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.
Illinois EPA Comments on Notice of Data Availability 

Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Proposed Rules

I. Third Party Wells (page 44811)

Under the bullet entitled “Emergency and remedial response and financial responsibility,” the 

Notice of Data Availability “NODA” discusses evaluation of potential future use of resources 

located below or within the injection zone. If a third party chooses to drill into or through the 

injection zone formation to obtain resources in or beneath it, who is responsible for releases that 

result from the construction/operation of a third party well? Should a release to a USDW occur 

due to the actions of a third party, is the owner/operator of the injection facility responsible for 

the cost of the cleanup? It would seem that within the AOR any penetrations through the 

injection zone formation should be regulated in some manner as they increase the risk of 

contamination of USDWs.

II. Any Potential Contamination (pg 44811)

Under the bullet entitled “Emergency and remedial response and financial responsibility” it 

states, “The owner/operator would also demonstrate sufficient, additional financial responsibility 

to address any potential contamination of USDWs above or below the injection zone.” Illinois 

EPA believes the regulations should specifically define what “any potential contamination” 

means. Does this mean that the owner/operator must provide financial assurance for a worstcase scenario, i.e. a massive release of all CO2 that has been sequestered, or some other risked 

based evaluation? Without a clear understanding of what “any potential contamination” means,

a wide variety of definitions may be developed from region to region as well as from state to 

state. The regulations should be specific enough to provide a consistent regulation regardless of 

which regulatory body has permitting authority.

III. Consideration of New Approach (pg 44810- 44812)
Beginning on p. 44810, under the heading “Consideration of New Approach,” and through p. 

44812, the Illinois EPA would like to comment on the proposed waiver approach. If a facility 

wanted to inject above or between USDWs, the proposed waiver approach would unduly burden 

the State UIC program by requiring the states to determine site suitability and appropriate 

injection depth. The State of Illinois is in a financial situation in which we have very limited 

resources for the evaluations required under the proposed waiver process. The Illinois EPA 

anticipates that within the next year we will lose more resources due to financial restraints. 

Additionally, there has been no guidance provided as to how to accurately evaluate these sites to 

make a determination on injection depths. Therefore, we recommend that U.S. EPA Region V 

evaluate all the waivers that may be requested under these proposed Class VI rules. The U.S. 

EPA would need to provide more funding to the State programs if the waiver approach is 

approved and the additional burden placed on the State regulators. The U.S. EPA does not 

provide enough funding to the State programs to even support the current UIC programs.

IV. Current Illinois EPA activities addressing Geologic 

Sequestration ("GS") (pg 44812)

USEPA requested comment on current State activities addressing GS. At this time, the Illinois 

EPA is permitting geologic sequestration wells using the current Class I UIC regulations.
Letter ID: 0333  

Commenter: Steve Nightingale  

Organization: Illinois Environmental Protection Agency (IEPA)  

Letter ID: 0333 Comment ID: 28200 Letter Lines: 20 to 46  

Comment Code: 3340 3.3.4. Financial Responsibility  

Comment: I. Third Party Wells (page 44811)  

Under the bullet entitled "Emergency and remedial response and financial  

responsibility," the Notice of Data Availability "NODA" discusses evaluation of  

potential future use of resources located below or within the injection zone. If  

a third party chooses to drill into or through the injection zone formation to  

obtain resources in or beneath it, who is responsible for releases that result  

from the construction/operation of a third party well? Should a release to a  

USDW occur due to the actions of a third party, is the owner/operator of the  

injection facility responsible for the cost of the cleanup? It would seem that  

within the AOR any penetrations through the injection zone formation should be  

regulated in some manner as they increase the risk of contamination of USDWs.  

II. Any Potential Contamination (pg 44811)  

Under the bullet entitled "Emergency and remedial response and financial  

responsibility" it states, "The owner/operator would also demonstrate  

sufficient, additional financial responsibility to address any potential  

contamination of USDWs above or below the injection zone." Illinois EPA believes  

the regulations should specifically define what "any potential contamination"  

means. Does this mean that the owner/operator must provide financial assurance  

for a worst‐case scenario, i.e. a massive release of all CO2 that has been  

sequestered, or some other risked based evaluation? Without a clear  

understanding of what "any potential contamination" means, a wide variety of  

definitions may be developed from region to region as well as from state to  

state. The regulations should be specific enough to provide a consistent  

regulation regardless of which regulatory body has permitting authority.  

Individual Response: In response to the question about third parties drilling through the injection zone,

EPA clarifies that if an injection well is drilled in the future, the applicable UIC requirements (i.e., based

on the well class) for AoR and corrective action would apply. The UIC program has no authority to
address drilling for other purposes. However, EPA anticipates that any applicable permitting process

would consider prior uses of subsurface formations.

EPA acknowledges that it is not possible to anticipate every potential failure or contamination scenario,

but believes that the owner or operator's demonstration of financial responsibility per §146.85 and

emergency and remedial response plan per §146.94 should address any reasonably conceived failure or

contamination scenario based on site‐ and project‐specific information. The purpose of these

requirements is to ensure that in the unlikely event of an emergency, a plan is in place and resources are

available to expeditiously mitigate the situation. For additional information on the financial

responsibility and emergency and remedial response requirement for GS projects, see the preamble to

the final rule and the responses to comments on the proposed GS rule.  

EPA is developing guidance on financial responsibility to assist owners or operators in evaluating the

requirements of §146.85 and to assist Directors in evaluating financial responsibility demonstrations.

The guidance describes the types of financial mechanisms that operators may choose to use to meet the

financial responsibility requirements for GS wells and it will also include a section on how best to

estimate costs to support accurate financial responsibility demonstrations. This guidance will be

available on EPA’s website at water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.  

Letter ID: 0333 Comment ID: 28201 Letter Lines: 48 to 65  

Comment Code: 3360 3.3.6. Requirement to Apply for Waiver Separately from UIC Permit Application

(seeking comment)  

Comment Code: 3390 3.3.9. Comments Regarding State Discretion to Adopt the Waiver Approach  

Comment: III. Consideration of New Approach (pg 44810‐ 44812)  

Beginning on p. 44810, under the heading "Consideration of New Approach," and  

through p. 44812, the Illinois EPA would like to comment on the proposed waiver  

approach. If a facility wanted to inject above or between USDWs, the proposed  

waiver approach would unduly burden the State UIC program by requiring the  

states to determine site suitability and appropriate injection depth. The State  

of Illinois is in a financial situation in which we have very limited resources  

for the evaluations required under the proposed waiver process. The Illinois EPA  

anticipates that within the next year we will lose more resources due to  

financial restraints. Additionally, there has been no guidance provided as to  

how to accurately evaluate these sites to make a determination on injection  

depths. Therefore, we recommend that U.S. EPA Region V evaluate all the waivers  

that may be requested under these proposed Class VI rules. The U.S. EPA would  

need to provide more funding to the State programs if the waiver approach is  
approved and the additional burden placed on the State regulators. The U.S. EPA  

does not provide enough funding to the State programs to even support the  

current UIC programs.  

Individual Response: EPA clarifies that adoption of the waiver process remains at the discretion of

individual UIC programs. Therefore, States, Territories, and Tribes seeking primacy for Class VI wells are

not required to provide for injection depth waivers in their UIC regulations and may choose not to make

this process available to Class VI wells under their jurisdiction. Although some commenters asked EPA to

require that waivers be applied nationally, the Agency believes that the decision about whether a waiver

program is appropriate in a specific State, Tribe, or Territory should be made by each program. This

approach allows flexibility for individual program Directors to determine the appropriateness of allowing

for waivers based on regional or state‐specific conditions, such as the predominant geologic settings

anticipated to be used for GS or other land uses in the state while ensuring maximum protection of

USDWs.  

EPA is developing a series of guidance documents to support Class VI owners and operators and

Directors including guidance on the injection depth waiver process. The guidance describes the

recommended approach an owner or operator may follow when submitting a waiver application,

processing waiver applications by the UIC and PWSS Program Directors, and additional considerations

that may apply to projects that have been issued waivers. This guidance will be available on EPA’s

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

Letter ID: 0333 Comment ID: 28202 Letter Lines: 67 to 72  

Comment Code: 4000 4. Comments on Current State GS Activities (seeking comment)  

Comment: IV. Current Illinois EPA activities addressing Geologic Sequestration ("GS") (pg  

44812)  

USEPA requested comment on current State activities addressing GS. At  

this time, the Illinois EPA is permitting geologic sequestration wells using the  

current Class I UIC regulations.  

Individual Response: EPA acknowledges that many states have already developed their own approaches

to regulating GS. EPA believes that in many cases, these approaches will be compatible with EPA's final

GS rule. The final GS rule, at §146.81(c), allows the construction of existing Class I, II, or V wells to be

grandfathered, 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 clarifies that, if these wells are determined to

be acceptable for GS, they will be re‐permitted as Class VI wells and will be subject to the operational,
testing and monitoring, reporting, injection well plugging, and post‐injection site care and site closure

requirements in Subpart H of 40 CFR 146. If an owner or operator seeking to grandfather an existing

Class I, II, or V well to a Class VI well cannot make this demonstration, then grandfathering of the

constructed well will not be allowed. For additional information on the issue of grandfathering, please

see the preamble to the final rule and responses to comments on the proposed GS rule.