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 Codrington/DC/USEPA/US@EPA,

Cc: "Shea, Quin" <QShea@eei.org>, "Fang, Bill" <BFang@eei.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 Sector 

  

  
701 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-2696

Telephone 202-508-5615

Fax 202-508-5027

www.eei.org

QUINLAN J. SHEA, III

Executive Director, Environment 

Submitted via regulations.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 Requirements 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 Edison Electric Institute (EEI) appreciates the opportunity to comment on the Environmental 

Protection Agency’s (EPA or Agency) Notice of Data Availability (NODA) and Request for 

Comment related to the Agency’s proposed regulations for injection and geologic storage of 

carbon dioxide under the Safe Drinking Water Act’s Underground Injection Control (UIC)

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

EEI is the association of shareholder-owned electric companies throughout the United States. 

Our members service 95 percent of the ultimate customers in the shareholder-owned segment of

the industry, and represent approximately 70 percent of the U.S. electric power industry. EEI 

continues to participate in the UIC rulemaking to facilitate the development and deployment of 

carbon capture and storage (CCS), a critical component in the full portfolio of options needed to 

reduce greenhouse gas emissions. Thank you for the opportunity to submit these additional 

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

(efisher@eei.org, 202-508-5616) or Dr. Karen Obenshain (kobenshain@eei.org, 202-508-5223).

Sincerely,

Quinlan J. Shea, III

QJS:esf

Attachment
2

COMMENTS OF EDISON ELECTRIC INSTITUTE

ON THE ENVIRONMENTAL PROTECTION AGENCY’S

FEDERAL REQUIREMENTS UNDER THE UNDERGROUND 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 Edison Electric Institute (EEI)1submits these comments on the Environmental 

Protection Agency (EPA or Agency)’s Notice of Data Availability and Request for 

Comment related to the Agency’s proposed regulations for injection and geologic storage 

(GS) of carbon dioxide (CO2) under the authority of the Safe Drinking Water Act 

(SDWA) Underground Injection 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-rulemaking comments to the Agency on May 15, 2008, provided oral and 

written testimony at EPA’s September 30, 2008 public hearing on the proposed rules, and 

submitted written comments on December 24, 2008. EEI also provided testimony at the 

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

incorporated by reference herein.

 

1

EEI is the national association of shareholder-owned electric utilities in the U.S. Our 

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

percent of the ultimate consumers in the industry’s investor-owned segment. 
3

I. Executive Summary

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.

In addition, we commend the Agency for its careful reconsideration of the originallyproposed 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. 

 

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. 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 
4

current definition of USDW would ameliorate many of the concerns associated with 

limiting injection and storage to formations below the lowermost USDW. 

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.

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 avoid piecemeal 

regulation. EEI would welcome the opportunity to work with EPA in crafting such a 

rule.

II. Specific Comments

a. Project Siting

As originally proposed, the Class VI provisions would have prohibited any injection and 

storage in receiving formations above the lowermost USDW.2 Such a limitation on 

 

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 to 

demonstrate that USDWs will not be endangered. Injection limitations for CO2 are not 

mandated simply because hazardous wastes are subject to such limitations. EEI’s 
5

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 

 

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. 
6

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 
7

account project-specific siting and other issues while ensuring the continued protection of

USDW. 

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-byproject 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. 

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. In terms of the substantive requirements for waiver 

applicants, the Agency should guard against the insertion of unnecessary complexity and 
8

redundancy into the process that bring no corresponding increase in protection of 

USDWs.

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. 

b. Summary of Recent Field Data and Research Studies

The NODA notes that the availability of recent field data and research studies “could 

change EPA’s approach to the final rulemaking.”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 

 

3

73 Fed. Reg. 43492, 44803.
9

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.

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. 

1. Regional Partnership Projects

In particular, the NODA’s discussion of the SECARB Plant Daniel4project notes that the 

project meets a number of Class I requirements related to pre-injection mechanical 

integrity of both the injection and monitoring well,

5

including a radioactive tracer survey. 

It further emphasizes the project’s use of surface or near-surface monitoring for upward 

 

4

EEI member Southern Company is a SECARB partner. Its subsidiary Mississippi 

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

5

EEI’s December 24, 2008, comments included detailed discussion of its 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.
10

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.”6 It also notes that such 

monitoring has found “no indication of the return of the injected CO2 into the shallow 

subsurface.”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.8

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 

 

6

74 Fed. Reg. at 44806.

7

Id.

8

Id. at 44806.
11

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. 

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, and zinc “at 

levels exceeding the MCL [maximum contaminant level] or AL [action level].”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 

 

9

Id. at 44807.
12

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.”10

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.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. 

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).

12

 It further states 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 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. 
13

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.13

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 “endeavor to issue 

a more comprehensive rule in the same time frame as it had planned for the stand-alone 

 

13 74 Fed. Reg. at 44805.
14

UIC GS rulemaking.”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. 

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).15 

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. 

 

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.

15 See id. at 44812.
15

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. 
701 Pennsylvania Avenue, N.W.

Washington, D.C. 20004-2696

Telephone – 202-508-5027

Fax 202-508-5150

qshea@eei.org

www.eei.org

QUINLAN J. SHEA, III

Executive Director, Environment 

September 25, 2009

Air and Radiation Docket and Information Center

U.S. Environmental Protection Agency

Mail Code: 2822T

Attn: Docket ID No. EPA-HQ-OAR-2005-0161

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Submitted by E-mail: 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 Edison Electric Institute (EEI) appreciates the opportunity to comment on 

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

Renewable Fuel Standard Program under the Clean Air Act, particularly 

EPA’s discussion of the possible role of carbon capture and storage (CCS) in 

addressing lifecycle greenhouse gas (GHG) emissions from renewable fuels. 

EEI is the association of shareholder-owned electric companies throughout the 

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

the shareholder-owned segment of the industry, and represent approximately

70 percent of the U.S. electric power industry. 

Some EEI members are actively engaged in CCS research, development,

demonstration and deployment efforts. EEI and its members continue to be 

active participants in the Office of Water’s rulemaking under the Underground 

Injection Control Program for carbon dioxide geologic sequestration wells, 

Docket No. EPA-HQ-OW-2008-0390, 73 Fed. Reg. 43492 (July 25, 2008). 

To facilitate the development and deployment of CCS as a tool to reduce 

GHG emissions across industries, EPA should work toward comprehensive, 

cross-program regulations that avoid unnecessary or duplicative requirements. 

EEI would welcome 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

QUINLAN J. SHEA, III

Executive Director, Environment 

Page 2

Attached are more detailed comments on the proposed rule. For further 

information, please contact Karen Obenshain (kobenshain@eei.org, 202-508-

5223) or Emily Fisher (efisher@eei.org, 202-508-5616).

Sincerely,

Quinlan J. Shea, III

QJS:esf

Attachment
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

The Edison Electric Institute (EEI)1submits these comments on proposed changes of the 

Environmental Protection Agency (EPA or Agency) to the Renewable Fuel Standard 

(RFS) Program under the Clean Air Act, as amended by sections 201, 202 and 210 of the 

Energy Independence and Security Act of 2007, issued in May 2009 (Docket ID No. 

EPA-HQ-OAR-2005-0161), 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 carbon capture and storage (CCS) “could be an effective method 

for significantly reducing the life-cycle greenhouse gas (GHG) emissions associated with 

renewable fuel production,”2and the request for comment on “[s]pecific areas that would 

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

in meeting GHG thresholds.”3 

 

1

 EEI is the national association of shareholder-owned electric utilities in the U.S. Our 

U.S. member companies serve 95 percent of the ultimate customers in the shareholderowned segment of the industry and nearly 70 percent of all electric utility customers in 

the nation.

2

74 Fed. Reg. 24952.

3

Id.
2

I. Benefits Of Recognizing CCS As A Tool For Fuel Producers

EEI and our members believe that CCS technologies are a critical element in the full 

portfolio of options needed to reduce GHG emissions and combat climate change, and 

that the promise of CCS is not limited to its use in connection with coal-fired electricity

production. We thus applaud the Agency for its recognition that CCS can be a key

element in reducing the life-cycle GHG emissions of renewable fuels. Not only does the 

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

dioxide (CO2) emissions associated with renewable fuels, it also serves to support 

commercial development and deployment of CCS technologies more generally. 

II. Working Toward A Comprehensive Regulatory Framework For CCS

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

tailored regulatory regimes that will facilitate development of and investment in CCS 

technology and projects. Of particular importance in this context is the need to avoid 

piecemeal regulation of CCS. The Agency is currently developing regulations to govern 

the commercial-scale injection and storage of CO2 under the Underground Injection 

Control (UIC) program of the Safe Drinking Water Act (SDWA).4 As the Proposed 

Rules note, pursuant to the scope of the Agency’s jurisdiction under the SDWA, the UIC 

rules must be tailored to avoid threats to underground 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 existing or future emissions reductions 

requirements. While we thus recognize that separate regulatory structures for CCS are to 

 

4 EEI refers the Agency generally to its comments on the proposed UIC rules, filed 

December 23, 2008, in Docket No. EPA-HQ-OW-2008-0390, for additional 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 discussed in more detail below. 

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 

addressed:

 The means through which the CO2 would be captured from the renewable 

fuel production facility.

 The minimum fraction that must be captured.

 The means for transporting to the injection site.

 The monitoring procedures to ensure long-term storage of CO2.

 The mechanisms for tracking and accounting for potential leakage of 

captured CO2 during transport to the storage site or after injection has 

occurred. 

 The type and level of surface or subsurface monitoring that would be 

required to demonstrate long-term storage of CO2.

 The appropriateness of “additional monitoring and reporting 

requirements,” for example, whether there should be a requirement for the 

monitoring and reporting of CO2 volumes captured, transported, injected 

and stored, as well as any fugitive emissions released.

 The appropriateness of establishing a performance standard for CO2

leakage during transport, injection or geologic storage.

 The appropriateness of requiring producers to demonstrate the amount of 

CO2 sequestered, and of specifying the minimum fraction of CO2 emitted 

that must 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 CO2. In the 

context of the Proposed Rules, monitoring for leakage from the point of capture through 

subsurface storage is necessary to ensure that possible emissions of CO2 to the 

atmosphere are avoided and that the life-cycle GHG emissions associated with a fuel are 

reduced.6 Although this goal is different from the need to protect USDWs evidenced in 

the monitoring requirements of the proposed UIC rules, potential overlap between the 

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

considered for purposes of the Proposed Rules are not duplicative of potential SDWA 

monitoring requirements and do not impose additional unnecessary burdens on CCS 

projects. 

In particular, the Proposed Rules seek comment on what monitoring procedures may be 

appropriate to ensure long-term storage of CO2, as well as what type and level of surface 

or subsurface monitoring should be required to demonstrate long-term storage of CO2 and 

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

proposed UIC rules contain a number of provisions related to subsurface monitoring, 

which are intended to ensure that injected CO2 remains in the receiving formation as 

intended and thus does not pose a threat to USDW. By their nature, such provisions will

ensure that long-term storage of CO2 in the subsurface is achieved; if CO2 remains in the 

 

6

 If CO2 is properly captured, transported and injected into appropriate geologic 

formations, the risk of emissions is extremely low. 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. See IPCC, Special Report on Carbon Dioxide Capture and Storage, 

section 1.6.3, available at: http://www.ipcc.ch/pdf/specialreports/srccs/srccs_wholereport.pdf.
5

receiving formation, it is not escaping into the environment. Assuming that all 

commercial CCS projects would require permitting under the proposed UIC rules and 

would be subject to their requirements, project operators will already be required to 

comply with a number of provisions related to subsurface monitoring and prevention of 

migration—provisions that are likely more stringent than those that would be needed if 

escape into the atmosphere were the only potential concern. EEI encourages the Agency

to consider the proposed monitoring requirements that may be put in place through the 

UIC program and avoid duplicative or unnecessary additional monitoring or performance 

requirements with 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 

director the discretion to require the use of tracers or surface air/soil gas monitoring “to 

detect movement of CO2 that could endanger a USDW.”7 As is explained in EEI’s 

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

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

releases of CO2 is outside the scope of the proposed UIC rules and the Agency’s SDWA 

authority. Surface air, soil gas or atmospheric monitoring may be warranted in the 

context of the Proposed Rules, however, for purposes of ensuring life-cycle GHG 

reductions. In this context, the Agency should consider the adequacy of what 

requirements may be in place pursuant to the proposed UIC rules and ensure that 

unnecessary, duplicative or conflicting requirements are not imposed. 

 

7

73 Fed. Reg. 43491, 43540 (2008).
6

Finally, the Proposed Rules request comment on several potential elements related to 

reporting of and accounting for volumes of CO2 injected and stored. While the Preamble 

to the proposed UIC rules notes that provisions related to accounting or certification for 

GHG reductions are outside the scope of the rulemaking,8 UIC permitting requirements 

may necessarily contemplate these activities. For example, the proposed UIC rules 

would require a permit applicant to provide the “[a]verage and maximum daily rate and 

volume of the carbon dioxide stream”

9

and operators to “install and use continuous 

recording devices” to monitor, among other things, the rate and volume of injected CO2.

10

 

EEI urges the Agency to ensure that any such provisions act in harmony. 

B. Avoiding Potential Conflicts with Existing and Future Programs 

The above comments on the potential intersections of the Proposed Rules with the UIC 

program highlight a broader concern: the need for a holistic regulatory program to 

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

of piecemeal regulation 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 comment on 

topics as fundamental as the means of capture and transportation that may be employed—

topics that are by no means limited in their need for regulatory certainty 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 Register yet, EPA 

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

these comments, EEI would support a comprehensive CCS rulemaking.
7

context. By way of further example, CO2 emissions monitoring at the point of capture, 

during transportation or from the long-term storage formation serves not only to assure 

that a fuel’s life-cycle GHG emissions eliminated by CCS are properly accounted for, but 

also would be necessary in the context of any future limitations on CO2 emissions into 

the atmosphere through a cap-and-trade program. Accounting methodologies will be 

necessary in both contexts as well. 

 

There is no technological or policy reason to treat CCS used to reduce life-cycle GHG 

emissions for renewable fuels differently from CCS used to reduce CO2 emissions from 

electric power generation. 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 critical importance to ensuring efficient development of CCS technologies. 

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

emissions for RFS purposes, the Agency should work toward development of 

comprehensive, cross-program regulations for CCS that meet all needs. EEI would 

welcome the opportunity to work with EPA in crafting 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‐USDW
formations above the lowermost USDW can be performed in a manner that protects USDWs. The final

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

VI injection depth requirements. The Agency believes the waiver approach: 1) responds to concerns

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

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

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

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

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

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

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

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

Letter ID: 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 avoid  
piecemeal 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 to  
demonstrate 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 Approach  
Comment: 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‐specific  
siting 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 VI
injection 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 of  
its 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, and  
zinc "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 "endeavor  
to 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.