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.
Western Business Roundtable | 200 Union Blvd., #105 | Lakewood, CO 80228 | 303-384-9911 

info@westernroundtable.com | www.westernroundtable.com

The opinions expressed in this letter represent the views of a majority of Roundtable Members, but not necessarily all of our members. 

October 15, 2009 

Water Docket 

U.S. Environmental Protection Agency 

Mail Code: 4101T 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

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

Dear Sir/Madam: 

I am writing, on behalf of the multi-sector membership of the Western Business Roundtable (the 

“Roundtable”), in response to the Environmental Protection Agency’s (“EPA” or the “Agency”) 

request for public input regarding its recently released supplement to the proposed rulemaking to 

implement federal requirements under the Safe Drinking Water Act (“SDWA”) Underground 

Injection Control (“UIC”) Program for Carbon Dioxide (“CO2”) Geologic Sequestration Wells 

(74 Federal Register 44802, August 31, 2009 supplement to 73 Federal Register 43492, August 

28, 2008). 

The Western Business Roundtable is a broad-based coalition of companies doing business in the 

Western United States. Our members are engaged in a wide array of enterprises, including: 

manufacturing; retail energy sales; mining; electric power generation and transmission; energy 

infrastructure development; and oil and gas exploration, development, transportation and 

distribution. We work to defend the interests of the West and support policies that encourage 

economic growth and opportunity, freedom of enterprise and a common-sense, balanced 

approach to conservation and environmental stewardship. 

Most of our members are centrally involved in the development, transportation and processing of 

a wide variety of energy resources -- fossil, renewable and nuclear -- as well as the generation 

and distribution of electricity across the West and technologies that facilitate greater energy 

conservation and efficiency. Roundtable members also are on the cutting edge of technology 

development related to the management of CO2 emissions. 

The Roundtable strongly supports the aggressive research and development efforts underway to 

facilitate CO2 capture and sequestration (“CCS”) projects. Among the biggest impediments to 

commercial-scale CCS projects today is regulatory uncertainty. Meaningful investments in CCS 

will only occur in the presence of clear, carefully tailored regulatory constructs that help 

encourage early and robust development of projects and which aid in eliminating liability risk for 

such early action. 
Roundtable Comments –SDWA CCS Regulations -- August 2009 Supplement

 

Clearly, a viable large-scale commercial CCS program requires resolution of a broad range of 

technical, policy and legal questions, most of which are beyond the scope of this rulemaking. 

That said, we think the Agency’s efforts here are an important first step and will set the tone for 

how EPA, other federal and state regulatory bodies and the public will approach CCS going 

forward. 

ROUNDTABLE COMMENTS 

On July 25, 2008, EPA published the proposed rule ``Federal Requirements Under the 

Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic 

Sequestration (GS) Wells'' (73 FR 43492). The rule proposed a new class of injection well 

(Class VI), along with technical criteria for permitting geologic sequestration (GS) wells, 

including criteria for geologic site characterization, area of review (AoR) and corrective action, 

well construction, operation, mechanical integrity testing, monitoring, well plugging, postinjection site care and site closure. 

In August, 2009. EPA announced a proposed supplement to the 2008 proposal. We applaud 

EPA for its improvements to the rule in three main areas: 

 Added Flexibility to Site-Determinations for GS Injections of CO2: EPA initially 

proposed that the injection of CO2 be confined primarily to areas below the lowermost 

formation containing an underground source of drinking water (USDW). Such an 

approach would preclude injection of CO2 into zones between and above USDWs and 

would prohibit injection into shallow formations such as coal seams and basalts. 

In its August 31, 2009 supplement, EPA presents an alternative to the very rigid “onesize-fits-all” injection depth approach suggested in the initial rulemaking. Under the 

proposed alternative, the Agency would add a waiver process. As the Agency puts it: 

“The proposed Class VI injection depth requirements would remain 

unchanged but would allow an owner or operator seeking to inject above 

and/or between USDWs to apply for a waiver from the proposed injection 

depth requirements. The owner or operator would be required to 

demonstrate to regulatory authorities that such injection can be 

undertaken and completed in a manner that prevents fluid movement into 

overlying (and underlying) USDWs, thereby preventing the endangerment 

of public health from USDW contamination.”

We also support the Agency’s decision to remove explicit prohibitions against injection 

into specific formation types like basalts and/or coal seams. We agree with the Agency 

that all formations should be afforded equal treatment under the regulations. 
Roundtable Comments –SDWA CCS Regulations -- August 2009 Supplement

 

We appreciate EPA’s further refinement of this crucial issue. By allowing more areas to 

be considered for geologic sequestration, EPA is removing a very significant hurdle to 

the advancement of a viable commercial CO2 CCS program. It will begin to address 

some of the concerns we expressed in our original comments regarding the need for 

regulatory flexibility and the importance of site-specific assessments. 

 Drawing a Clear Distinction Between Class II and Class VI Activities: We 

are also pleased that the Agency has drawn a clear distinction between GS 

injections to be covered by this new Class VI category and activities covered by 

the existing Class II category. We believe EPA’s clarification is critically 

important to avoid confusion and/or impediments to existing CO2 uses, such as 

enhanced oil recovery (EOR), already covered under Class II of the UIC regime. 

 Making Clear States’ Role in Site Determinations/Technical Assessments: We 

appreciate EPA’s explicit nod to states’ expertise in grappling with the many and varied 

issues that will arise in the context of CO2 sequestration. We agree states should play the 

key role in assessing and making determinations on key technical issues such as 

appropriate injection depths of a given CO2 CCS project. We believe more needs to be 

done in this area (See our comments below.) 

ROUNDTABLE SUGGESTIONS 

1. Respect State Primacy on SDWA Permitting. We believe that the Agency should be 

explicit in providing a reasonable process whereby states can obtain primacy over regulation 

of Class VI (CCS) wells. Many states already administer SDWA programs and have long 

experience regulating CO2 injection through Class II EOR programs. Further, a number of 

states are moving ahead with developing their own initiatives and regulations to solve other 

issues associated with CCS -- incentives provisions and provisions clarifying the nature of 

potentially affected property rights as two examples. As the Agency itself notes in its 

supplement: 

“The Agency is aware that States are currently in various stages of developing statutory 

frameworks, regulations, workgroups, technical guidance, and strategies for addressing 

CCS and GS. Much of the expertise and infrastructure currently exists within State UIC 

Programs. These programs will form the foundation for managing GS wells. 

Additionally, States can use multiple authorities beyond those afforded under the SDWA 

and UIC regulations including 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.” 

Clearly, in determining state primacy, EPA will have to consider how to handle projects that 

span multiple states. We do not believe that issue to be insurmountable. Rules could 

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

other affected states provided an opportunity for notice and comment. 
Roundtable Comments –SDWA CCS Regulations -- August 2009 Supplement

 

Such regulatory clarity is critically important, not only to states, but also project proponents, 

interested in early investment in major CCS projects. 

2. Appropriately Characterize CO2. We strongly urge EPA to be very careful in its 

characterization of CO2 under the UIC program. As has been previously noted, a successful 

climate change control program will necessarily be predicated on development of -- and 

public support for -- CCS. EPA could inadvertently, and inappropriately, stigmatize CCS, if 

it veers into an unwarranted categorization of CO2 as a pollutant or a hazardous waste. Such 

suggestions would imply a liability risk that would chill further development of both CCS 

and EOR operations. 

3. Characterize Carefully Risks of the Geologic Sequestration of CO2. It is, of course, 

crucial that the final rule meet EPA’s objective of protecting drinking water supplies. We 

remain concerned, however, that some of the more prescriptive requirements being proposed 

for Class VI wells are not supported by findings of unique risks actually posed. EPA’s 

regulations should be based upon an accurate characterization of the potential risks posed by 

the GS of CO2 and be specifically tailored accordingly to address those identified risks. This 

will ensure that EPA meets its obligation to provide appropriate protection of underground 

sources of drinking water, while avoiding unnecessary regulations that may hamper CCS 

from going forward or call into question the general safety of CO2 storage. 

We still believe that the most efficient way to proceed is with a tiered set of site 

characterization requirements based on demonstrable and known site characteristics. For 

example, potential sites that are deep saline formations located one or more kilometers below 

the ground surface are generally recognized as among the most favorable and secure site 

options for assuring public safety. If such sites do not have USDW aquifer located between 

it and the ground surface above, a more streamlined regulatory site characterization and risk 

review may be appropriate. 

On the other hand, an example of a potential site that may require a more rigorous site 

characterization and risk assessment are “sole source aquifers” which are aquifers that are the 

sole supply of water for a region and are critically important to protect. We believe that 

EPA’s proposed standards, with the waiver process included , make sense in these sensitive 

areas. EPA should still allow the permiting of Class VI wells in more sensitive areas, if it 

can be shown that there are sufficient caps and protections to prevent the migration of CO2 in 

overlying aquifers, even in proximity to aquifers designated as sole source. An early 

detection monitoring program could be established to provide sufficient opportunity to 

mitigate any unlikely release of CO2 from geologic storage unit. 

Such a tiered approach would allow EPA to achieve some streamlining UIC regulations for 

site characterizations and permit UIC Class VI wells that first and foremost protect public 

safety, yet reflect a workable balance in adapting site characterization and risk assessments 

based on criteria adaptable to unique candidate sites. 
Roundtable Comments –SDWA CCS Regulations -- August 2009 Supplement

 

4. Avoid Over-Generalization in Regulations. We strongly urge EPA to avoid blanket 

prohibitions or arbitrary absolutes in the rule. We are concerned by the inclusion in the 

proposed regulations of default provisions that simply presume universal application. We 

believe that approach is problematic. It is too early to fully understand precisely which 

methods or technologies will ultimately prove optimal. 

As EPA itself has acknowledged, the geologic variability involved in different conceivable 

GS projects needs to be taken into account. We believe it needs to be factored into a whole 

range of issues ranging from site characterization, to area of review, to containment 

requirements. The regulations should encourage site-specific, performance-based 

determinations at the permitting stage to handle these important issues. 

EPA should leave the door open for a range of injection sites and methods (some of which 

are not yet fully understood), provided that the CCS project owner or operator can show that 

the injection and storage will be protective of drinking water supplies. 

5. Avoid Regulatory Creep. We are extremely concerned by arguments that the whole suite of 

environmental laws -- including the Comprehensive Environmental Response, 

Compensation, and Liability Act (“CERCLA”) and the Resource Conservation and Recovery 

Act (“RCRA”) -- be applied to CCS projects. 

These laws, if applied broadly to CCS, would 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. That would put 

advancement of CCS commercialization into a deep freeze. Such an outcome would clearly 

be counter-productive. Thus, we urge the Agency to pursue options that will limit CCS 

projects’ liability under CERCLA and RCRA. 

6. Put Limits on EPA Authority and Discretion. The Agency notes in its supplement that it 

is currently evaluating the need for a more comprehensive regulatory framework to provide 

legal guidance regarding emerging CCS technology. 

The Roundtable fully recognizes the difficulty EPA faces in establishing regulations for 

CCS. We fully support the notion that some level of discretion is necessary for the Agency 

to adjust to changes or new information that emerges as pilot projects move forward. Having 

said that, the balance here is a delicate one. Too much discretion can undermine the certainty 

that is so important to encourage CCS projects. Certainly, any discretion that is afforded 

should be bound by reasonable criteria. Equally important: EPA should adhere to its limited 

authority under the SDWA and not use this as an opportunity to seek to extend it. 

CONCLUSION 
Roundtable Comments –SDWA CCS Regulations -- August 2009 Supplement

 

On behalf of the many member organizations of the Western Business Roundtable, thank you for 

the opportunity to provide our input on this crucially important public policy issue, the 

implications of which are so important to the West. 

Sincerely, 

James Sims 

President & CEO 

Western Business Roundtable 

cc: 

White House Council on Environmental Quality 

Office of Management and Budget 

Senate Environment and Public Works Committee Members 

Senate Energy and Natural Resource Committee Members 

House Energy and Commerce Committee Members 

American Legislative Exchange Council 

Western House and Senate Delegations 

Western Governors 

Western Governors Association 

Western State Legislators 

Counsel of State Governments – West 
Letter ID: 0357  

Commenter: James P. Sims  

Organization: Western Business Roundtable  

Letter ID: 0357 Comment ID: 28219 Letter Lines: 58 to 64  

Comment Code: 5200 5.4. Comments on the Proposed Financial Responsibility Requirements (146.85)  

Comment: The Roundtable strongly supports the aggressive research and development efforts  

underway to facilitate CO2 capture and sequestration ("CCS") projects. Among  

the biggest impediments to commercial‐scale CCS projects today is regulatory  

uncertainty. Meaningful investments in CCS will only occur in the presence of  

clear, carefully tailored regulatory constructs that help encourage early and  

robust development of projects and which aid in eliminating liability risk for  

such early action.  

Individual Response: This comment pertains to EPA’s proposed GS rule (73 FR 43492) and is 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: 0357 Comment ID: 28220 Letter Lines: 66 to 70  

Comment Code: 1100 1.1 Comments on the Comprehensive Approach  

Comment: Clearly, a viable large‐scale commercial CCS program requires resolution of a  

broad range of technical, policy and legal questions, most of which are beyond  

the scope of this rulemaking. That said, we think the Agency’s efforts here are  

an important first step and will set the tone for how EPA, other federal and  

state regulatory bodies and the public will approach CCS going forward.  

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; and the

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: 0357 Comment ID: 28221 Letter Lines: 83 to 84  

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

Comment: In August, 2009. EPA announced a proposed supplement to the 2008 proposal. We  

applaud EPA for its improvements to the rule in three main areas:  

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: 0357 Comment ID: 28222 Letter Lines: 85 to 104  

Comment Code: 3310 3.3.1. Site Characterization  

Comment:

‐Added Flexibility to Site‐Determinations for GS Injections of CO2: EPA  

initially proposed that the injection of CO2 be confined primarily to areas  

below the lowermost formation containing an underground source of drinking water  

(USDW). Such an approach would preclude injection of CO2 into zones between and  

above USDWs and would prohibit injection into shallow formations such as coal  

seams and basalts.  
In its August 31, 2009 supplement, EPA presents an alternative to the very rigid  

"one‐ size‐fits‐all" injection depth approach suggested in the initial  

rulemaking. Under the proposed alternative, the Agency would add a waiver  

process. As the Agency puts it:  

"The proposed Class VI injection depth requirements would remain unchanged but  

would allow an owner or operator seeking to inject above and/or between USDWs to  

apply for a waiver from the proposed injection depth requirements. The owner or  

operator would be required to demonstrate to regulatory authorities that such  

injection can be undertaken and completed in a manner that prevents fluid  

movement into overlying (and underlying) USDWs, thereby preventing the  

endangerment of public health from USDW contamination."  

Individual Response: EPA acknowledges the commenter's support of the waiver approach. The

requirements at §146.95 for owners and operators seeking injection depth waivers are intended to add

to and modify the requirements that all GS well owners or operators must meet, including those for site‐

specific geologic characterization, to ensure that the proposed site is evaluated in the context of the

presence of USDWs above and below the injection zone and provide flexibility sought by commenters.  

Letter ID: 0357 Comment ID: 28223 Letter Lines: 106 to 116  

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

Formations (seeking comment)  

Comment: We also support the Agency’s decision to remove explicit prohibitions against  

injection into specific formation types like basalts and/or coal seams. We  

agree with the Agency that all formations should be afforded equal treatment  

under the regulations.  

We appreciate EPA’s further refinement of this crucial issue. By allowing more  

areas to be considered for geologic sequestration, EPA is removing a very  

significant hurdle to the advancement of a viable commercial CO2 CCS program.  

It will begin to address some of the concerns we expressed in our original  

comments regarding the need for regulatory flexibility and the importance of  

site‐specific assessments.  

Individual Response: EPA agrees that the GS rule should 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 that

USDWs are protected from endangerment.

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, as required in the GS rule.  

Letter ID: 0357 Comment ID: 28224 Letter Lines: 118 to 123  

Comment Code: 3130 3.1.3. Addressing the Differences Between Class II and Class VI Wells  

Comment: ‐Drawing a Clear Distinction Between Class II and Class VI Activities: We are  

also pleased that the Agency has drawn a clear distinction between GS injections  

to be covered by this new Class VI category and activities covered by the  

existing Class II category. We believe EPA’s clarification is critically  

important to avoid confusion and/or impediments to existing CO2 uses, such as  

enhanced oil recovery (EOR), already covered under Class II of the UIC regime.  

Individual Response: EPA believes that the tailored requirements for Class VI wells address the unique

characteristics of CO2 injection for GS. For additional information on the distinctions between Class II

and Class VI well activities, see the preamble to the final rule and the responses to comments on the

proposed GS rule.  

Letter ID: 0357 Comment ID: 28225 Letter Lines: 125 to 131  

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

Comment: ‐Making Clear States’ Role in Site Determinations/Technical Assessments: We  

appreciate EPA’s explicit nod to states’ expertise in grappling with the many  

and varied issues that will arise in the context of CO2 sequestration. We agree  

states should play the key role in assessing and making determinations on key  

technical issues such as appropriate injection depths of a given CO2 CCS  

project. We believe more needs to be done in this area (See our comments  

below.)  

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.  

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.

Regarding decisions on granting of injection depth waivers, EPA clarifies that, pursuant to §146.95(d),

the Regional Administrator will make the final determination whether to issue an injection depth

waiver. However, prior to a final decision, the Director must provide the Regional Administrator with the

information collected during the waiver application and the public notice processes. Based on this

information and pursuant to requirements at §146.95(d), the Regional Administrator will provide

written concurrence or non‐concurrence regarding waiver issuance. The Agency clarifies that these

requirements are within the authority of the Safe Drinking Water Act.  

Letter ID: 0357 Comment ID: 28226 Letter Lines: 133 to 162  

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

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

Comment: ROUNDTABLE SUGGESTIONS  

1. Respect State Primacy on SDWA Permitting. We believe that the Agency should  

be explicit in providing a reasonable process whereby states can obtain primacy  

over regulation of Class VI (CCS) wells. Many states already administer SDWA  

programs and have long experience regulating CO2 injection through Class II EOR  

programs. Further, a number of states are moving ahead with developing their  

own initiatives and regulations to solve other issues associated with CCS ‐‐  

incentives provisions and provisions clarifying the nature of potentially  
affected property rights as two examples. As the Agency itself notes in its  

supplement:  

"The Agency is aware that States are currently in various stages of developing  

statutory frameworks, regulations, workgroups, technical guidance, and  

strategies for addressing CCS and GS. Much of the expertise and infrastructure  

currently exists within State UIC Programs. These programs will form the  

foundation for managing GS wells. Additionally, States can use multiple  

authorities beyond those afforded under the SDWA and UIC regulations including  

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."  

Clearly, in determining state primacy, EPA will have to consider how to handle  

projects that span multiple states. We do not believe that issue to be  

insurmountable. Rules could include, for example, provisions for establishing a  

primary state for permitting purposes, with other affected states provided an  

opportunity for notice and comment.  

Such regulatory clarity is critically important, not only to states, but also  

project proponents, interested in early investment in major CCS projects.  

Individual Response: EPA agrees 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. In response to concerns about which state or region

would oversee the permit for projects where the AoR spans state or tribal boundaries, EPA clarifies that

issuance and oversight of a GS permit, including any associated AoR boundary‐related coordination, is

the responsibility of the primacy agency (State or Tribal) or regional DI program in the state where the

injection well is located. 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. For additional information on primacy, please see the preamble to the

final rule and responses to comments on the proposed GS rule.  
Letter ID: 0357 Comment ID: 28227 Letter Lines: 164 to 183  

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

Comment: 2. Appropriately Characterize CO2. We strongly urge EPA to be very careful in  

its characterization of CO2 under the UIC program. As has been previously  

noted, a successful climate change control program will necessarily be  

predicated on development of ‐‐ and public support for ‐‐ CCS. EPA could  

inadvertently, and inappropriately, stigmatize CCS, if it veers into an  

unwarranted categorization of CO2 as a pollutant or a hazardous waste. Such  

suggestions would imply a liability risk that would chill further development of  

both CCS and EOR operations.  

3. Characterize Carefully Risks of the Geologic Sequestration of CO2. It is, of  

course, crucial that the final rule meet EPA’s objective of protecting drinking  

water supplies. We remain concerned, however, that some of the more  

prescriptive requirements being proposed for Class VI wells are not supported by  

findings of unique risks actually posed. EPA’s regulations should be based upon  

an accurate characterization of the potential risks posed by the GS of CO2 and  

be specifically tailored accordingly to address those identified risks. This  

will ensure that EPA meets its obligation to provide appropriate protection of  

underground sources of drinking water, while avoiding unnecessary regulations  

that may hamper CCS from going forward or call into question the general safety  

of CO2 storage.  

Individual Response: This comment pertains to EPA’s proposed GS rule (73 FR 43492) and is 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: 0357 Comment ID: 28228 Letter Lines: 185 to 210  

Comment Code: 5100 5.2. Comments on the Proposed Siting Requirements (146.83)  

Comment: We still believe that the most efficient way to proceed is with a tiered set of  

site characterization requirements based on demonstrable and known site  

characteristics. For example, potential sites that are deep saline formations  

located one or more kilometers below the ground surface are generally recognized  

as among the most favorable and secure site options for assuring public safety.  

If such sites do not have USDW aquifer located between it and the ground surface  

above, a more streamlined regulatory site characterization and risk review may  
be appropriate.  

On the other hand, an example of a potential site that may require a more  

rigorous site characterization and risk assessment are "sole source aquifers"  

which are aquifers that are the sole supply of water for a region and are  

critically important to protect. We believe that EPA’s proposed standards, with  

the waiver process included , make sense in these sensitive areas. EPA should  

still allow the permiting of Class VI wells in more sensitive areas, if it can  

be shown that there are sufficient caps and protections to prevent the migration  

of CO2 in overlying aquifers, even in proximity to aquifers designated as sole  

source. An early detection monitoring program could be established to provide  

sufficient opportunity to mitigate any unlikely release of CO2 from geologic  

storage unit.  

Such a tiered approach would allow EPA to achieve some streamlining UIC  

regulations for site characterizations and permit UIC Class VI wells that first  

and foremost protect public safety, yet reflect a workable balance in adapting  

site characterization and risk assessments based on criteria adaptable to unique  

candidate sites.  

Individual Response: This comment pertains to EPA’s proposed GS rule (73 FR 43492) and is 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: 0357 Comment ID: 28229 Letter Lines: 212 to 217  

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

Comment: 4. Avoid Over‐Generalization in Regulations. We strongly urge EPA to avoid  

blanket prohibitions or arbitrary absolutes in the rule. We are concerned by  

the inclusion in the proposed regulations of default provisions that simply  

presume universal application. We believe that approach is problematic. It is  

too early to fully understand precisely which methods or technologies will  

ultimately prove optimal.  

Individual Response: This comment pertains to EPA’s proposed GS rule (73 FR 43492) and is 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: 0357 Comment ID: 28230 Letter Lines: 219 to 224  

Comment Code: 5050 5.1. Comments on the Proposed Permit Application Information (146.82)  

Comment: As EPA itself has acknowledged, the geologic variability involved in different  

conceivable GS projects needs to be taken into account. We believe it needs to  

be factored into a whole range of issues ranging from site characterization, to  

area of review, to containment requirements. The regulations should encourage  

site‐specific, performance‐based determinations at the permitting stage to  

handle these important issues.  

Individual Response: This comment pertains to EPA’s proposed GS rule (73 FR 43492) and is 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: 0357 Comment ID: 28231 Letter Lines: 226 to 229  

Comment Code: 3120 3.1.2. Allowing GS in All Formation Types  

Comment: EPA should leave the door open for a range of injection sites and methods (some  

of which are not yet fully understood), provided that the CCS project owner or  

operator can show that the injection and storage will be protective of drinking  

water supplies.  

Individual Response: EPA agrees that there are situations where injection into non‐USDW formations

above the lowermost USDW can be performed in a manner that protects USDWs, as long as appropriate

protections are in place. 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 purpose of the injection

depth waiver requirements is to ensure protection of USDWs while allowing the use of GS capacity

above and between USDWs if a site is suitable and all Class VI requirements are met.  

Because USDW protection is the priority of the GS rule, 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 including: additional

information about the injection zone; identification of confining units above and below the injection

zone; tailored AoR modeling above and below the injection zone; a demonstration that well design is

appropriate and protective of USDWs, in lieu of specific requirements at §146.86; a description of how

monitoring will be tailored for injection above/between USDWs; and information about public water

supplies in the AoR.  
Letter ID: 0357 Comment ID: 28232 Letter Lines: 231 to 257  

Comment Code: 1100 1.1 Comments on the Comprehensive Approach  

Comment: 5. Avoid Regulatory Creep. We are extremely concerned by arguments that the  

whole suite of environmental laws ‐‐ including the Comprehensive Environmental  

Response, Compensation, and Liability Act ("CERCLA") and the Resource  

Conservation and Recovery Act ("RCRA") ‐‐ be applied to CCS projects.  

These laws, if applied broadly to CCS, would 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. That would put advancement of CCS commercialization into a  

deep freeze. Such an outcome would clearly be counter‐productive. Thus, we  

urge the Agency to pursue options that will limit CCS projects’ liability under  

CERCLA and RCRA.  

6. Put Limits on EPA Authority and Discretion. The Agency notes in its  

supplement that it is currently evaluating the need for a more comprehensive  

regulatory framework to provide legal guidance regarding emerging CCS  

technology.  

The Roundtable fully recognizes the difficulty EPA faces in establishing  

regulations for CCS. We fully support the notion that some level of discretion  

is necessary for the Agency to adjust to changes or new information that emerges  

as pilot projects move forward. Having said that, the balance here is a  

delicate one. Too much discretion can undermine the certainty that is so  

important to encourage CCS projects. Certainly, any discretion that is afforded  

should be bound by reasonable criteria. Equally important: EPA should adhere  

to its limited authority under the SDWA and not use this as an opportunity to  

seek to extend it.  

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.  

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.

EPA disagrees that it is attempting to extend its authority under the SDWA. The GS regulation, which

addresses the injection of CO2 for the purpose of protecting USDWs, is within EPA’s authority under the

SDWA. For more information on EPA’s authority to regulate GS, see the responses to comments on the

proposed rule in the rulemaking docket.