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.
December 23, 2008

Stephen E. Heare

Director, Drinking Water Protection Division

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N.W.

Room 2150A EPA East: MC-(4606)

Washington, D.C. 20460

Re: Comments on the U.S. Environmental Protection Agency’s Proposed Rulemaking under the 

Safe Drinking Water Act’s Underground Injection Control Program for Carbon Dioxide 

Geologic Sequestration Wells – Docket Id No. EPA-HQ-OW-2008-0390

Dear Mr. Heare:

The Edison Electric Institute (EEI) submits the attached comments, accompanied by executive 

summary, regarding the U.S. Environmental Protection Agency’s (EPA or Agency) proposed 

regulations issued July 25, 2008, for the injection and geologic storage of carbon dioxide (CO2) 

under the authority of the Safe Drinking Water Act underground injection control program. Our 

comments provide EEI’s view and additional information on issues raised in EPA’s proposed 

rule.

EEI appreciates the Agency’s willingness to consider the expertise and experience our

membership can provide with regard to the regulation of CO2 injection and geologic storage. 

Should you have any questions about the attached comments, please contact William Fang, EEI 

Deputy General Counsel and Climate Issue Director (202-508-5617 or bfang@eei.org), Emily 

Fisher, Attorney (202-508-5616 or efisher@eei.org) or Karen Obenshain, Director, Fuels, 

Technology & Commercial Policy (202-508-5223 or kobenshain@eei.org). 

Sincerely,

Quinlan J. Shea, III

Executive Director, Environment

QJS:of
Mr. Stephen F. Heare

December 23, 2008

Page 2

Attachment

cc (w/ att):

Robert J. Meyers, Associate Assistant Administrator,

Office of Air and Radiation

Ann Codrington, Chief, Prevention Branch, 

Office of Groundwater and drinking Water

Bruce Kobelski, Environmental Geologist, 

Office of Groundwater and Drinking Water
COMMENTS OF EDISON ELECTRIC INSTITUTE

ON THE ENVIRONMENTAL PROTECTION AGENCY’S

PROPOSED RULEMAKING UNDER THE SAFE DRINKING WATER ACT’S 

UNDERGROUND INJECTION CONTROL PROGRAM FOR 

CARBON DIOXIDE GEOLOGIC SEQUESTRATION WELLS

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

December 23, 2008
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 2

Executive Summary

Addressing climate change concerns requires a full commitment to development and 

commercial deployment of carbon capture and storage (CCS) technologies. EEI thus 

supports the development of clear, flexible and appropriately tailored regulatory regimes 

that will facilitate development of and investment in CCS technology and projects while 

protecting against potential environmental risks. We applaud the Agency for taking this 

crucial first step toward establishing such a regime for geological sequestration (GS). 

Recognizing the significance of EPA‘s initiative in proposing regulations for the injection 

and storage of carbon dioxide (CO2) under the Safe Drinking Water Act‘s (SDWA)

Underground Injection Control (UIC) program, EEI appreciates the opportunity to 

provide input into the process and to share our suggestions for changes to the proposed 

rule. Incorporation of our comments into the final rule will serve to promote the dual 

goals of promoting the commercialization of CCS technology and preventing potentially 

undesirable impacts to drinking water resources. 

The potential environmental benefits of deploying CCS technologies, in terms of avoided 

or sequestered CO2 emissions, should be weighed against potential requirements that 

might delay or compromise the ability to achieve commercial-scale CCS. Key issues 

include balancing state and federal interests, appropriate characterization of CO2, 

appropriate risk management approaches and maintaining needed flexibility. To this end, 

EEI has provided comments on nine areas of concern, briefly summarized below.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 3

EEI agrees that proper site selection is critical to a successful GS project and notes that it 

serves to minimize, if not eliminate, any potential threats to drinking water sources that 

CO2 injection and storage may pose. However, several of the proposed requirements are 

unnecessary from the perspective of protecting drinking water sources and would only 

serve to hamper GS projects from going forward, including limitations on receiving 

formations, potential alteration to the current definition of an underground source of 

drinking water (USDW), and the proposed grant of discretion to the UIC program 

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

EEI is concerned that a broad, unconstrained requirement for periodic reevaluation of the 

area of review (AOR) that would apply in the same manner to all potential project sites is 

unwarranted as a matter of presumption. The schedule for AOR review should be a 

matter addressed through permitting and a plan for development and operation.

EEI is also concerned about proposed requirements related to monitoring for potential 

CO2 movement and the use of tracers. Under the proposed regulations, the UIC program 

director would have discretion to require the use of tracers or surface air/soil gas 

monitoring ―to detect movement of CO2 that could endanger a USDW.‖ Tracers and 

surface air/soil gas monitoring should not be required, and may create an overly negative 

and unwarranted public perception regarding the safety of GS projects or tracers.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 4

Another general area of concern discussed in our comments involves the proposed rule‘s 

provisions for closure and post-injection site care (PISC). In particular, EEI is concerned 

with the proposed imposition of a PISC period spanning, as a matter of default, 50 years 

after cessation of injection. Establishing a default time period for PISC, in particular one

as lengthy as 50 years, is unnecessary and undesirable. The dual goals of protecting 

USDW and supporting the commercialization of CCS technology are far better served 

through a site-specific, performance-based approach. 

The proposed financial assurance requirements, which exceed those currently in place for 

injection of hazardous wastes, raise significant concerns from the perspective of 

promoting CCS development. EEI strongly urges the Agency to exercise care not to 

stigmatize geological CO2 storage by equating it in any way with hazardous waste 

disposal, as doing so could affect public perception (thereby potentially hindering the 

permitting process) as well as perceptions by financial institutions (thereby potentially 

hindering project financing). Further, it is crucial that any financial assurance 

requirements be sufficiently flexible to take into account the particular risks associated 

with any given project. 

EEI is concerned with how existing CO2 injection wells should be treated in the final 

regulations. The rule‘s grandfathering provision should be as expansive as possible while 

balancing the need for protection of USDW, and thus EEI recommends two principal 

modifications to the proposed provision. First, a preferable approach to limiting the 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 5

scope of grandfathering only to construction requirements is to expand the scope of 

available grandfathering for existing wells, given that the wells were constructed for 

injection of CO2 in the first instance. Further, rather than leave grandfathering to the 

discretion of the program director, a preferable approach is to allow grandfathering as a 

default rule unless the program director determines that, pursuant to specified criteria, the 

specific nature of the project renders it unsuitable for CO2 storage. 

EEI shares the Agency‘s view that accurate public perception and increased 

understanding of CCS technology are critical to its success at the commercial level. To 

that end, EEI supports the development of regulations and policies that will serve to 

educate the public and provide for appropriate public input on projects. However, EEI is 

concerned that imposition of public participation provisions like those currently 

applicable under the Resource Conservation and Recovery Act (RCRA) are unnecessary 

and undesirable for GS projects. EEI encourages the Agency to craft provisions that 

support decision-making based upon sound science and do not unduly hamper siting 

decisions. 

Regarding whether states should be permitted to seek primacy for Class VI wells, EEI 

agrees that states and tribes should play a key role in managing CCS projects going 

forward. Further, many states are moving ahead with developing their own legislation 

and regulations related to CCS activities. Allowing those states to take on primacy for 

Class VI wells (in particular, allowing them to take on primacy for Class VI without 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 6

assuming the regulatory burden that may be associated with other well classes) will help 

ensure that they are given credit and recognition for their groundbreaking work on CCS. 

Finally, EEI is concerned about the potential application to CCS activities of 

environmental laws that were, without exception, not intended to apply to CCS or even 

crafted with CCS in mind and that could impose significant obligations and potential 

liabilities not only on project operators, but also potentially on other entities in the CO2

chain, such as entities producing the CO2 that is ultimately injected. These laws include 

the Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA or Superfund) and RCRA. EEI urges EPA to evaluate carefully any proposed 

treatment of these two laws (or others) that it may be considering under the Class VI 

regulations to ensure that any such treatment is necessary and does not serve as an 

unintended springboard for hampering the successful commercialization of CCS. EEI 

submits that any characterization of potentially hazardous constituents in CO2 injectate 

may be addressed as part of the UIC permitting process without addressing any potential 

RCRA jurisdictional issues. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 7

Comments

The Edison Electric Institute (EEI)1submits these comments on the Environmental 

Protection Agency (EPA or Agency)‘s proposed regulations for the injection and 

geologic storage (GS) of carbon dioxide (CO2) under the authority of the Safe Drinking 

Water Act (SDWA)‘s underground injection control (UIC) program, issued in July 2008

(Docket ID No. EPA-HQ-OW-2008-0390), 73 Fed. Reg. 43492 (July 25, 2008). EEI 

submitted pre-rulemaking comments to the Agency on May 15, 2008, and provided oral 

and written testimony at EPA‘s September 30, 2008, public hearing on the proposed 

rules. These comments and testimony are incorporated by reference herein. 

I. General Principles Applicable To EPA’s GS Regulatory Effort

As we noted in our prior comments, addressing climate change concerns requires a full 

commitment to development and commercial deployment of carbon capture and storage 

(CCS) technologies. To put the need for this commitment in context, consider that 

electricity generation is responsible for 34 percent of greenhouse gas (GHG) emissions

and 40 percent of CO2 in the U.S. The Energy Information Administration projects net 

electric demand will increase 30 percent by 2030, even after taking into account energyefficiency improvements. New and replacement power plant capacity to meet this 

increased demand is projected to total 150,000 megaWatts. Coal is one of the primary 

sources of baseload generation in the U.S. and will continue to be an important fuel for 

 

1

 EEI is the national association of shareholder-owned electric utilities in the U.S. Our 

members represent about 70 percent of the U.S. electric power industry and serve 95 

percent of the ultimate customers in the industry‘s investor-owned segment. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 8

generating electricity through 2030 because it is comparatively affordable and abundant 

in this country. Given this backdrop, the potential environmental benefits of CCS – in 

terms of reduced or avoided CO2 emissions – are substantial. Consequently, EEI and our

members see CCS as a critical element in the full portfolio of options needed not only to 

reduce CO2 emissions, but also to ensure continued affordable and reliable electric 

service to customers throughout the nation. 

EEI thus supports the development of clear, flexible and appropriately tailored regulatory 

regimes that will facilitate development of and investment in CCS technology and 

projects while protecting against potential environmental risks. We applaud the Agency 

for taking this crucial first step toward establishing such a regime for GS. Recognizing 

the significance of EPA‘s initiative in proposing regulations for the injection and storage 

of CO2 under SDWA‘s UIC program, EEI appreciates the opportunity to provide input 

into the process and to share our suggestions for changes to the proposed rules. 

Incorporation of our comments into the final rules will serve to promote the dual goals of 

promoting the commercialization of CCS technology and preventing potentially 

undesirable impacts to drinking water resources. 

 

EEI‘s views are guided by several general principles applicable to any federal legislative 

or regulatory effort on CCS, which are described below and discussed more fully in the 

context of specific comments:
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 9

1. Promotion of CCS. As EPA acknowledges in the preamble, CCS is a key 

climate change mitigation technology, and the proposed rules are intended to 

support its development.2 Likewise, any EPA regulatory regime related to 

CCS developed under the authority of SDWA (or any other statute) should be 

designed to facilitate, and not unduly hinder, the successful commercial-scale 

deployment of CCS. The potential environmental benefits of such 

deployment in terms of reduced or avoided GHG emissions should be 

weighed against potential requirements that might delay or compromise the 

ability to achieve commercial-scale CCS. Issues the Agency should consider 

in connection with this principle include:

a. Reasonable regulatory approaches. Regulations proposed for injection 

and storage should be carefully tailored to fit injection and storage 

projects and the true nature of the risks that they may pose, but should 

not be unduly burdensome for the regulated community. In particular, 

the following issues should be considered:

i. Appropriate characterization of CO2. It is critical that any 

regulation under the UIC program does not unnecessarily 

characterize CO2 as a waste, pollutant or contaminant or 

otherwise unduly stigmatize the injection and geologic storage 

of CO2. While it is appropriate to consider the actual 

characteristics of CO2 and tailor regulations accordingly, 

 

2

73 Fed. Reg. 43495, col.1.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 10

unwarranted characterization of CO2 as a hazardous waste, for 

example, should be avoided. 

ii. Appropriate characterization of potential risks. Similarly, any 

regulation should be based upon an accurate characterization of 

the potential risks posed by GS of CO2 and be tailored 

accordingly to address those potential risks, not only to ensure 

appropriate protection of underground sources of drinking 

water (USDW), but also to avoid unnecessary regulations that 

may hamper CCS projects from going forward or call into 

question the general safety of CO2 storage. 

iii. Appropriate risk management approaches. The Agency should 

avoid development of risk management approaches that 

discourage CCS deployment or create additional uncertainty,

and should seek where possible to bring greater certainty to the 

long-term obligations and risks associated with a GS project. 

For example, requiring financial assurance for potential 

liabilities more than 50 years in the future may deter and even 

prevent investment in CCS projects. Post-injection monitoring 

and financial assurance requirements are both important, but 

should not undermine the goals of the regulations, particularly 

when potential risks decrease substantially after injection is 

complete. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 11

It is also important to keep in mind the enormous extent to 

which proper site characterization will minimize any potential 

risks posed by CO2 storage. Proper site characterization is 

the most effective risk management tool for CCS. 

Regulations tailored to ensure proper site selection will in turn 

minimize the need for regulations crafted to respond to risks 

that, in such a context, would be extremely unlikely to occur. 

iv. Maintaining ability to incorporate new information. Any 

regulatory regime must be sufficiently flexible to adapt to new 

information. Indeed, regulation of ongoing GS ―pilot‖ projects 

under the existing UIC regulations for Class I or V wells has 

been positive. EPA must take great care moving to a new or 

different regulatory framework while projects designed to gain 

more technological certainty, as well as the increased certainty 

about appropriate risk management solutions for CCS projects 

that would likely follow, are ongoing. Given that EPA has 

decided to move forward with GS-specific regulations, EEI 

urges the Agency to develop a framework that can consider 

and, as appropriate, incorporate data developed through CCS 

demonstration projects and the activities of the Department of 

Energy‘s Regional Carbon Sequestration Partnerships. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 12

b. Balancing state and federal interests. The Agency‘s UIC rulemaking 

is occurring in the context of the development of an overall framework 

for CCS projects, one that must properly balance federal and state 

roles. As to the UIC rules, EPA should consider the significant 

interests and experience of the states in developing regulations. 

2. Avoidance of one-size-fits-all approaches. As currently proposed, EPA‘s 

regulations contain a number of default provisions that would apply 

universally to projects, at least as a matter of initial presumption. Rather than 

imposing default provisions, those portions of the rulemaking that address 

inherently site-specific issues should allow for site-specific, performancebased determinations as part of the permitting process. The geologic 

variability involved in different conceivable GS projects needs to be taken 

into account in issues ranging from site characterization to area of review 

(AOR) to containment requirements. 

3. Importance of limits on discretion. EEI recognizes that in order to allow for 

effective site-specific determinations and to maintain essential regulatory 

flexibility, some amount of discretion must be vested in the UIC program 

director. At the same time, such discretion should be bounded by the 

inclusion of relevant and appropriate considerations for making necessary 

determinations. In general, the rules should establish with sufficient clarity 

the factors to be taken into account and leave the precise determinations to the 

permit process. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 13

4. Limitations on existing authority. The Agency should adhere to its limited 

authority at this juncture under SDWA and should avoid exceeding that 

authority. The value of developing a clear regulatory regime will be 

undermined if that regime is potentially unstable or subject to lengthy delays 

because of potential susceptibility to attack for failure to adhere to the 

Agency‘s authority. Moreover, as EPA notes in the preamble, SDWA does 

not provide EPA ―authority to develop regulations for all areas related to GS.‖ 

More specifically, EPA further states that it ―is not proposing regulation for 

CO2 under the Clean Air Act [ ] in this proposed rulemaking.‖3

5. Anticipation of related developments. On the other hand, the Agency should 

strive to anticipate future statutory and regulatory developments in the climate 

change arena so that any rulemaking has a reasonable chance of melding with 

such developments. For instance, while it is clear that SDWA does not 

authorize the Agency to develop rules that specify any kind of ―credit‖ system 

for capture and storage of CO2, the Agency can and should consider how its 

UIC rulemaking will fit with foreseeable features of potential future regimes

and how rules can be drafted to complement such features to the extent 

possible.

 

3

Id. at 43495.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 14

With the above general principles in mind, EEI provides below specific comments on 

several aspects of the proposed rules, focusing in particular on the following categories of 

issues: 

Siting, including the definition of USDW, and secondary containment.

AOR and provisions for periodic reevaluation thereof.

Monitoring and use of tracers.

Closure and post-injection site care.

Financial assurance.

Grandfathering.

Public participation.

State primacy.

Potential issues relating to the characterization of CO2 and arising under 

other environmental laws. 

Further, although EEI appreciates that issues related to property rights and pore space 

ownership that may be associated with injection and storage are outside the scope of the 

Agency‘s rulemaking, comments are provided on these issues as well, at the Agency‘s 

request. 

II. Specific Comments

A. General Comments on Class VI Approach

EPA‘s proposed rules would create a new class of injection wells—Class VI—for CO2

injection and storage. EEI is generally supportive of this approach, as it allows 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 15

regulations to be tailored to fit the needs of such projects and helps to avoid potential 

issues of inaccurate public perception that might arise from including it within an existing 

well class (in particular Class I). As is discussed throughout these comments, EEI views 

accurate public perception of the nature of CCS as critical to its successful deployment.

B. Siting and Secondary Containment

Our first area of concern relates to proposed provisions for the siting of GS projects, 

including requirements related to project site geology and permissible receiving 

formations. EEI agrees that proper site selection is critical to a successful GS project and 

notes that it serves to minimize, if not eliminate, any potential threats to drinking water 

sources that CO2 injection and storage may pose. However, several of the proposed 

requirements are unnecessary from the perspective of protecting drinking water sources 

and would only serve to hamper GS projects from going forward. 

The first such requirement relates to the Agency‘s proposed limitations on receiving 

formations. The proposed regulations would permit project operators to inject and store 

CO2 only beneath the lowermost formation containing USDW. Such a categorical 

limitation on receiving formations is unnecessary, unduly burdensome and undesirable

for several reasons: 

Unnecessary for protection of USDW under the UIC program: As a 

preliminary matter, categorically eliminating a body of potential receiving 

formations is simply unnecessary in light of the overall function of the 

UIC rules. As a general proposition, UIC permit applicants must 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 16

demonstrate that projects will not endanger USDW; permit applicants for 

CO2 injection and storage projects would be held to the same standard.4 

The proposed rules would also require permit applicants to demonstrate 

that the project will be sited in areas with a ―suitable geologic system‖—

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

porosity and permeability to receive the total anticipated volume of 

injectate—and a confining zone free of transmissive faults or fractures and 

sufficient to contain the injected stream as well as any displaced fluids, 

considering the proposed maximum pressures and volumes of injection, 

without causing fracturing. Thus, the suitability of the receiving formation 

and the project‘s general protectiveness of USDW will necessarily be 

evaluated as a part of each GS permitting exercise. 

All projects (and receiving formations) are not created equal: Each 

potential project will possess its own unique characteristics, as will each 

potential project site and receiving formation. A blanket requirement 

excluding a class of potential receiving formations imposed outside the 

context of actual projects is unnecessary, as for any given receiving 

 

4

 EEI notes that EPA has proposed prohibiting CO2 storage in unmineable coal seams, 

basalts, salt domes and shales because ―these formations are limited in geographic and 

geologic distribution in the U.S., and their technological or economic viability as GS sites 

has not been demonstrated.‖ 73 Fed. Reg. 43503, col. 2. EEI urges EPA to continue to 

permit GS projects in these formations as Class V experimental wells to facilitate 

continued research into the potential for these formations to safely and economically 

store CO2, particularly because there are some areas of the country without easy access to 

saline formations or depleted oil and gas reservoirs that can be used for GS projects. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 17

formation or any given project, there may exist other characteristics that 

serve to provide equivalent or greater protection for USDW. 

Likely to create public perception issues: Currently, a limitation on 

injections to only those formations below the lowermost USDW is in 

place solely for Class I hazardous waste injection wells. The properties of 

CO2, while unique in some respects, do not require or warrant such 

heightened treatment. Imposing a requirement currently in place only for 

hazardous waste would be likely to create the misperception that CO2

injection wells are analogous to hazardous waste injection wells and thus 

carry analogous risks. Accurate public perceptions about the nature of 

CO2 and the true risks associated with properly sited and executed storage 

projects are crucial to the success of CCS. 

Likely to hamper commercial deployment of CCS, particularly for 

enhanced oil recovery (EOR) first actors: Much of the experience and 

expertise associated with injection and storage of CO2 that currently exists 

is the result of several decades of experience with EOR and enhanced gas 

recovery (EGR) operations through Class II UIC permits. As CCS gains 

momentum as a GHG mitigation tool, EOR operators may provide not 

only this wealth of experience and expertise, but also the first push toward 

commercial CCS by seeking to convert existing EOR operations to purely 

storage operations to take advantage of whatever credits may eventually 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 18

become available under climate change legislation or regulation.

5

 Some 

of those operations inject CO2 into formations that are above the 

lowermost USDW. Under the regulations currently proposed, however, 

existing Class II wells—as well existing CCS pilot projects permitted as 

either Class I or V wells—would be eligible only for the most limited 

scope of ―grandfathering‖: the proposed grandfathering provision, 

discussed further below, would cover only construction requirements and 

not the remaining provisions of the Class VI regulations, including in 

particular the proposed limitation on receiving formations. Thus, existing 

projects that do not inject beneath the lowermost USDW could be left with 

no ability to convert to Class VI GS projects, disincentivizing many 

potential first actors. Moreover, creation of such a disincentive is 

unnecessary, as the wells at issue would have been designed and 

constructed specifically with injection of CO2 and the protection of 

USDW in mind. 

While EPA acknowledges that it has raised for consideration the 

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

above the lowermost USDW in a given case, such a procedure would only 

insert complexity into the process, with no corresponding increase in 

 

5 Of course, nothing in the proposed rule would prevent any owner or operator of a CO2

storage project, regardless of permit class, from seeking credits related to its participation 

in any future cap-and-trade program.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 19

protection afforded to USDW, as compared to an approach under which 

the merits of a proposed receiving formation are considered in the context 

of a particular project as a default. 

In light of the UIC permitting process’s focus on demonstrating that a project will 

not endanger USDW, EEI proposes that rather than establish a blanket limitation 

on available receiving formations, the Agency rely upon the numerous other 

provisions that serve to protect USDW and allow those provisions to operate in the 

context of actual proposed projects. In the alternative, limitations on receiving 

formations could be left to the UIC program director‘s discretion—bounded by 

appropriate standards for the exercise thereof—for a particular project; however, given 

the case-by-case nature of the permitting process and the requirement to demonstrate 

non-endangerment of USDW, providing for the exercise of such discretion is likely 

unnecessary. 

Should the Agency choose to impose any sort of limitation on receiving formations, 

whether as a default or as a discretionary provision, the ability to obtain an aquifer 

exemption should be considered an absolute necessity absent a potential threat to USDW. 

In particular, aquifer exemptions would be necessary to facilitate complete 

grandfathering of existing projects. However, there would also be broader needs for 

aquifer exemptions in order to ensure that otherwise viable projects can go forward.

 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 20

A related issue is how USDW are to be defined under the proposed rules. Current 

UIC regulations, as well as the preamble to the proposed rules, define USDW as:

An aquifer or portion of an aquifer that supplies any public water system or that 

contains a sufficient quantity of ground water to supply a public water system, 

and currently supplies drinking water for human consumption, or that contains 

fewer than 10,000 mg/l total dissolved solids and is not an exempted aquifer.

EEI recommends that the Agency work within the current definition of USDW, in 

particular its maximum total dissolved solids (TDS) provision, for purposes of CO2

injection and storage. Any change in the definition of USDW would likely require a

statutory amendment. The legislative history of SDWA identifies the 10,000 TDS 

standard as one sufficient to ensure that potential drinking water sources that may be 

tapped in the future are protected,

6

and EPA has long recognized this standard in its 

regulations without any serious suggestion over the long and successful history of the 

UIC program that the standard is inadequate. Thus, any potential alteration to that 

standard (which implicates a range of public policy issues) should be left to Congress. 

Some have called for potential revision to this standard, but EEI is unaware of any 

analysis supporting the establishment of an alternative standard. Nor is EEI aware of any 

evaluation of the implications of changing this standard for long-standing UIC activities, 

much less on the practicability of CCS as a critical GHG mitigation tool. In short, even if

Congress‘s original expression of the 10,000 mg/l standard did not constrain EPA‘s 

ability to change this standard by regulation, EEI is unaware of any foundation in the 

 

6

See H.R. Rep. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6484. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 21

administrative record that would allow EPA to provide reasoned support for such a 

change. 

A third area of concern related to siting involves the Agency’s proposed grant of 

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

“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”—i.e., 

secondary containment/confining zones. A proposal to require secondary containment, 

even in discretionary form, is unnecessary and unwarranted for many of the same reasons 

that a blanket limitation on receiving formations is unnecessary and unwarranted. 

Specific concerns include the following: 

Better alternatives exist to protect USDW: The presumed purpose of 

secondary containment is better addressed through proper site selection 

and well-designed plans to detect and contain leakage from the primary 

containment system. EEI also notes, as we did in our May 15, 2008, prerulemaking comments, a discussion led by panelist Susan Hovorka of the 

University of Texas at EPA‘s December 2007 public workshop, as 

characterized in the Agency‘s meeting summary (p. 8): 

CO2 is very responsive to pressure as a mitigation technique in the 

event of movement to an undesired location. Injecting fluids in an 

adjacent well at a regulated pressure can guide CO2 back to the 

containment area. Another mitigation option is changing injection 

patterns once a problem is detected. Site-specific contingencies 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 22

could be built into plans to provide guidance in the event of an 

unexpected event. 

Given the proposed rules‘ emergency and remedial response requirements, 

a secondary containment requirement is especially unwarranted.

Unprecedented under the UIC program: Secondary 

containment/confining systems are currently not required for any other 

types of injection wells under the UIC program. The physical and 

chemical properties of CO2 are not sufficiently unique—nor do they pose 

a sufficiently unique potential threat to USDW—to warrant such 

unprecedented treatment under the UIC program. 

Unprecedented in U.S. environmental law generally: We are unaware of 

any comparable requirement to ascertain secondary containment features 

in geologic formations in any other environmental regulatory regime. 

Those regimes that impose secondary containment requirements—for 

example, secondary containment requirements for oil spill prevention 

control and countermeasure plans under the Oil Pollution Act, and for land 

disposal and underground storage tanks under the Resource Conservation 

and Recovery Act (RCRA)—relate to man-made containment structures, 

as opposed to geologic containment structures.

Unprecedented internationally: To our knowledge, none of the CO2

storage projects currently operating outside the U.S. has been required to 

have or demonstrate existence of a secondary containment zone/confining 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 23

system. Further, Norway, Canada, Australia and Algeria, countries where 

CCS projects are currently underway, do not require secondary 

containment. 

Concerns for inaccurate public perception: As noted above, no secondary 

containment requirement, whether blanket or discretionary, currently 

exists even for the injection of hazardous wastes under the Class I 

permitting scheme. Imposition of a substantially more rigorous 

requirement on injection and storage of CO2 strongly implies that such a 

project would be more dangerous than underground injection of a host of 

other materials, including hazardous wastes. The final rules should be 

crafted to avoid creating this public stigma for one of the most promising 

GHG-management strategies, and for a technology that can be employed 

safely and effectively in the absence of secondary containment 

requirements of any sort.

While EEI is opposed to any secondary containment requirement, including one that 

would be subject to exercise of the UIC program director‘s discretion, EPA‘s proposal to 

establish secondary containment as a discretionary requirement presumably would allow 

for consideration of the nature of the particular primary confining system at issue and 

reduce unnecessary elimination of potential storage sites as compared to a default 

requirement to demonstrate secondary containment. At the same time, discretion, even 

where warranted, must be bounded by sufficiently clear guidelines for application in 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 24

determining whether imposition of a discretionary requirement is warranted in a given 

case. However, the proposed rules contain no discussion of any factors for the UIC 

program director to consider in making this determination. Should the Agency choose to 

impose a discretionary requirement, the current proposal should be modified to include 

such clear guidelines in order to provide some amount of certainty for operators and 

investors as well as to avoid the metamorphosis of what is a discretionary requirement on 

paper into a default requirement in practice.

C. Periodic Reevaluation of AOR and Corrective Action Requirements

The second general area of concern addressed in these comments relates to EPA‘s 

proposed provisions concerning the AOR for CO2 storage projects. In a departure from 

AOR procedures currently in place under the UIC program, the proposed regulations 

would require operators to reevaluate the proper scope of the AOR periodically at a 

minimum fixed frequency to be set by the program director—currently proposed as no 

less than once every 10 years, with discretion to require more frequent reevaluation. The 

apparent assumption underlying this proposed requirement is that the location of injected 

CO2, and thus the location and extent of potential impact, could change—or perhaps more 

importantly, could change from what is expected at the outset of a project—over time.

 

As EEI commented in our May 15, 2008, pre-rulemaking comments, a broad, 

unconstrained requirement for periodic reevaluation of the AOR that would apply 

in the same manner to all potential project sites is unwarranted as a matter of 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 25

presumption. Although the proposed rules provide for some discretion in terms of the 

review period, they nonetheless would require periodic reevaluation for every project at 

least once every 10 years. Several factors argue against such an approach: 

Consideration of specific circumstances should be required: While EEI is 

not necessarily opposed to an appropriately drafted provision requiring 

periodic reevaluation of the AOR under certain circumstances, any 

requirement for such review should not be a universally applicable 

requirement potentially applied devoid of any context. Rather, AOR

reevaluation provisions should be triggered by reasonable parameters, 

taking into consideration site-specific issues, as discussed in the general 

principles set forth above. AOR issues are inherently site-specific; 

different projects—and even different geographical regions of the 

country—likely warrant different approaches. A default no-less-thanonce-every-10-years provision does not allow for adequate consideration 

of specific circumstances. Tying reevaluation to the triggering of 

appropriate circumstances will provide equivalent protection for USDW 

while also ensuring that those projects posing greater relative risks receive 

greater scrutiny through more stringent reevaluation requirements and

those projects posing fewer relative risks are relieved of unnecessary 

regulatory burdens. At a minimum, any default period for reevaluation 

should be determined based on site-specific characteristics at the time of 

project permitting. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 26

Unknown trade-offs militate against a universal requirement: It is 

impossible to know what the relevant trade-offs are as to the initial AOR

versus potential later assessments of the AOR. For example, in certain 

instances it is foreseeable that a project owner may seek a relatively more 

constrained AOR for an initial portion of the project life, and propose 

periodic AOR reevaluations as a function of project experience. In other 

instances, a broader initial AOR may be appropriate, with a 

correspondingly reduced need for periodic reevaluations. Further, 

operators will generally model the entire life of the project and will likely 

include additional acreage in the AOR in any event. 

The proposed regulations also include a requirement to conduct corrective action within 

the AOR, but would give the UIC program director discretion to allow corrective action 

to be conducted in phases over the operational life of the project. A phased corrective 

action approach has merit, particularly where periodic reevaluations of the AOR

are to be required. A phased approach will help ensure that all necessary corrective 

action is taken, but also that unnecessary corrective action is avoided. It may also serve 

to ease the initial financial burden on operators and provide increased certainty from an 

investment standpoint. However, the proposed rules leave the possibility of a phased 

approach to the program director‘s discretion and contain no guidelines for the exercise 

of such discretion. Any discretionary requirement should be tempered by suitable criteria 

for its exercise. Likewise, any financial assurance requirements related to corrective 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 27

action that may be imposed should be tied to the corrective action approach that is to be 

taken in any given case. For example, where phased corrective action is permitted, 

corresponding provisions for phased financial assurance would provide a greater ability 

to price the activities at issue accurately. A more detailed discussion of financial 

assurance issues is below. 

As with a phased approach to corrective action, a phased approach to evaluation and 

reevaluation of the AOR may prove more practical for operators while affording the 

necessary protection for USDW. As noted above, some projects may implicate relatively 

constrained areas in terms of the size of the receiving formation, allowing operators to 

conduct a broader investigation at the outset more efficiently; for larger projects, it may 

make sense to consider allowing a phased plan for AOR evaluation and reevaluation that 

would provide for a certain amount of investigation at the outset with more detailed 

evaluations to follow over the life of a project. 

D. Monitoring Provisions and Use of Tracers 

EEI is also concerned about proposed requirements related to monitoring for potential 

CO2 movement and the use of tracers. Under the proposed regulations, the UIC 

program director would have discretion to require the use of tracers or surface 

air/soil gas monitoring “to detect movement of CO2 that could endanger a USDW.” 

For the reasons set forth below, EEI is opposed to such a requirement, even where, 

as proposed, it is left to the discretion of the program director.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 28

Functionality, usefulness and cost: Tracers are relatively untested in 

terms of workability as a leak-detecting mechanism. Of greater concern, 

however, is the fact that using tracers or surface air or soil gas monitoring 

would likely provide too little information, too late, in terms of providing 

protection for USDW, in the sense that USDW would likely be affected by 

the time the results of such methods revealed any concerns. Moreover, by 

their very nature, tracers can be detected at ultra-low concentrations. If 

the tracer is spilled or a small amount leaked, or if a pipe downstream 

from the tracer injection point leaked, the surface air would become 

contaminated. Minute amounts of tracer might be detectable for quite a 

distance, making the likelihood of a false positive for the tracer much 

greater without any real benefit to the overall protection of USDW. In 

sum, if employed for purposes of long-term monitoring of underground 

waters, tracers would be unlikely to yield significant useful data and

would prove extremely expensive. 

Safety: Tracers may present their own safety concerns depending on the 

precise nature of the tracer at issue. Further, the use of tracers may pose 

independent risks for project operators. There may be potential health 

effects from some tracers if workers are accidentally exposed.

Concerns regarding inaccurate public perception: As with a secondary 

containment requirement, a requirement to use tracers—currently 

unprecedented in the UIC program—may create or encourage an overly 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 29

negative and unwarranted public perception regarding the safety of CO2

storage projects. 

Potential issues of EPA authority: As noted above, EEI views the 

development and implementation of legally defensible regulations as a key 

to commercial deployment of CCS. To that end, EEI encourages the 

Agency to consider carefully the link between each proposed provision 

and its authority to regulate under SDWA. Where the link is more 

tenuous, the proposed provision may be subject to greater risk of legal 

challenge, posing uncertainty for those who desire to move ahead with 

projects. While, as the Agency points out, the use of tracers or surface 

air/soil gas monitoring could indicate that some threat to USDW may be 

posed, it seems more likely that by the time the results of such methods 

revealed any concerns, such sources would already be affected. Thus, the 

nexus between those methods and protection of USDW may be subject to 

challenge by opponents of the proposed provisions. And the nexus 

between surface air/soil gas monitoring and protection of USDW may be 

at greater risk of challenge, as the detection of a CO2 leak to surface air 

conceivably provides no useful information that would serve to protect

USDW. Indeed, while EPA notes in the preamble that detection of 

leakage to the surface ―would indicate potential endangerment‖ to USDW 

as a last line of defense, the Agency also acknowledges that regulation of 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 30

surface or atmospheric releases of CO2 are outside the scope of the 

proposed rules and the Agency‘s SDWA authority. 

While the proposed rules would leave these requirements to the discretion of the UIC 

program director, again the proposal sets no clear parameters for the exercise of such 

discretion. EEI does not believe that any provisions related to the use of tracers are 

required or warranted for the protection of USDW, but should EPA choose to impose a 

discretionary requirement, any such requirement should be bounded by appropriate 

parameters for its use. 

E. Closure and Post-Injection Site Care

The fourth general area of concern discussed in these comments involves the proposed 

rules‘ provisions for closure and post-injection site care (PISC). In particular, EEI is 

concerned with the proposed imposition of a PISC period spanning, as a matter of 

default, 50 years after cessation of injection. The proposed rules would vest discretion in 

the UIC program director to adjust the 50-year default time period upward or downward, 

with monitoring to continue ―until the geologic sequestration project no longer poses an 

endangerment to USDWs.‖ 

Establishing a default time period for PISC, in particular a default time period as 

lengthy as 50 years, is unnecessary and undesirable, and the dual goals of protecting 

USDW and supporting the commercialization of CCS technology are far better 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 31

served through a site-specific, performance-based approach. To EEI offers the 

following supporting points:

A default time period is unnecessary: As noted above, the proposed rules

would, in conjunction with establishing the 50-year default period for 

post-injection activities, vest discretion in the UIC program director to 

shorten or lengthen the PISC period based on the characteristics of a 

particular project. As discussed further below, a PISC period based on 

site- and project-specific characteristics ably serves to meet the dual goals 

of EPA‘s rulemaking effort; given the proposed performance-based, 

discretionary aspect of the PISC-period determination, a default overlay 

period is unnecessary. Further, from the perspective of offering protection 

to USDW, such a default period offers no additional protection above and 

beyond what a performance-based standard will offer. 

A default time period is unduly burdensome for operators: Establishing a 

default time period also risks placing unnecessary regulatory burdens on 

owners and operators who can clearly establish from the outset that no 

threat to USDW will be posed within a shorter time frame than whatever 

default may be established.

A 50-year default time period is unprecedented under the UIC program 

and unwarranted for CO2: Even assuming that imposition of a default 

period were appropriate, the unique characteristics of CO2 do not justify 

imposition of such a lengthy default PISC period for GS projects. EEI and 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 32

its members believe that appropriately sited projects could demonstrate the 

absence of endangerment to USDW in substantially less than 50 years; 

indeed, data suggest the risk profile of injected CO2 drops rapidly just 10 

years after cessation.

7

 Further, imposing requirements on CO2 storage 

projects that are far beyond those currently in place even for injection of 

hazardous wastes is unnecessary and will only engender public 

misperceptions regarding the safety of such projects. 

 A default time period may not appropriately incentivize proper site 

characterization: Proper siting is the key to ensuring safety and 

effectiveness of storage projects, and the rules should work to incentivize, 

rather than discourage, the utmost due diligence in the siting process. 

While EPA‘s proposal would provide for the exercise of discretion to 

lengthen or shorten the PISC period, placing the burden of proof on 

permittees that a departure from the default is justified fails to recognize 

the enormous efforts associated with proper site characterization. 

A 50-year default period may introduce unnecessary financial uncertainty:

As currently proposed, the rules would require operators to obtain, as a 

baseline and at the time of permitting, financial assurance running through 

the default 50-year PISC period. Thus, operators would be likely required 

to assure activities that would not occur for more than 50 years, with 

 

7

S. Benson, Carbon Dioxide Capture and Storage: Research Pathways, Progress and 

Potential, GCEP Annual Symposium, October 2007:

http://pangea.stanford.edu/research/bensonlab/presentations/index.html.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 33

discretion vested in the UIC program director to extend that time period—

and thus the required period for demonstrating financial assurance. The 

end result could be an obligation to provide financial assurance for 

activities running through at least 70 years in the future (according to 

EPA‘s assumption of a 20-year injection period), or more. Further, in 

actuality, the PISC period could prove to be considerably shorter, 

rendering the initial burden placed upon the operator unnecessary. EEI 

urges the Agency to consider carefully, in connection with each proposed 

requirement that is tied to a financial assurance requirement, the ability for 

operators to quantify the activities being assured at the time of 

permitting—the basis of any financial assurance mechanism—as well as 

the potential burden and expense associated with the proposal. Given the 

ongoing credit crisis, an unjustifiably lengthy PISC period may make 

obtaining the necessary financial assurance impossible, stunting or 

stopping commercial development of CCS.

Instead of a default time period—particularly one as lengthy as 50 years—EEI urges EPA 

to implement a performance-based approach that considers the circumstances of a 

particular project, bounded by appropriate parameters for its application. As discussed 

throughout these comments, EEI also encourages the Agency to establish clear 

parameters for such a performance-based approach—and in particular a clear set of 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 34

guidelines for demonstrating that the injectate has ―stabilized‖ and for meeting the nonendangerment standard. 

F. Financial Assurance Provisions

The fifth general area of concern addressed in these comments relates to the proposed 

rules‘ provisions for financial assurance. The proposed rules would require that 

permittees demonstrate, at the time of project permitting, financial assurance for activities

including injection, corrective action, well plugging and closure, and activities 

throughout the PISC period, as well as for emergency and remedial response activities to 

address movement of formation or injection fluids that may endanger USDW. These 

proposed financial assurance requirements, which exceed those currently in place even 

for injection of hazardous wastes, raise significant concerns from the perspective of 

promoting CCS development. They are in many respects not balanced by corresponding 

increases in the levels of protection provided to USDW. These concerns include the 

following: 

More stringent treatment for GS projects are unwarranted from a 

technical perspective: As noted above, the proposed financial assurance 

provisions go far beyond the requirements currently in place under the 

UIC program, even those for wells injecting hazardous waste. EEI and 

our members do not believe that any showing has been made that the 

physical and chemical properties of CO2 are sufficiently unique—or that 

they pose a sufficiently unique potential threat to USDWs—to warrant 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 35

such unprecedented treatment under the UIC program. Any required 

financial assurance should in no event go beyond that currently required 

for Class I hazardous waste injection wells (i.e., beyond requirements to 

assure corrective action in the AOR). 

More stringent treatment creates unnecessary public perception issues:

As a preliminary matter, imposing requirements more stringent than (or 

even equivalent to) those currently imposed on hazardous waste may 

contribute to an unwarranted negative public perception of CCS. EEI 

strongly urges the Agency to exercise care not to stigmatize geological 

CO2 storage by equating it in any way with hazardous waste disposal, 

as doing so could affect public perception (thereby potentially 

hindering the permitting process) as well as perceptions by financial 

institutions (thereby potentially hindering project financing).

Consideration of test projects: Small-scale test projects currently 

underway are providing opportunities to gather necessary information to 

explore how financial assurance concerns may best be addressed. EEI 

encourages the Agency to consider the experience of these projects in 

moving forward with financial assurance provisions. 

Consideration of nature of early projects/incentives for early actors: 

Early CCS projects are likely to represent the utmost in site selection and 

characterization in order to minimize risk. Stringent financial assurance 

requirements imposed in this context likely would not provide any 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 36

additional protection to USDW. Further, financial assurance requirements 

beyond those currently in existence under the UIC program would

disincentivize early CCS projects from going forward. The Agency 

should consider financial assurance requirements in line with those 

currently imposed on other types of wells as a mechanism to incentivize 

these early projects. 

Consideration of the risk curve: While the Agency properly considers any 

unique threats that may be posed by the long-term nature of the storage at 

issue in a CCS project, the risk curve associated with a properly sited and 

managed project begins to fall off rapidly over time,8and well before the 

Agency‘s proposed financial assurance provisions would come to an end. 

Further, the proposed rules do not contain clear provisions for reducing 

financial assurance obligations over time in accordance with declining 

risk. Any financial assurance requirements imposed should be based upon

the actualities of the risk curve for CCS projects, and ideally the risk curve 

for a particular CCS project. 

Lack of site-specific flexibility in some respects: While the details of 

activities to be assured—and in some cases the likelihood that such 

activities would ever need to be carried out—could vary widely from 

project to project, the financial assurance requirements as proposed do not 

include provisions that would allow site-specific characteristics to be 

 

8

See id.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 37

taken into account. It is crucial that any financial assurance 

requirements be sufficiently flexible to take into account the 

particular risks associated with any given project. All projects are not 

created equal, and thus not all risks are the same

Ability to generate reliable cost estimates for assured activities: Financial 

assurance requirements depend on the ability to obtain reliable cost 

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

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

be assumed to be appropriate—it may be inadequately protective, or it 

may be unduly burdensome. The Agency is proposing imposition of 

financial assurance requirements for activities that may occur more than 

50 years in the future, with requirements to be satisfied at the time of 

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

at the time of permitting, the cost of all of the activities required to be 

assured can be accurately estimated and assumed to be relatively accurate 

going forward. If not, financial assurance is no better than a guess.

The preamble indicates that EPA may be willing to consider a phased 

or staged approach to financial assurance requirements, as well as 

separate financial assurance demonstrations for plugging and PISC 

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

difficulties with the financial assurance proposal in terms of estimating 

costs for future activities assuming that better estimation tools would 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 38

become available, but, again, would not eliminate any difficulties that may 

exist in forming cost estimates at the time of permitting. 

Market considerations: The above points assume that there currently 

exist, or will exist by the time the proposed rules are finalized, appropriate 

financial assurance possibilities for operators. As noted in the 

Government Accountability Office (GAO)‘s September 2008 report on 

CCS,9stakeholders have already reported difficulties in obtaining 

insurance coverage for CCS projects.10 Even where markets do exist, 

financial assurance options may prove inordinately expensive to project 

operators and investors, who may choose to walk away from projects 

rather than face millions of dollars in assurances for activities 50 years 

down the road that may never occur. EEI strongly encourages the 

Agency to evaluate this issue carefully and ensure that it is not 

creating obligations with which operators simply cannot comply, or 

which are so expensive that commercial development and deployment 

of CCS will be crippled at the outset. One possibility in this regard 

would be for the Agency to limit financial assurance requirements to 

reasonable caps (whether absolute caps or based on tons injected) in order 

 

9 GAO, Report to the Chairman of the Select Committee on Energy Independence and 

Global Warming, House of Representatives, Climate Change: Federal Actions Will 

Greatly Affect the Viability of Carbon Capture and Storage As a Key Mitigation Option, 

GAO-08-1080 (Sept. 2008).

10 Id. at 25. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 39

to facilitate ability to secure the relevant financial instruments and thus 

CCS development. 

Lack of appropriate standards for updating: The proposed rules would 

require operators to provide written updates of adjustments to cost 

estimates as assured plans are amended. However, the preamble suggests 

that the UIC program director ―would set the frequency for... redemonstration of financial responsibility and resources. It may be 

appropriate to re-demonstrate financial responsibility on a periodic basis‖ 

to take into account any changes in submitted plans. While a requirement 

to update financial assurance where changes in plans so warrant makes 

sense, a default periodic requirement to re-demonstrate financial assurance 

absent some change in circumstances that would require it would impose 

an unnecessary burden on operators. 

Lack of contemplation of third-party assumption of risk or liability: The 

preamble acknowledges that EPA is making no attempt to factor in 

circumstances in which a state, for example, or other third party has 

assumed long-term risk or liability for or ownership of stored CO2 (as is 

contemplated in the Interstate Oil and Gas Compact Commission 

(IOGCC) model statute and regulations issued in September 2007 and the 

October 2008 Guidelines for Carbon Dioxide Capture, Transport and 

Storage, released by World Resources Institute). It specifically notes that 

―SDWA does not provide EPA with the authority to transfer liability from 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 40

one entity to the other. Trust responsibility for potential impacts to 

USDWs remains with the owner or operator indefinitely under current 

SDWA provisions.‖ While EEI acknowledges that EPA‘s authority with 

regard to issues of liability transfers for CCS projects generally speaking 

is limited, we encourage the Agency to consider that liability transfers 

may be effectuated under other laws and to examine closely how the UIC 

rules can take such provisions into account. 

For example, the current UIC regulations at least contemplate changes in 

ownership of projects; see, e.g., 40 C.F.R. § 144.66, which provides that 

where a state assumes legal responsibility for compliance with plugging 

and abandonment requirements or assures state funding for such 

requirements, the operator is deemed to have satisfied applicable financial 

assurance requirements where the Administrator determines that the 

state‘s assumption is at least equivalent to available financial assurance 

mechanisms. As another example, one option within the Agency‘s SDWA 

jurisdiction may be to include a similar provision indicating that where a 

third party assumes a permittee‘s regulatory obligations, the permittee is 

deemed to have satisfied applicable financial assurance requirements,

which can then be terminated as to the permittee. 

Comments on specific financial assurance mechanisms: The preamble 

seeks comment on what types of financial assurance mechanisms should 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 41

be made available for GS projects. While a number of mechanisms 

currently exist under the UIC program, such as trust funds, surety 

bonds, insurance and satisfaction of a corporate financial test (with or 

without a third-party guarantee), the guidance outlining available 

mechanisms should provide Agency decision-makers with flexibility to 

take operator and project-specific considerations into account. In 

addition, current ―form‖ corporate financial test documents may require 

that corporations have certain financial information available (such as 

bond ratings) that they may lack, but do not clearly allow for substitution 

of substantially equivalent financial information for purposes of satisfying 

the test. Any financial assurance regulations should provide the Agency 

with considerable flexibility in how to determine a permittee‘s financial 

position. 

G. Grandfathering Provisions

The sixth general area of concern addressed in these comments involves how two 

categories of existing injection wells in particular should be treated in the final 

regulations. The first such category includes existing CO2 injection and storage wells 

that have been permitted as ―experimental‖ wells under the Class V UIC regulations or 

pilot projects that have been permitted as industrial projects under the Class I UIC 

regulations. The second category of existing wells under consideration includes Class II 

wells that inject CO2 for purposes of EOR. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 42

EPA has proposed giving the UIC program discretion to ―grandfather‖ the construction 

requirements for existing Class I, II and Class V wells where the UIC program director 

can determine that the wells will not endanger USDW. Such grandfathering is soundly 

justified, as these wells have been constructed specifically for injection and, particularly 

in the case of Class I and V wells associated with CCS pilot projects, for storage of CO2

and are suitable for the purpose for which they are designed; the promulgation of new 

regulations should not render them unfit for the purpose for which they were intended. 

Further, permittees of these wells presumably were required to satisfy the nonendangerment standard as part of the initial permitting process. 

However, the limited scope of the proposed grandfathering—with the sole exception of 

the construction requirements, operators would be required to satisfy all provisions of the 

Class VI permitting requirements—coupled with the fact that its use is left to the UIC 

program director‘s discretion, casts considerable doubt on its potential efficacy. First, 

under these circumstances, potential grandfathering likely would not provide the needed

assurance—and thus the needed incentives—to project operators or investors that existing 

wells, or, perhaps more importantly, new wells that may be permitted before the proposed 

rules take effect, will remain viable wells from a regulatory perspective going forward. 

Under those circumstances, the potential risks of ―first actor‖ status may well outweigh

any potential benefits. For example, limiting grandfathering for Class I or V 

experimental wells to construction requirements risks greatly reducing incentives for 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 43

operators to undertake such projects, as at some point in the future they will be required 

to assume a far more stringent slate of obligations (including onerous financial assurance 

requirements). Moreover, given many of the other proposed limitations on GS projects, 

such as the restrictions on receiving formations, grandfathering may prove impossible 

even for projects that were specifically designed to inject and store CO2. 

As noted above, wells permitted to inject and store CO2 have already been deemed safe 

and suitable for those purposes, and a determination has already been made that no 

endangerment is posed to USDW. Under these circumstances, leaving a grandfathering 

determination to the discretion of the program director—discretion that may be exercised 

where the director determines that there is no endangerment to USDW—is unnecessarily 

duplicative of existing requirements and limiting for project operators. The desired 

protection of USDW has already been established for these projects, and absent some 

change in circumstances, that protection will remain. Further, leaving grandfathering to 

the discretion of the program director could result in a decision that, as a practical matter, 

comes too late for it to be viewed as a legitimate option at the start of a project. 

The rules’ grandfathering provision should be as expansive as possible while 

balancing the need for protection of USDW, and thus EEI recommends two 

principal modifications to the proposed provision. First, a preferable approach to 

limiting the scope of grandfathering only to construction requirements is to expand

the scope of available grandfathering for existing wells, given that the wells were 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 44

constructed for injection of CO2 in the first instance. Further, rather than leave 

grandfathering to the discretion of the program director, a preferable approach is

to allow grandfathering as a default rule unless the program director determines 

that, pursuant to specified criteria, the specific nature of the project renders it 

unsuitable for CO2 storage. 

H. Public Participation Provisions

The preamble seeks comment on what public participation provisions should be included 

for GS wells. EEI shares the Agency‘s view that accurate public perception and 

increased understanding of CCS technology are critical to its success at the commercial 

level. To that end, EEI supports the development of regulations and policies that will 

serve to educate the public and provide for appropriate public input on projects. 

The preamble proposes to apply the public participation provisions of 40 C.F.R. Parts 25 

and 124 to GS projects and seeks comments on the appropriateness and completeness of 

those provisions for this task. EEI agrees that public participation provisions currently 

existing under the UIC program are appropriately applied to GS projects as well. 

However, Part 124 includes provisions for public participation that are unique to other 

programs, including RCRA.

11

 Imposition of public participation provisions like those 

currently applicable under RCRA is unnecessary and undesirable for GS projects, 

as further explained below. 

 

11 See generally 40 C.F.R. Part 124, Subpart B. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 45

The general public participation requirements under the UIC program provide for 

operators to submit a permit application, complete with all information required by the 

regulations, and for a completeness review of the submitted information. The public 

comment period is generally commenced once the director has prepared a draft permit for 

the project. This is a rationale approach for GS projects. It allows the project operator 

and the Agency to make preliminary decisions, such as decisions related to siting, that are 

critical to the success of the project generally—and to the protection of USDW 

specifically—based upon appropriate geologic and technical considerations. It then 

allows the public to review the proposed project in light of all of the information that 

would be required for permit issuance, including, for example, in the GS context, specific 

information related to siting, construction, operation and monitoring. 

However, the RCRA public participation provisions provide for, under certain 

circumstances, public meetings prior to submission of a permit application for a 

hazardous waste management unit. While the siting of RCRA-regulated facilities is 

obviously based on a number of concrete considerations, the siting of GS projects is 

dependent upon site geology to an extent that does not exist in the RCRA context. While 

EEI supports creation of provisions that allow for public input into projects, issues related 

to project siting are particularly susceptible to public response, which may be based upon 

improper perceptions of risk or desires that projects be sited elsewhere rather than upon 

true risks that a project may pose to USDW. EEI encourages the Agency to craft 

provisions that support decision-making based upon sound science and do not 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 46

unduly hamper siting decisions. In addition, as is echoed throughout these comments, 

imposing provisions on GS projects similar to those imposed upon hazardous waste in 

and of itself may feed into public misperceptions regarding the nature of projects and 

their safety as a general matter. 

Finally, EEI notes that the Internet has become an important source of information for the 

public, and EEI echoes the Agency‘s desire to utilize its capabilities to provide not only 

for public involvement, but also–perhaps more importantly as an initial matter—for 

public education on the benefits and true risks of CCS projects. 

I. State Primacy Provisions

The proposed rules seek comment on whether states should be permitted to seek primacy 

for Class VI wells, noting the Agency‘s belief that ―the most effective approach for the 

comprehensive management of CO2 GS projects would be achieved at the State and 

Tribal level.‖ EEI agrees that states and tribes should play a key role in managing CCS 

projects going forward. Numerous states have decades of experience regulating CO2

injection through Class II programs, and those states in particular may have much to offer 

in the context of Class IV wells. Further, many states are moving ahead with developing 

their own legislation and regulations related to CCS activities—in many cases laws and 

rules that go beyond the scope of EPA‘s jurisdiction, such as incentives provisions and 

provisions clarifying the nature of potentially affected property rights. Allowing those 

states to take on primacy for Class VI wells (in particular, allowing them to take on 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 47

primacy for Class VI without assuming the regulatory burden that may be associated with 

other well classes) will help ensure that they are given credit and recognition for their 

groundbreaking work on CCS. EEI supports increased funding for those states that have 

primacy for Class VI wells to ensure that sufficient resources exist to review 

appropriately the complex permit applications GS projects will entail. 

EEI also encourages the Agency to consider potential issues related to projects that may 

span multiple states in light of primacy issues. Under such circumstances the rules could 

include, for example, provisions for establishing a primary state for permitting purposes, 

with additional affected states provided an opportunity for notice and comment. 

J. Issues Related to Potential Application of Other Environmental Laws

EEI and our members are concerned about the potential application to CCS activities of 

environmental laws that were, without exception, not intended to apply to CCS or even 

crafted with CCS in mind and that could impose significant obligations and potential 

liabilities not only on project operators, but also potentially on other entities in the CO2

chain, such as entities producing the CO2 that is ultimately injected. These laws include 

in particular the Comprehensive Environmental Response, Compensation, and Liability 

Act (CERCLA or Superfund) and RCRA. EEI agrees that issues related to potential 

liabilities under these laws must be resolved.12 Setting aside for the moment the 

 

12 The recent released GAO report on CCS echoes the importance of addressing these

liability issues. GAO recommends that EPA examine its authorities and responsibilities 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 48

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

so, precisely how and to what extent, EEI does not disagree with the Agency‘s position 

that drafting a clear exception from either of these regimes may be difficult in the sole 

context of this SDWA UIC rulemaking. Nonetheless, EEI urges EPA to evaluate 

carefully any proposed treatment of these two laws (or others) that it may be 

considering under the Class VI regulations to ensure that any such treatment is 

necessary and does not serve as an unintended springboard for hampering the 

successful commercialization of CCS.

To turn briefly to the RCRA issue, EPA comments in the preamble that SDWA is 

currently used to regulate the injection of both ―pollutants‖ and ―commodities‖; therefore, 

the rules do not need to address the status of CO2 as a pollutant or a commodity.13 

Regardless, the preamble continues to include an analysis of the potential application of 

RCRA to CO2 injection and storage activities that appears to be based upon an 

assumption that CO2 is in fact not a commodity, but a waste. 

As the Agency is aware, RCRA regulates production, management and disposal of 

wastes; RCRA‘s potential application thus depends upon existence of a waste in the first 

instance (more particularly, a solid waste). Once a material is deemed to be ―discarded‖ 

 

under RCRA and CERCLA to determine ―where additional statutory authority might be 

needed to address key regulatory and legal issues related‖ to CCS. GAO report, supra n. 

9, at 52.

1373 Fed. Reg. 43496, col.3
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 49

and thus a solid waste, an additional set of parameters applies to determine whether that 

substance is also a hazardous waste and thus subject to further regulation. It is likely

within EPA’s regulatory ambit (albeit under RCRA) to determine that CCS 

activities meeting permit requirements are not equated to discarding the CO2, and 

EEI recommends that EPA examine that approach. 

Further, while the preamble notes that it is unnecessary to label CO2 a waste or a 

commodity for purposes of proposing and implementing UIC regulations for its injection 

and storage, it jumps to an unnecessary and potentially confusing discussion of whether 

injected CO2 may be a hazardous waste, thus perhaps implying the assumption that CO2

is a solid waste to begin with. The preamble states: 

Because the types of impurities and their concentrations in the CO2 stream 

are likely to vary by facility, coal composition, plant operating conditions, 

and pollution removal technologies, EPA cannot make a categorical 

determination as to whether injected CO2 is hazardous under RCRA.14 

Thus, EPA states, operators ―will need to characterize their CO2 stream as part of their 

permit application to determine if the injectate is considered hazardous‖ under RCRA, 

and potential application of RCRA is left to a case-by-case determination depending upon 

the contents of the injectate. EEI submits that any characterization of potentially 

hazardous constituents in CO2 injectate may be addressed as part of the UIC 

permitting process without addressing any potential RCRA jurisdictional issues. 

For instance, EPA could appropriately establish a permit condition that injectate must 

 

14 Id. at 43503, col. 3.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 50

meet Toxicity Characteristic Leaching Procedure or pH standards, without reference to 

the material‘s waste status. 

As to CERCLA, the preamble states that the statute ―exempts from liability certain 

 ̳federally permitted releases‘ including releases in compliance with a UIC permit under 

SDWA. Therefore, Class VI requirements and permits will need to be carefully 

structured to ensure that they do not  ̳authorize‘ inappropriate hazardous releases. This 

would include clarifying if there are potential releases from the well which are outside the 

scope of the Class VI permit.‖ The preamble continues on to request comment on 

―particular situations where this might occur‖ as well as more generally on ―other 

considerations associated with the presence of impurities in the CO2 stream related to 

CERCLA.‖ This discussion implies that, in the first instance, activities associated with 

CCS could be subject to CERCLA. 

EEI acknowledges that limits exist on EPA‘s ability to affect issues related to potential 

CERCLA liability in the context of this SDWA rulemaking. Nonetheless, EEI submits 

that EPA should seek to provide as much clarity and certainty as possible in this context 

to allow for the most expansive application of CERCLA‘s federally permitted release 

exemption as appropriate to activities permitted under the proposed rules. Insofar as the 

contents of a given CO2 stream will be characterized for permitting purposes and, as the 

permit may identify particular impurities in the stream, the presence of such impurities 

would fall squarely within the federally permitted release exemption should not result in 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 51

―inappropriate hazardous releases.‖ Further, the application of the federally permitted 

release exemption to the expected, intended composition of the injectate does not 

inappropriately undermine other limits on the application of the federally permitted 

release exemption that may exist, potentially including situations where an impurity not 

contemplated by the permit writer is introduced into the stream or where hazardous 

substances in the injectate cause the incurrence of response costs where material permit 

compliance has not been maintained.

Furthermore, as noted above, the preamble‘s discussion is based on the assumption that 

CERCLA would be triggered in the first instance. As the Agency is aware, CERCLA 

liability (at minimum for certain classes of potentially responsible parties) turns to a 

significant extent on whether there has been ―disposal‖ of hazardous substances. As with 

the RCRA issue, a determination of this issue is unnecessary from the perspective of 

regulating injection and storage of CO2 under the UIC program, and EEI urges the 

Agency to avoid creating unnecessary hurdles for the successful commercial 

deployment of CCS by assuming potential applications of other statutes that may 

not come into play. EEI also encourages the Agency, pursuant to its authority 

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

from those programs.
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 52

K. Issues Related to Potentially Implicated Property Rights

Finally, although EEI recognizes the limits on EPA‘s jurisdiction regarding CCS projects, 

our members appreciate the Agency raising for public comment issues related to property 

rights that may be associated with CO2 injection and storage. While the importance of 

EPA‘s rulemaking as an important step in providing clarity, flexibility and certainty for 

project operators and investors cannot be overstated, CCS projects may not go forward in 

the absence of resolution of property rights-related issues. 

Numerous property rights may be implicated by a given CCS project, including 

ownership interests in the surface property to be used for injection equipment, the 

subsurface property housing the injection well, the ―pore space‖ in which CO2 will be 

stored, and water rights and mineral interests that may exist in the area. Currently, an 

entity interested in pursuing a CCS project is left to sort out who owns these various 

interests, an exercise that is a combination of applicable state law—to the extent any 

applicable state law exists—and site-specific due diligence.15 This exercise is likely 

fraught with considerable uncertainty and expense and must be successfully completed in 

order for a project to begin. Commercial deployment of CCS technology may be 

advanced considerably through legal mechanisms at the state and federal levels that 

 

15 The proposed regulations would also require the permittee to record a notice on the 

deed (or other relevant document) to the ―facility property‖ containing certain 

information. While EEI is not opposed to the concept of a deed notice, more clarity is 

needed in the regulations regarding how ―facility property‖ is to be defined in order to 

better understand the scope of the proposed requirement. EEI recommends limiting 

―facility property‖ to the area immediately surrounding the injection well. 
EEI Comments on Proposed Regulations for Geologic Storage of CO2

Docket ID No. EPA-HQ-OW-2008-0390 

December 23, 2008

Page 53

assist potential permittees in working through property rights-related issues. 

Available mechanisms may range from laws that clarify presumptions related to 

ownership of various implicated interests16 to provisions allowing for use of eminent 

domain authority to obtain such interests. EEI supports further exploration and 

discussion of these issues, and EPA‘s efforts to solicit public views will serve to raise 

stakeholder and policy-maker awareness regarding the importance of their resolution to 

the successful commercial deployment of CCS. 

 

16 See Wyoming‘s House Bill 89, http://legisweb.state.wy.us/2008/Enroll/HB0089.pdf, 

which became law in July 2008.
Letter ID: 0177 

Commenter: Quinlan J. Shea 

Organization: Edison Electric Institute 

Letter ID: 0177 Comment ID: 23549 Letter Lines: 76 to 91 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment Code: 1420 1.2.1.1 Support the GS rulemaking 

Comment: Executive Summary 

Addressing climate change concerns requires a full commitment to development and 

commercial deployment of carbon capture and storage (CCS) technologies. EEI 

thus supports the development of clear, flexible and appropriately tailored 

regulatory regimes that will facilitate development of and investment in CCS 

technology and projects while protecting against potential environmental risks. 

We applaud the Agency for taking this crucial first step toward establishing 

such a regime for geological sequestration (GS). Recognizing the significance of 

EPA‘s initiative in proposing regulations for the injection and storage of 

carbon dioxide (CO2) under the Safe Drinking Water Act‘s (SDWA) Underground 

Injection Control (UIC) program, EEI appreciates the opportunity to provide 

input into the process and to share our suggestions for changes to the proposed 

rule. Incorporation of our comments into the final rule will serve to promote 

the dual goals of promoting the commercialization of CCS technology and 

preventing potentially undesirable impacts to drinking water resources. 

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: 0177 Comment ID: 23550 Letter Lines: 93 to 99 

Comment Code: 1200 1.1 General comments about the rulemaking 

Comment: The potential environmental benefits of deploying CCS technologies, in terms of 

avoided or sequestered CO2 emissions, should be weighed against potential 

requirements that might delay or compromise the ability to achieve commercialscale CCS. Key issues include balancing state and federal interests, 

appropriate characterization of CO2, appropriate risk management approaches and 

maintaining needed flexibility. To this end, EEI has provided comments on nine 

1
areas of concern, briefly summarized below. 

Individual Response: Please see the remainder of EPA's responses to this comment for further 

details. For additional information on EPA's final regulatory approach, please see the final rule 

and preamble, including site selection criteria, emergency and remedial response, and the 

adaptive rulemaking approach, as well as the rulemaking docket. 

EPA clarifies that the intent of the GS rule is not to promote or encourage the use of GS; rather, 

its purpose is to ensure consistency in permitting underground injection of CO2 at GS operations 

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

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

Letter ID: 0177 Comment ID: 23551 Letter Lines: 100 to 109 

Comment Code: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space 

ownership 

Comment Code: 2100 1.6 Target Geologic Formations for GS 

Comment Code: 3100 2.1 Proposed Geologic Siting Requirements (40 CFR 146.83) 

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

(seeking comment) 

Comment: 

EEI agrees that proper site selection is critical to a successful GS project and 

notes that it serves to minimize, if not eliminate, any potential threats to 

drinking water sources that CO2 injection and storage may pose. However, 

several of the proposed requirements are unnecessary from the perspective of 

protecting drinking water sources and would only serve to hamper GS projects 

from going forward, including limitations on receiving formations, potential 

alteration to the current definition of an underground source of drinking water 

(USDW), and the proposed grant of discretion to the UIC program director to 

require permit applicants to identify secondary containment/confining zones. 

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

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. 

EPA believes that the Class VI requirements, including the level of site characterization required 

2
under §§146.82 and 146.83, appropriately address the unique challenges posed by large-scale GS 

including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence 

of water, the potential presence of impurities in captured CO2, and its mobility within subsurface 

geologic formations. 

EPA disagrees with the commenter that the GS rule requirements are unnecessary to protect 

USDWs. The GS final rule builds upon longstanding programmatic requirements for 

underground injection that have been in place since the 1980s and that are used to manage over 

800,000 injection wells nationwide. These programmatic requirements are designed to prevent 

fluid movement into USDWs by addressing the potential pathways through which injected fluids 

can migrate into USDWs. EPA coordinated with Federal and non- Federal entities on GS and 

CCS to determine how best to tailor existing injection requirements to CO2 for GS. 

Additionally, 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. 

Letter ID: 0177 Comment ID: 23552 Letter Lines: 111 to 115 

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

Comment: EEI is concerned that a broad, unconstrained requirement for periodic 

reevaluation of the area of review (AOR) that would apply in the same manner to 

all potential project sites is unwarranted as a matter of presumption. The 

schedule for AOR review should be a matter addressed through permitting and a 

plan for development and operation. 

Individual Response: EPA is retaining the approach of setting a minimum fixed frequency for 

reevaluating the AoR but has, based on commenters' input, changed the frequency from 10 years 

to at least every 5 years, as specified in §146.84(e). EPA agrees with commenters that sitespecific information is an important factor in determining an appropriate AoR reevaluation 

frequency, and adds that the owner or operator's AoR and corrective action plan must describe 

the minimum fixed frequency for reevaluating the AoR and the site-specific conditions on which 

this frequency is based. 

Letter ID: 0177 Comment ID: 23553 Letter Lines: 117 to 123 

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

3
(seeking comment) 

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

comment) 

Comment: EEI is also concerned about proposed requirements related to monitoring for 

potential CO2 movement and the use of tracers. Under the proposed regulations, 

the UIC program director would have discretion to require the use of tracers or 

surface air/soil gas monitoring "to detect movement of CO2 that could endanger a 

USDW." Tracers and surface air/soil gas monitoring should not be required, and 

may create an overly negative and unwarranted public perception regarding the 

safety of GS projects or tracers. 

Individual Response: EPA believes that monitoring at a GS site is of critical importance to 

ensuring protection of USDWs from endangerment. Appropriately selected monitoring 

technologies, including surface air and soil-gas monitoring will also serve to increase public 

confidence in the safety of GS and to assure the public that GS projects are being appropriately 

operated and monitored. The information gained through such monitoring will also enable 

permitting authorities to take appropriate steps to address any indication that USDWs may be 

endangered. 

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

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

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

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

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

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

is depleted in 13C compared to naturally occurring CO2. 

EPA clarifies that surface air and soil gas monitoring are not required at all GS sites. However, 

the GS rule at §146.90(h) gives the Director discretion to require surface air and/or soil gas 

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

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

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

Regarding the use of tracers, EPA agrees that tracers may not be appropriate for all GS sites, but 

should be available as an option. For this reason, EPA does not require the use of tracers at all 

GS sites; however, the Director has discretion to require their use if he/she determines that the 

use of tracers could improve monitoring of the site and enhance USDW protection from 

endangerment. The rule will also allow their use if proposed by the owner or operator and 

approved by the Director. 

Letter ID: 0177 Comment ID: 23554 Letter Lines: 125 to 132 

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

Comment: Another general area of concern discussed in our comments involves the proposed 

4
rule‘s provisions for closure and post-injection site care (PISC). In 

particular, EEI is concerned with the proposed imposition of a PISC period 

spanning, as a matter of default, 50 years after cessation of injection. 

Establishing a default time period for PISC, in particular one as lengthy as 50 

years, is unnecessary and undesirable. The dual goals of protecting USDW and 

supporting the commercialization of CCS technology are far better served through 

a site-specific, performance-based approach. 

Individual Response: EPA agrees with commenters 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 final GS regulation 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 nonendangerment of USDWs pursuant to requirements at §146.93(c). 

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

for post-injection site care will be necessary in most cases. The default 50 year post-injection site 

care timeframe represents a reasonable and protective monitoring period based on a review of 

research studies, industry reports, and existing environmental programs, and evaluation of public 

comments. 

EPA 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 adds that the purpose of the GS rule is not to incentivize the use of GS; rather, the purpose 

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

USDWs from endangerment. 

Letter ID: 0177 Comment ID: 23555 Letter Lines: 134 to 143 

Comment Code: 5400 2.9 Proposed Financial Responsibility and Long-Term Care 

Requirements 

Comment: The proposed financial assurance requirements, which exceed those currently in 

place for injection of hazardous wastes, raise significant concerns from the 

perspective of promoting CCS development. EEI strongly urges the Agency to 

exercise care not to stigmatize geological CO2 storage by equating it in any way 

with hazardous waste disposal, as doing so could affect public perception 

5
(thereby potentially hindering the permitting process) as well as perceptions by 

financial institutions (thereby potentially hindering project financing). 

Further, it is crucial that any financial assurance requirements be sufficiently 

flexible to take into account the particular risks associated with any given 

project. 

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

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

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

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

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

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

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

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

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

endangerment. 

Letter ID: 0177 Comment ID: 23556 Letter Lines: 145 to 156 

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

Comment: EEI is concerned with how existing CO2 injection wells should be treated in the 

final regulations. The rule‘s grandfathering provision should be as expansive 

as possible while balancing the need for protection of USDW, and thus EEI 

recommends two principal modifications to the proposed provision. First, a 

preferable approach to limiting the scope of grandfathering only to construction 

requirements is to expand the scope of available grandfathering for existing 

wells, given that the wells were constructed for injection of CO2 in the first 

instance. Further, rather than leave grandfathering to the discretion of the 

program director, a preferable approach is to allow grandfathering as a default 

rule unless the program director determines that, pursuant to specified 

criteria, the specific nature of the project renders it unsuitable for CO2 

storage. 

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

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

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

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

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

at §146.86(b) and §146.87(a). EPA clarifies that only the construction requirements are 

grandfathered and that all other Class VI requirements (reporting, monitoring, mechnical 

integrity testing, etc.) must be met following a determination under §146.81(c). 

EPA disagrees that this grandfathering should be a "default," or that other requirements should 

also be grandfathered. Following re-permitting of the well as Class VI, many of the unique 

factors of GS sites (e.g., increased reservoir pressures associated with large volumes of stored 

6
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 would 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: 0177 Comment ID: 23557 Letter Lines: 158 to 166 

Comment Code: 5500 2.1 Comments on Involving the Public in Permitting Decisions 

Comment: EEI shares the Agency‘s view that accurate public perception and increased 

understanding of CCS technology are critical to its success at the commercial 

level. To that end, EEI supports the development of regulations and policies 

that will serve to educate the public and provide for appropriate public input 

on projects. However, EEI is concerned that imposition of public participation 

provisions like those currently applicable under the Resource Conservation and 

Recovery Act (RCRA) are unnecessary and undesirable for GS projects. EEI 

encourages the Agency to craft provisions that support decision-making based 

upon sound science and do not unduly hamper siting decisions. 

Individual Response: The Agency believes that public participation is an important part of the 

UIC permitting process and wants to ensure wide access to decision-making processes and 

information on projects that may affect the public. GS permitting authorities must follow the 

existing public participation requirements for UIC permits as specified in 40 CFR Part 124. 

These regulations lay out the procedures for decision making and include requirements such as 

requiring the Director to notify the public regarding the availability of the draft permit and allow 

him or her to request a public hearing on the draft permit. EPA encourages operators and 

permitting agencies to begin involving the public by providing information as early in the 

process as possible. Encouraging public participation allows the permitting authority to 

understand public viewpoints, preferences, and concerns about the project, which might help 

avoid public misperceptions about the nature and safety of GS projects and forestall resistance 

later in the permitting effort. 

EPA clarifies that RCRA public participation provisions do not apply to Class VI permits. 

Letter ID: 0177 Comment ID: 23558 Letter Lines: 168 to 175 

Comment Code: 5600 2.11 Comments related to UIC Program primacy for Class VI wells 

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

Comment: Regarding whether states should be permitted to seek primacy for Class VI wells, 

EEI agrees that states and tribes should play a key role in managing CCS 

projects going forward. Further, many states are moving ahead with developing 

their own legislation and regulations related to CCS activities. Allowing those 

7
states to take on primacy for Class VI wells (in particular, allowing them to 

take on primacy for Class VI without assuming the regulatory burden that may be 

associated with other well classes) will help ensure that they are given credit 

and recognition for their groundbreaking work on CCS. 

Individual Response: EPA agrees that states should be allowed to obtain primacy for Class VI 

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

under §145.1(i) of the final GS rule. In the past, EPA has not accepted UIC primacy applications 

for individual well classes under Section 1422 of SDWA. In other words, if a State wanted 

primacy for Class I wells, the State would also need to accept responsibility for Class III, IV, and 

V wells. This policy has been in place since the initiation of the UIC Program in the early 1980s 

and was intended to encourage states to take full responsibility for UIC programs, avoid 

duplication of efforts, and provide for administrative efficiencies. 

However, given the potential for CCS (encompassing capture, transportation, and geologic 

sequestration) to be an important part of a national priority to address climate change, EPA 

believes that providing states the flexibility to obtain primacy for Class VI wells independently 

of other well classes can help foster effective management of CCS. EPA believes that allowing 

independent Class VI primacy may encourage states to take responsibility for implementation of 

Class VI regulations and provide for a more comprehensive approach to managing CCS projects 

by promoting the integration of GS activities under SDWA into a broader framework for 

managing CCS. Furthermore, GS operations involve ancillary activities (e.g., pipeline 

operations, pore space ownership, land use rights, and surface access) for which states can call 

upon other authorities that exist at the state level (but outside UIC authority) to provide a more 

comprehensive CCS management approach. 

The Agency believes that it is important for states to use their unique efficiencies to promote 

adoption of this burgeoning and important technology, while assuring that USDWs are protected 

from endangerment through the UIC regulatory framework. EPA believes that, due to the 

importance of implementing an effective, comprehensive, and seamless CCS program, States 

should be provided the flexibility to obtain primacy for Class VI only. 

EPA also believes that allowing states to apply only for Class VI primacy will shorten the 

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

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

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

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

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

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

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

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

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

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

Class VI wells under section 1422 of SDWA to ensure that their GS programs integrate into 

national climate change priorities and protect USDWs from endangerment. 

8
EPA recognizes that some states have already begun legislative efforts that are wider in scope 

than the Federal GS rule and believes that allowing Class VI primacy (independent of other well 

classes) may encourage states to take responsibility for implementation of a more comprehensive 

approach to managing CCS projects (e.g., capture, transportation, and geologic sequestration). 

Letter ID: 0177 Comment ID: 23559 Letter Lines: 177 to 190 

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

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: Finally, EEI is concerned about the potential application to CCS activities of 

environmental laws that were, without exception, not intended to apply to CCS or 

even crafted with CCS in mind and that could impose significant obligations and 

potential liabilities not only on project operators, but also potentially on 

other entities in the CO2 chain, such as entities producing the CO2 that is 

ultimately injected. These laws include the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA or Superfund) and RCRA. EEI 

urges EPA to evaluate carefully any proposed treatment of these two laws (or 

others) that it may be considering under the Class VI regulations to ensure that 

any such treatment is necessary and does not serve as an unintended springboard 

for hampering the successful commercialization of CCS. EEI submits that any 

characterization of potentially hazardous constituents in CO2 injectate may be 

addressed as part of the UIC permitting process without addressing any potential 

RCRA jurisdictional issues. 

Individual Response: First, EPA notes that the GS rule is not promulgated under either the 

RCRA or CERCLA statutes, and the applicability of those statutes will not be determined under 

the SDWA or the terms of the GS rule, but rather according to those statutes themselves and any 

implementing regulations that may apply. 

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. 

With respect to CERCLA, EPA clarifies that CO2 itself is not listed as a hazardous substance 

under CERCLA; however, the CO2 stream may contain a listed hazardous substance (such as 

9
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. 

Letter ID: 0177 Comment ID: 23560 Letter Lines: 194 to 202 ; 1256 to 1259 

Comment Code: 1000 1. General and Administrative Comments 

Comment: The Edison Electric Institute (EEI) [FN1] submits these comments on the 

Environmental Protection Agency (EPA or Agency)‘s proposed regulations for the 

injection and geologic storage (GS) of carbon dioxide (CO2) under the authority 

of the Safe Drinking Water Act (SDWA)'s underground injection control (UIC) 

program, issued in July 2008 (Docket ID No. EPA-HQ-OW-2008-0390), 73 Fed. Reg. 

43492 (July 25, 2008). EEI submitted pre-rulemaking comments to the Agency on 

May 15, 2008, and provided oral and written testimony at EPA‘s September 30, 

2008, public hearing on the proposed rules. These comments and testimony are 

incorporated by reference herein. 

[FN1] EEI is the national association of shareholder-owned electric utilities 

in the U.S. Our members represent about 70 percent of the U.S. electric power 

industry and serve 95 percent of the ultimate customers in the industry‘s 

investor-owned segment. 

Individual Response: EPA acknowledges the comment. Please see the remainder of EPA's 

responses to this comment for further details. For additional information on EPA's final 

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

Letter ID: 0177 Comment ID: 23561 Letter Lines: 205 to 234 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment Code: 1420 1.2.1.1 Support the GS rulemaking 

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

As we noted in our prior comments, addressing climate change concerns requires a 

full commitment to development and commercial deployment of carbon capture and 

storage (CCS) technologies. To put the need for this commitment in context, 

consider that electricity generation is responsible for 34 percent of greenhouse 

gas (GHG) emissions and 40 percent of CO2 in the U.S. The Energy Information 

Administration projects net electric demand will increase 30 percent by 2030, 

10
even after taking into account energy-efficiency improvements. New and 

replacement power plant capacity to meet this increased demand is projected to 

total 150,000 megaWatts. Coal is one of the primary sources of baseload 

generation in the U.S. and will continue to be an important fuel for generating 

electricity through 2030 because it is comparatively affordable and abundant in 

this country. Given this backdrop, the potential environmental benefits of CCS 

- in terms of reduced or avoided CO2 emissions - are substantial. Consequently, 

EEI and our members see CCS as a critical element in the full portfolio of 

options needed not only to reduce CO2 emissions, but also to ensure continued 

affordable and reliable electric service to customers throughout the nation. 

EEI thus supports the development of clear, flexible and appropriately tailored 

regulatory regimes that will facilitate development of and investment in CCS 

technology and projects while protecting against potential environmental risks. 

We applaud the Agency for taking this crucial first step toward establishing 

such a regime for GS. Recognizing the significance of EPA's initiative in 

proposing regulations for the injection and storage of CO2 under SDWA's UIC 

program, EEI appreciates the opportunity to provide input into the process and 

to share our suggestions for changes to the proposed rules. Incorporation of 

our comments into the final rules will serve to promote the dual goals of 

promoting the commercialization of CCS technology and preventing potentially 

undesirable impacts to drinking water resources. 

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 the implementation of the GS rule in a manner that ensures protection of 

USDWs from endangerment is important to establishing a foundation for further advances in the 

field of CO2 GS. EPA acknowledges the need for regulatory certainty: the final GS requirements 

provide a level of certainty by setting forth unique requirements for GS. These requirements 

include: the tailored AoR delineation process (per §146.84), the types of monitoring appropriate 

to GS projects (per §146.90), and the post-injection site care process (per §146.93). 

While EPA agrees with commenters that a stable, predictable, nationally consistent, and 

workable regulatory framework is important, EPA stresses that the focus of the GS rule is to 

ensure that, where GS is deployed, it is conducted in a manner that protects USDWs from 

endangerment. 

Letter ID: 0177 Comment ID: 23562 Letter Lines: 236 to 249 ; 1261 to 1261 

11
Comment Code: 1200 1.1 General comments about the rulemaking 

Comment Code: 1330 1.1.3.1 Support use of GS in general 

Comment: EEI's views are guided by several general principles applicable to any federal 

legislative or regulatory effort on CCS, which are described below and discussed 

more fully in the context of specific comments: 

1. Promotion of CCS. As EPA acknowledges in the preamble, CCS is a key climate 

change mitigation technology, and the proposed rules are intended to support its 

development.[FN2] Likewise, any EPA regulatory regime related to CCS developed 

under the authority of SDWA (or any other statute) should be designed to 

facilitate, and not unduly hinder, the successful commercial-scale deployment of 

CCS. The potential environmental benefits of such deployment in terms of 

reduced or avoided GHG emissions should be weighed against potential 

requirements that might delay or compromise the ability to achieve commercialscale CCS. Issues the Agency should consider in connection with this principle 

include: 

[FN2] 73 Fed. Reg. 43495, col.1. 

Individual Response: EPA clarifies that the intent of the GS rule is not to promote or encourage 

the use of GS; rather, its purpose is to ensure consistency in permitting underground injection of 

CO2 at GS operations across the United States and provide requirements to prevent 

endangerment of USDWs in anticipation of the eventual use of GS to reduce CO2 emissions. 

Please see the remainder of EPA's responses to this comment for further details. For additional 

information on EPA's final regulatory approach, please see the final rule and preamble as well as 

the rulemaking docket. 

Letter ID: 0177 Comment ID: 23563 Letter Lines: 251 to 254 

Comment Code: 1200 1.1 General comments about the rulemaking 

Comment: a. Reasonable regulatory approaches. Regulations proposed for injection and 

storage should be carefully tailored to fit injection and storage projects and 

the true nature of the risks that they may pose, but should not be unduly 

burdensome for the regulated community. In particular, the following issues 

Individual Response: EPA believes that the final GS rule includes a balance of specific criteria 

to be met by the owner or operator and areas of Director discretion. The Agency believes this 

balance allows for GS projects to be designed and permitted to address the unique, site-specific 

aspects of each project, while providing consistency in permitting across the U.S. 

Letter ID: 0177 Comment ID: 23564 Letter Lines: 257 to 262 

Comment Code: 1480 1.2.2.2.2 CO2 is not a pollutant 

12
Comment: i. Appropriate characterization of CO2. It is critical that any regulation 

under the UIC program does not unnecessarily characterize CO2 as a waste, 

pollutant or contaminant or otherwise unduly stigmatize the injection and 

geologic storage of CO2. While it is appropriate to consider the actual 

characteristics of CO2 and tailor regulations accordingly, unwarranted 

characterization of CO2 as a hazardous waste, for example, should be avoided. 

Individual Response: EPA clarifies that the GS rule does not address the status of CO2 as either 

a pollutant or a commodity. In addition, whether or not a fluid could be sold on the market as a 

commodity does not override EPA's authority under the SDWA to protect USDWs from 

endangerment. 

Under the SDWA, the injection of any "fluid" is subject to the requirements of the UIC program. 

"Fluid" is defined under 40 CFR 144.3 as any material or substance which flows or moves, 

whether in a semisolid, liquid, sludge, gas or other form or state, and it includes liquids, gases, 

and semisolids (i.e., slurries) injected into the subsurface. 

Under §146.82(a)(7), owners or operators of GS wells must characterize their CO2 stream as part 

of their permit application. If the injectate is determined to meet the definition of a hazardous 

waste under RCRA, and as defined in 40 CFR Part 261, the stringent UIC Class I hazardous 

waste requirements for injection of hazardous waste apply. Thus, injection of corrosive CO2 into 

Class VI wells is prohibited. In addition, owners or operators must periodically monitor their 

injectate throughout injection operations under §146.90(a). 

EPA stresses that the focus of the GS rule is to ensure that, where GS is deployed, it is conducted 

in a manner that protects USDWs. 

Letter ID: 0177 Comment ID: 23565 Letter Lines: 264 to 269 

Comment Code: 1600 1.3 Risk Associated with CO2 GS 

Comment: ii. Appropriate characterization of potential risks. Similarly, any regulation 

should be based upon an accurate characterization of the potential risks posed 

by GS of CO2 and be tailored accordingly to address those potential risks, not 

only to ensure appropriate protection of underground sources of drinking water 

(USDW), but also to avoid unnecessary regulations that may hamper CCS projects 

from going forward or call into question the general safety of CO2 storage. 

Individual Response: EPA agrees that risk is an important aspect of setting requirements for 

GS, and expects that the tailored permitting, siting, construction, operation, monitoring, and postinjection site care requirements in the GS rule will prevent leakage from injection formations and 

protect USDWs. EPA does not believe that the GS regulation stigmatizes CO2 injection or that it 

mischaracterizes any potential risks. EPA believes that injecting large volumes of CO2 for GS 

poses unique challenges that, if not properly managed, could endanger drinking water sources 

and have other adverse impacts. However, the final, tailored, Class VI requirements address the 

13
large volumes of CO2 injected, its buoyancy, potential corrosivity in the presence of water, and 

potential impurities in the CO2 stream. 

EPA believes that building upon the existing UIC requirements (e.g., Class I and Class II well 

requirements) to develop the Class VI GS regulation provides a foundation for protecting 

USDWs based on successful field experience, and lessons learned about CO2 injection in other 

applications. Class I well owners or operators have experience with site characterization, well 

construction, and monitoring procedures and technologies that are applicable to Class VI wells. 

Class II ER well operators have experience with managing the unique properties of CO2. To 

successfully flood a hydrocarbon field with CO2 during an ER operation, the behavior of 

injected CO2 must be well understood. At the Weyburn CO2-ER project in Saskatchewan, the 

distribution, phase, and interaction of injected fluids with native fluids were modeled and 

monitored to ensure maximum recovery (of CO2) and target circulation in a thin subsurface 

formation (Wilson and Monea, 2004). 

EPA clarifies that the GS rule does not promote GS. The focus of the GS rule is to ensure that, 

where GS is deployed, it is conducted in a manner that is protective of USDWs. 

Letter ID: 0177 Comment ID: 23566 Letter Lines: 271 to 279 

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

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

CFR 146.85) 

Comment: iii. Appropriate risk management approaches. The Agency should avoid 

development of risk management approaches that discourage CCS deployment or 

create additional uncertainty, and should seek where possible to bring greater 

certainty to the long-term obligations and risks associated with a GS project. 

For example, requiring financial assurance for potential liabilities more than 

50 years in the future may deter and even prevent investment in CCS projects. 

Post-injection monitoring and financial assurance requirements are both 

important, but should not undermine the goals of the regulations, particularly 

when potential risks decrease substantially after injection is complete. 

Individual Response: EPA adds that the purpose of the GS rule is not to incentivize the use of 

GS; rather, the purpose of the GS rule is to ensure that, where GS is deployed, it is conducted in 

a manner that protects USDWs from endangerment. 

EPA disagrees that the requirements for financial responsibility are overly stringent. The goal of 

financial responsibility is to ensure that financial resources are available to prevent the 

endangerment of USDWs from improper plugging, remediation, and management of wells in the 

event that the owner or operator experiences financial difficulties throughout the life of the 

project. 

EPA believes that minimum financial responsibility requirements are necessary to hold well 

owners or operators accountable for the safe operation and closure of the well to avoid 

14
endangerment of USDWs while avoiding expense and risk to the public. 

Regarding the need for financial assurance for a 50-year post-injection period, EPA believes that 

to ensure USDW protection from endangerment, a default timeframe for post-injection site care 

is necessary. A 50 year post-injection site care timeframe represents a reasonable and protective 

monitoring period based on a review of research studies, industry reports, and existing 

environmental programs, and evaluation of public comments. 

EPA agrees with commenters 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 final GS regulation offers owners or operators flexibility regarding 

the duration of the PISC timeframe by: (1) allowing the Director discretion to shorten or 

lengthen the PISC timeframe during the post-injection period based on site-specific data, 

pursuant to requirements at §146.93(b); or (2) affording the Director discretion to allow a Class 

VI well owner or operator to demonstrate, during the permitting process based on substantial 

data, that an alternative PISC timeframe may be appropriate if it ensures non-endangerment of 

USDWs pursuant to requirements at §146.93(c). 

EPA believes that a default post-injection site care timeframe of 50 years, with flexibility to 

adjust the timeframe for a limited number of GS projects during the permitting process where 

substantial data exists to demonstrate that an alternative timeframe would be protective of 

USDWs, or based on data collected during the PISC period, is appropriate to address the range of 

sites where GS is anticipated to occur, to accommodate site-specific circumstances and various 

geologic conditions, and addresses commenters’ concerns, while ensuring USDW protection. 

Both approaches will utilize site-specific data, and be based on pressure monitoring and USDW 

impacts. 

Letter ID: 0177 Comment ID: 23567 Letter Lines: 281 to 286 

Comment Code: 3100 2.1 Proposed Geologic Siting Requirements (40 CFR 146.83) 

Comment: It is also important to keep in mind the enormous extent to which proper site 

characterization will minimize any potential risks posed by CO2 storage. Proper 

site characterization is the most effective risk management tool for CCS. 

Regulations tailored to ensure proper site selection will in turn minimize the 

need for regulations crafted to respond to risks that, in such a context, would 

be extremely unlikely to occur. 

Individual Response: The Agency agrees with the commenter about the importance of proper 

site selection and believes that the site characterization requirements in the GS rule are essential 

to ensuring that a GS project will not endanger USDWs. The GS injection requirements, under 

SDWA authority, ensure protection of USDWs from endangerment through assessment of the 

suitability of an injection zone (146.83), appropriate site characterization (§146.82), and area of 

review evaluation (§146.84) among other requirements. The GS requirements are designed to 

ensure protection of USDWs from endangerment by requiring that injection wells are not only 

15
sited properly, but permitted, constructed, operated, monitored, and plugged in a manner that 

does not endanger USDWs. 

Letter ID: 0177 Comment ID: 23568 Letter Lines: 288 to 299 

Comment Code: 1852 1.4.2.1 DOE Regional Carbon Sequestration Partnerships 

Comment Code: 2400 1.8 Comments on EPA's adaptive rulemaking process 

Comment: iv. Maintaining ability to incorporate new information. Any regulatory regime 

must be sufficiently flexible to adapt to new information. Indeed, regulation 

of ongoing GS "pilot" projects under the existing UIC regulations for Class I or 

V wells has been positive. EPA must take great care moving to a new or 

different regulatory framework while projects designed to gain more 

technological certainty, as well as the increased certainty about appropriate 

risk management solutions for CCS projects that would likely follow, are 

ongoing. Given that EPA has decided to move forward with GS-specific 

regulations, EEI urges the Agency to develop a framework that can consider and, 

as appropriate, incorporate data developed through CCS demonstration projects 

and the activities of the Department of Energy‘s Regional Carbon Sequestration 

Partnerships. 

Individual Response: EPA agrees that an adaptive approach to the UIC GS rulemaking is 

appropriate. The Agency plans to use such an approach to ensure that USDWs are protected from 

endangerment and meet the potentially fast pace of GS deployment. EPA believes that an 

adaptive approach will allow regulatory development to proceed in time to meet the current and 

future demand for Class VI permits while recognizing the need to: continue to gather data from 

pilot projects and other research as it becomes available; and to enhance understanding of the 

technical and administrative aspects of GS deployment, operation, and technology developments. 

EPA plans, every six years, to collect and review data on GS projects, including the DOE 

Regional Carbon Sequestration Partnership 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. 

Letter ID: 0177 Comment ID: 23569 Letter Lines: 301 to 305 

Comment Code: 1530 1.2.3.1 State regulatory efforts on GS (seeking comment) 

Comment: b. Balancing state and federal interests. The Agency‘s UIC rulemaking is 

occurring in the context of the development of an overall framework for CCS 

projects, one that must properly balance federal and state roles. As to the UIC 

rules, EPA should consider the significant interests and experience of the 

states in developing regulations. 

Individual Response: EPA clarifies that the SDWA does not provide EPA with specific 

16
authority to develop UIC regulations for GS that are not directly related to protecting USDWs 

from endangerment; thus EPA does not have authority under the SDWA to address issues related 

to CO2 pipelines, sub-surface property rights, and capture and transport of CO2. 

EPA acknowledges the expertise of states and tribes, and also recognizes that some are 

developing statutory frameworks, regulations, technical guidance, and strategies for addressing 

broader issues related to CCS and GS, and encourages states to seek primacy for Class VI wells 

to further these efforts. States can use multiple authorities beyond those afforded under the 

SDWA and UIC regulations, including laws and policies addressing surface access and land 

rights, unitization of fields, pore space ownership, mineral rights, worker safety and emergency 

preparedness, and maximization of state oil and gas resource exploitation. EPA plans to work 

closely with states and tribes as they develop Class VI primacy programs in this broader context. 

EPA adds that states may adopt more stringent standards for Class VI wells than the Federal 

requirements. 

Letter ID: 0177 Comment ID: 23570 Letter Lines: 307 to 315 

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

Comment: 2. Avoidance of one-size-fits-all approaches. As currently proposed, EPA‘s 

regulations contain a number of default provisions that would apply universally 

to projects, at least as a matter of initial presumption. Rather than imposing 

default provisions, those portions of the rulemaking that address inherently 

site-specific issues should allow for site-specific, performance-based 

determinations as part of the permitting process. The geologic variability 

involved in different conceivable GS projects needs to be taken into account in 

issues ranging from site characterization to area of review (AOR) to containment 

requirements. 

Individual Response: EPA 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. Please see the final 

rule and preamble for additional information on EPA's final regulatory approach. 

Letter ID: 0177 Comment ID: 23571 Letter Lines: 317 to 323 

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

Comment: 3. Importance of limits on discretion. EEI recognizes that in order to allow 

for effective site-specific determinations and to maintain essential regulatory 

17
flexibility, some amount of discretion must be vested in the UIC program 

director. At the same time, such discretion should be bounded by the inclusion 

of relevant and appropriate considerations for making necessary determinations. 

In general, the rules should establish with sufficient clarity the factors to be 

taken into account and leave the precise determinations to the permit process. 

Individual Response: EPA is developing guidances for States that describe the process of 

applying for and receiving primary enforcement authority (primacy) for GS Class VI wells under 

Section 1422 of SDWA, as well as the technical and administrative issues on developing GS 

regulations that are the equivalent of minimum federal criteria and requirements. The guidance 

will describe areas of Directorial discretion and considerations for how that discretion would be 

exercised. This guidance will be available on EPA’s website at 

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

Letter ID: 0177 Comment ID: 23572 Letter Lines: 325 to 333 ; 1263 to 1263 

Comment Code: 1400 1.2 Comments on EPA's Authority to Regulate Injection of CO2 

Comment: 4. Limitations on existing authority. The Agency should adhere to its limited 

authority at this juncture under SDWA and should avoid exceeding that authority. 

The value of developing a clear regulatory regime will be undermined if that 

regime is potentially unstable or subject to lengthy delays because of potential 

susceptibility to attack for failure to adhere to the Agency‘s authority. 

Moreover, as EPA notes in the preamble, SDWA does not provide EPA "authority to 

develop regulations for all areas related to GS." More specifically, EPA 

further states that it "is not proposing regulation for CO2 under the Clean Air 

Act [ ] in this proposed rulemaking."[FN3] 

[FN3] Id. at 43495. 

Individual Response: The EPA acknowledges the comment and believes the final rulemaking 

falls within EPA’s authority under the SDWA. EPA clarifies that the SDWA provides EPA with 

the authority to develop federal minimum requirements for underground injection, such as GS, 

that are directly related to protecting USDWs from endangerment. Thus, EPA does not have 

authority under the SDWA to address other general issues related to CCS, such as capture and 

transportation. EPA clarifies that the GS rule does not address the status of CO2 as a pollutant or 

commodity. The UIC requirements regulate the injection of fluids. 

Letter ID: 0177 Comment ID: 23573 Letter Lines: 335 to 342 

Comment Code: 1200 1.1 General comments about the rulemaking 

Comment Code: 1400 1.2 Comments on EPA's Authority to Regulate Injection of CO2 

Comment: 5. Anticipation of related developments. On the other hand, the Agency should 

strive to anticipate future statutory and regulatory developments in the climate 

18
change arena so that any rulemaking has a reasonable chance of melding with such 

developments. For instance, while it is clear that SDWA does not authorize the 

Agency to develop rules that specify any kind of "credit" system for capture and 

storage of CO2, the Agency can and should consider how its UIC rulemaking will 

fit with foreseeable features of potential future regimes and how rules can be 

drafted to complement such features to the extent possible. 

Individual Response: EPA acknowledges that GS falls within the broader context of CCS and 

the need for regulatory clarity to ensure that USDWs are protected from endangerment. In 

developing the final GS rule, the Office of Water coordinated with other Agency program offices 

and across federal agencies (e.g., with the Department of Energy; United States Geological 

Survey; Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly the 

Minerals Management Service; Bureau of Land Management). The Agency continues to evaluate 

areas of potential applicability of other Federal environmental statutes including, but not limited 

to: the Clean Air Act; the Resource Conservation and Recovery Act; the Comprehensive 

Environmental Response, Compensation, and Liability Act; and the Marine Protection, Research 

and Sanctuaries Act to various aspects of GS and CCS. The Agency will continue to coordinate 

on GS and CCS related issues to minimize redundancy and maximize efficiencies for owners or 

operators. For additional information, please see the discussion entitled "How Does This 

Rulemaking Relate to Other Federal Authorities and GS and CCS Activities?" in the preamble to 

the final GS rule. 

Letter ID: 0177 Comment ID: 23574 Letter Lines: 344 to 365 

Comment Code: 1000 1. General and Administrative Comments 

Comment: With the above general principles in mind, EEI provides below specific comments 

on several aspects of the proposed rules, focusing in particular on the 

following categories of issues: 

- Siting, including the definition of USDW, and secondary containment. 

- AOR and provisions for periodic reevaluation thereof. 

- Monitoring and use of tracers. 

- Closure and post-injection site care. 

- Financial assurance. 

- Grandfathering. 

- Public participation. 

- State primacy. 

19
- Potential issues relating to the characterization of CO2 and arising under 

other environmental laws. 

Individual Response: EPA acknowledges the comment. Please see the remainder of EPA's 

responses to this comment for further details. For additional information on EPA's final 

regulatory approach, including site selection criteria, AoR, monitoring, financial responsibility, 

and state primacy, please see the final rule and preamble as well as the rulemaking docket. Also, 

please see the discussion, “How Does This Rulemaking Relate to the Greenhouse Gas (GHG) 

Reporting Program?” in the preamble. 

Letter ID: 0177 Comment ID: 23575 Letter Lines: 367 to 370 

Comment Code: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space 

ownership 

Comment: Further, although EEI appreciates that issues related to property rights and 

pore space ownership that may be associated with injection and storage are 

outside the scope of the Agency‘s rulemaking, comments are provided on these 

issues as well, at the Agency‘s request. 

Individual Response: EPA clarifies that pore space ownership and surface and subsurface 

property and mineral rights are outside of the scope of the Class VI GS rulemaking, which 

focuses on ensuring consistency in permitting underground injection of CO2 at GS operations 

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

anticipation of the eventual use of GS to reduce CO2 emissions. EPA clarifies that these issues 

are under the purview of states and any of these issues, as they relate to GS, will need to be 

addressed though state regulations. 

Letter ID: 0177 Comment ID: 23576 Letter Lines: 373 to 383 

Comment Code: 2020 1.5.1 Support Class VI designation 

Comment: II. Specific Comments 

A. General Comments on Class VI Approach 

EPA‘s proposed rules would create a new class of injection wells--Class VI--for 

CO2 injection and storage. EEI is generally supportive of this approach, as it 

allows regulations to be tailored to fit the needs of such projects and helps to 

avoid potential issues of inaccurate public perception that might arise from 

including it within an existing well class (in particular Class I). As is 

discussed throughout these comments, EEI views accurate public perception of the 

nature of CCS as critical to its successful deployment. 

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

20
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. 

Letter ID: 0177 Comment ID: 23577 Letter Lines: 385 to 394 

Comment Code: 3100 2.1 Proposed Geologic Siting Requirements (40 CFR 146.83) 

Comment: B. Siting and Secondary Containment 

Our first area of concern relates to proposed provisions for the siting of GS 

projects, including requirements related to project site geology and permissible 

receiving formations. EEI agrees that proper site selection is critical to a 

successful GS project and notes that it serves to minimize, if not eliminate, 

any potential threats to drinking water sources that CO2 injection and storage 

may pose. However, several of the proposed requirements are unnecessary from 

the perspective of protecting drinking water sources and would only serve to 

hamper GS projects from going forward. 

Individual Response: EPA disagrees that any of these protective requirements are unnecessary, 

and clarifies believes that a detailed geological site characterization (required under §146.82) is 

essential to evaluating the presence and adequacy of the various geologic features necessary to 

receive and confine injected CO2 for GS. The requirements for geologic site characterization are 

based on a long standing UIC regulatory framework developed to address specific risks to 

USDWs posed by injection. The Class VI GS requirements are tailored so that they are 

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

formations for long-term storage. 

The mission of the UIC program and the goal of the GS regulation is to protect USDWs from 

endangerment, and every aspect of the GS rule is designed toward that end. Therefore, EPA 

disagrees that any of these protective requirements are unnecessary, and clarifies that waiving 

any of the requirements would not be acceptable. The GS regulation allows flexibility where 

appropriate. Certain requirements (e.g., the need to characterize additional confining layers) are 

at the Director's discretion (§146.83(b)), based on his or her understanding of a particular site. 

Letter ID: 0177 Comment ID: 23578 Letter Lines: 396 to 457 ; 1265 to 1273 ; 1275 to 1277 

Comment Code: 2100 1.6 Target Geologic Formations for GS 

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

USDW 

Comment: The first such requirement relates to the Agency‘s proposed limitations on 

receiving formations. The proposed regulations would permit project operators 

21
to inject and store CO2 only beneath the lowermost formation containing USDW. 

Such a categorical limitation on receiving formations is unnecessary, unduly 

burdensome and undesirable for several reasons: 

- Unnecessary for protection of USDW under the UIC program: As a preliminary 

matter, categorically eliminating a body of potential receiving formations is 

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

general proposition, UIC permit applicants must demonstrate that projects will 

not endanger USDW; permit applicants for CO2 injection and storage projects 

would be held to the same standard.[FN4] The proposed rules would also require 

permit applicants to demonstrate that the project will be sited in areas with a 

"suitable geologic system"--consisting of an injection zone of sufficient areal 

extent, thickness, porosity and permeability to receive the total anticipated 

volume of injectate--and a confining zone free of transmissible faults or 

fractures and sufficient to contain the injected stream as well as any displaced 

fluids, considering the proposed maximum pressures and volumes of injection, 

without causing fracturing. Thus, the suitability of the receiving formation 

and the project‘s general protectiveness of USDW will necessarily be evaluated 

as a part of each GS permitting exercise. 

- All projects (and receiving formations) are not created equal: Each potential 

project will possess its own unique characteristics, as will each potential 

project site and receiving formation. A blanket requirement excluding a class 

of potential receiving formations imposed outside the context of actual projects 

is unnecessary, as for any given receiving formation or any given project, there 

may exist other characteristics that serve to provide equivalent or greater 

protection for USDW. 

- Likely to create public perception issues: Currently, a limitation on 

injections to only those formations below the lowermost USDW is in place solely 

for Class I hazardous waste injection wells. The properties of CO2, while 

unique in some respects, do not require or warrant such heightened treatment. 

Imposing a requirement currently in place only for hazardous waste would be 

likely to create the misperception that CO2 injection wells are analogous to 

hazardous waste injection wells and thus carry analogous risks. Accurate public 

perceptions about the nature of CO2 and the true risks associated with properly 

sited and executed storage projects are crucial to the success of CCS. 

- Likely to hamper commercial deployment of CCS, particularly for enhanced oil 

recovery (EOR) first actors: Much of the experience and expertise associated 

with injection and storage of CO2 that currently exists is the result of several 

decades of experience with EOR and enhanced gas recovery (EGR) operations 

through Class II UIC permits. As CCS gains momentum as a GHG mitigation tool, 

EOR operators may provide not only this wealth of experience and expertise, but 

also the first push toward commercial CCS by seeking to convert existing EOR 

operations to purely storage operations to take advantage of whatever credits 

22
may eventually become available under climate change legislation or 

regulation.[FN5] Some of those operations inject CO2 into formations that are 

above the lowermost USDW. Under the regulations currently proposed, however, 

existing Class II wells--as well existing CCS pilot projects permitted as either 

Class I or V wells--would be eligible only for the most limited scope of 

"grandfathering": the proposed grandfathering provision, discussed further 

below, would cover only construction requirements and not the remaining 

provisions of the Class VI regulations, including in particular the proposed 

limitation on receiving formations. Thus, existing projects that do not inject 

beneath the lowermost USDW could be left with no ability to convert to Class VI 

GS projects, disincentivizing many potential first actors. Moreover, creation 

of such a disincentive is unnecessary, as the wells at issue would have been 

designed and constructed specifically with injection of CO2 and the protection 

of USDW in mind. 

[FN4] EEI notes that EPA has proposed prohibiting CO2 storage in unmineable 

coal seams, basalts, salt domes and shales because "these formations are limited 

in geographic and geologic distribution in the U.S., and their technological or 

economic viability as GS sites has not been demonstrated." 73 Fed. Reg. 43503, 

col. 2. EEI urges EPA to continue to permit GS projects in these formations as 

Class V experimental wells to facilitate continued research into the potential 

for these formations to safely and economically store CO2, particularly because 

there are some areas of the country without easy access to saline formations or 

depleted oil and gas reservoirs that can be used for GS projects. 

[FN5] Of course, nothing in the proposed rule would prevent any owner or operator 

of a CO2 storage project, regardless of permit class, from seeking credits 

related to its participation in any future cap-and-trade program. 

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 

23
protected; and 5) responds to concerns about the use of aquifer exemptions for GS. Finally, 

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

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

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

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

EPA's responses to comments on the Notice of Data Availability and Request for Comment. 

While the Agency acknowledges the experience gained by the oil and gas industry and other 

injection activities, EPA identified unique challenges posed by large-scale GS including large 

injection volumes, the relative buoyancy of CO2, its corrosivity in the presence of water, the 

potential presence of impurities in captured CO2, and its mobility within subsurface geologic 

formations that warrant the tailored approach in the GS rule. Furthermore, the Agency believes 

that wells that inject into non-USDW formations above and between USDWs presents additional 

challenges that warrant additional requirements. 

Regarding the suggestion to allow experimental GS wells to continue to operate under Class V, 

EPA anticipates that some owners or operators will apply for Class V experimental technology 

permits for injection into formations including shallow basalts, coal seams, salt caverns and 

shales. These formations may or may not be located above the lowermost USDW or between 

USDWs. To facilitate experimental injection for GS and to increase understanding of injection 

into these formation types, the Agency is amending the Class V experimental technology 

guidance. The guidance will be available on EPA's web site, at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. EPA acknowledges that the 

Class V experimental technology well sub-classification may be appropriate for these projects, 

provided they are experimental in nature. EPA expects that, following the final GS rule, a limited 

number of experimental injection projects testing GS technology will continue. EPA anticipates 

that these projects will be small-scale and involve limited CO2 volumes. However, if these 

projects become larger scale and are no longer experimental, they will need to be permitted as 

Class VI wells. The construction, operation or maintenance of any non-experimental Class V GS 

well is prohibited, at §144.15. 

Letter ID: 0177 Comment ID: 23579 Letter Lines: 459 to 464 

Comment Code: 4450 2.4.4.4 Use of aquifer exemptions (seeking comment) 

Comment: While EPA acknowledges that it has raised for consideration the possibility of 

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

lowermost USDW in a given case, such a procedure would only insert complexity 

into the process, with no corresponding increase in protection afforded to USDW, 

as compared to an approach under which the merits of a proposed receiving 

formation are considered in the context of a particular project as a default. 

Individual Response: EPA believes that there are limited circumstances where aquifer 

exemptions for GS may be warranted. The final rule allows for the expansion of the areal extent 

of existing aquifer exemptions for Class II EOR/EGR wells transitioning to Class VI injection 

for GS pursuant to requirements at §§146.4 and 144.7(d). 

24
EPA clarifies that aquifer exemption expansions are limited to Class II EOR/EGR wells 

transitioning to Class VI injection for GS. The aquifer exemption requirements in the final rule 

provide flexibility and afford owners or operators an opportunity to assess and select a suitable 

GS site while also preserving USDWs (i.e., formations/aquifers afforded SDWA protection). 

Class VI owners or operators granted expansions of existing Class II EOR/EGR aquifer 

exemptions for GS projects must meet all of the tailored requirements for GS wells in the final 

GS rule. 

The Agency clarifies that the aquifer exemption requirements and the injection depth waiver 

requirements serve different purposes. Class VI owners or operators granted expansions of 

existing Class II EOR/EGR aquifer exemptions for GS projects must meet all of the tailored 

requirements for GS wells in the final GS rule, including the requirements at §146.83 for site 

criteria. EPA believes that, in most cases, the injection depth waiver is a more appropriate option 

than aquifer exemptions for Class VI injection, and believes that aquifer exemption expansions 

for GS should be granted in limited circumstances. 

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: 0177 Comment ID: 23580 Letter Lines: 466 to 475 

Comment Code: 2100 1.6 Target Geologic Formations for GS 

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

USDW 

Comment: In light of the UIC permitting process’s focus on demonstrating that a project 

will not endanger USDW, EEI proposes that rather than establish a blanket 

limitation on available receiving formations, the Agency rely upon the numerous 

other provisions that serve to protect USDW and allow those provisions to 

operate in the context of actual proposed projects. In the alternative, 

limitations on receiving formations could be left to the UIC program director‘s 

discretion-bounded by appropriate standards for the exercise thereof-for a 

particular project; however, given the case-by-case nature of the permitting 

process and the requirement to demonstrate non-endangerment of USDW, providing 

for the exercise of such discretion is likely unnecessary. 

Individual Response: As described above, 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. 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. 

25
As described above, 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. 

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

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

Comment. 

Letter ID: 0177 Comment ID: 23581 Letter Lines: 477 to 483 

Comment Code: 4450 2.4.4.4 Use of aquifer exemptions (seeking comment) 

Comment: Should the Agency choose to impose any sort of limitation on receiving 

formations, whether as a default or as a discretionary provision, the ability to 

obtain an aquifer exemption should be considered an absolute necessity absent a 

potential threat to USDW. In particular, aquifer exemptions would be necessary 

to facilitate complete grandfathering of existing projects. However, there 

would also be broader needs for aquifer exemptions in order to ensure that 

otherwise viable projects can go forward. 

Individual Response: As described above, the final GS rule allows for the expansion of the 

areal extent of existing aquifer exemptions for Class II EOR/EGR wells transitioning to Class VI 

injection for GS pursuant to requirements at §§146.4 and 144.7(d). Class VI owners or operators 

granted expansions of existing Class II EOR/EGR aquifer exemptions for GS projects must meet 

all of the tailored requirements for GS wells in the final GS rule. 

However, the final rule precludes the issuance of new aquifer exemptions for Class VI GS wells; 

that is, aquifer exemptions will only be granted for projects that are transitioning from Class II 

EOR/EGR wells to Class VI. 

EPA clarifies that all decisions regarding whether expansion of existing aquifer exemptions will 

be at the Director's discretion and based on site-specific information. If an owner or operator 

applies for a Class VI permit to inject CO2 into a previously exempted aquifer (non-USDW) that 

is located above and/or between USDWs, the permit applicant must also apply for a waiver of 

the injection depth requirements pursuant to §146.95 to ensure that if a waiver is granted, 

USDWs above and below the injection zone are protected from endangerment. 

This approach is designed to ensure that the differences between traditional Class II EOR/EGR 

operations and Class VI operations are considered during the aquifer exemption application 

process and the Class VI permitting process. These differences include the anticipated large CO2 

injection volumes associated with GS, the buoyant and mobile nature of the injectate, and its 

corrosivity in the presence of water. The Agency believes that this process will encourage 

owners or operators and Directors to consider the use of alternative formations for GS, including 

26
non-USDW formations through the waiver process, prior to applying for or approving aquifer 

exemption expansions for Class II EOR/EGR wells transitioning to Class VI GS operations. 

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: 0177 Comment ID: 23582 Letter Lines: 485 to 511 ; 1279 to 1279 

Comment Code: 1220 1.1.1.1 Terminology and definitions 

Comment Code: 4400 2.4.4.3 Allowing injection above or between USDWs (seeking comment) 

Comment: A related issue is how USDW are to be defined under the proposed rules. Current 

UIC regulations, as well as the preamble to the proposed rules, define USDW as: 

An aquifer or portion of an aquifer that supplies any public water 

system or that contains a sufficient quantity of ground water to supply 

a public water system, and currently supplies drinking water for human 

consumption, or that contains fewer than 10,000 mg/l total dissolved 

solids and is not an exempted aquifer. 

EEI recommends that the Agency work within the current definition of USDW, in 

particular its maximum total dissolved solids (TDS) provision, for purposes of 

CO2 injection and storage. Any change in the definition of USDW would likely 

require a statutory amendment. The legislative history of SDWA identifies the 

10,000 TDS standard as one sufficient to ensure that potential drinking water 

sources that may be tapped in the future are protected,[FN6] and EPA has long 

recognized this standard in its regulations without any serious suggestion over 

the long and successful history of the UIC program that the standard is 

inadequate. Thus, any potential alteration to that standard (which implicates a 

range of public policy issues) should be left to Congress. Some have called for 

potential revision to this standard, but EEI is unaware of any analysis 

supporting the establishment of an alternative standard. Nor is EEI aware of 

any evaluation of the implications of changing this standard for long-standing 

UIC activities, much less on the practicability of CCS as a critical GHG 

mitigation tool. In short, even if Congress‘s original expression of the 10,000 

mg/l standard did not constrain EPA‘s ability to change this standard by 

regulation, EEI is unaware of any foundation in the administrative record that 

would allow EPA to provide reasoned support for such a change. 

[FN6] See H.R. Rep. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6484. 

Individual Response: EPA is not changing the USDW definition; changing the definition of a 

USDW is outside the scope of the GS rulemaking. The GS rule focuses on ensuring protection of 

USDWs, as required under the SDWA, by establishing regulations to ensure the safe injection of 

CO2 for long-term storage. 

27
EPA recognizes that there is increasing demand for water resources and that technology 

improvements may make high TDS aquifers viable drinking water sources. EPA believes these 

potential resources should be considered when injection depth waivers are sought. Therefore, the 

final GS rule at §146.95(b) requires the Director to consider these issues in determining whether 

an injection depth waiver is appropriate. Specifically, the Director must consider whether 

alternative injection sites are available; community needs, demands, and supply from drinking 

water resources; planned needs, potential and/or future use of USDWs and non-USDWs in the 

area; and a plan for securing alternative resources or treating USDW formation waters in the 

event of contamination related to the Class VI injection activity. For additional information on 

the waiver approach, please see the final rule and preamble, as well as EPA's responses to 

comments on the Notice of Data Availability and Request for Comment. 

Letter ID: 0177 Comment ID: 23583 Letter Lines: 513 to 561 

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

(seeking comment) 

Comment: A third area of concern related to siting involves the Agency’s proposed grant 

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

identify "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"-i.e., secondary containment/confining zones. A proposal to require 

secondary containment, even in discretionary form, is unnecessary and 

unwarranted for many of the same reasons that a blanket limitation on receiving 

formations is unnecessary and unwarranted. Specific concerns include the 

following: 

- Better alternatives exist to protect USDW: The presumed purpose of secondary 

containment is better addressed through proper site selection and well-designed 

plans to detect and contain leakage from the primary containment system. EEI 

also notes, as we did in our May 15, 2008, pre-rulemaking comments, a discussion 

led by panelist Susan Hovorka of the University of Texas at EPA‘s December 2007 

public workshop, as characterized in the Agency‘s meeting summary (p. 8): 

CO2 is very responsive to pressure as a mitigation technique in the 

event of movement to an undesired location. Injecting fluids in an 

adjacent well at a regulated pressure can guide CO2 back to the 

containment area. Another mitigation option is changing injection 

patterns once a problem is detected. Site-specific contingencies could 

be built into plans to provide guidance in the event of an unexpected 

event. 

Given the proposed rules‘ emergency and remedial response requirements, a 

secondary containment requirement is especially unwarranted. 

28
- Unprecedented under the UIC program: Secondary containment/confining systems 

are currently not required for any other types of injection wells under the UIC 

program. The physical and chemical properties of CO2 are not sufficiently 

unique--nor do they pose a sufficiently unique potential threat to USDW--to 

warrant such unprecedented treatment under the UIC program. 

- Unprecedented in U.S. environmental law generally: We are unaware of any 

comparable requirement to ascertain secondary containment features in geologic 

formations in any other environmental regulatory regime. Those regimes that 

impose secondary containment requirements--for example, secondary containment 

requirements for oil spill prevention control and countermeasure plans under the 

Oil Pollution Act, and for land disposal and underground storage tanks under the 

Resource Conservation and Recovery Act (RCRA)--relate to man-made containment 

structures, as opposed to geologic containment structures. 

- Unprecedented internationally: To our knowledge, none of the CO2 storage 

projects currently operating outside the U.S. has been required to have or 

demonstrate existence of a secondary containment zone/confining system. 

Further, Norway, Canada, Australia and Algeria, countries where CCS projects are 

currently underway, do not require secondary containment. 

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

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. 

EPA believes that the Class VI requirements, including the level of site characterization required 

under §§146.82 and 146.83, appropriately address the unique challenges posed by large-scale GS 

including large injection volumes, the relative buoyancy of CO2, its corrosivity in the presence 

of water, the potential presence of impurities in captured CO2, and its mobility within subsurface 

geologic formations. The Agency believes that in some geologic settings, the presence and 

identification of additional confining and containment zones above the primary (i.e., lowermost) 

confining zone can improve USDW protection. These formations could further impede vertical 

fluid movement, allow for pressure dissipation, and provide additional sites for monitoring, 

mitigation, and remediation, while also affording the greatest protection of USDWs from 

endangerment. While other countries may not require such additional protection, EPA believes 

29
that providing the Director this additional discretion is an important element of assuring that GS 

activities will not endanger USDWs. 

Letter ID: 0177 Comment ID: 23584 Letter Lines: 563 to 572 

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

(seeking comment) 

Comment: - Concerns for inaccurate public perception: As noted above, no secondary 

containment requirement, whether blanket or discretionary, currently exists even 

for the injection of hazardous wastes under the Class I permitting scheme. 

Imposition of a substantially more rigorous requirement on injection and storage 

of CO2 strongly implies that such a project would be more dangerous than 

underground injection of a host of other materials, including hazardous wastes. 

The final rules should be crafted to avoid creating this public stigma for one 

of the most promising GHG-management strategies, and for a technology that can 

be employed safely and effectively in the absence of secondary containment 

requirements of any sort. 

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

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. 

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

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

concerns. 

Letter ID: 0177 Comment ID: 23585 Letter Lines: 574 to 589 

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

(seeking comment) 

Comment: While EEI is opposed to any secondary containment requirement, including one 

that would be subject to exercise of the UIC program director‘s discretion, 

EPA‘s proposal to establish secondary containment as a discretionary requirement 

presumably would allow for consideration of the nature of the particular primary 

30
confining system at issue and reduce unnecessary elimination of potential 

storage sites as compared to a default requirement to demonstrate secondary 

containment. At the same time, discretion, even where warranted, must be 

bounded by sufficiently clear guidelines for application in determining whether 

imposition of a discretionary requirement is warranted in a given case. 

However, the proposed rules contain no discussion of any factors for the UIC 

program director to consider in making this determination. Should the Agency 

choose to impose a discretionary requirement, the current proposal should be 

modified to include such clear guidelines in order to provide some amount of 

certainty for operators and investors as well as to avoid the metamorphosis of 

what is a discretionary requirement on paper into a default requirement in 

practice. 

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

zones, if required by the Director, as proposed (e.g., §146.83(b)). The Agency's decision is 

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

assert that these requirements (at §146.83(b)) promote a flexible, risk-based, site-specific 

approach to characterizing and permitting a site for GS projects. 

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

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

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

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

data will afford the greatest protection of USDWs from endangerment. 

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

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

provides recommendations regarding characterizing the regional geology and hydrogeology of a 

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

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

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

The guidance can be found on EPA’s website at 

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

Letter ID: 0177 Comment ID: 23586 Letter Lines: 591 to 638 

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

Comment: C. Periodic Reevaluation of AOR and Corrective Action Requirements 

The second general area of concern addressed in these comments relates to EPA‘s 

proposed provisions concerning the AOR for CO2 storage projects. In a departure 

from AOR procedures currently in place under the UIC program, the proposed 

regulations would require operators to reevaluate the proper scope of the AOR 

periodically at a minimum fixed frequency to be set by the program directorcurrently proposed as no less than once every 10 years, with discretion to 

31
require more frequent reevaluation. The apparent assumption underlying this 

proposed requirement is that the location of injected CO2, and thus the location 

and extent of potential impact, could change--or perhaps more importantly, could 

change from what is expected at the outset of a project--over time. 

As EEI commented in our May 15, 2008, pre-rulemaking comments, a broad, 

unconstrained requirement for periodic reevaluation of the AOR that would apply 

in the same manner to all potential project sites is unwarranted as a matter of 

presumption. Although the proposed rules provide for some discretion in terms 

of the review period, they nonetheless would require periodic reevaluation for 

every project at least once every 10 years. Several factors argue against such 

an approach: 

- Consideration of specific circumstances should be required: While EEI is not 

necessarily opposed to an appropriately drafted provision requiring periodic 

reevaluation of the AOR under certain circumstances, any requirement for such 

review should not be a universally applicable requirement potentially applied 

devoid of any context. Rather, AOR reevaluation provisions should be triggered 

by reasonable parameters, taking into consideration site-specific issues, as 

discussed in the general principles set forth above. AOR issues are inherently 

site-specific; different projects--and even different geographical regions of 

the country--likely warrant different approaches. A default no-less-than-onceevery-10-years provision does not allow for adequate consideration of specific 

circumstances. Tying reevaluation to the triggering of appropriate 

circumstances will provide equivalent protection for USDW while also ensuring 

that those projects posing greater relative risks receive greater scrutiny 

through more stringent reevaluation requirements and those projects posing fewer 

relative risks are relieved of unnecessary regulatory burdens. At a minimum, 

any default period for reevaluation should be determined based on site-specific 

characteristics at the time of project permitting. 

- Unknown trade-offs militate against a universal requirement: It is impossible 

to know what the relevant trade-offs are as to the initial AOR versus potential 

later assessments of the AOR. For example, in certain instances it is 

foreseeable that a project owner may seek a relatively more constrained AOR for 

an initial portion of the project life, and propose periodic AOR reevaluations 

as a function of project experience. In other instances, a broader initial AOR 

may be appropriate, with a correspondingly reduced need for periodic 

reevaluations. Further, operators will generally model the entire life of the 

project and will likely include additional acreage in the AOR in any event. 

Individual Response: EPA is retaining the approach of setting a minimum fixed frequency for 

reevaluating the AoR but has, based on commenters' input, changed the frequency from 10 years 

to at least every 5 years, as specified in §146.84(e). 

EPA agrees that site-specific factors, including monitoring and operational data, should be 

32
considered in the reevaluation schedule, and notes that the AoR and corrective action plan must 

specify the site-specific monitoring and operational conditions that warrant reevaluation, as 

specified in §146.84(b)(2)(ii). In addition, the Director has discretion to require more frequent 

AoR reevaluation if he or she has reason to believe, based on site-specific information, that at 

least every 5 year reevaluation schedule is not sufficiently protective of USDWs. 

Letter ID: 0177 Comment ID: 23587 Letter Lines: 640 to 657 

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

Comment: The proposed regulations also include a requirement to conduct corrective action 

within the AOR, but would give the UIC program director discretion to allow 

corrective action to be conducted in phases over the operational life of the 

project. A phased corrective action approach has merit, particularly where 

periodic reevaluations of the AOR are to be required. A phased approach will 

help ensure that all necessary corrective action is taken, but also that 

unnecessary corrective action is avoided. It may also serve to ease the initial 

financial burden on operators and provide increased certainty from an investment 

standpoint. However, the proposed rules leave the possibility of a phased 

approach to the program director‘s discretion and contain no guidelines for the 

exercise of such discretion. Any discretionary requirement should be tempered 

by suitable criteria for its exercise. Likewise, any financial assurance 

requirements related to corrective action that may be imposed should be tied to 

the corrective action approach that is to be taken in any given case. For 

example, where phased corrective action is permitted, corresponding provisions 

for phased financial assurance would provide a greater ability to price the 

activities at issue accurately. A more detailed discussion of financial 

assurance issues is below. 

Individual Response: EPA agrees that phased corrective action should be allowed and has 

retained this provision in the final rule §146.84(b)(2)(iv). However, EPA disagrees that decisions 

of the Director regarding phased corrective action would be made arbitrarily. The GS rule 

provides for Director's discretion because EPA believes that, given the wide range of conditions 

at GS sites, the Director is in the best position to make decisions about the appropriateness of 

phased corrective action based on his or her knowledge of the local geologic and site conditions. 

EPA does not agree that a phased approach to corrective action should be available to all owners 

or operators, because phased corrective may not be appropriate at all GS sites. EPA believes that, 

given the wide range of conditions at GS sites, the Director is in the best position to make 

decisions about the appropriateness of phased corrective action based on his or her knowledge of 

the local geologic and site conditions. EPA is developing guidances for states that help to 

describe the technical and administrative issues a state may need to consider when developing 

GS regulations that are the equivalent of minimum federal criteria and requirements; this 

guidance will provided recommended approaches for Directors to exercise discretion. The 

guidances will be available on EPA's web site, at 

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

33
Regarding financial responsibility for corrective action, EPA clarifies that the owner or operator 

must demonstrate and maintain financial responsibility for all needed corrective action, 

regardless of whether it is to be phased. EPA is developing guidance on financial responsibility 

that will discuss approaches to how to estimate appropriate costs for all required activities. 

For additional information on EPA's approach to financial responsibility for Class VI wells, 

please see the final rule and preamble. 

Letter ID: 0177 Comment ID: 23588 Letter Lines: 659 to 667 

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

Comment: As with a phased approach to corrective action, a phased approach to evaluation 

and reevaluation of the AOR may prove more practical for operators while 

affording the necessary protection for USDW. As noted above, some projects may 

implicate relatively constrained areas in terms of the size of the receiving 

formation, allowing operators to conduct a broader investigation at the outset 

more efficiently; for larger projects, it may make sense to consider allowing a 

phased plan for AOR evaluation and reevaluation that would provide for a certain 

amount of investigation at the outset with more detailed evaluations to follow 

over the life of a project. 

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 

setting a minimum reevaluation frequency is appropriate. In the final rule, the Agency changed 

the minimum frequency for the AoR reevaluation at §146.84(e) from 10 years to at least every 5 

years in the final GS rule. EPA believes that this revised frequency addresses commenters' 

concerns about the inherent uncertainties in modeling CO2 movement, the emerging nature of 

GS technology, risk-based targeting of monitoring activities, and the unique nature of CO2 GS. 

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. 

Letter ID: 0177 Comment ID: 23589 Letter Lines: 669 to 696 

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

(seeking comment) 

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

comment) 

Comment: D. Monitoring Provisions and Use of Tracers 

34
EEI is also concerned about proposed requirements related to monitoring for 

potential CO2 movement and the use of tracers. Under the proposed regulations, 

the UIC program director would have discretion to require the use of tracers or 

surface air/soil gas monitoring "to detect movement of CO2 that could endanger a 

USDW." For the reasons set forth below, EEI is opposed to such a requirement, 

even where, as proposed, it is left to the discretion of the program director. 

- Functionality, usefulness and cost: Tracers are relatively untested in terms 

of workability as a leak-detecting mechanism. Of greater concern, however, is 

the fact that using tracers or surface air or soil gas monitoring would likely 

provide too little information, too late, in terms of providing protection for 

USDW, in the sense that USDW would likely be affected by the time the results of 

such methods revealed any concerns. Moreover, by their very nature, tracers can 

be detected at ultra-low concentrations. If the tracer is spilled or a small 

amount leaked, or if a pipe downstream from the tracer injection point leaked, 

the surface air would become contaminated. Minute amounts of tracer might be 

detectable for quite a distance, making the likelihood of a false positive for 

the tracer much greater without any real benefit to the overall protection of 

USDW. In sum, if employed for purposes of long-term monitoring of underground 

waters, tracers would be unlikely to yield significant useful data and would 

prove extremely expensive. 

- Safety: Tracers may present their own safety concerns depending on the 

precise nature of the tracer at issue. Further, the use of tracers may pose 

independent risks for project operators. There may be potential health effects 

from some tracers if workers are accidentally exposed. 

Individual Response: EPA clarifies that subsurface geochemical and pressure monitoring in the 

subsurface formations are the first line of monitoring that would allow detection of potential 

endangerment to USDWs from GS activities (this is required at all GS sites, as described at 

§146.90(d)). The Agency also believes that surface air and soil gas monitoring, when coupled 

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

protection. EPA acknowledges that surface air and soil gas monitoring may not be suitable in all 

settings as a method to ensure USDW protection. However, EPA does not believe that this 

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

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

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

The final rule at §146.90(h) retains the allowance for surface air and soil gas monitoring at the 

discretion of the Director as a means of identifying leaks that may pose a risk to USDWs and 

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

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

As described above, EPA agrees that tracer use is not appropriate in all situations. EPA 

acknowledges that some tracers may have the potential to cause harm to people or the 

35
environment. For this reason, EPA does not require the use of tracers at all GS sites. 

Nevertheless, there are many different types of tracers and not all are problematic; research is 

being done to overcome problems with existing tracers. EPA believes that tracers have been used 

safely and successfully in other applications. Therefore the Director has discretion to require 

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

enhance USDW protection from endangerment. The rule will also allow their use if proposed by 

the owner or operator and approved by the Director. 

EPA has been following new and ongoing research on the safety and efficacy of tracers, and 

believes that, in some circumstances, tracers can be an effective part of monitoring GS projects. 

EPA will continue to track research related to tracer use and plans to, every six years, collect and 

review data on GS projects to determine whether the appropriate amount and types of 

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

modifications to the requirements are appropriate or necessary. 

Letter ID: 0177 Comment ID: 23590 Letter Lines: 698 to 701 

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

(seeking comment) 

Comment: - Concerns regarding inaccurate public perception: As with a secondary 

containment requirement, a requirement to use tracers--currently unprecedented 

in the UIC program--may create or encourage an overly negative and unwarranted 

public perception regarding the safety of CO2 storage projects. 

Individual Response: EPA believes that tracers can be useful tools for monitoring, plume 

tracking, and verification at GS sites and may help improve public confidence in certain projects. 

Comments related to whether the use of tracers, if needed, would signal to the public that GS is 

unsafe are outside the scope of this rulemaking. However, EPA believes that providing the public 

with important information about the project, including how tracers would be an integral part of 

the site monitoring plan, will be a key part of improving public acceptance of specific projects 

and GS technology in general. 

As described above, the GS rule does not require the use of tracers at all GS sites; however, the 

Director has discretion to require their use if he/she determines that the use of tracers could 

improve monitoring of the site and enhance USDW protection. The rule will also allow their use 

if proposed by the owner or operator and approved by the Director. 

Letter ID: 0177 Comment ID: 23591 Letter Lines: 703 to 728 

Comment Code: 1400 1.2 Comments on EPA's Authority to Regulate Injection of CO2 

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

comment) 

Comment: - Potential issues of EPA authority: As noted above, EEI views the development 

36
and implementation of legally defensible regulations as a key to commercial 

deployment of CCS. To that end, EEI encourages the Agency to consider carefully 

the link between each proposed provision and its authority to regulate under 

SDWA. Where the link is more tenuous, the proposed provision may be subject to 

greater risk of legal challenge, posing uncertainty for those who desire to move 

ahead with projects. While, as the Agency points out, the use of tracers or 

surface air/soil gas monitoring could indicate that some threat to USDW may be 

posed, it seems more likely that by the time the results of such methods 

revealed any concerns, such sources would already be affected. Thus, the nexus 

between those methods and protection of USDW may be subject to challenge by 

opponents of the proposed provisions. And the nexus between surface air/soil 

gas monitoring and protection of USDW may be at greater risk of challenge, as 

the detection of a CO2 leak to surface air conceivably provides no useful 

information that would serve to protect USDW. Indeed, while EPA notes in the 

preamble that detection of leakage to the surface "would indicate potential 

endangerment" to USDW as a last line of defense, the Agency also acknowledges 

that regulation of surface or atmospheric releases of CO2 are outside the scope 

of the proposed rules and the Agency‘s SDWA authority. 

While the proposed rules would leave these requirements to the discretion of the 

UIC program director, again the proposal sets no clear parameters for the 

exercise of such discretion. EEI does not believe that any provisions related 

to the use of tracers are required or warranted for the protection of USDW, but 

should EPA choose to impose a discretionary requirement, any such requirement 

should be bounded by appropriate parameters for its use. 

Individual Response: As described above, subsurface geochemical and pressure monitoring in 

the subsurface formations are the first line of monitoring that would allow detection of potential 

endangerment to USDWs from GS activities (this is required at all GS sites, as described at 

§146.90(d)). 

EPA agrees that the implementation of the GS rule in a manner that ensures protection of 

USDWs from endangerment is important to establishing a foundation for further advances in the 

field of CO2 GS. EPA acknowledges the need for regulatory certainty: the final GS requirements 

provide a level of certainty by setting forth unique requirements for GS. These requirements 

include: the tailored AoR delineation process under §146.84, the types of monitoring appropriate 

to GS projects under §146.90, and the post-injection site care process under §146.93. 

While EPA agrees with commenters that a stable, predictable, nationally consistent, and 

workable regulatory framework is important, EPA stresses that the focus of the GS rule is to 

ensure that, where GS is deployed, it is conducted in a manner that protects USDWs from 

endangerment. 

EPA disagrees with the comment with respect to its authority under the SDWA and believes it 

within the Agency’s authority to provide the Director with discretion to require surface air 

monitoring and/or soil gas monitoring in the AoR at §146.90(h). This discretion is limited to 

37
potential risks to USDWs within the AoR. EPA believes that monitoring for the injected fluid at 

the surface for the purposes of protecting USDWs is within the jurisdiction of the SDWA. If the 

injected CO2 were to migrate through fractures, abandoned well bore holes or other means, it 

would be released in a gaseous form at the surface, and therefore must be monitored as such. 

EPA believes that having this information can be critical to allow the Director to determine 

whether injected CO2 has migrated from the injection zone and endangered a USDW(s). 

EPA is developing guidance for permitting authorities that will include recommendations for 

how Directors may exercise discretion in implementing the requirements of the GS rule, 

including the testing and monitoring requirements. This guidance will be available on EPA’s 

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

The final rule at §146.90(h) retains the allowance for surface air and soil gas monitoring at the 

discretion of the Director as a means of identifying leaks that may pose a risk to USDWs and 

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

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

Letter ID: 0177 Comment ID: 23592 Letter Lines: 730 to 811 ; 1281 to 1283 

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

Comment: E. Closure and Post-Injection Site Care 

The fourth general area of concern discussed in these comments involves the 

proposed rules‘ provisions for closure and post-injection site care (PISC). In 

particular, EEI is concerned with the proposed imposition of a PISC period 

spanning, as a matter of default, 50 years after cessation of injection. The 

proposed rules would vest discretion in the UIC program director to adjust the 

50-year default time period upward or downward, with monitoring to continue 

"until the geologic sequestration project no longer poses an endangerment to 

USDWs." 

Establishing a default time period for PISC, in particular a default time period 

as lengthy as 50 years, is unnecessary and undesirable, and the dual goals of 

protecting USDW and supporting the commercialization of CCS technology are far 

better served through a site-specific, performance-based approach. To EEI 

offers the following supporting points: 

- A default time period is unnecessary: As noted above, the proposed rules 

would, in conjunction with establishing the 50-year default period for postinjection activities, vest discretion in the UIC program director to shorten or 

lengthen the PISC period based on the characteristics of a particular project. 

As discussed further below, a PISC period based on site- and project-specific 

characteristics ably serves to meet the dual goals of EPA‘s rulemaking effort; 

given the proposed performance-based, discretionary aspect of the PISC-period 

determination, a default overlay period is unnecessary. Further, from the 

38
perspective of offering protection to USDW, such a default period offers no 

additional protection above and beyond what a performance-based standard will 

offer. 

- A default time period is unduly burdensome for operators: Establishing a 

default time period also risks placing unnecessary regulatory burdens on owners 

and operators who can clearly establish from the outset that no threat to USDW 

will be posed within a shorter time frame than whatever default may be 

established. 

- A 50-year default time period is unprecedented under the UIC program and 

unwarranted for CO2: Even assuming that imposition of a default period were 

appropriate, the unique characteristics of CO2 do not justify imposition of such 

a lengthy default PISC period for GS projects. EEI and its members believe that 

appropriately sited projects could demonstrate the absence of endangerment to 

USDW in substantially less than 50 years; indeed, data suggest the risk profile 

of injected CO2 drops rapidly just 10 years after cessation.[FN7] Further, 

imposing requirements on CO2 storage projects that are far beyond those 

currently in place even for injection of hazardous wastes is unnecessary and 

will only engender public misperceptions regarding the safety of such projects. 

- A default time period may not appropriately incentivize proper site 

characterization: Proper siting is the key to ensuring safety and effectiveness 

of storage projects, and the rules should work to incentivize, rather than 

discourage, the utmost due diligence in the siting process. While EPA‘s 

proposal would provide for the exercise of discretion to lengthen or shorten the 

PISC period, placing the burden of proof on permittees that a departure from the 

default is justified fails to recognize the enormous efforts associated with 

proper site characterization. 

- A 50-year default period may introduce unnecessary financial uncertainty: As 

currently proposed, the rules would require operators to obtain, as a baseline 

and at the time of permitting, financial assurance running through the default 

50-year PISC period. Thus, operators would be likely required to assure 

activities that would not occur for more than 50 years, with discretion vested 

n the UIC program director to extend that time period--and thus the required 

period for demonstrating financial assurance. The end result could be an 

obligation to provide financial assurance for activities running through at 

least 70 years in the future (according to EPA‘s assumption of a 20-year 

injection period), or more. Further, in actuality, the PISC period could prove 

to be considerably shorter, rendering the initial burden placed upon the 

operator unnecessary. EEI urges the Agency to consider carefully, in connection 

with each proposed requirement that is tied to a financial assurance 

requirement, the ability for operators to quantify the activities being assured 

at the time of permitting--the basis of any financial assurance mechanism--as 

well as the potential burden and expense associated with the proposal. Given 

39
the ongoing credit crisis, an unjustifiably lengthy PISC period may make 

obtaining the necessary financial assurance impossible, stunting or stopping 

commercial development of CCS. 

Instead of a default time period--particularly one as lengthy as 50 years--EEI 

urges EPA to implement a performance-based approach that considers the 

circumstances of a particular project, bounded by appropriate parameters for its 

application. As discussed throughout these comments, EEI also encourages the 

Agency to establish clear parameters for such a performance-based approach--and 

in particular a clear set of guidelines for demonstrating that the injectate has 

"stabilized" and for meeting the non-endangerment standard. 

[FN7] S. Benson, Carbon Dioxide Capture and Storage: Research Pathways, 

Progress and Potential, GCEP Annual Symposium, October 2007: 

http://pangea.stanford.edu/research/bensonlab/presentations/index.html. 

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 final GS regulation 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 however, that to ensure USDW protection from endangerment, a default timeframe 

for post-injection site care will be necessary in most cases. The default 50 year post-injection site 

care timeframe represents a reasonable and protective monitoring period based on a review of 

research studies, industry reports, and existing environmental programs, and evaluation of public 

comments. 

EPA 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 adds that the purpose of the GS rule is not to incentivize the use of GS; rather, the purpose 

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

USDWs from endangerment. 

EPA does not believe that performing the demonstration before 50 years places an additional 

burden on these owners or operators. EPA clarifies that all operators will need to make this 

demonstration prior to the Director authorizing site closure; the difference is that some operators 

40
will be performing the demonstration earlier than others. As indicated by the commenters, 

ideally this demonstration will be part of an ongoing communication between the owner or 

operator and the UIC Director. If an owner or operator believes that an earlier demonstration will 

be burdensome, they are not required to make the demonstration. 

EPA recognizes that there are challenges associated with assuring funding for activities that will 

occur far in the future. However, the Agency believes that in order to protect USDWs from 

endangerment under the SDWA operators must demonstrate under §146.85 that financial 

resources are available to plug the injection well and provide post-injection site care at the point 

in time that the first CO2 is injected. 

EPA also recognizes the concerns associated with assuring financial responsibility for the long 

time frames over which post-injection site care will be conducted. 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 when 

evaluating the financial responsibility requirements for GS wells and it will also include a section 

on how to estimate costs to support accurate financial responsibility demonstrations. The 

guidance will be available at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

Letter ID: 0177 Comment ID: 23593 Letter Lines: 813 to 837 

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

CFR 146.85) 

Comment: F. Financial Assurance Provisions 

The fifth general area of concern addressed in these comments relates to the 

proposed rules‘ provisions for financial assurance. The proposed rules would 

require that permittees demonstrate, at the time of project permitting, 

financial assurance for activities including injection, corrective action, well 

plugging and closure, and activities throughout the PISC period, as well as for 

emergency and remedial response activities to address movement of formation or 

injection fluids that may endanger USDW. These proposed financial assurance 

requirements, which exceed those currently in place even for injection of 

hazardous wastes, raise significant concerns from the perspective of promoting 

CCS development. They are in many respects not balanced by corresponding 

increases in the levels of protection provided to USDW. These concerns include 

the following: 

- More stringent treatment for GS projects are unwarranted from a technical 

perspective: As noted above, the proposed financial assurance provisions go far 

beyond the requirements currently in place under the UIC program, even those for 

wells injecting hazardous waste. EEI and our members do not believe that any 

showing has been made that the physical and chemical properties of CO2 are 

41
sufficiently unique--or that they pose a sufficiently unique potential threat to 

USDWs--to warrant such unprecedented treatment under the UIC program. Any 

required financial assurance should in no event go beyond that currently 

required for Class I hazardous waste injection wells (i.e., beyond requirements 

to assure corrective action in the AOR). 

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

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

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

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

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

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

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

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

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

endangerment. 

Letter ID: 0177 Comment ID: 23594 Letter Lines: 839 to 846 

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

CFR 146.85) 

Comment: - More stringent treatment creates unnecessary public perception issues: As a 

preliminary matter, imposing requirements more stringent than (or even 

equivalent to) those currently imposed on hazardous waste may contribute to an 

unwarranted negative public perception of CCS. EEI strongly urges the Agency to 

exercise care not to stigmatize geological CO2 storage by equating it in any way 

with hazardous waste disposal, as doing so could affect public perception 

(thereby potentially hindering the permitting process) as well as perceptions by 

financial institutions (thereby potentially hindering project financing). 

Individual Response: As described above, EPA believes that the tailored financial responsibility 

requirements are appropriate to the unique nature of GS. Comments related to financial 

responsibility requirements resulting in negative perceptions of GS are outside the scope of this 

rulemaking. However, EPA does not agree that the financial assurance requirements will result 

in negative public perceptions of GS. EPA believes that the public will be reassured that any 

necessary activities will be covered despite the owner’s or operator’s financial difficulties. 

EPA adds that the purpose of the GS rule is not to encourage the use of GS; rather, the purpose 

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

USDWs from endangerment. 

Letter ID: 0177 Comment ID: 23595 Letter Lines: 848 to 881 ; 1285 to 1285 

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

42
CFR 146.85) 

Comment: - Consideration of test projects: Small-scale test projects currently underway 

are providing opportunities to gather necessary information to explore how 

financial assurance concerns may best be addressed. EEI encourages the Agency 

to consider the experience of these projects in moving forward with financial 

assurance provisions. 

- Consideration of nature of early projects/incentives for early actors: Early 

CCS projects are likely to represent the utmost in site selection and 

characterization in order to minimize risk. Stringent financial assurance 

requirements imposed in this context likely would not provide any additional 

protection to USDW. Further, financial assurance requirements beyond those 

currently in existence under the UIC program would disincentivize early CCS 

projects from going forward. The Agency should consider financial assurance 

requirements in line with those currently imposed on other types of wells as a 

mechanism to incentivize these early projects. 

- Consideration of the risk curve: While the Agency properly considers any 

unique threats that may be posed by the long-term nature of the storage at issue 

in a CCS project, the risk curve associated with a properly sited and managed 

project begins to fall off rapidly over time, [FN8] and well before the Agency‘s 

proposed financial assurance provisions would come to an end. Further, the 

proposed rules do not contain clear provisions for reducing financial assurance 

obligations over time in accordance with declining risk. Any financial 

assurance requirements imposed should be based upon the actualities of the risk 

curve for CCS projects, and ideally the risk curve for a particular CCS project. 

- Lack of site-specific flexibility in some respects: While the details of 

activities to be assured--and in some cases the likelihood that such activities 

would ever need to be carried out--could vary widely from project to project, 

the financial assurance requirements as proposed do not include provisions that 

would allow site-specific characteristics to be taken into account. It is 

crucial that any financial assurance requirements be sufficiently flexible to 

take into account the particular risks associated with any given project. All 

projects are not created equal, and thus not all risks are the same 

[FN8] See id. 

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

responsibility. Under the final GS rule, owners or operators have the flexibility to choose from a 

variety of financial instruments to meet their financial responsibility obligations. Owners or 

operators may use one or multiple financial responsibility instruments for well plugging and 

PISC (§146.85(a)(6)). However EPA will not allow for a separate financial responsibility 

demonstration for well plugging and PISC (i.e., a demonstration submitted prior to well plugging 

and the beginning of the post-injection site care period rather than with the permit application). A 

43
demonstration of financial responsibility for all phases of the GS project will be required prior to 

the issuance of a Class VI permit (§146.85(a)(5)(i)). 

Regarding the comment that some sites may not pose the same risk as others, EPA notes that the 

cost of meeting the financial responsibility requirements is expected to be proportionate to the 

expected costs of each GS activity. Thus, owners or operators of smaller sites (e.g., that comprise 

smaller AoRs) may not need to provide financial responsibility instruments that are as highly 

valued as a larger site. Regardless, all owner or operators must demonstrate to the Director that 

their financial instrument is adequate to protect USDWs from endangerment. 

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

choose and evaluate appropriate financial methods and states may set more specific financial 

responsibility requirements if they so choose. The guidance will be available on EPA's website at 

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

As described above, the purpose of the GS rule is not to encourage the use of GS; rather, the 

purpose of the GS rule is to ensure that, where GS is deployed, it is conducted in a manner that 

protects USDWs from endangerment. 

Letter ID: 0177 Comment ID: 23596 Letter Lines: 883 to 901 

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

CFR 146.85) 

Comment Code: 5436 2.9.1.3 Allowing separate financial demonstrations for plugging and 

abandonment and post-injection site care (seeking comment) 

Comment: - Ability to generate reliable cost estimates for assured activities: Financial 

assurance requirements depend on the ability to obtain reliable cost estimates 

for the activity to be assured. If an accurate cost estimate cannot be 

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

assumed to be appropriate--it may be inadequately protective, or it may be 

unduly burdensome. The Agency is proposing imposition of financial assurance 

requirements for activities that may occur more than 50 years in the future, 

with requirements to be satisfied at the time of permitting. The Agency should 

carefully examine whether at this time, or at the time of permitting, the cost 

of all of the activities required to be assured can be accurately estimated and 

assumed to be relatively accurate going forward. If not, financial assurance is 

no better than a guess. The preamble indicates that EPA may be willing to 

consider a phased or staged approach to financial assurance requirements, as 

well as separate financial assurance demonstrations for plugging and PISC 

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

difficulties with the financial assurance proposal in terms of estimating costs 

for future activities assuming that better estimation tools would become 

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

forming cost estimates at the time of permitting. 

44
Individual Response: In the final rule, owners or operators are required to demonstrate, with 

their permit application, adequate financial responsibility for specific GS activities, including 

plugging and post-injection site care, per §146.85(a). EPA clarifies at §146.85(a)(6) that, prior to 

obtaining a Class VI permit, an owner or operator may demonstrate financial responsibility by 

using one or multiple qualifying financial instruments for specific GS activities, thereby realizing 

greater flexibility and cost savings from this regulation. In the event that the owner or operator 

combines more than one instrument for a specific GS activity (e.g., well plugging), such 

combination must be limited to instruments that are not based on financial strength or 

performance (i.e., self insurance or performance bond), for example trust funds, surety bonds 

guaranteeing payment into a trust fund, letters of credit, escrow account, and insurance. In this 

case, it is the combination of instruments, rather than the single instrument, which must provide 

financial responsibility for an amount at least equal to the current cost estimate. 

EPA believes that the demonstration at the time of permit application is important to ensure that 

resources are available to prevent the endangerment of USDWs in the event that the owner or 

operator experiences financial difficulties at any time during the life of the GS project. In 

addition, financial responsibility will need to be reevaluated prior to well plugging or site 

closure, or at any other time deemed appropriate by the Director, for example, following AoR 

reevaluations. 

Letter ID: 0177 Comment ID: 23597 Letter Lines: 903 to 918 ; 1287 to 1290 ; 1292 to 1292 

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

CFR 146.85) 

Comment: - Market considerations: The above points assume that there currently exist, or 

will exist by the time the proposed rules are finalized, appropriate financial 

assurance possibilities for operators. As noted in the Government 

Accountability Office (GAO)‘s September 2008 report on CCS,[FN9] stakeholders 

have already reported difficulties in obtaining insurance coverage for CCS 

projects.[FN10] Even where markets do exist, financial assurance options may 

prove inordinately expensive to project operators and investors, who may choose 

to walk away from projects rather than face millions of dollars in assurances 

for activities 50 years down the road that may never occur. EEI strongly 

encourages the Agency to evaluate this issue carefully and ensure that it is not 

creating obligations with which operators simply cannot comply, or which are so 

expensive that commercial development and deployment of CCS will be crippled at 

the outset. One possibility in this regard would be for the Agency to limit 

financial assurance requirements to reasonable caps (whether absolute caps or 

based on tons injected) in order to facilitate ability to secure the relevant 

financial instruments and thus CCS development. 

[FN9] GAO, Report to the Chairman of the Select Committee on Energy Independence 

and Global Warming, House of Representatives, Climate Change: Federal Actions 

Will Greatly Affect the Viability of Carbon Capture and Storage As a Key 

Mitigation Option, GAO-08-1080 (Sept. 2008). 

45
[FN10] Id. at 25. 

Individual Response: EPA anticipates that the availability of third-party GS financial 

instruments will grow in response to demand for such instruments by GS well owners or 

operators as deployment of GS technology increases in the future. In addition, EPA clarifies at 

§146.85(a)(6) that, prior to obtaining a Class VI permit, an owner or operator may demonstrate 

financial responsibility by using one or multiple qualifying financial instruments for specific GS 

activities, thereby realizing greater flexibility and cost savings from this regulation. In the event 

that the owner or operator combines more than one instrument for a specific GS activity (e.g., 

well plugging), such combination must be limited to instruments that are not based on financial 

strength or performance (i.e., self insurance or performance bond), for example trust funds, 

surety bonds guaranteeing payment into a trust fund, letters of credit, escrow account, and 

insurance. In this case, it is the combination of instruments, rather than the single instrument, 

which must provide financial responsibility for an amount at least equal to the current cost 

estimate. 

Letter ID: 0177 Comment ID: 23598 Letter Lines: 920 to 929 

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

CFR 146.85) 

Comment: - Lack of appropriate standards for updating: The proposed rules would require 

operators to provide written updates of adjustments to cost estimates as assured 

plans are amended. However, the preamble suggests that the UIC program director 

"would set the frequency for... re-demonstration of financial responsibility and 

resources. It may be appropriate to re-demonstrate financial responsibility on 

a periodic basis" to take into account any changes in submitted plans. While a 

requirement to update financial assurance where changes in plans so warrant 

makes sense, a default periodic requirement to re-demonstrate financial 

assurance absent some change in circumstances that would require it would impose 

an unnecessary burden on operators. 

Individual Response: EPA clarifies that the GS rule, at §146.85 requires the Director to 

evaluate the financial responsibility demonstration annually to confirm that the instrument(s) 

used remain adequate. EPA believes this is necessary to assure that resources are available to 

prevent the endangerment of USDWs in the event that the owner or operator experiences 

financial difficulties at any time during the life of the GS project. 

At §146.85(e), the rule states that if the Director determines during the annual evaluation that the 

original demonstration is no longer adequate to cover the cost of activities for which it is 

required, that the owner or operator must provide an adjustment to the cost estimate within 60 

days. 

46
Letter ID: 0177 Comment ID: 23599 Letter Lines: 931 to 957 

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

Comment: - Lack of contemplation of third-party assumption of risk or liability: The 

preamble acknowledges that EPA is making no attempt to factor in circumstances 

in which a state, for example, or other third party has assumed long-term risk 

or liability for or ownership of stored CO2 (as is contemplated in the 

Interstate Oil and Gas Compact Commission (IOGCC) model statute and regulations 

issued in September 2007 and the October 2008 Guidelines for Carbon Dioxide 

Capture, Transport and Storage, released by World Resources Institute). It 

specifically notes that "SDWA does not provide EPA with the authority to 

transfer liability from one entity to the other. Trust responsibility for 

potential impacts to USDWs remains with the owner or operator indefinitely under 

current SDWA provisions." While EEI acknowledges that EPA‘s authority with 

regard to issues of liability transfers for CCS projects generally speaking is 

limited, we encourage the Agency to consider that liability transfers may be 

effectuated under other laws and to examine closely how the UIC rules can take 

such provisions into account. 

For example, the current UIC regulations at least contemplate changes in 

ownership of projects; see, e.g., 40 C.F.R. § 144.66, which provides that where 

a state assumes legal responsibility for compliance with plugging and 

abandonment requirements or assures state funding for such requirements, the 

operator is deemed to have satisfied applicable financial assurance requirements 

where the Administrator determines that the state‘s assumption is at least 

equivalent to available financial assurance mechanisms. As another example, one 

option within the Agency‘s SDWA jurisdiction may be to include a similar 

provision indicating that where a third party assumes a permittee‘s regulatory 

obligations, the permittee is deemed to have satisfied applicable financial 

assurance requirements, which can then be terminated as to the permittee. 

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 

47
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 

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. 

§§ 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: 0177 Comment ID: 23600 Letter Lines: 959 to 971 

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: - Comments on specific financial assurance mechanisms: The preamble seeks 

comment on what types of financial assurance mechanisms should be made available 

for GS projects. While a number of mechanisms currently exist under the UIC 

program, such as trust funds, surety bonds, insurance and satisfaction of a 

corporate financial test (with or without a third-party guarantee), the guidance 

outlining available mechanisms should provide Agency decision-makers with 

flexibility to take operator and project-specific considerations into account. 

In addition, current "form" corporate financial test documents may require that 

corporations have certain financial information available (such as bond ratings) 

that they may lack, but do not clearly allow for substitution of substantially 

equivalent financial information for purposes of satisfying the test. Any 

financial assurance regulations should provide the Agency with considerable 

flexibility in how to determine a permittee‘s financial position. 

Individual Response: EPA will retain self insurance as an option for financial responsibility for 

Class VI wells. EPA believes that if properly used, the financial test can be an appropriate option 

for some owners or operators. EPA recognizes that it is important for self-insurers to be creditworthy, otherwise USDWs may not be adequately protected. Owner or operators who choose to 

self-insure and use the financial test must be able to demonstrate profitability, with a margin 

48
sufficient to cover contingencies and unknown obligations, and stability. If the owner or operator 

meets corporate financial test criteria, this is an indication that the owner or operator can 

guarantee its ability to satisfy financial obligations based solely on the strength of the company’s 

financial condition. 

Furthermore, EPA is developing guidance (available on EPA's website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm) to assist Directors in 

evaluating the appropriateness of the financial test in specific circumstances. EPA will provide 

examples of "substantially equivalent" financial information to that can be used to fulfill a 

financial test. 

Owners or operators may choose from a variety of financial instruments listed in §146.85(a) to 

meet their financial responsibility obligations, provided the Director determines that the 

operator's proposed financial responsibility demonstration is adequate to protect USDWs from 

endangerment by demonstrating the ability 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. 

Letter ID: 0177 Comment ID: 23601 Letter Lines: 973 to 1037 

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

Comment: G. Grandfathering Provisions 

The sixth general area of concern addressed in these comments involves how two 

categories of existing injection wells in particular should be treated in the 

final regulations. The first such category includes existing CO2 injection and 

storage wells that have been permitted as "experimental" wells under the Class V 

UIC regulations or pilot projects that have been permitted as industrial 

projects under the Class I UIC regulations. The second category of existing 

wells under consideration includes Class II wells that inject CO2 for purposes 

of EOR. 

EPA has proposed giving the UIC program discretion to "grandfather" the 

construction requirements for existing Class I, II and Class V wells where the 

UIC program director can determine that the wells will not endanger USDW. Such 

grandfathering is soundly justified, as these wells have been constructed 

specifically for injection and, particularly in the case of Class I and V wells 

associated with CCS pilot projects, for storage of CO2 and are suitable for the 

purpose for which they are designed; the promulgation of new regulations should 

not render them unfit for the purpose for which they were intended. Further, 

permittees of these wells presumably were required to satisfy the nonendangerment standard as part of the initial permitting process. 

However, the limited scope of the proposed grandfathering--with the sole 

exception of the construction requirements, operators would be required to 

49
satisfy all provisions of the Class VI permitting requirements--coupled with the 

fact that its use is left to the UIC program director‘s discretion, casts 

considerable doubt on its potential efficacy. First, under these circumstances, 

potential grandfathering likely would not provide the needed assurance--and thus 

the needed incentives--to project operators or investors that existing wells, 

or, perhaps more importantly, new wells that may be permitted before the 

proposed rules take effect, will remain viable wells from a regulatory 

perspective going forward. Under those circumstances, the potential risks of 

"first actor" status may well outweigh any potential benefits. For example, 

limiting grandfathering for Class I or V experimental wells to construction 

requirements risks greatly reducing incentives for operators to undertake such 

projects, as at some point in the future they will be required to assume a far 

more stringent slate of obligations (including onerous financial assurance 

requirements). Moreover, given many of the other proposed limitations on GS 

projects, such as the restrictions on receiving formations, grandfathering may 

prove impossible even for projects that were specifically designed to inject and 

store CO2. 

As noted above, wells permitted to inject and store CO2 have already been deemed 

safe and suitable for those purposes, and a determination has already been made 

that no endangerment is posed to USDW. Under these circumstances, leaving a 

grandfathering determination to the discretion of the program 

director--discretion that may be exercised where the director determines that 

there is no endangerment to USDW--is unnecessarily duplicative of existing 

requirements and limiting for project operators. The desired protection of 

USDW has already been established for these projects, and absent some change in 

circumstances, that protection will remain. Further, leaving grandfathering to 

the discretion of the program director could result in a decision that, as a 

practical matter, comes too late for it to be viewed as a legitimate option at 

the start of a project. 

The rules’ grandfathering provision should be as expansive as possible while 

balancing the need for protection of USDW, and thus EEI recommends two principal 

modifications to the proposed provision. First, a preferable approach to 

limiting the scope of grandfathering only to construction requirements is to 

expand the scope of available grandfathering for existing wells, given that the 

wells were constructed for injection of CO2 in the first instance. Further, 

rather than leave grandfathering to the discretion of the program director, a 

preferable approach is to allow grandfathering as a default rule unless the 

program director determines that, pursuant to specified criteria, the specific 

nature of the project renders it unsuitable for CO2 storage. 

Individual Response: As described above, EPA agrees that many Class I, Class II, and Class V 

experimental technology wells are designed and constructed to withstand exposure to CO2, and 

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 

50
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). However, EPA disagrees that other requirements 

(e.g., MITs, siting, monitoring, operational, and AoR requirements) should also be grandfathered 

because the Class I, II, and V requirements are not tailored to address injection of large volumes 

of CO2 for long term storage. 

Letter ID: 0177 Comment ID: 23602 Letter Lines: 1039 to 1083 ; 1294 to 1294 

Comment Code: 5520 2.10.1 Appropriateness of existing public participation requirements 

(Part 25 and Part 124) for GS (seeking comment) 

Comment: H. Public Participation Provisions 

The preamble seeks comment on what public participation provisions should be 

included for GS wells. EEI shares the Agency‘s view that accurate public 

perception and increased understanding of CCS technology are critical to its 

success at the commercial level. To that end, EEI supports the development of 

regulations and policies that will serve to educate the public and provide for 

appropriate public input on projects. The preamble proposes to apply the public 

participation provisions of 40 C.F.R. Parts 25 and 124 to GS projects and seeks 

comments on the appropriateness and completeness of those provisions for this 

task. EEI agrees that public participation provisions currently existing under 

the UIC program are appropriately applied to GS projects as well. However, Part 

124 includes provisions for public participation that are unique to other 

programs, including RCRA.[FN11] Imposition of public participation provisions like 

those currently applicable under RCRA is unnecessary and undesirable for GS 

projects, as further explained below. 

The general public participation requirements under the UIC program provide for 

operators to submit a permit application, complete with all information required 

by the regulations, and for a completeness review of the submitted information. 

The public comment period is generally commenced once the director has prepared 

a draft permit for the project. This is a rationale approach for GS projects. 

It allows the project operator and the Agency to make preliminary decisions, 

such as decisions related to siting, that are critical to the success of the 

project generally--and to the protection of USDW specifically--based upon 

appropriate geologic and technical considerations. It then allows the public to 

review the proposed project in light of all of the information that would be 

required for permit issuance, including, for example, in the GS context, 

specific information related to siting, construction, operation and monitoring. 

However, the RCRA public participation provisions provide for, under certain 

circumstances, public meetings prior to submission of a permit application for a 

hazardous waste management unit. While the siting of RCRA-regulated facilities 

is obviously based on a number of concrete considerations, the siting of GS 

projects is dependent upon site geology to an extent that does not exist in the 

51
RCRA context. While EEI supports creation of provisions that allow for public 

input into projects, issues related to project siting are particularly 

susceptible to public response, which may be based upon improper perceptions of 

risk or desires that projects be sited elsewhere rather than upon true risks 

that a project may pose to USDW. EEI encourages the Agency to craft provisions 

that support decision-making based upon sound science and do not unduly hamper 

siting decisions. In addition, as is echoed throughout these comments, imposing 

provisions on GS projects similar to those imposed upon hazardous waste in and 

of itself may feed into public misperceptions regarding the nature of projects 

and their safety as a general matter. 

[FN11] See generally 40 C.F.R. Part 124, Subpart B. 

Individual Response: EPA agrees that the existing UIC public participation requirements as 

specified in 40 CFR 25 and 40 CFR 124 are appropriate for GS projects. In addition, because of 

the unique nature of GS projects, and the anticipated level of public interest in GS projects, EPA 

encourages early public involvement in GS projects. Providing the public with accurate, project 

specific information in the early stages of each GS project can help clarify project details and 

avoid public misperceptions about the nature and safety of GS projects, and will allow a potential 

GS owner or operator and the permitting agency to address the public's concerns before the 

permitting process is complete. 

In response to comments regarding the requirements in 40 CFR Parts 25 and 124 applicable 

under RCRA, EPA clarifies that only the public participation requirements pertaining to the UIC 

program apply to Class VI wells. 

Letter ID: 0177 Comment ID: 23603 Letter Lines: 1085 to 1089 

Comment Code: 5560 2.10.3 Enhancing the public participation process (seeking comment) 

Comment: Finally, EEI notes that the Internet has become an important source of 

information for the public, and EEI echoes the Agency‘s desire to utilize its 

capabilities to provide not only for public involvement, but also--perhaps more 

importantly as an initial matter--for public education on the benefits and true 

risks of CCS projects. 

Individual Response: EPA agrees with commenters that the use of new forms of information 

technology can improve public participation and understanding of GS projects and the associated 

injection technologies involved. EPA is not requiring the use of any new information 

technologies to inform the public, but encourages GS project operators and permitting authorities 

to use the Internet as well as both new and established tools to explain and post information on 

the latest developments. This information may include schedules for hearings, briefings, and 

other opportunities for involvement. EPA plans to conduct outreach on the GS rule, and provides 

GS related information on its website at 

http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. EPA currently uses social 

networking applications for important information (e.g., Facebook and Twitter), and will 

52
encourage GS operators and permitting authorities to use similar technologies to keep the public 

informed of GS projects. 

Letter ID: 0177 Comment ID: 23604 Letter Lines: 1091 to 1116 

Comment Code: 5600 2.11 Comments related to UIC Program primacy for Class VI wells 

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

Comment: I. State Primacy Provisions 

The proposed rules seek comment on whether states should be permitted to seek 

primacy for Class VI wells, noting the Agency‘s belief that "the most effective 

approach for the comprehensive management of CO2 GS projects would be achieved 

at the State and Tribal level." EEI agrees that states and tribes should play a 

key role in managing CCS projects going forward. Numerous states have decades 

of experience regulating CO2 injection through Class II programs, and those 

states in particular may have much to offer in the context of Class IV wells. 

Further, many states are moving ahead with developing their own legislation and 

regulations related to CCS activities--in many cases laws and rules that go 

beyond the scope of EPA‘s jurisdiction, such as incentives provisions and 

provisions clarifying the nature of potentially affected property rights. 

Allowing those states to take on primacy for Class VI wells (in particular, 

allowing them to take on primacy for Class VI without assuming the regulatory 

burden that may be associated with other well classes) will help ensure that 

they are given credit and recognition for their groundbreaking work on CCS. EEI 

supports increased funding for those states that have primacy for Class VI wells 

to ensure that sufficient resources exist to review appropriately the complex 

permit applications GS projects will entail. 

EEI also encourages the Agency to consider potential issues related to projects 

that may span multiple states in light of primacy issues. Under such 

circumstances the rules could include, for example, provisions for establishing 

a primary state for permitting purposes, with additional affected states 

provided an opportunity for notice and comment. 

Individual Response: As described above, EPA will allow states to apply for primacy for Class 

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

Class VI wells under §145.1(i) of the final GS rule. 

In response to the question about which state or region would oversee the permit for projects 

where the AoR spans State, Tribal or Territorial boundaries, EPA clarifies that issuance and 

oversight of a GS permit, including any associated AoR boundary related coordination, is the 

responsibility of the primacy (State, Tribal, or Territorial) or regional DI program in the state 

where the injection well is located. 

Because some GS projects will require coordination across State, Tribal, and Territorial 

53
jurisdictions, the Agency will work with the appropriate entities to facilitate communication 

among States, Tribes, and Territories interested in obtaining primacy during the implementation 

phase of the GS regulation. Such communication may involve other organizations such as the 

Sierra Club, NDWAC, associations, and other experts. However, the responsibility for 

addressing such subjects ultimately rests with the States, Tribes, and Territories with primacy. 

EPA is developing primacy implementation materials for states that describe trans-boundary 

issues that should be addressed in permitting Class VI wells under the GS regulation. The 

materials will be available at http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm. 

EPA understands that the CO2 plumes for large GS projects may cross State, Tribal, Territorial 

or EPA Regional boundaries. The final GS rule, at §146.82(a)(2), requires the owner or operator 

to identify all State, Tribal, and Territorial boundaries within the AoR. Based on this 

information, the Director must provide written notification to all States, Tribes, and Territories to 

inform them of the permit application, as specified in §146.82(b), and ensure that they are 

involved in any necessary processes (e.g., development of the emergency and remedial response 

plan, as specified in §146.94). The Agency encourages transparency in the permitting process 

and expects that State-State/State-Tribal communication on GS permitting will facilitate 

information sharing and encourage safe, protective projects. 

Letter ID: 0177 Comment ID: 23605 Letter Lines: 1118 to 1136 ; 1296 to 1300 

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

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: J. Issues Related to Potential Application of Other Environmental Laws 

EEI and our members are concerned about the potential application to CCS 

activities of environmental laws that were, without exception, not intended to 

apply to CCS or even crafted with CCS in mind and that could impose significant 

obligations and potential liabilities not only on project operators, but also 

potentially on other entities in the CO2 chain, such as entities producing the 

CO2 that is ultimately injected. These laws include in particular the 

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or 

Superfund) and RCRA. EEI agrees that issues related to potential liabilities 

under these laws must be resolved.[FN12] Setting aside for the moment important 

questions of whether either of these laws could apply to CCS activities and, if 

so, precisely how and to what extent, EEI does not disagree with the Agency‘s 

position that drafting a clear exception from either of these regimes may be 

difficult in the sole context of this SDWA UIC rulemaking. Nonetheless, EEI 

urges EPA to evaluate carefully any proposed treatment of these two laws (or 

others) that it may be considering under the Class VI regulations to ensure that 

any such treatment is necessary and does not serve as an unintended springboard 

for hampering the successful commercialization of CCS. 

[FN12] The recent released GAO report on CCS echoes the importance of addressing 

these liability issues. GAO recommends that EPA examine its authorities and 

54
responsibilities the under RCRA and CERCLA to determine "where additional 

statutory authority might be needed to address key regulatory and legal issues 

related" to CCS. GAO report, supra n. 9, at 52. 

Individual Response: As described above, 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. 

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” as defined in 

CERCLA, 42 U.S.C. 9601(10). Class VI permits will need to be carefully structured to ensure 

that they prevent potential releases from the well which are outside the scope of the Class VI 

permit. 

Letter ID: 0177 Comment ID: 23606 Letter Lines: 1138 to 1178 ; 1302 to 1302 ; 1304 to 1304 

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

Comment: To turn briefly to the RCRA issue, EPA comments in the preamble that SDWA is 

currently used to regulate the injection of both "pollutants" and "commodities"; 

therefore, the rules do not need to address the status of CO2 as a pollutant or 

a commodity.[FN13] Regardless, the preamble continues to include an analysis of 

the potential application of RCRA to CO2 injection and storage activities that 

appears to be based upon an assumption that CO2 is in fact not a commodity, but 

a waste. 

As the Agency is aware, RCRA regulates production, management and disposal of 

wastes; RCRA‘s potential application thus depends upon existence of a waste in 

the first instance (more particularly, a solid waste). Once a material is 

deemed to be "discarded" and thus a solid waste, an additional set of parameters 

applies to determine whether that substance is also a hazardous waste and thus 

subject to further regulation. It is likely within EPA’s regulatory ambit 

(albeit under RCRA) to determine that CCS activities meeting permit requirements 

are not equated to discarding the CO2, and EEI recommends that EPA examine that 

approach. 

Further, while the preamble notes that it is unnecessary to label CO2 a waste or 

a commodity for purposes of proposing and implementing UIC regulations for its 

injection and storage, it jumps to an unnecessary and potentially confusing 

discussion of whether injected CO2 may be a hazardous waste, thus perhaps 

55
implying the assumption that CO2 is a solid waste to begin with. The preamble 

states: 

Because the types of impurities and their concentrations in the CO2 

stream are likely to vary by facility, coal composition, plant operating 

conditions, and pollution removal technologies, EPA cannot make a 

categorical determination as to whether injected CO2 is hazardous under 

RCRA.[FN14] 

Thus, EPA states, operators "will need to characterize their CO2 stream as part 

of their permit application to determine if the injectate is considered 

hazardous" under RCRA, and potential application of RCRA is left to a case-bycase determination depending upon the contents of the injectate. EEI submits 

that any characterization of potentially hazardous constituents in CO2 injectate 

may be addressed as part of the UIC permitting process without addressing any 

potential RCRA jurisdictional issues. For instance, EPA could appropriately 

establish a permit condition that injectate must meet Toxicity Characteristic 

Leaching Procedure or pH standards, without reference to the material‘s waste 

status. 

[FN13] 73 Fed. Reg. 43496, col.3 

[FN14] Id. at 43503, col. 3. 

Individual Response: First, EPA 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, which continue to apply on their own terms. 

At the same time, under the final GS rule, owners or operators will need to determine whether 

the CO2 stream is hazardous under EPA’s RCRA regulations, and if so, any injection of the 

hazardous CO2 stream may only occur in a Class I hazardous waste injection well under 40 CFR 

Part 146 Subpart G. Conversely, Class VI wells cannot be used for the co-injection of RCRA 

hazardous wastes (i.e., hazardous wastes that are injected along with the CO2 stream). 

As described above, 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. 

Letter ID: 0177 Comment ID: 23607 Letter Lines: 1180 to 1220 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

56
Comment: As to CERCLA, the preamble states that the statute "exempts from liability 

certain 'federally permitted releases' including releases in compliance with a 

UIC permit under SDWA. Therefore, Class VI requirements and permits will need 

to be carefully structured to ensure that they do not 'authorize' inappropriate 

hazardous releases. This would include clarifying if there are potential 

releases from the well which are outside the scope of the Class VI permit." The 

preamble continues on to request comment on "particular situations where this 

might occur" as well as more generally on "other considerations associated with 

the presence of impurities in the CO2 stream related to CERCLA." This 

discussion implies that, in the first instance, activities associated with CCS 

could be subject to CERCLA. 

EEI acknowledges that limits exist on EPA‘s ability to affect issues related to 

potential CERCLA liability in the context of this SDWA rulemaking. Nonetheless, 

EEI submits that EPA should seek to provide as much clarity and certainty as 

possible in this context to allow for the most expansive application of CERCLA‘s 

federally permitted release exemption as appropriate to activities permitted 

under the proposed rules. Insofar as the contents of a given CO2 stream will be 

characterized for permitting purposes and, as the permit may identify particular 

impurities in the stream, the presence of such impurities would fall squarely 

within the federally permitted release exemption should not result in 

"inappropriate hazardous releases." Further, the application of the federally 

permitted release exemption to the expected, intended composition of the 

injectate does not inappropriately undermine other limits on the application of 

the federally permitted release exemption that may exist, potentially including 

situations where an impurity not contemplated by the permit writer is introduced 

into the stream or where hazardous substances in the injectate cause the 

incurrence of response costs where material permit compliance has not been 

maintained. 

Furthermore, as noted above, the preamble‘s discussion is based on the 

assumption that CERCLA would be triggered in the first instance. As the Agency 

is aware, CERCLA liability (at minimum for certain classes of potentially 

responsible parties) turns to a significant extent on whether there has been 

"disposal" of hazardous substances. As with the RCRA issue, a determination of 

this issue is unnecessary from the perspective of regulating injection and 

storage of CO2 under the UIC program, and EEI urges the Agency to avoid creating 

unnecessary hurdles for the successful commercial deployment of CCS by assuming 

potential applications of other statutes that may not come into play. EEI also 

encourages the Agency, pursuant to its authority under RCRA and CERCLA, to 

examine possibilities for exemption or exclusion from those programs. 

Individual Response: The Agency thanks the commenter for their detailed comments regarding 

the scope and possible impacts of CERCLA liability on CCS activities, and in particular 

comments related to the CERCLA exemption for federally-permitted releases. EPA notes that 

57
the GS rule is not promulgated under CERCLA, therefore the applicability of that statute will not 

be determined under the SDWA or the terms of the GS rule, but rather according to the 

CERCLA statute itself and any implementing regulations that may apply. To the 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. 

With respect to the commenter’s reference to RCRA, 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. 

Letter ID: 0177 Comment ID: 23608 Letter Lines: 1222 to 1249 ; 1306 to 1312 ; 1314 to 1316 

Comment Code: 1310 1.1.2.4 Comments on other "out of scope" issues, e.g., pore space 

ownership 

Comment: K. Issues Related to Potentially Implicated Property Rights 

Finally, although EEI recognizes the limits on EPA‘s jurisdiction regarding CCS 

projects, our members appreciate the Agency raising for public comment issues 

related to property rights that may be associated with CO2 injection and 

storage. While the importance of EPA‘s rulemaking as an important step in 

providing clarity, flexibility and certainty for project operators and investors 

cannot be overstated, CCS projects may not go forward in the absence of 

resolution of property rights-related issues. 

Numerous property rights may be implicated by a given CCS project, including 

ownership interests in the surface property to be used for injection equipment, 

the subsurface property housing the injection well, the "pore space" in which 

CO2 will be stored, and water rights and mineral interests that may exist in the 

area. Currently, an entity interested in pursuing a CCS project is left to sort 

out who owns these various interests, an exercise that is a combination of 

applicable state law--to the extent any applicable state law exists--and sitespecific due diligence.[FN15] This exercise is likely fraught with considerable 

uncertainty and expense and must be successfully completed in order for a 

project to begin. Commercial deployment of CCS technology may be advanced 

considerably through legal mechanisms at the state and federal levels that 

assist potential permittees in working through property rights-related issues. 

Available mechanisms may range from laws that clarify presumptions related to 

58
ownership of various implicated interests [FN16] to provisions allowing for use of 

eminent domain authority to obtain such interests. EEI supports further 

exploration and discussion of these issues, and EPA‘s efforts to solicit public 

views will serve to raise stakeholder and policy-maker awareness regarding the 

importance of their resolution to the successful commercial deployment of CCS. 

[FN15] The proposed regulations would also require the permittee to record a 

notice on the deed (or other relevant document) to the "facility property" 

containing certain information. While EEI is not opposed to the concept of a 

deed notice, more clarity is needed in the regulations regarding how "facility 

property" is to be defined in order to better understand the scope of the 

proposed requirement. EEI recommends limiting "facility property" to the area 

immediately surrounding the injection well. 

[FN16] See Wyoming‘s House Bill 89, 

http://legisweb.state.wy.us/2008/Enroll/HB0089.pdf, which became law in July 

2008. 

Individual Response: As described above, EPA clarifies that pore space ownership and surface 

and subsurface property and mineral rights are outside of the scope of the Class VI GS 

rulemaking, which focuses on ensuring consistency in permitting underground injection of CO2 

at GS operations across the United States and provide requirements to prevent endangerment of 

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

EPA recognizes the importance of providing clear, flexible, scalable, and appropriate 

regulations. EPA believes that the Class VI GS regulation will provide certainty to industry and 

the public by providing consistency in requirements across the U.S. and transparency about what 

requirements apply to owners or operators. 

Letter ID: 0177 Comment ID: 25116 Letter Lines: 1306 to 1312 

Comment Code: 4730 2.7.3 Reporting associated with closure and post-injection site care 

Comment: [FN15] The proposed regulations would also require the permittee to record a 

notice on the deed (or other relevant document) to the "facility property" 

containing certain information. While EEI is not opposed to the concept of a 

deed notice, more clarity is needed in the regulations regarding how "facility 

property" is to be defined in order to better understand the scope of the 

proposed requirement. EEI recommends limiting "facility property" to the area 

immediately surrounding the injection well. 

Individual Response: EPA believes the requirements for submitting of survey plats, as specified 

at §146.93(f), and recording a notation on the deed to the facility property that the land has been 

used to sequester CO2, as specified at §146.93(g) are sufficiently clear. Additionally, they are 

important to ensure that future land owners do not inadvertently drill wells or perform other 

activities that may compromise the injection zone and/or confining zone and cause CO2 or other 

59
60

fluids to migrate into USDWs or other formations or to the surface. While EPA recognizes that 

this may entail a large area at large GS sites, the Agency believes that this requirement is 

necessary to maximize protection of USDWs from endangerment and human health. Please note 

that “facility” is defined at §144.3. See the final rule and preamble for further discussion on 

EPA's final approach to site closure.