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.
1 

October 15, 2009 

Submitted electronically online

U.S. Environmental Protection Agency 

Water Docket, EPA Docket Center (EPA/DC) 

EPA West, Room 334 

1301 Constitution Ave., NW 

Washington, DC 20460 

Re: Comments on the U.S. EPA Office of Water UIC Geologic Sequestration Rule, Docket No. EPAHQ-OW-2008-0390 

Dear Assistant Administrator Silva: 

Spectra Energy Corp (“Spectra” or “Spectra Energy”) appreciates this opportunity to submit for the U.S. 

Environmental Protection Agency’s (“EPA” or “Agency”) consideration the following comments 

regarding the Agency’s Notice of Data Availability and Request for Comment. 74 Fed. Reg. 43491 

(August 31, 2009) supplementing the proposed Federal Requirements Under the Underground Injection 

Control Program for Carbon Dioxide Geologic Sequestration Wells (hereafter referred to as the 

“Proposed Rule” or “GS Rule”). 73 Fed. Reg. 43491 (July 25, 2008). We appreciate the Agency’s 

publication of this additional data and the opportunity to comment on it and related issues discussed in the 

Notice. Spectra also provided extensive comments (dated December 18, 2008) on the original Proposed 

Rule 

Spectra strongly supports the Agency’s exploration of environmental and regulatory issues beyond the 

scope of the Safe Drinking Water Act (SDWA) in considering whether a more comprehensive regulatory 

framework is necessary to provide essential legal guidance for the development of geologic sequestration 

of CO2 in the United States. 

Spectra Energy has a significant interest in the GS Rule for a number of reasons. First, as detailed below, 

Spectra has extensive knowledge and experience with the injection and subsequent geological 

sequestration of sour CO2 from natural gas processing facilities. Spectra also has extensive knowledge
2 

and experience with constructing and operating natural gas storage facilities. Therefore, we offer working 

knowledge of how CO2 geological sequestration activities can be performed effectively and safely and, 

drawing upon that experience, we can provide the Agency with useful technical insight and 

recommendations on reasonable approaches to geologic sequestration. 

Our comments are structured as follows: Section I provides an overview of Spectra Energy’s operations 

and broad experience with geologic sequestration; Section II presents our comments on the GS studies, 

interim information, and proposed waiver process summarized in the Notice; Section III presents our 

comments on the need for a more comprehensive regulatory framework to address issues beyond the 

scope of the SDWA requirements for GS of CO2. 

I. Spectra Energy’s operations and experience with geologic 

sequestration 

Spectra Energy, headquartered in Houston, Texas, has one of the largest natural gas transportation 

systems in North America, encompassing more than 19,100 miles of transmission pipelines and 285 

billion cubic feet (Bcf) of storage capacity. 

Spectra’s U.S. operations: 

• Texas Eastern Transmission which transports up to 6.5 Bcf per day from producing fields in the 

Gulf Coast region of Texas and Louisiana to high-demand markets primarily in the Northeastern 

U.S. The pipeline comprises 8,700 miles of onshore pipe and 100 miles of pipe into the Gulf of 

Mexico. 

• East Tennessee Natural Gas which transports up to 1.3 Bcf per day mainly through Tennessee 

and Virginia across 1,432 miles of pipeline. 

• Maritimes & Northeast which transports natural gas across the northeastern U.S. and Atlantic 

Canada. The U.S. portion, comprised of 340 miles of pipeline, currently transports up to 800 Mcf 

per day.

• Algonquin Gas Transmission which plays a key role in servicing the New England region. Its 

1,100 miles of pipeline transport up to 1.9 Bcf per day of natural gas.

 • Ozark Gas Transmission, acquired by Spectra in April, 2009, consists of 565 miles of Ozark 

Gas Transmission, a FERC jurisdictional interstate pipeline and 365 miles of Ozark Gas Gathering, 
3 

a non-jurisdictional gathering system. This system transports 500 Mcf per day in Oklahoma, 

Arkansas, and Missouri. 

• Gulfstream Natural Gas in which Spectra has a 50% interest. Its 691 miles of pipeline transport 

1.1 Bcf per day of natural gas from the Mississippi and Alabama coast to Florida. 

• Southeast Supply Header in which Spectra has a 50% interest. Its 270 miles of pipeline 

transport 1 Bcf per day of natural gas from northeast Louisiana to southwest Alabama. 

• Market Hub Partners, Saltville Gas Storage, and Steckman Ridge, LP through which Spectra 

Energy has significant gas reservoir and salt cavern natural gas storage capabilities. Our storage 

assets are strategically located in both supply and market areas, including Texas, Louisiana, 

Pennsylvania, Maryland and Virginia. Spectra has a 50% interest in Steckman Ridge LP, which 

operates a reservoir storage facility in Pennsylvania. Texas Eastern also owns and operates a 

reservoir storage facility in Maryland and has interests in reservoir storage facilities in 

Pennsylvania operated by other companies. 

• DCP Midstream is one of the nation’s largest natural gas gatherers and processors, the largest 

NGL producer and one of the largest NGL marketers in the U.S. DCP Midstream is a 50-50 joint 

venture between Spectra Energy and ConocoPhillips. DCP operates processing plants, gas 

gathering systems, and other assets. 

Spectra’s Canadian Operations Involving GS of CO2: 

Spectra’s comments are largely influenced by our company’s expertise with Carbon Capture and Storage 

(CCS) operations in western Canada. Since the mid 1990s, Spectra Energy’s Western Canadian business 

unit (SET West) has incorporated CCS/acid gas re-injection into our natural gas processing facilities in 

British Columbia and Alberta. For example, our Kwoen facility is the largest CCS operation in North 

America, injecting and sequestering approximately 100 Kt per year. Kwoen and SET West have been 

recognized by the Intergovernmental Panel on Climate Change (IPCC) as a leader in CCS. Today, 

Spectra Energy’s eight CCS facilities safely capture and store more than 229 Kt CO2 per year. Further, a 

proposed project at Spectra Energy’s Fort Nelson Plant, also in British Columbia, could result in the 

sequestration of 1.3 to 2.0 Mt CO2/year, once fully operational. 

The evolution and commercialization of these technologies into SET’s operations have resulted in 

significant positive environmental impacts: 

• Reducing carbon emissions from its operations by ~800 Kt to date. 

• Minimizing the environmental footprint of its operations. 

• Decreasing/eliminating the release of SO2 into the atmosphere. 
4 

II. Comments on the GS studies and interim information summarized 

in the Notice 

A. For CCS to be viable, GS requirements must be flexible and tailored to site-specific needs 

Under the Proposed Rule, EPA has adopted an approach specifically tailored to the unique characteristics 

of CO2 deepwell injection. While we generally support the Agency’s decision not to be overly 

prescriptive in the development of the GS requirements, certain portions of the technical requirements

appear to be excessive and unreasonable and will result in higher operational costs without meaningful

benefits. For example, although certain monitoring technologies are utilized in various Regional Carbon 

Sequestration Partnership (RCSP) Pilot Projects (described in Section B of the current NODA), such 

technologies as time-lapse 3D seismic may not be appropriate, reasonable, or cost-effective for all GS

full-scale projects. Further, the RCSP pilot projects are employing and evaluating numerous technologies 

as part of their research. It is not yet clear which of these technologies will be of the most value;

assuming all of these are to be employed for GS projects is misleading. 

In the promulgation of the Final Rule, we encourage EPA to continue to build upon the concept of 

flexibility, reduce the amount of unnecessary and costly requirements, and, in certain cases, provide 

greater discretion to the States in deciding the technical specifications applicable to siting, well 

construction, and monitoring. State-level oversight and regulation of well design, construction, and 

operations provides the opportunity for local and site-specific geologic or geographic issues to be 

addressed that might otherwise be absent or inapplicable to another State or area. 

B. Significant work is still ongoing at the pilot stage for GS 

As a member of the Plains CO2 Reduction (PCOR) Partnership and the sponsor of a Phase III pilot 

project, Spectra Energy is actively involved in the development of new data from pilot efforts in GS. As 

EPA notes in the NOPR, 

EPA received comments from stakeholders requesting that additional data be made available to 

the public before a final rulemaking (particularly related to specific areas of GS) and indicating 

that more research is needed to support GS in general. Many commenters suggested that 

supplementary research on GS is necessary prior to rule promulgation and that EPA should wait 

until the Department of Energy (DOE)-sponsored Phase II and Phase III pilot projects are 

complete before finalizing the GS rule. Others believed that a final rulemaking should proceed 

and that new information and data from ongoing GS research should be considered and 

incorporated over time as part of an adaptive rulemaking process. (74 FR 44805) 

In accordance with such, we note that EPA acknowledged that it received many comments suggesting that 

promulgation of this rule should be postponed until the DOE-sponsored Phase II and Phase III projects 
5 

are complete. It is Spectra’s understanding that the summaries for Phase II projects are due to the DOE 

by December 31, 2009. The actual data and results from these Phase II projects could provide significant 

value as EPA proceeds with development of this Rule. As such, given the short timeframe, Spectra 

recommends that EPA postpone final promulgation of the GS Rule until it has reviewed those Phase II 

reports. 

C. Basin scale evaluations should be a governmental responsibility, not an individual company 

responsibility 

EPA believes that the example studied by LBNL illustrates the importance of basin-scale 

evaluation of reservoir pressures and far-field pressures resulting from CO2 injection. EPA 

requests comment on this study and welcomes additional studies that provide information on the 

need for basin-scale evaluations for GS injection. (74 FR 44808)

Spectra agrees that basin scale evaluations may be needed to ensure that there is adequate capacity in a 

given basin for all the geologic sequestration schemes in that basin. However, when the scope of an 

evaluation expands beyond the Area of Review (AoR) to be basin-scale, it requires a significantly higher 

level of resources; to place this as the responsibility of any one company would be overly burdensome. 

To ensure consistency and protect drinking water and subsurface assets, Spectra believes basin-scale 

evaluations should be a governmental responsibility; Spectra supports the development of these 

evaluations by the State(s), regional partnerships, and/or trans-border partnerships. 

Just as States maintain oversight of drinking water reservoirs and regulate oil and gas wells and storage 

facilities, States should retain the responsibility for maintaining overall assessments of the subsurface on a 

basin-wide scale, including sequestration sites. Individual States have a critical role in protecting and 

regulating the competing economic interests involved in utilizing the subsurface, not only for 

sequestration but also for natural gas storage, oil and gas production, mineral extraction, and other 

subsurface activities. Many State oil and gas regulations specify well siting or construction requirements 

for any wells that are drilled within a gas storage area or penetrate the storage horizon; this should be the 

same for geologic sequestration sites. 

Within the U.S., natural gas storage is generally located in two major geologic formations: porous rock 

reservoirs and salt caverns. Generally, the types of storage fields that will potentially be impacted by the 

Proposed Rule are porous rock reservoirs. Because many of the areas and geologic formations considered 

for GS will be in the same basins and may occur within or in close proximity to the same geologic strata, 

the State will need to monitor and evaluate natural gas storage sites and GS operations together, along 
6 

with other competing subsurface interests. The appropriate level of CO2 storage for an entire basin is not 

a question that can be adequately answered by a single company wishing to operate in a given basin. 

Spectra suggests that appropriate regulatory agencies in individual States be active participants with the 

EPA in the GS permitting process, to ensure appropriate State knowledge of local geology is considered

in a technical evaluation of the suitability of potential GS zones, and to develop and maintain basin-level 

studies of the subsurface in relation to CO2 GS. 

Further, there are already organizations established to develop these basin-level studies at a regional level. 

For example, the Department of Energy RCSPs, such as PCOR, are developing a CCS “atlas” which is 

essentially a CO2 storage estimate. These Partnerships would be in a position to help each State with

basin-level studies, using the RCSP atlas as a starting point. 

Additionally, under the Clean Energy Dialogue between the U.S. and Canada, the priorities include 

mapping of geological storage opportunities for CCS: 

Under the Clean Energy Dialogue, we recommend, as a top priority, the formation of a U.S.-

Canada CCS Collaboration. The Collaboration will engage Canadian and U.S. experts on CCS 

from the public and private sectors to share best practices and conduct joint activities. This effort 

will: 

• Expand existing collaboration in CO2 injection and storage testing, share information 

from large-scale CCS demonstration projects, and work together to map CO2 sources 

and geological storage opportunities; (Clean Energy Dialogue First Report to Leaders, 

Sept 16, 2009) 

D. Waiver Process should be available by an additional form at time of permitting rather than 

redundant submittal of information 

As discussed in our original comment submittal, Spectra recommends that EPA not arbitrarily preclude 

injection above the lowermost Underground Source of Drinking Water (USDW); the decision should be 

based on the geology of the area. Spectra believes that it is premature for the Agency to preclude the 

injection of CO2 into formations such as unmineable coal seams, depleted oil and gas reservoirs, zones in 

between or above USDWs, or other formations. As EPA points out, imposing such a limit may preclude 

the application of GS in areas such as the Williston and Powder River Basins in Wyoming and the 

Dakotas, where the lowermost USDW is located thousands of feet below the surface. In these cases, we 

agree with EPA that GS may still be appropriate and, therefore, the Director should have the discretion to 

make such determinations. Such determination must ultimately be made based on the protection of 

USDWs. 
7 

In the event that the Director is not given discretion to make such determinations, Spectra supports the 

concept of a waiver process to allow injection above the lowermost USDW; however, we recommend a 

simple process improvement. As proposed in the NODA, the supporting data required for the waiver 

application is virtually the same extensive information required for the full GS operation application; this 

creates an onerous process for both the regulatory agencies and the applicant. Therefore to prevent the 

proliferation of redundant material and hearings, yet still ensure the regulatory agency has adequate data 

on the proposal, we recommend the waiver be an additional form filed along with the initial GS 

application and not a separate application process. 

E. Waiver application should not require regional characterization of the entire basin 

As described above, performing basin-scale evaluations should be the responsibility of a government 

agency, not an individual company. Requiring a regional characterization of the entire basin only in those 

cases where the proposed injection is above the lowermost USDW is arbitrary and overly burdensome. 

F. States should be required to accept the waiver process unless they have primacy over the 

entire UIC Rule 

Allowing states to opt out of the waiver process creates additional regulatory uncertainty, which will

further slow the process of making CCS commercially viable. By requiring States to accept the waiver 

process, EPA is not authorizing injection above the lowermost USDW in all situations; even if a State 

accepts the waiver process, the responsible agencies still have the authority to decline a waiver request. 

Additionally, EPA should be thorough in reviewing State capabilities prior to granting States primacy 

over the Class VI well program because of the unique technical issues associated with GS. 

III. Comments on the need for a more comprehensive regulatory 

framework for issues beyond the scope of the SDWA requirements 

for Geologic Sequestration of CO2 

In the NODA, the Agency notes: 

EPA recognizes that a more comprehensive framework may be needed and that some 

stakeholders remain uncertain with respect to the potential applicability of other Federal 

environmental statutes such as the Clean Air Act, the Resource Conservation and Recovery Act, 

and the Comprehensive Environmental Response, Compensation, and Liability Act to various 

aspects of geologic sequestration of CO2. The Agency is currently evaluating the need for a more 

comprehensive regulatory framework to provide legal guidance regarding this emerging 

technology. (74 FR 44805) 
8 

Spectra strongly believes that a more comprehensive framework is needed and without one, commercialscale GS will not become viable in the U.S. 

A. RCRA Applicability Should be Addressed in the Proposed Rule 

In Spectra’s comments on the proposed UIC GS rule we noted a number of significant concerns about the 

potential applicability of Subtitle C requirements of RCRA to injection of CO2 from non-exempt 

processes and industries. CO2 re-injection from gas processing is currently exempt from Subtitle C 

requirements of RCRA. Spectra believes that RCRA’s waste regulatory regime is completely unnecessary 

and inappropriate for geologic sequestration of CO2. CO2 is not a pollutant, nor a solid waste, nor a

hazardous waste. Second, CO2 has been properly and safely injected and sequestered for decades in the

context of enhanced oil recovery (EoR), without the regulatory overlay of Subtitle C of RCRA. 

Therefore, Spectra urges EPA to utilize its authority under Subtitle C of RCRA to exempt CO2 from 

RCRA under its contingent management approach. Under this approach EPA may take into consideration 

the relative risks posed by different wastes (i.e., some wastes are by nature more toxic than others), the 

capacity for a waste to breakdown and thus become less toxic in the environment (i.e., some wastes 

degrade faster than others), how long it takes a waste to degrade, and the potential for human exposure 

and accumulation in tissue. The application of these criteria to CO2 weigh in the favor of exempting CO2 

injection and disposal from hazardous waste regulations. 

Given the minimal risks from properly managed CO2 pursuant to SDWA’s authority, EPA should exempt 

CO2 streams entirely from RCRA hazardous waste regulations or, alternatively, establish a “safe harbor” 

for the injection of CO2, including impurities, by clarifying minimum performance standards or testing

requirements. Due to the nature of the emissions captured, the injectate may include significant levels of 

impurities. The concept of a blanket exemption is fully consistent with the Agency’s “contingent 

management” approach under RCRA, whereby certain low-risk wastes are exempted entirely from RCRA 

Subtitle C regulations. See EPA’s Contingent Management Technical Background Document, October 

29, 1999. 

Further argument for a RCRA exemption, and consistent with the concept of contingent management, is 

the fact that Congress exempted certain wastes from regulation under Subtitle C of RCRA. In 1980, 

when Congress amended the Solid Waste Management Act, it opted to temporarily exempt certain highvolume low toxicity wastes from the Subtitle C hazardous waste regulatory scheme, including, among 
9 

others, “fly ash waste, bottom ash waste, slag waste and flue gas emission control waste generated 

primarily from the combustion of coal or other fossil fuels” (hereafter referred to as “FFC” wastes) 42 

U.S.C. § 6921(b)(3)(A)(i). 

 

EPA ultimately made the determination that more stringent regulations were not necessary or desirable. 

Based on a plain language reading of the Bevill Amendment, it appears that CO2 falls within the scope of 

the exemption as a flue gas emission control waste. Similar to FFC wastes, CO2 are a high-volume low 

toxicity waste when properly managed in underground formations. Therefore, we believe the Bevill 

Amendment presents the Agency with another viable option for exempting CO2 from Subtitle C. 

B. EPA Must Minimize the Liability Regime under CERCLA for GS to the Fullest Extent of 

Its Authority 

The potential application of the sweeping liability regime under the Comprehensive, Environmental 

Response, Compensation, and Liability Act of 1980 (“CERCLA”) will have an absolute chilling effect on 

the underground injection of CO2. The threat of CERCLA litigation and the potential liability to a GS 

owner or operator is alone significant and could seriously discourage the siting and construction of a GS 

operation. Under CERCLA’s strict liability regime, an owner or operator may be held jointly and 

severally liable for response costs related to any release or potential release of a hazardous substance from 

a facility. In addition to federal and state enforcement actions, CERCLA also authorizes private parties to 

seek remediation costs from an owner/operator who is alleged to have caused an actionable release under 

CERCLA. 

Therefore, given the extensive size of the CO2 plume, covering tens of square miles, a private landowner 

within the AoR and whose property is situated above the CO2 plume could potentially assert a CERCLA 

claim against an owner/operator of a GS operation. Consequently, we believe the Agency must seek to 

establish a “safe harbor” for those engaged in GS operations. Such safe harbor must include the CO2 and 

any impurities by clarifying minimum performance standards, employed technologies, or testing 

requirements, which if used, will exempt subsurface releases from CERCLA liability. 

EPA has the authority and discretion to interpret and further clarify the scope and extent of the “federally 

permitted release” exemption to GS injection. The language used for the UIC Exemption does not 

specifically limit the exemption to compliance with or the terms identified in an enforceable permit; 

rather, the UIC Exemption uses a much broader phrase “authorized under.” Under the plain language of 

this UIC Exemption, the Agency has the authority to define more broadly (whether pursuant to a permit 
10 

or outside the context of a permit) what fluids and releases are authorized by either the federal or state 

UIC program. 

It is unambiguous from the plain text of the statute that Congress intended that releases authorized under 

the SDWA UIC program not be subject to CERCLA liability. It is also clear that the Agency has broad 

authority to clarify what releases should be covered under the GS Rule. Therefore, the Agency need not

wait for the issuance of permits to decide on a case-by-case basis what is an appropriate or inappropriate 

release. EPA should make clear that all fluids injected pursuant to an authorized program or an approved 

permit will not give rise to CERCLA liability where the release occurs in and effects only subsurface 

formations and is geologically contained. 

Conclusion 

The promise of GS as a strategy to address climate change and promote national energy security hinges 

on resolving regulatory uncertainty in a way that protects and the public and the environment without 

placing an unreasonable burden on site owners and operators that would effectively prevent the 

development of commercial-scale CCS projects in the United States. Existing market dynamics and 

economic realities must be considered in the process to address the regulatory uncertainty surrounding

post-injection site care, financial assurance, and long-term liability. This issue effectively boils down to 

four overarching questions confronting entities involved in the capture, transport, injection, and storage of 

CO2: (1) length of the post-injection site care time period; (2) aspects of post-injection site care for which 

entities will be responsible; (3) availability and suitability of different risk management instruments for 

meeting financial assurance requirements; and (4) permanent transfer of all liability to the State, as no 

company can or will accept indefinite long term liability. 

EPA’s proposed waiver process for injection below the lowermost USDW is sound in principle but needs 

revisions. First, the waiver application should be submitted as an additional form with the initial GS 

scheme application and should not require a separate application process with redundant data submittal. 

Second, the waiver applications should not require the operator to complete a basin-level study but rather 

demonstrate no impact on existing adjacent subsurface operations such as gas storage, production and 

geologic sequestration. Third, States should not be able to opt out of the waiver process unless they have 

primacy for entire UIC program. 
11 

Spectra appreciates the opportunity to submit these comments in response to the Agency’s Notice of Data 

Availability and Request for Comment. 74 Fed. Reg. 43491 (August 31, 2009) supplementing the 

proposed Federal Requirements Under the Underground Injection Control Program for Carbon Dioxide 

Geologic Sequestration Wells. We would welcome the opportunity to visit with you and your staff to 

further discuss our comments and suggestions for a viable GS Rule. Please do not hesitate to contact me 

at 713-627-5944 or blmetzger@spectraenergy.com if the Agency has any questions or seeks further 

clarification. 

Sincerely, 

Brianne Metzger-Doran 

Climate Change Policy Manager 

Spectra Energy Corp 
Letter ID: 0385  

Commenter: Brianne Metzger‐Doran  

Organization: Spectra Energy Corp  

Letter ID: 0385 Comment ID: 28144 Letter Lines: 134 to 161  

Comment Code: 5700 5.14. Comments on Other Aspects of the Proposed Rule  

Comment: II. Comments on the GS studies and interim information summarized in the Notice  

A. For CCS to be viable, GS requirements must be flexible and tailored to site‐  

specific needs  

Under the Proposed Rule, EPA has adopted an approach specifically tailored to  

the unique characteristics of CO2 deepwell injection. While we generally support  

the Agency’s decision not to be overly prescriptive in the development of the GS  

requirements, certain portions of the technical requirements appear to be  

excessive and unreasonable and will result in higher operational costs without  

meaningful benefits. For example, although certain monitoring technologies are  

utilized in various Regional Carbon Sequestration Partnership (RCSP) Pilot  

Projects (described in Section B of the current NODA), such technologies as  

time‐lapse 3D seismic may not be appropriate, reasonable, or cost‐effective for  

all GS full‐scale projects. Further, the RCSP pilot projects are employing and  

evaluating numerous technologies as part of their research. It is not yet clear  

which of these technologies will be of the most value; assuming all of these are  

to be employed for GS projects is misleading.  

In the promulgation of the Final Rule, we encourage EPA to continue to build  

upon the concept of flexibility, reduce the amount of unnecessary and costly  

requirements, and, in certain cases, provide greater discretion to the States in  

deciding the technical specifications applicable to siting, well construction,  

and monitoring. State‐level oversight and regulation of well design,  

construction, and operations provides the opportunity for local and site‐  

specific geologic or geographic issues to be addressed that might otherwise be  

absent or inapplicable to another State or area.  

Individual Response: EPA agrees with the commenter that states should be allowed to obtain primacy

for Class VI wells independently of other well classes. 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. For additional information on

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

Other portions of this comment pertain to EPA’s proposed GS rule (73 FR 43492) and are outside the

scope of the Notice of Data Availability. Please see responses to comments on the proposed rule for

EPA’s response to similar comments.  

Letter ID: 0385 Comment ID: 28145 Letter Lines: 163 to 188  

Comment Code: 2100 2.1 DOE Regional Carbon Sequestration Partnership Projects  

Comment Code: 5700 5.14. Comments on Other Aspects of the Proposed Rule  

Comment: B. Significant work is still ongoing at the pilot stage for GS  

As a member of the Plains CO2 Reduction (PCOR) Partnership and the sponsor of a  

Phase III pilot project, Spectra Energy is actively involved in the development  

of new data from pilot efforts in GS. As EPA notes in the NOPR,  

EPA received comments from stakeholders requesting that additional data  

be made available to the public before a final rulemaking (particularly  

related to specific areas of GS) and indicating that more research is  

needed to support GS in general. Many commenters suggested that  

supplementary research on GS is necessary prior to rule promulgation and  

that EPA should wait until the Department of Energy (DOE)‐sponsored  

Phase II and Phase III pilot projects are complete before finalizing the  

GS rule. Others believed that a final rulemaking should proceed and that  

new information and data from ongoing GS research should be considered  

and incorporated over time as part of an adaptive rulemaking process.  

(74 FR 44805)  

In accordance with such, we note that EPA acknowledged that it received many  

comments suggesting that promulgation of this rule should be postponed until the  

DOE‐sponsored Phase II and Phase III projects are complete. It is Spectra’s  

understanding that the summaries for Phase II projects are due to the DOE by  

December 31, 2009. The actual data and results from these Phase II projects  
could provide significant value as EPA proceeds with development of this Rule.  

As such, given the short timeframe, Spectra recommends that EPA postpone final  

promulgation of the GS Rule until it has reviewed those Phase II reports.  

Individual Response: The Phase II RCSP projects are due to be completed soon and EPA plans to monitor

those projects and others. However, EPA does not plan on delaying implementation of the rule in order

to obtain results of these or other studies. EPA is implementing an adaptive approach to the rule in

order to best incorporate ongoing research while still affording protection to USDWs from

endangerment on a nationally consistent and early basis. EPA plans, every six years, to collect and

review data on GS projects to determine whether the appropriate amount and types of information and

appropriate documentation are being collected, and to determine if modifications to the requirements

are appropriate or necessary.  

Letter ID: 0385 Comment ID: 28146 Letter Lines: 190 to 253  

Comment Code: 2220 2.2.2. Basin‐Scale Hydrologic Impacts of CO2 Storage (seeking comment)  

Comment: C. Basin scale evaluations should be a governmental responsibility, not an  

individual company responsibility  

"EPA believes that the example studied by LBNL illustrates the importance of  

basin‐scale evaluation of reservoir pressures and far‐field pressures resulting  

from CO2 injection. EPA requests comment on this study and welcomes additional  

studies that provide information on the need for basin‐scale evaluations for GS  

injection." (74 FR 44808)  

Spectra agrees that basin scale evaluations may be needed to ensure that there  

is adequate capacity in a given basin for all the geologic sequestration schemes  

in that basin. However, when the scope of an evaluation expands beyond the Area  

of Review (AoR) to be basin‐scale, it requires a significantly higher level of  

resources; to place this as the responsibility of any one company would be  

overly burdensome. To ensure consistency and protect drinking water and  

subsurface assets, Spectra believes basin‐scale evaluations should be a  

governmental responsibility; Spectra supports the development of these  

evaluations by the State(s), regional partnerships, and/or trans‐border  

partnerships.  

Just as States maintain oversight of drinking water reservoirs and regulate oil  

and gas wells and storage facilities, States should retain the responsibility  

for maintaining overall assessments of the subsurface on a basin‐ wide scale,  
including sequestration sites. Individual States have a critical role in  

protecting and regulating the competing economic interests involved in utilizing  

the subsurface, not only for sequestration but also for natural gas storage, oil  

and gas production, mineral extraction, and other subsurface activities. Many  

State oil and gas regulations specify well siting or construction requirements  

for any wells that are drilled within a gas storage area or penetrate the  

storage horizon; this should be the same for geologic sequestration sites.  

Within the U.S., natural gas storage is generally located in two major geologic  

formations: porous rock reservoirs and salt caverns. Generally, the types of  

storage fields that will potentially be impacted by the Proposed Rule are porous  

rock reservoirs. Because many of the areas and geologic formations considered  

for GS will be in the same basins and may occur within or in close proximity to  

the same geologic strata, the State will need to monitor and evaluate natural  

gas storage sites and GS operations together, along with other competing  

subsurface interests. The appropriate level of CO2 storage for an entire basin  

is not a question that can be adequately answered by a single company wishing to  

operate in a given basin. Spectra suggests that appropriate regulatory agencies  

in individual States be active participants with the EPA in the GS permitting  

process, to ensure appropriate State knowledge of local geology is considered in  

a technical evaluation of the suitability of potential GS zones, and to develop  

and maintain basin‐level studies of the subsurface in relation to CO2 GS.  

Further, there are already organizations established to develop these basin‐  

level studies at a regional level. For example, the Department of Energy RCSPs,  

such as PCOR, are developing a CCS "atlas" which is essentially a CO2 storage  

estimate. These Partnerships would be in a position to help each State with  

basin‐level studies, using the RCSP atlas as a starting point.  

Additionally, under the Clean Energy Dialogue between the U.S. and Canada, the  

priorities include mapping of geological storage opportunities for CCS:  

Under the Clean Energy Dialogue, we recommend, as a top priority, the formation  

of a U.S.‐ Canada CCS Collaboration. The Collaboration will engage Canadian and  

U.S. experts on CCS from the public and private sectors to share best practices  

and conduct joint activities. This effort will:  

‐ Expand existing collaboration in CO2 injection and storage testing,  

share information from large‐scale CCS demonstration projects, and work  

together to map CO2 sources and geological storage opportunities; (Clean  

Energy Dialogue First Report to Leaders, Sept 16, 2009)  
Individual Response: The final GS rule focuses on permitting of individual GS wells and therefore does

not include requirements for basin‐scale evaluations. However, EPA agrees that proactive management

of basin scale concerns to maintain pressures within acceptable ranges is important, and encourages

owners or operators and permitting authorities to communicate planned GS activities to maximize

coordination and minimize pressure interference. If a permit applicant (or the permitting authority) is

aware of pending GS projects near a proposed well, the AoR delineation performed pursuant to 146.84

should account for the impacts of multiple owners and operators injecting within a single basin. EPA

anticipates that, where multiple operators are involved, the Director would not approve modeling that

does not account for changes that may result from all injection operations. The proximity of injection

sites to each other and the relative timing of each injection operation might indicate a possible increase

in risk for the containment of the total CO2 and/or the effects of hydraulic perturbations and brine

displacement.  

EPA adds that if any new GS projects are permitted within the AoR of a GS project between AoR

evaluations, the AoR reevaluation would need to address such projects. EPA also expects that the

permitting of the newer GS project would have considered the presence of an existing GS project. For

additional information regarding EPA’s requirements for AoR delineation for GS projects, see the

responses to comments on the proposed rule in the rulemaking docket.

EPA recognizes that inter‐state and even international cooperation may be necessary where multiple

injection operations may interact, but has no plans or authority to develop a basin‐wide regulatory

process. EPA adds that the GS rule, at §146.82(b), requires that the Director notify representatives of all

states, tribes, and territories in the AoR to inform them of the permit application and offer them an

opportunity to be involved in any relevant activities, such as development of the required project‐

specific plans. The Agency will work with the appropriate entities to facilitate communication among

States and Tribes interested in obtaining Primacy during the implementation phase of the GS regulation.  

Letter ID: 0385 Comment ID: 28147 Letter Lines: 270 to 280  

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

(seeking comment)  

Comment: In the event that the Director is not given discretion to make such  

determinations, Spectra supports the concept of a waiver process to allow  

injection above the lowermost USDW; however, we recommend a simple process  

improvement. As proposed in the NODA, the supporting data required for the  

waiver application is virtually the same extensive information required for the  

full GS operation application; this creates an onerous process for both the  

regulatory agencies and the applicant. Therefore to prevent the proliferation of  

redundant material and hearings, yet still ensure the regulatory agency has  
adequate data on the proposal, we recommend the waiver be an additional form  

filed along with the initial GS application and not a separate application  

process.  

Individual Response: EPA agrees that it is appropriate to consider and evaluate the waiver application in

concert with the UIC permit application, and not under a separate process. For this reason, the final

requirements at §146.95 create an application and review process for GS injection depth waivers that is

integrated with the UIC permit application process while ensuring that the proposed project is

considered in the context of the presence of USDWs above and below the injection zone and potential

impacts on water systems.

For example, rather than submit a separate waiver application, owners or operators seeking waivers

must provide a supplemental report (the GS Class VI injection depth waiver application report)

referenced at §146.82(d) and outlined at §146.95(a) with additional, site‐specific information relevant to

operation under an injection depth waiver. This report, suggested by commenters, is designed to ensure

that all waiver information is discrete (from the permit application) and can be made available to the

Director, PWSS Directors, and the public when the waiver is publicly noticed. The UIC permit application

and waiver application would be reviewed together. If the permitting authority receives comments on

the injection depth waiver during the public comment period for both the waiver and the permit

application, the Director in consultation with the Regional Administrator, must evaluate comments prior

to providing a recommendation to the Regional Administrator regarding a waiver and issuing the Class

VI permit. The Agency believes that this report and requirements at §146.95 are complementary and not

redundant of the Class VI permit application requirements. Furthermore, to eliminate concerns about

duplication or redundancy, the requirements at §146.82(d) clarify that the supplemental report is not

part of the permit application.

In addition, the public notification process for the waiver must occur concurrently with the UIC permit

notification to ensure that all necessary information is disclosed to the public for notice and comment

and that the public understands that the site, if permitted, would be operating under a waiver from the

injection depth requirements as specified in §146.95(c). EPA believes these requirements balance USDW

protection and disclosure of PWSS information with the GS permit application process requirements.  

Letter ID: 0385 Comment ID: 28148 Letter Lines: 282 to 289  

Comment Code: 3240 3.2.4. Comments that the Approach Requests Too Much Data (seeking comment)  

Comment Code: 3310 3.3.1. Site Characterization  

Comment: E. Waiver application should not require regional characterization of the entire  

basin  
As described above, performing basin‐scale evaluations should be the  

responsibility of a government agency, not an individual company. Requiring a  

regional characterization of the entire basin only in those cases where the  

proposed injection is above the lowermost USDW is arbitrary and overly  

burdensome.  

Individual Response: The final GS rule focuses on permitting of individual GS wells and therefore does

not include requirements for basin‐scale evaluations. However, EPA agrees that proactive management

of basin scale concerns to maintain pressures within acceptable ranges is important and encourages

owners or operators and permitting authorities to communicate planned GS activities to maximize

coordination and minimize pressure interference. The Agency acknowledges that basin scale

assessments are currently commonly conducted for other purposes including oil and gas production.  

EPA believes that the information required to obtain a waiver is necessary to ensure that the owner or

operator collects information and demonstrates to the Director that the injection zone is suitable for GS,

is confined by confining units above and below the injection zone, and that well construction, operation,

and monitoring are tailored for the site and take into consideration the presence of USDWs above and

below the injection zone.  

Letter ID: 0385 Comment ID: 28149 Letter Lines: 291 to 303  

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

Comment: F. States should be required to accept the waiver process unless they have  

primacy over the entire UIC Rule  

Allowing states to opt out of the waiver process creates additional regulatory  

uncertainty, which will further slow the process of making CCS commercially  

viable. By requiring States to accept the waiver process, EPA is not authorizing  

injection above the lowermost USDW in all situations; even if a State accepts  

the waiver process, the responsible agencies still have the authority to decline  

a waiver request.  

Additionally, EPA should be thorough in reviewing State capabilities prior to  

granting States primacy over the Class VI well program because of the unique  

technical issues associated with GS.  

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

individual UIC programs. Therefore, States, Territories, and Tribes seeking primacy for Class VI wells are
not required to provide for injection depth waivers in their UIC regulations and may choose not to make

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

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

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

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

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

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

USDWs. The final approach for injection depth waivers represents minimum Federal requirements. UIC

program Directors may adopt GS requirements that do not allow injection above or between USDWs if

they determine this to be appropriate (for conditions in their State, territory, Tribe, or Region) and

protective. EPA also clarifies that states choosing to adopt the waiver would include this as part of their

Class VI primacy application.  

Letter ID: 0385 Comment ID: 28150 Letter Lines: 305 to 321  

Comment Code: 1100 1.1 Comments on the Comprehensive Approach  

Comment: III. Comments on the need for a more comprehensive regulatory framework for  

issues beyond the scope of the SDWA requirements for Geologic Sequestration of  

CO2  

In the NODA, the Agency notes:  

EPA recognizes that a more comprehensive framework may be needed and  

that some stakeholders remain uncertain with respect to the potential  

applicability of other Federal environmental statutes such as the Clean  

Air Act, the Resource Conservation and Recovery Act, and the  

Comprehensive Environmental Response, Compensation, and Liability Act to  

various aspects of geologic sequestration of CO2. The Agency is  

currently evaluating the need for a more comprehensive regulatory  

framework to provide legal guidance regarding this emerging technology.  

(74 FR 44805)  

Spectra strongly believes that a more comprehensive framework is needed and  

without one, commercial‐scale GS will not become viable in the U.S.  

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: 0385 Comment ID: 28151 Letter Lines: 323 to 416  

Comment Code: 1100 1.1 Comments on the Comprehensive Approach  

Comment: A. RCRA Applicability Should be Addressed in the Proposed Rule  

In Spectra’s comments on the proposed UIC GS rule we noted a number of  

significant concerns about the potential applicability of Subtitle C  

requirements of RCRA to injection of CO2 from non‐exempt processes and  

industries. CO2 re‐injection from gas processing is currently exempt from  

Subtitle C requirements of RCRA. Spectra believes that RCRA’s waste regulatory  

regime is completely unnecessary and inappropriate for geologic sequestration of  

CO2. CO2 is not a pollutant, nor a solid waste, nor a hazardous waste. Second,  

CO2 has been properly and safely injected and sequestered for decades in the  

context of enhanced oil recovery (EoR), without the regulatory overlay of  

Subtitle C of RCRA.  

Therefore, Spectra urges EPA to utilize its authority under Subtitle C of RCRA  

to exempt CO2 from RCRA under its contingent management approach. Under this  

approach EPA may take into consideration the relative risks posed by different  

wastes (i.e., some wastes are by nature more toxic than others), the capacity  

for a waste to breakdown and thus become less toxic in the environment (i.e.,  

some wastes degrade faster than others), how long it takes a waste to degrade,  

and the potential for human exposure and accumulation in tissue. The application  

of these criteria to CO2 weigh in the favor of exempting CO2 injection and  

disposal from hazardous waste regulations.  

Given the minimal risks from properly managed CO2 pursuant to SDWA’s authority,  

EPA should exempt CO2 streams entirely from RCRA hazardous waste regulations or,  

alternatively, establish a "safe harbor" for the injection of CO2, including  

impurities, by clarifying minimum performance standards or testing requirements.  
Due to the nature of the emissions captured, the injectate may include  

significant levels of impurities. The concept of a blanket exemption is fully  

consistent with the Agency’s "contingent management' approach under RCRA,  

whereby certain low‐risk wastes are exempted entirely from RCRA Subtitle C  

regulations. See EPA’s Contingent Management Technical Background Document,  

October 29, 1999.  

Further argument for a RCRA exemption, and consistent with the concept of  

contingent management, is the fact that Congress exempted certain wastes from  

regulation under Subtitle C of RCRA. In 1980, when Congress amended the Solid  

Waste Management Act, it opted to temporarily exempt certain high‐volume low  

toxicity wastes from the Subtitle C hazardous waste regulatory scheme,  

including, among others, "fly ash waste, bottom ash waste, slag waste and flue  

gas emission control waste generated primarily from the combustion of coal or  

other fossil fuels" (hereafter referred to as "FFC' wastes) 42 U.S.C. § 6921(b)  

(3)(A)(i).  

EPA ultimately made the determination that more stringent regulations were not  

necessary or desirable. Based on a plain language reading of the Bevill  

Amendment, it appears that CO2 falls within the scope of the exemption as a flue  

gas emission control waste. Similar to FFC wastes, CO2 are a high‐volume low  

toxicity waste when properly managed in underground formations. Therefore, we  

believe the Bevill Amendment presents the Agency with another viable option for  

exempting CO2 from Subtitle C.  

B. EPA Must Minimize the Liability Regime under CERCLA for GS to the Fullest  

Extent of Its Authority  

The potential application of the sweeping liability regime under the  

Comprehensive, Environmental Response, Compensation, and Liability Act of 1980  

("CERCLA") will have an absolute chilling effect on the underground injection of  

CO2. The threat of CERCLA litigation and the potential liability to a GS owner  

or operator is alone significant and could seriously discourage the siting and  

construction of a GS operation. Under CERCLA’s strict liability regime, an owner  

or operator may be held jointly and severally liable for response costs related  

to any release or potential release of a hazardous substance from a facility. In  

addition to federal and state enforcement actions, CERCLA also authorizes  

private parties to seek remediation costs from an owner/operator who is alleged  

to have caused an actionable release under CERCLA.  

Therefore, given the extensive size of the CO2 plume, covering tens of square  

miles, a private landowner within the AoR and whose property is situated above  
the CO2 plume could potentially assert a CERCLA claim against an owner/operator  

of a GS operation. Consequently, we believe the Agency must seek to establish a  

"safe harbor" for those engaged in GS operations. Such safe harbor must include  

the CO2 and any impurities by clarifying minimum performance standards, employed  

technologies, or testing requirements, which if used, will exempt subsurface  

releases from CERCLA liability.  

EPA has the authority and discretion to interpret and further clarify the scope  

and extent of the "federally permitted release" exemption to GS injection. The  

language used for the UIC Exemption does not specifically limit the exemption to  

compliance with or the terms identified in an enforceable permit; rather, the  

UIC Exemption uses a much broader phrase "authorized under." Under the plain  

language of this UIC Exemption, the Agency has the authority to define more  

broadly (whether pursuant to a permit or outside the context of a permit) what  

fluids and releases are authorized by either the federal or state UIC program.  

It is unambiguous from the plain text of the statute that Congress intended that  

releases authorized under the SDWA UIC program not be subject to CERCLA  

liability. It is also clear that the Agency has broad authority to clarify what  

releases should be covered under the GS Rule. Therefore, the Agency need not  

wait for the issuance of permits to decide on a case‐by‐case basis what is an  

appropriate or inappropriate release. EPA should make clear that all fluids  

injected pursuant to an authorized program or an approved permit will not give  

rise to CERCLA liability where the release occurs in and effects only subsurface  

formations and is geologically contained.  

Individual Response: Regarding RCRA, the final GS rule requires owners or operators to characterize

their CO2 stream as part of their permit application process to determine whether the injectate is a

RCRA hazardous waste. If the CO2 stream is determined to be a hazardous waste, injection may only

occur in a Class I hazardous waste injection well. Additionally, EPA clarifies that a determination as to

whether the presence of hazardous substances in CO2 results 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).  

For additional information, see the preamble to the final rule and the responses to comments on the

proposed GS rule.  

Letter ID: 0385 Comment ID: 28152 Letter Lines: 418 to 434  

Comment Code: 1000 1. General Comments on the Notice of Data Availability  
Comment: Conclusion  

The promise of GS as a strategy to address climate change and promote national  

energy security hinges on resolving regulatory uncertainty in a way that  

protects and the public and the environment without placing an unreasonable  

burden on site owners and operators that would effectively prevent the  

development of commercial‐scale CCS projects in the United States. Existing  

market dynamics and economic realities must be considered in the process to  

address the regulatory uncertainty surrounding post‐injection site care,  

financial assurance, and long‐term liability. This issue effectively boils down  

to four overarching questions confronting entities involved in the capture,  

transport, injection, and storage of CO2: (1) length of the post‐injection site  

care time period; (2) aspects of post‐injection site care for which entities  

will be responsible; (3) availability and suitability of different risk  

management instruments for meeting financial assurance requirements; and (4)  

permanent transfer of all liability to the State, as no company can or will  

accept indefinite long term liability.  

Individual Response: EPA clarifies that the purpose of the GS rule is to ensure that where GS technology

is deployed, it is done in a manner that is protective of USDWs. Under the authority of the SDWA, the

rule does not promote specific technologies, nor does it address climate change or promote specific

national energy security initiatives. For additional responses related to the post‐injection site care time

frame; responsibilities related to aspects of post‐injection site care; availability and suitability risk

management instruments for meeting financial assurance requirements; and permanent transfer of

liability to the State, see the responses to comments on the proposed rule in the rulemaking docket.  

Letter ID: 0385 Comment ID: 28153 Letter Lines: 436 to 437  

Comment Code: 3210 3.2.1. Comments Generally in Support of the Approach  

Comment: EPA’s proposed waiver process for injection below the lowermost USDW is sound in  

principle but needs revisions. First, the waiver application should be submitted  

Individual Response: EPA acknowledges the commenter's support of the waiver approach and site‐

specific flexibility in regulatory development and permitting as described in the NODA and Request for

Comment. The Agency acknowledges that there are some situations where injection into non‐USDW

formations above the lowermost USDW can be performed in a manner that protects USDWs. The final

GS rule at §146.95 establishes a process by which owners and operators can seek a waiver of the Class

VI injection depth requirements. The Agency believes the waiver approach: 1) responds to concerns
about local and regional geologic storage capacity limitations imposed by the proposed injection depth

requirements; 2) allows for a more site‐specific assessment of injection depth for GS projects; 3)

accommodates injection into different formation types; 4) allows for injection of CO2 for GS into non‐

USDWs above and/or between USDWs when appropriate and where it can be demonstrated that

USDWs will be protected; and 5) responds to concerns about the use of aquifer exemptions for GS.

Finally, EPA's approach to addressing injection depth variability through a waiver process responds to

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

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

Letter ID: 0385 Comment ID: 28400 Letter Lines: 257 to 268  

Comment Code: 3410 3.4.1. Applicability of Waiver Process to Deep Saline and Other Types of

Formations (seeking comment)  

Comment: As discussed in our original comment submittal, Spectra recommends that EPA not  

arbitrarily preclude injection above the lowermost Underground Source of  

Drinking Water (USDW); the decision should be based on the geology of the area.  

Spectra believes that it is premature for the Agency to preclude the injection  

of CO2 into formations such as unmineable coal seams, depleted oil and gas  

reservoirs, zones in between or above USDWs, or other formations. As EPA points  

out, imposing such a limit may preclude the application of GS in areas such as  

the Williston and Powder River Basins in Wyoming and the Dakotas, where the  

lowermost USDW is located thousands of feet below the surface. In these cases,  

we agree with EPA that GS may still be appropriate and, therefore, the Director  

should have the discretion to make such determinations. Such determination must  

ultimately be made based on the protection of USDWs.  

Individual Response: EPA agrees and clarifies that the GS rule does not categorically preclude or

prohibit injection into any type of formation. EPA believes that the requirements that allow owners or

operators to seek waivers from the injection depth requirements at §146.95, along with proper siting,

well construction, operation, monitoring, and post‐injection site care pursuant to the GS rule

requirements will ensure USDW protection.

EPA recognizes that some types of formations, such as coal seams and basalts, are typically shallow and

above the lowermost USDW. The Agency expects that injection for GS into these shallow formations can

be issued waivers and permitted as Class VI wells, provided their owners or operators can meet all of the

requirements at §146.95 and demonstrate that such injection can be performed in a manner that

protects USDWs.  
EPA adds that wells used to inject into these formations types or other formation types (e.g., salt domes

and shales) for experimental purposes would be permitted as Class V experimental technology wells.  

Letter ID: 0385 Comment ID: 28573 Letter Lines: 437 to 439  

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

(seeking comment)  

Comment: principle but needs revisions. First, the waiver application should be submitted  

as an additional form with the initial GS scheme application and should not  

require a separate application process with redundant data submittal. Second,  

Individual Response: EPA agrees that it is appropriate to consider and evaluate the waiver application in

concert with the UIC permit application, and not under a separate process. For this reason, the final

requirements at §146.95 create an application and review process for GS injection depth waivers that is

integrated with the UIC permit application process while ensuring that the proposed project is

considered in the context of the presence of USDWs above and below the injection zone and potential

impacts on water systems.

For example, rather than submit a separate waiver application, owners or operators seeking waivers

must provide a supplemental report (the GS Class VI injection depth waiver application report)

referenced at §146.82(d) and outlined at §146.95(a) with additional, site‐specific information relevant to

operation under an injection depth waiver. This report, suggested by commenters, is designed to ensure

that all waiver information is discrete (from the permit application) and can be made available to the

Director, PWSS Directors, and the public when the waiver is publicly noticed. The UIC permit application

and waiver application would be reviewed together. If the permitting authority receives comments on

the injection depth waiver during the public comment period for both the waiver and the permit

application, the Director in consultation with the Regional Administrator, must evaluate comments prior

to providing a recommendation to the Regional Administrator regarding a waiver and issuing the Class

VI permit. The Agency believes that this report and requirements at §146.95 are complementary and not

redundant of the Class VI permit application requirements. Furthermore, to eliminate concerns about

duplication or redundancy, the requirements at §146.82(d) clarify that the supplemental report is not

part of the permit application.

In addition, the public notification process for the waiver must occur concurrently with the UIC permit

notification to ensure that all necessary information is disclosed to the public for notice and comment

and that the public understands that the site, if permitted, would be operating under a waiver from the

injection depth requirements as specified in §146.95(c). EPA believes these requirements balance USDW

protection and disclosure of PWSS information with the GS permit application process requirements.  
Letter ID: 0385 Comment ID: 28574 Letter Lines: 439 to 442  

Comment Code: 3310 3.3.1. Site Characterization  

Comment: require a separate application process with redundant data submittal. Second,  

the waiver applications should not require the operator to complete a basin‐  

level study but rather demonstrate no impact on existing adjacent subsurface  

operations such as gas storage, production and geologic sequestration. Third,  

Individual Response: The final GS rule focuses on permitting of individual GS wells and therefore does

not include requirements for basin‐scale evaluations. However, EPA agrees that proactive management

of basin scale concerns to maintain pressures within acceptable ranges is important and encourages

owners or operators and permitting authorities to communicate planned GS activities to maximize

coordination and minimize pressure interference. The Agency acknowledges that basin scale

assessments are currently commonly conducted for other purposes including oil and gas production.  

Letter ID: 0385 Comment ID: 28575 Letter Lines: 442 to 444  

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

Comment: operations such as gas storage, production and geologic sequestration. Third,  

States should not be able to opt out of the waiver process unless they have  

primacy for entire UIC program.  

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

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

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

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

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

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

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

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

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

USDWs. The final approach for injection depth waivers represents minimum Federal requirements. UIC

program Directors may adopt GS requirements that do not allow injection above or between USDWs if

they determine this to be appropriate (for conditions in their State, territory, Tribe, or Region) and

protective. EPA also clarifies that states choosing to adopt the waiver would include this as part of their

Class VI primacy application.