### 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.From: "Fisher, Emily" <EFisher@eei.org>

To: Gina McCarthy/DC/USEPA/US@EPA, Peter Silva/DC/ USEPA/US@EPA, Ann Codr ington/DC/USEPA/US@EPA,

Cc: "Shea, Quin" <QShea@eei.org>, "Fang, Bill" <BFang@ee i.org>, "Obenshain, Karen" <KObenshain@eei.org>, " T

<Kipp.Coddington@alston.com>

Date: 10/15/2009 02:45 PM

Subject: Edison Electric Institute Comments Related to CCS

Today, the Edison Electric Institute filed comments in response to the Notice of Data Availability

and Request for Comment for the Underground Injection Control Program’s proposed rule

governing the injection of carbon dioxide for geologic sequestration, Docket ID No. EPA

‐ HQ

‐ OW

‐

2008

‐ 0390. These comments are attached for your information. Also attached are related

comments about carbon capture and storage (CCS) that EEI recently filed in connection with the

Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program, Docket

ID No. EPA

‐ HQ

‐ OAR

‐ 2005

‐ 0161.

Thank you for the opportunity to submit comments about CCS in these important rulemakings.

Questions regarding either of these submissions may be directed to Emily Fisher

( efisher@eei.org

, 202

‐ 508

‐ 5616) or Dr. Karen Obenshain ( kobenshain@eei.org

, 202

‐ 508

‐ 5223).

Sincerely,

Emily Fisher

Emily Sanford Fisher

Attorney, Office of the General Counsel | Edison Electric Institute

202

‐ 508

‐ 5616

‐ office | 202

‐ 731

‐ 5887

‐ mobile | efisher@eei.org

Finding Answers in the Electric Power Sector701 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

- 2696

Telephone 202

- 508

- 5615

Fax 202

- 508

- 5027

www.eei.org

Q UINLAN J. S HEA

, III

Executive Director, Environment



### Submitted via regulati ons.gov

October 15, 2009

Water Docket, Docket ID No. EPA

- HQ

- OW

- 2008

- 0390

EPA Docket Center (EPA/DC)

Public Reading Room, Room 3334

EPA West

1301 Constitution Ave., N.W.

Washington, D.C. 20460

Dear Sir or Madam:

Re: Federal Requir ements Under the Underground Injection Control Program for

Carbon Dioxide Sequestration Wells; Notice of Data Availability and Request for

Comment, 74 Fed. Reg . 44802 (August 31, 2009)

The Edi son El ectri c Insti

tute (EEI) appreciates the opportunit y to com ment on th e Environmental

Protecti on Agency ’s (EPA or Agency) Notice of Data Availabilit y (NODA) and Request for

Comment related to the Agency’s proposed regulatio ns fo r inject io n and geo lo gi c storage of

carbon dioxide under th e Safe Drinking Water Act ’s U nderground Injection Control (UIC)

program , 73 Fed. Reg . 43492 (July 25, 2008)

.

EEI is the associat io n of shareho lder

- owned el ectric com panies throughout the United States.

Our m embers service 95 percent of the ult imate customers in the shareho ld er

- owned segm ent of

th e industry , and represent approximately 70 percent of the U.S. el ectric power industry . EEI

continue s to participate in the UIC rul emaking t o facilitate the development and deplo yment of

carbon capture and storage (CCS), a crit ical com ponen t in the full portfolio of options needed t o

reduce greenhouse gas emissio ns. Thank you for the opportunit y to submit these addit io nal

comments on this rulemaking. Questions about this submissio n may be directed to Emily Fisher

( efisher@eei.org , 202

- 508

- 5616) or Dr. Karen Obenshain ( kobenshain@eei.org , 202

- 508

- 5223).

Si ncerely,

Quinlan J. Shea, III

QJS:esf

At tachm ent

### 2 COMMENTS OF EDISON ELECTRIC INSTITUTE

ON THE EN VIRONMENTAL PROTECTION AGENCY’S

FEDERAL REQUIREMENTS UNDER THE UND ERGROUND INJECTION

CONTROL PROGRAM FOR CARBON DIOXIDE GEOLOGIC

SEQUESTRATION WELLS; NOTICE OF DATA AVAILABILITY AND

REQUEST FOR COMMENT

DOCKET ID NO. EPA

- HQ

- OW

- 2008

- 0390

October 15 , 2009

The Edi son El ectri c Insti

tute (EEI) 1 

### submits these comments on the Environmental

Protecti on Agency (EPA or Agency)’s Notice of Data Availabilit y and Request for

Comment related to the Agency’s proposed regulatio ns fo r inject io n and geo lo gi c storage

(GS) of carbon dioxide ( C O 2 

### ) under the authorit y of the Safe Drinking Water Act

(SDWA) Underground Inject io n Control ( UIC ) program, issued in July 2008 (Docket ID

No. EPA

- HQ

- OW

- 2008

- 0390 ) , 73 Fed. Reg . 43492 (July 25, 2008) (“NODA”) . EEI

submitted pre

- rul emaki ng comments to the Agency on May 15, 2008, provi ded oral

and

wri tten testim ony at EPA’s September 30, 2008 public hearing on the proposed rules, and

submitted written comments on December 24, 2008. EEI al so provi ded testim ony at the

public hearing on the NODA on September 17, 2009. These comments and testimo ny are

incorporated by

ref erence herein.

1 

### EEI is the nat io nal association of shareho lder

- owned electri c utilit ies in the U.S. Our

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

percent of the ult imate consumers in the industry ’s investor

- owned segm ent.

### 3

I. Executive Summary

C arbon capture and storage ( CCS ) i s a cri ti cal element in the full portfolio of options

needed not only to reduce CO 2 

### emissio ns, but also to ensure continued affordable and

reliable electric service to customers throughout the nat io n. The commercial availabilit y

of CCS depends upon the development of clear, flexible, and appropriately tailored

regul atory

regimes that will facilitate developme nt of and invest me nt in CCS techno lo gy

and projects while protecting against potential environmental risks. We commend the

Agency for its continued efforts to establish such a regime for GS and its efforts to

balance the availabilit y of new data wi

th the need for regulatory

certaint y. Inform at io n

about GS currently available can form the basis of an effective and safe regulatory

program

.

In addit io n , we commend the Agency for its careful re considerat io n of th e ori ginally

proposed prohibit io n on inject io n and storage above the lowermost underground source

of drinking water (USDW) and its revised proposal to allow inject io n and storage above

th e l owerm ost USDW where a waiver is obtained

.

Fundamentally , proper si

te selecti on is cri

ti cal to a successful GS proj ect. Indeed, proper

si te characteri zat io n is the most effective risk management tool for GS projects and the

best way to ensure protecti on of

USDW s

. It serves to minimize, if not eliminate, any

potenti al threats to USDW s th at GS proj ects m ay pose. Accordingly, a blanket

prohibit io n on th e use of potential receiving formatio ns above the lowermost USDW,

even where regulatory

provi si ons f

or a waiver are available, is unnecessary . However,

allowing for a transparent, outcome

- predictable waiver proces s th at works within the

### 4

current definit io n o f USDW woul d ameliorate m any of the concerns associated wit h

limit ing inject io n and storage to formations below the lowermost USDW.

In considering new data on GS projects, EPA must separate the utilit y of m oni tori ng

techno lo gi es, parti cularly the use of tracers and surface air or soil gas mo nit oring, in the

experimental context in further demonstrating the efficacy o f storage fro m th ei r potenti al

utilit y as “leak detectors” during commercial CCS operations. Pe rmit writers need clear

gui dance on appropri ate m oni tori ng tools for commercial CCS projects, as well as

sufficient funding to undertake appropriate review of applicat io ns.

Finally , to f

urther foster the development and deployment of CCS, a single rule is needed

to address issues arising outside the SDWA context in order to avoid piecemeal

regul at io n. EEI would welco me the opportunit y to work wi th EPA in craft ing such a

rul e.

II. Specific Comments

a. Project Siting

As ori ginally proposed, the Class VI provisio ns woul d have prohibited any inject io n and

storage in receiving format io ns above the lowermost USDW. 2 

### S uch a limitat io n on

2 

### Several commenters wrote in favor of the blanket prohibit io n, and while EEI does not

specifically address each of their co mments here, two comments in part icu lar warrant

ment io n. The first stated that inject io n below the lowermost USDW is a long

- standing

principle of UIC deep well injection. This is o f course true with regard to Class I wells,

which include wells used to inject hazardous industrial wastes (not CO 2 

### ). However,

inject io n above the lowermost USDW is also a widespread practice wit h regard to Class

II wells, including those specifically designed to inject CO 2 

### fo r purposes of enhanced o il

recovery . Each injecti on well permitted under the UIC program is required to

dem onstrate that USDWs will not be endangered. Inject io n limitat io ns f or CO 2 

### are not

mandated simply because hazardous wastes are subject to such limitat io ns. EEI’s

### 5

receiving format io ns woul d be unnecessary, unduly b urdensom e, and undesirable for

several reasons:

 A categori cal

el iminat io n of cert ain potential receiving fo rm at io ns is

unnecessary

i n light of the overall funct io n of the UIC rules, which require

all permit applicants to demonstrate that projects will not endanger

USDW. Further, the proposed rules would require permittees to

dem onstra

te the presence of a “suitable geo lo gi c system” for a project.

The suitabilit y of any particular receiving format io n will thus necessarily

be evaluated for each project.

 Each proj ect and proj ect si te will possess its own unique characterist ics.

For si tes th at woul d requi

re inject io n above the lowermost USDW, there

may exist other characterist ic s that woul d provi de equivalent or greater

protecti on f

or USDW.

 Limitat io ns on injection above the lowermost USDW is current ly imposed

only on Class I hazardous was te inject io n wells. As carbon dioxide is not

a hazardous waste, i mposing an ident ical requirement for CO 2 

### inject io n

previous co mments contain further discussio n regarding why it is not appropriate to

subject CO 2 

### inject io n wells to regulat io n designed to address hazardous wast es.

The second co mment stated that given the relatively untested nature of commercial

- scale

GS, inject io n limitat io ns are prudent during the early years and may be relaxed later

shoul d experience warrant. While EEI does not disagree that GS rules may b e tail ored

appropriately

as experti se i s gained through experience, imposing inject io n depth

limitations across the board is unnecessary (in addition to the reasons explained below)

given the incent ives that are likely to drive early CCS projects. For exa mple, the init ial

commercial

- scale CCS proj ects m ay likely be those that offer the very b est in term s of

si ti ng characterist ic s.

### 6 wells is likely

to create public mispercept io ns concerning the safet y of G S

proj ects.

 Limitat io ns on injection above the lowermost USDW als o ma y serve to

exclude o il and gas reservo ir s as potenti al CO 2 

### receiving format io ns

.

T he appropriateness of any given receiving formatio n mo re appropri ately woul d be

considered on a case

- by

- case basis in light of the geologic characterist ic s of a given

p roj ect and based on the application o f cl ear and appropri ate param eters set forth in the

rul es. In response to such comments, the Agency now seeks comment on regulat io ns that

woul d retain the prohibit io n on injection and storage above the lowermost USDW, but

provi de f or a waiver process to accoun t f or ci rcumstances in which there are deep

USDW.

Eliminat ing the default prohibit io n and making sit ing determinat io ns on a case

- by

- case

basis as outlined above woul d achieve the same level protection for USDW s a s th e

imposi ti on of a waiver process (which could be interpreted as a baseline assumpt io n that

all pro jects inject ing above the lowermost USDW pose some heightened risk to drinking

water), wi

th out the addi

ti on of unnecessary

regulatory

hurdles. Neverthele ss

, EEI

commends the Agency’s revised proposal for its recognition that a blanket

prohibition related to injection depth would be problematic and unnecessary , and

recognizes that a waiver procedure may provide a workable compromise for the

competing intere sts evidenced in the comments

. The contemplated waiver process is

an example of how the Agency may insert needed flexibilit y int o the process to take into

### 7

account proj ect

- specific si ti ng and other is sues while ensuring th e continued protecti on of

USDW.

Fundamentally , proper si

te selecti on is cri

ti cal to a successful

GS proj ect. Indeed,

proper site characterization is the most effective risk management tool for GS

projects. It serves to minimize, if not eliminate, any potential threats to USDW that GS

proj ects m ay

pose. EEI m aintains that sit ing decisions may best be made on a project

- by

proj ect basis through exercise of the program director’s discretion bounded by clear

principles for its applicat io n, and that a blanket prohibit io n on use of potential receiving

fo rm at io ns above the lowermost USDW, even where regulatory provi si ons f

or a waiver

are available, is unnecessary. However, allowing for a waiver process would ameliorate

many of EEI’s concerns with limit ing injection and storage to format io ns b el ow the

lo werm ost USDW.

As proposed, the waiver process would requi re applicants to submit addit io nal

inform at io n to the UIC program director and Public Water Supply Supervisio n (PWSS)

program director for review prior to complet io n of the permit appl icat io n, and these

di rectors woul d weigh this information against specified factors in making waiver

decisio ns. In draft ing a final rule, EPA should strive to develop c lear guidelines for

decision makers in evaluating waiver applications as well as the de velopment of a

transparent and, to the extent possible, outcome

- predictable process to provide

guidance for future applicants. In terms o f th e substantive requirements for waiver

applicants, the Agency shoul d guard against the insertion of unnecessary co m plexi ty and

### 8

redundancy int o the process that bring no corresponding increase in protection of

USDW s

.

The Agency

propos es th at applicants for a waiver be required to co nsider several issues

rel ated to water supply , including “regio nal water resource issues ” and “alternat ive water

supplies or water treatment options to address unant ic ipated movement of the injectate or

fo rm at io n fluids.” Further, t he NODA may be read to suggest that inject io n depth

limitations are desirable to protect for underground waters not m eet ing the Agency’s

current definit io n o f USDW ( i.e ., 10,000 ppm total disso lved so lids (TDS) ) and that any

waiver decisio ns also ma y take into considerat io n the protecti on of such underground

waters . EEI does not dispute the benefits o f requi ring w aiver applicants to consider

potenti al i ssues rel ated to water supply or water treatment, or the need to consider

potenti al technol ogical

advancements in term s of underground water access and

treatm ent. Ho wever, USDW s , the subject of the UIC program’s pro tecti on, are defined

only to include th ose below 10,000 ppm TDS. Absent a proposal to change the definit io n

of USDW

, the Agency must work within t he current definition and craft any

injection depth limitations with it in mind

.

b. Summary of R ecent F ield D a ta and R esearch S tudies

The NODA notes that th e availabilit y of recent field data and research studies “coul d

change EPA’s approach to the final rulemaking.” 3 

### Consideration o f new data i s a perfect

example of the adapt ive approach EEI encouraged in it s pr evious co mments, which

woul d allo w incorporation o f new informat io n and data over time, as opposed to the

approach favored by

som e commenters of wait ing to develop rules unt il further

3 

### 73 Fed. Reg . 43492, 44803.

### 9

inform at io n and data are gathered. I n order to spur development of a co mmercial

- scale

GS industry , potenti al operators and investors need a regulatory f ramework wi

thin which

to work now. I nformation about GS currently available can form the basis of an

effective and safe program.

The NODA contains discussio n of three experi me nt al GS proj ects as well as research

being conducted regarding the potential effects on USDWs in the highly unlikely event

th at injected CO 2 

### migrates fro m th e receiving formation. In evaluat ing the techniques

em pl oy ed in these proj ects and the data prod uced, the Agency shoul d keep in mind that

experimental projects are just that

— experimental projects. The techniques emplo yed in

any given setting may have much to offer the project, but their successful emplo yment in

such a setting should not necessarily dictate thei r universal applicat io n.

1. Regional Partnership Projects

In parti cular, t he NODA ’s discussio n of the SECARB Pl ant Daniel 4 

### proj ect notes that the

proj ect m eets a number of Class I requirements related to pre

- inject io n mechanical

int egri ty of b oth the inject io n and m oni

toring well

, 5 

### including a radioactive tracer survey

.

It further emphasizes th e proj ect ’s u se of surface or near

- surface mo nit oring for upward

4 

### EEI m ember Southern Company is a SECARB partner. Its subsidiary Mississippi

Power operates Pl ant Daniel , the host si te of the proj ect.

5 

### EEI’s December 24, 2008, comments included detailed discussio n of its concerns about

any parallels that might be drawn between Class I hazardous waste injection wells and

inject io n wells designed for GS an d refers the Agency to that discussio n. As further

di scussed herein, the fact that various Class I elements may have been emplo yed in any

given experimental pro

ject should not translate to a generalized requirement that those

el ements be imposed on all co mmercial GS projects.

### 10

CO 2 

### migrat io n , stating that use of these techniques “provides the EPA with preliminary

inform at io n regarding the efficacy and appropriateness of these techno lo gi es at certain

si tes” and “supports the need for a site

- specific monitoring plan that will allow use of a

range of mo nit oring techniques suitable for each unique GS site.” 6 

### It al so notes that such

mo nit oring has fo und “no indicat io n of the return of the injected CO 2 

### int o the shallow

subsurface.” 7 

### The NODA also references the use of tracers in its discussio n of the SWP

Project in Aneth Field, Utah, stating that the project “confirms th e need for a project

design with a robust monitoring plan” as well as “the utilit y of various monitoring

techno lo gi es,” and in its discussio n of the SWP Project in Pump Cany on , New Mexico. 8



### It i s appropri ate to test techniques such as tracers and surfac e ai r/soil gas m oni

toring to

determine their overall usefulness and effect iveness during this experimental period for

CCS

. The NODA’s description of the se three project s , however, co uld be read to suggest

th at the Agency

f avors em pl oy ing requirements fo r th e use of tracers and/or surface

ai r/soil gas m oni tori ng

. EEI has previously advised against imposition of a

requirement to use tracers or surface air/soil gas monitoring to detect movement of

CO 2 

### , even where, as the Agency proposed, such a requirement i s left to the UIC program

di rector’s di screti on. In brief, these technologies would likely provide too litt le

inform at io n, too late, in terms of protecting USDWs, and the risk of “false posit ives” is

high. Requiring their use may create or encourage over ly negat ive and unwarranted

public perception regarding the safet y of GS. Further, tracers may present thei

r own

6 

### 74 Fed. Reg. at 44806.

7 

### Id.

8 

### Id. at 44806.

### 11

safet y concerns. Finally

, th e Agency’s authorit y under the SDWA to protect USDWs via

th ese surface

- le vel mo nit oring tools is not clear

.

W hile the use of many

technol ogi es, including tracers and surface air/so il gas mo nit oring,

may be appropriate and useful in the context of an experimental proj ect, the Agency must

keep in mind th is context

. T he utilit y of such technol ogi es in any given exp erimental

context does not necessarily warrant in favor of requiring their use in a commercial

setting

. Moreover, EPA must separate the utility of these technologies in the

experimental context in further demonstrating the efficacy of storage from their

p otential utility as “leak detectors” during the operation of actual commercial CCS

projects. As noted above, tracers will not provide sufficient information in an

appropriate timeframe to allow for immediate remediat io n of any deficiencies in the

inject io n well that may

resul t i n a CO 2 

### le ak.

2. Lawrence Berkeley National Laboratory (LBNL) Studies

The NODA discusses studies underway at LBNL to test the potential o f CO 2 

### to m obilize

trace el ements in potable groundwater. It notes that the “majorit y of resul ts di d not show

mo bilizat io n” of trace elements such as barium, cadmium, lead, ant imo ny, and zinc “at

levels exceeding the MCL [ ma ximum contaminant level ] or AL [ acti on l evel ] .” 9 

### It also

notes that the results suggest that under certain condit io ns, arsenic le vels could

potenti ally

exceed Federal

drinking water standards when elevated CO 2 

### le vels are

present. It concludes that while it “is important to emphasize that these studies looked at

9 

### Id. at 44807.

### 12

potenti al consequences of CO 2 

### leakage into the USDW, not the likeliho od of such

leakage occurring. The goal o f th e UIC program and these regulations is to ensure that

injectate does not con

taminate USDWs in the first place.” 10



### It i s of course important to understand potential effects on USDWs should migrat io n

occur; howeve r, i

t i s equally

important to retain the context. P roper site

characterization is the most important risk management tool for GS. M igration of

CO 2 

### from the receiving formation of properly sited and managed projects is

extremely unlikely

. The Intergovern mental Panel on Climate Change (IPCC) concluded

in 2005 that the fraction of CO 2 

### retained in “appropriately selected and m anaged

geol ogi cal reservoi

rs” is likely to exceed 99 percent over 1,000 y ears. 11 

### Regardless, it is

notabl e that even in the context of th is “worst case scenario,” the majorit y of resul ts di d

not demonstrate potentially harmful impacts to USDWs.

c. Comprehensive Regulatory Framework for GS

The NODA notes that m any co mmenters on the proposed rule encouraged the Agency to

consider a more “ co mprehensive framework” for GS , addressing issues arising under

statutes other than SDWA, such as the Clean Air Act (CAA)

, th e Resource Conservat io n

and Recovery

A ct (RCRA) , and th e Com prehensive Environmental Response,

Com pensat io n and Liabilit y Act ( CER CLA )

. 12 

### It fu rther st at es that the Agency “is

10 

### Id.

11 

### See IPCC, Special Report on Carbon Dioxide Capture and Storage, section 1.6.3,

available at

, http://www.ipcc.ch/pdf/special

- reports/srccs/srccs_wholereport.pdf

.

12 

### EEI’s previous comments include a discussio n of regulatory and liabilit y issues related

to potential applicat io n of CERCLA and RCRA to the GS context and the need f or thei r

separate treatment by

the Agency.

### 13

currently evaluat ing the need for a more comprehensive regulatory framework,” and that

if the Agency “chooses to pursue” such a framework, it will seek public co mment on any

proposal it develops. 13



### The Ag ency s houl d to adhere to its limited jurisdiction under SDWA in promulgat ing

UIC rul es f

or GS, in order to help achieve a regulatory f ramework that is stable and not

subject to legal challenge based on lack of authority. A t the sam e time, while separate

regul at ory

structures for CCS are to some extent necessary

, a single rule is needed to

address issues arising outside the SDWA context in order to avoid piecemeal

regulation. In the last y ear, the Agency h as considered various provisio ns di rect ly

impact ing CCS p roj ects under the Agency’s proposed rul e on Mandatory Reporting of

Greenhouse Gases ( Docket ID No. EPA

- HQ

- ORA

- 2008

- 0508 ), 74 Fed. Reg . 16448

(April 10, 2009), as well as its proposed changes to the Renewable Fuel Standard (RFS)

Program (Docket ID No. EPA

- H Q

- OAR

- 2005

- 0161), 74 Fed. Reg . 24904 (May 26,

2009) , raising concrete concerns that CCS may be unnecessarily governed through a

patchw ork of

separate provisio ns. A holistic approach to CCS to the greatest extent

possible is of critical importance to ensur ing efficient development and commercial

deployment of CCS technologies. EEI would welco me the opportunit y to work wi th

EPA in craft ing a rule that appropriately addresses CCS.

T he NODA states that should the Agency pursue this approach, it will “e ndeavor to issue

a m ore com

prehensive rule in the same time frame as it had planned for the stand

- al one

13 

### 74 Fed. Reg . at 44805.

### 14

UIC GS rul emaking.” 14 

### T he sooner regulatory certaint y can be provi ded, the m ore i t will

assist development and deplo yment of commercial

- scale CCS as a t ool to combat climate

change while ensur ing reliable, affordable energy for the country going forward.

d. State Progress

The NODA seeks co mment on “current State activit ies addressing GS,” acknowledging

th at states have made great progress on this front and expressing its desire not to “unduly

hinder” such progress. The NODA also references the “expertise and infrastructure”

currently embodied in state programs and states’ abilit ies to bring clarit y to CCS i ssues

beyo nd those associated specifically with un derground injection. The NODA s uggests an

approach that would give the states substant ia l authori ty under a del egated program

(through primacy). 15



### States and tribes should play a key role in managing CCS projects and their decades of

valuable experience regulating CO 2 

### inject io n should be tapped as a resource. As the

NODA notes, states have substant ia l authori ty to regul ate aspects of CCS projects, such

as is sues rel ated to property ri ghts and financial incent ives beyo nd inject io n and storage,

and the Ag ency’s regulat io n on the latter can and should complement state action on the

fo rm er.

14 

### Id. In the final rule for the Mandatory Reporting of Greenhouse Gases, which was

si gned on September 22, 2009

, but has not y et appeared in the Federal Register , EPA

noted that it woul d soon undertake a new rulemaking for CO 2 

### GS sites under the CAA.

EEI supports the development of co mprehensive rul emaking th at wo uld provide

regul atory

certaint y fo r CCS proj ects wi th out imposing addit io nal or unnecessary

regul atory

requi rements.

15 

### See id. at 44812.

### 15

According l y, states shoul d be able to seek primacy for only Class VI wells should they so

choose, to ensure that th ey are given credit and recognit io n fo r thei r valuab le efforts on

GS wit hout also requiring them to assum e the burden of the entire UIC program fo r the

state. Adequate funding for primacy states, given the extraordinarily detailed

process that will likely accompany obtaining a Class VI permit , must be ens ured

.701 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

- 2696

Telephone

– 202

- 508

- 5027

Fax 202

- 508

- 5150

qshea@eei.org

www.eei.org

Q UINLAN J. S HEA

, III

Executive Director, Environment



### September 25, 2009

Air and Radiat io n Docket and Informat io n Center

U.S. Environmental Protection Agency

Mail Code: 2822T

At tn : Docket ID No. EPA

- HQ

- OAR

- 2005

- 0161

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Submitted by E

- ma il: asdinfo @epa.gov

Re: Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel

Standard Program, Docket No EPA

- HQ

- OAR

- 2005

- 0161, 74 Fed. Reg

. 24904 (May 26, 2009 )

The Edi son El ectri c Insti

tute (EEI) appreciates the opportun it y to comment on

th e U.S. Environmental Protection Agency’s (EPA) proposed changes to the

Renewable Fuel Standard Program under the Cl ean Ai r A ct, parti cularly

EPA’s di scussio n o f th e possible role of carbon capture and storage (CCS) in

addressing lifecyc le greenhouse gas (GHG) emissions from renewable fuels.

EEI is the associat io n of shareho lder

- owned el ectric com panies throughout the

United States. Our members service 95 percent of the ult imate customers in

th e shareho lder

- owned segment of the indust ry , and represent approximately

70 percent of the U.S. electric power industry

.

Som e EEI m embers are actively engaged in CCS research, de velopment,

dem onstrati on and depl oy ment efforts. EEI and its members continue to be

active participants in the Off ice of Water’s rulemaking under the Underground

Inject io n Control Program for carbon dioxide geo logic sequestration wells

, Docket No. EPA

- HQ

- OW

- 2008

- 0390, 73 Fed. Reg . 43492 (July 25, 2008)

. To facilitate the development and deplo yment of CCS as a tool t o reduce

GHG emissio ns across industries, EPA should work toward comprehensive,

cross

- program regulat io ns that avoid unnecessary or duplicat ive requirements

. EEI would welco me the opportunity to work with EPA on such a rule.701 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

- 2696

Telephone

– 202

- 508

- 5027

Fax 202

- 508

- 5150

qshea@eei.org

www.eei.org

Q UINLAN J. S HEA

, III

Executive Director, Environment



### Page 2

At tached are more deta iled comments on the proposed rule. For further

inform at io n, pl ease contact Karen Obenshain ( kobenshain@eei.org , 202

- 508

- 5223) or Emily Fisher ( efisher@eei.org , 202

- 508

- 5616)

.

Si ncerely,

Quinlan J. Shea, III

QJS:esf

At tachm ent

### 1 COMMENTS OF EDISON ELECTRIC INSTITUTE

ON THE ENVIRONMENTAL PROTECTION AGENCY’S

PROPOSED CHANGES TO RENEWABLE FUEL STANDARD PROGRAM

DOCKET ID NO. EPA

– HQ

– OAR

– 2005

– 0161

September 25, 2009

Th e Edi son El ectri c Insti

tute (EEI) 1 

### submits these comments on proposed changes of the

Envi ronmental

Protecti on Agency (EPA or Agency) to the Renewable Fuel Standard

(RFS) Program under th e Cl ean Ai r A ct, as am ended by s ect io ns 201, 202 and 210 of the

Energy In dependence and Securit y Act of 2007, issued in May 2009 ( D ocket ID N o

.

EPA

- HQ

- OAR

- 200 5

- 0 161), 74 Fed. Reg . 24904 (May 26, 2009) (Proposed Rules).

EEI’s comments are tailored to two particular aspects of the Proposed Rules: their

acknowledgement that c arbon capture and storage (CCS) “ coul d be an effect ive method

fo r si gnificant ly reducing the life

- cycle greenhouse gas ( GHG ) emissions associated with

renewable fuel production ,” 2 

### and the request for comment on “[s]pecific areas that would

need to be addre ssed before allowing the renewable fuel producers to benefit from CCS

in meeting GHG thresho lds.” 3

1 

### EEI is the nat io nal association of shareho lder

- owned electri c utilit ies in the U.S. Our

U.S. m ember com

panies serve 95 perce nt of the ultimate customers in the shareho lder

owned segment of the industry and nearly

70 percent of all electric utilit y custom ers in

th e nat io n.

2 

### 74 Fed. Reg

. 24952.

3 

### Id.

### 2

I. Benefits O f Recognizing CCS A s A Tool F or Fuel Producers

EEI and our members believe that CCS techno lo gies are a cr it ical element in the full

portf olio of opti ons needed to reduce GHG emissions and combat climate change, and

th at the promise of CCS is not limit ed to i ts use in connecti on wi

th coal

- fi red electri ci

ty

producti on. We thus applaud the Agency f or i ts recogni ti on that CCS can be a key

el ement in r educing the life

- cycle GHG emissio ns of renewable fuels. Not only does the

Agency’s acknowledgement lay the groundwork for use of CCS in reducing carbon

di oxide (CO 2 

### ) emissio ns associated with renewable fuels, it also serves to support

commercial developm ent and depl oy ment of CCS techno lo gi es m ore generally.

II. Working Toward A Comprehensive Regulatory Framework F or CCS

EEI and our members further support the development of clear, flexible and appropriately

tailored regulatory

regimes that will facilit ate development of and investment in CCS

techno lo gy

and proj ects. Of parti cular importance in this context is the need to avoid

pi ecemeal

regulat io n of

CCS

. The Agency is current ly developing regulat io ns to govern

th e commercial

- scale inject io n and stora ge of CO 2 

### under the Underground Inject io n

Control (UIC) program

of the Safe Drinking Water Act (SDWA). 4 

### As the Proposed

Rul es note, pursuant to the scope of the Agency’s jurisdict io n under the SDWA, the UIC

rul es must be tailored to avoid threats to under ground sources of drinking water (USDW)

and cannot address the myriad other issues associated with commercial CCS projects,

including issues related to use of CCS to satisfy exist ing or future emissio ns reducti ons

requi rements. While we thus recognize tha t separate regulatory structures for CCS are to

4 

### EEI refers the Agency generally to its comments on the proposed UIC rule s , filed

December 23, 2008, in Docket No. EPA

- HQ

- OW

- 2008

- 0390, fo r addit io nal context.

### 3

some extent necessary, we encourage the Agency to develop a single rule to address

issues arising outside the SDWA context, including those that the Agency raises in the

context of the Proposed Rules, as disc ussed in m ore detail b el ow.

A. Avoiding Potential Conflicts with the UIC Program

EPA’s Proposed Rules indicate that in order for producers to utilize CCS as a means to

reduce life

- cycle GHG emissions from fuels, the following elements will need to be

addres sed:

 T he means through which the CO 2 

### wo uld be captured fro m th e renewable

fuel production facilit y

.

 T he minimum fract io n that m ust be captured

.

 The means for transporting to the inject io n site

.

 The mo nit oring procedures to ensure long

- term storage of CO 2



### .

 The m echanisms for tracking and account ing fo r potential leakage of

captured CO 2 

### during transport to the storage site or after injection has

occurred

.

 T he ty

pe and level

of surface or subsurface monitoring that would be

requi red to dem onstrate l ong

- ter m storage of CO 2



### .

 The appropri ateness of “addit io nal mo nit oring and reporting

requi rements,” for example, whether there should be a requirement for the

mo nit oring and reporting of CO 2 

### vo lu mes captured, transported, injected

and stored, as well as any fugi ti ve emissio ns rel eased

.

 T he appropriateness o f establishing a performance standard for CO 2 

### leakage during transport, inject io n or geol ogic storage

.

 The appropri ateness of requiring producers to demonstrate the amo unt of

CO 2 

### sequestered , and of specify ing th e minimum fracti on of CO 2 

### emitted

th at m ust be captured and stored in order for a renewable fuel producer to

qualify

. 5

5 

### See id

.

### 4

A number of these elements relate to monitoring storage sites for leakage of CO 2 

### . In the

context of the Proposed Rules, monitorin g f or l eakage f

rom the point of capture through

subsurface storage is necessary to ensure that possible emissio ns of CO 2 

### to the

atm osphere are avoi ded and that the life

- cycle GHG emissio ns associated with a fuel are

reduced. 6 

### Alt hough this goal is differe nt f rom the need to protect USDWs evidenced in

th e m oni tori ng requirements of the proposed UIC rules, poten tial overlap between the

tw o exists. We urge the Agency to ensure that any monitoring requirements that may be

considered for purposes of the Propos ed Rul es are not duplicative o f potenti al SDWA

mo nit oring requirements and do not impose addit ional unnecessary burdens on CCS

proj ects.

In parti cular, the Proposed Rules seek comment on what monitoring procedures may b e

appropriate to ensure long

- term storage of CO 2 

### , as well as what ty pe and level

of surface

or subsurface monitoring shoul d be required to demo nstrate l ong

- term storage of CO 2 

### and

whether a “performance standard” for subsurface storage should be imposed. The

proposed UIC rules contain a n umber of provisio ns rel ated to subsurface monitoring,

which are intended to ensure that injected CO 2 

### remains in the receiving format io n as

int ended and thus does not pose a threat to USDW. By thei r nature, such provi si on s will

ensure that long

- term

storag e of CO 2 

### in the subsurface is achieved; if CO 2 

### rem ains in the

6 

### If CO 2 

### is properly captured, transported and injected into appropriate geologic

fo rm at io ns, the ri sk of emissio ns is extremely low. The Intergovernment al Panel on

Climate Change (IPCC) concluded in 2005 that the fract io n of CO 2 

### retained in

“appropri ately

selected and m anaged geol ogi cal reservoi rs” is likely

to exceed 99 percent

over 1

, 000 years. See IPCC, Special Report on Carbon Dioxide Capture and Sto rage

,

s ect io n 1.6.3, available at : http://www.ipcc.ch/pdf/special

reports/srccs/srccs_wholereport.pdf

.

### 5

receiving format io n, i

t i s not escaping into the environment. Assuming that all

commercial CCS projects would require permitt ing under the proposed UIC rules and

woul d be subject to thei

r requi rements, proj ect operators will already b e requi red to

com ply wi th a number of provisio ns related to subsurface mo nit oring and prevent io n of

migration

— provisi ons that are likely m ore stringent than those that would be needed if

escape into the atmosphere w ere the only potenti al concern. EEI encourages the Agency

to consi der the proposed monitoring requirements that may b e put in place through the

UIC program and avo id duplicat ive or unnecessary additional mo nit oring or performance

requi rements wi

th regard to the subsurface in the context of the Proposed Rules.

The proposed UIC rules also include a provision that would give the UIC program

di rector the discret io n to require the use of tracers or surface air/so il gas monitoring “to

detect m ovement of CO 2 

### t hat could endanger a USDW.” 7 

### As is explained in EEI’s

comments to the proposed UIC rules, EEI is opposed to such a provisio n in the UIC rules,

and notes, as the A gency has acknowledged, that regulation of surface or atmospheric

rel eases of CO 2 

### is outsi de th e scope of the proposed UIC rules and the Agency’s SDWA

authori ty . Surface ai

r, soil gas or atm ospheric m oni toring may

be warranted in the

context of the Proposed Rules, however, for purposes of ensuring life

- cycle GHG

reducti ons. In thi s context, the Agency should consider the adequacy of what

requi rements may

b e in place pursuant to the proposed UIC rules and ensure that

unnecessary , duplicat ive or conflict ing requirements are not imposed.

7 

### 73 Fed. Reg. 43491, 43540 (2008).

### 6

Finally , the Proposed Rul es request comment on several pote nt ial elements related to

reporting of and account ing fo r vol umes of CO 2 

### injected and stored. While the Preamble

to the proposed UIC rules notes that provisio ns related to accounting or certificat io n fo r

GHG reducti ons are outsi de the scope of the rulemak ing, 8 

### UIC permitt ing requirements

may necessarily

contem plate these activit ies. For example, the proposed UIC rules

woul d requi

re a permi

t applicant to provi de the “[a] verage and maximum daily rate and

vo lu me of the carbon dio xide stream ” 9 

### and operators t o “ install and use continuous

recording devices ” to m oni tor , among other things, the rate and vo lu me of injected CO 2



### . 10



### EEI urges the Agency to ensure that any such provisio ns act in harmony.

B. Avoiding Potential Conflicts with Existing and Future Programs

The above comments on the potential intersect io ns of the Proposed Rules with the UIC

program highlight a broader concern: the need for a ho list ic regulatory program to

address the numerous components of a CCS project. EEI’s concerns about the problems

o f pi ecemeal

regulat io n are not limited to the UIC context; indeed, the Agency’s

proposed rule on Mandatory Reporting of Greenhouse Gases separately sought comment

on a number of related issues in the CCS context. 11 

### Here, the Agency seeks co mment on

topi cs as f

undamental

as the m eans of capture and transportation that may b e empl oy ed

—

topi cs that are by

no m eans limi

ted in thei r need for regul atory

certaint y to the RFS

8 

### Id. at 43495.

9 

### Id. at 43536.

10 

### Id. at 43539.

11 

### EEI separately submitted comments on this proposal on June 9, 2009, in Docket No.

EPA

- HQ

- OAR_2008

- 0508

. EPA issued the final Rule on September 22, 2009. In the

Preamble to the Rule, which has not been published in the Federal Regist er yet , EPA

indicates that it plans to issue a new proposal on CCS to address emissio ns. As noted in

th ese comments, EEI would support a comprehensive CCS rulemaking.

### 7

context. By

way of f urther example, CO 2 

### emissio ns mo nit oring at the point of capture,

duri ng transportation or fro m th e l ong

- term storage format io n serves not only to assure

th at a fuel’s life

- cycle GHG emissio ns eliminated by CCS are properly accounted for, but

also would be necessary

i n the context of any

f uture limi tati ons on CO 2 

### emissio ns i nt o

th e atm osphere through a cap

- and

- trade program. A ccount ing methodol ogies will be

necessary i n both contexts as well.

There i s no technol ogical or policy reason to treat CCS used to reduce life

- cycle GHG

emissio ns fo r renewable fuels different ly fr om CCS used to reduce CO 2 

### emissio ns fro m

el ectri c power generati on. While piecemeal regulation may in certain instances be

necessary or even desirable, the need for a holistic approach to CCS to the greatest extent

possible is of crit ical importance to en suring efficient development of CCS techno lo gies.

Rather than develop rules specific to the use of CCS in reducing life

- cycle GHG

emissio ns fo r RFS purposes, the Agency sh oul d work toward development of

com prehensive, cross

- program regulat io ns fo r CCS tha t m eet all needs. EEI would

wel co me the opportunit y to work wi th EPA in cra fting a rule that appropriately addresses

CCS.Letter ID: 0384

Commenter: Quinlan J. Shea, III

Organization: Edison Electric Institute (EEI)

Letter ID: 0384 Comment ID: 28121 Letter Lines: 134 to 144

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

Comment: Carbon capture and storage (CCS) is a critical element in the full portfolio of

options needed not only to reduce CO2 emissions, but also to ensure continued

affordable and reliable electric service to customers throughout the nation.

The commercial availability of CCS depends upon the development of clear,

flexible, and appropriately tailored regulatory regimes that will facilitate

development of and investment in CCS technology and projects while protecting

against potential environmental risks. We commend the Agency for its continued

efforts to establish such a regime for GS and its efforts to balance the

availability of new data with the need for regulatory certainty. Information

about GS currently available can form the basis of an effective and safe

regulatory program.

Individual Response: EPA agrees it is important to balance updated information with regulatory

certainty. EPA is following an adaptive approach to the GS rulemaking to incorporate new research,

data, and information about GS. For more information on the adaptive approach, see the responses to

comments on the proposed rule in the rulemaking docket.

Letter ID: 0384 Comment ID: 28122 Letter Lines: 146 to 150

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

Comment: In addition, we commend the Agency for its careful reconsideration of the

originally

‐ proposed prohibition on injection and storage above the lowermost

underground source of drinking water (USDW) and its revised proposal to allow

injection and storage above the lowermost USDW where a waiver is obtained.

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

‐ USDWformations 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: 0384 Comment ID: 28123 Letter Lines: 151 to 154

Comment Code: 3310 3.3.1. Site Characterization

Comment: Fundamentally, proper site selection is critical to a successful GS project.

Indeed, proper site characterization is the most effective risk management tool

for GS projects and the best way to ensure protection of USDWs. It serves to

minimize, if not eliminate, any potential threats to USDWs that GS projects may pose.

Individual Response: EPA agrees that proper site selection, along with proper construction, operation,

monitoring, and post closure site care, are the most critical components of a GS project. EPA clarifies

that 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. EPA anticipates that

issuance of waivers will be limited to circumstances where there are deep USDWs and/or where the lack

of a waiver of injection depth requirements would result in impractical or technically infeasible well

construction, and where USDW protection is demonstrated and maintained through the life of the GS

project.

Letter ID: 0384 Comment ID: 28124 Letter Lines: 155 to 160

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

Comment: Accordingly, a blanket prohibition on the use of potential receiving

formations above the lowermost USDW, even where regulatory provisions for a

waiver are available, is unnecessary. However, allowing for a transparent,outcome

‐ predictable waiver process that works within the current definition of

USDW would ameliorate many of the concerns associated with limiting injection and

storage to formations below the lowermost USDW.

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 believes that through the waiver process, the GS rule avoids a "blanket prohibition" of injection into

any formation types, so long as the injection is demonstrated to be protective of USDWs. The final GS

rule maintains the principles of site

‐ suitability and flexibility and does not categorically preclude or

prohibit injection into any type of formation. Instead, the requirements are designed to ensure

protection of USDWs through proper siting, well construction, operation, monitoring, and post

‐ injection

site care at all sites selected for GS.

Letter ID: 0384 Comment ID: 28125 Letter Lines: 161 to 166

Comment Code: 5450 5.9. Comments on the Proposed Monitoring Requirements (146.90)

Comment: In considering new data on GS projects, EPA must separate the utility of monitoring

technologies, particularly

the use of tracers and surface air or soil gas monitoring, in the experimental

context in further demonstrating the efficacy of storage from their potential

utility as "leak detectors" during commercial CCS operations. Permit writers

need clear guidance on appropriate monitoring tools for commercial CCS projects,

as well as sufficient funding to undertake appropriate review of applications.

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: 0384 Comment ID: 28127 Letter Lines: 168 to 171

Comment Code: 1100 1.1 Comments on the Comprehensive Approach

Comment: Finally, to further foster the development and deployment of CCS, a single rule

is needed to address issues arising outside the SDWA context in order to avoidpiecemeal regulation. EEI would welcome the opportunity to work with EPA in

crafting such a rule.

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.

EPA acknowledges commenters’ concerns regarding the need for a single regulatory approach, and

clarifies that its authority related to GS wells is limited under SDWA. EPA encourages states to seek

primacy for GS, because states have authority to address challenges and issues that are outside of the

scope of the SDWA authority. For more information on primacy, see the responses to comments on the

proposed rule in the rulemaking docket.

Letter ID: 0384 Comment ID: 28128 Letter Lines: 177 to 204

Comment Code: 3000 3. Injection Depth for GS Projects

Comment: As originally proposed, the Class VI provisions would have prohibited any

injection and storage in receiving formations above the lowermost USDW.[Footnote

2]

[Footnote 2] Several commenters wrote in favor of the blanket prohibition, and

while EEI does not specifically address each of their comments here, two

comments in particular warrant mention. The first stated that injection below

the lowermost USDW is a long

‐ standing principle of UIC deep well injection.

This is of course true with regard to Class I wells, which include wells used to

inject hazardous industrial wastes (not CO2). However, injection above the

lowermost USDW is also a widespread practice with regard to Class II wells,

including those specifically designed to inject CO2 for purposes of enhanced oil

recovery. Each injection well permitted under the UIC program is required todemonstrate that USDWs will not be endangered. Injection limitations for CO2

are not mandated simply because hazardous wastes are subject to such

limitations. EEI’s previous comments contain further discussion regarding why

it is not appropriate to subject CO2 injection wells to regulation designed to

address hazardous wastes.

The second comment stated that given the relatively untested nature of

commercial

‐ scale GS, injection limitations are prudent during the early years

and may be relaxed later should experience warrant. While EEI does not disagree

that GS rules may be tailored appropriately as expertise is gained through

experience, imposing injection depth limitations across the board is unnecessary

(in addition to the reasons explained below) given the incentives that are

likely to drive early CCS projects. For example, the initial commercial

‐ scale

CCS projects may likely be those that offer the very best in terms of siting

characteristics.

Individual Response: EPA agrees 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 this approach: 1) responds to concerns about local

and regional geologic storage capacity limitations imposed by the proposed injection depth

requirements; 2) allows for a more site

‐ specific assessment of injection depth for GS projects; 3)

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

‐

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

USDWs will be 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.

EPA believes that through the waiver process, the GS rule avoids a "blanket prohibition" of injection into

any formation types, so long as the injection is demonstrated to be protective of USDWs. The final GS

rule maintains the principles of site

‐ suitability and flexibility and does not categorically preclude or

prohibit injection into any type of formation. Instead, the requirements are designed to ensure

protection of USDWs through proper siting, well construction, operation, monitoring, and post

‐ injection

site care at all sites selected for GS.

Letter ID: 0384 Comment ID: 28129 Letter Lines: 206 to 248

Comment Code: 3210 3.2.1. Comments Generally in Support of the ApproachComment: Such a limitation on receiving formations would be unnecessary, unduly

burdensome, and undesirable for several reasons:

‐ A categorical elimination of certain potential receiving formations is

unnecessary in light of the overall function of the UIC rules, which require all

permit applicants to demonstrate that projects will not endanger USDW. Further,

the proposed rules would require permittees to demonstrate the presence of a

"suitable geologic system" for a project. The suitability of any particular

receiving formation will thus necessarily be evaluated for each project.

‐ Each project and project site will possess its own unique characteristics. For

sites that would require injection above the lowermost USDW, there may exist

other characteristics that would provide equivalent or greater protection for

USDW.

‐ Limitations on injection above the lowermost USDW is currently imposed only on

Class I hazardous waste injection wells. As carbon dioxide is not a hazardous

waste, imposing an identical requirement for CO2 injection wells is likely to

create public misperceptions concerning the safety of GS projects.

‐ Limitations on injection above the lowermost USDW also may serve to exclude oil

and gas reservoirs as potential CO2 receiving formations.

The appropriateness of any given receiving formation more appropriately would be

considered on a case

‐ by

‐ case basis in light of the geologic characteristics of a

given project and based on the application of clear and appropriate parameters

set forth in the rules. In response to such comments, the Agency now seeks

comment on regulations that would retain the prohibition on injection and

storage above the lowermost USDW, but provide for a waiver process to account

for circumstances in which there are deep USDW.

Eliminating the default prohibition and making siting determinations on a case ‐

by

‐ case basis as outlined above would achieve the same level protection for

USDWs as the imposition of a waiver process (which could be interpreted as a

baseline assumption that all projects injecting above the lowermost USDW pose

some heightened risk to drinking water), without the addition of unnecessary

regulatory hurdles. Nevertheless, EEI commends the Agency’s revised proposal

for its recognition that a blanket prohibition related to injection depth would

be problematic and unnecessary, and recognizes that a waiver procedure may

provide a workable compromise for the competing interests evidenced in the

comments. The contemplated waiver process is an example of how the Agency may

insert needed flexibility into the process to take into account project

‐ specificsiting and other issues while ensuring the continued protection of USDW.

Individual Response: EPA agrees that a flexible, site

‐ specific approach to waiver determinations (and all

Class VI permitting decisions) is appropriate. 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. Site

‐ specific

demonstrations of injection zone integrity along with proper well construction, operation, monitoring,

and post closure site care are the best way to ensure USDW safety while allowing flexibility for GS above

or between USDWs. EPA believes that the additional requirements that apply to owners or operators of

Class VI wells granted a waiver of the injection depth requirements will provide additional

considerations for the owner or operator and Director when permitting such wells to ensure protection

of all USDWs.

Letter ID: 0384 Comment ID: 28130 Letter Lines: 250 to 260

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

Comment Code: 3310 3.3.1. Site Characterization

Comment: Fundamentally, proper site selection is critical to a successful GS project.

Indeed, proper site characterization is the most effective risk management tool

for GS projects. It serves to minimize, if not eliminate, any potential threats

to USDW that GS projects may pose. EEI maintains that siting decisions may best

be made on a project

‐ by

‐ project basis through exercise of the program

director’s discretion bounded by clear principles for its application, and that

a blanket prohibition on use of potential receiving formations above the

lowermost USDW, even where regulatory provisions for a waiver are available, is

unnecessary. However, allowing for a waiver process would ameliorate many of

EEI’s concerns with limiting injection and storage to formations below the

lowermost USDW.

Individual Response: EPA agrees that proper site selection, along with proper well construction,

operation, monitoring, and post

‐ injection site care, are critical components of a GS project. EPA clarifies

that 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. EPA anticipates that

issuance of waivers will be limited to circumstances where there are deep USDWs and/or where the lack

of a waiver of injection depth requirements would result in impractical or technically infeasible well

construction, and where USDW protection is demonstrated and maintained through the life of the GS

project.Letter ID: 0384 Comment ID: 28132 Letter Lines: 262 to 269

Comment Code: 3350 3.3.5. Requirement to Submit Waiver Application to UIC and PWSS Program

Directors

Comment: As proposed, the waiver process would require applicants to submit additional

information to the UIC program director and Public Water Supply Supervision

(PWSS) program director for review prior to completion of the permit

application, and these directors would weigh this information against specified

factors in making waiver decisions. In drafting a final rule, EPA should strive

to develop clear guidelines for decision makers in evaluating waiver

applications as well as the development of a transparent and, to the extent

possible, outcome

‐ predictable process to provide guidance for future applicants.

Individual Response: The final GS rule includes a requirement that the UIC Program Director consult

with the PWSS Directors of all states, Territories, and Tribes having jurisdiction within the AoR of a well

for which a waiver is sought as specified in §146.95(b)(2). EPA believes this process is necessary and

appropriate to ensure that water system concerns are considered when evaluating a waiver application.

EPA is developing guidance on the injection depth waiver process. The guidance describes the

recommended approach an owner or operator may follow when submitting a waiver application,

processing waiver applications by the UIC and PWSS Program Directors, and additional considerations

that may apply to projects that have been issued waivers. This guidance will be available on EPA’s

website at water.epa.gov/type/groundwater/uic/wells_sequestration.cfm.

Letter ID: 0384 Comment ID: 28133 Letter Lines: 270 to 272

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

Comment: In terms of the substantive requirements for waiver applicants, the Agency

should guard against the insertion of unnecessary complexity and redundancy into

the process that bring no corresponding increase in protection of USDWs.

Individual Response: EPA believes that the information required to obtain a waiver is necessary to

ensure that the owner or operator collects information and demonstrates to the Director that the

injection zone is suitable for GS, is confined by confining units above and below the injection zone, and

that well construction, operation, and monitoring are tailored for the site and take into consideration

the presence of USDWs above and below the injection zone. Because USDW protection is the priority of

the GS rule, owners or operators seeking waivers must provide a supplemental report (the GS Class VIinjection depth waiver application report), referenced at §146.82(d) and outlined at §146.95(a), with

their Class VI permit applications. This report, suggested by commenters, is designed to ensure that all

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

PWSS Directors, and the public when the waiver is publicly noticed with the draft Class VI permit

application. The Agency believes that this report and requirements at §146.95 are complementary and

not redundant of the Class VI permit application requirements. Furthermore, to eliminate concerns

about duplication or redundancy, the requirements at §146.82(d) clarify that the supplemental report is

not part of the permit application.

Letter ID: 0384 Comment ID: 28134 Letter Lines: 274 to 288

Comment Code: 3400 3.4 Additional Information Regarding the Waiver Approach

Comment: The Agency proposes that applicants for a waiver be required to consider several

issues related to water supply, including "regional water resource issues" and

"alternative water supplies or water treatment options to address unanticipated

movement of the injectate or formation fluids." Further, the NODA may be read

to suggest that injection depth limitations are desirable to protect for

underground waters not meeting the Agency’s current definition of USDW (i.e.,

10,000 ppm total dissolved solids (TDS)) and that any waiver decisions also may

take into consideration the protection of such underground waters. EEI does not

dispute the benefits of requiring waiver applicants to consider potential issues

related to water supply or water treatment, or the need to consider potential

technological advancements in terms of underground water access and treatment.

However, USDWs, the subject of the UIC program’s protection, are defined only to

include those below 10,000 ppm TDS. Absent a proposal to change the definition

of USDW, the Agency must work within the current definition and craft any

injection depth limitations with it in mind.

Individual Response: The requirements to consider water issues related to water supply, including

regional water resource issues and alternative water supplies or water treatment options to address

unanticipated movement of the injectate or formation fluids at §146.95 are to ensure consideration of

water system and water resource issues where injection into non

‐ USDW formations above the

lowermost USDW is being considered.

EPA is not changing the definition a USDW; changing the definition of a USDW is outside the scope of

the GS rulemaking. The GS rule focuses on ensuring protection of USDWs, as required under the SDWA,

by establishing regulations to ensure the safe injection of CO2 for long

‐ term storage. For additional

information on EPA's approached to USDW protection, see the preamble to the final GS rule.Letter ID: 0384 Comment ID: 28135 Letter Lines: 292 to 312

Comment Code: 2000 2. Comments on Research, Data Analysis, and Findings presented in the NODA

(seeking comment)

Comment: The NODA notes that the availability of recent field data and research studies

"could change EPA’s approach to the final rulemaking." [Footnote 3]

Consideration of new data is a perfect example of the adaptive approach EEI

encouraged in its previous comments, which would allow incorporation of new

information and data over time, as opposed to the approach favored by some

commenters of waiting to develop rules until further information and data are

gathered. In order to spur development of a commercial

‐ scale GS industry,

potential operators and investors need a regulatory framework within which to

work now. Information about GS currently available can form the basis of an

effective and safe program.

[Footnote 3] 73 Fed. Reg. 43492, 44803.

The NODA contains discussion of three experimental GS projects as well as

research being conducted regarding the potential effects on USDWs in the highly

unlikely event that injected CO2 migrates from the receiving formation. In

evaluating the techniques employed in these projects and the data produced, the

Agency should keep in mind that experimental projects are just that

‐ experimental

projects. The techniques employed in any given setting may have much to offer

the project, but their successful employment in such a setting should not

necessarily dictate their universal application.

Individual Response: EPA believes that the regional partnerships provide important information on GS,

but recognizes that use of a technology in a RCSP project does not necessarily make the technology valid

for all applications. Each project will be unique and the final rule provides for site

‐ specific approaches to

ensure that appropriate construction, operation, and monitoring is performed at each site. However, by

testing multiple technologies, the pilot sites provide valuable data that demonstrate whether or not

these technologies are viable and informed the final GS rule. Please see the discussion of EPA's final

regulatory approach in the preamble to the final GS rule for additional detail on the final requirements

for GS wells.

EPA plans to continue to monitor ongoing research on GS, and intends to use an adaptive approach to

the GS regulation. EPA plans, every six years, to collect and review data on GS projects to determine

whether the appropriate amount and types of information and appropriate documentation are being

collected, and to determine if modifications to the requirements are appropriate or necessary.Letter ID: 0384 Comment ID: 28137 Letter Lines: 327 to 331 ; 348 to 349

Comment Code: 2120 2.1.2. SWP (Aneth Field, UT)

Comment: subsurface." [Footnote 7] The NODA also references the use of tracers in its

discussion of the SWP Project in Aneth Field, Utah, stating that the project

"confirms the need for a project design with a robust monitoring plan" as well

as "the utility of various monitoring technologies," and in its discussion of

the SWP Project in Pump Canyon, New Mexico.[Footnote 8]

[Footnote 8] Id. at 44806.

Individual Response: EPA agrees that the RCSP projects confirm the need for a plan for monitoring of

the injection zone, confining zone(s), USDWs, and other significant geologic settings.

Letter ID: 0384 Comment ID: 28138 Letter Lines: 314 to 327 ; 333 to 346

Comment Code: 2110 2.1.1. SECARB (Escatawpa, MS)

Comment: 1. Regional Partnership Projects

In particular, the NODA’s discussion of the SECARB Plant Daniel [Footnote 4]

project notes that the project meets a number of Class I requirements related to

pre

‐ injection mechanical integrity of both the injection and monitoring

well,[Footnote 5] including a radioactive tracer survey. It further emphasizes

the project’s use of surface or near

‐ surface monitoring for upward

CO2 migration, stating that use of these techniques "provides the EPA with

preliminary information regarding the efficacy and appropriateness of these

technologies at certain sites" and "supports the need for a site

‐ specific

monitoring plan that will allow use of a range of monitoring techniques suitable

for each unique GS site." [Footnote 6] It also notes that such monitoring has

found "no indication of the return of the injected CO2 into the shallow

subsurface." [Footnote 7] The NODA also references the use of tracers in its

[Footnote 4] EEI member Southern Company is a SECARB partner. Its subsidiary

Mississippi Power operates Plant Daniel, the host site of the project.

[Footnote 5] EEI’s December 24, 2008, comments included detailed discussion ofits concerns about any parallels that might be drawn between Class I hazardous

waste injection wells and injection wells designed for GS and refers the Agency

to that discussion. As further discussed herein, the fact that various Class I

elements may have been employed in any given experimental project should not

translate to a generalized requirement that those elements be imposed on all

commercial GS projects.

[Footnote 6] 74 Fed. Reg. at 44806.

[Footnote 7] Id.

Individual Response: EPA acknowledges that a single project does not prove that a given design is

effective in all cases or is the only design that would be effective, and disagrees that the proposed rule

requirements are more prescriptive than necessary. The results of the SECARB project, however, do

show that the proposed requirements are effective in the studied case and can provide for safe injection

of carbon dioxide that protects USDWs from endangerment.

For more information on the construction requirements for GS wells, see the responses to comments on

the proposed rule in the rulemaking docket.

Letter ID: 0384 Comment ID: 28139 Letter Lines: 350 to 375

Comment Code: 2100 2.1 DOE Regional Carbon Sequestration Partnership Projects

Comment Code: 5450 5.9. Comments on the Proposed Monitoring Requirements (146.90)

Comment: It is appropriate to test techniques such as tracers and surface air/soil gas

monitoring to determine their overall usefulness and effectiveness during this

experimental period for CCS. The NODA’s description of these three projects,

however, could be read to suggest that the Agency favors employing requirements

for the use of tracers and/or surface air/soil gas monitoring. EEI has

previously advised against imposition of a requirement to use tracers or surface

air/soil gas monitoring to detect movement of CO2, even where, as the Agency

proposed, such a requirement is left to the UIC program director’s discretion.

In brief, these technologies would likely provide too little information, too

late, in terms of protecting USDWs, and the risk of "false positives" is high.

Requiring their use may create or encourage overly negative and unwarranted

public perception regarding the safety of GS. Further, tracers may present

their own safety concerns. Finally, the Agency’s authority under the SDWA to

protect USDWs via these surface

‐ level monitoring tools is not clear.While the use of many technologies, including tracers and surface air/soil gas

monitoring, may be appropriate and useful in the context of an experimental

project, the Agency must keep in mind this context. The utility of such

technologies in any given experimental context does not necessarily warrant in

favor of requiring their use in a commercial setting. Moreover, EPA must

separate the utility of these technologies in the experimental context in

further demonstrating the efficacy of storage from their potential utility as

"leak detectors" during the operation of actual commercial CCS projects. As

noted above, tracers will not provide sufficient information in an appropriate

timeframe to allow for immediate remediation of any deficiencies in the

injection well that may result in a CO2 leak.

Individual Response: EPA acknowledges that the pilot sites studied involved extensive monitoring that

may not necessarily be appropriate for all GS sites. However, EPA believes that a robust monitoring

program is critical to ensuring protection of USDWs at GS projects from endangerment, but clarifies that

the use of any monitoring technique in the pilot projects does not amount to an endorsement by EPA or

an intent by EPA to require that particular method. By testing multiple technologies, the pilot sites

provide valuable data that demonstrate whether or not these technologies are viable and informed the

final GS rule about the appropriate use of monitoring technologies.

EPA acknowledges that the appropriate monitoring methods and technologies will be determined on a

site

‐ specific basis. Data from the projects presented supports the need for a site

‐ specific monitoring

plan that will allow use of a range of monitoring technologies suitable for each unique GS site.

EPA recognizes that certain monitoring technologies, particularly surface air and soil gas monitoring and

tracers are subject to variability and may not be appropriate or necessary in all settings. The GS rule at

146.90 gives the Director discretion to determine what methods are appropriate. All monitoring must be

performed according to the Director

‐ approved testing and monitoring plan. See the response to

comments document for the proposed rule for additional information on EPA’s final approach to

monitoring at GS sites.

Letter ID: 0384 Comment ID: 28140 Letter Lines: 377 to 407

Comment Code: 2210 2.2.1. Groundwater Quality and Mobilization of Trace Elements (seeking

comment)

Comment: 2. Lawrence Berkeley National Laboratory (LBNL) Studies The NODA discusses

studies underway at LBNL to test the potential of CO2 to mobilize trace elements

in potable groundwater. It notes that the "majority of results did not show

mobilization" of trace elements such as barium, cadmium, lead, antimony, andzinc "at levels exceeding the MCL [maximum contaminant level] or AL[action

level]." [Footnote 9] It also notes that the results suggest that under certain

conditions, arsenic levels could potentially exceed Federal drinking water

standards when elevated CO2 levels are present. It concludes that while it "is

important to emphasize that these studies looked at potential consequences of

CO2 leakage into the USDW, not the likelihood of such leakage occurring. The

goal of the UIC program and these regulations is to ensure that injectate does

not contaminate USDWs in the first place." [Footnote 10]

[Footnote 9] Id. at 44807.

[Footnote 10] Id.

It is of course important to understand potential effects on USDWs should

migration occur; however, it is equally important to retain the context. Proper

site characterization is the most important risk management tool for GS.

Migration of CO2 from the receiving formation of properly sited and managed

projects is extremely unlikely. The Intergovernmental Panel on Climate Change

(IPCC) concluded in 2005 that the fraction of CO2 retained in "appropriately

selected and managed geological reservoirs" is likely to exceed 99 percent over

1,000 years.[Footnote 11] Regardless, it is notable that even in the context

of this "worst case scenario," the majority of results did not demonstrate

potentially harmful impacts to USDWs.

[Footnote 11] See IPCC, Special Report on Carbon Dioxide Capture and Storage,

section 1.6.3, available at,

http://www.ipcc.ch/pdf/special

‐ reports/srccs/srccs_wholereport.pdf.

Individual Response: EPA acknowledges that the LBNL study does not consider the risk of a leak from a

sequestration basin occurring, but only the results if leakage did occur. EPA reaffirms that the intent of

the UIC program is to prevent such leaks from occurring in the first place.

EPA clarifies that site

‐ specific data are necessary to understand the potential geochemical reactions at a

GS site. For this reason, all GS project owner or operators must submit detailed, site

‐ specific information

about a proposed GS site, including information on the porosity, permeability, mineralogy, and

geochemistry of the targeted injection and confining zones as well as all USDWs within the Area of

Review. Operators must also present information on the compatibility of the CO2 stream with fluids in

the injection zone and minerals in the injection and confining zones (146.82(c)(3)). The data can help the

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

geologic formations. For additional information on EPA’s approach to site characterization for GS wells,

see the responses to comments on the proposed rule in the rulemaking docket.Letter ID: 0384 Comment ID: 28141 Letter Lines: 409 to 456

Comment Code: 1100 1.1 Comments on the Comprehensive Approach

Comment: c. Comprehensive Regulatory Framework for GS

The NODA notes that many commenters on the proposed rule encouraged the Agency

to consider a more "comprehensive framework" for GS, addressing issues arising

under statutes other than SDWA, such as the Clean Air Act (CAA), the Resource

Conservation and Recovery Act (RCRA), and the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA).[Footnote 12] It further

states that the Agency "is currently evaluating the need for a more

comprehensive regulatory framework," and that if the Agency "chooses to pursue"

such a framework, it will seek public comment on any proposal it

develops.[Footnote 13]

[Footnote 12] EEI’s previous comments include a discussion of regulatory and

liability issues related to potential application of CERCLA and RCRA to the GS

context and the need for their separate treatment by the Agency.

[Footnote 13] 74 Fed. Reg. at 44805.

The Agency should to adhere to its limited jurisdiction under SDWA in

promulgating UIC rules for GS, in order to help achieve a regulatory framework

that is stable and not subject to legal challenge based on lack of authority.

At the same time, while separate regulatory structures for CCS are to some

extent necessary, a single rule is needed to address issues arising outside the

SDWA context in order to avoid piecemeal regulation. In the last year, the

Agency has considered various provisions directly impacting CCS projects under

the Agency’s proposed rule on Mandatory Reporting of Greenhouse Gases (Docket ID

No. EPA

‐ HQ

‐ ORA

‐ 2008

‐ 0508), 74 Fed. Reg. 16448 (April 10, 2009), as well as its

proposed changes to the Renewable Fuel Standard (RFS) Program (Docket ID No.

EPA

‐ HQ

‐ OAR

‐ 2005

‐ 0161), 74 Fed. Reg. 24904 (May 26, 2009), raising concrete

concerns that CCS may be unnecessarily governed through a patchwork of separate

provisions. A holistic approach to CCS to the greatest extent possible is of

critical importance to ensuring efficient development and commercial deployment

of CCS technologies. EEI would welcome the opportunity to work with EPA in

crafting a rule that appropriately addresses CCS.

The NODA states that should the Agency pursue this approach, it will "endeavorto issue a more comprehensive rule in the same time frame as it had planned for

the stand

‐ alone UIC GS rulemaking." [Footnote 14] The sooner regulatory

certainty can be provided, the more it will assist development and deployment of

commercial

‐ scale CCS as a tool to combat climate change while ensuring reliable,

affordable energy for the country going forward.

[Footnote 14] Id. In the final rule for the Mandatory Reporting of Greenhouse

Gases, which was signed on September 22, 2009, but has not yet appeared in the

Federal Register, EPA noted that it would soon undertake a new rulemaking for

CO2 GS sites under the CAA. EEI supports the development of comprehensive

rulemaking that would provide regulatory certainty for CCS projects without

imposing additional or unnecessary regulatory requirements.

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.

EPA acknowledges commenters’ concerns regarding the need for a single regulatory approach, and

clarifies that its authority related to GS wells is limited under SDWA. EPA encourages states to seek

primacy for GS, because states have authority to address challenges and issues that are outside of the

scope of the SDWA authority. For more information on primacy, see the responses to comments on the

proposed rule in the rulemaking docket.

Letter ID: 0384 Comment ID: 28142 Letter Lines: 458 to 476

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

Comment: d. State Progress

The NODA seeks comment on "current State activities addressing GS,"acknowledging that states have made great progress on this front and expressing

its desire not to "unduly hinder" such progress. The NODA also references the

"expertise and infrastructure" currently embodied in state programs and states’

abilities to bring clarity to CCS issues beyond those associated specifically

with underground injection. The NODA suggests an approach that would give the

states substantial authority under a delegated program (through

primacy). [Footnote 15]

[Footnote 15] See id. at 44812.

States and tribes should play a key role in managing CCS projects and their

decades of valuable experience regulating CO2 injection should be tapped as a

resource. As the NODA notes, states have substantial authority to regulate

aspects of CCS projects, such as issues related to property rights and financial

incentives beyond injection and storage, and the Agency’s regulation on the

latter can and should complement state action on the former.

Individual Response: EPA acknowledges the expertise of state oil and gas agencies that have been

regulating Class II wells for decades under section 1425 of SDWA. These agencies already understand

many of the issues pertaining to Class VI wells and have experience with CO2 injection, subsurface

operations, and pipeline transport, as well as familiarity with local interests and the SDWA. EPA assumes

that this experience, along with the agencies’ familiarity with UIC permitting requirements, will help

facilitate the adoption of Class VI primacy programs and assumes that many states with Class II

programs will choose to have the Class II primacy agency implement the Class VI program. 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.

Letter ID: 0384 Comment ID: 28143 Letter Lines: 478 to 483

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

Comment: Accordingly, states should be able to seek primacy for only Class VI wells

should they so choose, to ensure that they are given credit and recognition for

their valuable efforts on GS without also requiring them to assume the burden of

the entire UIC program for the state. Adequate funding for primacy states,given the extraordinarily detailed process that will likely accompany obtaining

a Class VI permit, must be ensured.

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. For additional information on primacy, please see the

preamble to the final rule and responses to comments on the proposed GS rule.