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.Executive C

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12 Hazardous Substances

With respect to hazardous substanc es, the GS rule would prohibit the injection of these substances in Class VI injection wells (e.g., specific to geolog ic sequestration), but the EPA offers no means for removing hazardous impurities such as hydrogen sulf ide and mercury which are often found in CO2 streams, the types that would be se questered as a result of the rule . In the rule, the Agency instead

focuses on what is considered a hazardous s ubstance 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 se questration operations fo r 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 fi nd 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 cl early 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, Unfortunate ly, the EPA provides no objective,

technical rationale as to how it ar rived 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 pe riod 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, USDW s could end up being adversely impacted as a result of monitoring periods improperl y 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 qualifie d engineers trained in geologic sequestration be substantively involved in any decision regardi ng the shortening or lengtheni ng of the post-closure monitoring period of an injection well.

Environmental Impacts

The EPA is proposing to do something of a signifi cant 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 w ith 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 ri ghts - i.e., the diminishment of mineral rights values and cause property damage, it is its pot ential harm to humans and the

environment which most concern the NTAA. The Wo rld 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 area s with poor ventilation, such as basements or shallow dips in the ground, it can acc umulate to levels that could cau se stress or even asphyxiation in humans and animals.” Unfortunately, owners and operations of geologic se questration 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 migrati on into USDWs). While the EP A 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 a ny 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 consulte d, many tribes might have communicated that the lands on which they live are highly diverse a nd environmentally sensitive. As such, geologic sequestration conducted on or near these lands requires extr a 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 th e 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 th e nation’s tribes, failing among other things, to develop and follow an appropria te 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 Si oux 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 thei r lands. As already noted above, geologic sequestration coul d have significant environmenta l impacts on tribes, but their cultural practices could be affected as well. Fo r example, a number of tr ibes depend upon certain plants for cultural and religious ceremonies, and with increased so il 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 w ill not impact tribes, the EPA clai ms 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 gove rnment-to-government consultation between the federal government a nd tribes should look like.4 As inferred above, a tribal consu ltation plan could have helped overcome any concerns about Indian tribes not being properly consulted by the EPA w ith respect to the GS rule. The NTAA believes, however, that an opportunity for de veloping such a plan still exists , but requires at a minimum that the comment rule concerning the GS rule be exte nded 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 secti on 146.94(c)(2). To rect ify 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 aut hority over drilling activities to enable such State, Tribal and local authorities to impose appropriate conditi ons on subsequent drilli ng activities that may penetrate the injection a nd confining zone(s).”

Conclusion

In summary, the NTAA is pleased to provide the aforementione d comments and recommendations concerning the GS rule. If you should have any ques tions or comments, pleas e 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 AssociationLetter ID: 0126

Commenter: Sam Kitto Organization: National Tr ibal Air Association

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

Comment Code: 1614 1.3.1.2 Impurities in captured CO 2; purity standards for CO2

Comment Code: 1640 1.3.4 CERCLA issues (seeking comment)

Comment: Hazardous Substances With respect to h azardous substances, the GS rule would prohibit the injection of these substan ces in Class VI injection wells (e.g., specific to geologic sequestration), but the EPA offers no means for removing hazardous impurities such as hydrogen sulf ide and mercury whic h are often found in CO2 streams, the types that would be sequestered as a resu lt of the rule. In the rule, the Agency instead focuses on what is considered a hazardous substance under the Comprehensive Environmental Res ponse, Compensation, and Liability Act, also known as CERCLA or Superfund; and th e potential liability to owners and operators of geologic sequestration op erations 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 a nd 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 e ffort should be made by the Agency to ensure that hazardous substances, at any le vel, 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 th e 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 th e tailored requirements in the GS rule is to ensure that GS projects are permitted sited, cons tructed, operated, and closed in a manner that

avoids releases of CO2 into USDWs.

The GS rule does not set generic purity standa rds 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 sour ce of the CO2 and its physical and chemical properties. Specifically, the GS rule requires the owner or operator to subm it 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 compatib ility of the CO2 stream with fluids in the

1injection zone and minerals in both the injection and the confini ng zones and the materials used to construct the well, per §146.82(c)(3). This info rmation 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 th e 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 occu r in a Class I hazardous waste injection well.

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

but clarifies that the GS rule does not address the developm ent or regulation of capture technologies or technologies fo r removing impurities from CO2.

EPA is promulgating the GS rule under the authority of the SDWA. To the extent the commenter is seeking interpretati ons of RCRA or CERCLA, such inte rpretations 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 h azardous substances, the rule includes a default monitoring period of 50-years af ter closure of an injection well, Unfortunately, the EPA provides no objectiv e, technical rationale as to how it arrived at this monitoring period, such as an engineering analysis, and gets around it by giving discretion to Agen cy Regional Administrators or jurisdictions with primacy for UIC progr ams 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 sequestrati on. Otherwise, USDWs could end up being adversely impacted as a result of m onitoring periods improperly defined by unqualified individuals.

The NTAA therefore recommends that an obj ective, 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, EP A reviewed industry reports, existing environmental programs, and initial GS research studies. EPA provided a synthesis of pertinent results from GS modeling studies in the preambl e to the proposed regula tion. Further explanation of this analysis was included in an EPA-prep ared background document that is available in the federal docket for the GS rule, titled Comput ational Modeling of U nderground Injection of

2Carbon Dioxide for Determination of Area-of -Review and Potential Risk to Underground Sources of Drinking Water. Based on review of th ese studies, modeling results indicate that the CO2 plume stabilization may o ccur on the timeframe of 10-100 y ears after the cessation of injection. EPA believes that a 50-year default po st-injection site care timeframe is a reasonable midpoint for most GS projects and available da ta, including data submitted by commenters, do not support a different default timeframe, and has re tained this in the fina l regulation. To address concerns that, in some situations, it can be demons trated in less than 50 years that the plume and pressure front no longer pose a risk of endange rment 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 demons trate 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-in jection site care timeframe, othe r than the 50 year default, is appropriate and ensures non-endangerment of USDWs. The demonstration must be based on site-specific information, includ ing the results of site-specifi c computational modeling; the predicted timeframe for pressure decline; the pr edicted rate of carbon dioxide plume migration; site-specific chemical processes that will result in carbon dioxide trapping; the predicted rate of carbon dioxide trapping; characteriza tion 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 Ao R; 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 a nd 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 clos ure plan required at §146.82(a)(17).

EPA believes that a default post-injection site car e 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 ac commodate site-specific circumstances and various geologic conditions, and addre sses commenters¿ concerns, wh ile ensuring USDW protection. Both approaches will utilize si te-specific data, and be based on pressure monitoring and USDW impacts.

Because of the variety of site-specific circumstance s at GS sites, EPA believes that Directors, inconsultation with operators, will be in the best position to determine whether additional postinjection site care monitoring is needed (or wh ether the timeframe may be shortened), based on the circumstances of a particular project. EPA exp ects this decision to be made based on relevant site data and in consultation with all potential ly 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.

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

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

Comment: for deciding upon the 50-year monitoring period. In addition, our organization recommends that the GS rule specifica lly require that qua lified engineers trained in geologic sequest ration be substantively i nvolved 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 shor ten the post-injection site care monitoring period, but is not requiring this at §146.93.

The GS rule offers owners or operators flexibili ty 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 si te-specific data, pursuant to requirements at §146.93(b); or (2) affording the Director discretion to allow a Cl ass VI well owner or operator to demonstrate, during the permitting process based on substantial da ta, that an alternative PISC timeframe may be appropriate if it ensures non-endangermen t 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 be st position to determine whether additional post-injection site care monitoring is needed (or whether the timeframe may be shortened) or if an alternative PISC timefram e is appropriate, based on the circumstances of a particular project. EPA expects th is decision to be made based on relevant site data and in consultation with all potentia lly 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 th e nation’s Indian tribes.

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

the diminishment of minera l rights values and cause property damage, it is its potential harm to humans and the envir onment which most concern the NTAA. The

4World Resources Institute re cently communicated in its report Guidelines for Carbon Dioxide Capture, Transport and St orage, that "risks to people and ecosystems [can] arise from the potential for CO2 to accumulate in low-lying areas or areas with poor ve ntilation. If CO2 leaks to th e surface in areas with poor ventilation, such as basements or shallow dips in the ground, it can

accumulate to levels that could cause st ress or even asphyxiation in humans and animals." Unfortunately, owners and ope rations 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 preser ve tribal lands from any undue outside influences, and in this case, CO2 leakag e as a result of geologic sequestration.

Individual Response: EPA acknowledges that there are potent ial risks associated with GS. The purpose of the Class VI requirements is to minimize and mitigate potential/identified risks through proper site characterization, well cons truction, operation, monitoring, post-injection site care, and site closure and to en sure protection of USDWs. EPA be lieves 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 owne rs and operators must site, cons truct, operate, monitor, and close their wells in a manner that protects USDW s, and Class VI permits will set forth rigorous technical requirements to ensure careful planning, operation, and cl osure of GS projects. Failure to meet these requirements would be considered a violation of th e permit and would be subject to applicable civil, criminal, or administrative penalties.

EPA also notes that owners or operators of Cl ass VI wells must ensure that resources are available to prevent endangerment of US DWs 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 emergenc y and remedial response at GS sites as specified in §146.85. In the event of contamination or ot her 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 cu rrently exist to devel op regulations for Class VI wells. The GS rulemaking builds upon decades of knowledge about safe injection practices regulated by the UIC Program. Wh ile developing the GS regulati on, 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 we ll construction and operation. For example, the

5oil and gas industry has experien ce drilling and cementing wells in very deep formations, in a variety of environments (e.g., high- pressure and low-pressure form ations), and for a variety of uses (e.g., injection, oil and gas production, monitoring). EPA belie ves 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 consu lted with tribal representatives to facilitate ongoing co mmunication throughout the rulemaking process. Please see the next response for additional information. EPA is co mmitted 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, Tr ibal, and local A ssociations (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 th e lands on which they live are highly diverse and environmentally sensitive. As such, geologic sequestration conducted on or near these lands requi res extra due diligence to ensure the safety of tribes and their environments. Every effort to mitigate the environmental impacts of geologic sequestr ation, even beyond impacts to USDWs, must be taken by the EPA.

The NTAA therefore recommends that the EP A provide specifics on how it will help protect Indian tribes and their lands fro m the environmental impacts of geologic sequestration, even impacts beyond those to USDWs.

Individual Response: EPA clarifies that regulating envi ronmental 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 th is 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 stakeholde r process to ensure that all stakeholders understood the rulemaking el ements and that viewpoints and suggestions for rule modifications were recorded. EPA, with support from the American Indian Environmental Office (AIEO), engaged and consu lted Tribes early in the rulema king process, and continued to update Tribal representatives as appropriate. A dditionally, the Agency provided tribes with the contact information for EPA managers in or der to facilitate co mmunication throughout the rulemaking process.

In April 2008, prior to public ation of the proposed GS rule, the Agency sent background information about the proposed rulemaking to all fe derally recognized American Indian tribes. In addition, EPA communicated with the National Tribal Caucus of the National Operations

6Committee (NTC) and the National Tribal Water C ouncil (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 presente d information on GS and the GS regulatory

framework at the National Tribal Council on En vironmental Management (NTCEM) Meeting in Billings, Montana, in June 2008. In Septembe r 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 NT WC, State and Tribal Climate Change Council (STC3), and the National Tribal Ca ucus. Representatives had the opportunity to ask EPA managers questions related to the rule making 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 Execu tive Order 13175 and Agency recommendations.

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

Assiniboine and Sioux Tribes a nd 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, UI C Program Directors in February 2010. EPA representatives presente d the history of the rulemaking, the current schedule for finalization of the rule, and the statutory differe nces in applying for primacy fo r the proposed Class VI program versus applying for primacy for the Class II prog ram. A summary of the call is included in the docket for the GS rulemaking.

The Agency is currently reviewing its tribal co nsultation 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 duri ng program implementation.

In response to the comment that "extra due di ligence" should be require d on Tribal lands, EPA clarifies that the Class VI GS rule requirements are protective and a pply 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, Tr ibal, and local A ssociations (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

7tribes, failing among other th ings, to develop and follow an appropriate tribal consultation plan.

Individual Response: EPA disagrees with the commenter's a ssertion. EPA’s tribal consultations during the development of the GS rule are described in th e response above.

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

Comment Code: 1930 1.4.4.2 Consultations with State, Tr ibal, and local A ssociations (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 seque stration 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 trib es depend upon certain plants for cultural and religious ceremonies, and with increas ed soil acidity due to CO2 leakage from geologic sequestration, the health and su rvival 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 trib es. 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 interest ed 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 consu ltation 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 believe s, however, that an opportunity for developing such a plan still exists, but re quires at a minimum that the comment rule concerning the GS rule be extend ed 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 stakehol ders understood the rulema king elements and that viewpoints and suggestions for ru le modifications were recorde d. EPA, with support from the American Indian Environmental Office (AIEO), e ngaged Tribes early in the rulemaking process, and continued to update Tribal representatives as appropriate. Additionally, the Agency provided

tribes with the contact info rmation for EPA managers in order to facilitate ongoing communication throughout th e rulemaking process.

8In April 2008, prior to public ation 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 C ouncil (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 pres ented information on GS and the GS regulatory

framework at the National Tribal Council on En vironmental Management (NTCEM) Meeting in Billings, Montana, in June 2008. In Septembe r 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 NT WC, State and Tribal Climate Change Council (STC3), and the National Tribal Ca ucus. Representatives had the opportunity to ask EPA managers questions related to the rule making 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 Execu tive 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 a nd 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, UI C Program Directors in February 2010. EPA representatives presente d the history of the rulemaking, the current schedule for finalization of the rule, and the statutory differe nces in applying for primacy fo r the proposed Class VI program versus applying for primacy for the Class II prog ram. EPA received comments from the Navajo Nation UIC Director as a co-regulator for the prog ram. 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 a ffected 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 ensu re protection of USDWs from endangerment associated with injection activities. These regulations protec t all populations from a dverse health effects associated with endangerment to USDWs. EPA clarifies that regulating environmental impacts beyond impacts of endangerment to USDWs is be yond the scope of EPA’s authority under the Safe Drinking Water Act and this rulemaking.

The Agency is currently reviewing its tribal co nsultation 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 duri ng program implementation.

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

Comment Code: 1240 1.1.1.3 Suggested changes/ed its 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 appropria te notification and information to such State, Tribal, and local authorities as have authority over drilling activities to enable such State, Tribal and local aut horities to impose appr opriate 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, "D ocumentation 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 drilli ng activities that may penetrat e the injection and confining zone(s)."

For additional information on EPA's final regula tory approach, please see the final rule and preamble as well as the rulemaking docket.