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.






Letter ID: 0134 

Commenter: Dawn A. Thorne 

Organization: University of Utah Energy and Geoscience Institute on behalf of the Southwest 

Regional Partnership 

Letter ID: 0134 Comment ID: 21652 Letter Lines: 26 to 37 

Comment Code: 1420 1.2.1.1 Support the GS rulemaking 

Comment: The Southwest Regional Partnership (SWP) is one of seven (7) regional 

partnerships selected by the United States Department of Energy (DOE) and 

National Energy Technology Laboratory (NETL) to characterize, evaluate, test, 

and verify the feasibility of carbon dioxide sequestration within our particular 

region. As such, the SWP is currently conducting three (3) geologic 

sequestration (GS) pilot studies and one (1) terrestrial sequestration project, 

with a fourth GS pilot study to begin in the middle of 2009. The SWP would like 

to commend the Environmental Protection Agency (EPA) for recognizing the 

importance of carbon capture and storage (CCS) and making an effort to create a 

sound regulatory process that is protective of human health and the environment. 

On behalf of the SWP, we would like to submit the following comments on the 

proposed rule to public record: 

Individual Response: EPA believes that the creation of a new injection well class (VI) under the 

existing UIC Program is necessary to enable the use of GS as a climate change mitigation 

technology in a manner that protects USDWs from endangerment. EPA agrees that the UIC 

Program, under the authority of the SDWA, provides a strong framework for regulating injection 

of CO2 for GS and adds that the GS regulation tailors the UIC requirements to address the 

unique issues associated with 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. 

Letter ID: 0134 Comment ID: 21653 Letter Lines: 39 to 46 

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

Comment Code: 1600 1.3 Risk Associated with CO2 GS 

Comment: 1.) The SWP would like to recommend a risk-based approach to the siting 

requirements, Area of Review (AoR), monitoring requirements, site-closure 

requirements, and the grandfather clause. The EPA notes in several places within 

the proposed rule that each GS site is unique with respect to physical and 

chemical properties. As such, the SWP recommends that the EPA adopt a 

risk/performance-based approach for each site. Reasoning for this recommendation 

as it relates to specific aspects of the proposed rule are outlined by relevant 

sections: 

1
Individual Response: EPA has taken a regulatory approach that promotes USDW protection, 

incorporates flexibility or permitting authority discretion when appropriate, seeks to limit burden 

on owners or operators and permitting agencies, and provides a foundation for national 

consistency in permitting of GS projects. Under the final rule, many of the permit requirements 

must be established through site-specific plans (e.g., AoR and corrective action plan, testing and 

monitoring plan, etc.) developed by the owner or operator and approved by the Director. 

Consequently EPA expects that owners or operators will consult with the Director as they 

develop, implement, and update these plans. Additionally, the Director has the discretion to 

approve alternatives to the requirements in some cases. For example, the Director may in certain 

situations modify the length of the post-injection site care period or approve an alternative postinjection site care timeframe as part of the permitting process under §146.93, allow the use of 

alternate methods for mechanical integrity testing (if approved by EPA) under §146.89, and 

waive the requirement that wells be designed to inject below the lowermost USDW under 

§146.95. 

Letter ID: 0134 Comment ID: 21654 Letter Lines: 48 to 71 

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

(seeking comment) 

Comment: - Section 146.83(b) "At the Director's discretion, owners or operators of Class 

VI wells must identify and characterize additional zones that will impede 

vertical fluid movement, are free of faults and fractures that may interfere 

with containment, allow for pressure dissipation, and provide additional 

opportunities for monitoring mitigation and remediation." 

Response/Discussion: These zones would imply that "secondary containment" is 

necessary for GS. Such zones are not required for Class I hazardous waste wells, 

thereby giving the impression that GS is more risky than the underground storage 

of hazardous waste. While a "stacked system" of reservoirs and seals certainly 

provides additional safeguards to underground sources of drinking water (USDWs), 

in general, these containment zones will not be necessary in every case, 

especially when it can be demonstrated that seal integrity will be maintained 

over the life of a GS project. As stated in the proposed rule, "...their absence 

does not necessarily indicate inappropriateness of a GS site". 

The SWP agrees with the testimony of Edison Electric Institute at the Public 

Hearing on September 30, 2008 (Chicago, IL), that such an additional requirement 

would create the perception of fear among the public. Through international and 

national GS pilot studies of various scales, it has been demonstrated that it is 

very unlikely that GS would harm human health and the environment when sited 

properly. The SWP would recommend that the EPA remove this section from the 

final rule, since detailed siting evaluation is explicitly covered in Sections 

146.83(a)(1,2). 

Individual Response: EPA retains the requirement to identify additional containment/confining 

2
zones, if required by the Director, as proposed (§146.83(b)). EPA acknowledges that such 

additional zones may not be needed in all circumstances, and clarifies that this requirement is at 

the Director's discretion, based on his or her understanding of a particular site. EPA believes that, 

in some situations, the presence of additional confining and containment zones above the 

primary (i.e., lowermost) confining zone can improve USDW protection. These layers could 

further impede vertical fluid movement and allow for pressure dissipation, and also provide 

additional sites for monitoring, mitigation, and remediation. The Agency's decision is supported 

by commenters representing states, water associations, and an electric utility who assert that 

these requirements promote a flexible, risk-based, site-specific approach to characterizing and 

permitting a site for GS projects, and are intended to improve understanding of the project as a 

whole and promote better modeling of the site. 

Letter ID: 0134 Comment ID: 21655 Letter Lines: 73 to 87 

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

Comment Code: 3560 2.2.3.2 Conditions that merit reevaluation of the AoR (seeking comment) 

Comment: - Section 146.84(b)(2)(i) "A description of The minimum fixed frequency, 

not to exceed 10 years, the owner or operator proposes to reevaluate the area of 

review; " 

Section 146.84(b)(2)(ii) "The monitoring and operational conditions that would 

warrant a reevaluation of the area of review prior to the next scheduled 

reevaluation as determined by the minimum fixed frequency established in 

paragraph (b)(2)(i) of this section " 

Response/Discussion: The SWP recommends adopting a risk/performance-based 

approach to AoR re¬evaluation. Since each site is unique, it may be best for the 

operator to work directly with the EPA Director to establish an evaluation 

schedule that would occur as often as needed, but not more than needed. The SWP 

agrees that re-evaluations should be based on updating, revising, and 

calibrating computational models with site-specific data. 

Individual Response: EPA agrees that site-specific factors should be considered in the 

reevaluation schedule, and notes that the AoR and corrective action plan must specify the sitespecific 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. 

However, EPA believes that periodic AoR reevaluation at a set frequency 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 

3
action, and ensure protection of USDWs from endangerment. 

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 

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

Letter ID: 0134 Comment ID: 21656 Letter Lines: 89 to 111 

Comment Code: 3630 2.2.4.1 Comments in favor of allowing phased corrective action 

Comment: - Section 146.84(3)(d) "Owners or operators of Class VI wells must perform 

corrective action on all wells in the area of review that are determined to need 

corrective action using methods necessary to prevent the movement of fluid into 

or between USDWs including use of corrosion resistant materials, where 

appropriate." 

Response/Discussion: The SWP strongly supports a phased approach to corrective 

actions as indicated in the Federal Register, page 43508. This discussion 

includes the following benefits to phased corrective actions: "There are 

potential benefits to implementing phased corrective action. Phasing in the 

corrective action would benefit the owner or operator by spreading out the 

burden and costs of corrective action and not delaying initiation of the GS 

project while corrective action is performed at wells that may not be affected 

by the injection for several decades. Initial corrective action would focus on 

those penetrations that pose a potential endangerment to USDWs from injection of 

CO2 in the near term. Deferring corrective action on some of the wells at the 

outer reaches of the predicted plume can improve USDW protection by giving these 

later corrective action efforts the benefit of newer corrective action 

techniques. Additionally, this approach can prevent the unnecessary burden of 

performing corrective action in areas far from the injection zone that may never 

be impacted This approach would still assure that all wells in the AoR that need 

corrective action eventually receive it, as is the case in current UIC 

requirements." 

Individual Response: EPA acknowledges the commenter’s support of phased corrective action 

and agrees that phased corrective action may provide many benefits to a project including, but 

not limited to, spreading the burden of cost, avoiding delays in project start-up, allowing for use 

of future, improved corrective action techniques and addressing unanticipated changes in the 

movement of the CO2 plume or pressure front. EPA believes that the phased corrective action 

approach is appropriate for GS projects, and retained it at §146.84(b)(2)(iv) in the final GS 

regulation. 

Letter ID: 0134 Comment ID: 21657 Letter Lines: 113 to 127 

4
Comment Code: 4324 2.4.4.1.2 Comments opposed to requiring injection below the lowermost 

USDW 

Comment: - Section 146.86(b)(2) "Surface casing must extend through the base of the 

lowermost USDW and be cemented to the surface." 

Response/Discussion: It is the opinion of the SWP that this section may 

unnecessarily eliminate viable target reservoirs from GS. The SWP recommends a 

site-specific risk-based approach for determining siting criteria. As discussed 

in the first point of this letter, detailed siting criteria with respect to 

injection and confining zones are evaluated in Section 146.83(b) of the proposed 

rule. A definitive rule eliminating injection into any zone above a USDW without 

scientific justification appears to be preliminary in nature and again, may 

create the perception of fear among the public. The SWP recommends either 

removing this section from the final rule or, if kept in the rule, then it be 

expanded to include a site-specific, risk-based approach for approval of 

drilling, casing, and other relevant variances into an injection zone above a 

USDW. 

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 

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 agrees that a site-specific approach is appropriate. 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. 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. 

5
Letter ID: 0134 Comment ID: 21658 Letter Lines: 129 to 143 

Comment Code: 4110 2.4.1.1 Injection pressure limitations 

Comment: - Section 146.88(a) "Except during stimulation, the owner or operator must 

ensure that injection pressure does not exceed 90 percent of the fracture 

pressure of the injection zone so as to assure that the injection does not 

initiate new fractures or propagate existing fractures in the injection zone(s) 

or cause the movement of injection or formation fluids that endangers a USDW." 

Response/Discussion: It should be noted that for GS, injection pressure must be 

maximized. As the pressure spreads, the state of stress away from the well will 

also change. It must also be considered that unmapped faults could exist at some 

distance away from the injection well. The pressure needed to reactivate or 

propagate these faults could be less than 90 percent of the fracture pressure. 

The SWP would like to recommend a site-specific, performance-based approach to 

injection pressure requirements. Continuous site monitoring (discussed in 

Sections 146.88(e) and 146.90(g)) along with a detailed mitigation plan, will 

help operators and the EPA Director develop site-specific injection pressure and 

mitigation plan requirements. 

Individual Response: EPA agrees that the maximum injection pressure should be based on sitespecific conditions. During the site characterization process, owners or operators must submit 

data about the geology of the site, as specified at §146.82(a), including data on known or 

suspected faults and fractures and geomechanical information on fractures, stress, ductility, rock 

strength, and in situ fluid pressures within the confining zone. If the Director determines, based 

on a review of this information, that a lower injection pressure limitation is appropriate, the 

Director has the authority to set a lower limit in the operating permit. EPA adds that any sites 

with the potential for reopening or reactivation of faults or unacceptable seismic risk that could 

otherwise interfere with containment will not be permitted as GS sites. 

Letter ID: 0134 Comment ID: 21659 Letter Lines: 145 to 156 

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: - Section 146.93(b)(1) "The owner or operator shall continue to conduct 

monitoring as specified in the Director-approved post-injection site care and 

site closure plan for at least 50 years following the cessation of injection. At 

the Director's discretion, the monitoring will continue until the geologic 

sequestration project no longer poses an endangerment to USDWs." 

Response/Discussion: The SWP recommends adopting a performance-based approach to 

the site care period so that each site is monitored for as long as necessary, 

but not longer than necessary in order to avoid an extra cost burden to 

regulators and owners/operators. The required site-specific "post-injection site 

care and site closure plan" appears sufficient to convey appropriate monitoring 

6
techniques and timescales to the EPA Director. 

Individual Response: 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. 

EPA acknowledges the commenter’s support of the post-injection site care and site closure plan; 

the final GS regulation retains this provision. 

Letter ID: 0134 Comment ID: 21660 Letter Lines: 158 to 172 

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

Comment: - Section 146.81(c) "This subpart applies to owners and operators of 

permit or rule-authorized Class I industrial, Class II, or Class V experimental 

carbon dioxide injection projects who seek to apply for a Class VI geologic 

sequestration permit for their well or wells. If the Director determines that 

USDWs will not be endangered, such wells are exempt, at the Director's 

discretion, from the casing and cementing requirements at .¢§ 146.86(b) and 

146.87(a)(I) through (3)." 

Response/Discussion: Only the casing and cementing requirements would be 

"grandfathered" into the Class VI permit if accepted by the EPA Director. The 

SWP recommends the consideration of grandfathering Class I, II, and V permits 

into the Class VI category on a site-specific basis. Many of the Class VI 

regulations mirror Class I, II, and V permit regulations, therefore, the time 

and budget it would require the owner/operator and EPA Director to re-permit an 

existing well may not be required. 

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 

7
provides that the construction of these wells 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 with commenters who suggest that other requirements (outside of well 

construction) should also be grandfathered. Following re-permitting 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: 0134 Comment ID: 21661 Letter Lines: 174 to 201 

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

CFR 146.85) 

Comment: 2.) The SWP would like to comment on site liability. 

Section 146.85(a) "The owner or operator must demonstrate and maintain financial 

responsibility and resources for corrective action (that meets the requirements 

of §146.84), injection well plugging (that meets the requirements of §146.92), 

post-injection site care and site closure (that meets the requirements of 

§14693), and emergency and remedial response (that meets the requirements of 

§I46.94) in a manner prescribed by the Director until ...." 

Response/Discussion: While long-term liability with respect to property rights, 

personal risk, air quality, etc. are beyond the scope of the proposed rule, the 

SWP would like to note that it would be highly unlikely for any commercial scale 

GS project to be initiated without private insurance or a state/federal 

revolving assurance fund that could cover the project from the beginning to 

beyond site-closure ("cradle to grave"), which, with a 50-year post-injection 

site care plan, could be over one hundred years. Since long-term CCS is 

relatively new and the potential "risks" are not well understood by insurers, it 

is unlikely that any private insurer would cover a project for such a time span, 

but rather they may create a renewable policy over short timescales (i.e., 2-5 

year increments). In addition, there is no assurance that an owner/operator 

would still be in business 50 years (and beyond) after CO2 injection ceases. 

The SWP agrees with financial responsibility requirements under the current UIC 

Program for Class II wells as they relate to the injection period and recommend 

that these be adopted for Class VI wells. The issues of liability and financial 

responsibility for post-injection site care and after site closure will severely 

8
impact private/public industry's decision to conduct CCS projects if these 

requirements are too burdensome to fulfill. 

Individual Response: The goal of financial responsibility is to assure that resources are 

available to prevent endangerment of USDWs from improper plugging, remediation, and 

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

EPA agrees that assuring financial responsibility for corrective action on wells in the AoR, 

injection well plugging, PISC and site closure, and emergency and remedial response at GS sites 

is an important component of ensuring that USDWs are protected. EPA has specified acceptable 

financial responsibility instruments in the final regulation, believes that the tailored financial 

responsibility requirements at §146.85 are appropriate for Class VI wells. 

EPA anticipates that the availability of third-party GS financial instruments will grow in 

response to demand for such instruments by Class VI well owners or operators as deployment of 

GS technology increases in the future. In addition, EPA plans to allow owners or operators to 

choose from a variety of financial instruments to meet their financial responsibility needs, 

thereby allowing owners or operators to select instruments they find easiest to obtain. See the 

final rule and preamble for further discussion of EPA's final approach to financial responsibility. 

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. 

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 generally all other regulatory responsibilities are transferred to that 

new owner and operator, which includes 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. 

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. 

9
§§ 7401-7671; CERCLA, 42 U.S.C. § 9601-9675; and RCRA, 42 U.S.C. § 6901-6992. EPA 

does not have authority to transfer SDWA or other legal liability for Class VI wells to the State 

or federal government or a third-party fund. See the final rule preamble for further discussion of 

EPA's final approach. 

Letter ID: 0134 Comment ID: 21662 Letter Lines: 203 to 218 

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

Comment: The SWP supports the recommendation of the IOGCC [Footnote IOGCC. 2007. A 

Legal and 

Regulatory Guide for States and Provinces. Task Force on Carbon Capture and 

Storage, IOGCC, September 25, 2007.] to create a state-administered 

compensation fund for post site closure stewardship for the following reasons: 

- The SWP agrees that states/provinces are in the best position to oversee 

CCS regulatory compliance within their jurisdiction; 

- The funding mechanism is sound and has a history of success with 

abandoned or orphaned oil and gas wells and underground storage tank release 

sites; 

- The SWP agrees that after a site has been successfully closed, liability 

should transfer from the owner/operator to the state(s), who can assure that the 

site is properly monitored and maintained; and 

- Long-term post-closure liability left in the hands of the owner/operator 

would hinder many (if not all) commercial scale CCS projects from 

implementation. 

Individual Response: 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 

a civil action for appropriate relief against the owner or operator of a Class VI well. If the owner 

10
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. Please 

note that EPA does not have authority to transfer SDWA or other legal liability for Class VI 

wells to the State or federal government or a third-party fund. See the final rule preamble for 

further discussion of EPA's final approach. 

Letter ID: 0134 Comment ID: 21663 Letter Lines: 220 to 234 

Comment Code: 1300 1.1.2.3 Comments on other aspects of CCS (capture, transport) 

Comment: 3.) The SWP would like to comment on the compatibility of the proposed rule 

with other regulatory processes. 

The CCS process is extremely complex. The proposed rule is associated with 

storage of CO2 as it relates to protecting USDWs under the UIC program. Other 

aspects of the process including capture, compression, and transport of CO2 are 

not addressed within the proposed rule, and rightfully so since those processes 

are independent of the UIC program. In the overall scheme of permitting a 

commercial scale CCS site, has any consideration been given to the compatibility 

of the UIC proposed rule with other permitting processes (i.e., pipeline, air 

quality, etc) so as to streamline all regulatory requirements? The SWP would 

like to suggest collaboration with other permitting agencies, at the state and 

federal level, as regulatory framework development progresses so that the 

permitting of an entire CCS project is not unrealistically burdensome for the 

regulators and owners/operators. 

Individual Response: EPA agrees that a strong regulatory framework will be important to 

ensuring that GS is deployed safely. EPA believes that the Class VI GS regulation will provide 

certainty, consistency, and transparency to owners or operators and the public about 

requirements that apply to GS injection across the United States. The Class VI GS regulation 

builds upon the long-standing, protective framework of the UIC program, which has been 

regulating the injection of billions of gallons of liquids for decades. The Class VI GS regulation 

enhances this existing framework with requirements for GS wells that are tailored to the unique 

nature of large scale GS of CO2. These additional protective requirements include more 

extensive geologic testing, detailed computational modeling of the AoR and periodic reevaluations, detailed requirements for monitoring and tracking the CO2 plume and pressure 

front, and extended post-injection monitoring and site care. 

In response to the suggestion that the Agency develop an integrated permitting process that 

addresses the entire CCS process, EPA clarifies that the UIC program’s authority under SDWA 

is focused on ensuring protection of USDWs from endangerment. The capture and transport of 

CO2 are outside of the scope of the Class VI GS rulemaking. 

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Letter ID: 0134 Comment ID: 21664 Letter Lines: 236 to 249 

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: 4.) The SWP would like to comment on area permits and dual-purpose wells as 

they relate to commercial scale sequestration fields. 

The purpose of the proposed Class VI well is strictly for injection of CO2. The 

SWP would like to point out that for a commercial scale sequestration site there 

may be several injection wells that serve multiple purposes (i.e., injection of 

CO2, injection of brine, production of CO2 and production of brine). For 

example, one of the mitigation strategies for relieving pressure on an injection 

reservoir may be to produce either injected CO2 or displaced brine. As a form of 

"waste management", it may be desirable to re-inject the produced brine into 

another reservoir. In that case, a single well could serve as a CO2 injection 

well, brine disposal well, and production well. The SWP recommends that the EPA 

address the permitting requirements for both a large area (i.e., area permit) 

and dual-purpose wells in relation to geologic sequestration. 

Individual Response: EPA disagrees that area permits are appropriate for GS projects or that 

dual-purpose wells may be permitted as Class VI wells. EPA clarifies that the Class VI 

requirements in the GS rule are for CO2 injection for long-term storage of large volumes of 

CO2. EPA acknowledges that multiple wells may interact at a given GS site. EPA also believes 

that requiring separate permit applications for each GS well will ensure sufficient review and that 

the public has an opportunity to provide input on each well in the field as it is constructed or 

brought online. 

EPA is developing guidance on transitioning permits from Class II to Class VI. The guidance 

will assist Directors in evaluating whether an injection project should transition from Class II 

where the primary purpose is oil and gas production to Class VI where the primary purpose is 

long-term storage of large volumes of CO2. The guidance describes the methods available for 

the Director to determine changes in risk to USDWs from projects, and how the Director may 

determine whether a project should be regulated within the Class II or Class VI UIC program. 

This guidance will be available on EPA’s website at 

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

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

Letter ID: 0134 Comment ID: 21665 Letter Lines: 251 to 257 

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

Comment: In conclusion, the SWP recommends a site-specific, performance/risk-based 

approach to the fmal regulatory framework. This method will allow for 

consideration of the uniqueness of each CCS site, and accommodate advancements 

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in technology over time. The SWP would also urge collaboration with other 

regulatory agencies and private insurers to establish a sound regulatory 

framework with long-term funding and oversight at the state level. Thank you for 

the opportunity to comment. 

Individual Response: The Agency believes that the Class VI requirements balance site-specific 

flexibility with USDW protection. Rather than setting performance or technology-based 

standards for GS projects, EPA is adopting a flexible approach, where operators of GS projects 

would develop and implement site-specific plans for delineating the AoR, testing and monitoring 

the site, performing corrective action, and post-injection site care. EPA believes that the plans—

which would be reviewed and approved by the Director and periodically updated throughout the 

life of the project—promote an ongoing dialogue between the operator and the Director that will 

encourage use of the most appropriate technologies for a particular project.