice of 

Data Availability and Request for Comment. 

Letter ID: 0265 Comment ID: 22852 Letter Lines: 98 to 99 

Comment Code: 3530 2.2.3.1 AoR reevaluation frequency (seeking comment) 

Comment: - Area of Review Reevaluation: NACCSA questions the inclusion of a 

requirement that the area of review by reevaluated at least every ten years. 

Individual Response: EPA believes that periodic AoR reevaluation at a set frequency of at least 

every 5 years is necessary to ensure protection of USDWs from endangerment and address the 

uncertainties inherent in predictive modeling. Periodic AoR reevaluations at §146.84(e) ensure 

that a deliberate effort is made to verify, based on monitoring and operational data, that the CO2 

plume is moving within the subsurface as predicted. EPA believes that less frequent 

reevaluations may not be sufficient to appropriately model plume and pressure front movement, 

establish conditions for corrective action, and ensure protection of USDWs from endangerment. 

Letter ID: 0265 Comment ID: 22853 Letter Lines: 101 to 103 

Comment Code: 4490 2.4.5 Use of tracers and potential impact on human health or ecosystems 

(seeking comment) 

Comment Code: 4670 2.6.7 Surface air monitoring and/or soil gas monitoring (seeking 

comment) 

Comment: - Monitoring Provisions/Use of Tracers/Use ofDown-Hole Shut-off Valves: 

NACCSA is opposed to imposition of mandatory requirements to use tracers; conduct 

surface air/soil gas monitoring. 

Individual Response: EPA believes that surface air and soil gas monitoring, when coupled with 

subsurface monitoring, may be appropriate at some GS projects to ensure USDW protection. 

EPA acknowledges that surface air and soil gas monitoring may not be suitable in all settings as 

a method to ensure USDW protection. However, EPA does not believe that this should entirely 

preclude their use. The decision to use surface monitoring and the selection of monitoring 

methods will be site-specific (e.g., may be influenced by geology, injection depth, and 

3
operational conditions) and must be based on potential risks to USDWs within the AoR. 

If surface monitoring were the only monitoring method employed to ensure USDW protection, 

direct correlation of CO2 at the surface with CO2 in the subsurface might be difficult; however, 

when combined with information gathered through other monitoring techniques required of GS 

well owners and operators (e.g., monitoring wells, geophysical techniques), air and soil gas 

monitoring may provide valuable data on the magnitude and location of a leak. The CO2 itself 

may serve as a tracer in the form of stable isotopes of carbon. For example, anthropogenic CO2 

is depleted in 13C compared to naturally occurring CO2. 

In the final rule, at §146.90(h), the decision to require such monitoring rests with the Director as 

a means of identifying leaks that may pose a risk to USDWs and informing emergency 

notification of a Class VI owner or operator and UIC Director in the event of a USDW 

endangerment, pursuant to requirements at §146.91(c). 

EPA believes that, in some circumstances, tracers can be an important component of a 

multifaceted approach to monitoring GS projects. However, the Agency recognizes that tracers 

may not be appropriate in all GS projects. For this reason, EPA does not require the use of 

tracers at all GS sites; however, the Director has discretion to require their use if he/she 

determines that the use of tracers could improve monitoring of the site and enhance USDW 

protection from endangerment. 

Letter ID: 0265 Comment ID: 22854 Letter Lines: 105 to 112 

Comment Code: 5260 2.8.2.3 Adjusting the post-injection timeframe (seeking comment) 

Comment: - Closure and Post-Injection Site Care: NACCSA urges the Agency to adopt 

a shorter default time period than the 50 year period currently proposed. 

Although a fair amount of certainty may be achieved through setting some default 

period of time for the post-injection site care period, the proposed 50 year 

default is both arbitrary and unjustifiably long. Further, while NACCSA supports 

the concept of a performance-based component, the rules should include specific 

and appropriate circumstances that the program director will consider in 

exercising any discretion in this regard. 

Individual Response: EPA disagrees that a post-injection site care timeframe of 50 years is 

excessive for most Class VI wells. EPA proposed a default post-injection site care timeframe of 

50 years based on a review of research studies, industry reports, and existing environmental 

programs. This analysis was included in an EPA-prepared background document that is available 

in the federal docket, titled Computational Modeling of Underground Injection of Carbon 

Dioxide for Determination of Area-of-Review and Potential Risk to Underground Sources of 

Drinking Water. EPA assessed various default timeframes based on additional review of research 

studies and evaluation of public comments. While numerous commenters suggested that EPA 

shorten the monitoring timeframe, none of the commenters provided sufficient data or other 

evidence to warrant a change in the proposed timeframe. While the 10- or 30-year timeframe 

suggested by some of these commenters may be within the timeframe suggested in some studies, 

4
EPA believes that the potential risks of endangering USDWs will likely not decline within these 

timeframes and available data, including data submitted by commenters, do not support a 

different default timeframe. However, EPA recognizes that alternative timeframes may be 

appropriate under limited, specific circumstances, which is why EPA is providing the Director 

discretion to approve an alternative post-injection site care timeframe as long as the owner or 

operator can meet the requirements provided at §146.93(c). 

EPA acknowledges there will be circumstances where it can be demonstrated in less than 50 

years that the plume and pressure front no longer pose a risk of endangerment to USDWs. For 

this reason, 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 post-injection 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, during the permitting process based on substantial data, 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 

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 believes however, that to ensure USDW protection from endangerment, a default timeframe 

for post-injection site care will be necessary in all but a limited number of cases. This default 50 

year post-injection site care timeframe represents a reasonable and protective monitoring period 

based on a review of research studies, industry reports, and existing environmental programs, 

and evaluation of public comments. 

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

Letter ID: 0265 Comment ID: 22855 Letter Lines: 114 to 117 

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

CFR 146.85) 

5
Comment: - Financial Assurance Provisions: NACCSA urges the Agency to revise the 

proposed financial assurance provisions, which are more stringent than those 

currently placed on Class I hazardous waste injection wells and, as proposed, 

present a number of practical problems for operators. 

Individual Response: EPA disagrees that the requirements on financial responsibility are overly 

stringent. The goal of financial responsibility is to ensure that financial resources are available to 

prevent or remediate the endangerment of USDWs from improper plugging, remediation, and 

management of wells in the event that the owner or operator experiences financial difficulties. 

EPA disagrees that the requirements equate GS wells with Class I hazardous waste wells; rather, 

the financial responsibility requirements for Class VI wells are tailored to account for the unique 

nature of the long term GS of CO2, while providing flexibility for site specific implementation. 

EPA adds that the purpose of the GS rule is not to incentivize or promote GS; rather it is to 

ensure that where GS is deployed, it is done in a manner that ensures USDW protection from 

endangerment. 

Letter ID: 0265 Comment ID: 22856 Letter Lines: 119 to 122 

Comment Code: 2060 1.5.3 Comments on grandfathering of existing wells (seeking comment) 

Comment: - Grandfathering Provisions: The Agency should (1) expand the scope of 

available grandfathering beyond construction requirements and (2) allow 

grandfathering unless an examination of specified factors reveals that the 

project would be unsuitable for CO2 storage. 

Individual Response: EPA agrees that many Class I, Class II, and Class V experimental 

technology wells are designed and constructed to withstand exposure to CO2. The final GS rule 

provides for the construction of these wells to be grandfathered per §146.81(c), provided the 

owner or operator can demonstrate to the Director that the wells were engineered and constructed 

to meet the requirements at §146.86(a) and ensure protection of USDWs, in lieu of requirements 

at §146.86(b) and §146.87(a). 

EPA disagrees that other requirements should also be grandfathered or that grandfathering 

should be considered the "default" for all wells seeking conversion to Class VI. Following repermitting of the project as GS, many of the unique factors of GS sites (e.g., increased reservoir 

pressures associated with large volumes of stored CO2 and the corrosivity of CO2 in the 

presence of water) will result in an increased risk profile, warranting the specific requirements in 

the final GS rule. Therefore, following re-permitting as Class VI wells, these projects must be 

subject to the operational, MIT, monitoring, reporting, plugging, and post-injection site care and 

site closure requirements in the final GS rule. See the discussion of EPA's final regulatory 

approach in the preamble to the GS rule for additional detail on these requirements. 

Letter ID: 0265 Comment ID: 22857 Letter Lines: 124 to 125 

Comment Code: 5610 2.11.1 Allowing partial primacy for Class VI wells (seeking comment) 

6
Comment: - Issues Related to State Primacy: States should be permitted to seek 

primacy for Class VI wells, even in the absence of primacy for other well classes. 

Individual Response: EPA agrees with commenters that states should be allowed to obtain 

primacy for Class VI wells independently of other well classes, and will allow independent 

primacy for Class VI wells under §145.1(i) of the final GS rule. 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 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 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 believes that allowing states to apply only for Class VI primacy will shorten the 

primacy approval process for states. EPA's willingness to accept independent primacy 

applications for Class VI wells represents a shift in its longstanding policy of discouraging 

"partial primacy." It is very important to note that this shift in policy allowing for Class VI 

primacy does not apply to any other well Class under Section 1422. EPA will continue to 

discourage applications for partial primacy for all other well types under Section 1422. 

EPA clarifies that states should be able to obtain primacy for Class VI wells independent of other 

well classes provided they develop regulations that are at least as stringent as the minimum 

Federal requirements (e.g., permitting, inspection, operation, monitoring, and recordkeeping 

requirements) provided in the final GS rule. EPA believes that existing programs can adapt their 

expertise to the new requirements for Class VI wells and will be able to develop a primacy 

application for Class VI wells under section 1422 of SDWA and ensure that their GS programs 

integrate into national climate change priorities and protect USDWs from endangerment. 

Letter ID: 0265 Comment ID: 22858 Letter Lines: 127 to 130 

Comment Code: 1270 1.1.2 Comments on other rules/issues 

Comment: - Relationships with other Environmental Laws: The Agency should carefully 

consider any discussion of other environmental laws that it may desire to 

7
include in the Preamble to the rules in order to ensure that such discussion is 

necessary and does not hamper the successful commercialization ofCCS. 

Individual Response: EPA clarifies that the Class VI GS regulation is being promulgated under 

authority of the Safe Drinking Water Act, and other environmental laws are outside the scope of 

the Class VI GS rulemaking. The purpose of the Class VI GS rule is to ensure consistency in 

permitting underground injection of CO2 at GS operations across the United States and provide 

requirements to prevent endangerment of USDWs in anticipation of the eventual use of GS to 

reduce CO2 emissions. 

In a separate rulemaking under authority of the Clean Air Act (CAA), EPA is amending the 

Greenhouse Gas Reporting Program at 40 CFR Part 98 to add reporting requirements for CO2 

injection and GS. The greenhouse gas mandatory reporting requirements build on the Class VI 

requirements outlined in this final rule with the additional goals of verifying the amount of CO2 

sequestered and collecting data on any CO2 emissions to the surface from GS facilities. 

EPA acknowledges that GS falls within the broader context of CCS and the need for regulatory 

clarity to ensure that USDWs are protected from endangerment. In developing the final GS rule, 

the Office of Water coordinated with other Agency program offices and across federal agencies 

(e.g., with the Department of Energy; United States Geological Survey; Bureau of Ocean Energy 

Management, Regulation, and Enforcement, formerly the Minerals Management Service; Bureau 

of Land Management). The Agency continues to evaluate areas of potential applicability of other 

Federal environmental statutes including, but not limited to: the Clean Air Act; the Resource 

Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, 

and Liability Act; and the Marine Protection, Research and Sanctuaries Act to various aspects of 

GS and CCS. The Agency will continue to coordinate on GS and CCS related issues to minimize 

redundancy and maximize efficiencies for owners or operators. For additional information, 

please see the discussion entitled "How Does This Rulemaking Relate to Other Federal 

Authorities and GS and CCS Activities?" in the preamble to the final GS rule. 

Letter ID: 0265 Comment ID: 22859 Letter Lines: 132 to 134 

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: - Other Issues for the Agency's Consideration: The Agency should ensure that 

nothing in the rule precludes CO2-EOR operators from claiming "storage" at some 

future date. Additionally, NACCSA notes that because of the Agency's limited 

Individual Response: 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 

8
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. For more information, 

please see the discussion on transition of Class II wells in the preamble to the final GS rule. 

EPA clarifies that carbon storage credits are outside the scope of the GS rulemaking. 

Letter ID: 0265 Comment ID: 22860 Letter Lines: 134 to 139 

Comment Code: 5460 2.9.2 Comments on transfer of liability for long-term care 

Comment: future date. Additionally, NACCSA notes that because of the Agency's limited 

jurisdiction, issues related to long-term liability and property rights will 

remain to be resolved despite this rulemaking, and CCS projects may not go 

forward in the absence of such resolution. NACCSA encourages the Agency to 

continue seeking information in this regard and to support development of a complete 

regulatory scheme for CCS. 

Individual Response: EPA is working to create a nationally consistent financial responsibility 

regime within its authority to ensure that financial resources are available to protect USDWs 

throughout the life of the GS project. However, EPA does not have authority to transfer liability 

from one entity to another and SDWA does not provide for the creation of a third party financial 

instrument where EPA is the trustee. In the UIC program, liability under SDWA §1423 remains 

with the owner or operator for all well classes until all regulatory requirements have been met. 

EPA understands that Congress is considering legislation that may address the liability issue. 

EPA clarifies that the GS regulation does not promote or encourage the use of GS, and that 

addressing property rights is outside the scope of the GS rulemaking. Rather the GS rule is 

designed to ensure consistency in permitting underground injection of CO2 at GS operations 

across the United States and provide requirements to prevent endangerment of USDWs in 

anticipation of the eventual use of GS to reduce CO2 emissions. 

Letter ID: 0265 Comment ID: 22861 Letter Lines: 143 to 194 

Comment Code: 4324 2.4.4.1.2 Comments opposed to requiring injection below the lowermost 

USDW 

Comment: 1. Ban on Injection Above the Lowermost USDW 

The proposed regulations do not permit project operators to inject and store CO2 

above the lowermost formation containing a USDW. NACCSA believes that a 

categorical elimination of receiving formations is unnecessary and undesirable. 

Rather, the appropriateness of any given receiving formation-as with the bulk of 

issues related to the siting of projects-should be considered on a case-by-case 

basis in light of the geologic characteristics of a given project and based on 

the application of clear and appropriate parameters set forth in the rules. 

9
Categorically eliminating a set of potential receiving formations is simply 

unnecessary in light of the overall function of the UIC rules. As a general 

proposition, permit applicants must demonstrate that projects will not endanger 

USDWs; permit applicants for CO2 injection and storage projects would be held to 

the same standard. The proposed rules would require permit applicants to 

demonstrate that the project will be sited in areas with a "suitable geologic 

system," consisting of an injection zone of sufficient areal extent, thickness, 

porosity, and permeability to receive the total anticipated volume of injectate, 

as well as a confining zone free of transmissible faults or fractures and 

sufficient to contain the injected stream and any displaced fluids, considering 

the proposed maximum pressures and volumes of injection, without fracturing. It is 

NACCSA's view that if the "suitable geologic system" contains confining zones 

above and below the injection formation that will not allow the endangerment 

of USDWs,injection above a USDWshould be allowed because the system will still meet 

the groundwater protection requirements of the UIC program. The fact that permit 

applications would be considered based on site specific information would 

mean that the regulator could evaluate whether individual projects would be 

protective of groundwater regardless of their depth with respect to USDWs. 

Further, a blanket exclusion will hinder the ability of existing and possibly 

future Class I, II, and V projects to convert to Class VI projects, as the 

proposed grandfathering requirement is limited to well construction (as further 

discussed below), thus excluding projects that do not inject below the lowermost 

USDW from the scope of potential grandfathering. Existing (and future) projects 

that do not inject beneath the lowermost USDW would seemingly be stranded, left 

with no ability to convert to Class VI GS projects. Such a risk greatly 

disincentivizes many projects that would otherwise be likely to go forward 

and would hamper commercialization of CCS. And creation of such a disincentive is 

unnecessary because the wells at issue would have been designed and constructed 

pecifically with injection of CO2 and the protection of USDWs in mind. 

While NACCSA acknowledges that EPA has raised for consideration the possibility 

of aquifer exemptions or the use of discretion to allow injection above the 

lowermost USDW in a given case, NACCSA submits that such a procedure would 

introduce increased complexity to the process with no corresponding increase in 

protection afforded to USDWs as compared to an approach under which no default 

limitations on siting exist and the merits of a proposed receiving formation are 

considered in the context of a particular project, using clearly identified and 

appropriate factors. And in the context of existing or proposed projects that may be 

seeking to later convert to Class VI wells, such provisions would create 

unnecessary uncertainty regarding the potential viability of projects going 

forward. 

Individual Response: EPA acknowledges that there are limited circumstances where injection 

above the lowermost USDW can be performed in a manner that protects USDWs from 

10
endangerment, as long as appropriate protections are in place. The final GS rule at §146.95 

establishes a process by which owners or operators can seek a waiver of the Class VI injection 

depth requirements for injection into non-USDW formations above and/or between USDWs. 

Additionally, the final GS rule does not categorically preclude or prohibit injection into any type 

of formation. 

EPA believes that these requirements will ensure USDW protection while providing flexibility to 

UIC program Directors and owners or operators who undertake CO2 injection for GS. The 

Agency believes this approach: 1) responds to concerns about local and regional geologic storage 

capacity limitations imposed by the proposed injection depth requirements; 2) allows for a more 

site-specific assessment of injection depth for GS projects; 3) accommodates injection into 

different formation types; 4) allows for injection of CO2 for GS into non-USDWs above and/or 

between USDWs when appropriate and where it can be demonstrated that USDWs will be 

protected; and 5) responds to concerns about the use of aquifer exemptions for GS. Finally, 

EPA’s approach to addressing injection depth variability through a waiver process responds to 

concerns about future drinking water resource availability and the need to ensure that high 

quality water remains available in sufficient quantities to supply drinking water needs. 

For additional information on the waiver approach, please see the final rule and preamble, as 

well as EPA's responses to comments on the Notice of Data Availability and Request for 

Comment. 

Letter ID: 0265 Comment ID: 22862 Letter Lines: 196 to 202 

Comment Code: 4324 2.4.4.1.2 Comments opposed to requiring injection below the lowermost 

USDW 

Comment: Finally, a default limitation on injections to only those formations below the 

lowermost USDW- currently in place only for Class I hazardous waste injection 

wells-is likely to create a public misimpression that CO2 injection wells are 

analogous to hazardous waste injection wells and carry analogous risks. 

NACCSA urges EPA to consider the potential effects of each proposed regulation on 

public perception of CCS, as attaching unnecessary stigmas to CCS will do nothing 

to further its development or to protect USDWs. 

Individual Response: EPA acknowledges that there are limited circumstances where injection 

above the lowermost USDW can be performed in a manner that protects USDWs from 

endangerment, as long as appropriate protections are in place. The final GS rule at §146.95 

establishes a process by which owners or operators can seek a waiver of the Class VI injection 

depth requirements for injection into non-USDW formations above and/or between USDWs. The 

waiver approach requires the submission of extensive, site-specific information (in conjunction 

with the permit application submission) to demonstrate that injection of CO2 into a non-USDW 

that is above or between USDWs can be done in a manner that is protective of USDWs. The 

requirements are designed to ensure that the owner or operator, the Director, and the Regional 

Administrator consider, on a site specific basis, the implications, benefits, and challenges 

associated with GS and ensuring water availability and USDW protection. EPA believes that the 

11
additional procedures for public notice of a waiver application and for Director-Regional 

Administrator communication at §146.95 will improve public confidence in and acceptance of 

GS projects operating under injection depth waivers. EPA clarifies that, due to the unique nature 

of the injection depth waiver process and in an effort to ensure national consistency and 

application of the requirements, the requirement at §146.95(d) indicates that the Regional 

Administrator makes the final determination regarding waiver issuance following an evaluation 

of all site-specific information, public notice, and recommendations from the UIC Director. 

EPA disagrees that the GS regulation overstates the risk of CO2 injection. EPA recognizes that 

injecting large volumes of CO2 for GS poses unique challenges that, if not properly managed, 

could endanger drinking water sources and have other adverse impacts. However, with proper 

site selection, the final, tailored, Class VI requirements address the large volumes of CO2 

injected, its buoyancy, potential corrosivity in the presence of water, and potential impurities in 

the CO2 stream. In addition, the tailored permitting, siting, construction, operation, monitoring, 

and post-injection site care requirements in the GS rule are intended to prevent leakage from 

injection formations and protect USDWs. 

For additional information on the waiver approach, please see the final rule and preamble, as 

well as EPA's responses to comments on the Notice of Data Availability and Request for 

Comment. 

Letter ID: 0265 Comment ID: 22863 Letter Lines: 204 to 245 

Comment Code: 3120 2.1.2 Need to identify additional confining and containment zones 

(seeking comment) 

Comment: 2. Secondary Containment 

Another area of concern related to siting involves the Agency's proposed grant 

of discretion to the UIC program director to require permit applicants to identify 

secondary containment/confining zones. While NACCSA agrees with the Agency's 

current approach not to include a blanket secondary containment requirement 

(although, if secondary confining units exist with regard to a given project, 

they should be included in site modeling, along with identification of any 

transmissible zones between the primary and secondary confining units), and, 

while a discretionary requirement for secondary containment is preferable to a 

blanket, universal requirement, any discretionary requirement that is imposed 

should be bounded by clear parameters for its use. The proposed rule, however, 

contains no such parameters. NACCSA urges the Agency to consider what parameters 

may be put in place to ensure protection ofUSDWs while providing some level 

of clarity for project operators and investors regarding under what circumstances 

such a requirement should be expected, as well as some degree of assurance 

that the "on paper" discretionary requirement will not lead to an "in practice" 

blanket requirement due to the lack of appropriately enumerated. 

Several points should be considered in determining whether any sort 

12
of requirement for secondary containment, including a discretionary requirement, 

should be imposed, as well as what parameters maybe appropriately included in the 

final rule should the Agency choose to implement a discretionary requirement. They 

include the following: 

- Do better alternatives exist to protect USDWs? In any given case, the 

additional protection to USDWs that the Agency appears to believe secondary 

containment could provide likely may be better addressed through proper site 

selection and well-designed plans and procedures to detect and contain leakage 

from the primary containment system, rather than through imposing de facto 

limitations on the types of sites that maybe used. If such requirements have 

already been satisfied, there is likely no need for secondary containment. 

- What public misconceptions maybe created? Secondary containment is 

unprecedented under the UIC program, even for the injection of hazardous wastes 

under the Class I permitting scheme. Imposition of such a requirement on 

injection and storage of CO2suggests that such a project would be more dangerous 

than underground injection of a host of other materials, including hazardous 

wastes, or even than injection of CO2 for purposes of EOR. The Agency should 

carefully consider the risk of creating unwarranted negative public perception 

posed by proposed requirements. In any given case, CCS technology can be safely 

employed absent any secondary containment requirements. 

Individual Response: EPA believes that the Class VI requirements, including the level of site 

characterization required under §§146.82 and 146.83, appropriately address the unique 

challenges posed by large-scale GS including large injection volumes, the relative buoyancy of 

CO2, its corrosivity in the presence of water, the potential presence of impurities in captured 

CO2, and its mobility within subsurface geologic formations. The Agency believes that in some 

geologic settings, the presence and identification of additional confining and containment zones 

above the primary (i.e., lowermost) confining zone can improve USDW protection. These 

formations could further impede vertical fluid movement, allow for pressure dissipation, and 

provide additional sites for monitoring, mitigation, and remediation, while also affording the 

greatest protection of USDWs from endangerment. 

To the comment that the geologic siting requirements could create a negative public perception, 

EPA believes that a demonstration to the public that extensive data have been collected and 

evaluated would likely improve confidence in the project and help address public questions and 

concerns. 

The Agency believes that providing the Director discretion will allow consideration of a range of 

sites for GS, based on site-specific conditions and ensure USDW protection. EPA believes that 

requiring appropriate site characterization by the owner or operator (under §146.82) and 

providing an appropriate degree of flexibility to the Director to evaluate site-specific geologic 

data will afford the greatest protection of USDWs from endangerment. 

EPA is developing guidance on site characterization for GS projects to assist owners or operators 

13
and Directors in evaluating permit requirements and applications under §146.82. The guidance 

provides recommendations regarding characterizing the regional geology and hydrogeology of a 

proposed GS site as well as performing the necessary geochemical, geomechanical, and 

geophysical analyses of the injection and confining zone. EPA expects that this guidance will 

assist permit writers in making an objective decision about requiring additional confining layers. 

The guidance can be found on EPA’s website at 

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

Letter ID: 0265 Comment ID: 22864 Letter Lines: 247 to 260 

Comment Code: 3530 2.2.3.1 AoR reevaluation frequency (seeking comment) 

Comment: 3. Area of Review Reevaluation 

EPA's proposal would require that the owner or operator periodically reevaluate 

the AoR during the injection operation. Reevaluations would occur at a minimum 

fixed frequency, not to exceed 10 years, as agreed upon by the Director. We 

question the need for this requirement to be mandatory in light of the rule's 

extensive monitoring requirements. In the event that on going monitoring indicated 

a problem, appropriate action could be taken at that time without separately 

requiring a complete AoR reevaluation according to a pre-defined schedule. 

We recommend that EPA provide the AoR reevaluation is at the discretion of the 

Administration if the Administration determines that site-specific data, 

reservoir characteristics and/or monitoring or modeling data dictate that such 

a reevaluation would be warranted. 

Individual Response: As described above, EPA believes that periodic AoR reevaluation at a set 

frequency of at least every 5 years is necessary to ensure protection of USDWs from 

endangerment and address the uncertainties inherent in predictive modeling. Periodic AoR 

reevaluations at §146.84(e) ensure that a deliberate effort is made to verify, based on monitoring 

and operational data, that the CO2 plume is moving within the subsurface as predicted. EPA 

believes that less frequent reevaluations may not be sufficient to appropriately model plume and 

pressure front movement, establish conditions for corrective action, and ensure protection of 

USDWs from endangerment. 

In response to the suggestion that site-specific factors should dictate the reevaluation schedule, 

EPA notes that the AoR and corrective action plan must specify the site-specific monitoring and 

operational conditions that warrant reevaluation, as specified in §146.84(b)(2)(ii). In addition, 

the Director has discretion to require more frequent AoR reevaluation if he or she has reason to 

believe, based on site-specific information, that a five-year reevaluation schedule is not 

sufficiently protective of USDWs. 

EPA clarifies that if site monitoring data agrees with the existing AoR delineation, a model 

recalibration may not be necessary, and the AoR reevaluation may consist of a demonstration 

14
that the current AoR delineation is adequate based on site monitoring data. 

Letter ID: 0265 Comment ID: 22865 Letter Lines: 262 to 283 

Comment Code: 4490 2.4.5 Use of tracers and potential impact on human health or ecosystems 

(seeking comment) 

Comment Code: 4670 2.6.7 Surface air monitoring and/or soil gas monitoring (seeking 

comment) 

Comment: 4. Monitoring Provisions/Use ofTracers/Use of Down-Hole Shut-off Valves 

The proposed regulations would vest discretion in the program director to 

require the use of tracers and/or surface air/soil gas monitoring "to detect 

movement of CO2 that could endanger a USDW." NACCSA is opposed to this proposed 

requirement for the reasons outlined below. 

The proposal raises potential issues regarding the scope ofEPA's authority. The 

Preamble acknowledges that regulation of surface/atmospheric releases of CO2 is 

outside the scope of the proposed rule and the Agency's jurisdiction under SDWA. 

The UIC program is designed to protect USDW`s from endangerment due to subsurface 

injection. The use of tracers combined with surface or soil monitoring is 

unlikely to be protective because by the time any tracers or CO2 is detected in 

these zones it may have passed through all USDWs between the injection zone and 

the surface. 

NACCSA is also concerned that tracers are relatively untested in terms of leak 

detection capabilities and transport properties. Because there have been limited 

tests of tracers it is not clear how they interact with the subsurface and if they 

are conservatively transported with CO2. Further, tracers may also pose 

independent safety concerns for project operators, workers, and other potentially 

affected individuals and the environment. 

Individual Response: EPA clarifies that use of surface air and soil gas monitoring as specified 

in the final GS rule at §146.90(h), as a means of identifying leaks that may pose a risk to 

USDWs and informing emergency notification of a Class VI owner or operator and UIC Director 

in the event of a USDW endangerment, pursuant to requirements at §146.91(c), is at the 

Director's discretion. 

If surface monitoring were the only monitoring method employed to ensure USDW protection, 

direct correlation of CO2 at the surface with CO2 in the subsurface might be difficult; however, 

when combined with information gathered through other monitoring techniques required of GS 

well owners and operators (e.g., monitoring wells, geophysical techniques), air and soil gas 

monitoring may provide valuable data on the magnitude and location of a leak. The CO2 itself 

may serve as a tracer in the form of stable isotopes of carbon. For example, anthropogenic CO2 

is depleted in 13C compared to naturally occurring CO2. 

15
EPA believes that surface air and soil gas monitoring are within the scope of the SDWA in that 

they can provide additional data to pinpoint the location and magnitude (or absence) of leaks that 

could endanger USDWs. Used in conjunction with deep subsurface monitoring, as required at 

§146.90, and as part of a multi-barrier approach to protecting USDWs from endangerment, 

surface air and soil gas monitoring are within the scope of SDWA’s general authority (SDWA 

sections 1421 et al). 

Regarding the use of tracers, EPA believes that, in some circumstances, tracers can be an 

important component of a multifaceted approach to monitoring GS projects. However, the 

Agency recognizes that tracers may not be appropriate in all GS projects. For this reason, EPA 

does not require the use of tracers at all GS sites; however, the Director has discretion to require 

their use if he/she determines that the use of tracers could improve monitoring of the site and 

enhance USDW protection from endangerment. 

While the intent of the GS regulations is to prevent leaks of CO2 to USDWs, EPA clarifies that 

all of the protective components of the regulation, including a comprehensive monitoring 

program per §146.90 (which includes testing of the well, ground water quality monitoring, and 

tracking of the CO2 plume and pressure front) support a multi-barrier approach to protecting 

USDWs. Additionally, some studies (e.g., Phelps and Cole, 2008; Hovorka et al., 2004; 

McCallum et al., 2005) found that tracers can provide useful CO2 monitoring information at 

injection wells both at depth and at near-surface locations. At Frio, tracers enabled quantification 

of CO2 plume behavior and provided a technique for model validity testing (McCallum et al., 

2005). EPA will continue to track research related to tracer use. The Agency plans to, every six 

years, collect and review data on GS projects to determine whether the appropriate amount and 

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

modifications to the requirements are appropriate or necessary. 

The provision allowing the Director to require the use of tracers and surface air and soil gas 

monitoring is within EPA's authority under the SDWA because these methods can provide 

additional data to pinpoint the location and magnitude (or absence) of leaks that could endanger 

USDWs. Used in conjunction with deep subsurface monitoring, as required at §146.90, and as 

part of a multi-barrier approach to protecting USDWs from endangerment, tracers and surface air 

and soil gas monitoring are within the scope of SDWA's general authority (SDWA sections 1421 

et al). 

Letter ID: 0265 Comment ID: 22866 Letter Lines: 285 to 295 

Comment Code: 4200 2.4.2 Down-hole shut-off valves in GS wells (seeking comment) 

Comment: Finally, the proposed regulations also would require the use of automatic downhole shut-off systems. We question the need for such a mandatory requirement 

because in some applications such systems could cause operational problems and 

add risk during maintenance operations. These risks seem to outweigh the 

benefits of the use of such systems in GS applications. Moreover, such systems 

are not required in other applications, such as natural gas which arguably pose 

16
greater hazards than the storage of carbon dioxide. Instead of making the use 

of automatic down-hole shut-off systems mandatory, the Administrator should be 

given discretion to require their installation and use when site-specific data 

and reservoir characteristics indicate that the benefits of requiring such 

systems outweigh the risks of their use. 

Individual Response: After evaluating the risks and benefits of down-hole shut-off systems and 

considering additional research, EPA will not require automatic down-hole shut-off devices for 

onshore Class VI wells since it is not necessary in all cases to ensure protection of USDWs from 

endangerment. Instead, the final rule, at §146.88(e)(2), requires that owners or operators of 

onshore Class VI wells install automatic surface shut-off devices. The rule affords Director's 

discretion to mandate automatic down-hole shut-off devices in onshore situations that may 

warrant their use. However, the Agency believes that offshore Class VI wells present unique 

construction and operational conditions, including isolation from shorelines and the need to 

construct wells through the water column and the subsurface, which may delay response time in 

the event of well difficulties. The rule requires, at §146.88(e)(3), that owners or operators of 

offshore wells within State territorial waters install automatic down-hole shut-off systems. 

EPA recognizes that down-hole shut-off devices may make well maintenance and operation 

more challenging. However, the buoyant nature of CO2 and the elevated injection pressures 

associated with GS increase the likelihood of an uncontrolled flow of CO2 out of the well. If 

CO2 does begin to flow back up an injection well, it will rapidly cool and expand as it moves 

toward the surface and can result in a stream of solid CO2 which can cause damage to the 

wellhead and other well instrumentation; such damage has been documented in CO2 ER wells 

(Skinner, 2003; Duncan et al., 2008). Automatic shut-off devices can help prevent such 

occurrences, and EPA believes affording Director's discretion to require down-hole devices 

where necessary ensures that proper precautions are taken to prevent subsurface fluid movement 

and ensure protection of USDWs. 

Letter ID: 0265 Comment ID: 22867 Letter Lines: 297 to 312 

Comment Code: 5240 2.8.2.2 Post injection timeframe (seeking comment) 

Comment: 5. Closure and Post-Injection Site Care 

An additional key area of concern for NACCSA is the proposed rule's provision 

imposing a 50 year default time period following cessation of injection 

activities to serve as the closure and post-injection site care ("PISC") period, 

throughout which monitoring activities and corresponding financial assurance 

requirements would continue. Under the proposal, the program director would have 

discretion to adjust the time period upward or downward, with the effect that 

the PISC period would continue "until the geologic sequestration project no longer 

poses an endangerment to USDWs." 

NACCSA understands that a fair amount of certainty may be achieved through setting 

some default period of time for the PISC. Establishing such a lengthy default 

17
time period also places unnecessary burdens on owners and operators who can 

clearly establish that no threat to USDWs will be posed within a shorter time 

frame than whatever default may be established. 

Individual Response: EPA agrees that some owners or operators will be able to demonstrate, in 

less than 50 years, that the pressure front and plume no longer pose a risk of endangerment to 

USDWs. However, based on studies, EPA believes that the 50 year default time frame is 

warranted in most cases based on additional review of research studies and reports and 

evaluation of public comments. 

EPA believes that the best way to address all possibilities, while ensuring USDW protection 

from endangerment, is to set a 50 year default post-injection site care timeframe, with flexibility 

to: (1) allow 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) afford 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 

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. 

Letter ID: 0265 Comment ID: 22868 Letter Lines: 314 to 331 

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

Comment Code: 5240 2.8.2.2 Post injection timeframe (seeking comment) 

Comment Code: 5260 2.8.2.3 Adjusting the post-injection timeframe (seeking comment) 

Comment: NACCSA urges the Agency to adopt a performance-based approach more in keeping 

with the actual risks posed by CCS projects. NACCSA believes that the site specific 

nature of CO2 storage projects will require each project to be judged on its own 

merit. If a project can show, at any time after the cessation of injection, that 

there is sufficiently small risk of endangerment to USDWs, monitoring should no 

longer be required. Given that under the proposed rule, the program director would 

retain discretion to lengthen or shorten the PISC period as necessary to protect 

USDWs, a performance based approach is in keeping with the spirit of the draft 

rule. Furthermore, performance based approach is more in keeping with the 

realty of potential risks associated with CO2 storage would minimize 

disincentivization of CCS projects while providing an equivalent degree 

of protection for USDWs. NACCSA believes that the performance-based approach, 

currently proposed by EPA as an element of the rule, would be beneficial to 

18
project operators and investors and for the protection of USDWs. The final rule 

should include specific and appropriate circumstances that the program director 

will consider in exercising discretion in this regard, so that project operators 

and investors have a clear idea of the bar they will be required to meet in order 

to close out the PISC period. 

Individual Response: As described above, EPA agrees that there will be circumstances where it 

can be demonstrated in less than 50 years that the plume and pressure front no longer pose a risk 

of endangerment to USDWs. For this reason, 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 post-injection 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, during the permitting process based on substantial 

data, 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 

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. 

Letter ID: 0265 Comment ID: 22869 Letter Lines: 333 to 405 

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

CFR 146.85) 

Comment: 6. Financial Assurance Provisions 

NACCSA is also concerned with the nature and scope of the proposed rule's 

financial assurance provisions, which would require that the permittee, at the 

time of permitting, demonstrate financial assurance for activities ranging from 

corrective action and injection well plugging to post-injection site care and 

well closure, as well as for emergency and remedial response activities to 

address movement of formation or injection fluids that may endanger an 

underground source of drinking water-activities that, as contemplated under the 

proposed rule, could span 50 years or more. 

First, the scope of the proposed financial assurance requirements goes beyond 

what is currently in place for any class of wells under the UIC program, 

even those injecting hazardous wastes. Given that CO2 has been safely injected 

under the UIC program for decades, it is relatively clear that its physical and 

chemical properties are not sufficiently unique-and that they do not pose a 

19
sufficiently unique potential threat to USDW-to warrant such heightened 

treatment under the UIC program. And while the Agency properly considers any unique 

threats that may be posed by the long-term nature of the storage at issue in a 

CCS project, the risk curve associated with a properly sited and managed project 

begins to fall off rapidly over time an dwell before the Agency's proposed 

financial assurance provisions would come to an end. In any event, any financial 

assurance requirements that may be imposed should not go beyond those currently 

in place under the UIC program. 

Further concerns arise from a cost certainty perspective. Financial assurance 

requirements depend on the ability to obtain reliable cost estimates for the 

activity to be assured. If an accurate cost estimate cannot be developed for the 

activity at issue, the financial assurance itself cannot be assumed to be 

adequately protective or not unduly burdensome. The Agency is proposing 

imposition of financial assurance requirements for activities that may occur more 

than 50 years in the future, with requirements to be satisfied at the time 

of permitting. The Agency should carefully examine whether at this time, or at the 

time of permitting, the cost of such activities can be accurately estimated and 

assumed to be relatively accurate going forward. 

Relatedly, the Agency should consider the cost and availability of financial 

assurance for the activities it would seek to ensure. If no market exists to 

assure activities at issue, projects will be unable to move forward. Even where 

markets do exist, financial assurance options may prove inordinately expensive 

to project operators and investors, who may choose to walk away from projects 

rather than face millions of dollars in assurances for activities 50 years down 

the road that may never occur. NACCSA believes that any financial assurance 

requirements should be subject to reasonable caps (whether absolute caps or 

based on tons injected) in order to facilitate ability to secure the relevant 

financial instruments. The Preamble indicates EPA may be willing to consider a 

phased or staged approach to financial assurance requirements, as well as 

separate financial assurance demonstrations for plugging and PISC activities at 

later points in time. Such provisions would ease some of the difficulties with the 

financial assurance proposal in terms of estimating costs for future activities 

assuming that better estimation tools would become available, but, again, 

would not eliminate any difficulties that may exist in forming cost estimates at 

the time of permitting. 

NACCSA acknowledges EPA's statements that, under this SDWA rulemaking, the Agency 

cannot assign "liabilities" of a project operator or permittee to a third party. 

Regardless, NACCSA encourages the Agency to consider ways it may be able to 

tailor the regulations-in particular their financial assurance requirements-to 

take into consideration situations in which such assignments may have been 

affected through other laws. As the Agency is aware, various proposed statutes 

and regulations for CCS contemplate a state, for example, or other third party 

assuming long-term risk or liability for or ownership of stored CO2, such as the 

20
IOGCC model statute and regulations issued in September 2007. One option within 

the Agency's SDWA jurisdiction may be to include a provision indicating 

that where a third party assumes a permittee's regulatory obligations, the permittee 

is deemed to have satisfied applicable financial assurance requirements which 

can then be terminated. Such a mechanism is not unprecedented under the current UIC 

program; see, e.g., 40 C.F.R. § 144.66, which provides that, where a state 

assumes legal responsibility for compliance with plugging and abandonment 

requirements or assures state funding for such requirements, the operator is 

deemed to have satisfied applicable financial assurance requirements where the 

Administrator determines that the state's assumption is at least equivalent to 

available financial assurance mechanisms. 

Individual Response: EPA disagrees that the requirements for financial responsibility are overly 

stringent. The goal of financial responsibility under this rulemaking is to ensure that financial 

resources are available to prevent the endangerment of USDWs in the event that the owner or 

operator experiences financial difficulties. EPA believes that minimum financial responsibility 

requirements are necessary to prevent endangerment of USDWs by holding well owners or 

operators accountable for the safe operation and closure of the well. EPA adds that the purpose 

of the GS rule is not to encourage the use of GS but to ensure that GS is conducted in a manner 

that protects USDWs from endangerment. 

The cost of meeting the financial responsibility requirements is expected to be proportionate to 

the expected costs of each GS activity. EPA anticipates that the availability of third-party GS 

financial instruments will grow in response to demand as use of GS technology increases. EPA 

plans to allow owners or operators to choose from a variety of financial instruments to meet their 

financial responsibility needs. EPA disagrees that the requirements equate Class VI wells with 

Class I hazardous waste wells. The financial responsibility requirements for Class VI wells are 

tailored to the unique nature of the long term GS of CO2. 

EPA agrees that accurate cost estimates are important and the final rule requires specific 

provisions related to cost estimation under §146.85(c). EPA is developing guidance on financial 

responsibility for GS wells that will include a discussion on how to estimate costs associated 

with various GS activities. This guidance will be available on EPA's website at 

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

EPA disagrees that caps should be placed on financial responsibility requirements in the 

proposed rule. A cap may result in the endangerment of a USDW if the appropriate amount of 

money provided under the financial instrument is less then what is needed to protect the USDW. 

EPA believes that the instruments chosen for financial responsibility must cover the complete 

costs of these activities. 

EPA acknowledges the commenter's concern regarding the applicability of multiple statutes to 

GS projects and the need for a single clear liability regime for owners or operators. EPA is 

working to create a nationally consistent financial responsibility regime within its authority to 

ensure that financial resources are available to protect USDWs throughout the life of the GS 

project. However, the authority under the SDWA does not extend to release owners or operators 

21
from long-term responsibility for the potential economic costs of impacts unrelated to USDWs. 

EPA does not have authority to transfer liability from one entity to another and SDWA does not 

provide for the creation of a third party financial instrument where EPA is the trustee. In the UIC 

program, liability under SDWA §1423 remains with the owner or operator for all well classes 

until all regulatory requirements have been met. EPA understands that Congress is considering 

legislation that may address the liability issue. 

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, the financial instrument required under §146.85 will be released if it has not been 

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, if the Director relied on erroneous information provided by the 

owner or operator when approving site closure. Additionally, an owner or operator may always 

be subject to any action the Administrator deems necessary to protect the health of persons under 

§1431 of the SDWA after site closure if there is unanticipated migration towards or into a 

USDW that causes or threatens imminent and substantial endangerment to public health. The 

action may include issuing administrative orders or commencing a civil action for appropriate 

relief. 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. 

The Agency clarifies that Class VI well permits may be transferred to another owner or operator 

pursuant to §144.38, whereby all other regulatory responsibilities are transferred, including all 

potential liabilities associated with meeting the requirements of that permit. Please see further 

clarification on the issue of long term liability in the preamble of the final rule. 

After site closure an owner or operator may remain liable under tort and other remedies, or under 

other federal statutes including 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 approach. 

Letter ID: 0265 Comment ID: 22870 Letter Lines: 407 to 445 

Comment Code: 2060 1.5.3 Comments on grandfathering of existing wells (seeking comment) 

Comment: 7. Grandfathering Provisions 

As referenced above, EPA has also raised for consideration how certain existing 

wells should be addressed under the final regulations. In particular, EPA has 

proposed allowing the UIC program director to "grandfather," on a discretionary 

basis, the construction requirements for existing Class II and Class V 

experimental wells (as well as existing Class I wells that were not intended to 

inject CO2 originally) where the director can determine that the wells will not 

endanger underground sources of drinking water. But the proposed grandfathering 

22
is not merely discretionary; it is also limited in scope to construction 

requirements. Thus, operators would be required to satisfy all other provisions 

of the Class VI permitting requirements in order to transition to Class VI wells. 

The limited scope of the grandfathering provision may make it hard for other 

classes of wells to transition to Class VI. 

The proposed provision provides little assurance to project operators or 

investors that existing wells, or wells that may be permitted before the 

proposed rule takes effect, could ever be transitioned to the Class VI regime. 

In light of the additional proposed limitations on GS projects, such as the 

restrictions on receiving formations, grandfathering may simply prove 

impossible, even for projects that were specifically designed to inject and 

store CO2 in the first instance. 

Further, as noted above, wells permitted to inject and store CO2 have already 

been deemed safe and suitable for those purposes, and a determination has already 

been made that no endangerment is posed to USDWs. Under these circumstances, 

leaving a grandfathering determination to the discretion of the directordiscretion that may be exercised where the director determines that there is no 

endangerment to USDWs-is unnecessarily duplicative as long as the operating 

parameters of the site are unchanged. 

NACCSA thus recommends that the Agency expand the scope of available grandfathering 

for existing wells beyond construction requirements to cover all Class VI 

requirements. Further, rather than leave grandfathering to the discretion of the 

program director, a preferable approach would be to allow grandfathering unless, 

upon an examination of specified criteria, the director determines that the 

circumstances of the initial project, as compared to the long-term storage 

aspect, result in a project that is unsuitable for CO2 storage from a point 

of view of protecting USDWs. 

Individual Response: EPA agrees that many Class I, Class II, and Class V experimental 

technology wells are designed and constructed to withstand exposure to CO2. The final GS rule 

provides for the construction of these wells to be grandfathered per §146.81(c), provided the 

owner or operator can demonstrate to the Director that the wells were engineered and constructed 

to meet the requirements at §146.86(a) and ensure protection of USDWs, in lieu of requirements 

at §146.86(b) and §146.87(a). 

EPA disagrees that the other Class VI requirements (e.g., MITs, siting, monitoring, operational, 

and AoR requirements) should also be grandfathered. Following re-permitting of the well as 

Class VI, many of the unique factors of GS sites (e.g., increased reservoir pressures associated 

with large volumes of stored CO2 and the corrosivity of CO2 in the presence of water) will result 

in an increased risk profile, warranting the specific requirements in the final Class VI rule. 

Therefore, following re-permitting as Class VI wells, these projects must be subject to the 

operational, MIT, monitoring, reporting, plugging, and post-injection site care and site closure 

requirements in the final GS rule. See the discussion of EPA's final regulatory approach in the 

23
preamble to the GS rule for additional detail on these requirements. 

EPA clarifies that the purpose of the GS rule is not to incentivize the use of GS or to address the 

use of pore space. The purpose of the GS rule is to ensure that, where GS is deployed, it is 

conducted in a manner that does not endanger USDWs. 

Letter ID: 0265 Comment ID: 22871 Letter Lines: 447 to 465 

Comment Code: 5610 2.11.1 Allowing partial primacy for Class VI wells (seeking comment) 

Comment: 8. Issues Related to State Primacy 

The proposed rule seeks comment on whether states should be permitted to 

seek primacy for Class VI wells, noting the Agency's belief that "the most 

effective approach for the comprehensive management of CO2 GS projects would be 

achieved at the State and Tribal level." NACCSA agrees that states and tribes 

should play a key role in managing CCS projects going forward. To that end, 

states should be permitted to seek primacy for Class VI wells, even in the absence 

of primacy for other well classes. Numerous states have decades of experience 

regulating CO2 injection through Class II programs, and those states in 

particular may have much to offer in the context of Class IV wells. Further, many 

states are moving ahead with developing their own legislation and regulations 

related to CCSactivities-in many cases legislation and regulations that go 

beyond the scope of EPA's jurisdiction, such as incentives provisions and 

provisions clarifying the nature of potentially affected property rights. 

Allowing those states to take on primacy for Class VI wells unencumbered with 

the burdens of taking on primacy for other well classes ensures that they are 

given credit and recognition for their groundbreaking work on CCS without 

disincentivizing states from taking a leadership role on CCS. 

Individual Response: EPA agrees with commenters that states should be allowed to obtain 

primacy for Class VI wells independently of other well classes, and will allow independent 

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

24
from endangerment through the UIC regulatory framework. EPA 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 believes that allowing states to apply only for Class VI primacy will shorten the 

primacy approval process for states. EPA's willingness to accept independent primacy 

applications for Class VI wells represents a shift in its longstanding policy of discouraging 

"partial primacy." It is very important to note that this shift in policy allowing for Class VI 

primacy does not apply to any other well Class under Section 1422. EPA will continue to 

discourage applications for partial primacy for all other well types under Section 1422. 

EPA clarifies that states should be able to obtain primacy for Class VI wells independent of other 

well classes provided they develop regulations that are at least as stringent as the minimum 

Federal requirements (e.g., permitting, inspection, operation, monitoring, and recordkeeping 

requirements) provided in the final GS rule. EPA believes that existing programs can adapt their 

expertise to the new requirements for Class VI wells and will be able to develop a primacy 

application for Class VI wells under section 1422 of SDWA and ensure that their GS programs 

integrate into national climate change priorities and protect USDWs from endangerment. 

Letter ID: 0265 Comment ID: 22872 Letter Lines: 467 to 516 

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

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: 9. Relationships with other Environmental Laws 

NACCSA is concerned about the potential application of other environmental laws 

to CCS activities. These laws include the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA) and the Resource Conservation and 

Recovery Act (RCRA). Setting aside for the moment the important questions 

of whether either of these laws could apply to CCS activities and, if so, 

precisely how and to what extent, NACCSA understands and does not disagree with 

the Agency's position that drafting a clear exception from either of these 

regimes likely cannot be accomplished through the context of this SDWA UIC 

rulemaking. Nonetheless, NACCSA urges EPA to carefully consider whether to include 

any discussion of these two laws (or others) along with the Class VI regulations, 

as well as the particulars of what any such discussion may contain, to ensure 

that such discussion is necessary and does not serve as an unnecessary and 

unintended springboard for hampering the successful commercialization of CCS. 

NACCSA believes that EPA should clarify that supercritical and gaseous CO2 do not 

fit the definition of" solid waste" under RCRA,and that injected CO2 is not solid 

waste that is "disposed of" and thus subject to RCRA regulation. While 

NACCSA acknowledges that such clarification may be best achieved in the context 

of a RCRA rulemaking, the Preamble to the proposed rules appears to make the 

25
assumption that injected CO2 is a solid waste that is being disposed of in the 

first instance, in the context of its discussion regarding waste 

characterizations that may be required of permitees. Such discussion in the 

Preamble is unnecessary and will only prove harmful to those seeking to move 

forward with CCS projects. Further, any concern about potentially hazardous 

constituents in CO2 injectate may be addressed without addressing any potential 

RCRA implications, as the contents of an injectate must be "characterized" under 

the proposed rules regardless, and permit limitations maybe imposed to address 

the content of injectate without reference to RCRA's provisions. 

In addition, EPA should clarify that the provisions of CERCLA are not triggered by 

Class VI operations. As a preliminary matter, as the Agency is aware, CERCLA 

imposes liability for releases of hazardous substances. EPA indicates in the 

Preamble that whether injected CO2 may be considered a hazardous substance 

"depends entirely on the make-up of the specific CO2 stream and of the environmental 

media . . . in which it is stored," leaving the door open for claims 

of environmental harm arising out of CO2 injection and storage activities. This 

discussion, however, assumes that CO2 injection activities could fall within 

CERCLA's ambit in the first instance. As with the RCRA issue, a determination 

of this issue is unnecessary from the point of view of regulating injection and 

storage of CO2 under the UIC program, and NACCSA urges the Agency to avoid creating 

unnecessary hurdles for the successful commercial deployment of CCS by assuming 

potential applications of other statutes that may not come into play. Regardless, 

even if the provisions of CERCLA could be interpreted to apply to CCS activities, 

NACCSA is opposed to any limitations on the federally permitted release 

exemption from CERCLA liability, which should be given its fullest application in 

the Class VI context. Relatedly, NACCSA encourages the Agency, pursuant to its 

authority under RCRA and CERCLA, to examine possibilities for exemption or 

exclusion from those programs. 

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 

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. 

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 

26
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. 

Letter ID: 0265 Comment ID: 22873 Letter Lines: 518 to 527 ; 561 to 561 

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: 10. Other Issues for the Agency's Consideration 

One additional issue raised in the Preamble relates to treatment of injection 

wells that are currently producing oil or gas. The Preamble suggests that as long 

as production is occurring and the reservoirs are not depleted, Class II 

permitting provisions apply; only when a reservoir is depleted may Class VI 

provisions apply.[FN2] NACCSA encourages the Agency to consider regulatory or 

preamble language in the final rule which clarifies that nothing in the rule is 

intended to preclude CO2-EOR operators for claiming that they are engaged in 

"storage" operations for purposes (for example) of a future cap-and-trade scheme. 

[FN2] See discussion in Preamble at 48-49. 

Individual Response: EPA clarifies that 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. 

For more information, please see the discussion on transition of Class II wells in the preamble to 

the final GS rule. 

EPA clarifies that cap and trade legislation is outside the scope of the GS rulemaking. 

Letter ID: 0265 Comment ID: 22874 Letter Lines: 528 to 537 

Comment Code: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space 

ownership 

27
Comment: Finally, although NACCSA recognizes the limits on the Agency's jurisdiction with 

regard to CCS projects, its members appreciate the Agency raising for public 

comment issues related to property rights that may be associated with CO2 injection and storage, 

such as ownership of pore 

space in which CO2 will be stored, as well as issues of long-term responsibility 

for stored CO2 and storage site integrity. While the importance of EPA's rulemaking 

as an important step in providing clarity and certainty for project operators and 

investors cannot be overstated, CCS projects may not go forward in the absence 

of resolution of these issues. EPA's efforts in this regard will serve to raise 

stakeholder and policy maker awareness regarding the importance of resolving these 

critical issues so necessary to the successful commercial deployment of CCS. 

Individual Response: EPA acknowledges the comment. EPA agrees that pore space ownership 

issues are outside the scope of the Class VI GS rulemaking; these are under the purview of states 

and any of these issues, as they relate to GS, will need to be addressed though state regulations. 

The purpose of the Class VI GS rule is to ensure consistency in permitting underground injection 

of CO2 at GS operations across the United States and provide requirements to prevent 

endangerment of USDWs in anticipation of the eventual use of GS to reduce CO2 emissions. 

EPA recognizes the importance of providing clear, flexible, scalable, and appropriate 

regulations. EPA believes that the Class VI GS regulation will provide certainty to industry and 

the public by providing consistency in requirements across the U.S. and transparency about what 

requirements apply to owners or operators. 

EPA notes that long-term liability is outside of the scope of the GS rulemaking and is not 

addressed in the GS rule. SDWA does not contain any express provisions addressing liability. An 

owner or operator will be held liable for any permit violations under SDWA §1423. 

Under the final GS rule, 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 

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29

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 to financial responsibility for Class VI wells.