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.
The Fertilizer Institute 

Nourish, Replenish, Grow 

William C. Herz 

Vice President, 

Scientific Programs 

DEC 2 4 2008 

December 23, 2008 

VIA HAND DELIVERY 

Water Docket, EPA Docket Center (EPA/DC) 

EPA West, Room 3334 

1301 Constitution Ave., N.W. 

Washington, DC 20460 

Re: The Fertilizer Institute Comments on EPA's Notice of Proposed Rulemaking 

Entitled "Federal Requirements Under the Underground Injection Control 

(UIC) Program for Carbon Dioxide (CO,,) Geologic Sequestration (GS) 

Wells Proposed Rule," Docket ID No. EPA-HQ-OW-2008-0390 

Dear Sir or Madam: 

The Fertilizer Institute (TFI), on behalf of its member companies, submits these comments in 

response to the U.S . Environmental Protection Agency's (EPA) Notice of Proposed 

Rulemaking (NPRM) entitled "Federal Requirements Under the Underground Injection Control 

(UIC) Program for Carbon Dioxide (C02) Geologic Sequestration (GS) Wells Proposed Rule," 

published in the Federal Register on July 25, 2008, and appearing at 73 Fed. Reg. 43,492 . 

Statement of Interest 

TFI is the national trade association representing fertilizer producers, retailers, wholesalers and 

importers. Its members are served by a full-time Washington, D.C. staff in various legislative, 

educational and technical areas, as well as with information and public relations programs. 

Although the rule is geared specifically towards well operators (73 Fed. Reg. 43,492), there are 

several components that may affect potential upstream industrial clients and are of interest to 

TFI members. TFI members include several manufacturers that produce C02 and sell this 

byproduct via pipeline to oil and gas producers for enhanced oil and gas recovery in Class II 

wells. Because the NPRM has the potential to affect future use of C02 pipelines for both 

enhanced oil and gas recovery and carbon sequestration, TFI and its members have an interest 

in EPA's solicitation of comments regarding the possible regulation of C02 GS wells under the 

UIC Program. 

DEC 2 4 2008 

Union Center Plaza 202.962 .0490 

820 First Street, NE Suite 430 202.962 .0577 fax 

Washington, DC 20002 www.tfi .org 
Water Docket, EPA Docket Center (EPA/DC) 

December 23, 2008 

Page 2 

General Comments 

TFI wishes to thank EPA for the opportunity to comment on the proposed requirements for 

underground injection of COZ under the Safe Drinking Water Act (SDWA), and for holding a 

public hearing on the subject. TFI is generally supportive of the proposed rules, but would ask 

for additional regulatory clarification and/or guidance for potential upstream industrial clients. 

Specific Comments 

Proposal to Create New Category of Injection Well - Class VI Wells 

EPA is proposing to create a new category of injection well under its existing UIC Program 

with new federal requirements to allow for the injection of COZ for the purpose of GS. EPA 

proposes to tailor existing UIC program components so that they are appropriate for the unique 

nature of injecting large volumes of COZ into a variety of geological formations to ensure that 

underground sources of drinking water (USDW) are not endangered (73 Fed. Reg. 43,495). 

TFI supports establishing a new class of well - Class VI - specifically for COZ geologic 

sequestration and maintaining injection of COZ for the purposes of enhanced oil and gas 

recovery under the Class II program, and the potential for an expanded UIC program to support 

development of a key climate change mitigation technology . TFI generally agrees with the 

Agency's stated goal of providing "certainty to industry and the public about requirements that 

would apply to injection, by providing consistency in requirements across the U.S., and 

transparency about what requirements apply to owners or operators" (73 Fed. Reg. 43,496). As 

discussed further in our comments, TFI requests additional clarification so that these regulations 

also provide certainty, consistency and transparency regarding which requirements apply to 

potential upstream industrial sources such as fertilizer manufacturers. 

Reclassification of Existing Wells as Class VI Wells 

EPA seeks comment on its approach to grandfather construction requirements at the Director's 

discretion for existing Class I, Class II, and Class V wells seeking to convert to Class VI wells, 

and whether additional construction requirements would be necessary to prevent endangerment 

to USDWs from the GS of COz. Additionally, EPA seeks comment on how the grandfathering 

approach for existing wells may affect compliance with the requirements in this proposal (73 

Fed. Reg. 43,502). 

TFI also supports provisions allowing Class I, II and V wells to be repermitted as Class VI 

wells. We also support proposed language that would "grandfather" construction requirements 

for Class I or II wells seeking repermitting as a Class VI well. TFI does not foresee the need for 

additional construction requirements or that grandfathering existing Class I, Class II, and Class 

V wells will affect compliance with the proposed Class VI regulations. 
Water Docket, EPA Docket Center (EPA/DC) 

December 23, 2008 

Page 3 

Target Geologic Formations for GS of C02 

TFI agrees that other abandoned mines, including potash mines, are potential C02 storage 

options and would be willing to assist EPA in exploring this option further. (73 Fed. Reg. 

43,503) 

Injected C02 as a Hazardous Waste under the Resource Conservation and Recovery Act (RCRA) 

EPA seeks comment on defining "carbon dioxide stream" to exclude hazardous wastes 

(146.81(d)) in order to assure that it would apply only to COZ streams that are not hazardous 

wastes as defined in 40 CFR Part 261 . As a result, today's proposed rule would preclude the 

injection of hazardous wastes in Class VI injection wells. EPA also seeks comment on other 

considerations associated with the presence of impurities in the COZ stream . (73 Fed. Reg. 43,503) 

TFI understands EPA's concern with the potential for impurities in the COZ stream and the risk 

that contaminants such as hydrogen sulfide and sulfurous and nitrous oxides in the COZ stream 

could migrate into a USDW. TFI also agrees that because the types of impurities and their 

concentrations in the COZ stream are likely to vary by facility, plant operating conditions and 

pollution removal technologies, EPA cannot make a categorical determination as to whether 

injected COZ is a hazardous waste under RCRA. 

TFI asks for greater guidance for potential upstream industrial clients of COZ wells. TFI is 

concerned about the implications of considering the long-term storage of COz as "discard" as EPA suggests by stating that the COZ stream needs to be non-hazardous. RCRA applicability to carbon sequestration activities would discourage industry from engaging in sequestration to avoid associated regulatory burdens and potential citizen suits. EPA should therefore interpret its rule to exclude GS injectate from RCRA regulation to the greatest degree possible. RCRA 

would apply only where the injectate meets the definitional criteria in 42 U.S .C. § 6903(27). 

GS injectate should not qualify as a "solid waste" under this definition because the injectate is not "discarded" but is recoverable and has commercial value, in particular in enhanced oil 

recovery operation . In other regulatory situations EPA has exempted materials from RCRA where the materials are subject to a separate regulatory regime providing equivalent 

environmentally protective measures (such as UIC). EPA states in the NPRM that the UIC 

regulatory scheme is adequate to protect USDWs, and that "chronic and acute health effects from airborne exposure resulting from COZ injection activities even in the case of leakage or accidental exposure is minimal." 72 Fed. Reg. at 43487-98. EPA has relied on "contingent 

management" (management of materials outside of RCRA regulation where a separate 

regulatory regime provides equivalent protection) to great effect and in a manner which has been upheld by federal courts. See Military Toxics Project v. EPA, 146 F. 3d 948 (D.C. Cir. 1998). As such, TFI requests that EPA interpret the injectate to not constitute a RCRA- regulated waste, or at least to apply contingent management to the injectate to avoid RCRA regulation. 
Water Docket, EPA Docket Center (EPA/DC) 

December 23, 2008 

Page 4 

Furthermore, to the extent they are not already expressly exempted, TFI requests that the final 

rule delineate monitoring and/or reporting requirements for upstream industrial clients that 

could provide RCRA liability relief. TFI asks that upstream industrial clients providing COZ 

streams that are not hazardous wastes as defined in 40 CFR Part 261 be provided an exemption 

from RCRA liability. Absent a RCRA exemption, TFI requests that EPA develop contaminant 

limits that would be allowed in COZ streams from upstream industrial clients.TFI also asks that 

EPA clarify that risks to USDWs from improperly managed GS projects - including COZ 

migration into USDWs, causing the leaching and mobilization of contaminants (e.g ., arsenic, 

lead, and organic compounds), changes in regional groundwater flow, and the movement of 

saltier formation fluids into USDWs, causing degradation of water quality (73 Fed. Reg. 

43,497) - are solely the responsibility of the owner and/or operator of the well. 

Where not otherwise exempted from RCRA, delineation of contaminant levels, monitoring and 

recordkeeping requirements and liability protection are necessary to provide the certainty, 

consistency and transparency to potential upstream industrial clients. TFI also is concerned 

about the consequences of COZ storage prior to injection as related to the potential implications 

for solid waste storage regulations as well as applicable state regulatory obligations on the 

injection of solid waste. 

Consideration of Injected COZ as a Hazardous Substance under the Comprehensive 

Environmental Response Compensation and Liability Act (CERCLA) 

TFI also asks for additional clarification on potential CERCLA liability. We agree with EPA's 

interpretation in the proposed rule that the release of COZ, if the rule is adopted as proposed, 

would constitute a "federally permitted release" as defined in CERCLA, 42 U.S .C. § 9601 (10), 

and that CERCLA exempts from liability releases in compliance with a UIC permit under 

SDWA (73 Fed. Reg. 43,503). However, we remain concerned about potential CERCLA 

liability for upstream industrial clients of sequestration wells, especially for comingled COZ 

streams and for injectate stream constituents that could react with groundwater to produce listed 

hazardous substances. 

If EPA, as it has stated, desires to encourage implementation of carbon sequestration 

technology by industry, it should exempt such activities from CERCLA liability. If EPA 

should decide against such an exemption, TFI asks that EPA include regulatory language 

governing monitoring and/or reporting requirements for upstream industrial clients of 

sequestration wells that would provide CERCLA liability relief or exclusion in the promulgated 

rule . For example, EPA could provide in the rule that upstream industrial clients providing COZ 

streams could make certain demonstrations of conditions under which EPA will not consider 

the injectate exempt from the purview of CERCLA. This exemption should apply, by extension, 

to any claims brought against upstream clients of sequestration wells for natural resource 

damages. 

Furthermore, TFI requests that EPA develop monitoring report requirements which provide the 

basis of establishing the injectate as a "federally permitted release" as defined in CERCLA. 

Where these reports indicate no presence of CERCLA hazardous substances, the injectate 
Water Docket, EPA Docket Center (EPA/DC) 

December 23, 2008 

Page 5 

should be considered a "federally permitted release" exempt from CERCLA liability. EPA 

should clarify in the rule that C02, absent impurities constituting hazardous substances or with 

the potential to react with groundwater constituents to form hazardous substances, is not itself a 

CERCLA hazardous substance. This liability exemption for "federally permitted releases" 

should extend to upstream clients of sequestration wells even for accidental releases or where 

releases from the well are not in accordance with the well operator's UIC permit . As an 

alternative, EPA should establish contaminant limits in the injectate of upstream clients of 

sequestration wells. 

TFI requests clarification for upstream industrial clients as to the appropriate requirements for "analyz[ing] the COZ stream at a frequency sufficient to yield data representative of its chemical 

and physical characteristics" (73 Fed. Reg. 43,514 and 73 Fed. Reg. 43,549), as well as 

appropriate requirements for upstream industrial clients in terms of monitoring and 

recordkeeping. TFI suggests a semi-annual monitoring report and a three-year post injectate or 

site closure data retention period for upstream industrial clients similar to that proposed for 

owners or operators of Class VI wells (73 Fed. Reg. 43,517), regardless of the post-closure site 

care period selected (73 Fed. Reg. 43,518). 

TFI also asks that EPA include regulatory language providing liability protection or exclusion 

for upstream industrial clients in the event of potential future liability in the event of leaks, well failure or release of reaction products . 

Depth of COI Injection 

EPA is soliciting comment on whether COZ injection should be allowed into an injection zone above the lowermost USDW, when the Director determines that geologic conditions (e.g., 

thousands of feet of intervening formations between the injection zone and the overlying and/or 

underlying USDWs) exist that will prevent fluid movement into adjacent USDWs. EPA is also requesting comments on whether aquifer exemptions should be allowed for the purpose of Class VI injection, and under what conditions should such aquifer exemptions be approved. Finally, EPA seeks comment on whether the Agency should set a minimum injection depth requirement for COZ GS, rather than require that such injection take place below the lowermost USDW (73 Fed. Reg. 43,512). 

TFI agrees with the alternative under consideration allowing for the Director's discretion in 

allowing injection above or between USDWs in specific geologic settings where the depth of the 

USDWs may preclude GS, make GS technically challenging, or significantly limit COZ storage capacity in permit applications in which it is demonstrated that USDWs would not be endangered (73 Fed. Reg. 43,512). A provision for the "Director's discretion" should be fully 

delineated in the final rule . This provision should allow the Director to determine whether the confining system is "of sufficient regional thickness and lateral extent to contain the entire COZ plume and associated pressure front under the confining system following the plume's maximum lateral expansion (73 Fed. Reg. 43,505)." As EPA states later in the proposed rule, "[i]f the trapping mechanism is sufficiently protective, the injected C02 should be contained 
Water Docket, EPA Docket Center (EPA/DC) 

December 23, 2008 

Page 6 

regardless of its phase (73 Fed. Reg. 43,511)." TFI believes that aquifers associated with Class 

VI injection should be able to be reclassified as exempt aquifers under Part 144.7 . 

Financial Assurance Instruments 

TFI recommends that EPA implement a flexible approach to the types of financial assurance 

mechanisms authorized by the NPRM. The broadest possible array of available instruments 

would go furthest in promoting EPA's expressed policy to encourage carbon sequestration 

while still avoiding, to the greatest extent possible, imposition of remediation costs on the 

public . In addition to those instruments already addressed in the NPRM, EPA should allow 

demonstration of financial assurance through trust funds, environmental insurance, corporate 

guarantees, and letters of credit. 

Definition of "Significant Leakage" 

TFI requests that EPA define the term "significant leakage" in the context of mechanical 

integrity testing and quantify amounts to avoid misinterpretations and to prevent de minimus 

C02 leakage from falling under this term. 

Conclusion 

TFI has been pleased to submit these comments on EPA's NPRM. TFI thanks EPA for 

advancing an important tool for future carbon sequestration with the Agency's proposed 

requirements under the SDWA for underground injection of COZ for the purpose of GS. We 

urge EPA to work with potential industrial clients to clarify the analysis, monitoring and record 

keeping requirements that will be necessary to minimize potential future liability in an effort to 

promote and facilitate implementation of this important carbon emissions mitigation technology 

among industry. Please contact me by telephone at (202) 515-2706 or via e-mail at 

wcherz(-)a,tfi .org if you would like to further discuss TFI's comments. 

Sincerely yours, 

William C. Herz 

Vice President, Scientific Programs 
Letter ID: 0266 

Commenter: William Herz 

Organization: The Fertilizer Institute 

Letter ID: 0266 Comment ID: 22875 Letter Lines: 65 to 71 

Comment Code: 1420 1.2.1.1 Support the GS rulemaking 

Comment: General Comments 

TFI wishes to thank EPA for the opportunity to comment on the proposed requirements 

for underground injection of CO2 under the Safe Drinking Water Act (SDWA),and for 

holding a public hearing on the subject. TFI is generally supportive of the 

proposed rules, but would ask for additional regulatory clarification and/or 

guidance for potential upstream industrial clients. 

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. 

EPA agrees that input of and participation by a wide spectrum of stakeholders is a vital 

component of successful rulemaking. The Agency appreciates the degree of cooperation, 

participation, and active dialogue between the EPA and stakeholders and will continue to work 

with stakeholders and experts as it implements the GS rule. 

EPA is developing a series of guidance documents to support the GS rulemaking. These are 

available on EPA’s website at 

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

Letter ID: 0266 Comment ID: 22876 Letter Lines: 75 to 95 

Comment Code: 2020 1.5.1 Support Class VI designation 

Comment: Proposal to Create New Category of Injection Well-Class VI Wells 

EPA is proposing to create a new category of injection well under its existing 

UIC Program with new federal requirements to allow for the injection of CO2 for the 

purpose of GS. EPA proposes to tailor existing UIC program components so that they 

are appropriate for the unique nature of injecting large volumes of CO2 into a 

variety of geological formations to ensure that underground sources of drinking 

1
water (USDW) are not endangered (73 Fed. Reg. 43,495). 

TFI supports establishing a new class of well - Class VI - specifically for CO2 

geologic sequestration and maintaining injection of CO2 for the purposes 

of enhanced oil and gas recovery under the Class II program, and the potential for 

an expanded UIC program to support development of a key climate change mitigation 

technology. TFI generally agrees with the Agency's stated goal of providing 

"certainty to industry and the public about requirements that would apply to 

injection, by providing consistency in requirements across the U.S., and 

transparency about what requirements apply to owners or operators" (73 Fed. Reg. 

43,496). As discussed further in our comments, TFI requests additional 

clarification so that these regulations also provide certainty, consistency 

and transparency regarding which requirements apply to potential upstream 

industrial sources such as fertilizer manufacturers. 

Individual Response: EPA agrees that tailored requirements for Class VI wells are necessary to 

address the unique nature of injecting large volumes of CO2 and to ensure that USDWs are 

protected from endangerment. The GS rule contains tailored requirements for the permitting, 

geologic site characterization, AoR and corrective action, well construction, operation, 

mechanical integrity testing, monitoring, well plugging, post-injection site care, and site closure 

of GS wells that directly address issues unique to the nature of large-scale CO2 injection for GS. 

EPA believes that the GS rulemaking does provide certainty, consistency and transparency for 

those parties who will be regulated under the rulemaking. 

EPA also agrees that the nature and risks of CO2 injection for long term storage is different from 

Class II CO2 injection for ER. For this reason, the Agency tailored UIC requirements for Class 

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

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

reservoir pressure conditions). 

EPA clarifies that the Class VI requirements do not apply to the source of the CO2, only to the 

owner or operator of the injection well. 

Letter ID: 0266 Comment ID: 22877 Letter Lines: 97 to 112 

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

Comment: Reclassification of Existing Wells as Class VI Wells 

EPA seeks comment on its approach to grandfather construction requirements at 

the Director's discretion for existing Class I, Class II, and Class V wells 

seeking to convert to Class VI wells, and whether additional construction 

requirements would be necessary to prevent endangerment to USDWs from the GS of CO2. 

Additionally, EPA seeks comment on how the grandfathering approach for existing 

wells may affect compliance with the requirements in this proposal (73 Fed. Reg. 

43,502). 

2
TFI also supports provisions allowing Class I, II and V wells to be repermitted as 

Class VI wells. We also support proposed language that would "grandfather" 

construction requirements for Class I or II wells seeking repermitting as a Class 

VI well. TFI does not foresee the need for additional construction requirements 

or that grandfathering existing Class I, Class II, and Class V wells will affect 

compliance with the proposed Class VI regulations. 

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). 

Letter ID: 0266 Comment ID: 22878 Letter Lines: 115 to 119 

Comment Code: 2200 1.6.4 Other formation types 

Comment: Target Geologic Formations for GS of CO2 

TFI agrees that other abandoned mines, including potash mines, are potential 

CO2 storage options and would be willing to assist EPA in exploring this option 

further. (73 Fed. Reg. 43,503) 

Individual Response: EPA clarifies that the GS rule does not categorically preclude injection of 

CO2 into any non-USDW formation types. The purpose of the GS rule is to ensure protection of 

USDWs from endangerment, and the rule requires that owners or operators demonstrate that 

wells are sited in suitable systems with geologic formations to receive and confine injected CO2, 

required at §146.83 of the GS rule. The Class VI siting, well construction and operation, 

monitoring and testing, and post-injection site care and site closure requirements are designed to 

ensure that injected CO2 remains within the target formation. If an owner or operator can 

demonstrate to the Director's satisfaction that GS in coal seams, basalts, salt domes, or shales can 

be accomplished in a manner that protects USDWs and meets all of the requirements of the GS 

rule, the project may be permitted as a Class VI well. 

EPA acknowledges that there may be risks associated with GS, particularly regarding GS into 

formations such as coal seams, basalts, salt domes, or shales, which have been the subject of 

limited experimental projects in the past. For this reason, the Agency is using an adaptive 

approach to regulate GS injection. EPA will collect and review project data on early GS projects, 

including those that inject into various formation types, to determine whether the appropriate 

amount and types of information and documentation are being collected. EPA plans, every six 

years, to 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. 

3
Letter ID: 0266 Comment ID: 22879 Letter Lines: 121 to 186 

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

Comment: Injected CO2 as a Hazardous Waste under the Resource Conservation and Recovery 

Act (RCRA) 

EPA seeks comment on defining "carbon dioxide stream" to exclude hazardous wastes 

(146.81(d)) in order to assure that it would apply only to CO2 streams that are 

not hazardous wastes as defined in 40 CFR Part 261. As a result, today's proposed 

rule would preclude the injection of hazardous wastes in Class VI injection 

wells. EPA also seeks comment on other considerations associated with the 

presence of impurities in the CO2 stream. (73 Fed. Reg. 43,503) 

TFI understands EPA's concern with the potential for impurities in the CO2 stream 

and the risk that contaminants such as hydrogen sulfide and sulfurous and nitrous 

oxides in the CO2 stream could migrate into a USDW. TFI also agrees that because 

the types of impurities and their concentrations in the CO2 stream are likely to 

vary by facility, plant operating conditions and pollution removal technologies, 

EPA cannot make a categorical determination as to whether injected CO2 is a 

hazardous waste under RCRA. 

TFI asks for greater guidance for potential upstream industrial clients of CO2 

wells. TFI is concerned about the implications of considering the long-term 

storage of CO2 as "discard" as EPA suggests by stating that the CO2 stream needs 

to be non-hazardous. RCRA applicability to carbon sequestration activities would 

discourage industry from engaging in sequestration to avoid associated regulatory 

burdens and potential citizen suits. EPA should therefore interpret its rule to 

exclude GS injectate from RCRA regulation to the greatest degree possible. 

RCRA would apply only where the injectate meets the definitional criteria in 42 

U.S.C. § 6903(27). 

GS injectate should not qualify as a "solid waste" under this definition because 

the injectate is not "discarded" but is recoverable and has commercial value, in 

particular in enhanced oil recovery operation. In other regulatory situations 

EPA has exempted materials from RCRA where the materials are subject to a 

separate regulatory regime providing equivalent environmentally protective 

measures (such as UIC). EPA states in the NPRM that the UIC regulatory scheme is 

adequate to protect USDWs, and that "chronic and acute health effects from 

airborne exposure resulting from CO2 injection activities even in the case 

of leakage or accidental exposure is minimal." 72 Fed. Reg. at 43487-98. EPA has 

relied on "contingent management" (management of materials outside 

of RCRA regulation where a separate regulatory regime provides equivalent 

protection) to great effect and in a manner which has been upheld by federal 

courts. See Military Toxics Project v. EPA, 146 F. 3d 948 (D.C. Cir.1998). As 

4
such, TFI requests that EPA interpret the injectate to not constitute a RCRAregulated waste, or at least to apply contingent management to the injectate to 

avoid RCRA regulation. 

Furthermore, to the extent they are not already expressly exempted, TFI requests 

that the final rule delineate monitoring and/or reporting requirements 

for upstream industrial clients that could provide RCRA liability relief. TFI asks 

that upstream industrial clients providing CO2 streams that are not hazardous 

wastes as defined in 40 CFR Part 261 be provided an exemption from RCRA 

liability. Absent a RCRA exemption, TFI requests that EPA develop contaminant 

limits that would be allowed in CO2 streams from upstream industrial clients. TFI 

also asks that EPA clarify that risks to USDWs from improperly managed GS projects 

-including CO2 migration into USDWs, causing the leaching and mobilization 

of contaminants (e.g., arsenic, lead, and organic compounds), changes in regional 

groundwater flow, and the movement of saltier formation fluids into USDWs, 

causing degradation of water quality (73 Fed. Reg. 43,497) -are solely the 

responsibility of the owner and/or operator of the well. 

Where not otherwise exempted from RCRA, delineation of contaminant levels, 

monitoring and recordkeeping requirements and liability protection are necessary 

to provide the certainty, consistency and transparency to potential upstream 

industrial clients. TFI also is concerned about the consequences of CO2 storage 

prior to injection as related to the potential implications for solid waste 

storage regulations as well as applicable state regulatory obligations on the 

injection of solid waste. 

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. 

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

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

USDWs from endangerment. 

Letter ID: 0266 Comment ID: 22880 Letter Lines: 188 to 237 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

5
Comment: Consideration of Injected CO2 as a Hazardous Substance under the Comprehensive 

Environmental Response Compensation and Liability Act (CERCLA) 

TFI also asks for additional clarification on potential CERCLA liability. We agree 

with EPA's interpretation in the proposed rule that the release of CO2, if the 

rule is adopted as proposed, would constitute a" federally permitted release" as 

defined in CERCLA,42 U.S.C. § 9601 (10), and that CERCLA exempts from liability 

releases in compliance with a UIC permit under SDWA (73 Fed. Reg. 43,503). 

However, we remain concerned about potential CERCLA liability for upstream 

industrial clients of sequestration wells, especially for comingled CO2 streams 

and for injectate stream constituents that could react with groundwater to 

produce listed hazardous substances. 

If EPA, as it has stated, desires to encourage implementation of carbon 

sequestration technology by industry, it should exempt such activities from 

CERCLA liability. If EPA should decide against such an exemption, TFI asks that 

EPA include regulatory language governing monitoring and/or reporting requirements 

for upstream industrial clients of sequestration wells that would provide CERCLA 

liability relief or exclusion in the promulgated rule. For example, EPA could 

provide in the rule that upstream industrial clients providing CO2 streams could 

make certain demonstrations of conditions under which EPA will not consider the 

injectate exempt from the purview of CERCLA. This exemption should apply, by 

extension, to any claims brought against upstream clients of sequestration wells 

for natural resource damages. Furthermore, TFI requests that EPA develop 

monitoring report requirements which provide the basis of establishing the 

injectate as a "federally permitted release" as defined in CERCLA. Where these 

reports indicate no presence of CERCLA hazardous substances, the injectate should 

be considered a "federally permitted release" exempt from CERCLA liability. 

EPA should clarify in the rule that CO2, absent impurities constituting hazardous 

substances or with the potential to react with groundwater constituents to form 

hazardous substances, is not itself a CERCLA hazardous substance. This liability 

exemption for "federally permitted releases" should extend to upstream clients of 

sequestration wells even for accidental releases or where releases from the well 

are not in accordance with the well operator's UIC permit. As an alternative, 

EPA should establish contaminant limits in the injectate of upstream clients of 

sequestration wells. 

TFI requests clarification for upstream industrial clients as to the appropriate 

requirements for "analyz[ing] the CO2 stream at a frequency sufficient to yield 

data representative of its chemical and physical characteristics" (73 Fed. Reg. 

43,514 and 73 Fed. Reg. 43,549), as well as appropriate requirements for upstream 

industrial clients in terms of monitoring and recordkeeping. TFI suggests a semiannual monitoring report and a three-year post injectate or site closure data 

retention period for upstream industrial clients similar to that proposed for 

owners or operators of Class VI wells (73 Fed. Reg. 43,517), regardless of the 

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post-closure site care period selected (73 Fed. Reg. 43,518). 

TFI also asks that EPA include regulatory language providing liability protection 

or exclusion for upstream industrial clients in the event of potential future 

liability in the event of leaks, well failure or release of reaction products. 

Individual Response: CO2 itself is not listed as a hazardous substance under CERCLA; 

however, the CO2 stream may contain a listed hazardous substance (such as mercury) or may 

mobilize substances in the subsurface that could react with ground water to produce listed 

hazardous substances (such as sulfuric acid). Whether such substances may result in CERCLA 

liability from a sequestration facility depends entirely on the composition of the specific CO2 

stream and the environmental media in which it is stored (e.g., soil or ground water). CERCLA 

exempts from liability, under CERCLA section 107, 42 U.S.C. 9607, certain "federally permitted 

releases" (FPR) as defined in CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be 

carefully structured to ensure that they prevent potential releases from the well which are outside 

the scope of the Class VI permit. 

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

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

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

rulemaking. 

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

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

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

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

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

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

if necessary, per §146.85. 

Regarding long term liability, once an owner or operator has met all regulatory requirements 

under Part 146 for Class VI wells and the Director has approved site closure pursuant to 

requirements at §146.93, the owner or operator will generally no longer be subject to 

enforcement for regulatory noncompliance. Furthermore, their financial instrument as required 

under §146.85 will be released if it was not used. However, even if a site closure is approved 

under §146.93, an owner or operator may be held liable for regulatory noncompliance (including 

violation of 40 CFR 144.12) in certain circumstances. For example, an owner or operator may be 

held liable for regulatory noncompliance even after site closure was approved if the Director 

relied on erroneous information (e.g., erroneous modeling data) provided by the owner or 

operator when approving site closure. 

Separate from EPA's authority to enforce regulatory compliance, an owner or operator may be 

subject to a §1431 response order even after proper site closure is approved under §146.93. 

Under §1431 the Administrator may require an owner or operator to take necessary response 

measures if he or she receives information that a contaminant is present or is likely to enter a 

public water system or an USDW, which may present an imminent and substantial endangerment 

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to the health of persons, and the appropriate State and local authorities have not acted to protect 

the health of such persons. The action may include issuing administrative orders or commencing 

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

or operator fails to comply with the order, they may be subject to a civil penalty for each day in 

which such violation occurs or failure to comply continues. 

Furthermore, after site closure an owner or operator may remain liable under tort and other 

remedies, or under other federal statutes including, but not limited to, Clean Air Act, 42 U.S.C. 

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

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

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

EPA's final approach. 

Letter ID: 0266 Comment ID: 22881 Letter Lines: 239 to 265 

Comment Code: 4410 2.4.4.3.1 Comments in favor of allowing injection above/between 

USDWs in certain circumstances 

Comment: Depth of CO2 injection 

EPA is soliciting comment on whether CO2 injection should be allowed into an 

injection zone above the lowermost USDW,when the Director determines that 

geologic conditions (e.g.,thousands of feet of intervening formations between the 

injection zone and the overlying and/or underlying USDWs) exist that will prevent 

fluid movement into adjacent USDWs. EPA is also requesting comments on whether 

aquifer exemptions should be allowed for the purpose of Class VI injection, 

and under what conditions should such aquifer exemptions be approved. Finally, 

EPA seeks comment on whether the Agency should set a minimum injection depth 

requirement for CO2 GS, rather than require that such injection take place below 

the lowermost USDW(73Fed. Reg. 43,512). 

TFI agrees with the alternative under consideration allowing for the Director's 

discretion in allowing injection above or between USDWs in specific geologic 

settings where the depth of the USDWs may preclude GS, make GS technically 

challenging, or significantly limit CO2 storage capacity in permit applications 

in which it is demonstrated that USDWswouldnot be endangered (73 Fed. Reg. 

43,512). A provision for the "Director's discretion" should be fully delineated 

in the final rule. This provision should allow the Director to determine whether 

the confining system is "of sufficient regional thickness and lateral extent to 

contain the entire CO2 plume and associated pressure front under the confining 

system following the plume's maximum lateral expansion (73 Fed. Reg. 43,505)." 

As EPA states later in the proposed rule,"[i]f the trapping mechanism is 

sufficiently protective, the injected CO2 should be contained regardless of its 

phase (73 Fed. Reg. 43,511)." TFI believes that aquifers associated with Class VI 

injection should be able to be reclassified as exempt aquifers under Part 144.7. 

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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 

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. 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 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: 0266 Comment ID: 22882 Letter Lines: 267 to 276 

Comment Code: 5432 2.9.1.1 Need to adjust financial responsibility mechanisms (seeking 

comment) 

Comment Code: 5434 2.9.1.2 Need for additional instruments (seeking comment) 

Comment: Financial Assurance Instruments 

TFI recommends that EPA implement a flexible approach to the types of financial 

assurance mechanisms authorized by the NPRM. The broadest possible array 

of available instruments would go furthest in promoting EPA's expressed policy to 

encourage carbon sequestration while still avoiding, to the greatest extent 

possible, imposition of remediation costs on the public. In addition to those 

instruments already addressed in the NPRM, EPA should allow demonstration 

of financial assurance through trust funds, environmental insurance, corporate 

guarantees, and letters of credit. 

Individual Response: EPA agrees that it is appropriate to allow a flexible approach for financial 

responsibility for purposes of this rule. Under the final GS rule Owners or operators may choose 

from a variety of financial instruments to meet their financial responsibility obligations under the 

rule, provided the Director determines that the operator's proposed financial responsibility 

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demonstration is adequate to protect USDWs from endangerment, which means the ability of the 

owner or operator to pay for each activity for which financial responsibility must be 

demonstrated, including corrective action on wells in the AoR, injection well plugging, PISC and 

site closure, and emergency and remedial response throughout the life of the project. The final 

GS rule specifies at §146.85(a)(1) the permitted types of financial responsibility instruments. See 

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

responsibility. 

EPA is developing guidance to help owners or operators, permitting authorities, and third parties 

choose and evaluate appropriate financial methods. Furthermore, states may set more specific 

financial responsibility requirements if they so choose and have authority to do so. This guidance 

will be available on EPA's website at 

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

Letter ID: 0266 Comment ID: 22883 Letter Lines: 278 to 282 

Comment Code: 1220 1.1.1.1 Terminology and definitions 

Comment Code: 4500 2.5 Proposed Mechanical Integrity Testing (MIT) Requirements (40 CFR 

146.89) 

Comment: Definition of "Significant Leakage" 

TFI requests that EPA define the term "significant leakage" in the context 

of mechanical integrity testing and quantify amounts to avoid misinterpretations 

and to prevent de minimus CO2 leakage from falling under this term. 

Individual Response: A properly designed and operated well should have no leakage in the 

casing, tubing, or packer and no fluid movement into a USDW through channels adjacent to the 

wellbore. While the intent of MITs is to detect these types of problems as early as possible, the 

goal of the well design and construction requirements at §146.86 is the complete absence of such 

problems. EPA clarifies that the purpose of the "significant leakage" language in this narrow 

context is simply to avoid triggering corrective actions for essentially de minimis situations. 

Determining whether a MIT result should trigger follow-up action is necessarily a case and sitespecific situation; as a result, EPA does not believe it is appropriate to define the term 

"significant leakage" in the context of MITs. In addition, EPA has not defined this term for 

purposes of other injection well classes and this has not been shown to hinder permitting 

authorities' and owners or operators' ability to assess whether injection wells have adequate 

mechanical integrity. EPA believes that this approach allows states flexibility, will not interfere 

with the implementation of existing UIC programs, and maintains protection of USDWs from 

endangerment. 

In keeping with its adaptive rulemaking approach, the Agency plans to collect and review data 

every six years on early GS projects, including MIT data, 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. For additional 

information, please see the discussion of MITs in the final rule preamble. 

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Letter ID: 0266 Comment ID: 22884 Letter Lines: 286 to 293 

Comment Code: 1940 1.4.4.3 Consultations with Industry; experience with other wells 

Comment: TFI has been pleased to submit these comments on EPA's NPRM. TFI thanks EPA 

for 

advancing an important tool for future carbon sequestration with the Agency's 

proposed requirements under the SDWA for underground injection of CO2 for the 

purpose of GS. We urge EPA to work with potential industrial clients to clarify 

the analysis, monitoring and record keeping requirements that will be necessary 

to minimize potential future liability in an effort to promote and facilitate 

implementation of this important carbon emissions mitigation technology 

among industry. Please contact me by telephone at (202) 515-2706 or via e-mail at 

Individual Response: EPA acknowledges the comment and agrees that input of and 

participation by a wide spectrum of stakeholders is a vital component of successful rulemaking. 

The Agency appreciates the degree of cooperation, participation, and active dialogue between 

EPA and stakeholders and will continue to work with stakeholders and experts as it implements 

the GS rule. EPA is developing several guidance manuals that will help owners and operators 

comply with the rule. 

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