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.
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Hazardous Substances 

 

With respect to hazardous substances, the GS rule would prohibit the injection of these substances in 

Class VI injection wells (e.g., specific to geologic sequestration), but the EPA offers no means for 

removing hazardous impurities such as hydrogen sulfide and mercury which are often found in CO2 

streams, the types that would be sequestered as a result of the rule. In the rule, the Agency instead 

focuses on what is considered a hazardous substance under the Comprehensive Environmental 

Response, Compensation, and Liability Act, also known as CERCLA or Superfund; and the potential 

liability to owners and operators of geologic sequestration operations for injection of CO2 and 

associated hazardous substances. 

Indeed, liability is an important matter that needs to be addressed upfront, particularly since some 

Indian tribes and their citizens may one day be engaged in geologic sequestration. The EPA must not 

forget, however, that a primary purpose of the GS rule is to prevent endangerment to underground 

sources of drinking water (USDWs). As such, every effort should be made by the Agency to ensure 

that hazardous substances, at any level, do not find their way into USDWs so as to best protect 

human health and the environment from the harmful impacts of these substances. 

The NTAA therefore recommends that the EPA clearly communicate how it will address hazardous 

impurities often found in CO2 streams, specifically how such impurities will be removed or their 

impacts mitigated so as not to endanger USDWs. 

Monitoring 

Aside from how the GS rules addresses hazardous substances, the rule includes a default monitoring 

period of 50-years after closure of an injection well, Unfortunately, the EPA provides no objective, 

technical rationale as to how it arrived at this monitoring period, such as an engineering analysis, and 

gets around it by giving discretion to Agency Regional Administrators or jurisdictions with primacy 

for UIC programs for shortening or lengthening the monitoring period on a case-by-case basis. 

While the NTAA agrees that there should be such discretion with respect to defining post-closure 

monitoring periods for injection wells, it should involve substantive input by qualified engineers 

trained in geologic sequestration. Otherwise, USDWs could end up being adversely impacted as a 

result of monitoring periods improperly defined by unqualified individuals. 

The NTAA therefore recommends that an objective, technical rationale be provided for deciding 

upon the 50-year monitoring period. In addition, our organization recommends that the GS rule 

specifically require that qualified engineers trained in geologic sequestration be substantively 

involved in any decision regarding the shortening or lengthening of the post-closure monitoring 

period of an injection well. 

Environmental Impacts

The EPA is proposing to do something of a significant magnitude for the first time which is the 

injection of substantial amounts of carbon dioxide into the ground at high pressures. The EPA is 

seeking to control a pollutant that is very buoyant and corrosive, and with a technology that has to be 

fully tested. As such, the NTAA is concerned about the potential environmental impacts of geologic 

sequestration to the nation’s Indian tribes. 
3 

While geologic sequestration could likely affect tribal property rights - i.e., the diminishment of 

mineral rights values and cause property damage, it is its potential harm to humans and the 

environment which most concern the NTAA. The World Resources Institute recently communicated 

in its report Guidelines for Carbon Dioxide Capture, Transport and Storage, that “risks to people 

and ecosystems [can] arise from the potential for CO2 to accumulate in low-lying areas or areas with 

poor ventilation. If CO2 leaks to the surface in areas with poor ventilation, such as basements or 

shallow dips in the ground, it can accumulate to levels that could cause stress or even asphyxiation in 

humans and animals.” Unfortunately, owners and operations of geologic sequestration operations 

will not be held liable for such injuries as the GS rule solely focuses on the protection of USDWs 

(e.g., prevention of CO2 migration into USDWs). While the EPA might be correct in its 

understanding that geologic sequestration impacts to air, human health and ecosystems are outside 

the scope of the Safe Drinking Water Act, this does not negate the Agency’s trust responsibility to 

best manage and preserve tribal lands from any undue outside influences, and in this case, CO2 

leakage as a result of geologic sequestration. 

As will be noted further in our comments, the EPA failed to adequately consult with Indian tribes on 

the GS rule. If the Agency had properly consulted, many tribes might have communicated that the 

lands on which they live are highly diverse and environmentally sensitive. As such, geologic 

sequestration conducted on or near these lands requires extra due diligence to ensure the safety of 

tribes and their environments. Every effort to mitigate the environmental impacts of geologic 

sequestration, even beyond impacts to USDWs, must be taken by the EPA. 

The NTAA therefore recommends that the EPA provide specifics on how it will help protect Indian 

tribes and their lands from the environmental impacts of geologic sequestration, even impacts 

beyond those to USDWs.

Consultation

With respect to consultation, the EPA failed to conduct what the NTAA would consider to be 

meaningful consultation between the Agency and the nation’s tribes, failing among other things, to 

develop and follow an appropriate tribal consultation plan. 

According to the EPA, the GS rule does not have tribal implications as accorded by Executive Order 

13175, largely because Indian tribes do not have primacy over an underground injection control 

(UIC) program (the Fort Peck Assiniboine and Sioux Tribes, and the Navajo Nation have received 

primacy since publication of the GS rule). This is a faulty rationale as Indian tribes could be placed 

in harm’s way as a result of geologic sequestration occurring on or near their lands. As already noted 

above, geologic sequestration could have significant environmental impacts on tribes, but their 

cultural practices could be affected as well. For example, a number of tribes depend upon certain 

plants for cultural and religious ceremonies, and with increased soil acidity due to CO2 leakage from 

geologic sequestration, the health and survival of these plants could be in jeopardy. 

Although admitting that the GS rule will not impact tribes, the EPA claims that it did in fact consult 

with Indian tribes. What the NTAA can gather from the rule, however, is that the Agency simply 

contacted tribes about engaging in the rulemaking process and held one conference call; the EPA has 

also promised to “continue an ongoing dialogue with interested tribes on this rulemaking.” This 

approach taken by the Agency falls far short of what a true government-to-government consultation 

between the federal government and tribes should look like. 
4 

As inferred above, a tribal consultation plan could have helped overcome any concerns about Indian 

tribes not being properly consulted by the EPA with respect to the GS rule. The NTAA believes, 

however, that an opportunity for developing such a plan still exists, but requires at a minimum that 

the comment rule concerning the GS rule be extended no less than 90 days; the NTAA also gladly 

offers its resources to help develop such a plan. 

Technical Fix to the GS Rule to Properly Include Indian Tribes 

Finally, in reading the GS rule, the NTAA found that the EPA inadvertently omitted the phrase 

“tribal authorities” under section 146.94(c)(2). To rectify this omission from the section, the NTAA 

recommends the following language: 

 “Documentation of appropriate notification and information to such State, Tribal, and 

 local authorities as have authority over drilling activities to enable such State, Tribal and 

local authorities to impose appropriate conditions on subsequent drilling activities that may 

penetrate the injection and confining zone(s).” 

Conclusion 

In summary, the NTAA is pleased to provide the aforementioned comments and recommendations 

concerning the GS rule. If you should have any questions or comments, please feel free to contact 

Stephen Hartsfield, NTAA Program Director, via phone at (505) 242-2175 ext. 106, or via e-mail at 

shartsfield@ntec.org. 

Respectfully submitted, 

Sam Kitto 

Interim-Chairman 

National Tribal Air Association 
Letter ID: 0126 

Commenter: Sam Kitto 

Organization: National Tribal Air Association 

Letter ID: 0126 Comment ID: 23044 Letter Lines: 48 to 71 

Comment Code: 1614 1.3.1.2 Impurities in captured CO2; purity standards for CO2 

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment) 

Comment: Hazardous Substances With respect to hazardous substances, the GS rule would 

prohibit the injection of these substances in Class VI injection wells (e.g., 

specific to geologic sequestration), but the EPA offers no means for removing 

hazardous impurities such as hydrogen sulfide and mercury which are often found 

in CO2 streams, the types that would be sequestered as a result of the rule. In 

the rule, the Agency instead focuses on what is considered a hazardous substance 

under the Comprehensive Environmental Response, Compensation, and Liability Act, 

also known as CERCLA or Superfund; and the potential liability to owners and 

operators of geologic sequestration operations for injection of CO2 and 

associated hazardous substances. 

Indeed, liability is an important matter that needs to be addressed upfront, 

particularly since some Indian tribes and their citizens may one day be engaged 

in geologic sequestration. The EPA must not forget, however, that a primary 

purpose of the GS rule is to prevent endangerment to underground sources of 

drinking water (USDWs). As such, every effort should be made by the Agency to 

ensure that hazardous substances, at any level, do not find their way into USDWs 

so as to best protect human health and the environment from the harmful impacts 

of these substances. 

The NTAA therefore recommends that the EPA clearly communicate how it will 

address hazardous impurities often found in CO2 streams, specifically how such 

impurities will be removed or their impacts mitigated so as not to endanger 

USDWs. 

Individual Response: EPA agrees that protecting USDWs from endangerment is the primary 

purpose of the GS rule, and that the purpose of the tailored requirements in the GS rule is to 

ensure that GS projects are permitted sited, constructed, operated, and closed in a manner that 

avoids releases of CO2 into USDWs. 

The GS rule does not set generic purity standards for CO2 injectate streams (e.g., a percent 

CO2). Instead, the GS rule addresses the quality and quantity of impurities by requiring owners 

or operators to submit information on the source of the CO2 and its physical and chemical 

properties. Specifically, the GS rule requires the owner or operator to submit data about the site, 

including an analysis of the chemical and physical characteristics of the CO2 stream, as required 

at §146.82(a)(7)(iv), and information on the compatibility of the CO2 stream with fluids in the 

1
injection zone and minerals in both the injection and the confining zones and the materials used 

to construct the well, per §146.82(c)(3). This information can help the Director determine the 

potential for geochemical reactions between the injectate (CO2) and the host geologic 

formations, which could result in the plugging of pore spaces or the dissolution of formation 

minerals. 

Because the GS rule, at §146.81(d), prohibits the injection of CO2 streams that meet the 

definition of a hazardous waste under 40 CFR part 261, injection of a CO2 stream that is 

determined to be a hazardous waste may only occur in a Class I hazardous waste injection well. 

EPA supports the use of CO2 capture technologies that minimize impurities in the CO2 stream, 

but clarifies that the GS rule does not address the development or regulation of capture 

technologies or technologies for removing impurities from CO2. 

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

is seeking interpretations of RCRA or CERCLA, such interpretations are beyond the scope of 

this rulemaking. 

Letter ID: 0126 Comment ID: 23045 Letter Lines: 73 to 89 

Comment Code: 5240 2.8.2.2 Post injection timeframe (seeking comment) 

Comment: Monitoring 

Aside from how the GS rules addresses hazardous substances, the rule includes a 

default monitoring period of 50-years after closure of an injection well, 

Unfortunately, the EPA provides no objective, technical rationale as to how it 

arrived at this monitoring period, such as an engineering analysis, and gets 

around it by giving discretion to Agency Regional Administrators or 

jurisdictions with primacy for UIC programs for shortening or lengthening the 

monitoring period on a case-by-case basis. While the NTAA agrees that there 

should be such discretion with respect to defining post-closure monitoring 

periods for injection wells, it should involve substantive input by qualified 

engineers trained in geologic sequestration. Otherwise, USDWs could end up being 

adversely impacted as a result of monitoring periods improperly defined by 

unqualified individuals. 

The NTAA therefore recommends that an objective, technical rationale be provided 

for deciding upon the 50-year monitoring period. In addition, our organization 

Individual Response: EPA disagrees with this comment. In determining the post-injection site 

care-timeframe for the proposed regulation, EPA reviewed industry reports, existing 

environmental programs, and initial GS research studies. EPA provided a synthesis of pertinent 

results from GS modeling studies in the preamble to the proposed regulation. Further explanation 

of this analysis was included in an EPA-prepared background document that is available in the 

federal docket for the GS rule, titled Computational Modeling of Underground Injection of 

2
Carbon Dioxide for Determination of Area-of-Review and Potential Risk to Underground 

Sources of Drinking Water. Based on review of these studies, modeling results indicate that the 

CO2 plume stabilization may occur on the timeframe of 10-100 years after the cessation of 

injection. EPA believes that a 50-year default post-injection site care timeframe is a reasonable 

midpoint for most GS projects and available data, including data submitted by commenters, do 

not support a different default timeframe, and has retained this in the final regulation. To address 

concerns that, in some situations, it can be demonstrated in less than 50 years that the plume and 

pressure front no longer pose a risk of endangerment to USDWs, the GS regulation includes a 

provision that the Director may, at his or her discretion shorten or lengthen the post-injection site 

care timeframe if the owner or operator can demonstrate that the GS project does not pose a risk 

to USDWs, as specified in §146.93(b)(2). 

Alternatively, the final rule at §146.93(c), also allows the Director to approve an alternative postinjection site care timeframe where an owner or operator can demonstrate during the permitting 

process that an alternative post-injection site care timeframe, other than the 50 year default, is 

appropriate and ensures non-endangerment of USDWs. The demonstration must be based on 

site-specific information, including the results of site-specific computational modeling; the 

predicted timeframe for pressure decline; the predicted rate of carbon dioxide plume migration; 

site-specific chemical processes that will result in carbon dioxide trapping; the predicted rate of 

carbon dioxide trapping; characterization of the confining zone(s); laboratory analyses or studies 

to verify the information on trapping; the presence of potential conduits for fluid movement and 

the quality of abandoned well plugs within the AoR; the distance between the injection zone and 

the USDWs above and/or below the injection zone; and any additional site-specific factors 

determined by the Director. The demonstration must meet the criteria at §146.93(c)(2) for 

ensuring the quality and accuracy of the data and models on which the demonstration is based. 

This demonstration would be submitted as part of the permit application, per §146.82(a)(18), in 

addition to the PISC and site closure plan required at §146.82(a)(17). 

EPA believes that a default post-injection site care timeframe of 50 years, with flexibility to 

adjust the timeframe for a limited number of GS projects during the permitting process where 

substantial data exists to demonstrate that an alternative timeframe would be protective of 

USDWs, or based on data collected during the PISC period, is appropriate to address the range of 

sites where GS is anticipated to occur, to accommodate site-specific circumstances and various 

geologic conditions, and addresses commenters¿ concerns, while ensuring USDW protection. 

Both approaches will utilize site-specific data, and be based on pressure monitoring and USDW 

impacts. 

Because of the variety of site-specific circumstances at GS sites, EPA believes that Directors, in 

consultation with operators, will be in the best position to determine whether additional postinjection site care monitoring is needed (or whether the timeframe may be shortened), based on 

the circumstances of a particular project. EPA expects this decision to be made based on relevant 

site data and in consultation with all potentially impacted parties. EPA agrees that qualified 

scientists and engineers should be included in any decision to lengthen or shorten the postinjection site care monitoring period, but is not requiring this at §146.93. 

3
Letter ID: 0126 Comment ID: 23046 Letter Lines: 89 to 93 

Comment Code: 5260 2.8.2.3 Adjusting the post-injection timeframe (seeking comment) 

Comment: for deciding upon the 50-year monitoring period. In addition, our organization 

recommends that the GS rule specifically require that qualified engineers 

trained in geologic sequestration be substantively involved in any decision 

regarding the shortening or lengthening of the post-closure monitoring period of 

an injection well. 

Individual Response: EPA agrees and expects that qualified scientists and engineers will be 

involved in any decision by the Director to lengthen or shorten the post-injection site care 

monitoring period, but is not requiring this at §146.93. 

The GS rule offers owners or operators flexibility regarding the duration of the PISC timeframe 

by: (1) allowing the Director discretion to shorten or lengthen the PISC timeframe during the 

post-injection period based on site-specific data, pursuant to requirements at §146.93(b); or (2) 

affording the Director discretion to allow a Class VI well owner or operator to demonstrate, 

during the permitting process based on substantial data, that an alternative PISC timeframe may 

be appropriate if it ensures non-endangerment of USDWs pursuant to requirements at 

§146.93(c). 

Because of the variety of site-specific circumstances at GS sites, EPA believes that individual 

UIC Directors, in consultation with operators, will be in the best position to determine whether 

additional post-injection site care monitoring is needed (or whether the timeframe may be 

shortened) or if an alternative PISC timeframe is appropriate, based on the circumstances of a 

particular project. EPA expects this decision to be made based on relevant site data and in 

consultation with all potentially impacted parties. 

Letter ID: 0126 Comment ID: 23047 Letter Lines: 95 to 120 

Comment Code: 1650 1.3.5 Human health impacts 

Comment Code: 1660 1.3.6 Ecosystem impacts (soil, air, surface water) 

Comment: Environmental Impacts 

The EPA is proposing to do something of a significant magnitude for the first 

time which is the injection of substantial amounts of carbon dioxide into the 

ground at high pressures. The EPA is seeking to control a pollutant that is very 

buoyant and corrosive, and with a technology that has to be fully tested. As 

such, the NTAA is concerned about the potential environmental impacts of 

geologic sequestration to the nation’s Indian tribes. 

While geologic sequestration could likely affect tribal property rights - i.e., 

the diminishment of mineral rights values and cause property damage, it is its 

potential harm to humans and the environment which most concern the NTAA. The 

4
World Resources Institute recently communicated in its report Guidelines for 

Carbon Dioxide Capture, Transport and Storage, that "risks to people and 

ecosystems [can] arise from the potential for CO2 to accumulate in low-lying 

areas or areas with poor ventilation. If CO2 leaks to the surface in areas with 

poor ventilation, such as basements or shallow dips in the ground, it can 

accumulate to levels that could cause stress or even asphyxiation in humans and 

animals." Unfortunately, owners and operations of geologic sequestration 

operations will not be held liable for such injuries as the GS rule solely 

focuses on the protection of USDWs (e.g., prevention of CO2 migration into 

USDWs). While the EPA might be correct in its understanding that geologic 

sequestration impacts to air, human health and ecosystems are outside the scope 

of the Safe Drinking Water Act, this does not negate the Agency’s trust 

responsibility to best manage and preserve tribal lands from any undue outside 

influences, and in this case, CO2 leakage as a result of geologic sequestration. 

Individual Response: EPA acknowledges that there are potential risks associated with GS. The 

purpose of the Class VI requirements is to minimize and mitigate potential/identified risks 

through proper site characterization, well construction, operation, monitoring, post-injection site 

care, and site closure and to ensure protection of USDWs. EPA believes that the measures in the 

GS rule that directly mitigate the possibility of CO2 leakage out of the injection zone will also 

indirectly mitigate the risks to receptors mentioned by the commenters, including fresh water, 

wildlife, ecosystems, and agriculture. 

EPA adds that Class VI well owners and operators must site, construct, operate, monitor, and 

close their wells in a manner that protects USDWs, and Class VI permits will set forth rigorous 

technical requirements to ensure careful planning, operation, and closure of GS projects. Failure 

to meet these requirements would be considered a violation of the permit and would be subject to 

applicable civil, criminal, or administrative penalties. 

EPA also notes that owners or operators of Class VI wells must ensure that resources are 

available to prevent endangerment of USDWs from improper plugging, remediation, and 

management of wells. The GS rule requires that owners or operators demonstrate and maintain 

financial responsibility for corrective action on wells in the AoR, injection well plugging, postinjection site care and site closure, and emergency and remedial response at GS sites as specified 

in §146.85. In the event of contamination or other adverse event associated with GS, the 

financial instrument(s), such as insurance, bonds, etc., rather than public monies, would cover 

necessary response actions. 

EPA believes that sufficient data and experience currently exist to develop regulations for Class 

VI wells. The GS rulemaking builds upon decades of knowledge about safe injection practices 

regulated by the UIC Program. While developing the GS regulation, EPA has evaluated relevant 

GS research, including projects conducted by the seven Regional Carbon Sequestration 

Partnerships (RCSPs) funded by DOE and coordinated through the National Energy Technology 

Laboratory (NETL), and several international projects. 

Industry also has decades of experience with well construction and operation. For example, the 

5
oil and gas industry has experience drilling and cementing wells in very deep formations, in a 

variety of environments (e.g., high-pressure and low-pressure formations), and for a variety of 

uses (e.g., injection, oil and gas production, monitoring). EPA believes that this experience has 

led to the development of well materials and construction and operating procedures that are 

applicable to Class VI wells. 

EPA adds that, in the process of developing the GS rule, it consulted with tribal representatives 

to facilitate ongoing communication throughout the rulemaking process. Please see the next 

response for additional information. EPA is committed to protecting USDWs on tribal lands 

through implementation of the GS rule. 

Letter ID: 0126 Comment ID: 23048 Letter Lines: 122 to 133 

Comment Code: 1600 1.3 Risk Associated with CO2 GS 

Comment Code: 1930 1.4.4.2 Consultations with State, Tribal, and local Associations (e.g., 

GWPC, IOGCC) 

Comment: As will be noted further in our comments, the EPA failed to adequately consult 

with Indian tribes on the GS rule. If the Agency had properly consulted, many 

tribes might have communicated that the lands on which they live are highly 

diverse and environmentally sensitive. As such, geologic sequestration conducted 

on or near these lands requires extra due diligence to ensure the safety of 

tribes and their environments. Every effort to mitigate the environmental 

impacts of geologic sequestration, even beyond impacts to USDWs, must be taken 

by the EPA. 

The NTAA therefore recommends that the EPA provide specifics on how it will help 

protect Indian tribes and their lands from the environmental impacts of geologic 

sequestration, even impacts beyond those to USDWs. 

Individual Response: EPA clarifies that regulating environmental impacts beyond impacts of 

endangerment to USDWs is beyond the scope of EPA’s authority under the Safe Drinking Water 

Act and outside the scope of this rulemaking. However, EPA believes that the GS rule, properly 

implemented, will protect USDWs and the overlying land from endangerment. 

Throughout the GS rulemaking, EPA has promoted a transparent stakeholder process to ensure 

that all stakeholders understood the rulemaking elements and that viewpoints and suggestions for 

rule modifications were recorded. EPA, with support from the American Indian Environmental 

Office (AIEO), engaged and consulted Tribes early in the rulemaking process, and continued to 

update Tribal representatives as appropriate. Additionally, the Agency provided tribes with the 

contact information for EPA managers in order to facilitate communication throughout the 

rulemaking process. 

In April 2008, prior to publication of the proposed GS rule, the Agency sent background 

information about the proposed rulemaking to all federally recognized American Indian tribes. In 

addition, EPA communicated with the National Tribal Caucus of the National Operations 

6
Committee (NTC) and the National Tribal Water Council (NTWC) to encourage participation in 

a dedicated consultation on the rulemaking. On April 24, 2008, the Agency held a conference 

call with all interested tribal representatives; a summary is included in the rulemaking docket. 

Additionally, an EPA representative presented information on GS and the GS regulatory 

framework at the National Tribal Council on Environmental Management (NTCEM) Meeting in 

Billings, Montana, in June 2008. In September 2008, during the proposed rule public comment 

period, EPA held two public hearings at which tribes were represented. 

Throughout 2009 and 2010, more recent updates on the GS rulemaking were presented to tribal 

representatives through regularly scheduled calls with the NTWC, State and Tribal Climate 

Change Council (STC3), and the National Tribal Caucus. Representatives had the opportunity to 

ask EPA managers questions related to the rulemaking elements and finalization schedule. EPA 

believes that all of the actions undertaken were conducted to support an open and transparent 

rulemaking process in accordance with Executive Order 13175 and Agency recommendations. 

EPA clarifies that following publication of the proposed rule in July 2008, the Fort Peck 

Assiniboine and Sioux Tribes and the Navajo Nation received UIC Program primacy for the 

Class II program under §1425 of the SDWA. EPA recognizes those tribes as co-regulators and 

remains committed to ensuring that co-regulators are informed on and have an opportunity to 

engage with EPA on the GS rule. To further ensure coordination and communication regarding 

the GS rule, EPA hosted a conference call specifically for the Fort Peck Assiniboine and Sioux 

Tribes, as well as the Navajo Nation, UIC Program Directors in February 2010. EPA 

representatives presented the history of the rulemaking, the current schedule for finalization of 

the rule, and the statutory differences in applying for primacy for the proposed Class VI program 

versus applying for primacy for the Class II program. A summary of the call is included in the 

docket for the GS rulemaking. 

The Agency is currently reviewing its tribal consultation policies and procedures in accordance 

with the President's directive of November 5, 2009. When that review is final, there will be more 

clarification from EPA on tribal consultation during program implementation. 

In response to the comment that "extra due diligence" should be required on Tribal lands, EPA 

clarifies that the Class VI GS rule requirements are protective and apply to all USDWs. EPA 

clarifies that States, Tribes, and Territories that seek primacy for the Class VI program may 

adopt requirements that are more stringent than the minimum federal requirements in the GS 

rule. 

Letter ID: 0126 Comment ID: 23049 Letter Lines: 135 to 140 

Comment Code: 1930 1.4.4.2 Consultations with State, Tribal, and local Associations (e.g., 

GWPC, IOGCC) 

Comment: Consultation 

With respect to consultation, the EPA failed to conduct what the NTAA would 

consider to be meaningful consultation between the Agency and the nation’s 

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tribes, failing among other things, to develop and follow an appropriate tribal 

consultation plan. 

Individual Response: EPA disagrees with the commenter's assertion. EPA’s tribal consultations 

during the development of the GS rule are described in the response above. 

Letter ID: 0126 Comment ID: 23050 Letter Lines: 142 to 167 

Comment Code: 1930 1.4.4.2 Consultations with State, Tribal, and local Associations (e.g., 

GWPC, IOGCC) 

Comment Code: 7600 4.6 Executive Order 13175: Tribal Consultation and Coordination 

Comment: According to the EPA, the GS rule does not have tribal implications as accorded 

by Executive Order 13175, largely because Indian tribes do not have primacy over 

an underground injection control (UIC) program (the Fort Peck Assiniboine and 

Sioux Tribes, and the Navajo Nation have received primacy since publication of 

the GS rule). This is a faulty rationale as Indian tribes could be placed in 

harm’s way as a result of geologic sequestration occurring on or near their 

lands. As already noted above, geologic sequestration could have significant 

environmental impacts on tribes, but their cultural practices could be affected 

as well. For example, a number of tribes depend upon certain plants for cultural 

and religious ceremonies, and with increased soil acidity due to CO2 leakage 

from geologic sequestration, the health and survival of these plants could be in 

jeopardy. 

Although admitting that the GS rule will not impact tribes, the EPA claims that 

it did in fact consult with Indian tribes. What the NTAA can gather from the 

rule, however, is that the Agency simply contacted tribes about engaging in the 

rulemaking process and held one conference call; the EPA has also promised to 

"continue an ongoing dialogue with interested tribes on this rulemaking." This 

approach taken by the Agency falls far short of what a true government-togovernment consultation between the federal government and tribes should look 

like. As inferred above, a tribal consultation plan could have helped overcome 

any concerns about Indian tribes not being properly consulted by the EPA with 

respect to the GS rule. The NTAA believes, however, that an opportunity for 

developing such a plan still exists, but requires at a minimum that the comment 

rule concerning the GS rule be extended no less than 90 days; the NTAA also 

gladly offers its resources to help develop such a plan. 

Individual Response: Throughout the GS rulemaking, EPA has promoted a transparent 

stakeholder process to ensure that all stakeholders understood the rulemaking elements and that 

viewpoints and suggestions for rule modifications were recorded. EPA, with support from the 

American Indian Environmental Office (AIEO), engaged Tribes early in the rulemaking process, 

and continued to update Tribal representatives as appropriate. Additionally, the Agency provided 

tribes with the contact information for EPA managers in order to facilitate ongoing 

communication throughout the rulemaking process. 

8
In April 2008, prior to publication of the proposed GS rule, the Agency sent background 

information about the proposed rulemaking to all federally-recognized American Indian tribes. In 

addition, EPA communicated with the National Tribal Caucus of the National Operations 

Committee (NTC) and the National Tribal Water Council (NTWC) to encourage participation in 

a dedicated consultation on the rulemaking. On April 24, 2008, the Agency held the conference 

call with all interested tribal representatives. A summary of the call is included in the rulemaking 

docket. Additionally, an EPA representative presented information on GS and the GS regulatory 

framework at the National Tribal Council on Environmental Management (NTCEM) Meeting in 

Billings, Montana, in June 2008. In September 2008, during the proposed rule public comment 

period, EPA held two public hearings at which tribes were represented. 

Throughout 2009 and 2010, more recent updates on the GS rulemaking were presented to tribal 

representatives through regularly scheduled calls with the NTWC, State and Tribal Climate 

Change Council (STC3), and the National Tribal Caucus. Representatives had the opportunity to 

ask EPA managers questions related to the rulemaking elements and finalization schedule. EPA 

believes that all of the actions undertaken were conducted to support an open and transparent 

rulemaking process in accordance with Executive Order 13175 and Agency recommendations. 

EPA clarifies that following publication of the proposed rule in July of 2008, the Fort Peck 

Assiniboine and Sioux Tribes and the Navajo Nation received UIC Program primacy for the 

Class II program (under 1425 of the SDWA). EPA recognizes those tribes as co-regulators and 

remains committed to ensuring that co-regulators are informed on and have an opportunity to 

engage with EPA on the GS rule. To further ensure coordination and communication regarding 

the GS rule, EPA hosted a conference call specifically for the Fort Peck Assiniboine and Sioux 

Tribes, as well as the Navajo Nation, UIC Program Directors in February 2010. EPA 

representatives presented the history of the rulemaking, the current schedule for finalization of 

the rule, and the statutory differences in applying for primacy for the proposed Class VI program 

versus applying for primacy for the Class II program. EPA received comments from the Navajo 

Nation UIC Director as a co-regulator for the program. A summary of the call is included in the 

docket for the GS rulemaking. 

In response to the concern raised that tribes could be adversely affected by Class VI well projects 

because they may be sited on or near Indian country, EPA clarifies that the Federal UIC 

regulations are designed to ensure protection of USDWs from endangerment associated with 

injection activities. These regulations protect all populations from adverse health effects 

associated with endangerment to USDWs. EPA clarifies that regulating environmental impacts 

beyond impacts of endangerment to USDWs is beyond the scope of EPA’s authority under the 

Safe Drinking Water Act and this rulemaking. 

The Agency is currently reviewing its tribal consultation policies and procedures in accordance 

with the President's directive of November 5, 2009. When that review is final, there will be more 

clarification from EPA on tribal consultation during program implementation. 

9
10

Letter ID: 0126 Comment ID: 23051 Letter Lines: 169 to 179 

Comment Code: 1240 1.1.1.3 Suggested changes/edits to rule language 

Comment: Technical Fix to the GS Rule to Properly Include Indian Tribes 

Finally, in reading the GS rule, the NTAA found that the EPA inadvertently 

omitted the phrase "tribal authorities" under section 146.94(c)(2). To rectify 

this omission from the section, the NTAA recommends the following language: 

"Documentation of appropriate notification and information to such State, 

Tribal, and local authorities as have authority over drilling activities to 

enable such State, Tribal and local authorities to impose appropriate conditions 

on subsequent drilling activities that may penetrate the injection and confining 

zone(s)." 

Individual Response: EPA presumes the commenter is referring to the final rule requirement at 

§146.93(f)(2). EPA clarifies that the text reads as follows, "Documentation of appropriate 

notification and information to such State, local and Tribal authorities as have authority over 

drilling activities to enable such State, local, and Tribal authorities to impose appropriate 

conditions on subsequent drilling activities that may penetrate the injection and confining 

zone(s)." 

For additional information on EPA's final regulatory approach, please see the final rule and 

preamble as well as the rulemaking docket.